Claiming Paths Used for Twenty Years or more.
Many people know that it is possible to claim as a public right of way a path that has been used by the public for more than 20 years. However, proving use means gathering signed statements from users (evidence of use). The article below is extracted from a longer article by the Ramblers’ Association written several years ago. It shows a claimant how to get involved with a Highways Authority to help to gather ‘Evidence of Use’.
• Firstly check with the highway authority that the way is not in some way accepted by them as being a public highway. They may accept it is public even though it is not on the definitive map and statement, and this may allow them to take action to reassert the public's right to use the way.
• If not, then you will need to gather your evidence of use over 20 years or more, if possible. Most authorities will usually accept claims if at least half a dozen witnesses can testify to use ranging over this period, the RA would recommend you try to gather as many witnesses as possible.
• Remember the 20 year period begins on the date that the right of way is brought into question. In practice this usually means when it was communicated to the public that they were no longer welcome, for example, the locking of a gate, the putting up of a notice saying "private right of way" or "by permission only", or physical intimidation. In the absence of anything obvious, it has long been the practice of authorities to use the application for the modification order as the date when the way was brought into question
• Once you have established the date when you count back the 20 years, you can identify the witnesses who have used it in that time. Not all witnesses need to have used the way for the full 20 year period - what the authority are looking for is a picture of use, to show that the way was used by various people, over various periods, in that 20 years. So, one person may have used the way for 5 years, on a monthly basis another may have used it for well over 20 years but on a very sporadic basis, another may have used it daily over a couple of years.
• Claims based on user evidence can flounder if certain principles do not apply. The following checklist should help (but it is not comprehensive):
Claims cannot be made for ways over land where access is already prohibited: e.g. motorways, railway lines, or where a deed or legislation has explicitly prevented the acquisition of new rights of way (the new “Freedom to Roam” land will fall under this).
Use must be by the public at large, it cannot be just certain tenants or employees
It must be without interruption in that 20 year period that means the actual physical stopping of use of the way, with the intention to stop use. If a gate is locked across the way in that time, there is an interruption which may defeat the claim, but the courts have held that unintentional interruptions, e.g. parking over the way, might not defeat a claim.
Use should be as of right, which means open, unforced, and without permission. There is no need for the public to have believed it was a right of way they were using, they just need to have used it in the manner that public rights of way are used.
The evidence of the landowner's non-intention to dedicate may also be enough to defeat a claim. In many cases this evidence is the same evidence that brought the right into question e.g. the locking of a gate. In some cases it will not be so obvious, and may only come to light after the claim is submitted e.g. the landowner has written to the authority within this period to declare there were no rights of way over his land.
It is worth being aware of these complications, but don't be put off submitting your claim just because the landowner, after hearing of your claim, says he "always turned people back" without any hard evidence. In such cases your evidence of user, and the contradictory allegations of the landowner, mean that there is a reasonable allegation that a right exists which should rightfully be tested by the making of a modification order.
• Having gone through this checklist, you may now find yourself in a position to make a claim. Most authorities produce a guidance pack for the public on submitting a claim. As part of that information, it is usual practice for an authority to produce a "user evidence form'1 which your witnesses can fill in to testify to use.
• It is helpful and good practice for the form to be linked to a plan on which the alleged right of way is shown, and for this plan to be signed by the person providing the evidence.
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