Highway rights

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    Highway rights

    We bought our house in 1998 and at that time there was a public pathway between our garden and the neighbour's which lead from the street to the canal running at the end of the garden. I learnt that when the houses were built in 1980 the plan was to build a bridge across the canal at the end of the pathway and join up with another pathway on the other side of the canal. Unfortunately, the way the houses were built the pathways didn’t line up so the bridge was never built. The pathway adjoining the garden was never used and a locked gate was fitted at the street end. The pathway was never maintained and it was left to return to nature and by the time we moved in it was impassable due to dense brambles and weeds. Despite this, the pathway still has highway rights. Then in 2008 a storm blew down the fence and we started to clear the brambles and subsume the land into our garden making it wider. The neighbour used the front of the pathway for parking and had block paving put down.

    I investigated the possibility of extinguishing the highway rights but due to the high legal cost decided to try and gain ownership by means of adverse possession whereby we can claim ownership after 12 years if nobody objected in that period. The Land Registry say they have no record of anybody owning the land.

    Nobody has objected but unfortunately, the neighbour is now selling and has lost a buyer because of the land ownership issue and the possible repercussions. The neighbour enquired with the council to try and eliminate the issue but they replied saying that the pathway must be reinstated. An application can be made to extinguish the highway rights which will cost at least £4,000 which will be lost if the process is unsuccessful. The cheapest solution will be to pay for a new fence and gate to reinstate the pathway which of course will never be used and the weeds and brambles will return. With the council raising an objection I assume that the 12 year clock for adverse possession (which would have completed next March) has now been reset.

    We will have the same issue when we come to sell in the next year or two, does anybody know of a way round this problem without risking £4,000 or having fences put up to enclose an unusable piece of land with a load of brambles and weeds due to a lot of red tape and bureaucracy?

    It is an offence to put a locked gate on a public right of way.


      I would leave it and see what happens. Our council rarely pursues issues like this unless someone keeps chasing them. If they insist try removable posts and a chain that you can remove once they've stopped watching it. I'd be wary of spending £4000 without good advice from someone who specialises in this area, extinguishing rights of way isn't easy.


        Many thanks for the responses. I believe that the original gate was locked for safety reason to stop kids playing next to the canal unsupervised but that was before I moved in. The footpath has highway rights but it’s not a right of way because it doesn’t lead anywhere. It only leads to the edge of the canal where the bridge was going to be built and now happens to be blocked by a large protected conifer that has grown there (I believe all the trees along side the canal are protected).

        I'm confident that the council won't pursue this and I'm sure that nobody is going to visit to check on the status of the footpath. I'm sure they know the situation and I think they’re insisting that the footpath is reinstated just to cover themselves and avoid any precedence in similar situations. The only concern is not being able to sell the property or lowering its value due to the uncertainty of the land ownership and the possible future consequences. The neighbour has already lost a buyer for this very reason. Whether we pay to extinguish the rights or pay for new fences to be erected will be solely for the benefit of future house buyers to allay their fears.

        At the moment it means either paying for one or the other because of red tape and bureaucracy and the absence of common sense. I can’t see any other course of action so any advice will be appreciated.


          Can you not simply state when selling that that particular strip of garden is not included in the sale? (As it's not yours to sell anyway).
          If you are not trying to include it then there shouldn't be a problem.

          You could even just put a cheap fence up before you sell, the new owners can always take it down again.


            Many thanks nukecad, that’s really creative and could work if potential buyers understand the situation and the history. I’ll definitely consider it and discuss it with the neighbour.


              If you have owned your house since 1998, its over 12 years and you qualify to start a claim by adverse possession.


                Being a public right of way doesn't mean that you don't own it. We are not even necessarily talking about adopted status here. Extinguishing a right of way is not the same as getting adverse possession. (In particular, blocking a public right of way is a criminal offence, whereas fencing off land that belongs to someone else is only a civil wrong.


                  Thanks for all the replies, the update on this is that I've recently found out that an application for adverse possession will be rejected if the land has highway rights. This probably means that we will need to spend £4,000 to go through the process to avoid future problems when selling the property.

                  The council have recently said that there are new plans to build a bridge over the canal and that the footpath needs to be reinstated. I don’t believe them and I think it’s just a ruse. I've heard this several times before and nothing ever happens.


                    The surface of a public right of way vests in the local highway authority so the current legal authority is that no one can be in adverse possession of a public highway, because every member of the public has a legal right to pass and re-pass over the public footpath.

