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Private Rights of Way

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Sets out the law and practice relating to the creation, acquisition and maintenance of private right of way

 Private rights of way are one of the most important easements for landowners and developers. They may be created in many ways including long user, yet their existence may not be recorded at the Land Registry.

 This publication is the only work to deal exclusively with private rights of way. It takes a practical approach to the anticipation and resolution of problems, and provides detailed coverage of practice and procedure relating to disputes both in court and the land registry adjudicator.

 Private Rights of Way are a form of easement enjoyed by one owner of land over land in the ownership of another.

 They may be created by agreement or arise from long use. Serious practical issues frequently arise, for example:

  • legal enforceability, particularly where ownership has changed
  • the purpose for which the way can be used
  • the type of vehicles allowed
  • whether the way is for vehicles or foot traffic only
  • rights of parking
  • access control
  • obstructions
  • repair responsibilities
This new work sets out the law and practice relating to the creation, acquisition, maintenance, extinguishment, and remedies for wrongful interference with private rights of way.

 In addition guidance is given on practical drafting issues, together with precedents. Legal proceedings, including evidence and procedure are also covered. There is a useful appendix examining survey methods to be taken into account when interpreting historical ordnance survey maps and aerial photography.

 Private Rights of Way is essential reading for all property lawyers, surveyors, property developers and landowners.
  • The Property Law Context
  • Rights of Way Defined and Contrasted
  • Acquisition by Acts of the Parties
  • The Extent and Limits of Rights of Way Acquired through the Acts of the Parties
  • Practical Drafting Issues
  • Acquisition of Rights by Long Use
  • Acquisition of Rights of Way by Statutory Powers
  • Responsibility for Maintenance and Repairs
  • Extinguishment
  • Wrongful Interference with Rights of Way
  • Dealing with Disputes and Remedies to Ascertain Rights and Prevent Wrongful Interference Relating to Rights of Way
  • Evidence and Procedure
  • Land Registration and Title
  • Precedents
  • Survey Methods and Other Considerations to be Taken into Account in the Interpretation and Comparison of Historic Ordnance Survey Mapping and Aerial Photography/Satellite Imagery
  • Extracts from Land Registry Practice Guides 40 and 49
As the title states, this is a book about private rights of way. Such rights of way are not to be confused with public rights of way. There are many differences in the law that apply to each of those rights. The law of public rights of way and public access to land is covered in excellent terms by Angela Sydenham in her book Public Rights of Way and Access to Land published by Jordans; now in its 4th Edition. Therefore, any reader needing assistance about what may be a public right of way, or some other public right over land should consult that book. This book does not deal with that subject and Chapter 2, para 2.72ff of this book briefly describes the distinction between public and private rights over land. In addition and for the avoidance of doubt we have not dealt with private rights of ‘way’ (ie rights of navigation) over, or under water, whether natural, artificial or tidal.

 We perceived the need for this book given the complications of the law relating to private rights of way (as easements) and the desire to provide something clear and practical on the subject. To that end we have set out how private rights of way may be acquired and lost, how the rights and obligations under them may be enforced, and how general disputes over them, such as obstructions and lack of repair, may be dealt with under the law.

 It is an often overlooked fact that most human beings in this country will need to use a private right of way on a frequent basis, whether he or she is a town dweller, or one who lives in the country. To get to your (or someone else’s) house, flat, garage, office, field, or yard, or to walk, or drive over any land off a public footpath, or highway, invariably requires a private right of way to be present for lawful access. Many public spaces and buildings require the use of a private right of way for access; eg the Temples and Inns of Court, most railway stations, shopping centres, cinemas, car parks and sports venues. One example may be given of the importance of such rights when a large number of disputes arose over private rights of way over a decade ago. At that time many house and flat owners were shocked to discover that the private rights which they and their predecessors had enjoyed for generations to access their properties were no longer valid. Large sums of money were being demanded by landowners to allow such access to continue. The Government legislated on the topic to try and solve the problem. On 1 April 2004, the House of Lords put the matter to rest in favour of the users of the private rights of way when it decided Bakewell Management Ltd v Brandwood [2004] 2 AC 519. Thus, unlike other easements and property rights, or obligations (eg restrictive covenants, or rights of light which may only trouble a relatively small number of landowners) private rights of way are pretty near universal in importance to many.

