![]() ![]() you meet someone who tells you not to use the way, or.you see a new notice which states there is no right of way,.you found one day that it is threatened by development,. ![]() A highway is a way over which the public have a right to pass and repass.Ģ.1 You might be prompted to make an application for a way that you have used for many years if: It will be better if evidence of use covering any period of FMD describes the impact on use of the way at that time, rather than overlooking it. It could be argued that the cessation of use of the claimed way during that time constitutes a break in the use and enjoyment of the way. However, this advice has been doubted in the courts. Advice note 15, which was produced by the Planning Inspectorate, suggests that closure during a FMD outbreak would not count as an interruption. It is unlikely that any way, not then being recorded as a right of way, was formally closed-but it is likely that use of the way by the public voluntarily ceased or was greatly reduced. If your claim covers these times, you may need to get information from the council to find out when rights of way in the area were closed to the public and when they opened again. The outbreak in 2001 affected the whole country, whereas the 2007 outbreak resulted in more limited closures. If so, you must ensure that your application includes some evidence of use right up to the date of application.ġ.8 There have also been interruptions to use through closure of the countryside under animal health legislation, most notably owing to foot-and-mouth disease (FMD) in 2001 and again in 2007. This action by the landowner is often the challenge to the public’s use that prompts you to make an application.ġ.7 If the public’s use of the way has not been challenged by the landowner, the date of your application usually will be taken to be the end of the 20-year period. To prevent dedication, such interruptions would need to be made with the intention of preventing public use of the way. If there has been a continuous 20-year period of use without permission being granted, your application may succeed.ġ.6 Interruptions to use can be made by the landowner, or an agent acting on his or her behalf, such as by locking a gate or erecting a notice forbidding use, or orally challenging use by the public. It would depend on how widely known it was that permission was granted, to whom it was granted, and for how long the permission was in place. ![]() no permission was given by the landowner.ġ.5 If permission has been given to some users, it is likely to be harder (but not necessarily impossible) to claim that the way is a right of way. ![]() use was done openly, and not by breaking down fences, or walking across a field in the middle of the night or when it was known the landowner was away on holiday.use (‘enjoyment’) for the full 20 years, but you will not need everyone to show they each used the way for 20 years so long as there is good evidence of use throughout the 20-year period.use by the public at large (not just employees, tenants or licencees of the landowner etc).If you wish successfully to claim a right of way, you need to be able to show: there was sufficient evidence (by the landowner) that there was no intention during that period to dedicate the way.the use could not have given rise at common law to any presumption of dedication (eg if the way lacks a definite place of origin and objective, or if the way passes over open land on a variable alignment), or.However, the presumption of dedication can be defeated where: as of right (ie without force, secrecy or permission),.actually been enjoyed by the public, and.This section refers to the dedication of a way as a highway being presumed after it has been used by the public for 20 years as of right and without interruption, unless there is evidence to the contrary.ġ.4 For statutory dedication to be satisfied, the evidence needs to show that a way over land has: The test to show whether statutory dedication has occurred is set out in section 31 of the Highways Act 1980. Dedication need not be an express act by the landowner - it can also be inferred, because the way has come about through being used without challenge, either at common law or under statute (ie an act of parliament).ġ.2 Common law dedication can occur where there is evidence of use but no evidence that the use has been challenged.ġ.3 However, it is more usual for applications to be made under statute. 1.1 A right of way may come into existence through dedication by the landowner, and acceptance by the public. ![]()
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