Public rights of way: Repeal of “The Cut-Off” for recording public footpaths and bridleways

On 26 December, when many were no doubt enjoying a post-Christmas walk, Defra announced the repeal of “the cut-off”.  A somewhat disappointing announcement for landowners but to understand the practical meaning and the impact requires a bit of a history lesson:

The story of recording public rights of way over private land is long and complex, reflecting the passion felt by those on both sides of the debate:  those members of the public wanting access to routes for recreation and travel can be at odds with those landowners and occupiers over whose land they wish to travel.  Back in 1949 the National Parks and Access to the Countryside Act started to formalise a public rights of way debate which continues today, by requiring surveying authorities – largely today’s county and unitary councils – to create a Definitive Map and Statement for most of England and Wales. 

The aim was to create the “definitive” legal record of where public rights of way existed and their status, with all the routes that were proven to exist accurately captured.  This would mean that only routes which had newly come into existence through qualifying use and dedication, or been affected by creation, diversion or extinguishment orders, would trigger modifications to the sealed completed legal record of the Definitive Map and Statement of public rights of way.

However, in practice identifying and recording routes became a long-term burden for the councils, with claims for unrecorded routes continually being made and outpacing the expert resource available to carry out the necessary investigative work. Investigating and deciding whether claimed routes should be added to the Definitive Map often leads to public inquiries and includes many years of uncertainty for affected landowners, blighting affected land. The land over which successful claims can be made is virtually unrestricted and can mean routes being claimed through private gardens, commercial premises or working farmyards. 

The Countryside and Rights of Way Act 2000 contained some important provisions for public access:  it is probably best known for creating a right of public access to ‘open countryside’, broadly defined as mountain, moor, heath and down, and registered common land. For landowners its provisions included “the cut-off” now being repealed, recognising that a closure date for the submission of missing routes was advantageous. Section 56 of the Act gave option dates of 1 January 2026 or 1 January 2031 for the ending of the submission of claims for unrecorded footpaths and bridleways to be added to the legal record. However, the cut-off date in the 2000 Act only applied to ‘historic’ routes, not those where existence could be proved by use of a route. More precisely still, the historic routes affected by the ‘cut-off’ were only those defined in the 2000 Act as ones which could be shown to exist on the basis of pre-1949 documentary evidence.

Unlike the right of public access to open countryside contained in the 2000 Act, the ‘cut-off’ provision was not implemented at the time, and a great deal of work has been carried out since 2000 by user groups and individuals to identify historic routes which may be affected by the provision. As a result of their work, many claims have been made and the lists of undetermined claims has grown longer as councils have struggled to carry out the important and complex work of establishing whether a claimed historic route does indeed exist.

To bring closure, the “cut-off” legislation finally came into force in England on 17 November 2023 with Defra opting for 1 January 2031 as the date for the extinguishment of unrecorded historic routes to take effect. Regulations were at that time being discussed by the Defra-managed expert Stakeholders Working Group, for exceptions and savings to the extinguishment. These regulations could have included, for example, a saving of claims which had been submitted but not determined – a major concern for users considering the long backlog of the work to be done by the councils.

What does repeal mean?

The decision not to implement the ‘cut off’ date after all but to repeal it when parliamentary time allows, means there is no longer pressure on claimants to submit evidence of missing routes by 1 January 2031. However, given that there has been since 1949, and especially since 2000, enthusiastic submission of claims for historic routes perhaps there are not too many more to be found and the benefit to users is small in practice? The impact is perhaps less the saving of further routes, but rather the removal of an end date on which councils would have been able to identify the size of the task they had to complete? 

For landowners, there now continues the risk that a claim could arise anywhere and at any time on their land. The current use of the land, its suitability for public access and the need for a further route are not relevant considerations when a claim for a missing route is being determined. Dealing with claims can be time consuming and expensive for landowners, with even small properties and modest gardens potentially being affected. While there may not be many more unrecorded historic routes to be found, the lack of certainty for landowners remains a real issue. 

What’s next?

Landowners may also be concerned that Defra’s announcement could indicate an unwillingness to proceed with other outstanding provisions in the 2000 Act, and in the Deregulation Act 2015. These provisions are all part of a package agreed by users, councils and landowners representatives. They include a right of application for a public path diversion and extinguishment order and other smaller but still important changes to rights of way legislation:

• Revision to the tests for claimed routes
• Agreement between landowners and councils to divert claimed routes
• Council power to dismiss ‘irrelevant’ objections to orders
• Removal of the need for expensive press advertisements
• Power to authorise gates on Restricted Byways to control livestock

It will be interesting to see how Defra proceeds with the remainer of the package and how the previous agreements reached by members of the Stakeholders Working Group will be taken into account.