 The importance of such rights in an overcrowded island and in the context of increasing pressure on land use, especially in built-up areas, means that disputes over private rights of way and the rights and obligations associated with them are always potentially, if not actually, present. Parking spaces, use of roadways with increased numbers of vehicles and obstructions, such as gates, barriers and fences can all cause tempers to flare.

 The need to determine who has the rights and responsibilities is thus of vital importance before things get out of hand. The tendency for disputes over private rights of way to litigate is shown by the fact that there are over a dozen private rights of way cases noted on Westlaw between March and October 2012. Next to boundary disputes, these claims are capable of producing a great deal of costly tension and aggression between neighbours, but little common sense. Perhaps fewer disputes might arise if there was clear guidance as to the law and as to how to avoid litigation over these rights and the obligations that run with them. This book has that aim.

 We hope that this book will assist in providing some answers to those in search of an understanding of the law on this subject. In addition it should be a guide to the resolution of disputes over private rights of way, whether latent, or patent. Finally, it contains precedents which are designed so that rights and obligations within the subject of the book are clearly defined when agreements over private rights of way are being made.

 We have tried to assist the reader with not just the law of private rights of way, but also the way in which disputes can be resolved. We stress (in Chapter 12) the need to seek a resolution of conflict in a neighbourly manner, such as by mediation, before launching into what are often expensive and lengthy court proceedings. In addition, in Appendix 2 David Andrews (a former Ordnance Survey surveyor and now a Cartographic Survey and Mapping Expert) provides an insight into the way in which evidence relating to plans, maps and aerial photographs should be interpreted and presented. This is invaluable material when disputes are in court.

 This book sets out the law for both England and Wales. In general that is the same but occasionally a statutory provision may be brought into force on different dates in the two jurisdictions. We have attempted to state the law as at 15 October 2012. While this book was in press Land Registry Practice Guide 52 (Easements by Prescription) was revised and the changes, which are minor and administrative, have not been reflected in the text. It is now much clearer about procedures such as automatic entries where both dominant and servient titles are registered. It also updates references to certain railway and canal lands to include the Canal and River Trust.

There are also two changes which are due to come into force in 2013. As the final rules etc are either not yet published, or in final form, we cannot incorporate these changes into the text but we have flagged them in Chapters 11 and 12 in particular.
 First, in 2013 the current Land Registration Adjudication procedure will be the subject of new rules. The current office and jurisdiction of the Adjudicator to Her Majesty’s Land Registry will be transferred to a new First-tier Tribunal Property Chamber; probably by mid 2013. There will be new procedural rules applicable to that Tribunal. But the jurisdiction under the Land Registration Act 2002 and rules made thereunder to resolve disputes under that Act will not alter. The change will be in the procedure and in the identity of the body resolving those disputes once they are the subject of a reference by the Land Registry. See the flagged up notes to this effect in Chapters 11 and 12.

Secondly, so far as any disputes are in court and are governed by the Civil Procedure Rules (as they invariably are), extensive changes as to costs are planned to come into force on 1 April 2013 as part of the implementation of the Report by Lord Justice Jackson on civil litigation costs published in 2010.

 The relevant website in both instances is www.justice.gov.uk so that up to date information can be obtained when these changes take effect.
 In addition, as to the future, the Law Commission’s Report and Draft Bill on the reform of the law of easements, covenants and profits a prendre, published in June 2011 (Law Com No 327) is mentioned in this book at certain points. Aspects of that Report and the draft Bill will, if enacted, have a drastic effect on the law of easements, including of course private rights of way. At the time of writing there is no indication when any such Bill will be introduced into Parliament.

