The ‘Cut Off’ and The Definitive Map: Now More Definitive After 1 January 2031!

In the complex and controversial world of public rights of way, much uncertainty has surrounded the ‘cut-off’ for many years. Today Defra has announced that the ‘cut off’ will indeed be implemented, having previously notified of an intention to repeal the legislation:

“The Secretary of State has decided to commence the cut-off date instead of repealing it, and to press ahead with the full package of reforms as planned. In doing so, the Secretary of State is keen to promote responsible access, protect nature and support people who work and live in the countryside.

Commencing the cut-off date will maintain the original intention of CROW to bring certainty to all parties. However, in recognising that the reforms have experienced delays due to Covid, the Secretary of State has also decided to use existing powers in CROW to implement a full five-year extension to 1 January 2031, which will allow time for the reforms to take effect.”  

The implementation of this provision of the Countryside and Rights of Way Act 2000 (‘CROW’) will be to the relief of many landowners, bringing a certainty that they will not be faced with new public rights of way across their land on the basis of the historic existence of a route.

What is The ‘Cut Off’?

The Definitive Map is the legal record of where public rights of way exist. At present, claims that it needs modifying can be made on the grounds that it does not record alleged historic public rights of way. Claims made will often rely upon evidence deduced from a variety of sources including inclosure awards, railway, road and water schemes, highway orders and land valuation awards. The sum of the evidence is used to assert that land in private ownership is in fact public highway. Such claims are ultimately determined on whether an historic highway has been shown to exist ‘on a balance of probabilities’ after consideration of the evidence, often in front of an Inspector at a public inquiry. Where the case is proven, the route will be recorded on the Definitive Map and Statement as footpath, bridleway or restricted byway. 

Frustratingly for landowners, the condition of the land, its suitability on environmental or development grounds, a lack of physical evidence of any highway or the current public need for such a route, are not relevant considerations in the legal debate. The issue is not whether the route should be recorded as a public highway, but rather whether the evidence shows that it already has that status and so is to be added to the legal record. The fact that claims can blight land, and can appear at any time, led to CROW including a ‘cut off’ date for, broadly speaking, the addition of unrecorded public rights of way to the Definitive Map where the evidence of their existence was based wholly on the fact of their existence before 1949. 

The ‘cut off’ date for such historic claims given in CROW was 1 January 2026, although provision was included for it to be up to 1 January 2031. Regulations can also provide for some unrecorded routes to be ‘excepted’ from extinguishment, or ‘saved’ by transitional arrangements, perhaps in respect of routes for which claims have been made but not determined.

It is this legislation which has led to an increase in the number of volunteers and user groups trawling local and national databases in search of evidence for ‘missing’ or ‘lost’ routes and submitting claims to Councils for their addition to the legal record. It has resulted in longer lists of claims to determine at Councils, with some facing many years of backlog, and more landowners receiving notice of the making of a claim.

What’s New?

While CROW included the provision for the ‘cut off’, the legislation was not implemented, being a part of a larger package of changes to public rights of way legislation due to be brought in simultaneously. To the surprise of many, in February 2022 Defra announced that it had decided to repeal the cut-off. Today’s news is a reversal of last year’s announcement, with the intention now established to bring in the cut-off as originally intended in CROW – but using the extended date of 1 January 2031.

Pressure will now be on to complete work on the other public rights of way legislative changes also set out in CROW – including a right of application for a public path diversion and extinguishment order, especially needed in parts of the country where Councils will not accept applications from landowners, and provision for a claimed route to be varied by discussion between the Council and the landowners.

If you have any legal matters concerning Public Rights of Way, please contact Carol Ramsden, who is a representative of landowners to the national Stakeholders Working Group (chaired by Defra and where pending legislative changes are considered and debated by user group, local authority and landowner representatives), or another member of Birketts’ Public Rights of Way and Access to Land Team.