                    In practical terms the current use of the public highway has been to include it into the garden of the adjacent residential property, but as long as that allows the public access to use this footpath if anyone chose to do that then physical sole occupation of the public footpath is currently the factual position.

                    In law there is a rebuttable legal presumption that the owner of a property alongside a road owns up to the centre of the road even if the road is an adopted public highway. Then only the surface and a small depth below the surface is vested in the highway authority and the sub soil is still owned by the adjacent land owner.

                    There are hundreds of public footpaths in England that are set out entirely on privately owned land, which is most often across farmland. Then the highway authority have to maintain the surface of the public footpath fit for public use by mowing the strip of land through the middle of an arable farmed field with a crop planted on it.

                    All that is happening in this instance is that the owner of residential property has removed his original boundary fence and is now maintaining the surface of the public footpath so that it is passable by someone who intends to walk over it to look at the canal surface and walk back to the public carriageway, or to walk to the canal carrying a lightweight kayak so that such a person can place the kayak in the canal and paddle off in pursuit of his or her hobby.

                    As long as the current house-owner is not obstructing the public footpath, which still has a locked gate erected by the local council, there seems to be nothing unlawful about the current situation as long as pedestrian access is not prevented by plants and shrubs being planted on top of the designated public footpath.

                    It would also be sensible to make a trip to the council offices to see the Definitive Map and Statement where the details regarding this public footpath ought to be recorded. My understanding of the purpose of a public footpath is to allow members of the public to go from one part of the highway network to another.
                    I am unsure that the canal is an adopted public highway, although it might be, but whoever placed a locked gate across the entrance to this public footpath has created an obstruction that cannot in itself be lawful unless there has been a properly constituted legal Order closing the footpath.

                    It's worth reading the written description of the route as stated in the Definitive Statement that has to be made available for public access by the highway authority, but as a matter of practical use it seems that continuing to keep the footpath under your control is not an offence as long as it remains passable.

                    Until such time as a formal request is made by the Highways Authority the fact that there is no longer a fence between your residential property and the public footpath does not constitute an offence.
                    No one can compel a land-owner to continue to keep a fence in existence even if it was original immediately adjacent to a public footpath and separating the private land from the public footpath.

                    A near neighbour of mine has a public footpath running through the middle of his property across part of a large lawn he has always maintained. There is a stile located in the fence on the far side of his garden where the public footpath continues across the cultivated farmland to meet a public bridleway half way across the field that runs east to west rather than north to south as does the footpath. That bridleway then leads to the main road at the end of the field.

                    After reading this posting it does seem as though the Poster's situation is more settled due to the fact that no one can access this particular footpath because it has a locked gate to prevent access from the nearest public carriageway that is front of the houses.

                    In the words of a film I saw many years ago "Carry on Regardless" is the best advice to give you.


                      Land ownership has NOTHING to do with highway rights.

                      The land under this path will be owned (by an unknown owner) but that is academic if it retains its highway status.

                      Extinguishment is not a complex procedure though. Involves a request to the council and them making a request to the magistrates.


                        Originally posted by pilman View Post
                        The surface of a public right of way vests in the local highway authority so the current legal authority is that no one can be in adverse possession of a public highway, because every member of the public has a legal right to pass and re-pass over the public footpath.
                        Only if it is adopted.


                          Thanks again for all the responses.

                          I don’t think keeping the status quo is ever going to be a problem unless someone stirs up the council hornets nest resulting in lots of chin rubbing and objections. I don’t believe a bridge over the canal will ever be built, it has been looked into and rejected too many times. As such, the footpath would never have been used and would have remained an impassable wasteland had we not taken it on board by removing the fences. Apart from the locked gate (I don’t know who put it there, it has probably been there since the houses were built), there is now also a large protected tree at the canal end of the footpath blocking access to the canal.

                          The main reason for posting this in the conveyancing section is because the neighbour is selling, buyers drop out when they find out about the question mark over the land and she is corresponding with the council to overcome this. The same will no doubt happen when we come to sell our property in a year or two. So irrespective of the legalities and whether or not the land is owned or has been adopted, it looks like we'll need to go through the extinguishment process anyway just to avoid problems selling now and in the future. The latest statement from the council about new plans to build a bridge is still in the air and if is proved to be correct, the pathway will probably need to be reinstated.

                          I put nukecad's idea to the neighbour but she didn’t think that was the way to go.


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