Rights of Way and Deposits

The Definitive Map is the legal record of public rights of way, which is available for anyone to inspect.

In the majority of cases, rights of way are presumed through evidence such as use by the public, the actions or inactions of the landowner and references to historical documents.

The legal rights to presumed dedication are covered under both statutory law and common law.  Under Section 31 of the Highways Act 1980 (the 'Act'), where it can be shown that a way over land has been enjoyed by the public as of right and without interruption for a period of 20 years, the way is deemed to have been dedicated as a highway, unless there is sufficient evidence that there was no intention during that period to dedicate.

A right of way can come into existence under common law if it can be established that a landowner can be said to have dedicated a way for public use.

However, a freehold landowner can indicate his intention not to dedicate a way for public use by submitting a deposit in the prescribed form.

A deposit under Section 31(6) of the Act includes:

• A map of the land owned;
• A statement showing any ways over the land that the landowner has dedicated as a highway;
• Declarations by the landowner, or his successor in title, that no additional way over the land shown on the map has been dedicated as a highway at:

1. The date of deposit; or
2. Since the date of lodgement of a previous declaration.

Under Sections 31(3) and (4) of the Act, a landowner can also indicate his intention not to dedicate a way by erecting visible notices to this effect.  A landowner is given the right over a tenant of his land to maintain a notice provided that no injury is done to the business or occupation of the tenant by the erection of such notice.

In East Chiltington (2011), an application was made to upgrade a public footpath to a public bridleway.  Section 53 of the Wildlife and Countryside Act 1981 allows an authority to make a Modification Order to amend the map and statement to ensure it is accurate.

In the East Chiltington case, the Inspector considered evidence such as old maps, documents and oral evidence, together with the signs erected by the landowner.  He established the beginning and end dates of the 20-year period by considering the last deposit, which stated that the route was a footpath, and this brought the public use of the route as a bridleway into question in 2001.  He then determined the latest date on which it could be said that the dedication of the route as a public bridleway could be presumed.

The Inspector found that there was insufficient continuous use to raise the presumption of dedication as a public bridleway and the deposit played a critical part in establishing the 20-year-period as only evidence within this timeframe was applicable.

As a right of way application can have an adverse effect on the value of a property, it is advisable for landowners to collate as much documentary evidence as possible to show their intention not to dedicate a route for public use and show this to the Rights of Way Officer as soon as an application is made.

For more information on this subject or making a deposit statement, please contact Frank Smith on 01242 801748.