UNRECORDED AND LOST WAYS
UPDATE (as at Oct 2018)
WHAT ARE WE DOING? WHAT CAN WE DO?
It is imperative that we now carry out research to enable us to make applications for unrecorded paths to be put on the definitive map of rights of way if we are not to lose them for ever. Many of us will not see the benefits but if our children and grandchildren are to enjoy a network of off road routes we need to be acting now.
Missing links in our Path Network
The most urgent element of this work is searching for evidence that the gaps in the present footpath network were originally all joined up. We wish to make the routes available again for our children and their children to enjoy. We are now geared up to start collecting historical evidence to allow us to make applications for the missing links to be added to the definitive map.
We annually organise a get together when interested volunteers can swap ideas and good practice. These are normally in November (see members duiary page for dates) More volunteers are always welcome Much digitised material can be made available for study at home but more can be discovered at various archives and delving into these is a fascinating pursuit in its own right. If you look at any map it seems obvious that paths must have joined up but… …. we have to prove it !
These are the routes most likely to need historical evidence to successfully claim them and in 8 years time such evidence will not be admitted
We aim to give people bite-sized chunks to look at towards creating a body of material to enable us to submit applications to improve the network and preserve it for future generations. This will be a case of ‘every little helps’
We will progressively build up a library of evidence which will be made available to all researchers to avoid duplication of effort. A number of other user groups are working with us and members of local history groups have been involved
The County Council is fully supporting this initiative, providing meeting rooms, free access to their modern highway and other records, and financial assistance when material held in other archives has to be copied or purchased.
BACKGROUND & HISTORY
Area officers working with the Leicestershire Local Access Forum and other interested groups have drawn up and mapped over 3000 paths in the two counties which do not appear to have full legal protection. We do not have the manpower to claim all these not least because of the time it takes to either collect historic evidence or seek out witness statements. We do therefore need to prioritise and will be trying to decide which to work on.
Few people realise how many paths are not protected. Thousands of alleyways in urban areas are technically at risk as are paths shown on OS maps map as ` ORPAS’ (other routes with public access). We are treating these as low priorities as by their usage a claim could be made on different grounds and the cut off date will probably not affect them.
There are hundreds of definitive map anomalies which Highways Authorities are slowly working through such as the actual path being the other side of a hedge or stream than is shown on the legal map or a house having been built and a path ‘informally’ re-routed around it. There is normally a route in actual use so again they are lower priority. Some of the anomalies are of concern often where paths both approach a parish boundary from both directions but as drawn, do not actually quite meet. Some recorded paths exit onto what appear to be private roads with no formal public access and if these are not claimed the official path ceases to have any purpose. Paths do exist which follow a stream which is a boundary but where just a short stretch it switches banks into a different parish, that parish never recorded that bit.
There is a National Gazetteer and all authorities should have ‘lists of streets’ and anything appearing there may have protection although that is not entirely clear. We have been checking these lists of streets to see whether routes are recorded there and if they are, again they are low priority.
There are also possible other routes within the area which we do not know about; some just because we have not come across them, but some because they no longer exist on the ground. These paths are not visible and therefore not used. Paths fall into disuse when their purpose ceases. Old paths to churches, mills or ferries that no longer exist stopped having a purpose and vanished.
As new development spring up however, many of these would be of great use today. Other gaps in the network would just greatly improve that network as a whole and it is often obvious from the line of two paths that at one time they must have been joined.
Given the ‘Once a path, always a path’ rule these still legally exist and, unless there was a specific statute extinguishing them, they can now be claimed on historic evidence but only until cut off date. Hence the need for the evidence which is where volunteers can help. There are numerous places where this may be found. We have set up a database where notes of what is found can be stored and attached to maps we have already created showing where we think paths probably existed. These maps and notes can be provided to researchers. We have also allocated reference numbers to these routes to ensure we all know what we are referring to.
We do not expect there to be many of this nature in our patch but we may come across some as we gear up our research. The research itself is a fascinating challenge which members may wish to get involved with. Since the 18th Century cartographers and surveyors began compiling county atlases, often funded by the local gentry. They were to provide information about the public road network in the area, but what exactly is a road.
Most maps of the period differentiate between Turnpike Roads and Cross Roads and Bye Roads. Some also identify Mail Roads, and a few also identify Bridle Roads. One map, known as King's Map uses the classification Public Carriage Road.
It would be reasonable to presume that if a way was included on such a map as being a particular type of road, then both the map maker and the subscribers paying for the survey, believed in good faith that the way was open to the type of traffic one would reasonably expect to find on that type of road. In many cases the type of traffic which used a road would not be limited by its legal status, because at this time, unless a route was created by some legal event such as an enclosure award, it would not have one. What would create a limit on the type of traffic using the way would be the condition of its surface, its width, and the custom and practice of its use.
We do now have a comprehensive list of all known Enclosure Acts and details of many old maps where any evidence from them can be found. As a starting point we perhaps need to define and identify the roads indicated. Turnpike Roads were usually shown on old maps by two solid parallel lines, often with the positions of mile posts indicated. They were roads on which a toll was collected at gates, generally owned and maintained by private companies and open to general public traffic including pedestrians, horse riders, goods cartage and passenger carriages. Usually surfaced and maintained to a reasonable standard.
Mail Roads or Mail Coach Roads were usually shown on old maps by two solid parallel lines sometimes differentiated from other routes by a row of dots, and often with the positions of mile posts indicated. A major, or main road specifically used by the Royal Mail to regularly convey post and fare paying passengers to and from London and provincial towns and cities and forming part of a time-tabled network, these were generally maintained by the public purse, but sometimes using Turnpikes, and open to public traffic including pedestrians, horse riders, goods cartage and passenger carriages. Usually surfaced and maintained to a reasonable standard
Cross Roads were usually shown on old maps by two narrow solid parallel lines or parallel broken lines and were generally cross country linking more frequently used Mail Roads or Turnpike Roads, generally maintained by the public purse and open to public traffic including pedestrians, horse riders, goods cartage and passenger carriages. They were often unsurfaced and incapable of being used by carriages and wagons during wet periods and in some cases very rarely if ever used by public carriage traffic.
A Public Carriage Road was usually shown on old maps by two narrow solid parallel lines or parallel broken lines. Generally maintained by the public purse and open to public traffic including pedestrians, horse riders, goods cartage and passenger carriages. These again were sometimes unsurfaced and incapable of being used by carriages and wagons during wet periods.
Bye Road and Bridle Roads were minor roads, Bye Roads usually shown on old maps by two narrow solid parallel lines or parallel broken lines and generally maintained by the public purse and open to public traffic including pedestrians, horse riders, goods cartage and passenger carriages. Again often unsurfaced and incapable of being used by carriages and wagons during wet periods and in some cases very rarely if ever used by public carriage traffic. Bridle Roads were usually shown on old maps by a single thin black line or as a broken line with cross bars at intervals. Usually maintained by the public purse and open to public traffic including pedestrians and horse riders, they were often unsurfaced and poorly maintained. In some cases infrequently utilised even in dry weather by public goods cartage and passenger carriages.
