Local authorities have legal powers which enable them to create highways — roads, paths and tracks which the public at large are entitled to use, in order to pass to and fro.
But it has long been the case that highways can be created by use over a period of time. Please see our Highway law page for a fuller explanation. The law on this subject it is complicated. But it has always been the case that anyone claiming that a highway has been created in this way has the duty of proving it. Proving it means providing evidence that the public have used the “way” in question for 20 years, “as of right”.
The High Court
A recent case has re-affirmed the law on this point: see DPP v Instone  EWHC 1840 (Admin). The judgment can be found on the invaluable BAILII website here. This was a case of “disruptive trespass” by a group of protesters, contrary to to s.68(1) of the Criminal Justice and Public Order Act 1994. The protest took place in the entrance to a factory, set back from the main road so as to allow lorries to turn in. The offence does not apply to protests in the highway. So the defendants argued that the entrance to the factory, although it was private land, had become part of the highway on the basis that members of the public were free to walk across it. This argument was excepted by the relevant magistrates’ court.
On appea by the prosecution, the High Court rejected the argument. There was no evidence of actual use by the public, for 20 years or more, in crossing the entrance to the factory. Therefore, the presumption that the entrance had been dedicated to the public as the highway did not arise. Acordingly, the High Court returned the case to the magistrates’ court, to continue the hearing.
In short, merely asserting that a highway has been created by use over time will not do. There has to be evidence. That may be difficult: 20 years is a long time. But if evidence cannot be produced of the necessary public use, the question of dedication of a highway to the public does not arise.