About Public Right of Access to Private Land

Description of Public Right of Access to Private Land

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.

What factors determine right of access?

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.

What were the undesirable effects of this Act?

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 Court’s 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.

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For more information on:

  • What did the government do to address the situation?
  • Where do the problems of interpretation come in?
  • What is the advisable course of action for those who are in need of right of way?