Many of the early maps varied in interpretations but they do build a picture which can be invaluable in evidence. We hope to create some form of points system to identify those which we feel we need to apply our efforts to.
In deciding which routes to collect evidence on we need to decide how much the route will be well used and of amount of public benefit:
Is the route close to, or would it serve a populated area?
Is the route in particularly attractive countryside?
Does the route serve local services or places of employment?
Will it increase travel choice?
Being pragmatic with limited resources we need to decide how achievable is the proposal? Is there potentially good historical or documentary evidence? Is there potentially good user evidence? If we are relying on historic evidence we need to give it higher priority as any such evidence is likely to be not accepted after 2025.
All routes are useful to somebody but we feel that we need to give weight to how the route fit into the surrounding network? Does the route close a critical gap? Is the route currently obstructed? Is there no reasonable alternative nearby?
We currently have over 20 volunteers helping the area in one way or another but more are always welcome and people have in the recent past expressed an interest in delving the archives. This may not be everybody's cup of tea. As an organisation we have those active in groups who primarily just want to walk in company, many who would rather walk alone or with family and friends and many more who support our campaigning activities by subscribing to the Ramblers. Those who are no longer active might well want to help with research work. Some want to volunteer at tasks outdoors and do not fancy visiting record offices etc but there is a role for everybody within the Ramblers. We must not forget the many walking members who themselves volunteer to lead walks and those volunteers who fill the roles at group and area office.
If you want to help with research many of the old records are in the County Archive at Wigston. These include Enclosure Acts which defined what were then paths, and the documents produced for the Finance Act 1910 which allowed the Inland Revenue to tax increases in value of land when it changed ownership. Each property was numbered with its boundary shown on an Ordnance Survey map and these plottings were known as valuation maps. They were normally at a very useful 1:2500 scale and detailed in ‘field books’. This is invaluable to us, as where there was a footpath, they could claim a discount against the value and that is good evidence that they acknowledged that there was a path there. Also these maps had blanks where land was unvalued, as exempt from taxation. The 1910 act exempted highway authorities and so if a track on the map is unvalued; it is probable it carried vehicular rights. All white roads can be checked against a modern map, and any that are missing can hopefully be claimed.
There are lots of other old documents which can help. Quarter Sessions minutes, railways and canal acts etc may all refer to nearby paths which all helps build up a case that the path did exist.
The working group intend to approach other organisations working on the same issues to ensure we coordinate our research and do not duplicate our efforts. This will include the history societies, heritage groups and the Open Spaces Society etc.
We have the full support of the County Councils as they have a legal obligation to research these and just do not have the manpower or financial resources to do the work themselves.
This can be fascinating research. Regardless of what we are actually looking for, digging into these old records can turn up some real surprises and snippets of important history. It may not be for you but why not see what is involved and give it a try. You could decide not to get involved but everybody who has started prying into our past has become hooked on it.
The one thing we must all bear in mind is that if we do not protect our paths we will eventually have far less places we can walk safely
In 2000, the Countryside and Rights of Way Act introduced a cut-off date when all 'unrecorded' public rights of way will be permanently extinguished. At the time it was said this would benefit both land managers and users in terms of greater certainty about the existence of rights of way.
That gives us to the end of 2025 to trace these ancient paths and bridleways through historical records and have them recorded. Initially a lot of government money was spent on consultants to do the job but this process achieved little and was then abandoned. Successive governments have still not brought this part of the Act into operation, or decided on how to make the law workable, but changes are in the pipeline.
The legal position is that public rights of way are minor public highways, which exist for the benefit of the community at large, in much the same way as the public road network does. They are the most widely recognised opportunity for the public to enjoy access to the English countryside. Currently the legal position is once a right of way exists it means exactly that - You might say the answer is on the tin! 'Once a right of way always a right of way'. Once the cut off date arrives this will no longer be the case.
The Definitive Map and Statement for an area is the ultimate record of what rights of way exist, but when the maps were first compiled some routes historically used as rights of way were overlooked or omitted for various reasons.
Some highway authorities have set up projects to identify useful historical routes that might otherwise be lost, but staff resources are increasingly stretched. Getting these routes protected is a complex legal process administered by the highway authorities in which they are at present legally restricted from taking a leading role. The law about 'claiming' public rights over unrecorded routes actually places the onus on individuals, parish councils and voluntary groups like The Ramblers, hence the need for us to get involved. It is all a bit of a minefield.
The definitive maps can only be changed by the highway authority making legal 'orders' to create, divert or extinguish rights of way, and/or modify the definitive map by deleting a route or adding an unrecorded one. Orders are necessary to modify the map to correct anomalies which can have resulted from something as silly as the width of pen used when the original survey map was drawn up by parish and urban district councils. Where there are objections the cases are passed to The Planning Inspectorate which is an Executive Agency of the Government. They act as an impartial body to determine rights of way orders made by highway authorities and other relevant local councils (e.g. Districts in the case of changes linked with planning applications).
The main challenge is that most cases the Inspectors deal with are either ones based solely on recent user evidence, or where user evidence is presented as well historical documents being used as evidence. Whereas a classic 'lost way' is one which hasn't been usable for decades and may now be blocked or have vanished completely, so user evidence is limited or non-existent. If we wish to make a 'claim' that an ancient route was once used as a right of way and should be added to the definitive map and reinstated, the case has to rely only on historical documents, so a case with prospects needs a strong weight of evidence, that is a number of documents from different authoritative sources and which all tell a consistent story.
Some bodies have said that we should not pursue such historic rights of way as they are no longer of value but in our rapidly changing world with new developments and services shooting up all over the countryside such lost ways may suddenly become invaluable links again. One of the more tricky issues is where a claim is based on lots of historical maps etc., but there is very little evidence that says the route was ever generally accepted as being 'public'. You can imagine that a landowner who did not know he had a path across his field will employ good legal support to oppose the case being made.
It is confusing because the definitive map only records some of the routes that you might believe are official ‘paths’. There are also local authority records called things like the List of Streets or List of Streets Maintainable at Public Expense. Some lists may suggest some legal status but not necessarily show what that status is. Some of the routes listed are known as Unclassified County Roads, marked by the Ordnance Survey as Other Routes with Public Access. These are routes that are legally part of the public road network but usually unsurfaced; also some of these routes may only have footpath and bridleway rights rather than rights for vehicles.
These unclassified roads may well be managed by different parts of the highway authority compared to public rights of way even though these unclassified roads look indistinguishable from them and form an essential part of the recreational routes network. Rights of way staff may find themselves obliged to take on board some responsibilities for unclassified roads, such as waymarking, in order to maintain the integrity of the recreational network. Fortunately in Leicestershire Highways and Rights of Way are now within the same department.
