A resident of a Buckinghamshire village rang to tell me about an incident at his local trout fishery. This comprises a delightful pond scooped out of the wet corner of a field by the farmer a few years ago. The banks have grassed up nicely and the pond is now an asset to the landscape and a haven for wildlife.
A number of locals set up a small fishing club and introduced trout to the pond this year. One member had just arrived, intent on fishing, when he was approached by a man with a dog. The man asked if there was anywhere he could walk and was shown the line of a public footpath.
A short time later, the fisherman was startled when a stick was lobbed into the water in front of him, just as he was about to cast. The stick was followed by a boisterous dog. When the fisherman remonstrated with the dog walker ? the very same man to whom he had spoken only minutes earlier ? he was treated to a display of aggression. ?You show me where the sign is that says I can?t throw sticks in the water for my dog,? demanded the trespasser.
Now, many folk, I suspect, dislike seeing a plethora of bossy signs in the countryside. They can give the place a distinctly unfriendly feel. But the unfortunate fact is that without certain types of sign, some types of misbehaviour are actually rewarded under our rights of way system.
You see, if you just stand by while as few as six members of the public travel over a defined route on your private property for long enough, without permission, secrecy or force, then the law presumes that you have voluntarily decided to give the surface of the strip of land in question to the public. This legal fiction is called ?deemed dedication? and once the local rights of way zealots have filed a claim against your property with the council, the onus is on you to prove that you had no intention of dedicating a public right of way.
A sign of the times
So, how do you show lack of intent to dedicate? Well, you not only have to provide solid, concurrent evidence of your lack of intention to dedicate, but you also have to show that this was made clear to users in an effective manner such as by repeated challenging, permission being granted or a suitably worded sign. And even then, a sign saying Private won?t do, because rights of way activists argue that public rights of way go over private land. Moreover, some activists will deny that they were ever challenged or had permission, or that any gates were ever locked (another method of rebuttal).
The only signs that are effective (assuming you can prove they were in place) are ones that are unambiguous, such as No public right of way or No public access. In addition, the landowner can file a declaration and map with the local authority called a Section 36 (6) deposit, showing which routes (if any) they accept are public rights of way, and stating that they do not intend to dedicate any others. As long as they repeat this public declaration every 10 years, they should be safe from a claim made under deemed dedication based on current use. (However, it won?t rebut against any claims based on use beforehand, or on the discovery of certain ancient documents).
This concept of ?deemed dedication? is a bizarre feature of English law. It is the unfortunate reason why there are so many rather hostile signs littering the countryside of England and Wales.
I was fascinated to learn the other day that there are hardly any public rights of way in the Republic of Ireland. Apparently, this is partly due to the history of land ownership tending to fragment into a mass of tiny farms once the big estates had been broken up. There is nobody quite so astute at protecting their property rights as a smallholder armed with a sharp pitchfork.
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