Rural Rights of Way and Access
As rural property lawyers we are more and more frequently encountering enquiries about access to both agricultural and residential property.
With remote rural properties and bare agricultural land, access to property is often over third party land or via shared access routes or private rights of ways.
Public rights of way such as footpaths, byways or bridleways can also often run along these routes and misunderstandings about who has what legal right are common.
Is there a private right of way?
When such situations arise, it is essential that firstly deeds and documents are checked to try and work out what the correct legal position is. Sometimes it can still be unclear whether a right of access exists and in these instances consideration also needs to be given to whether a legal right may have been created over time; by prescription. Establishing a prescriptive right is not straightforward, and cannot necessarily be relied upon, so it is important to take legal advice.
What about a public right of way?
A question we are sometimes asked is whether you can drive over a bridleway or public right of way to access private property. It however a criminal offence - under s34(1) of the Road Traffic Act 1988 (as amended by the Countryside and Rights of Way Act 2000) - to use a mechanically propelled vehicle along a route designated as a footpath, bridleway or restricted byway, unless the user has lawful authority to do so. The same restrictions apply to common land and moorland.
“Lawful authority” effectively means the consent of the landowner (over whose land the public right of way runs) and must be exercised so as not to cause a public nuisance to other lawful users of the route such as walkers, cyclists and people on horseback.
Using such an access route without lawful authority could lead to criminal proceedings being brought against you, together with the potential loss of the access itself.
What if I have a public right of way over my land?
We are also increasingly offering advice to clients who own land which is crossed by footpaths or bridleways who want to know their rights and obligations and who have been made party to applications to register the existence of further routes or to alter the course of the current route.
If any of these issues are relevant to you and you would like further advice then please do get in touch.
Published 25 March 2021
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