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Public Rights of Way - Definitions and their Creation

Document Cited authorities 16 Cited in Related
Vincent
AuthorWilliam Webster/Robert Weatherley
Pages143-146
Chapter 15


Public Rights of Way – Definitions and their Creation

WHAT IS A PUBLIC RIGHT OF WAY?

15.1 The phrase ‘public rights of way’ is often used interchangeably (as it is in this chapter) with the word ‘highway’, of which no definition can be found within the HA 1980.1That being the case, the common law provides the essential characteristics of what is, or is not, a public right of way.

15.2 It is said a highway is a ‘dedication to the public of the occupation of the surface of the land for the purpose of passing and re-passing’ (emphasis added).2

Such a dedication is made in perpetuity. The public’s right to pass and re-pass along land which is so dedicated is thus not a time limited or transitory right,3and a public right of way over private land will be binding on successors in title, hence the saying ‘once a highway, always a highway’.4A dedication of land purporting to create a right of way which is time limited will not give rise to a highway at law. Where a highway has been created and it is a highway maintainable at public expense, the Highway Authority responsible for maintaining the way will obtain an interest in the land over which the way runs.5

15.3 To be a highway, the land involved must be open to the public at large and not simply to a section of it.6A right of way which is provided pursuant to a contract, licence or otherwise, cannot be a highway at law, without more.7It has

1Other than within HA 1980, s 328, which simply provides that the word ‘highway’ within the Act refers to the whole or a part of any highway other than a ferry or waterway. The statute also makes it clear that a highway may pass over a bridge or tunnel.

2See e.g. Oxfordshire County Council v Oxford City Council [2004] EWHC 12 (Ch) at 293, per

Lightman J.

3See Dawes v Hawkins (1860) 8 CB (NS) 848 at 857.

4See Dawes v Hawkins (1860) 8 CB (NS) 848 at 858, per Byles J; R (Smith) v Land Registry (Peterborough) [2010] EWCA Civ 200; Harvey v Truro RDC [1903] 2 Ch 638, per Joyce J.

5HA 1980, s 263(1). This is discussed in more detail at paras 17.5–17.9. The ownership of the subsoil will remain in the hands of the dedicating landowner, but the Highway Authority will obtain an interest in the ‘top two spits’. See Tunbridge Wells Corporation v Baird [1896] AC 434. See also paras 17.5–17.9. Where the public right of way is extinguished by a formal process (as discussed at Chapter 20) the land will re-vest in the...

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