What is a public right of way?
A public right of way may exist over any particular route, but it is not a public road until it is taken in charge by the local authority under the Roads Act 1993.
In the context of public rights of way, it is important to note that the Local Authority has the function to protect the rights of the public to use public rights of way.
A public right of way can be created in 3 ways:
- it may arise from use from time immemorial or living memory (i.e there is no living person who can recall when the user began).
- May be created by legislation.
it may be established by proof of a long used by the public with an express or implied acceptance by the owner.
The essential requirements for establishing a right of way are:
- proof of the use, as of right, by the public of the way over the owner’s land.
- Depending on the duration, frequency, or intensity of that user, an inference may be drawn that the landowner has dedicated the way.
- The public has accepted the dedication.
A public right of way is not the same as Prescription or adverse possession over private lands where all that is needed is to prove user over a fixed period of time. In the case of public rights of way, you must also prove on the evidence that the owner dedicated the right of way to the public.
The burden of proof of dedication lies in the person alleging it.
The intention to dedicate by the owner can be inferred or presumed from the evidence of long uninterrupted user as of right. The application of the presumption in any particular case is a question of fact. Therefore, where there is evidence of a long uninterrupted user as of right of way by the public, the courts, depending on the duration, frequency and intensity of the user may infer that the owner dedicated the way to the public and that the public accepted that dedication.
It is also relevant to see whether the landowner took any steps, to “disabuse” the public of their belief that they had a right to use the way.
Part of the evidence of dedication, in combination with the user, maybe the fact that public money has been spent, with the consent of the landowner, on the repair or maintenance of the route.
What is public user as ‘of right’.
The user which can lead to the inference of dedication of a public right of way must be used as of right. It must be exercised ‘nec vi‘(without force), ‘nec clam‘ (openly – i.e., not in secret) ‘nec precario‘ (not be based on permission).
No particular period of use is necessary. However, the period of use is important. Combined with frequency and intensity, duration of use may be sufficient to persuade a court to draw the inference of dedication.
Can the Use be Anything Else?
It could also be shown that the use was by way permission – e.g. a licence. This could be shown by doing something to make the public aware of the fact that the route has been used by them only with the permission of the owner.
The private thoughts of the landowner not communicated to anybody would be insufficient to reverse the inference. However, the entire context must be taken into account. Regard should be had to the entire approach and behaviour of the landlord.
The case will be decided on the consideration of all the facts.
Podcast: Property & Rights of Way
Who can enforce this?
An individual or company can only enforce a Public Right of Way if they can show damage ‘special to them and greater than the general public’ or as a defence if they are sued as users of the Public Right of Way – eg. in Trespass or Nuisance.
Other than that, they must apply to the Attorney General for consent to bring an action at the relation of the Attorney General – relator action.
The Local Authority can also bring an action under Section 73(11) of the Roads Act 1993 to protect the right of the public.
Contact us if you have a concern about a public right of way. Call us on 052 61 24344 or email us: [email protected]