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Advice for Landowners who have public access over their land

It is a common myth that if a right of way is not used for some amount of time then it is no longer a right of way. This is not the case; once a right of way has been recorded on the definitive map it will always exist as a right of way unless it is extinguished or diverted under Section 118 or 119 of the Highways Act 1980.

However it is possible for the public to claim additional rights of way where there were previously none. A public right of way can be established through the section 31(1) of the Hihghways 1980, where the applicant can prove twenty years of continuous and uninterrupted use by the public at large and / or historical evidence such as maps and documents which show that a public right of way existed or is reasonably alleged to exist.

It recommended that Landowners should be proactive in protecting unauthorised access over their land, for example, by clearly displaying notices on a route to say that it is private, by locking gates for periods of time, and by maintaining fences and boundary walls. These actions must be clearly noticeable, so that it is obvious to a member of the public that a route is private.

Section 31 (6) of the Wildlife and Countryside Act 1981 provides Landowners with a way in which to protect their land from new claims for rights of way based solely on public use.

The landowner or land agent is required to deposit a map, statement and statutory declaration with the local Council acknowledging existing rights of way if any and the boundary of the land ownership. From the date of deposit it will not be possible for any additional public rights of way over this land to be claimed, however it is still possible for a right of way to be established through twenty years of continuous and uninterrupted use before the deposit was made or if historical evidence is found which shows that a public right of way exists or is reasonably alleged to exist.