Private property. Public access
"One thing is clear, it is harder to successfully submit a spurious Town or Village Green application purely as a block or stall of development, but some would argue that it did not go far enough."
The Growth and Infrastructure Act
Much has been reported about the change in legislation which can help protect land against registration as a Town or Village Green as a method to prevent development. Indeed, we reported last August on the subject. One thing is clear, it is harder to successfully submit a spurious Town or Village Green application purely as a block or stall of development, but some would argue that it did not go far enough. The changes that will affect the majority of landowners, are the changes to the protection against right of way claims.
Rights of way
One of the lesser reported changes brought about by the Growth and Infrastructure Act are the changes to the application process for submitting “Section 31 (6) Statements” declaring “intention not to create rights of way over land”. The new CA16 statements can be submitted to protect against establishment of public rights of way as well as more general access rights such as a Town or Village Green. Local Authorities now have a right to charge to receive these and the charges vary between authorities, but are typically in the region of £200-£300 per application. Some authorities require separate applications for different areas of land, incurring additional fees.
Is it worth doing?
The existence of public rights of way can affect privacy, security and of course capital value. The process for claiming a right of way can take many years to complete or to defeat. Regardless of whether an application is legitimate or is likely to succeed, the process is drawn out and can be costly to defend. The ability to limit the potential for such an application should not be overlooked. Precautions such as erecting signage and locking gates can all help prevent unauthorised access but where access is a potential problem, it is worth submitting a statement.
Are there any drawbacks?
The new submission process requires the landowner to erect notices at entry points to land, similar to those erected for planning applications. Publicity of the notice can also include notices in local press. For some landowners, drawing attention in this way is undesirable where they wish to maintain a low profile. Posting publicity notices could in some circumstances trigger a claim for rights of way or an application for a Village Green. It might also be seen as a provocative act by a landowner and damaging to community relations.
Do I submit?
Where land very clearly is not at risk of unauthorised access, a decision might reasonably be made not to go through the process; especially where publicity is undesirable or a submission might be seen as antagonistic. Alternatively, it is entirely possible to allow controlled access through specific permission, signage, which can protect ownership control but also maintain local PR. Nonetheless, the protection of asset value must be a priority and the costs of submitting a CA16 declaration could be small in relation to the potential diminution of value caused by a claim for public rights of way. If in doubt, whilst the process has it’s drawbacks, submission of a declaration provides an increased level of protection against a claim.