The right of the public to roam across private land is a contentious issue that has often led to court action. Public rights of access to private land is a dynamic issue that understandably raises people’s emotions because of the potential clash between land owners and the public.
The law on public rights of way in the UK over private land dates back centuries and includes ancient rights of way given to horses and people. There are also rights of way granted in law by ‘prescription’ and though explicit authorisation (express grant).
What is the difference between a public right of way and a private right of way?
A public right of way exists when the general public have the right to access a footpath, bridlepath, and so on, including with vehicles.
A private right of way is an access right given to a specific person or group of people over a piece of private land. In most cases, this will be a right of access where no public access exists.
What factors determine rights of access?
There are many factors to take into consideration in relation to access to private land, depending on the specific scenario. For instance, if a property has no access to the public highway, a neighbouring property may be situated in such a way that it can grant a right of way for the other property so as to access the public highway; or that neighbouring land has been used in order to access the highway – without specific authorisation.
However, if the property owner refuses to grant access, the owner of the property needing the access way may have to enforce their legal rights to secure the access they need. One of the ways in which they can do so is through historical precedent. In this example, if the rear property owners passed continually through the neighbouring property for at least 20 years without protest from the other property owners, the law says a right of way has been granted via ‘prescription’. This is also called an ‘easement’.
Importantly, where the use of land is for an illegal purpose – the right cannot be acquired through prescription.
In recent years, the law relating to public access over private land became somewhat complicated – but the law is now settled for the time being.
The Road Traffic Act 1988
When the RTA 1988 came into force, it became a criminal offence to drive over land that is not a road without lawful authority. Lawful authority includes express authorisation by the land owner as well as the right acquired through prescription (see above). However, this only applies to private land where the public have access.
The result of the RTA 1988 was that many property buyers thought they had a right of way over land but did not, and were therefore at risk of criminal prosecution. A further result was misuse of the Act; for instance, many private companies bought up land with the express intent of charging surrounding land owners for rights of way.
The Countryside and Rights of Way Act 2000
Therefore, the Countryside and Rights of Way Act 2000 was passed to provide some relief for property owners seeking rights of way or needing to protect their existing rights of way. The Act put a limit on the amount of compensation property owners could demand for access.
Today, if a landowner is capable of giving someone permission for a right of way over their land explicitly, then it also follows that implicit permission can be given through prescription.
What is the advisable course of action for those who need a right of way?
Since rights of way can be given expressly and through prescription, those needing to confirm their right of way are best protected if they can secure explicit agreement. Negotiating the terms of a right of way is in both parties’ interests. Once an agreement has been reached, the easement can then be formalised.
If, however, the right of way has been used continuously for at least 20 years the user can most likely rely on having a lawful right of way through prescription.
If you need advice about an existing right of way over private land, or if you need to secure a right of way, you should take expert legal advice from specialist property solicitors.