Access to land and Public Rights of Way - Notes for landowners (Section 31(6), Highways Act 1980)

New public rights of way can come into existence through public use, but this does not happen if the landowner has taken sufficient action to make it clear to the public that they have no right to cross his land. The erection of fences or notices may suffice but sometimes they are difficult to maintain in place. Section 31(6) of the Highways Act 1980 allows landowners to make their intentions clear by depositing with the County Council maps and statements which admit any public rights of way which may already exist on their land. Within 10 years a landowner may deposit a statutory declaration to confirm that no new rights of way have been dedicated since the date of the deposit of the map and statement. Any public use of the land during this period will not count towards the establishment of a new public right of way.

This gives the landowner a way of protecting his property, while still allowing a degree of permissive public access. Once lodged with the County Council, the map, statement and declaration become public documents and available for public inspection. All local authorities are required to keep a register of maps and statements deposited and declarations lodged under Section 31(6) of the Act.

Making a disclaimer in this way will not necessarily prevent members of the public from making claims for public rights of way. This is because there is no time limit on claims. If evidence comes to light which shows that a public right of way has come into existence at some time in the past, an application can still be made to have it recorded on the Definitive Map. A Section 31(6) disclaimer will not prevent a claim from succeeding if the claimants can prove there has been unchallenged public use over a period of twenty years leading up to the date the disclaimer is first made.

Both the Country Landowners Association and the National Farmers Union have promoted the wider use of Section 31(6) disclaimers. The following advice is based on the Practice Guidance Notes issued by the Rights of Way Review Committee, and endorsed by all its members. Further advice and information can be obtained from the County Council or from your local CLA or NFU representative.

To arrange for a search of the Definitive Map, or for further advice and information on the preparation of the statement and statutory declaration, contact:

• The Rights of Way Office , Countryside Service, Castle Avenue, Winchester, SO23 8UL
• tel 0845 603 5636
• email rightsofway@hants.gov.uk
• website: www.hants.gov.uk/row

Step-by-Step Guide for Landowners Preparing Maps, Statements and Statutory Declarations under Section 31(6) of the Highways Act, 1980.

1. Obtain a recent or current map of the entire area which you own. (The Act specifies a scale of 1:10,560 and this is the minimum recommended).

2. Examine the Definitive Map and Statement to ascertain what public rights of way are already recorded over your land, and their precise routes. You can inspect the definitive map yourself at our offices, view rights of way on our web using our online maps, or Hampshire County Council can carry out a standard search of the Definitive Map for you. This service includes marking on your map the routes of all recorded rights of way. A standard search costs £47, although for larger estates the charge may be based on the officer time taken, at the rate of £47 for the first hour and £47 for each additional hour. Please contact the Rights of Way Section to request a search, or to arrange an appointment to examine the map yourself (address above).

3. The Rights of Way review committee recommends the following steps, although they are not essential:

• a) check the status of any paths, tracks, farm roads or short cuts on your land to ascertain whether the public has been using them for twenty years or more;
• b) check legal documents such as Enclosure Awards which may demonstrate that other public rights of way exist which are not shown on the Definitive Map;
• c) consult the list of publicly maintainable highways held by the County Surveyor under Section 36(6) of the Highways Act 1980 to identify unmetalled roads which may be recorded there and not on the Definitive Map;
• d) consult the parish council or local user groups to see whether there are any other paths likely to be claimed which you may wish to recognise. The Rights of Way Section may also have records of possible claims - contact them for further information.

4. Carefully mark up on the map the precise route of all public rights of way shown on the Definitive Map, or otherwise acknowledged by you to exist.

5. Except as indicated below, you should not try to deny the existence of any public rights of way shown on the Definitive Map. As a matter of law the Definitive Map provides conclusive evidence of the existence and status of any public right of way shown on it until the map is altered by a formal definitive map modification order or public path order.

6. If you have made an application for a definitive map modification order to amend the map and statement in relation to any way shown on it, this may be referred to in the statement and statutory declaration. For instance:

“The way coloured (something other than purple, green or brown) on the said map is recorded on the Definitive Map as a bridleway, but I do not accept that the map and statement are correct and have applied under section 53 of the Wildlife and Countryside Act 1981 to Hampshire County Council for a definitive map modification order to be made to (state the effect of the order applied for)”.

7. A public path order should be sought if you wish to divert or extinguish a public right of way. Unofficial diversions should not be shown.

8. Draw up the statement and statutory declaration following the model documents. Please note that these examples are not forms to fill in – you will need to have them retyped, and you may wish to consider consulting a solicitor to ensure that the documents are accurate. The statement should be signed before a witness, and the statutory declaration must be declared before a Commissioner for Oaths, solicitor or JP. The statement should be made first and the statutory declaration shortly afterwards.

The statutory declaration should be made by all of the owners of the land concerned (i.e. the persons who are for the time being entitled to dispose of the fee simple in the land). This includes the tenant for life (land held under a strict settlement) or the trustees (land held under a trust for sale). If an estate is divided then it is important that the appropriate person makes the declaration for each part of the estate in each case. It may be lodged at any time within ten years of the map and statement but we recommend that it is done promptly.

9. Submit the statement with the map and statutory declaration to the Chief Executive, Hampshire County Council (see address below). Subsequent statutory declarations should be accompanied by further maps if necessary to show routes dedicated since the date of the last statutory declaration.

10. Keep copies of maps, statements and declarations with the title deeds for the property or Land or Charge certificates for future reference. Make a note to renew the statutory declaration within ten years.

11. If there are tracks that cross the land which are not admitted to be public rights of way, it may be useful to place notices to make clear that that is the position.

12. Do not show on the map any permissive paths which are the subject of a formal agreement with the County Council or any other permissive paths, unless it is intended that they should be dedicated as public rights of way. If you wish to advise the County Council of the existence of such paths you should provide a separate map showing these paths only and stressing that it is not intended to dedicate such paths as public rights of way. You should also consider placing notices on these paths to make it clear that use is with the permission of the landowner and that the permission can be withdrawn at any time.

Please send your documents to
The Rights of Way Office
Countryside Service
Castle Avenue, Winchester SO23 8UL

tel 0845 603 5636

NB

• i) the statutory declaration should be made in respect of the land shown on the map accompanying the initial statement. A new map and statement should be lodged if the extent of the land holding changes.
• ii) It is your responsibility to ensure the accuracy of the statement, map and statutory declaration. Acceptance by us and registration of documents purporting to be made under Section 31(6) does not imply that the same are accurate and effective in accordance with that Section.