This is a common query and not a straightforward one.
I've acted for both land owner and path user in this type of claim (obviously different claims) and it is often complex and very emotionally driven.
Where it concerns your own home and you need to access part of your land using a path there are often more options. You may have a right to use the path within your deeds (though this may take some digging into older conveyances, plans and transfers), have a right to use a path out of necessity or have another legal right (e.g. being landlocked or a long period of use) to assert your right to use the path.
Where you are a member of the public using a privately-owned path you are likely to find it trickier to assert a right to use the path, but there is a route you can use.
First, you can check if the path is registered as a public right of way. The local Council's Definitive Map will show if there are footpaths, bridleways or any other rights that you could use.
If the path is on the map as an existing public right of way, you may wish to consider contacting the Council, which can take enforcement action against the land owner to open back up the path.
If the path is not on the map as an existing public right of way you can apply to the Council (using a Definitive Map Modification Order application) to request that the right of way be added. The land owner would have to open the path back up if the right of way is added.
To succeed, the application would need strong evidence that the path had been used by members of the public (which don't have to be the same ones for the whole period) for at least 20 years before the path was blocked. This evidence usually takes the form of statutory declarations, which are like witness statements, but instead of being signed they are 'sworn' (signed in front of a solicitor after some specific words are spoken). You will need to have several, from different people, to cover the entire 20 year period.
The Council will consider the evidence and decide if a modification to the Definitive Map should be made to include the path you think should be a public right of way. Where you have shown sufficient evidence that the path was used for 20 years there is a presumption that the path should be 'designated' (included). However, there are ways the land owner can defeat the application:
- if the use of the path has been 'interrupted' (e.g. it was blocked up) during the 20 years you have evidenced;
- if the owner put up a sign stating that the path wasn't for public use and was not intended to be designated as a public right of way;
- if the owner has objected at any point to the use of the path;
- if the owner can evidence that the use of the path was either with their permission or 'under licence' (i.e. they allowed the use of the path, but they didn't give a right for it to be a right of way and were entitled to terminate the use of the path at any time). The owner would need to provide good evidence of the existence of the licence or terms of the permission.
This isn't a short-term solution. It can take years for the application to be dealt with. In the meantime, you may not have the path available to you as there are no teeth to force the land owner to open it, but writing to the owner requesting that they re-open and providing your evidence may lead to them agreeing to the designation and to reopen the path.
If you'd like to discuss more specifically a right of way you wish to have designated get in touch.
