How Can The Public Affect Your Land?

Preventing the creation of new public rights of way and town and village greens.

Please note that the contents of this article apply in relation to England only.

If your land is, or has the capability of being, used as a means of access from one place to another, or by members of the public for recreational purposes, then it is worth considering taking steps to prevent the creation of new public rights of way across the land concerned, or to prevent the designation of the land as town or village green. Failing to take steps to prevent the creation of such rights can, especially in relation to the designation of land as a town or village green, be costly. It is highly unlikely that land which has been registered as town or village green could be developed in the future, as it would be a protected community space, thus dramatically reducing the value of the land going forward. A public right of way can also affect development potential.

The introduction of the Growth and Infrastructure Act 2013 ("GIA 2013") brought in a number of changes to the mechanism for preventing the creation of new public rights of way and also introduced a mechanism for preventing the registration of land as town or village green. Since October 2013 in England, it has been possible to submit a landowner statement (preventing the creation of new town or village greens) and a highways statement and declaration using the same form (Form CA16 - which is the prescribed form which must be used for either type of application).

With regard to public highways, there is a presumption that a way had been dedicated as a public right of way where it has been used by the public "as of right" and without interruption for 20 years or more. Similarly, in relation to town and village greens, in order for the public to successfully have land registered as a town or village green, they must show that they have used the land for carrying out lawful sports and pastimes for an uninterrupted period of 20 years of more "as of right".

"As of right" means:

Without force - if members of the public are using the land for recreation, or as a means of access and it is clear to a reasonable user of the land that the landowner holds such use to be contentious and allowed only under protest, then the use by the public will be by force and therefore cannot be use "as of right". It is worth noting here that in the recent case of R (on the application of Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin), the High Court have held that where a landowner has made it clear, through the erection of clearly visible signs, that it objects to the use of the land by members of the public, then the unauthorised use of the land by the public cannot be "as of...