Public Rights
Nature
Public rights are exercised by the public or by a section of the public. They are not required to be ancillary to any land. A Public right of way may be for certain purposes or types of traffic. For example, it might be for persons on foot only.
Public rights of way may apply for the benefit of a class of the public. There are more general public rights, for example, highways and navigable rivers. They arise because the lands concerned are dedicated to the public generally.
A distinction is made between permission granted by the owner of land to members of the public to walk on pathways on his land and the dedication of these pathways to the public. To establish a public right of the way what has to be proved is an intent on the part of an owner to dedicate his land to the public, an actual dedication, and the acceptance by the public of the dedication.
Local authorities and other bodies have created and dedicated land such as parks, pleasure grounds etc. for the public. Some such bodies are private charities. Local government legislation gives local authorities statutory powers to provide recreational facilities.
Public Right of Way
A public right-of-way is a right over a defined route that is exercised by the public as of right. It is created by an actual or inferred dedication by the owner and acceptance by the public. Dedication by the owner implies that it is laid out and made available to the public as of right. This is not the same as permissive access.
To establish a public right-of-way there must be a defined starting point and a defined finishing point. One of those points must be one to which the public has access. There are some cases where public right-of-way can exist in a cul-de-sac as to from an amenity.
The courts may take account of the nature of the route or track involved and the nature of the land over which it exists. A right to stray generally over land does not amount to a public right-of-way. The must be a defined path by which the public know they are trespassing or not.
Establishing
The creation of a public right-of-way can be by legislation or express or implied dedication. Dedication involves the landowner actually or presumptively dedicating land to the public followed by acceptance.
Where land is subject to a long-standing apparent right of way, it may be presumed that there has been a dedication in the distant past. Long use gives rise to a fictional presumption of dedication.
A road of recent origin, that is laid out as a public road or pathway may be held to be a highway if it can be shown to have been dedicated to the public, expressly or by implication. This is quite a high standard to be met. There must be evidence of dedication and acceptance.
Dedication & Acceptance
“Dedication and acceptance” can arise informally and is most commonly inferred from long usage by the public of a public right of way. That presumption requires the continuous and uninterrupted use of the pathway “as of right”. Sporadic use of no more than “the kind of use on an unofficial basis of fields throughout the country by townspeople for Sunday picnics” is insufficient.
A person who is alleged to have dedicated the rights of public way must have legal title to do so; generally, the simple owner. The acquiescence of the fee simple owner over a prolonged period is often enough to establish implied dedication.
No inference or presumption of dedication will arise where the owner persistently acted inconsistently with the alleged dedication. Where the owner wishes to challenge the inference, he must do so in a way communicated to the public. This may be by placing notices or other means of communication.
Evidence Required
There must be sufficient evidence of public use to enable the court to conclude taking all circumstances into account that on the balance of probability the way was dedicated to the public and the public accepted. If the evidence points to long uninterrupted use by members of the public this will give rise to an inference that the was at some time in the past dedication of the routes in question to the public although the time place in dedicated need not be determined.
Regard is be had to
• the duration of use, though it need be for any particular length of time.
• the frequency and notoriety of the use nature and
• the purpose of the public user.
It must be open and not by stealth. It must be as of right; not by consent.
That a way is maintained by the relevant public authority, is evidence that there may be a public right-of-way. The perception of the public as to the nature of the route right is relevant. Evidence may be found in public records maps aerial photographs et cetera. Newspaper accounts may show the reputation.
Customary Rights
Customary rights are long-standing rights in a district they are generally enjoyed by an undefined class of local people over land from time immemorial without interruption. They are not rights of property. Customs can have the force of law under common law principles. Customary rights can affect land without registration.
It is possible that a right to wander over land can be established as a local customary rights. This is different to dedication of a public right of way. It would apply for a specific place. It might have had some ancient or distant origin. However, it would be unusual.
The customary right must itself be certain and must been exercised without interruption from time immemorial (in practice 20 years memory, but in theory 1189) . It does not give a right to take anything from the land
A custom must be sufficiently certain and defined. It must be reasonable. In one case it was held the claim that the inhabitants claimed but were denied rights over a river which were unreasonable as it would exhaust it. The custom cannot throw an unjustifiable burden on the landowner.
