For many, getting out and about in the countryside is one of life’s great pleasures and the majority of landowners have some form of right of way over their land giving access to the public.

The issues tend to arise when people stray from these designated routes and no action is taken by the landowner to try to stop this unauthorised use. Where it can be proved that an unauthorised route has been used for 20+ years, an application can be made for it to become a public right of way.

There has been a rush of claims since the Government announced a cut-off date of 1 January 2026 for recording routes that were in existence before public records began in 1949. Landowners can do little to prevent historic rights of way being registered but they can act to protect themselves from any new ones being granted by making a statutory declaration.

The relatively simple process falls under S 31(6) of the Highways Act 1980 and involves the submission – known as a deposit – of an application form, which incorporates a map, statement and declaration, and a fee to the appropriate local authority. The map must show ownership boundaries with all known existing rights of way (if any) marked in different colours. It is up to the applicant to ensure accuracy.

Once the deposit has been made a further declaration must be made within 20 years to confirm that the original deposit is still correct, or to provide details of any changes.

One point that’s often forgotten is that any change in land ownership, including within the family or moving the land into a trust, will trigger the requirement for the deposit of a new statutory declaration. It is also important to note that this process does not prevent retrospective claims but it will stop any new applications being made from the date of the deposit.

Preventing unauthorised access is not straightforward though putting up ‘private’ signs may help. In the case of Winterburn & Anor v Bennett & Anor [2016], which involved the use of private parking signs, Lord Justice Richards considered that where an owner has installed clearly viewed signs to make the position known, it cannot be said the unauthorised use of the land is 'as of right'. 

It was concluded that putting up and keeping in good order an appropriate sign is a simple and relatively inexpensive way to show that the land is private property. While this case is not directly related to rights of way, the principle is similar.

Landowners do need to adopt a proactive approach in preventing unauthorised access across their land. Signage and lodging a S 31(6) deposit, especially where it is known that people stray from designated routes, will help clarify the way ahead.

Further information

Read more: In plain English: Rights of way in England and Wales