The 'list of streets' is based on highway authority records that go back long before the first definitive maps were made. The instructions to the surveyors of the original definitive maps stated that 'existing roads' should not be entered as footpaths, bridleways or the obsolete category of 'roads used as public paths' (RUPPs). However some of these unclassified roads did get included on the definitive maps. It might be that the parish or urban district council surveyors thought that the way in question was genuinely only a footpath or bridleway, and did not have knowledge of the authority's roads records. In these cases it can mean that not all the public rights on a route are properly recorded or protected.
The problem is many faceted. The term “Lost Ways” is partly a misnomer, as many historic routes are not 'lost' but are currently used and in existence, but are simply not recorded on the definitive map. After the 2000 Act was passed the Government's consultants surveyed a number of counties to see how complex the task was, and there was a map analysis of the many un-gated, fenced green lanes and surfaced tracks which are not recorded as rights of way. Site visits verified that as many as 50% of these were being used by the public, and a significant number of these tracks had recorded rights of way routes leading off them.
In addition, around 10-15% of the routes identified to date are cases where the status of an existing right of way is 'under-recorded' for example a route is a public footpath but evidence suggests it should be a public bridleway. Some of these kinds of routes form part of the access to properties, but a supposedly private drive may really be public, and other routes are sunken, walled or hedged lanes where public usage will have little impact on land use or farming activity. So completely lost, unused routes may therefore be in the minority which should allay some of the concerns about the impact on people's property where lost ways are discovered. Even so there are clearly issues for individual landowners who find an application submitted for a new route on their land. However, the scale and impact is perhaps less than perceived.
Looking at Leicestershire, less than 2% of our Rights of Way are full Byways so in distance terms it is unlikely that there is much to be found by way of such lost routes. Footpaths however are far more extensive and there are potentially up to 200 miles of footpath which might be out there to be found. However as many existing footpaths only impinge slightly on farmers’ fields, lanes and woodland then in most cases the real impact will be small. It is the principle of the case that is what most concerns farmers and landowners and there is obviously more of an issue with footpaths found through farmyards and past dwellings. Where there is any doubt as to status of a route it may sometimes be necessary to refer to Enclosure Awards which are legal documents, for evidence to support recording of ways but these awards were written using legal terminology which can be easily misunderstood or misinterpreted. They are only one of many sources where historic evidence can be found and a significant proportion of Leicestershire's parishes do not have such Awards and some have lost their maps which makes them much harder to interpret. There are also Tithe Awards, which are equally patchy and much more difficult to use to prove your case. After that it is whatever you can find to compile a case, which may be books, newspaper cuttings, deeds and associated documents, diaries, sale documents, etc.
Given the historic basis of the network there are many problems with the present layout. There are missing links, often just down to poor recording for various reasons by parishes when the definitive map was started. It possibly came low on many parish councils' concerns at the time and was often rushed and not properly understood. There was possibly incomplete knowledge by the "parish surveyor" (if there was one) of the actual use or status of routes. There was probably landowner pressure not to record paths, especially as was often the case, when a landowner was a parish councillor. There would have been at both parish and highway authority level, some misunderstanding as to what was a "public path" or "bridleway" and what was a 'Road Used as a Public Path' (RUPP). There were gaps between such routes and the road network with many unsealed routes being deleted from the Parish Return as they were deemed to be all-purpose highways. These are probably the routes most likely to be lost, particularly to higher rights users. They may be recorded as Restricted Byways (RBs) not Byways open to all traffic (BOATs).
These gaps in the network do prevent us making best use of it as a whole. Some of the gaps are actually in use but just technically not recorded and these could be lost if not formalised by 2026. The records are very disparate and few seem to confidently know what the situation is in many cases. We have paths that no longer serve any purpose where their original destinations no longer exist and we have residential areas near to schools and shops etc with no link between them. The fact that our official paths are well maintained does not change the position that the network itself is not really fit for purpose any more. We need to look at planning opportunities not just to protect rights of way and satisfy new local requirements within developments but to look at the broader picture and see if it affords any opportunity to improve the network itself. That is however only a small part of the problem
Roads, not being maintained at public expense, are under 1980 Highway Act terminology 'private streets', not meaning private use only, but meaning not maintained at public expense. Section 232(2) is perhaps the clearest section illustrating this use and meaning. The Enclosure Acts use the same terminology, and being mostly before 1835 when under highway act legislation only those roads leading to market towns were maintainable at public expense many 'private streets' are included in the awards, often defined as private carriage roads. (The 1845 General Enclosure Act introduced the term 'occupation road' for roads public had no interest in, i.e., were not open for public use and enjoyment.)
The Enclosure Acts empowered that provisions be made regarding the maintenance of the 'private streets', and with those liable to undertake this work seeking that enforcement of this be limited to certain persons rather than the public at large, some commissioners gave certain persons, or groups of persons, the legal interest to enforce maintenance, using the terminology of saying that road was for their use and benefit. This did not, and could not; mean that road was for their sole private use, with any such meaning being ultra vires. There is a court case, The King v J Richards and five others, (1800) where the King failed to enforce maintenance of a private road, on grounds that he had no legal interest, i.e., was not for his use and benefit, not due to his not being entitled to use it.
It should also be noted that awards often prefix footpath and bridleway with the word public. This word has same meaning as used today, i.e., public right of way, and does not stipulate that they are maintained at public expense, or that the minimum width criteria for publicly maintained roads applies to them. One of the main problems is the change. There can be many problems in the meanings of these words as "public" was sometimes used to mean outside the parish and private meant inside the parish rather than as we would use them today. Often "private" related to maintenance liabilities rather than usage rights; a relic of this is un-adopted streets, which the residents have to keep in repair not the highway authority. These explanations have not been tested in the high court, and if they should be it is considered a reasonable expectation that these explanations would be agreed. With these explanations understood, awards that set out private carriage roads, for use and benefit of named persons, with public footpaths branching off them, are understandable, and do in fact say what it is reasonable to expect them to say.
One major difficulty we have in looking back is that highway records were understandably more about maintenance than rights of passage until the DM was created to record what rights exist on those specific "lesser" highways. Unless maintenance records where they exist specify that, for example, a bridle gate was put on a particular highway, we have no clue as to the kind of traffic that used that highway. Even today we are compounding the problem with the creation with non-motorised links being created within estates between housing, schools and shops etc but sometimes without formal records.
THE WAY FORWARD
We need more clarity from government as to what will be caught by the cut-off and what will be excluded and hopefully this will be forthcoming after the changes being included in the Deregulation Bill. We also need that bill to simplify the legal processes involved in making changes and additions to the network. Locally we are trying to list all routes we think might be under threat and we will eventually be raising this with the local authority.
When is a record not a record? It is further confusing because the definitive map only records some of the routes that you might believe are official 'paths'. There are also local authorities a record called things like the List of Streets or List of Streets Maintainable at Public Expense and there is also something called the Gazetteer. The more you dig into this minefield the more complex it becomes. Even looking at the List of Streets is not as simple as it seems. There are many categories of routes not on the Definitive Map including, Not Publicly Maintained, Part Publicly Maintained, Part Adoption Agreement only, Publicly Maintained (Right of Way only), Publicly Maintained (Part Adopted/Part Right of Way), Adoption Agreement and Publicly Maintained (Adopted). Then there are those on the Definitive Map; Not Publicly Maintained or Part Publicly Maintained. Notwithstanding this it is imperative that we use these archives to assess what is recorded about particular routes. It will in due course be interesting to hear the local authorities' interpretation of how 'safe' these routes are, and which should be claimed. It would also be helpful to clarify whether 'Part' applies to length of route, width of route, either, neither or both.
