The Highways Act 1980 says:

‘Where a way over any land... has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.’

In essence, therefore, 20 years’ use can be sufficient to create a public right of way, unless the landowner shows a contrary ‘intention’. There are specific ways of showing this under the legislation (eg erecting a notice; if such a notice is defaced then giving notice to the council; depositing a map with the council). But, there are other ways in which the landowner can show the necessary contrary ‘intention’.

The real question then arises as to whether the landowner’s intention has to be subjective or objective. In Fairey [1956] Lord Denning said ‘a landowner cannot escape the effect of 20 years’ prescription by saying that, locked in his own mind, he had no intention to dedicate’ (ie the court would apply an objective test). However, in Dorset [2000] it was said that ‘all that is required is that there should be sufficient evidence of lack of intention to dedicate’ (ie a subjective test). Following that latter decision, there have been several cases in which landowners have argued that they had the necessary contrary intention, even though that could not be proved on an objective basis. As a result, the situation has now been clarified by the HL which has gone back to basics, and approved the objective approach taken by Lord Denning. Thus, in one of the cases considered by the HL, the landowner had written to the local council complaining of pedestrian trespass, but the point was that such a letter would not have come to the attention of the users of the path; accordingly, there was not a sufficient indication of the landowner’s intention that it should not be dedicated as a public path. The key point here is that you have to look at what users of the way would reasonably have understood the landowner’s intention to be. Accordingly, a landowner can no longer keep his intention locked up in his own mind; he must do something that brings home his intention to users of the way (eg by taking one of the statutory steps set out above, or by locking the gate – but a private letter or similar document will not be enough).

Accordingly, all landowners who are concerned that the public might argue that they have a right of way should immediately take steps to make it clear that the landowner does have the necessary contrary ‘intention’. See Godmanchester v Secretary of State [2007] UKHL 28, discussed in [2007] SJ 912.  © Practical Lawyer