Preventing the creation of rights of way over your land
It is possible for both public and private rights of way to be created over farmland. Landowners should be vigilant and take steps to protect themselves if they are aware that members of the public are trespassing on their land.
Public rights of way
Public rights of way can come into existence where a way over land is ‘deemed’ to have become a public right of way by virtue of it being used by the public for an uninterrupted period of twenty years; this is referred to as ‘dedication’. The use by the public has to be ‘as of right’ so that it must be used without secrecy, without force and without permission; so if force is used to gain access to land, such as by cutting wire fencing, it cannot be ‘as of right’.
Once a right of way has been dedicated as a public right of way it will be shown on the definitive map and statement maintained by your local authority; this is the map on which all footpaths bridleways and roads considered to be public rights of way are shown.
What can a landowner do to prevent a right of way over their land being added to the map?
You can prevent a right of way being added if you can show that you had no intention to dedicate a public right of way; this can be done by communicating your lack of intention to dedicate to members of the public by maintaining suitably visible signs, by locking gates or erecting barriers and (politely) turning users back.
There is also a statutory procedure where a landowner can deposit a map and other documents with the appropriate council to ‘rebut the presumption’ that they intend to dedicate the right of way.
Above all else be vigilant.
Private rights of way
Rural landowners can also be vulnerable to a user acquiring a right of way over their land through long use; again erecting warning notices stating that the land is private and for the landowner’s exclusive use, is a sensible step in preventing users from acquiring rights over your land. It may be that you are already aware of a neighbour that routinely uses a track or path over your land and you are happy for them to do so but may not be happy for the use to become a permanent right of way that can be transferred to a third party with the land if your neighbour sells. In this situation the landowner should consider creating a document which acknowledges the use and states that use is enjoyed with your permission and that no right of way is claimed.
For further advice please contact Head of Agriculture and Landed Estates Johanne Spittle.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.