Real Estate Tip of the Week: Locking the Door on Public Rights of Way
Published 20 April 2015
In the same way that private rights of way can be acquired over land if exercised without hindrance for more than 20 years (please see our previous tip), where the public uses a private access way as of right and without interruption for the same period, that access way is deemed to have been dedicated by the owner as public highway.
If it is not the landowner's intention to dedicate the land as a highway, that intention must be communicated openly to the public. A common means by which landowners do this is by locking off the means of access once a year.
However in a recent case, where an alleyway was used by the public to access shops and businesses, the Court decided that by locking the door to the alleyway over Christmas, when the shops and businesses themselves were closed, the landowner had failed to communicate to the public that it did not intend to dedicate the alleyway as highway. As users of the alleyway would not have used it over Christmas, they simply would not have known that the door was locked. Accordingly the deemed dedication as highway was upheld.
Landowners concerned to prevent public rights of way being acquired over their land should consider carefully what steps they need to take to communicate to the public their intention not to dedicate.
In many cases, preventing public access periodically or displaying suitable notices may be sufficient, although this will depend on the facts of each case, so if in doubt, you should seek legal advice in good time.