Public Rights of Way over Private Land - Landowners Beware!

10 July 2018

Practice Area: Healthcare

E_mckenna

A public right of way can be established over privately owned land which can have serious implications for land owners in terms of their own legal rights and liability to members of the public.

Establishing a Public Right of Way

A public right of way can be created by Highway Authorities where they are of the view that a right of way over a particular piece of land would add to the public’s convenience or enjoyment.In the event that a member of the public has an accident on land which has been adopted, then legal liability will fall to the relevant authority.

Alternatively, although relatively rare, a landowner may create a public right of way over his/her own land by express dedication (where the land has been expressly dedicated as a public right of way by a landowner in a written statement accompanied by a plan showing the position of the route of right of passage and has been accepted by the public who have started using it).Once land has been expressly dedicated, the authority may agree to adopt and maintain the land.

More commonly, a public right of way will come into existence by way of presumed dedication (the long use by the public without interruption or challenge).Presumed dedication can take place under either common law or pursuant to section 31 (1) of the Highway Act 1980.

The common law presumption is that land has been dedicated as a public right of way if it has been used by the public at large without interruption for a sufficient period of time.It is recommended that a minimum of 20 years is a sufficient period of time to demonstrate that a landowner intended to dedicate the land as a public right of way unless there is sufficient evidence to show that there was no intention on the part of the landowner to dedicate it.

Public Rights of Way and Public Liability Claims

If a landowner can establish that the land in question constitutes a public right of way and that they had, or will have, no intention of restricting public access, then they may have the benefit of a public right of way defence pursuant to McGeown v NI Housing Executive [1995] in response to a public liability claim initiated against them.

In McGeown it was held that the owner of land, that had not been adopted, but over which a right of way passes is under no obligation to maintain the area and is not liable for any negligent nonfeasance (liability for failure to perform an act) towards members of the public using it.It was held that it would place an impossible burden on landowners if they not only had to provide a right of way to members of the public but were also under a duty to maintain it in a safe condition.The liability of the landowners is, therefore, limited to acts of positive misfeasance (positive wrongful act namely maintaining the area in an incorrect manner) and nothing else.The public are to take the land as they find it and cannot be deemed as ‘visitors’ pursuant to the Occupiers Liability Act (NI) 1957 as there is no permission required by the occupier if the land is a right of way.

Practical considerations

It is important for all private landowners to ensure that that are fully aware of the true extent of the land within their legal ownership and in particular, its use. If private land is not intended for use by the public, particularly where is adjoins a public footpath, then steps should be taken to close the area off and restrict public access.If the land is used by the public as a right of way for a minimum of 20 years without interruption then the land in question could be deemed to have been dedicated to the public as a right of way and the landowner could encounter difficulties if they decide to sell or change the use of the land at some point in the future.

Landowners could also be held liable for personal injuries sustained by members of the public on their land if a public right of way has been established and the landowner has been negligent in and about the maintenance of the land in question.

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