Landowner, Tenant and Occupier

Page 45

5 Landowner, Tenant and Occupier

5.1 Introduction

Owners and occupiers of land crossed by a public right of way must keep the route visible and not obstruct or endanger users.¹It is therefore important that they should be aware of any public rights of way over their land. Local authorities (National Park authorities, county councils, some district councils, metropolitan boroughs or unitary authorities) will normally have a ‘definitive map’ of the area showing public rights of way. These maps are a legal record of public rights of way,²showing footpaths, bridleways, restricted byways and BOATs.

5.2 Legal interest in public rights of way

5.2.1 Publicly maintainable highways

Where the public right of way is publicly maintainable, the surface is vested in the highway authority for highway purposes. The landowner is deemed to have a concurrent fee simple, which enables him to use the right of way for his own purposes provided they do not interfere with the rights of public or disturb the surface of the road or path. Where public rights of way are concerned, the landowner usually retains an interest in the subsoil. He also owns the airspace above the highway. This enables him, with the consent of the highway authority, to build cellars or tunnels under the road, or where he owns property on both sides, a building or bridge over the road.

Landowners do not own the subsoil under many major roads. Often, the highway authority will have purchased the land on which the road is built either by a compulsory purchase order or agreement.

¹See Natural England Guidance, ‘Public rights of way: landowner responsibilities’, available at www.gov.uk/guidance/public-rights-of-way-landowner-responsibilities.

²See Chapter 8.

Page 46

46 Public Rights of Way: The Essential Law

Adjoining landowners have, subject to planning control, a right of access to the highway from any point of their land³and may do repairs to their property from the highway.⁴

5.2.2 Non-publicly maintainable highways

The landowner retains the entire legal interest in the land, but it is subject to the right of passage of members of the public and the rights of control vested in the highway authority.

5.2.3 Statutory restrictions

Although the landowner retains title to the land, his use of the land over which the highway runs may be restricted. For example, without the consent of the highway authority, he may not construct buildings over or under the highway.⁵

5.2.4 The presumption usque ad medium filum

Where a right of way separates land in different ownership, there is a presumption that the adjoining landowner owns the land up to the centre point of the track adjoining his property (usque ad medium filum).⁶The presumption extends to any waste land between the adjoining land and the highway.⁷The rebuttable presumption that a sale of land adjacent to a highway carries with it that part of the highway which adjoins the land sold is capable of applying to the whole of the highway in question.⁸

This presumption may be rebutted by evidence that ownership of the soil of the track is vested in one adjoining landowner alone or in a third party. However, it will not be rebutted where there is a description in a conveyance that the property is bounded by a road, nor where the property is described by reference to red edging on a plan and the plan does not include the road.⁹

Whether the presumption applies to highways set out under inclosure awards depends on the construction of the award. The presumption rests

³Lyon v Fishmongers’ Co (1876) 1 App Cas 662.

⁴Cobb v Saxby [1914] 3 KB 822.

⁵HA 1980, ss 176–179.

⁶Central London Railway Co v City of London Land Tax Comrs [1911] 2 Ch 467.

⁷Steel v Prickett (1819) 2 Stark 463; Doe d’ Pring v Pearsey [1824–34] All ER Rep 164.

⁸(1) Commission for New Towns (2) Worcestershire County Council v JJ Gallagher Ltd [2002]
EWHC 2668 (Ch).

⁹Micklethwait v Newlay Bridge Co (1886) 33 ChD 133.

Page 47

on the argument that each of the adjoining owners contributed land to the formation of the highway. Where it is a new road, this argument would not be relevant. It may be that the road would remain vested in the lord of the manor unless he was compensated for loss of his rights in the soil.¹⁰

In new developments, roads are often retained by the developer and do not pass with a sale of the plots. The developers will make up the road to an agreed standard, and the highway authority will adopt the road.

5.2.5 Reservation of implied rights

It is generally accepted that, where a landowner dedicates a public right of way, that dedication is limited to granting the public a right of passage. The landowner is therefore able to use the land over which the right of way exists for his own purposes and to grant others rights insofar as those uses do not derogate from the dedication. Where the public right of way is publicly maintainable so that the surface vests in the highway authority for highway purposes, the landowner will have a concurrent interest in the fee simple.

