Update, 17 February: Yesterday, Defra announced that the implementation of the cut-off date for the addition of unrecorded historic public rights of way to Definitive Maps and Statements will not go ahead.
Speaking to the Institute of Public Rights of Way and Access Management (IPROW), Defra stated:
“The rights of way reforms package has been underway for many years and whilst much progress has been made for which we are grateful to the Stakeholder Working Group and others, the legislation required to implement these reform measures is not yet ready to be laid and considerable work remains to complete this work. Defra has therefore decided on a pragmatic approach to take the package forward. We have decided to progress the Right to Apply and Cost Recovery Statutory Instruments only and to repeal the 2026 cut-off date. We feel that this strikes some balance across stakeholder concerns and interests, while recognising that it doesn’t deliver on all the benefits originally envisaged
We remain committed to seeking to make improvements to rights of way processes and procedures where possible and appropriate to do so and would welcome your continued advice and support with this endeavour.”
More detail is expected shortly. This will be very unwelcome news for landowners, as it leaves them still vulnerable to the recording of public rights of way over their land based on the historic existence of routes, despite a lack of any current public need or use for a route and without reference to the condition of the land or environmental impact.
However, the retention of the Right to Apply and a commitment to putting it into practice is to be warmly welcomed by landowners. This will put in place a right for a landowner to apply for a public path diversion or extinguishment order. Councils will no longer be able to say that they do not deal with landowner-led applications or that the waiting list is closed. Applicants will be entitled to an answer as to whether an order will be made within four months of submitting an application, and will be able to appeal to the Secretary of State if there is non-determination. The criteria for achieving changes are not changed by the legislation and the procedure will still be lengthy if an order is made and formally opposed. Councils will also have new cost recovery powers. This will inevitably make an application more expensive, but should provide the resource for councils to be able to deal with applications within the required timescale.
Other changes that were also due to be implemented at the same time as the Cut Off are also to be considered for retention – if it is possible for them to be progressed independently. There will be much more information to come shortly.
Original article, 10 February: Public rights of way are recorded on sealed legal documents known as the Definitive Map and Definitive Statement. These are produced by surveying authorities, usually a county or unitary council. In an ideal world these documents would be an accurate and complete record of where the public has a right to pass along footpaths, bridleways, restricted byways and byways open to all traffic.
The base map on which the routes are recorded would be modern, accurate and of a large scale, leaving no room for ‘interpretation’ of where a route runs. All of the recorded routes would exist only at the status marked and in the location shown. There would be no anomalies, such as a footpath turning into a bridleway at a parish boundary. The Definitive Statement would describe the route accurately with reference to modern physical features, give clear details of the width, contain details of any limitations, such as gates, and list any conditions on the public’s right of way. Most importantly for landowners, if a route was not shown it would not, and could not, exist. In such circumstances, the Definitive Map and Statement would indeed be worthy of the name “definitive”.
We are a long way from that scenario, for a variety of reasons:
- A sealed Definitive Map and/or Statement is yet to be produced for some parts of the country, despite the major requirement to produce these documents being contained in the National Parks and Access to the Countryside Act 1949.
- The quality of many sealed records are poor, with Definitive Maps relying on 1950s and 1960s small-scale base mapping, with hand drawn lines depicting routes. Definitive Statements are often still taken from the surveys carried out by parish councils in the 1950s – and they were of very varying quality then.
- The creation of online versions of the Definitive Map has provided a useful way to make data accessible to all, but digital mapping and the use of aerial photography overlays also means new problems are identified, for example where routes are recorded through ancient buildings which existed a long time before the legal record was established.
- Council resources are limited and this work is very skilled. Given that every modification to the legal record affects the balance between public and private rights to land, changes are rightly only made after a lengthy and complex procedure involving investigation, analysis and perhaps a decision at public inquiry.
However, putting all the above to one side as being, in theory at least, solvable over time and with sufficient resource, there is also legal provision by which the Definitive Map and Statement can continue to evolve and so never be definitive.
Firstly, the Highways Act 1980 provides for new public rights of way to come into existence as a result of informal use by the public. Such use has to be over a sufficient period of time and of a qualifying nature: use without force, secrecy or permission. Claims that a public right of way has come into existence through use are not uncommon and the landowner has to show sufficient lack of ability, or lack of intention, to dedicate the route, to stop it being added to the Definitive Map or Statement. To prevent public rights being established by long use a landowner needs both to be vigilant in controlling actual public access and to take advantage of the procedures available for establishing that there is no intention to dedicate any new public rights of way. In this way this type of ‘evolution’ of the Definitive Map can be prevented.
A second legal basis which can give rise to unrecorded routes be adding to the Definitive Map is not so easily managed by the landowner. It can be summed up with the phrase “once a highway, always a highway”, already considered “an established maxim” by a judge in the 1860s case, Dawes Hawkins  8CB (NS) 848, 141 ER 1399. Today it continues to be shorthand for ‘if it can be established that land was in the past the public highway and there has been no legal event to remove this status, it is still public highway’.
Claims to record alleged historic public rights of way will often rely upon evidence deduced from a variety of sources including enclosure 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 should be included on the legal record.
It is challenging for a landowner to defeat such claims, there being no clear protection that can be put in place in anticipation that a claim may be made. The best a landowner can do is maintain good estate records, especially of any past legal events affecting the land (such as old Quarter Sessions extinguishment orders) and seek expert advice to challenge the weight that should be attached to each piece of evidence during the determination process.
The fact that such historic claims can blight land, and can appear at any time, led to the Countryside and Rights of Way Act 2000 (CRoW Act) including a ‘cut-off’ date for, broadly speaking, the addition of unrecorded public rights of way to the Definitive Map and Statement, where the evidence of the existence of routes was based wholly on the fact of their existence before 1949. This provision would prevent ‘ancient’ highways being discovered and would be a large step forwards in the Definitive Map and Statement becoming definitive. The ‘cut-off’ date given in the legislation is 1 January 2026, although it can be altered by regulation 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. There is obviously little a landowner can do to prevent this, although there is no obligation to provide any information, assistance or access to private land if approached directly by a researcher.
At present the ‘cut-off’ date of 1 January 2026 is not secured. The relevant section of the CRoW Act has yet to be implemented and it is one of a number of changes to public rights of way legislation which were always intended to be implemented at the same time. The delay has come from the need for a lot of detail to be in place and a lack of parliamentary time to deal with new regulations. As the date approaches there is no certainty that it will be implemented. Probably the most positive step landowners can take to deal with claims based on the ‘once a highway, always a highway’ principle is to lobby for its implementation, most effectively done via the local MP.
Finally, remembering that the Definitive Map and Statement are not definitive is good advice to any landowner. While the documents are considered to be conclusive evidence of what they do show, they can be challenged if new and cogent evidence exists that routes are recorded in error. It is not an easy task to undertake, but achieving the removal of a wrongly-recorded route would of course be another way in which the Definitive Map and Statement could be considered to be more a definitive record of public rights of way.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at February 2022.