The Country Land and Business Association’s report on rights of way, The Right Way Forward (February 2012) highlighted a number of concerns which landowners have with the current rights of way system.
Chief among these, perhaps, is their concern over “lost highways”, which is neatly summarised in the following extract from the report: “It is wholly wrong, and defies all sense of propriety and logic, that paths which have been unused for decades, centuries or even at all, can be ‘discovered’ out of the blue and opened up across land … when there has been no use within living memory and there is no evidence of a path on the ground.”
To understand how such highways can suddenly “appear” requires an appreciation, first, of the legal maxim “once a highway, always a highway” and, second, of the limitations of the Definitive Map and Statement (the official record of public rights of way).
As a preliminary point, however, a claim, based on historical evidence, that a highway exists along a particular route should be distinguished from a claim that a right of way has been created through twenty-years use by the public (although, for the landowner, either claim can seem to appear from nowhere).
“Once a highway, always a highway”
The meaning of the legal maxim “once a highway, always a highway” is relatively straightforward: it means that a public right of way (such as a footpath) does not cease to exist if no-one uses it. “Mere disuse of a highway cannot deprive the public of their rights. Where there has once been a highway, no length of time during which it may not have been used would preclude the public from resuming the exercise of the right to use it if and when they think proper” (Harvey v Truro Rural District Council (1903) per Joyce J).
Because of this maxim, a highway can be shown to exist, not on the basis of recent use, but on historical evidence, e.g. old maps, guidebooks, journals. The difficulty for a landowner is that there is no way to prevent a “lost” highway from being rediscovered, even though the existence of the highway may be universally unappreciated until the relevant evidence is assembled by the claimant.
The difficulty is particularly pronounced for purchasers as, of course, these “dormant” highways will not be recorded against the vendor’s title and no purchaser is likely to carry out detailed historical research regarding the existence or otherwise of public rights across the land. At best, a purchaser will make detailed inquiries of the vendor regarding his knowledge of the existence, or indeed the alleged existence, of any such rights.
Recognising this difficulty, the Wildlife and Countryside Act 2000, s.53 was enacted to provide for a “cut off” date of 1 January 2026: any public rights of way claimed solely on the basis of documentary evidence dating from prior to 1 January 1949 were to be extinguished. However, s.53 is not yet in force and, in any event, would not assist landowners until 2026.
“Definitive” doesn’t mean “complete”
The Definitive Map and Statement is not a complete record of all public rights of way – it is not “definitive” in that sense. Rather, it is definitive evidence of the status of the ways which it shows and describes, i.e. a right of way which is shown on the Definitive Map and Statement is a public right of way. Therefore, the fact a claimed route is not shown on the Definitive Map and Statement does not mean that the route is not a public right of way.
Local authorities are the custodians of the Definitive Map and Statement. Each local authority has a duty to keep the Definitive Map and Statement under review and must modify it (i.e. by adding, diverting, re-classifying or removing rights of way) as required to reflect any new evidence which comes to its attention regarding rights of way within its area.
This allows an applicant to make repeated claims for the existence of a highway, submitting more and more historical evidence, until they are successful. The local authority has a duty to consider whether the new evidence submitted is relevant and, if it is, to investigate the matter.
Moreover, a local authority will not reject a claim based on historic evidence simply because that evidence was, in part, available at the time the Definitive Map and Statement was created. Indeed, it need not do so even if the landowner demonstrates that the evidence was partly considered, and rejected, in the course of preparing the Definitive Map and Statement.
Because of the maxim “once a highway, always a highway”, if the local authority concludes, on the totality of the evidence now before it, that a highway existed, then it is irrelevant that the local authority previously considered that no highway existed.
Defeating a claim
A claim based on historical evidence that a highway exists can only be effectively opposed following careful analysis of the evidence submitted and by carrying out further research to ascertain the true nature of the route as it existed over time.
Further research may show, for example, that the use of the way was permissive (e.g. it was used only to get to a private residence) or customary (e.g. a churchway) such that no public rights existed over it. Or evidence may be found to show that the highway has already been stopped up, e.g. by court order, under emergency powers during World War II, or under railway or works legislation.
It is in the landowner’s best interest to oppose the claim as comprehensively as possible, to prevent any later claim based on further, newly discovered, evidence. The landowner’s aim should be not merely to defeat the current claim, but to address the matter so thoroughly that, following determination of the claim, any further potential claim is “weeded out” by the local authority.