(Don't) stray off the beaten track – how landowners can retain control of the rights exercised over their land

Briefing

One's home may be one's castle, but if you're the owner of a farm or estate, you're used to sharing your land with the general public.

140,000 miles of public rights of way criss-cross the countryside, and often fall on land within private ownership. The ongoing stewardship of these rights is part of the ownership of land. But with regional and national lockdowns increasing the public's engagement with the countryside, it appears that, in some instances, this willingness to go "off the beaten track" takes the public onto parts of the land where they aren't legally permitted to be.

While this carries the risk of damage to crops, soil, wildlife, and the potential for anti-social behaviour, one of the principle concerns of this happening is one of safety. Despite the safeguards that each has in place, a working farm still presents a myriad of opportunities for accidents to occur due to on-site machinery, environmental hazards and the presence of livestock. Statistics from the Health and Safety Executive show that over the past five years, four members of the public have died from incidents involving cattle, and there have been 65 non-fatal incidents.

It's important for the public to know what to do when they're walking through a field which has cattle in it, but for them to also stay within the areas where they have permission to be, so landowners can plan where they graze their cattle accordingly. However, the continued use by the public of a particular route over land can also inadvertently lead to new public rights of way being created.

Here, we provide an overview of the ways in which private land can become open to the public and suggest steps you can take to prevent or manage this.

How do private rights of way become public?

Each local authority has an obligation to maintain a "definitive map" which plots where each public right of way lies. Such rights of way are most commonly footpaths, bridleways, restricted byways or byways open to all traffic, and the rights to use them vary from being on foot only to being in a motor vehicle.

However, the number of rights of way open to the public continues to grow. Primarily, this can either be through an express agreement between the landowner and the local authority for land to be designated as a public right of way, or by an application from a member of the public for a path to be designated as such due to long use for that purpose.

How can a path be designated "as of right" and what can you do to stop it?

The Highways Act 1980 deems that a path may be designated as a public footpath where the applicant can show a period of at least 20 years' uninterrupted use by the public "as of right". Such a right of way must also follow a linear route and be used by the public at large.

The use of the path "as of right" means that the use is without force, secrecy, or the permission of the landowner.

As a landowner, if you become aware of such use, one of the most effective things that you can do is to erect signage saying that the path is private or installing gates or other such barriers to entry. Equally, erecting signs saying that the public does have permission to use a route is also effective at stopping it becoming a deemed public right of way.

However, in such circumstances, the 20 years' use is calculated back from the point at which the right is challenged. This means that the application to dedicate the path as a public right of way can still be considered if 20 years' prior use can be shown.

Remember to lodge a highways statement and declaration

Another effective way for a landowner to avoid public rights of way arising is to lodge a "highways statement" and plan with the local authority. This will allow you to say that only the routes shown marked on that plan (or no routes, if that's the case) are considered to be public rights of way and no others.

Once this has been done, you then have 20 years to lodge a further "highways declaration" that confirms that you didn't dedicate any additional ways over the land (or only those mentioned in the declaration) since the date of the highways statement. In depositing both the highways statement and the highways declaration, you confirm that you had no intention to dedicate any public rights of way (or only those mentioned) during the period between the date of the statement and the date of the declaration.

Even if this is done, it's important for you to continue to monitor and manage the public's access to the land. As well as challenging urban explorers, it's sensible to keep an eye on apps such as MapMyWalk which allow you to plot and share walking routes taken for others to follow (quite literally) in their footsteps. Currently, such apps don't necessarily distinguish between what routes are private and what are able to be accessed by the public.

Documentary evidence: tough (but not impossible) to overcome

As well as claiming a public right of way by user evidence, it is also possible for rights of way to be claimed based on documentary evidence. This stems from the legal principle that a right of way does not disappear due to it not being used; it can only be extinguished if specific provision is made for it to be so.

Accordingly, if a right of way has not been extinguished legally, it's possible to provide evidence to the local authority that such a right of way existed previously and have it placed on to the definitive map. Unfortunately for landowners, if such evidence is put forward, challenging it can be a lengthy and expensive process.

However, it would be worth you engaging with the local authority early to do so. There are ways and means by which the right of way could be modified if it was discovered to be in a position which has a negative effect on the commercial use or amenity of the land.

Final thoughts

It's difficult for a landowner to know exactly what is happening in each corner of a farm or estate at any given time.

While there are steps that you can take to mitigate the risk of new rights of way arising, it's still worth regularly monitoring what routes and paths are being accessed, using information both on the ground and online, and taking the necessary steps to manage or prevent this.

As well preventing accidents and potential anti-social behaviour in the short term, it ensures that you retain control of the rights exercised over your land in the years to come.