A Problematic Path
Commercial property solicitor Alistair Mason discusses the importance of fences and gates in preventing the establishment of public highways.
Fences and gates do however have an important role in preventing the establishment of public highways. A public highway is a route along which the public can pass and repass, as a right, without hindrance and without charge. Public highways, other than vehicular highways, can be created by a process called presumed dedication. The most common form of presumed dedication is under the Highways Act 1980 and requires that a route is actually enjoyed by the public as a right without interruption for 20 years and that the route is not of such a character that public use cannot give rise to a common law presumption of dedication.
This means that in order to create a public highway over a specific path or route in a school, college or university’s grounds the public must use the route for 20 years without force, secrecy or permission. The education institution tolerating public use does not constitute permission in these circumstances. The use must be without interruption meaning that there must not be physical and actual interruption which prevents the enjoyment of the way, for example locking your gates at night.
An intention to dedicate can also be rebutted by mounting signs on your gateways specifying that any path through your grounds is not a public highway. Notices can also be sent to the local authority to rebut an intention to dedicate the path as a public highway.
It is Important to note however that none of these options are retrospective and so if the public have actually enjoyed the pathway as a right without interruption for 20 years without notice that it is not a public highway it may become a public highway under the provisions of the Highways Act 1980 and members of the public will be able to apply to the local authority to amend their list of highways known as the Definitive Map. To resist such an application the landowner would need to show an absence of intention to dedicate the pathway. If an application is successful the pathway will be a public highway and the public will have a right to pass through your site creating issues in relation to site development, student and site security as well as resulting in breaches of the standard 125 year lease for academies.
A further issues with permitting a public highway to arise via presumed dedication is that it is not, simply by virtue of being a public highway, maintainable at public expense. This means that although the public have a right to use the path, the institution retains responsibility for maintaining the route and the liability for failing to maintain.
If you are concerned that your educational institution may have allowed a public highway to be created by prescription on your site we would recommend that you obtain professional advice as soon as possible. If the time limit has not been achieved it may be possible to erect fences, gates and notices to prevent the pathway from becoming a public highway. Once a public highway comes into existence it can only cease to exist if it physically disappears, for example a cliff path falling into the sea, or a statutory procedure is used to close the highway.
If you wish to discuss any of the issues raised in this article, please do not hesitate to contact Alistair Mason or another member of the Burnetts Commercial Property Team on 01228 552222.