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Property owners beware! A finding of a public right of way in your garden

Mr and Mrs Scott have lived in their property in Norfolk for 25 years. Until 2013, they were unaware of any claims that a public right of way ran through their property. It was first raised by another villager at a local parish meeting who mentioned the historic right of way.

Following this meeting and having checked its records, Norfolk County Council applied to the government’s Planning Inspectorate (which adjudicates on planning disputes) to commence an inquiry about the status of the path running through Mr and Mrs Scott’s property claiming it was a “byway open to all traffic” (a “BOAT”). A BOAT being a highway along which the public has a right of way for vehicular and all other kinds of traffic. The property owners denied this and said there had never been a public footpath or roadway/BOAT passing through their property.

The inspector at the inquiry was ultimately persuaded by historical papers and witness evidence about past usage, that the order route had been established as a public right of way on foot (a pathway) long before the date Mr and Mrs Scott purchased the property. There was no finding of a BOAT.

This means the couple face the prospect of ramblers and dog walkers passing through their land. However, Mr and Mrs Scott have announced their intention to object against the decision, posting a notice in the local parish magazine reminding villagers their property remains “strictly private”.

A finding of a public right of way has implications for the property owner, including being required to keep the route visible and to not obstruct (i.e. no permanent or temporary fences, walls, gates etc.) or endanger users. Obstructing a public right of way is a criminal offence and the highway authority has the right to demand you remove the obstruction and recover the cost from you.

Our Property Disputes team is highly experienced in advising landowners about their property rights relating to claims for public rights of way. When it comes to boundaries, rights of way and easements, the law can be difficult to navigate. On occasions, there can be ancient rights of way or laws involved which can affect your ability to use your land which you may not have been aware of when you purchased the property. If you have a similar property dispute, please get in touch.


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