The problem of public right of access to private land is a dynamic issue that is evolving in response to the difference in the scenario today compared to that of many years past.
The rights of way in the UK even include ancient right of way which were given for horses and people. Then there are the so-called right of way granted by prescription and via explicit authorization.
There are many factors to take into consideration and solicitors are probably the best source of information. However here is one example that can show the complexity behind determining the right to access.
Take an issue regarding right of way. Usually, where one property is behind another with no access to a public highway, the property behind would ideally be granted a right of way by the property in front.
In the event that the property owner in front refuses access, the owner in the back needs to initiate proceedings to get the access they need. One way to get access can be through historical precedent. Let's say that in the past, the rear property owners passed continually through the front property for 20 years or more. If this occurred without protest from the property owners in front then the legal presumption is that right of way was granted via prescription.
However, provisions in the Road Traffic Act of 1988 have rendered right of way acquired in this manner as useless since it now makes it a crime to traverse another person's property unless it can be shown that permission was explicitly given.
Unless the 20 year period occurred before the original legislation which was in 1930, then no right of way can be assumed in the absence of the evidence proving explicit permission.
Some cases were filed citing the Road Act of 1988 the results of which resulted in many property buyers realizing that property which they previously thought had right of way by prescription were suddenly without that right. It opened up the doors of abuse as far as the right of way issue was concerned.
The reason for this was a ruling by the Court of Appeals then, that after the Road Traffic Act of 1988, the provisions within the Act rendered it impossible for anyone to get right of way through prescription after 1930. In other words, the Courtís interpretation rendered invalid, all rights of way acquired through prescription from 1930 and onwards.
Quite understandably, the public was in an uproar and were in a state of confusion about how their rights to access stood. Then without missing a beat, many private companies sought to abuse this decision by buying up land with the express intent of charging surrounding land owners for right of way. Some even brazenly admitted that their intent was to charge for the access and not deny them. This only served to heighten the call for a more reasonable interpretation of the right of way issue.
In 2000, the Countryside and Rights of Way Act was passed in an effort to provide some degree of relief for property owners seeking right of way. This Act put a limit on the amount of compensation property owners could demand for access.
How does the situation for right of way acquired by prescription stand today?
Finally the House of Lords overturned the decision in a vital case, Hanning v Top Deck Travel Group. In overturning it, several things happened. It decriminalized to a great degree the unlawfulness of access to private land for property owners at the rear of the property in question. Furthermore, the ruling says that if a landowner is capable of giving permission explicitly, then it also follows that implicit permission can be given through prescription.
The problem now is that there are many different laws from the past and present that can be brought to bear in this situation. As it stands now, there was a sort of seesaw effect and while the situation is favourable to property owners who need right of way, there are several laws that can still be called on to once again reverse the decision.
The problem with this issue is that right of way encompasses such a vast range of legal precedents and laws from ancient right of way to the rulings that emanated from the Right of Ways Act of 2000.
This is certainly not the end of the legal discussion here as there are many grey areas and a large degree of the laws are ambiguous about some key issues.
It is of course, to be expected since ancient right of way was merely for people on foot and horses. It certainly did not expect the ATVs and 4x4s of today to be the ones using it. Beyond this, those times were more genteel ones and given the dismal peace and order situation today, it is understandable that landowners will have a deep and serious concern for their own safety.
Since right of way through prescription is again acceptable, then it may be a good course of action to have an explicit agreement if only to affirm the existence of the prescriptive right to access.
If this is not feasible, maybe an agreement that formalizes the granting of right of way, for an amount in compliance with the maximum dictated by law could be the next logical step.
Going beyond the right of way access, it may be worthwhile to look into adding provisions to the agreement that could perhaps provide some degree of protection or guaranty that would withstand future developments in this dynamic arena.
After all, right of way is certainly a necessity for quite a number of property owners and having this formalized can provide peace of mind both for the current and prospective owners.
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