Access is, and has always been, a complex and contentious issue for land managers, farmers and landowners across the country. That is why the NFU is introducing a new member benefit to help landowners safeguard their position in relation to claims that “new” public rights of way (PRoW) have been acquired over their land.
Covid-19 restrictions resulted in a significant increase in the number of visitors to the countryside. While the majority of visitors behaved responsibly and remained on land with public access rights, the NFU has seen an increase in inquiries about trespass. One of the most common concerns is the potential for claims that additional access rights have been acquired as a result of a period of use.
There are several ways landowners can protect their land from applications to register new PRoW, including some relatively simple steps, such as displaying signs or placing (safe) obstructions, although landowners still need to be able to prove that these steps have been taken.
In addition, landowners can prevent new PRoW being claimed on their land by depositing a map declaration that they do not plan to create any new PRoW over their land with the local highway authority (a Section 31(6) application). Landowners can make a Section 31(6) application by depositing a map and statement with the local authority, showing all the rights of way they accept exist over land in that local authority’s area. These deposits need to be kept up to date and renewed periodically to ensure the protection offered is retained. Once this has been done, the onus would be on a user to prove that, notwithstanding the fact that this declaration had been made, the landowner did intend to dedicate a new right of way. This is likely to be challenging, especially if the landowner has taken steps to keep the declaration up to date.
These declarations only prevent claims that new rights have been acquired after the date on which they have been deposited; they cannot prevent claims relating to historic rights of way and they cannot prevent claims that new rights were acquired before the deposit was made. The procedures differ slightly in England and Wales, and in England the map and declaration prevent village green rights as well as rights of way.