5.2.6 Adverse possession

It is not possible to acquire title to a highway maintainable at public expense by adverse possession.¹¹This is because the surface is vested by statute in the highway authority.¹²Moreover, it is a criminal offence to obstruct a highway.¹³

It is possible that title could be obtained by adverse possession to a highway which is not publicly maintainable.¹⁴However, the land would be subject to the right of the public to pass and repass over the whole area.

5.2.7 Effect of extinguishment of right of way

The nature of the public’s interest in a publicly maintainable right of way is a determinable fee simple. So, if the highway is extinguished, the highway authority’s legal interest comes to an end, and the landowner has the fee simple in the surface which is no longer subject to a right of passage.

¹⁰Neaverson v Peterborough RC [1901] Ch 22.

¹¹R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200.

¹²Under HA 1980, s 263.

¹³HA 1980, s 137.

¹⁴See R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200, [56] and [57].

Page 48

48 Public Rights of Way: The Essential Law

5.2.8 The cut-off date

Sections 53 to 56 of the CROWA 2000 provide for the extinguishment on 1 January 2026, subject to certain exceptions, of unrecorded rights of way created before 1949. If the extinguished public right of way was reasonably necessary for a landowner to access his land, it will be converted into a private right of way. It does not matter whether the person was using the existing public right of way on the cut-off date or is able to use it.¹⁵

5.3 Claims to new rights of way by user

As explained in Chapter 3, new rights of way may arise from user under either common law or section 31 of the HA 1980. In order to rebut any inferred or deemed dedication, the landowner should erect notices indicating that there is no right of way and lodge a statement and declaration under section 31(6). These provisions are discussed in more detail at 3.5.4.

5.4 Maintenance responsibilities

Ascertaining who is liable for the maintenance of a highway is complex. It may be that nobody is liable to do repairs. An example is where a public right of way has been dedicated without following the procedural formalities set out in section 37 of the HA 1980. Another example is where there has been a deemed dedication after 16 December 1949, and no formal public path agreement or order has been entered into.

A landowner may be liable under a local or private Act of Parliament, or, more rarely, liability may have arisen by prescription (liability must have existed from time immemorial), ratione tenure (a pre-1290 liability arising from a grant of land in return for an undertaking to do repairs) or enclosure (where a landowner enclosed land so that it was impossible for a traveller to deviate if the route became impassable).

In general, the highway authority is liable for repairs, and it is for the authority to prove otherwise.¹⁶With regard to public rights of way, many highway authorities take the view that it is less expensive to assume that they are publicly maintainable than to do the necessary research.

¹⁵CROWA 2000, s 56.

¹⁶Attorney General v Watford Rural District Council [1912] 1 Ch 417.

Page 49

Landowner, Tenant and Occupier 49

5.5 Obstructions

5.5.1 What is an obstruction?

An obstruction is ‘anything which substantially prevents the public from having free access over the whole of the highway which is not purely temporary in nature’.¹⁷

In Herrick v Kidner and Somerset County Council, Cranston J, having reviewed the case law, said:¹⁸

In my view these authorities establish a number of principles with regard to an obstruction of the highway: first, members of the public are in general entitled to unrestricted access to the whole and each part of a highway; secondly, their right to such access is principally to pass and repass but it is also to enjoy other amenity rights; thirdly, those other amenity rights must be reasonable and usual and will depend on the particular circumstances; fourthly, any encroachment upon the highway which prevents members of the public from the enjoyment of these access and amenity rights is an unlawful obstruction; fifthly, the law ignores de minimis, or fractional obstructions; and sixthly, a highway authority cannot deprive itself of the power to act against an unlawful obstruction by refraining from exercising its statutory powers against it, or by purporting to give it consent.

Under section 137, a person who, without lawful authority or excuse, wilfully obstructs a highway is guilty of an offence and is liable to pay a fine. The CROWA 2000 has introduced an additional remedy.¹⁹

A magistrates’ court may, on the conviction of a person for wilful obstruction of the...