Depositions made under Section 31(6) of the Highways Act 1980
New public rights of way can come into existence through public use, and Walsall Council has a duty to investigate claims to have additional public rights of way recorded on the definitive map. One of the first questions the investigating officer asks is 'Has the landowner taken sufficient action to make it clear to the public that they have no right to cross his land?' This is not always an easy question to answer. The landowner may have fenced his property, but the fences may be broken down. He may have erected notices, but they may have been removed. While it is important to take these basic steps, the law recognises there are problems.
Section 31(6) of the Highways Act 1980 allows landowners to make their intentions clear by depositing with the highway authority maps and statements which admit the public rights of way that already exist on their land. If the landowner follows this by depositing a statutory declaration to confirm that no new rights of way have been dedicated, and renews this every ten years, any public use of his land will not count towards the establishment of new public rights of way. This gives the landowner a way of protecting his property, while still allowing a degree of permissive public access. Once lodged with the highway authority, the map, statement and declaration become public documents and available for public inspection.
Making a disclaimer in this way will prevent future use counting towards the establishment of new public rights of way, but it will not necessarily prevent members of the public from making claims for public rights of way. This is because there is no time limit on claims. If evidence comes to light which shows that a public right of way came into existence at some time in the past, an application can still be made to have it recorded on the definitive map. Nor will a s.31(6) disclaimer prevent a claim from succeeding if the claimants can prove there has been unchallenged public use over a period of 20 years leading up to the date when the disclaimer was first made. Both the Country Land and Business Association and the National Farmers' Union have promoted wide use of s.31(6) disclaimers.
Find out more about the council’s current procedures, and advice for landowners wishing to deposit a map:
Contact the Public Rights of Way team for information on current or recently expired depositions.