Stop new rights of way with a deposited statement
Twenty years of unchallenged public use creates a right of way. A landowner statement and declaration under section 31(6) of the Highways Act 1980 is the documentary answer.
A landowner deposit statement is the least expensive piece of estate management most property owners never do. Under section 31(6) of the Highways Act 1980 you can deposit a map and statement with the council admitting which ways over your land, if any, are public highways, and follow it with a statutory declaration that no further way has been dedicated since. That deposit is evidence that you have no intention to dedicate new public rights, and it stops the twenty year clock that would otherwise run against you.
For anyone holding land for future development, this matters more than it sounds. A path across a yard, a shortcut round the back of a parade of shops, a route through a car park to the station: twenty years of that, unchallenged, and the public has a right you cannot build over.
How a right of way arises by presumed dedication
Section 31(1) sets the test. Where a way over land has been actually enjoyed by the public as of right and without interruption for a full period of twenty years, the way is deemed to have been dedicated as a highway, unless there is sufficient evidence that there was no intention during that period to dedicate it.
Take the phrases apart, because each one is a defence.
"As of right" means openly, without force and without permission. Users who have permission are not using as of right, which is why a permissive path with signage and a licence is a different animal from a claimed right of way. "Without interruption" means the use has not been physically stopped. And the twenty years is counted back from the date the right is brought into question, which is usually the date of a challenge: a locked gate, a new fence, a notice, or an application to record the route on the definitive map.
Separately from the statute, common law dedication can be argued on any period of use where the owner's conduct implies dedication. A deposit helps against both, because both turn on the owner's intention.
Depositing a statement and map
The procedure is administrative and the forms are prescribed by regulations.
- Prepare a map of the land at a suitable scale, marking the boundaries of your ownership and every way over it that you admit is already a public highway.
- Complete the prescribed form of statement, which in England is the landowner statement form made under the regulations, and identify your interest in the land.
- Lodge it with the surveying authority, meaning the county council or unitary authority responsible for the definitive map.
- Lodge a statutory declaration, within the period the Act allows, declaring that no additional way has been dedicated since the date of the statement.
- Diarise the renewal. Under the current provisions the follow-up declaration interval in England runs to twenty years, extended from ten years by the Growth and Infrastructure Act 2013, so check the current wording of section 31(6) and set the reminder from that.
Councils charge for processing a deposit in most areas, and the fee is trivial against the cost of a rights of way dispute. Keep the stamped copy and the receipt with the title documents rather than in a project file that disappears when the site changes hands internally.
The register and why it is useful to others
Section 31A requires each surveying authority to keep a register of deposits and declarations, available for public inspection and published online. The register was introduced so that anyone can see whether an owner has taken the step, and it is one of the first places a rights of way officer looks.
Two practical uses beyond your own land. It tells you, as a purchaser, whether a seller has protected the land. And it tells you whether neighbouring owners have, which helps when working out where users of a path have actually come from.
| Measure | What it does | What it does not do |
|---|---|---|
| Section 31(6) deposit and declaration | Negatives the intention to dedicate from the date of the declaration | Extinguish rights already acquired |
| Notice visible to users denying a right of way | Evidence of no intention to dedicate | Work if removed or not maintained |
| Physical closure for a period | Interrupts the twenty year use | Help where access continues elsewhere |
| Permissive path agreement | Makes use permissive rather than as of right | Protect land where users ignore the terms |
Evidence value in a later claim
Applications to record a route come as definitive map modification order applications under the wildlife and countryside legislation, supported by user evidence forms from people who say they have walked the route for decades. The council investigates, and the decision can be appealed, with orders confirmed through the Planning Inspectorate where objections are made.
In that process a deposit is documentary evidence from the landowner, made before the dispute, saying that no dedication was intended. It is far stronger than a witness statement made after a claim arrives, because it cannot be characterised as self-serving reconstruction. It is not conclusive: the Act says it is sufficient evidence to negative intention unless there is proof of a contrary intention, so conduct inconsistent with the deposit will be held against you.
