Off the beaten path? A practical guide for developers to public rights of way (“PROW”) by James Walters

PART 1 OF 2

When acquiring land for development there are many different factors to consider, including location, planning policy, access to the highway and the presence of third party rights that could restrict or frustrate the development. In addition, the land may also (unbeknownst to the developer) be subject to claims by the public to different kinds of PROW.

This article is in two parts. In Part One, we provide a brief overview of how PROW work in practice and examine the recent Court of Appeal case of R. (on the application of Roxlena Ltd.) v Cumbria County Council v Peter Lamb [2019] EWCA Civ 1639 for how highway authorities (“HAs”) should approach PROW applications.

In Part Two, we suggest some practical steps that developers can take pre- and post-purchase of development land to limit the risks posed by PROW.

The definitive map and statement (“DMS”) 

Every HA is obliged to maintain a DMS for its area, which records PROW within that area.

This includes:

• footpaths (foot and mobility vehicles only);
• bridleways (foot, horse and bicycle only);
• restricted byways (foot, horse, cycle or non-mechanically propelled vehicles only); and
• byways open to all traffic (foot, horse, cycle, motorised and non-motorised vehicles).

The DMS normally specifies the location, width and course of the PROW in detail, although errors do occur. If a PROW is on the DMS, that is conclusive evidence that it exists and can be used by the public. If a landowner were to blocks access, members of the public and/or the HA can take legal action to re-open the PROW.

Section 53 of the Wildlife and Countryside Act 1981 (“1981 Act”) imposes a duty on the HA to keep the DMS under continuous review and as soon as reasonably practicable after the occurrence of an event requiring a change to the DMS, such as the discovery of evidence showing that a PROW not on not recorded on the DMS exists, make an order changing the DMS. These orders are called definitive map modification orders (“DMMOs”).

If no objections are received to a DMMO, it is confirmed without further action and the DMS is amended accordingly. If one or more objections are received, the Secretary of State will normally convene a public inquiry and appoint an Inspector to determine whether to confirm the DMMO.

If the Inspector is satisfied that it is more likely than not (i.e. more than 50% likely) that the facts supported the DMMO are true (e.g. that a new PROW exists) then they should confirm the DMMO. This standard of evidence is called “the balance of probabilities”.

The DMS does not record all PROW. Many PROW claims remain under the radar until the claimed use is threatened, such as the erection of fencing or an application for planning permission.

Creating PROWs 

New PROWs can be created in a number of ways. This includes the landowner intentionally dedicating land, an order by the HA or by “presumed” dedication by the landowner. Presumed dedication arises where the public have used a route for a sufficient period of time without challenge. The type of highway created will depend on how it has been used e.g. if the use was by walkers and horse-riders only, it will be considered a bridleway.

Presumed dedication can take place under either common law or by statute, but presumed dedication under statute is more common in practice. The basic requirements of presumed statutory dedication are below:

1. The use has been carried on for 20 years without interruption. A single act of interruption by the landowner will be given more weight than many uses by the public.
2. The use has been “as of right” throughout that 20 year period. Use is “as of right” if it has been without the landowner’s permission, without secrecy and without using force to obtain access to/use of the land.
3. The use has been by a sufficient number of people to show that it was use by the public.
4. The use has been of such a character and frequency to bring home to the owner of the land that a public right was being asserted.

Where the above tests are met, the presumption is that a PROW exists unless there is sufficient evidence that the landowner did not intend to dedicate the land for public use. The landowner can rely upon (among other things) signs on the route denying that it is a PROW, challenging users, closing the route on a regular basis and lodging a landowner’s statement with the HA as evidence in this regard.

Roxlena v Cumbria

 The facts

In 2011 an application was made to add 34 footpaths through Hayton Woods to Cumbria’s DMS supported by 70 user evidence forms. The application did not proceed due to procedural issues and the death of the applicant.

In 2013 another application was made to register the 34 footpaths as well as to extend an existing bridleway. The second applicant relied on the same user evidence forms as submitted in 2011 by the first applicant as well as additional historical materials.

Later in 2013 or in 2014 Roxlena and Lamb bought Hayton Woods. Following a threat of legal action from Roxlena’s solicitors, the second applicant withdrew the 2013 application. However Cumbria continued to consider the application.

In January 2017 Cumbria’s PROW committee decided to add the footpaths and the bridleway extension identified in the 2013 application to the DMS. In response Roxlena brought a judicial review claim disputing the lawfulness of Cumbria’s decision.

The claim was dismissed by the High Court. Roxlena then appealed to the Court of Appeal.

Decision

There was sufficient evidence to justify Cumbria making a DMMO. The Court confirmed that the standard of evidence is that the PROW “subsists” or is “reasonably alleged to subsist”. “Reasonably alleged to subsist” is a lower standard than the “balance of probabilities”, and Cumbria was justified in making the DMMO as this lower standard had been met.

Cumbria carried out sufficient investigations into the evidence in support of the application. The Court held that Cumbria could take the evidence of use at face value at the point of making a DMMO.

Cumbria was allowed to consider the evidence submitted in 2011 when considering the 2013 application because it had never formally considered the 2011 evidence. The HA cannot make a DMMO relating to evidence it has already considered, but because the 2011 application had not progressed Cumbria was entitled to consider the 2011 evidence when deciding to make the DMMO.

Cumbria was entitled to continue considering the 2013 application even though it had been withdrawn because of their duty to keep the DMS under review.

Learning points

1. HAs do not need to meet the balance of probabilities test when making DMMOs which rely on evidence submitted to it. This makes it easier for HAs to make DMMOs, and harder for landowners to oppose them. Even if landowners have a strong legal argument against a DMMO, the HA may just make the DMMO and then let the evidence be considered before a public inquiry if the landowner objects.
2. HAs can rely on evidence submitted many years previously so long as they have not formally considered it before. Roxlena had to deal with evidence from 2011 which pre-dated its ownership of the land by 2 to 3 years, and which it may not have been aware of when it purchased the land.
3. Ironically, Parliament has already decided to delete the words “reasonably alleged to subsist” from Section 53 of the 1981 Act by Paragraph 2 of Schedule 7 of the Deregulation Act 2015, which is not yet in force. For the time being landowners should expect that HAs will continue to make DMMOs that could negatively affect their properties even where the evidence does not satisfy the balance of probabilities test.

James Walters, Solicitor in Real Estate Disputes at Irwin Mitchell

See Part 2 for practical advice for developers