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.
What does the service include?
- Call NFU CallFirst on 0370 845 8458 for free initial legal and professional advice provided by NFU specialist advisers about issues relating to public rights of way and access to land
- Farmer Information Pack to include relevant business guides covering the procedure for preventing new rights of way being acquired over land, and a Countryside Code gate post sign. The pack contents can be downloaded below (requires member login) or a hard copy pack can be ordered through NFU CallFirst.
- If required, the specialist adviser can refer you to your local NFU Legal Panel Firm for an entirely free initial Legal Health Check – this will help to identify and highlight any concerns or other legal matters members need to consider in the interest of protecting their farming and/or growing businesses.
- If, following the initial free Legal Health Check, it is identified that you need to make a s.31(6) application to prevent new rights of way being created on your land, the panel solicitor will advise you accordingly and provide a quote for the work to be carried out. The cost for the work will be at the firm’s standard hourly rates (with a 12.5% NFU discount applied). Alternatively, it may be possible to agree a fixed fee directly with the firm before the work is done.
LAS special offer
Members who subscribe to the NFU Legal Assistance Scheme (LAS)* can apply for a financial contribution of up to £250 towards the costs incurred from seeking professional advice and in making section 31(6) applications – offer is available until 31 December 2021.
*Normal Legal Assistance Scheme rules apply.