In this blog, Sarah Gathergood, Deputy Residential Consultancy Manager at Groundsure, explores historic rights of way and why, by 2026, some may be lost forever.
Time is ticking for our historic rights of way. Any pre-1949 footpaths, bridleways or byways that are not recorded on the legal definitive map(1) by 2026 may be lost forever. In the year 2000, the Labour government introduced a clause to the right to roam legislation, stating that any pre-1949 rights of way must be recorded by 2026 (which may be extended to 2031) to continue to carry public rights (2). Following this, many councils, rambling societies and Natural England have embarked upon projects to restore and register any historic public rights of way which are not yet shown on the definitive map (3), which may result in this process intensifying as the deadline approaches.
What is a ‘right of way’?
There are four types of rights of way that can be found on the definitive map, with each type defining what that right of way can be used for. These are footpaths, bridleways, restricted byways and byways open to all traffic (2). They are specific routes which allow the public to travel across land which belongs to someone else, they often run through land which is privately owned (4).
As pre-1949 rights of way may not be present on current definitive maps, it is likely that there are some in existence on private land that the landowner is not aware of. Due to the projects now underway to reinstate these it may be worthwhile for landowners to find out if there are any that are likely to be re-established on their land. To find out if you are likely to be affected by this we recommend that you contact your local authority or Natural England. Furthermore, by ordering one of Groundsure’s Agricultural reports, you will be advised whether or not there appears to be a pre-1949 right of way crossing your land.
Reinstating rights of way and modifying the definitive map
Anyone can begin the process of reinstating a right of way, whether it is the local council, Natural England or a member of the public. To do so a ‘definitive map modification order’ would need to be made with the surveying authority. If successful, this will amend the map and its statement and ensure that it is an accurate record of the public’s rights (2).
County councils are required to keep a register of all applications made to modify the definitive map and statement (5), so it is possible to find out if any applications are underway in your area or if any have been rejected.
In some cases this procedure could appear quite harsh: definitive map modification orders are not about whether rights of access should be created or taken away, rather they are about whether the rights exist already. Therefore, any nuisance they may cause is considered irrelevant (2). This may make it difficult to oppose an application for a right of way which crosses your property, it may, therefore, be worthwhile doing some research, to know where you stand.
On the flip side, it is also worth checking to see if any rights of way that you use are definitely on the definitive map, as if not they would need reinstating. Don’t forget that these include all sorts of ‘ways’ – not just footpaths across the countryside. For example, it could even be the case that an alleyway that has been used for years to cut through a housing estate isn’t recorded on the definitive map and may be lost. Many rambling societies across the country are urging people to check and if necessary get such paths, bridleways and byways reinstated on the definitive map. It’s better to make sure. Don’t lose your way!