Some lists may suggest some legal status but not necessarily show what that status is. Some of the routes listed are known as Unclassified County Roads, marked by the Ordnance Survey as Other Routes with Public Access. These are routes that are legally part of the public road network but usually un-surfaced; also some of these routes may only have footpath and bridleway rights rather than rights for vehicles. Who knows?
The 'list of streets' is based on highway authority records that go back long before the first definitive maps were made. The instructions to the surveyors of the original definitive maps stated that 'existing roads' should not be entered as footpaths, bridleways or the obsolete category of 'roads used as public paths' (RUPPs). However some of these unclassified roads did get included on the definitive maps. It might be that the parish or urban district council surveyors thought that the way in question was genuinely only a footpath or bridleway, and did not have knowledge of the authority's roads records. In these cases it can mean that not all the public rights on a route are properly recorded or protected. Many are aware of the List of Streets and the Definitive Map, but there is a third highway record, the Street Register, also called the Gazetteer, but does the 2026 cut-off date affect those streets recorded on the Street Gazetteer. Our local authorities are presently working on completion of highway data for the National Street Gazetteer, having been set a date of 1 April 2009 to have this done by. Being in many cases overdue they could be thought to be at risk of financial penalties if not making good progress. Under the legislation the data compiled by our local authorities, i.e., with public monies, is viewable by the public free of charge at all reasonable times. GeoPlace collect together all this local data to compile the National Street Gazetteer, which is not viewable by the public free of charge. There is a lack of clarity about all of this, along with a lack of clarity about the scope of highway data that is being compiled. However this is expected to entail the registration of all streets that are highways that the authority is aware of, i.e., both roads and paths, whether or not maintained at public expense, i.e., can be expected to include natural surface roads.
For the technical, the applicable Street Register legislation is s.53 of 1991 New Roads and Street Works Act which provides for such a register to be kept etc. but it is regulation 4(2) of The Street Works (Registers, Notices, Directions and (Designations) (England) Regulations 2007 which provides what is to be contained in the register.
Regulation 4(2) states each register shall: - (a) be indexed, (b) no later than 1st April, 2009, be based on a geographical information system: - and (c) identify the highway authority in relation to every street in the street authority's area which is a maintainable highway.
These are viewable at http://www.legislation.gov.uk. For further information the Department of Transport Guidance Notes can be seen at http://www.oneroadnetwork.org/news/2012/sep/brief-history-street-works.
Download 'Code of practice for the Coordination of Street works' dated 2012 with section 4 being the part that describes the Street Register. Not being a document with legally conclusive status, none of the costly definitive map modification order procedures apply, it simply being a matter of recording those streets the authority is aware of.
Geoplace manage the National Street Gazetteer setting out the local authorities' role in raising the Street Register (with guidelines at http://www.geoplace.co.uk/geoplace/link.htm?nwid=281). The New Roads and Street Works Act 1991 defines the scope of the Register viewable by the public as being streets for which the authority is responsible, whether or not maintained at public expense, i.e., streets public may expect to use and enjoy, i.e., is highway authority as per s.1 of 1980 Highway Act. However these guidelines reference British Standard 7666-1: 2006, which redefines a street as a way or thoroughfare providing a right of passage on foot, by cycle or by motor vehicle, or access to more than one property. This definition thought to encompass an addressing purpose, i.e., a street to every address, is resulting in Registers being raised with streets registered for which the authority has no responsibility or the public any right of use and enjoyment, contrary to the legislation.
With legislation in hand closing the recording of public rights of way in 2026 the public clearly need to view a Register that shows which streets are registered that they have a right to use and enjoy, with the inclusion of streets without this right bringing the public right of use and enjoyment of every registered street into question, and in turn the legality of the authorities use of public monies raising such a register into question. British Standards do not have the power to overrule Parliaments legislation, no legislation has been discovered redefining the scope of the Register to conform to the British Standard, and the local authorities' attention needs to be drawn to this anomaly, ensuring that they only register streets for which are highway authority and public may use and enjoy.
A 1949 National Parks and Access to Countryside Act required all 'footpaths', 'bridleways' and 'road used as a public path', Rupp's, to be recorded on a Definitive Map. The 1981 Wildlife and Countryside Act defines the recording as footpath or bridleway under s.56 as providing conclusive evidence of the existence of a right of way, but not normally of the legal status, as a way recorded as a footpath is conclusive of rights on foot, but without prejudice to other rights. In other words, it gives no information about the legal status. Similarly routes shown as bridleways are also without prejudice to other rights. As these two types account for over 95% of ways on the definitive map, it should be clear that the maps give minimal information as to the status of the paths.
To further complicate the matter 'roads used as public paths' had to be reclassified under a 1968 Act and this was the defining moment at which the equestrian world decided to try and draw a line in the sand. The BHS brought and won the "Hood" case which established that a Rupp could only be reclassified as a footpath if there was clear evidence that there were no higher rights. Unfortunately, this did not work retrospectively and many Rupp's had already been re-classified as footpaths. However, it is important to note that this did not mean that bridleway rights, if they existed, had been extinguished. Where there is evidence of this then correcting the map is necessary to complete the definitive map. Much of the problem stems from Government Circular 81 of 1950 that distributed guidance to parishes raised by the RA and OSS. This proposed that Rupp's should be further sub-divided into CRF (Carriage Road Foot) and CRB (Carriage Road Bridleway) according to the main type of user, with this guidance being clear that this applied to roads the public was entitled to use with vehicles. This concept was completely outside the requirements of the 1949 Act, with some authorities showing these as footpaths and bridleways rather than Rupp's, and which also led to many authorities thinking that CRFs could simply be re-classified as footpaths. This guidance may be viewed at http://www.ramblers.co.uk/rightsofwaybook/circularsandguidance/ download "Surveys and maps of public rights of way for the purposes of Part IV of the National Parks and Access to the Countryside Act, 1949 [Commons, Open Spaces and Footpaths Preservation Society]"
Some authorities still have roads submitted as CRF's recorded as footpaths, and CRB's recorded as bridleways, both without prejudice to higher rights over them, and technically the footpath and bridleway signs are unlawful as they are signifying footpath only or bridleway only. Some authorities having raised signed and sealed statements that changing the meaning of their signs is to be without prejudice to higher rights over them, but this fails to provide users with confidence of use. Also any structures erected under pragmatic procedures limiting use to that of footpath or bridleway that are not lawfully recorded limitations on the DM Written Statements would be unlawful and ought to be cleared away.
