One of the most aggravating things that can happen to a landowner is, out of the blue, a third party claiming a right of way across their land. This could be a private right of way or a public right of way. Such rights can arise if the access has been used for an uninterrupted period of at least 20 years. In order for a right to be claimed, the access must have been used without the owner’s permission, using secrecy or force.
Most private rights will be limited to an individual, or householders, and their registration will usually simply be formalising, via the Land Registry, an arrangement that has existed for many years. This could arise in situations where a householder has habitually crossed a field to reach the garden or car parking area. If there is no written agreement and joint use of vehicular access, then it is likely that there will be nothing documenting the responsibilities and contributions covering future maintenance of the access.
Public rights can be a bit more problematic. All existing public rights of way are meant to be shown on the ‘Definitive Map’, which is held by the local authority. As things stand, under the provisions of the Wildlife and Countryside Act 2000, the Definitive Map will be “finalised” on 1st January 2026. No more pre-1949 rights will be able to be registered after that date. Therefore, it is likely that the claiming of such rights may increase over the next few years. However, it is possible that this situation could change should the political wind change.
Landowners can protect their land from new claims for rights of way by submitting a statement under Section 31 (6) of the Highways Act 1980 (for public rights of way) to the local authority that has responsibility for highways. A detailed map showing existing rights of way forms the main part of the submission, along with a statement that the landowner does not wish any, or any additional, public access. This is then put out for public consultation and, if there are no objections, then accepted by the local authority. This declaration will be valid for 20 years.
However, the best form of defence is ongoing vigilance. This is particularly true with land near centres of population. In such cases, it is particularly important as new public rights could severely impact or nullify development value.
If access is taking place, signs can be erected denying access, or access can be physically blocked by locking gates, additional fencing etc. If signs are deployed, they may need to be replaced on a regular basis.
Access rights can be prevented by the landowner granting permissive access and having this properly recorded and signed. However, do be aware that removing such permissive access can be problematic as people may get used to using it and it may be featured in guide books and pamphlets which can exist even after the permission has been withdrawn.
If you would like any further information or to discuss any rural related matter, please contact Tom Wills, head of the agriculture & estates department at Sintons.