 We thank most sincerely all who have assisted us with the writing of this book. Such thanks go to our colleagues, our instructing solicitors and clients (who often provide the inspiration for legal problems which we do our best to resolve), our partners, families and friends. Their encouragement and forbearance is much appreciated. As is often said ‘they know who they are’ and we hope they will not mind being in this general Roll of Honour. They can all take individual credit in the role they have played in bringing his book to publication.

 We are very much indebted to David Andrews for his contribution in Appendix 2. This will assist readers on the complex questions arising from maps and mapping, especially when expert evidence is required in court.

 Naturally we are immensely grateful to all those at Jordan Publishing who have managed to get us safely into harbour with this book. Amongst them we must thank specifically Tony Hawitt and Claire Banyard and of course all their associates. It has been a long voyage and without their expert navigation skills and tactful encouragement, our ship (in the form of this book) would have foundered long ago.
 Finally, we are very willing to receive comments on this book via the publishers, whether in terms of praise, or criticism. Such comments will of course be grist to our mill when we come to prepare a second edition!

 Note as to the use of potentially gender-specific words.
 The use in this book of the words ‘he’, ‘she’ or ‘it’ or any other words which are capable of a gender-specific meaning, is not to be taken as having a gender-specific meaning.
 Stephen Bickford Smith
       Andrew Francis
       Christopher Jessel
       Dr Keith Shaw

Chapter 1
 1.1 The scope of this book is, as its title suggests, private rights of way. The term ‘private’ is intended to draw a distinction between those rights of way which exist for the benefit of the owners of particular parcels of land over other land, and rights of way enjoyed by the public at large over public roads, footpaths and bridleways. English law has since time immemorial developed the law relating to highways, of which the law relating to public rights of way is part, separately from the law relating to private rights of way. The law relating to private rights of way forms part of the law of easements.

 1.2 Public rights of way are to a large extent regulated by statute. The most important provisions are the Highways Act 1980, and in relation to non-vehicular ways, the National Parks and Access to the Countryside Act 1949, the Countryside Act 1968, the Wildlife and Countryside Act 1981, the Countryside and Rights of Way Act 2000,6 and the Natural Environment and Rural Communities Act 2006.7 Public rights of way are, as the name suggests, rights enjoyed by the public at large. They can be acquired in various ways, including by long user for 20 years, or dedication to the public of a right of way by the owner of the land over which the way leads. Liability to repair falls by statute on the relevant highway authority. The stopping up and diversion of highways are subject to statutory procedures. Even in modern times, many public highways, principally footpaths and bridleways, have arisen by long user or dedication. However, vehicular public highways normally arise either through compulsory purchase by public authorities of land required for new roads, or as a result of agreements between developers and local authorities incidental to development of land requiring new roads to service it. Under such agreements the developer constructs the new road to a suitable standard, and the local authority then ‘adopts’ the road as a public highway, accepting at the same time liability for future repair.

 1.3 There are some overlaps and similarities between public and private rights of way. For example, public rights like private rights may be acquired by prescription after 20 years of use, and private rights of way can co-exist with public rights of way. The rules as to what constitutes permissible use of the public highway are similar to those which govern private rights of way, though the influence of public law regarding such matters as the right to peaceful assembly has also led to important differences. Nevertheless, an attempt to synthesise the two areas of law would be over-ambitious and detract from the utility of a book primarily aimed at property professionals. The object of the present work is to give an account of the law relating to rights of way as easements. They will be referred to simply as rights of way rather than ‘private’ rights of way, except where it is necessary to discuss and distinguish between public and private rights. The practical importance of the subject in an increasingly crowded and urbanised world needs little emphasis. Scarcely a month goes past without a significant reported decision on rights of way from the courts in England. Other common law jurisdictions also produce much material of relevance to the subject.

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