Some of these kinds of routes form part of the access to properties, but a supposedly private drive may really be public, and other routes are sunken, walled or hedged lanes where public usage will have little impact on land use or farming activity and could reasonably be recorded as public. There are some completely vanished routes which fill gaps in the network, now particularly needed as rural roads become ever busier and new clusters of housing are created, and these are possible additions to the record subject to historic evidence. Then there are paths which have been created over the years (by usage) without let or hindrance and which can now be claimed.
The largest problem however is definitely the possible loss in 2026 of currently used but unrecorded routes which may lead to a significant decrease in availability of access to the countryside and will also have an adverse impact on local history and heritage. There are all sorts of strange anomalies which need to be addressed. For example in some areas when parishes informed local authorities in the 1950's of lanes that large scale Ordnance Survey maps showed had adjacent field-side paths, it was the field-side path that was recorded rather than the lane, it being thought the objective was to record paths and not lanes. This means that in many cases the actual lane has no apparent legal protection. Currently the legal position is once a right of way exists it means exactly that - 'Once a right of way always a right of way'. The Definitive Map and Statement for an area is the ultimate record of what rights of way exist, but when the maps were first compiled some routes historically used as rights of way were overlooked or omitted for various reasons.
Some highway authorities have set up projects to identify useful historical routes that might otherwise be lost, but staff resources are increasingly stretched. Getting these routes protected is a complex legal process administered by the highway authorities in which they are at present legally restricted from taking a leading role. The present law about 'claiming' public rights over unrecorded routes actually places the onus on applicants. The definitive maps can only be changed by the highway authority making legal 'orders' to create, divert or extinguish rights of way, and/or modify the definitive map by deleting a route or adding an unrecorded one. Orders are necessary to modify the map to correct anomalies which can have resulted from something as silly as the width of pen used when the original survey map was drawn up by parish and urban district councils.
The paper trail explaining the piecemeal and fragmented record of such matters is tortuous to say the least and numerous bodies have tried to follow it. I have tried to pull together bits from various sources as a guide to the background which we need to bear in mind when trying to determine the status of all rights of way. The National Archives (file reference MH 55/6 C499298) include a minute sheet regarding the 1929 Act that transferred highway maintenance duties to County Councils. It advises the Minister that a detailed memorandum was going to be issued and whilst this detailed memorandum has yet to be found, many authorities have 1929 Handover Maps, and it is a reasonable assumption that the detailed memorandum advised the RDC's to mark up a map showing roads that they were maintaining, with sections 11, 12 & 13 of the Local Government Act 1929 General Circular making it clear that it related to roads over which vehicles ran. Had it been all roads no map would have been required. These handover maps form the basis of the current List of Streets, a document without a statutory map.
A 1949 National Parks and Access to Countryside Act required all footpaths, bridleways and RUPPs (roads used as public paths, to be recorded on a Definitive Map. The act defined Rupp as a highway, other than a public path, used by the public mainly for the purposes for which footpaths and bridleways are so used. This definition of 'road used as public path' does not match with the definition of the 1929 Act, so there is a definable gap between the two sets of records, presently commonly known as 'white roads'. This gap in the records is most clearly seen where there is poor connectivity between recorded roads and recorded paths, along unrecorded roads, and this is seen easier when looking at Street Registers that show both roads and paths. Section 53 of the New Roads and Street Works Act 1991 requires the authority to keep a register of each street for which they are responsible, i.e., those for which they are the highway authority, and it therefore follows that the highway authority has a duty to identify those streets that it is aware of, a fact confirmed in the regulations, but which it is not currently maintaining and consequently are not recorded on the List of Streets, a duty that it may undertake in a similar manner to that employed when identifying highway boundaries, asserting and protecting public use and enjoyment of them as highways, and to register them as highways on the Statutory Street Register. The registration adoption may be code 3, i.e., neither publicly maintainable nor prospectively maintainable, with consideration of this aspect being subject of a separate procedure as and when required, that checks whether the street is a pre 31st August 1835 street adopted under the Highway Act 1835, or a later street subject of the Private Street Works Code, and whether to declare the street under section 87 of New Roads and Street Works Act 1991 to be prospectively maintainable. Some papers refer to these as being un-adopted roads. Information about un-adopted roads can be found in House of Commons Library; viewable at www.parliament.uk/briefing-papers.sn00402.pdf .There are over 40,000 of them.
In conformance with the New Roads and Street Works Act 1991 Authorities should record as adoption code 3 roads all un-adopted roads and accommodation roads they are aware of. These to include those mentioned on the public right of way definitive statements as being roads on which the paths terminate, i.e., connecting roads, and those submitted by parishes when raising the definitive map, but which were not accepted it being decided that they were more than paths or roads mainly used as paths, i.e., were outside the scope of that record, and lanes when a field side path was shown rather than the lane, as lane considered to be outside the scope of that record. This was also expected to resolve many of the anomalies, they often being where path terminates on an unrecorded road.
Legislation is going through parliament which will hopefully speed up the processes for clarifying the issues and rectifying the many anomalies. One thing is abundantly clear if we do not wish to lose out, the Local Access Forums, user groups and interested individuals are going to have to get involved as we cannot afford to wait to see whether busy local authority employees do a diligent job. Most may well do so but there will be well intentioned and hard working officers overwhelmed by the task and unfortunately experience tells us some authorities will gear up to do as little as they have to. Amongst other changes probably to be in the Act which will make a real difference is that surveying authorities should have a new power to reject applications that do not meet a Basic Evidential Test, on the understanding that they may be resubmitted if more convincing evidence can be found. Similarly surveying authority should be allowed to discount any irrelevant objections. The Act is also likely to set out a process for modification of the definitive map and statement by consent by means of a "modification consent order". This process includes provision to alter the right of way before it is recorded, provided agreement can be reached between the local authority and all affected landowners. It will probably also lay down that surveying authorities should determine applications and make any consequent definitive map modification order in a reasonable timescale. Where they do not, both applicants and affected owners should be able to seek a court order requiring the authority to resolve the matter. Surveying authorities will have an important role as now, in securing the recording of useful or potentially useful routes if there is convincing evidence of pre-1949 rights of way along them.
The Deregulation Bill includes: Clause 12 will, after the cut off date, give extra protection to already recorded rights of way by preventing the making of a deletion order in respect of any way if deleting it would affect the use of a definitive path and the only basis for deleting it was evidence that it did not exist prior to 1949. It will therefore lower the number of deletion applications. Clause 18 gives effect to Schedule 6, which makes changes to the procedures for 'ascertaining rights of way' in England. These include a simplified procedure for dealing with 'obvious' errors in the definitive map and statement; special diversions for ways which have fallen into disuse whose existence has been proven by documentary evidence, so that these can be realigned by agreement, subject to certain conditions; a new system for determining applications for definitive map modification orders, in which appeals to the Secretary of State against decisions by a surveying authority not to make an order can involve a full public inquiry into the entire matter (instead of the prima facie issue being determined purely on the papers followed by direction to make an order followed by public inquiry where objections are placed); a right to apply to the magistrates' court where the surveying authority is slow determining an application and a means of transferring applications for definitive map modification orders from one person to another. Schedule 6 also enables order-making authorities to dismiss irrelevant objections and so confirm an opposed order if the objections do not relate to the law, and to sever composite orders so as to confirm the unopposed parts and submit to the Secretary of State for determination only the parts which attracted un-withdrawn objections.
