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Hi<br>
<br>
Much of the discussion in this thread relates to the presumed
dedication of a right of way - particularly for pedestrians - along a
highway that is 'unadopted' by the local Highway Authority for
maintenance at public expense (often loosely called a 'private road').
I am not a lawyer - only a 'footpath worker' - but I would just make
the following points:<br>
<br>
1. Like almost everything to do with public rights of way in England
and Wales, the situation is extraordinarily obscure and complex in law.<br>
<br>
2. There is a mechanism for the 'statutory inference of dedication'
(under Section 31 of the Highways Act 1980) and also a residual
principle of 'implied dedication' in Common Law that is not
extinguished by the Highways Act or any other statute. In practice,
however, it is usually the Highways Act that is called into service.<br>
<br>
3. What the Highways Act creates is a (rebuttable) presumption that a
right of way exists. It does not actually create the right of way - an
application still has to be made to the Highway Authority to add the
way to the Definitive Map.<br>
<br>
4. The evidence for the presumption is what is often loosely referred
to as the "20 year rule" - but it is not as simple as it seems!
(Surprise, surprise).<br>
<br>
5. The wording is:<br>
<br>
"Where a way over any land, other than a way of such a character that
use of it by the public could not give rise at common law to any
presumption of dedication, has been actually enjoyed by the public as
of right and without interruption for a full period of 20 years, the
way is deemed to have been dedicated as a highway unless there is
sufficient evidence that there was no intention during that period to
dedicate it .... The period of 20 years ... is to be calculated
retrospectively from the date when the right of the public to use the
way is brought into question whether by a notice ... or otherwise."<br>
<br>
Almost every word in these sections of the Act has been argued over in
court.<br>
<br>
6. In particular:<br>
<br>
a. The '20 year' period requires that there has been a challenge of
some kind - usually by the landowner. Otherwise the section that
creates the presumption has no force as it speaks to a 20 year period
that is explicitly defined in the following clause as being calculated
on the basis of the right having been 'brought into question'.<br>
<br>
b. The use must have been 'as of right' - which loosely means that the
relevant use must have been <i>'nec vi, nec clam, nec precario'</i> -
i.e. without force, without secrecy and without permission'. It is the
last of these three conditions that is often misunderstood. If, for
example, the landowner specifically gives permission (e.g. by creating
a 'permissive path') then Highways Act 19980 s31 cannot apply.<br>
<br>
I conclude, therefore, that an 'unadopted highway' cannot necessarily
be presumed to be a public right of way after 20 years of use (see
above) and that - even if it <i>can</i> be so <u>presumed</u> it does
not become a public right of way until it is added to the Definitive
Map by a Definitive Map Modification Order under the Wildlife and
Countryside Act 1981.<br>
<br>
OK - I have now exposed myself to challenge, criticism, mockery and
general abuse by daring to try to create a layman's summary of a
painfully complex bit of English law - but I thought it was worth
trying <span class="moz-smiley-s1"><span> :-) </span></span>.<br>
<br>
As for the Park Estate in Nottingham - it will be 'very interesting' to
see what the Planning Inspectorate (on behalf of the Secretary of
State) decides ...<br>
<br>
mikh43<br>
<br>
On 26/05/2010 18:24, <a class="moz-txt-link-abbreviated" href="mailto:talk-gb-request@openstreetmap.org">talk-gb-request@openstreetmap.org</a> wrote:
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<pre wrap="">
<fieldset class="mimeAttachmentHeader"></fieldset>
Today's Topics:
1. Re: Private roads that are private for maintenance but are
publicly accessible (Ian Spencer)
2. Gates (was: Private roads...) (Ed Avis)
3. Re: Private roads that are private for maintenance but are
publicly accessible (Jerry Clough - OSM)
4. Re: Private roads that are private for maintenance but are
publicly accessible (Ian Spencer)
5. Re: Gates (was: Private roads...) (<a class="moz-txt-link-abbreviated" href="mailto:charlie@cferrero.net">charlie@cferrero.net</a>)
6. Re: Gates (was: Private roads...) (Ed Avis)
7. Re: Private roads that are private for maintenance but are
publicly accessible (Jerry Clough - OSM)
</pre>
<pre wrap="">
<fieldset class="mimeAttachmentHeader"></fieldset>
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<br>
<div class="moz-signature">-- <br>
<b><i>Mike Harris</i></b></div>
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