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Rights of Way
Rights of way disputes can be highly complex, and so seeking professional legal advice is recommended. Speak to our team today by calling 0345 872 6666.
Landowners must be careful to take positive practical action to prevent users of their land from gaining unintended rights of way.
Two recent cases demonstrate that it is sometimes possible for landowners to overlook the informal use of their land and find that the user now has the benefit of a permanent right of way over the land. These are set out below.
Webb v Wallsall MBC  involved Mr Webb crossing a car park owned by the council in order to access his garage for 27 years. During that time the parties had intermittently attempted to negotiate a formal agreement, but this had not been successful. Mr Webb’s route over the car park also changed at one point. In 2009 the Council wished to sell the car park for development and fenced off access.
The council argued that the change of route amounted to a break in the 20 year period needed to establish a right of way, and that the failed negotiations for a licence meant that there was an implied permission granted to Mr Webb. They also argued that the grant of the right of way would sterilise the land.
Mr Webb objected, and the Land Registry adjudicator agreed that Mr Webb had established a legal right of way in his favour.
In Matthews v Herefordshire County Council , Mr and Mrs Matthews owned a converted barn that had originally belonged to an adjoining farmhouse. The barn was bought in 1988 with confirmation from the seller that the nearby track had been used since 1954 for all purposes in connection with the barn. The track passed over land owned by the council. The council offered to grant a right of way to the Matthews' for a nominal sum. The Matthews' believed they already had acquired the right through use and so applied to register the right of way at the Land Registry.
The adjudicator agreed with Mr and Mrs Matthews, finding that the vehicular use of the track for over 20 years created a prescriptive right of way.
In both cases, there was some correspondence between the parties to negotiate formal rights, but no conclusion was reached. The cases indicate that a failure to act decisively on the part of the landowner when it has knowledge of the unauthorised use is not an adequate way to deal with the issue, and action should be taken to require “use of force” by the user to continue its use. This could be done through the erection of fences or locking gates, thereby interrupting the exercise of the right of way as of right.
As ever, reaching a written agreement in these situations is the best way to achieve certainty for both parties, and landowners should take action at the earliest possible opportunity.
If you are involved in a right of way dispute, the commercial property team at JMW is here to help. We have vast experience in this area of law and can provide the guidance you need to ensure you give yourself the best chance of securing the outcome you are after.
Our Manchester Partners
Partner and Head of Department
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