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

PART 2 OF 2

Practical steps for developers

In Part One of this article, we provided a brief overview of how PROW work in practice and considered the impact of 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 on how definitive map modification orders (“DMMOs”) are made.

The link to Part One of the article is here.

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

The Roxlena case shows that there are significant risks to purchasing land affected by PROW. However there are practical steps developers can take to identify the risks of PROW affecting land and, once land has been purchased, reduce the risk of claims being made.

Avoiding the pitfalls – things to consider pre-purchase

1. Make detailed enquiries of the highway authority (“HA”) and obtain a highways search.
2. Raise specific enquiries with the seller. They may be able to confirm if the public are using the land and whether anyone has tried to register PROW over it previously.
3. Consult the register of DMMO applications. HAs are required to keep a register of applications, which could show that someone is claiming PROW over the land.
4. View the definitive map and statement (“DMS”), which records known many PROW. Many HAs have an online version (which is not definitive), or you can view the definitive version at the HA’s offices.
5. Inspect the land. If the public are using land there may be evidence of this, such as worn pathways, car tracks etc. The landowner may have already erected signs referring to there being no public right of way, which may be evidence of past use of the land by the public.

Managing the risks – things to consider post-purchase

There are a number of options available to reduce the risk of claims being made and/or being successful, some of which are set out below. However be aware that there is a risk that in taking steps to prevent PROW being acquired this may actually trigger users bringing a claim for fear of losing use of the land.

1. Erect signs saying that there is no PROW. The wording should be clear and show that the sign relates to the land you are seeking to protect. No-one should be able to enter the land without passing by and being aware of the signs.
2. Erect fencing and locked gates. This may not be practical for large tracts of land, and is the most likely to generate a response from user groups.
3. Close off all access to the land for at least one day per year with and record evidence of doing this. This will help to evidence a lack of intention to dedicate the land and to show an interruption in any alleged 20 year periods of use.
4. Lodge a statement, plan and declaration with the HA under Section 31(6) of the Highways Act 1980.
   • The landowner can deposit these documents with the HA acknowledging any existing PROWs across their land (if any) and at the same time as declaring that they have no intention to dedicate any further routes to the public (or any routes whatsoever).
   • The declaration will normally be sufficient evidence that the landowner did not intend to dedicate any PROW across its land for 20 years from the date the statement was lodged. The landowner can submit a new declaration before the expiry of the 20 year period to extend the period by a further 20 years.
   • The declaration will not prevent any historic rights that may have already been acquired by long use before the declaration was made, and will not prevent the creation or recording of PROWs supported by other evidence (such as historic documents).
5. Challenge users and record when and how you do this. This should be done safely and while avoiding confrontation with the users.
6. Grant specific written permission to people and groups (if appropriate). Granting permission will mean that the person(s) given permission will not by using the land “as of right” and so they will not be able to add the period of use when they had permission to any PROW claims.
7. Apply to court for an order declaring that there are no public rights over the land. This is only likely to be worthwhile where you have a strong legal argument that there are no public rights which would trump any documentary or user evidence. Additionally, if a DMMO has already been made and a public inquiry is being arranged, the Court is likely to stay the declaration proceedings pending the outcome of the inquiry.
8. Apply to divert or extinguish the PROW.
   • This is possible in some cases where doing so is necessary to enable development to be carried out and can (if successful) mitigate the effect of PROW on development land.
   • However, making such applications can be a long, complex and costly process for the developer. The HA considers the applications to be a last resort, and will try to keep the existing PROW in place if possible.
   • Additionally, the HA may require the developer to grant alternative PROW over its land in substitution for the existing PROW at the developer’s cost. This may simply change the nature of the problem, although the developer may be able to reduce the impact of the PROW on the usability of the land as part of this process.

James Walters is a solicitor in the Real Estate Disputes team at Irwin Mitchell.