Erecting, or retaining notices by a landowner can prevent, or diminish, the chances of a successful claim for the existence of a public right of way over their land. Under Section 31 of the Highways Act 1980.
Section 31(3) Notices
Section 31(3) of the Act provides that:
where the owner of the land has erected ‘in such a manner […] a notice inconsistent with the dedication of the way as a highway’. Then ‘the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.’
The term notice in Section 31(3) refers to a sign directed at members of the public. To have legal effect it must be ‘visible by persons using the way’. Therefore, the notice needs to be:
- designed in a legible manner
- of sufficient size to make it apparent to users
- be positioned to clearly identify the land it seeks to protect
Where physical routes through an area are not obvious it may be sufficient to erect signs at the entrance points to the land. In circumstances where defined physical routes exist (i.e. access tracks, or worn strips through fields) the Act requires notices to be directed at those using the way. This is not always easy to achieve and it is worth noting that in some circumstances erecting signs can lead to dispute.
Wording Section 31(3) Notices
To avoid any ambiguity, notices must be carefully worded. Whilst it understandable for a landowner to assume ‘Private’ means just that, there is nothing to show to whom or what it refers to. So, it is advisable to use words that are more specific and directed at the public. In general, good wording ensures the notice is to provide evidence of a ‘lack of intention to dedicate’. One way of achieving this is to cite the relevant legislation and describe exactly what it means. A good example is likely to include the following:
Section 31 Highways Act, 1980 No public right of way
In trying to defeat claims of public rights, arguments about notices relied upon by landowners arise. Particularly the date when erected and by whom. Ideally, the notice should provide evidence, either by including a date, or if necessary to replace a sign because it has weathered, or fallen down. Reference to the date that a previous notice was erected should be included.
Section 31(3) Notices and Permissive Access
Where owners want to allow public access onto their land by permission, but wish to prevent public rights from accruing as a consequence, other forms of notice indicating the path is being used as a courtesy by the landowner and use cannot be ‘as of right’ might be adequate to show a lack of intention to dedicate should an allegation that public rights subsist arise.
If a claim emerges it is invaluable to have kept a record, preferably photographic, of the wording of notices and the dates on which they were erected. If a notice is removed for any reason, it is possible to deposit a letter with the relevant authority indicating the intention of the landowner.
Section 31(5)
Section 31(5) of the Highways Act 1980 provides that:
‘where a notice erected as mentioned in subsection (3) is torn down or defaced. A notice given by the owner of the land to the appropriate council detailing the way is not dedicated as a highway is, in the absence of proof to a contrary intention sufficient evidence to negative the owners intention of the land to dedicate the way as a highway’.
While there is no cost to a landowner displaying signs and making records of notices, because of difficulties in retaining them in situ. There can arise questions about their validity. Therefore, such actions are not likely to carry the same legal weight as protecting land against claims of public rights by applying to deposit a statement and plan and lodging a declaration under Section 31(6) of the Highways Act 1980.