Creating a right of way

Public rights of way can come into existence through creation (either by legal order or by an agreement made with the landowner) or dedication by the landowner (either expressly or by presumption or by “deemed dedication” following 20 years’ public use).

Creation orders

Highway authorities (county councils and unitary authorities), the Secretary of State at Defra (Department for Environment, Food and Rural Affairs) and the Welsh Government have the power to make an order creating any type of right of way over a piece of land where they think it would add to the public’s convenience or enjoyment.

A creation order may create a new right of way or establish ‘higher’ rights over an existing right of way (turning a footpath into a bridleway, for example). The procedure for making a creation order is the same as for any other public path order, in that there’s a right to object to what’s being proposed.

Creation agreements

Highway authorities can enter into agreements with landowners to create footpaths, bridleways or restricted byways. They’re simply drawn up and signed by the two parties, and the right of way comes into existence on the date given in the agreement.

Unlike the procedure for creation orders, there’s no period set aside for objections to creation agreements, but notice of a creation agreement must be published by the highway authority in at least one local paper.

Express dedication

A landowner may expressly dedicate a right of way over his or her land, but this is rare. Express dedication is an act on the part of the landowner alone. There’s no agreement with the relevant highway authority, although the highway authority may subsequently agree to take on liability for maintenance of the right of way.

Whether express dedication has taken place depends on whether there is evidence of the landowner’s intention to dedicate a right of way (only the freeholder of a parcel of land can do so), and whether the public has accepted the dedication by starting to use the path.

Presumed dedication

Most public rights of way have come into existence by way of presumed dedication. Presumed dedication refers to a long-established principle that long use by the public without challenge can constitute evidence that the landowner intended to dedicate the used route as a public right of way.

Presumed dedication can take place under either common law or statute law, which provide slightly different frameworks. Anyone who has evidence that a right of way has come into existence by statute or common law can apply for a Definitive Map Modification Order (DMMO) to have the right of way recorded on the definitive map.

Common law

Common law is made up of custom and decisions of the courts over time. Over the centuries the principle of presumed dedication has evolved so that a person claiming a right of way by common law must be able to demonstrate that public use took place openly and freely for a sufficient period for their claim to succeed.

No rule has been established about what constitutes a ‘sufficient period’, so each common law claim is decided on the facts of the case. The onus is on the person claiming a right of way to show that by the landowner’s conduct, or the absence of any action by the landowner to prevent the public from using the claimed route, it can be inferred that the landowner intended to dedicate the path to the public. Find out more about common law dedication.

Statute law

The lack of clarity in common law as to what constitutes a ‘sufficient period’ of public use led Parliament to enact a law about presumed dedication. The law is now set out in section 31 of the Highways Act 1980, which says that if a route is enjoyed by the public for 20 years or more, as of right and without interruption, the path is “to be deemed to have been dedicated as a highway”, unless there is sufficient evidence that there was no intention during that period to dedicate it.

The 20 year period is counted back from the date when the right of the public to use the path was brought into question. This often happens when a new landowner moves in and challenges the public use of a path not yet shown on the definitive map. So where section 31 says “to be deemed to have been dedicated as a highway” what this really means is that the path is to be declared to be a highway. As a result, dedication does not actually take place under statute.

The statute did not supplant the common law, so it’s possible to claim a right of way by either statute law or common law.