Once this becomes law the exact ramifications can be assessed and we will need to gear up to ensure all routes are protected.
SUMMARY - We need to establish exactly what the status of all routes is. Where, if anywhere, that is recorded. Whether that affords them full protection at the 2026 cut off. It will almost certainly be the case that we well end up making hundreds of claims which may take a lifetime to process but they will then at least be in the pipeline awaiting determination and should be thereby not automatically lost at that date. This of course, must go side by side at looking at historical evidence of unrecorded and possibly even unused routes, which need recording given their potential to enhance the network in this rapidly changing world. If any member really wants to get up to speed with this on a technical level can I recommend the following link which has just been created
Our long term ambition should be to see a "non-motorised user" network that is an alternative to the "motorised" roads open to all and recorded in one place. To this end it would be good to think there might be (with suitable compensation), an over-riding power to create necessary links, whether between/from existing dead-ends or to meet new needs due to development.
The legislation on rights of way is detailed, extremely complex and goes back hundreds of years. We have a bible to refer to (the Blue Book, 883 pages) but that is only the start of the story as there are endless reams of court findings setting precedents which have a major impact. Fortunately within the Ramblers there are people with a good grasp of the situation and with their support even lay official can stand up against powerful interests and defend our footpaths.
We are currently monitoring HS2 and Network Rail’s plans to close pedestrian crossings as both have a big impact on the network as a whole and we are challenging decisions which seem to us to be unreasonable and in some cases to be circumventing due process.
There have been numerous cases where locally we have objected over the years but one case stands out above all others. We pursued this case for twelve years and we twice had to involve the Secretary of State to force things along and he ended up directing the County Council to make an Order which itself led to expected objections and a Public Inquiry, which lasted three day. We had to present the case ourselves, assisted by advice from our Central Office. The County Council adopted a neutral stance, as is common practice when they are directed to make an Order, but were represented at the Inquiry in an advisory capacity.
As laymen we were conducting the case against the landowner-objector with legal representation and a senior officer from LCC actually said he thought the summation was one of the best he had ever heard. We were successful and residents of Groby now enjoy a very useful footpath link.
Another presumed right of way in Glenfield was also recently fenced off despite it being metalled, maintained by Blaby DC and having both a street light and a dog waste bin. It had just never be added to the list and a claim has had to go in to establish this route (used unrestricted for over 40 years). We assisted the Parish Council and that situation is now formalised.
To do this work we do need a solid understanding of the law. Changes are afoot under the Deregulation Act but until formal guidelines are issued this is our understanding of the situation.
Footpaths, bridleways, restricted byways and byways are highways in exactly the same way as the busiest trunk roads and the same body of law applies, although obviously there are differences in detail.
Roads have always been indispensable to civilisation. In this country Roman roads built almost 2000 years ago still form the basis for some main roads. It seems clear that many Roman roads themselves followed even earlier trackways. With such a long history it is inevitable that the law relating to highways should also have a very long history. Some of it appears to be based on Roman law and many of the basic principles form part of the common law.
Common law is the basis of many of our laws and, indeed, our freedoms. It represents the immemorial customs of the nation as they existed before the Norman invasion and before a formal legal system was created. Neither the monarch or Parliament has ever laid down the principles of the common law, but over the years they have been codified through successive decisions of the various courts.
On the foundation of common law there has been built a complex structure of statute law; that is law laid down by the monarch or Parliament. In view of the antiquity and importance of the highway system, it is not surprising that there are records of statutes concerning highways going back at least 800 years. Since then there have been very many different laws about highways. This creates particular difficulties for rights of way workers who often need to consult old documents whose importance can only be judged by knowledge of not only what the law is now but also how it stood at the date of the document.
Public Rights of Way
A highway may be defined as an area of land over which the public have a right to pass and re-pass (i.e. a right of way). The status of a particular highway defines who exercise this right. The term public right of way is often used (albeit technically incorrectly) to describe those highways that are of a status that is less than carriageway (e.g. bridleways, footpaths etc).
There are private and public rights of way, the difference being as to who has the right to pass. On a public right of way the right extends to the public at large, that is to say everybody. On a private right of way the right of passage is limited to certain people. Today, private rights of way are generally regarded as easements, that is to say that the right of passage belongs with a parcel of land and the owner or occupier has the right to pass over someone else's land. Our main concern, however, is with the public rights of way.
It is important to be clear that this is a basic right of the public and in no sense requires the permission of the landowner. The owner cannot withdraw the right and even if the public cease to exercise the right it will not lapse.
On the other hand, public are limited to that of passage and the owner may treat as a trespasser anyone who goes beyond these limits. For example, in a case last century it was held that a person who repeatedly walked along a moorland footpath so as to disrupt shooting was a trespasser. The key point appears to be that a member of the public should be making a genuine journey from one point to another. The purpose of the journey is immaterial; there is no reason why the journey should not be for pleasure or for exercise. Neither is there any reason why, on reaching the destination, the return journey can’t start immediately. But to travel repeatedly up and down a short section of route, for example to annoy the owner would be likely to be regarded as a trespass.
Traditionally there were four different types of highway recognised by the common law, depending on the rights that the public have. These were footpaths, bridleways (or bridle roads), driftways (or driving roads) and carriageways. The common law rule being that the greater right includes the lesser so that each succeeding type includes all the rights of the preceding ones. In addition to the traditional common law types of highway there are other types that have come into existence through statute, that is to say through laws that have been passed by Parliament. The main types of statutory highway likely to be met with are cycle tracks, motorways and canal towpaths.
It is important to appreciate that the legal status of a highway in terms of what rights of way exist over it is quite separate from the physical condition of the highway. This works both ways. The owner of land over which a highway lies may construct a road so long as he does not obstruct the rights of the public. Many farm access roads lie along footpaths or bridleways, and it is not particularly unusual today for these private roads to have a tarred surface. On the other hand, by no means all public carriageways are surfaced. Roads were not generally surfaced at all before the nineteenth century when stone surfaces were introduced. Tarred surfaces were not generally introduced until the development of motor traffic after about 1920. Although the bulk of ancient carriageways were improved to become the basis for the surfaced road network of today, this by no means applied to all. There remain significant numbers both of pre-nineteenth century roads that were never surfaced, and of the improved stone roads which were never tarred. Many of the roads that were never surfaced are now grass-grown and are thus referred to as green lanes, although the term has no legal meaning.
The nineteenth century stone roads usually survive as rough stony tracks, although failure to maintain them since the end of horse-drawn traffic means that many are fast deteriorating and becoming overgrown. Although these roads have rights of way for all traffic, they are almost exclusively used by non-motorised traffic and thus form an important adjunct to the network of bridleways and footpaths. They are increasingly being recognised as important for owners of horse-drawn carriages who are not allowed on bridleways and prefer to avoid motor roads.
