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Could it become cheaper to protect land from unwanted claims for public rights of way?

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The Commons (Registration of Town or Village Greens) and Dedicated Highways (Landowner Statements and Declarations) (England) (Amendment) Regulations 2016 (SI 2016/1081) (“the 2016 Regulations”) were made on 9th November 2016 and come into force on 1stDecember 2016.  The 2016 Regulations amend the earlier 2013 Regulations (SI 2013/1774)and apply to England only.

A Landowner Statement and Declaration can be deposited to an appropriate authority by a landowner to rebut a presumed dedication of a highway. This procedure is contained in Section 31(6) of the Highways Act 1980 and is therefore also known as a ‘Section 31(6) Notice’.

Landowners have been able to deposit a Section 31(6) Notice for a long time but the 2013 Regulations introduced some changes to the procedure as a result of amendments to the town or village green legislation. The 2013 Regulations introduced a new obligation on local authorities to post a notice of the Section 31(6) Notice in an obvious place on the land to which the application relates.  It must also give notice on its website and by email to interested parties (such as the Ramblers Association and the Open Spaces Society).  As a result of the additional administration involved in processing a Section 31(6) Notice, the 2013 Regulations gave authorities the ability to charge a reasonable fee.

The 2016 Regulations have removed the requirement on an authority to post a notice of a Section 31(6) Notice on the land to which the application relates. It has been deemed that there is no need for this obligation to apply to Section 31(6) Notices because there is no time limit for bringing a claim for a public right of way under Section 31 of the HA 1980.  This is in contrast to the legislation on town or village greens, which was also updated by the 2013 Regulations, which provides that once an equivalent Section 31(6) Notice (under Section 15A of the Commons Act 2006) has been deposited, there is a time limit to bring a claim.  This time limit is one year in England and two years in Wales.

There are two possible consequences for landowners as a result of the 2016 Regulations. First, authorities may reduce the fees they charge for depositing a Section 31(6) Notice.  The fees vary considerably from authority to authority and are justified on the basis of the administration of the documentation and the need for a site visit to put up a notice.  Now that the need for a site visit has been removed, it would be nice to think that authorities will reduce their fee to reflect this.  It will be interesting to see if this happens after the 2016 Regulations come into force on 1st December 2016.  Secondly, some landowners may have been reluctant to deposit a Section 31(6) Notice for fear of it actually instigating an unwanted claim as a result of a site notice alerting users of the situation.  Whilst authorities will still need to give notice on its website and email interested parties, landowners may feel that not having a notice on the land in question considerably reduces their concerns of a claim being instigated.

The 2016 Regulations may provide landowners with a good opportunity to consider whether they have a need to deposit a Section 31(6) Notice and protect their land from claims for unwanted public rights of way.

Landowners who have queries regarding the above should email or telephone 01905 610410.

 Hannah Taylor, mfg Solicitors

18 November 2016