What undermines a deposit is behaviour. Handing out keys, waving people through, maintaining the route as a path and advertising it as a walking link all suggest dedication whatever the paperwork says.
Signs, gates and other measures alongside a deposit
The Act treats a notice inconsistent with dedication, erected and maintained so that it is visible to users, as evidence that there is no intention to dedicate. Wording matters less than visibility and maintenance. A sign behind a hedge, or one that was there in 2014 and has since fallen over, does nothing.
Build a routine:
- Notices at each entry point, in plain wording, photographed with a date each year.
- Periodic closure where it is safe and practical, recorded with photographs.
- Written challenge to regular users, kept on file.
- A permissive access licence where you want to allow use on terms, with an annual review.
- Inspection notes kept with the estate records, not on somebody's phone.
None of this is hostile. A landowner can allow access and still protect the position, which is the point of a permissive arrangement.
The parallel risk of village green registration
Rights of way are not the only twenty year problem. Land used by local inhabitants for lawful sports and pastimes as of right for twenty years can be registered as a town or village green under the commons legislation, which is a far worse outcome than a footpath because it affects the whole area rather than a line across it.
The commons legislation contains its own landowner statement procedure, which brings a period of recreational use to an end for these purposes, and it provides that certain trigger events, including the grant of planning permission, exclude a green application. Deposit under both regimes at the same time. The map work is already done and the second deposit costs almost nothing extra.
Where land is being promoted for development, the recreational use question will come up again in the application, and an Open Space Assessment is where that evidence usually sits.
Due diligence before acquisition
Run these five checks on any site with open land, a yard or a route people could use.
- Inspect the definitive map and statement for recorded routes, and ask for the council's list of pending modification order applications.
- Search the section 31A register for deposits by the current and previous owners.
- Search the register of town and village greens, and any pending applications.
- Walk the site at the weekend and look for desire lines, worn grass, informal gaps in fences and dog bins nobody installed.
- Ask the seller directly what access has been permitted and on what basis, and get the answer in writing.
If the site has an unprotected route in use, price the risk and deposit immediately on completion. A deposit made on day one of your ownership is worth more than a year of correspondence later. And where a route is already recorded, plan around it: diversions under the planning and highways legislation are possible but slow, and they are best started long before a start on site. Our note on constraints that lapse or are revoked covers which other layers to recheck at the same time, and the case for the scheme itself belongs in the Planning Statement.
One honest uncertainty: the statutory cut-off date for recording historic rights of way based on pre-1949 evidence has been the subject of announced changes, so check the current position rather than relying on a date you remember.
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This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
How long does public use have to run before a right arises?
Twenty years of actual enjoyment by the public as of right and without interruption, counted back from the date the right is brought into question. That date is usually a challenge by the owner or an application to record the route. Common law dedication can also be argued on other periods of use.
What does a section 31(6) deposit actually do?
It is evidence that you have no intention to dedicate new public rights of way, from the date of the declaration onwards. It does not extinguish rights already acquired, and it can be outweighed by proof of a contrary intention, so conduct inconsistent with the deposit will count against you.
How often does the declaration need renewing?
Under the current provisions the interval for a follow-up declaration in England runs to twenty years, extended from ten by the Growth and Infrastructure Act 2013. Check the current wording of section 31(6) and set a diary reminder accordingly, keeping the stamped copy with the title documents.
Are signs enough on their own?
A notice inconsistent with dedication, erected and maintained so it is visible to users, is evidence of no intention to dedicate. The weakness is maintenance: a sign hidden behind a hedge or one that fell over years ago does nothing. Photograph each notice annually and keep the record with the estate papers.
Can I allow access without creating a right?
Yes, through a permissive arrangement on stated terms with an annual review, because use with permission is not use as of right. Combine it with a deposit, and avoid conduct that suggests dedication, such as maintaining the route as a public path or advertising it as a walking link.
Should I also deposit under the commons legislation?
Yes, if the land could be used for recreation. Land used by local inhabitants for lawful sports and pastimes as of right for twenty years can be registered as a town or village green, which affects the whole area rather than a line across it. The commons legislation has its own landowner statement procedure.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.