[Talk-GB] Talk-GB Digest, Vol 44, Issue 38

[Mike Harris]

Hi

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:

1. Like almost everything to do with public rights of way in England and 
Wales, the situation is extraordinarily obscure and complex in law.

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.

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.

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).

5. The wording is:

"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."

Almost every word in these sections of the Act has been argued over in 
court.

6. In particular:

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'.

b. The use must have been 'as of right' - which loosely means that the 
relevant use must have been /'nec vi, nec clam, nec precario'/ - 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.

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 /can/ be so _presumed_ 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.

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 
:-) .

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 ...

mikh43

On 26/05/2010 18:24, talk-gb-request at openstreetmap.org wrote:
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>     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...) (charlie at cferrero.net)
>     6. Re: Gates (was: Private roads...) (Ed Avis)
>     7. Re: Private roads that are private for maintenance but	are
>        publicly accessible (Jerry Clough - OSM)
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-- 
*/Mike Harris/*
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