Existence since time immemorial means that it is has been enjoyed in living memory. If it is shown to be used for 20 years continuously is presumed to have been enjoyed since time immemorial unless it is proved not to have been enjoyed at some earlier date. The effect is that 20 years use is enough in most cases.
Private Roads
A landowner is presumed to own the land fronting onto a road to the centre of the roadway. This ownership is usually of limited value because it relates only to the subsoil and is subject to the rights of the public and the local authority in the roadway.
The right of the public is to pass and repass. If they, say picket the property, this is a trespass because it exceeds the deemed consent to pass and repass on the highway.
Certain roads are dedicated as highways but are not or are not yet taken over or “taken in charge” by the local authority. This is because the original landowner or developer, has laid them out and dedicated them to the public. In some cases, this is deliberate and there may be an express deed that is accepted by the Council.
Maintenance
There may exist arrangements by which contributions are to be made by a service charge to finance the maintenance of roads and services. This may be perpetual or apply until the road is taken over.
In many industrial estates, the internal roadways in common with other facilities and common services are subject to a scheme of management. Often the units in the estate are held under long leases, which provide for service charges and a management structure.
Sometimes the units are held freehold but the easement to use the common facilities roads are services are held under long leases. The lease makes the right to use the facilities conditional on payment of the service charge and compliance with the lease covenants.
Practical problems may also arise where there is no scheme of maintenance for a private road and facilities. There may be no means of legally compelling all users to contribute to the cost of maintenance.
It may be intended that the road be taken over. There may be a planning permission condition that contemplates that the road be taken over. There may be conditions to be fulfilled and there may be a bond. The local authority has broadly defined duties to take certain roads in charge, but there may be a considerable delay before this is done.
Legal risks can arise in respect of estates which are due to be taken over by the local authority after completion of development. If the original developer does not properly complete the roads, lighting and other infrastructure there may be a delay in taking in charge of the road.
Council Designation
Planning legislation allows councils to designate land in their development plan for the preservation of rights-of-way. This would mean for example that proposed development that impinges on the public right-of-way could be refused planning permission if it is inconsistent with it.
The legislation does not create a right to create make new public rights of way. The acquisition of rights over private land would either need to be by purchase, gift or compulsory acquisition. Compulsory acquisition will generally require compensation.
Numerous Acts give public authorities and bodies power to acquire land provide roads and paths. For example, the Minister/Department has the right to acquire land under the Wildlife act. It can acquire and extinguish rights-of-way and create rights-of-way. It may acquire commonage land.
Agreements can be entered regarding the use and management of forestry and wildlife land can be registered on the property.
Council Assuming Road
A road authority (usually the Council) may by order declare, any road over which public rights exist to be a public road. Every such road shall be deemed to be a public road and the responsibility for its maintenance shall lie on the road authority. A road includes a path.
Where it is proposed to declare a road to be a public road, the authority is to satisfy itself that the road is of general public utility. It is to consider the financial implications of the proposed declaration. It is to publish a proposal in one or more newspapers circulating in the area of the proposal, stating where maps can be inspected and stating periods during which the objections and representations may be made.
The roads authority shall maintain a schedule and map of all public roads in respect of which it has responsibility. A road authority was to prepare a schedule and map as soon as practicable after the legislation commenced. It shall be open for inspection at its offices during office hours. It shall be in a legible form or be capable of reproduction in legible form.
Council Policy on Adopting Roads
Councils have published guidance on taking over roads. The following is a sample policy.
The Council is also required to satisfy itself that a road is of general public utility. The phrase general public utility although not defined suggests a wider level of benefit to the general public than a limited number of people living on or near a road who would benefit from having that road maintained at the public expense.
Examples of roads that are of general public utility might include
• Roads that access zoned development land.
• Roads that access areas of significant amenity to the Public (e.g. beaches, tourist walks etc) Policy:
In general, the Council will consider the following types of road to be of general public utility: o Roads accessing amenities for use by the general public
o Roads providing access to zoned development land
o Roads connecting two public roads with through traffic volume that is comparable to the surrounding public roads.
The Council will not declare a road to be a public road as a means to alleviate the burden of maintenance of the road from individuals. However will consider whether a road is used by the public and may provide assistance by way of the carrying out of works, a financial contribution or otherwise towards the construction or improvement of the road if a provision in the annual budget of the Council is made for this purpose.