Once a Highway, Always a Highway
One of the most vital aspects of English highway law is expressed in the maxim "once a highway, always a highway". What this means is that no highway can cease to exist simply through disuse. This was decided by the courts as long ago as 1315 and has very important implications for public paths. Indeed, it is probably this principle which is responsible for the rights of way network in England and Wales being the envy of many other countries throughout the world. It is logical to assume that most other developed countries originally had networks of footpaths and bridleways, but as economic development rendered them obsolete for day-to-day use they disappeared. But here the fact that the right of way could not be lost through disuse has meant that much of the network has survived to form the modern system of recreational paths. Even as close as Scotland highways can be lost through disuse and arguably Scotland has a much poorer rights of way network as a result.
There are, of course, a variety of ways in which highways can be extinguished through proper legal procedures. In addition a highway ceases to exist if the ground on which it runs is destroyed, for example by coastal erosion. But where the ground still exists the courts will not presume a highway to have been extinguished unless there is evidence that the proper procedures have been adopted. This means that if it is possible to prove that a highway existed at some point in the past and there is no evidence of it being properly extinguished, then it must be assumed that there still is a highway irrespective of how many years it has been disused. This is an important point where it is necessary to establish the existence of a path from historical evidence.
In the light of the importance of this legal principle and the fact that it has been accepted law for almost seven centuries, it is a curious fact that so many people in the countryside believe that paths will cease to exist if they are disused for some years.
Ownership of the Highway
It should already have become clear that a central part of highway law relates to the balance between the person who owns the land over which a highway runs and the public who have the rights over the land. It follows that there is no general rule that a public body owns the land over which a public highway runs. The majority of old highways run over privately owned land although in more modern times it has become necessary for additional land to be purchased for new roads and in these cases the land under the road will usually be owned by the highway authority.
Although at first sight ownership of the land under a highway appears to be of limited value, there are certain advantages. The owner has the air rights above the highway, which may be valuable in a city centre. He has rights under the road, which allows him to build cellars under the road or tunnel right through if he owns both sides. This also gives him mineral rights, which can be valuable in some areas. Of particular importance are the reversionary rights, which mean that if the highway is legally extinguished then the land reverts to him.
This means that a decision to extinguish a highway cannot be rescinded by the highway authority because all control over the land has passed out of their hands. Finally, the fact that the land is privately owned means that a person who goes beyond his basic right of passage commits a trespass against the owner. For example, riding a horse along a footpath without the owner's permission is a trespass against the owner.
In early times highways were the right of way rather than the physical construction. The common law position was that the owner of the land owned the surface of the highway. Although there was a public duty to maintain the highway there was no power to improve it. If the highway authority tried to improve the highway the owner could take action against them for trespass. If this had continued modern roads would have been impossible and so the law was changed during the nineteenth century. The modern position is that the surfaces of all highways that are maintainable at public expense are now vested in the highway authority which is also allowed to improve it.
When trying to understand the issue of it is necessary to appreciate the difference between criminal and civil law. Criminal and civil law represent two separate branches of the law, each with their own set of courts. Criminal law applies when a person is alleged to have broken the law and committed an offence. He may then be tried in a criminal court and if found guilty may then be punished. In contrast, the civil courts exist to decide disputes between individuals. For example, if A alleges that B owes him money, then he can sue B in the civil courts. If the court finds that B does indeed owe the money then it can order him to pay it. An extension of this is that A can also sue if he feels that B has wronged him in some way on which he can set a cost, for example if B has through his negligence damaged A's property.
At common law a trespass is not a criminal act. Thus apart from a few exceptions described below it is not possible for anyone to be prosecuted for trespass. Trespass is treated as a wrong for which the person aggrieved can only seek redress through the civil courts. The owner may order a trespasser to leave his property and if he does not then he may eject him without using unreasonable force. He may sue him for damages through the civil courts, but this is rare because there is normally no monetary damage which can be claimed.
In some special cases there are specific laws to make trespass an offence. It is, for example, an offence to trespass on a railway line, a motorway, a canal, reservoir land, Forestry Commission lands, and military areas and so on. But these represent only a small proportion of land and represent an exception to the general common law approach described above.
There are essentially two key sets of legal documents, which pertain to record public highways. These are the Definitive Map and Statement; and the List of Streets Maintainable at Public Expense
The Definitive Map and Statement
The concept of Definitive Maps was introduced by Part IV of the National Parks and Access to the Countryside Act 1949, which has now been succeeded by successive pieces of legislation, which will be the subject of other papers. The aim of the legislation was however, to record and maintain an accurate record of all known public rights of way (footpaths, bridleways etc) in England and Wales.
The primary value of these documents is that they provide legally conclusive evidence of the existence of the rights recorded upon them. This conclusive status is however without prejudice to the possible existence of higher rights (Wildlife and Countryside Act 1981, Section 56)
The List of Streets Maintainable at Public Expense
The List of Streets Maintainable at Public Expense, commonly referred to as a Council's Adopted Roads maps or similar, is also a valuable record of the existence of public highways, although its status of often misunderstood (particularly by local authority highway engineers). This document, whilst technically called a list, often comprises of a set of maps, which theoretically show all of the streets (highways) that the highway authority is duty bound to maintain.
It is important to recognise that the List of Streets does not provide evidence of the actual status of the routes recorded upon it, other than to say they are public highways. This is because its primary function is that of a record of maintenance liability, and not of status. Therefore in theory, in terms of status, the List of Streets only provides evidence of a minimum of pedestrian rights and can not be said in infer any higher rights.
In view of the fact that the vast majority of public rights of way that are recorded on the Definitive Map are also highways maintainable at public expense, they should actually be recorded on both sets of documents. Unfortunately this is often not the case despite highway authorities being under statutory duty to keep these records up to date.
Dedication of Highways
At common law a highway can only exist either because it existed in the year 1189 or has subsequently been dedicated by the owner and accepted by the public. The year 1189, incidentally, marks the death of Henry I during whose reign the English legal system was started. Customs of any sort that existed prior to that date are assumed to have existed from time immemorial and to be legally binding and this extends to highways. This is the legal basis of our very ancient highways such as those based on Roman roads.
Normally, however, highways come into existence by dedication and acceptance. This means that the owner voluntarily dedicates the route to public use and the public indicate that they are prepared to accept it as a highway. For a highway to come into existence both elements have to be present; it is no use to have dedication without acceptance or acceptance without dedication.
This process may be a formal one with the owner entering into a legal agreement to dedicate the highway and the highway authority, on behalf of the public, formally accepting it. But for many older routes there is no record that any formal process was ever gone through.
In such cases, however, the law can presume dedication. If a route has been used by the public for a good many years as if it were a highway with the public believing it to be a highway and the owner has known this and has done nothing to show that he has any objection, then the law will presume that it must have been a highway all along.
