Prepared for South East Farmer and published in their March edition, Sarah Jordan, partner and head of the rural estate team at Moore Barlow discusses the rights of way issues troubling landowners and what steps to take to avoid future disputes.
Partly exacerbated by lockdown restrictions, which saw people turning to rural areas for exercise, farmers and landowners are seeing record levels of traffic on rural footpaths and farmland which can cause a particular headache for farmers when it comes to protecting their land.
Rights of way have always been a complex and contentious issue for farmers and landowners across the country.
With springtime and the warmer months around the corner, it’s important that landowners are aware of the various options open to them when it comes to managing rights of way across their property and can mitigate any disputes that might arise.
Know your rights
Owning acres of land and property doesn’t necessarily mean having an exclusive right to it. In most cases, other people may have a right over the land that must be observed.
A right of way is a legal right to pass over someone else’s property, whether across footpaths or private land. Understandably, these can have both legal and practical issues for landowners and their families.
Erecting signposts to explain where the right of way passes through is very important and allows landowners to easily show where people can and can’t roam.
No clear signage could lead to members of the public ambling anywhere across private land causing a disturbance. If the general public is allowed to cross a certain area of land for 20 years or more, a public right of way claim can be brought forward, creating a public right of access.
Members of the public and walking associations are entitled to make an application, and if successful, could result in landowners having control over part of their land taken away from them. In recent years, many associations such as the Ramblers Association have been seeking to register news right across historic private way they find on the map.
For every landowner client I work with, I always advise them to declare Section 31 (6) of the Highways Act with the local authority to acknowledge the presence of any existing rights of way that exist across their land and, more importantly, to prevent new rights from being established. The declaration lasts for 20 years and protects farmers against additional claims for private or prescriptive rights.
This statutory declaration is particularly important for farmers that have recently acquired new land, as well as those owners whose land is already being used by members of the public as it allows more clarity and prevents any future right of way applications.
If no rights of way exist on the land at all, declaring such is equally as import in order to maintain the land’s privacy, allowing landowners to continue about their daily business.
Rural and agricultural properties and estates often have boundaries that are not clearly defined by physical boundary structures. Disputes arise when landowners seek to clarify their boundaries or to understand the precise extent of land for which they are liable.
To determine the precise position of a property’s boundaries, people will often look to their title plan, either as registered at the Land Registry or found within the title deeds to the property.
In the case of registered properties, where the boundaries are not stated in the title register to be “determined”, there will be general boundaries only. This means that the red line on the title plan marking the boundaries of the property is for general guidance purposes only and are not determinative of the precise position of the boundaries. This is where disputes can sometimes arise, as the red line on title plans can – subject to the scale of the title plan – appear to be several metres wide, not a helpful tool if seeking certainty as to the position of one’s boundaries.
Remedying boundary disputes will often require the involvement of both legal and surveying expertise. The issues involved go beyond purely legal arguments and the process of determining the boundary is not always simple, therefore expert surveying input is usually required.
Landowners should seek to take appropriate legal and practical steps in order to ensure their rights over it are secured for the future.
How Moore Barlow can help
We offer expert advice in a wide variety of areas of rural life, including supporting private landowners in their property transactions, renewable energy projects and access to a range of national and local schemes. Get in touch with our rural law team to discuss.