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20th June 2013

Protect against creation of public rights over your let land

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You should always be aware of the potential for the public to acquire rights over your land particularly where you control or monitor its use less closely, such as where you let it out. It will be a heightened concern where the occupier is an organization which may actively want the public to have access, such as a local authority, charity or government body. Public rights, once established, could seriously interfere with your ability to enjoy or develop your land in the future and so reduce its value.

A public right of way can result from use of a route by the public under both common law and statute. Under the Highways Act 1980, twenty years’ uninterrupted use as of right by the public leads to a presumption of a public right of way. The Act however allows a landowner to rebut this presumption in various ways, including by lodging documents with the Highway Authority to show that he does not intend to create a public right. You cannot necessarily rely on the tenant to do that, or on the fact that you may have put an obligation in the lease requiring it to do so.

There will soon be an analogous procedure to protect land against being registered as a town or village green (TVG). Applications can be made to register land as a TVG if it has been used as of right for recreational purposes by a significant number of local people for twenty years. The Growth and Infrastructure Act 2013 (GIA) will introduce provisions into the Commons Act 2006 to enable landowners to lodge documents with the Commons Registration Authority to confirm that they do not intend to dedicate the land as a TVG.

Preventing the public from acquiring rights does not mean you have to exclude them. If you take the right steps you can allow the public to enjoy access whilst retaining your own position as landowner.

The GIA also provides for regulations to clarify the Highways Act procedure and to allow use of the same documents for both procedures. Now may be a good time to consider action to prevent the public acquiring rights over your leased land.

For more information, please contact Deborah Sharples on 01223 461155 or click here to email Deborah.