Agriculture update: rights of way, ramblers and landowners

Definitive map and statement

The definitive map and the statement together form the legal record of where the public is entitled to ‘pass and repass’ along public rights of way across private land. They are conclusive evidence of the existence of a public right of way – and of its status and location. Unfortunately they are not the easiest tools for anybody to work with, for the following reasons:

Legislative difficulties: in spite of the nomenclature, the definitive map is not definitive. The legislation acknowledges that other public rights of way may exist and be unrecorded, that routes may be recorded in error or that the alignment or status of a route is in need of modification.

Section 56 of the Countryside and Rights of Way Act 2000 (CROW) provides for the definitive map to be closed to claims for the addition of unrecorded routes which existed before 1949. The closure date is stated to be ?1 January 2026, widely known as the ‘cut off’. However, Defra has not yet implemented this provision; it is currently considering the recommendations of a stakeholder working group that the cut-off date ought to be implemented only once there is effective statutory protection for “useful or potentially useful routes” which are not already on the definitive map and statement.

However, even full implementation of the cut-off will not create a truly definitive map: it will still be possible for claims to be made that new routes have come into existence as a result of informal qualifying use in line with the provisions of section 31 of the Highways Act, as explained below.

Mapping difficulties: the map is often at a scale of 1:10,000 (one centimetre representing 100 metres on the ground) with hand-drawn lines showing routes, making it demanding to interpret. Thus a magnifying glass is a useful addition to the toolkit, but even with this it is not possible to obtain the precision sometimes required.

The hand-drawn lines are often overlaid on old Ordnance Survey base mapping, perhaps also from the 1960s when the map was first sealed. The landscape may be very different today, making it impossible to interpret where a route runs in areas with new roads and significant development, as well as larger fields and changes of land use. The digital maps available online address this problem by using modern base mapping – but thereby can throw up a host of new problems when the old hand-drawn line does not sit logically on a base map produced using modern surveying techniques.

The definitive statement is often a faithful reproduction of the words used by the local parish council when it surveyed the routes for the production of the first definitive maps and statements in the 1950s and 60s. Hence there is great variety in the quality and quantity of description of where a route runs. Some are frustratingly uninformative: “Footpath 1: goes from Footpath 2 to the Parish Boundary.” Some go into great detail, referring to local features that existed at the time, although paths described as running by hedges and ditches removed many years ago are a challenge in themselves. Some helpfully list stiles, gates and information about surfaces. There may also be useful specific information about widths, but, while the statement that gave a route a width of four inches may be amusing to contemplate in use, “ordinary FP width” is just frustratingly unhelpful for everyone.

The local county council rights of way department will be able to supply extracts for the local area for a fee. Some will direct enquirers to online versions.

OS explorer map series

This series of mapping is produced at a scale of 1:25,000 (four centimetres representing one kilometre on the ground) and is intended primarily as a tool for recreational walkers, horseriders and cyclists. It shows public rights of way and public access land and is likely to be the one that visitors to the countryside will be seen bent over looking for a route. The information on it is obtained from the definitive map and statement and councils are required to notify Ordnance Survey of changes. It is worth obtaining the local sheet and checking that it does match with the recorded routes.

Obviously the explorer map is only accurate on the day is it published and a landowner can make any subsequent changes clear on the ground by asking the council to supply plastic discs marked, for example, ‘official footpath diversion’ until a revised edition is published.

Noticeboards and padlocks

Section 31(1) of the Highways Act states that “where a way over any land… has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it”. The test of whether use is ‘as of right’ requires use to be without force, without secrecy and without permission (R v Oxfordshire County Council and Others, ex ?parte Sunningwell Parish Council [2000] ?1 AC 335).

The burden of preventing qualifying use of a route leading to its dedication as a public right of way therefore rests with the landowner. Section 31(3) of the Act provides the landowner with a tool to make clear the lack on intention to dedicate: notices can be erected to inform users that their use is inconsistent with the dedication of a public right of way. The actual wording of notices needs some care; for example, ‘Private road’ is likely to be insufficient to make clear the lack of intention to dedicate a footpath ?or bridleway.

The erection of notices in itself is also a tool to be used with care. It is most likely that a landowner will want to put a notice at a location where they are aware that informal use is already taking place. However, users may see the notice as a challenge to their right to use the path and be prompted to submit a claim that the route has already become a public right of way – the 20-year qualifying period being then counted back from the date of the erection of the notice. A landowner may therefore want to consider carefully what other evidence exists to support his contention that no right of way is dedicated before erecting a notice containing a statement to the contrary.

Similarly, while padlocking gates is a clear way to stop informal use, it also challenges the public’s right of way and so can trigger a claim. The less contentious option of lodging a statement and declaration is considered below.

Animals

If a landowner is keeping animals on land affected by a public right of way then appropriate signage should be put in place to warn users of the risks that the animals may pose to them. He may also wish to consider taking steps to have the footpath diverted, particularly if there is no alternative land on which the animals may be kept, and the right of way cannot easily be fenced off.

Correspondence, documents and photographs

Landowners should keep a comprehensive amount of information relating to past access over the land. For example: letters giving limited permission for local residents to use a route; photographs of old signs, notices and locked gates; and details of any damage and dates of repair work.

Old estate plans, sale particulars and tenancy agreements can also serve as ammunition to fight a claim

Statutory declaration of public rights of way

Section 31(6) of the Act provides an alternative tool by which a landowner can make the lack of intention to dedicate clear. This involves the deposit of a map of a scale of not less than 1:10,560 (six inches to the mile) showing the land within ownership, together with a statement admitting what, if any, public rights of way exist over the land. The effect is to stop the clock ticking for the accumulation of a right of way over the 20-year period as a result of qualifying use. Once deposited, the statement and map should be followed by the swearing and deposit of a statutory declaration with the council. The declaration establishes that ?no routes have been dedicated since the deposit of the statement and plan and extends the protection for a period of ten years, after which a further declaration should be made in support of the original statement.

This tool is very popular and used by many landowners as a means of establishing the lack of intention to dedicate. As it is not a direct challenge to users it is less likely to provoke a claim.

Cutters, loppers and measures

A landowner also needs these practical tools. While responsibility for cutting natural surface growth rests with the council, landowners are responsible for cutting side growth from hedges and trees. They are also responsible for reinstating and marking out routes which they have legally disturbed – for example, cross-field footpaths where it is not reasonably convenient to avoid disturbing when ploughing, in accordance with the provisions of section 134 of the Act. The timescales for reinstatement are also contained in section 134 and, unless a route has a specific width included in the definitive statement, the minimum widths to which routes should be maintained are set out in schedule 12A of the Act.

Friends

The potential for conflict represented by the existence – or not – of public rights of way over private land is great, and problems can swiftly become time-consuming, expensive and impossible to resolve by compromise. Building a good relationship with the council’s area rights of way officer before any problems arise is worth the effort. Seeking help with signage to keep walkers where they should be, mentioning wear and tear on the council’s bridges and being seen to comply with landowner responsibilities, should all make it less likely that the council will be visiting and inspecting regularly as a result of complaints. Building relations with the local parish council and regular users also pays dividends. Those who know a landowner and feel comfortable on a route are less likely to leave litter or cause damage, and can serve as a useful extra pair of eyes to improve security and protect routes from illegal motorbike or vehicle access.

While it will always be easier to manage land not encumbered by the public rights of way network, a landowner using the right tools effectively and regularly can feel confident that they understand and are in control of public access. They then need not feel the imposition too heavily.