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HOW PRIVATE FARM OR ESTATE ROADS BECOME SEMI-PUBLIC
In the realm of land ownership, the responsibilities and liabilities associated with public access roads on private estates can be complex and often overlooked. As the boundaries between private property and public thoroughfares blur, James O’Connell, business law partner and head of the viticulture team at Sussex law firm Mayo Wynne Baxter, discusses the myriad of legal obligations farmers and other landowners might find themselves suddenly saddled with. Regular public access transforms private roads into a distinct category with its own set of rules and obligations. The Highways Act 1980 casts a wide net, encompassing offences applicable to both public highways and private roads open to the public. From nuisance to wilful damage, obstruction to failure to maintain, landowners bear a whole suite of responsibilities to maintain safety and order on these semi-private thoroughfares which they simply don’t have in respect of private roads. With public access comes heightened civil liability. Landowners are entrusted with the duty to ensure the safety of individuals traversing these roads, warranting greater care and diligence in maintenance
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Weeding out problems, encouraging growth. Providing peace of mind and bespoke, practical legal advice to generations of farming families. We undertake a wide range of work for farmers, rural landowners and businesses including: • • • • • • • • • • •
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MARCH 2024 | WWW.SOUTHEASTFARMER.NET
and management. Finally, dialogue with insurers becomes imperative to ensure public liability cover is still valid for these publicly-accessed roads: no more uninsured 15-year-olds driving farm machinery on those roads.
A MULTIFACETED APPROACH
The practical application of these laws is often nuanced, subject to interpretation and enforcement discretion. And while in an era of constrained resources proactive enforcement may be rare, the threat of accidents leading to an explosion of unexpected criminal and civil liability is a real possibility. In the event of a serious accident, landowners could find themselves facing criminal prosecution and civil claims, with insurers unwilling to foot the bill. With this in mind, preventative measures should be put in place. Start by identifying and classifying estate roads, putting up no-entry signs where necessary to indicate restricted access and mitigate trespassing risks. If a member of the public goes somewhere where it is clear they should not be, they become a trespasser, and you owe far fewer duties to trespassers. Review public access roads from a safety perspective, implementing signage and road markings to enhance public safety and ease liability risks. This will make it harder for someone to claim you were negligent in your obligation to take steps to protect their safety. If feasible, consider having a sign at the entrance to the estate setting out terms of access, as well as a note on your website pointing out there are access conditions. This will enable you to say people entered knowing there were restrictions regarding their liability. Introduce policies to mitigate the risks associated with unlicensed drivers and non-road legal vehicles on public access roads. If there is an accident with an unlicensed staff driver or a non-road legal vehicle, the question will be who, if anyone, was negligent and whether or not they drove in a dangerous, careless or reckless manner. The risk of being found negligent at least will be reduced if you can show you had thought about the potential problems in advance and had put in place reasonable measures to avoid the problem occurring. Have a procedure to record any accidents that do occur to protect yourself against any bogus claims. For trade visitors with whom you have contracts, consider adding a clause where you decline to accept responsibility for any damage occurring on your public access roads other than that mandated by law. Finally, engage in a detailed dialogue with insurers to ensure adequate coverage for public access roads, mitigating financial risks associated with potential liabilities.