A Proper Footpath for Tor Lane

Reason for dedication.

Yellow Tor Lane has been obstructed by the erection of a fence across the way.

After 20 years use of ‘public use by right’ (that is: not secretly, not by force and not by permission) dedication as a public right of way (PRoW) can be presumed.

Presumed dedication. The legal principles about presumed dedication go back several centuries, and form part of what is known as common law. But because it was not always clear or easy to apply, Parliament passed new rules, now in section 31 of the Highways Act 1980. However the common law rules still also apply.

Under section 31 of the Highways Act 1980.
To establish that a way has become a right of way by means of presumed dedication it is necessary to show that there has been uninterrupted use as of right by the public (not necessarily the same people all the time) over a period of 20 years.

The period of 20 years is counted back from the date on which the public's right was first brought into question, for example through the erection of a fence or locking of a gate across the way, however long ago that date was.

At Common Law
Dedication may also be presumed to have taken place at common law. Again use must be made as of right, by the public, but the period of use is not fixed and, depending on the facts, can range from a few years to several decades. The burden of proof is on the person claiming the right to show that the owner of the land intended to dedicate a public right of way.

HA 1980 s31 Definitive Map Modification Orders are about whether rights already exist, and should therefore be recorded on the Definitive Map and Statement. HA 1980 s31 DMMO are not about whether PRoW should be created or taken away. The suitability of a way for users who have a right to use it, or the nuisance that they are alleged to cause, or to be likely to cause, are therefore irrelevant.

NERC Act 2006
Following changes made by the Natural Environment and Rural Communities Act in 2006, it is no longer possible to acquire a right of way for mechanically-propelled vehicles by presumed dedication.

(Above is from: Natural England ‘A guide to definitive maps and changes to public rights – 2008 revision’)

Now that the way along Yellow Tor Lane has been ‘brought into question’, and as there is evidence of 20 or more years of public use on foot: on the balance of probability, public rights subsist or can be reasonably alleged to subsist along Yellow Tor Lane.

Saltash Town Council could and should apply for a Modification Order to add to the Definitive Map and Statement of Public Rights of Way a public footpath: from Fairmead Road westward along Yellow Tor Lane to a point 25 metres east of Spire Hill Park;

From the point 25 metres east of Spire Hill Park, in a westerly direction, Yellow Tor Lane already has the status of unclassified road. Unclassified roads are not recorded on the Definitive Map and Statement of Public Rights of Way: they should, however, be recorded in the ‘List of Streets’.