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Highways Act 1980 Section 31(3) and Section 31(5)

Erecting, or retaining notices is one of a number of actions a landowner can take to prevent, or diminish, the chances of a successful claim for the existence of a public right of way over their land under Section 31 of the Highways Act 1980. 

Section 31(3) Notices

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Section 31(3) of the Act provides that where the owner of the land has erected ‘in such a manner […] a notice inconsistent with the dedication of the way as a highway’ then ‘the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.’ 

The term notice in Section 31(3) refers to a sign directed at members of the public and to have legal effect must be ‘visible by persons using the way’. Therefore the notice needs to be designed in a legible manner and of sufficient size to make it apparent to users. Any sign must also be positioned to clearly identify the land it seeks to protect. Where physical routes through an area are not obvious it may be sufficient to erect signs at the entrance points to the land, but in circumstances where clearly defined physical routes exist (such as access tracks, or worn strips through fields) the Act requires notices to be directed at those using the way. This is not always easy to achieve and therefore it is worth noting that in some circumstances erecting signs can lead to dispute. 

To avoid any ambiguity, notices must be carefully worded. Whilst it understandable for a landowner to assume a sign saying ‘Private’ means just that, there is nothing to indicate to whom that refers, or to what it applies. It is therefore advisable to use words that are more specific and clearly directed at the public. Although it is difficult to give appropriate advice to fit all circumstances, in general, good wording makes it obvious that the notice is intended to provide evidence of a ‘lack of intention to dedicate’. One way of achieving this is to cite the relevant legislation and describe exactly what it means. A good example is likely to include the following: 

In trying to defeat claims of public rights, invariably arguments about notices relied upon by landowners arise, particularly the date when they were erected and the person by whom they were erected. Ideally, the notice itself should provide that evidence, either by including a date, or if it is necessary to replace a sign because it has weathered, or fallen down, reference to the date that a previous notice was erected should be included.

In situations where owners want to allow public access onto their land by permission, but wish to prevent public rights from accruing as a consequence, other forms of notice indicating that the path is being used as a courtesy extended by the landowner and therefore use cannot be ‘as of right’ might be adequate to demonstrate a lack of intention to dedicate should an allegation that public rights subsist arise.

If a claim emerges it is invaluable to have kept a record, preferably photographic, of the wording of notices and the dates on which they were erected. Should a notice be removed for any reason, it is possible to deposit with the relevant authority a letter indicating the intention of the landowner.

Section 31(5) of the Highways Act 1980 provides that: ‘where a notice erected as mentioned in subsection (3) is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof to a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway’. 

While there is no cost to a landowner displaying signs and making records of notices, because of the difficulties involved in retaining them in situ, there can arise questions about their validity. Therefore such actions are not likely to carry the same legal weight as protecting land against claims of public rights by applying to deposit a statement and plan and lodging a declaration under Section 31(6) of the Highways Act 1980.