Step-by-Step Guide for Landowners Preparing Maps, Statements and Statutory Declarations under Section 31(6) of the Highways Act, 1980.
Both the Country Landowners Association and the National Farmers Union have promoted the wider use of Section 31(6) disclaimers. The following advice related to the Section 31(6) disclaimers 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.
1. Obtain a recent or current map of the entire area which you own. (The legislation 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 website 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. The cost for a standard search is given on the rights of way searches page, although for larger estates the charge may be based on the officer time taken, the hourly rate for which is also shown on that page. Please contact the Countryside Access Team 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 Hampshire Highways 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 Countryside Access Team 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 highway statement and 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. For a landowner statement under Section 15A(1) of the Commons Act 2006, to end as of right recreational use, you should submit a statement (Part D of the application form) and a map showing the land affected.
9. Complete the application form, Form CA16, having read carefully the guidance notes provided. Part A relates to the applicant and the land to which the application relates, and should be completed by the applicant. Whre there is more than one owner (i.e. the persons who are for the time being entitled to dispose of the fee simple in the land), each one must complete paragraphs 2 and 3 of Part A. 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 completes part A for each part of the estate.
Part F of Form CA16 must also be completed by the applicant, whether one or more owners. This is a ‘Statement of Truth’, which carries a penalty if not made honestly. This statement puts the onus for the accuracy of the material contained in these deposits on you, as the landowner.
If any landowner is not able to read or write, the application must be supported by a certificate from a conveyancer, to demonstrate that the applicant understands what is being required in signing the Statement of Truth.
10. Parts B, C and D of Form CA16 allow for the landowner to submit highway statements, highway declarations and landowner statements, singly or in combination. For maximum protection of land, it is recommended that all three parts mentioned above are completed, and that the highway declarations are renewed within the 20-year time limit, where there has been no change in the extent of the land holding. Part E allows the applicant to put forward any additional information which is relevant to the application.
11.Submit the completed Form CA16, with accompanying maps and the application fee to Hampshire County Council (see address below). Subsequent highway declarations should be accompanied by further maps, if necessary, to show routes dedicated since the date of the last highway declaration.
12. 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 any highway declaration within twenty years.
13. 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.
14. 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:
Countryside Access Team
Castle Avenue, Winchester SO23 8UL
tel 0845 603 5636
i) the highway declaration should be made in respect of the land shown on the map accompanying the initial highway statement. A new map and statement should be lodged if the extent of the land holding changes. This also applies to the landowner statement.
ii) it is your responsibility to ensure the accuracy of the highway statement, map, highway declaration, and landowner statement and map. Acceptance by us and registration of documents purporting to be made under Section 31(6) and Section 15A(1) does not imply that the same are accurate and effective in accordance with those Sections.
iii) With effect from 1st October 2013 Hampshire County Council will only accept Section 31(6) deposits on the new form CA16.