New legislation has prompted county councils to undertake initiatives to put historic rights of way on what is known as the “definitive map”. You need to be aware of the steps to take should you discover that there are unwanted historic rights of way over your land.
Many public rights of way were created between 1750 and 1850, when appointed commissioners divided up (enclosed) and apportioned out manorial land. During this process, new legal rights to cross the land were also created. These included both public rights of way (highways) and private rights of way. This task was carried out by appointed commissioners, whose powers were bestowed under more than 5,000 Private Inclosure Acts and Inclosure Awards. Today, parts of these Acts and Awards are still legally binding, and consequently the rights of way granted under them are too.
Yet these historic rights of way may not appear on the register of public rights of way held by county councils, known as the definitive map. This was created in 1947 and is legally conclusive for those rights of way which are shown. However, rights of way created before 1947 may not be registered on it, even though the public has a legal right to use them. This means that even the landowner may not know they exist. Consequently, the Inclosure Acts and Awards are very important evidentially when investigating historic public rights of way, since they may prove whether the rights remain valid.
In an effort to restore some clarity to the situation, legislation has been passed setting out a deadline for the registration of all historic public rights of way, after which unregistered rights will be extinguished altogether. This date is 1 January 2026, although the Government may extend this to 2031. Consequently, many county councils have embarked upon projects to restore and register historic public rights of way.
But how can landowners protect themselves if they do not wish rights of way to be registered?
The landowner should find out whether the original award was valid by looking at the enacting legislation. The General Inclosure Act 1801 set out the common process to govern the enclosure of land. Section 8(i) of the 1801 Act gave the appointed commissioners the express power to set out and appoint public highways, but with a minimum width of 30 feet. In the case of R v Secretary of State for the Environment from 1805 a four feet wide public footpath was awarded. However, the court said that this was done ultra vires (invalidly), as the 1801 Act clearly states that a public highway awarded under the Act must be at least 30 feet wide. Many awards were made by commissioners between 1801 and 1845 for footpaths of a similar width. The above case law suggests they are invalid and consequently county councils cannot rely on them now.
However, if the right of way has been used as such for 20 years, there may be presumed dedication, even if the award was made ultra vires. Alternatively, a valid award may have originally been made for a highway at least 30 feet wide. The council may argue that an existing route was once part of this wider highway, and this means it would be capable of registration, although in practice this is fairly uncommon.
Challenge by the landowner
Before a route can be registered as a public right of way, a Definitive Map Modification Order must be made under the Wildlife and Countryside Act 1981. Anyone, including the landowner, can object to a path once this order is made. The Planning Inspectorate will then decide whether to allow the Definitive Map Modification Order. It will consider objections and existing rights, as well as whether the council has provided enough evidence to show that the right of way exists and should appear on the definitive map. However, it will not consider the suitability of a right of way.
Finally, should the highway be registered, an application can be made for the “stopping up or diversion” of footpaths and highways under section 118 Highways Act 1980. The council must make the application, but orders can be made at the landowner’s request. Applications are assessed using two tests: whether there is a continuing need for the footpath or highway, and the effect of extinguishment on the land served by the path. Consequently, suitability does become an issue (although in practice many applications are thwarted by representations from members of the public attesting to the need of the disputed footpath or highway).
So all is not lost if a landowner receives a letter from the county council informing him that the council intends to register an historic right of way. Further legal advice should be sought.