The High Court has recently decided the case of Ali v Secretary of State for Environment, Food and Rural Affairs which has provided fresh warning for Landlords who wish to ensure that Rights of Way are not created on their land by way of implied dedication.
Under the Section 31 of the Highways Act 1980 there may be presumed dedication where the public has enjoyed a way over land as of right and without interruption for 20 years. This is subject to the landowner being able to provide sufficient evidence that there was no intention to dedicate it as highway.
In this case the public used an alleyway to access local shops and businesses. A right of way was claimed through the alleyway and the landlowner’s case that he had no intention to dedicate the land as a highway rested on a closure of the alleyway during a Christmas period in 2011, which, he argued, broke the 20 years’ continuous use.
However, the High Court found that during the Christmas period local shops and businesses would have been closed in any event. As such, fewer people would have used the alleyway during that period, and so the landowner’s intention could not have been sufficiently communicated to the public.
The case follows on from the case of R (on the application of Godmanchester Town Council) v Secretary of State for Environment, Food and Rural Affairs decided back in 2007, which confirmed that the land owner must communicate the intention not to dedicate land as highway. In order to do this the landowner must carry out overt acts by which that intention can be sufficiently communicated.
If you would like to discuss a Rights of Way matter with us, please contact Richard Palmer on 01323 720142 or at firstname.lastname@example.org.