Rights of way - are your neighbours acquiring rights over your estate?

Are dog walkers regularly crossing your school estate? Do neighbours use your land to access their properties? If so, then they could be acquiring legal rights of access over your estate that can have serious implications for future development and pose safeguarding concerns for the daily operation of your site.

Do members of the public / neighbours access your land?

The public (as a whole) can acquire rights of way, if they can show they have used any routes over your land for 20 years without the school’s consent.

Schools should take these types of rights seriously as once a public right of way has been established the general rule “once a highway, always a highway” will usually apply. It is possible to divert a public right of way (if proper grounds are established) but they can be a serious burden, both in terms of safeguarding/security and potential development.

Any existing public rights of way should be recorded on the local authority’s definitive maps and it is important that all schools ensure they have up-to-date information regarding these.

An individual (rather than the general public) can personally establish a right of way over your site if that use has been continuous for at least 20 years and without the school’s consent – these rights normally arise where a neighbour uses a part of the school site to access their own property or erects gate from their property into the school site (normally playing fields).

What should you do?
  1. Check your records match the local authority definitive maps for public rights of way – if rights of way exist consider whether these should be diverted (if for example they are posing a significant safeguarding risk)
  2. If an individual has a right of way, consider entering into a personal license with them to regulate their use of the land (the license should be reviewed annually and can incorporate bespoke terms of use e.g. areas which can be used, hours of use, requirement to carry a pass, etc.)
  3. Consider blocking off any routes which might be problematic to the running of the school site (be aware that you can not block an established right of way)
  4. Erect signage along all routes stating that the right is exercised with the school’s permission and that there is no intention to create any public or private rights of use
  5. If a route is not problematic but the school does not wish it to become permanent then the school can enter into an agreement with the local highways authority identifying the route as a “permissive footpath” (this allows ongoing use but on the basis that it can be withdrawn so no public right is created)
Do members of the public use your land?

If members of the public use your land for recreational activities such as picnics, walking or playing sports and have done so for at least 20 years without the schools consent, then it could be possible that for that land to be designated as a town or village green.

If land is designated as a “town or village green” then it is a criminal offence for the landowner to cause any damage to the land or to take any action that interrupts the use or enjoyment of the land for those recreational purposes. This effectively stops the land from being developed in the future.

Playing fields are often subject to applications for designation as a town or village green – in 2018 a playing field owned by Lancashire County Council was successfully designated as a town and village green when it was shown that the field had been used by the local community for picnics, dog walking and cycling. The Council had been planning to use part of the playing field for the extension to the school but this was stopped following the designation.

To protect your land from designation as a town or village green you can:

  • Deposit a statement with the relevant authority – submitting the statement brings any such use of the land to an end before the 20 year time frame
  • Erect signage around the land to confirm that any use of the land is with the school’s consent
  • Actively manage the land by asking third parties to leave the site, erect fences and lock the gates

If you need any help or assistance in reviewing any access rights or managing use of your land please do not hesitate to contact us.

The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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