It is important to note that public use alone does not create a highway; it creates a presumption that the owner dedicated it which can be overturned by other factors. For example, if the owner put up a sign to the effect that he did not intend to dedicate then irrespective of the level of use he could not be presumed to have dedicated it. Where an owner allows the public to use a route but does not wish it to become a highway it is sometimes the practice to close the route one day a year to demonstrate that no dedication is intended. By a similar argument, a dedication cannot be presumed where use by the public is so secret that the owner could not have become aware of it.
Under the common law there is no fixed period of use that must elapse before a dedication can be presumed. Each case is considered on its merits. Where use by the public is considerable or where the owner has acted in a way consistent with dedicating the way, then the period can be quite short. On the other hand, if public use is slight, then a very long period would be required for dedication to be presumed.
To simplify the process, a more precise set of rules has been laid down by Parliament although the common law rules continue to apply as well. Under the statutory procedure, and in very simple terms, if public use can be proved over a twenty year period then dedication will be presumed unless the owner can show not only that he had no intention to dedicate but also that he made this clear to the public.
The main value of the legal principles concerning presumption of dedication is in deciding arguments concerning alleged highways. If an owner disputes that a particular route is a highway it is not necessary to establish when or how the route first came to be used by the public. It is only necessary to consider use over the previous twenty years. This is obviously of importance in protecting the many highways that have existed for centuries and where there are no records as to how the route came into existence.
Although the normal method of creating highways is by dedication and acceptance, it is also possible for highways to be created by statute. In some cases acts of Parliament specifically create a highway; more frequently the law authorises a procedure to be carried out that will create a highway. The highway will not come into existence until all the procedures specified in the law have been carried out, but once this has been done there is no need for the highway to be accepted by the public. This means that, in theory at least, a statutory highway may exist that has never been used by the public.
Highways created by statute are of particular interest to rights of way workers because there are normally records available of the process by which the highway was created and these are often conclusive evidence of the existence of the highway today, even if long obstructed or disused.
It should be noted that as there is no dedication of a highway created by statute, there can be no conditions or limitations on the dedication other than those specified in the process by which the highway was created. For example, a highway created by an enclosure award cannot be subject to a common law right to plough or to any limitations of gates and stiles other than those set out in the enclosure award.
Limitations and Conditions of Use
Because highways are assumed to have come into existence through the voluntary dedication of the owner, it is only reasonable that the owner is allowed to make some conditions. There are limits on this; a highway must be available to all the public all the time so that it is not possible to dedicate a highway only to residents of a particular area or one open on certain days only. The owner may, however, retain the right to do things on his land, which would otherwise be an illegal obstruction.
A key principle is that the public must take the highway as they find it. This means that if a highway was difficult to use at the time that the public accepted it then they later have no basis for complaint against the owner if it remains in the same condition. Features that legitimately make the highway more difficult to use are described as limitations on the dedication. For example, if a path runs over rough and stony ground then the owner is under no obligation to make the way smooth.
It is also possible for a highway to be dedicated subject to a condition allowing the owner to maintain features that would otherwise be regarded as an obstruction. The most common example is a condition that the owner may have gates and stiles. If there is a stile or gate on a highway at the time that it is accepted then the owner has a right to keep it there. It is important to note that it is impossible to dedicate a highway subject to conditions that prevent it being used; for example, it is not possible for a bridleway to be conditional on the right of an owner to maintain a stile on it.
A highway may also be dedicated subject to a condition allowing the owner to do things from time to time that would otherwise be an obstruction. The condition most frequently met with is known as a common law right to plough. If at the time a highway is accepted it is regularly ploughed then the dedication is assumed to be subject to a condition that the owner may continue to plough it.
Similar to the right to plough is the right to hold a market in a public street. It is interesting to note that the courts have held that where a market was not held for more than twenty years the right to obstruct the highway ceased because there was a later dedication not subject to the condition. It would appear from this judgement that where a path is not ploughed for a period exceeding twenty years then the common law right to plough will similarly disappear. Also if a gate or stile which is a limitation on a dedication is removed and not replaced over a period of twenty years then that condition also ceases.
Making Changes to the Network
As mentioned, highways are a legal entity, and are governed by a wealth of legislation dating back man years. It is also clear that a highway exists over a specific linear alignment and that it's course cannot alter, or indeed be altered, at will. Any change in the alignment of any public highway must be made by way of a formal legal process. In the past this was undertaken by the granting of court orders, or acts of parliament. Whilst these remedies are still available today, most public rights of way are diverted or extinguished using legal orders, introduced under various Acts of Parliament, which are generally known as Public Path Orders. Such Orders are open to public scrutiny and objection, and may only be made if the specific criteria of the legislation have been met. Public Path Orders are discussed in more detail in other papers.
Maintenance of Highways
For as long as there have been highways it seems to have been accepted that the public had a duty to maintain them. Traditionally this duty fell on the inhabitants of each parish who had the job of maintaining the highways in the parish for the benefit of all the public. Originally this was done directly by the inhabitants' own labour. In most areas this gradually evolved into a system where a payment was made instead of providing labour, the money being used to pay for maintenance to be carried out. The old system was not fully done away with until 1835 at which time the "statute labour" system was replaced by a formal system of highway rates. Since then various reorganisations have taken place and now the responsibility for maintenance rests with county councils, unitary councils or metropolitan district councils except for trunk roads which are the responsibility of Central Government through the Department of Transport.
Until the nineteenth century it was the rule that all highways were the responsibility of someone. In most cases the inhabitants of the parish were responsible but there were some cases where private individuals were responsible instead. As a general rule, however, once a highway came into existence it had to be maintained by the public. It was found that this could give rise to abuse because someone could dedicate a highway, which was essentially a private access road, and then the public would be obliged to maintain it. With properly constructed road surfaces increasingly coming into use in the nineteenth century this could have caused a serious financial burden on the public. To avoid this, the concept of adoption was introduced. This means that a new public highway is not automatically maintainable by the public until it has been formally adopted. Highway authorities have the option not to adopt roads that are not properly constructed or of little value to the public.
The adoption process was first introduced in 1801 for new carriageways created as part of enclosure awards and was extended to all carriageways in 1835. It was not extended to new footpaths and bridleways until 1949.
As it was not essential for all highways to be adopted, it follows that nobody may be responsible for the maintenance of a highway. In the early years the test of public utility was applied fairly rigidly and roads that were essentially local access roads were not adopted. Later, however, it was found that this gave rise to public health problems and local authorities were given powers to force urban streets to be properly constructed and then adopted. This applied even if they were of little use to the public, as is the case with cul-de-sacs and courtyards. The effect of the different approach in the early years has been a legacy of private streets; that is streets which are not maintained by the public although they may well be public highways.
The fact that a highway is maintained privately does not affect the rights that the public have over it. The highway authority still has a duty to make sure that it is not obstructed and can take legal action to enforce maintenance. The duty to maintain only extends to keeping the highway in the same condition as it has always been which bearing in mind the ancient origin of such roads normally only means to green lane standards.
It should be noted that many local authority staff confuse adopted highways with highways maintainable at public expense. Because roads will not now be adopted unless they are properly made up it tends to be assumed that unless a road is made up then it cannot be maintainable at public expense. But this is a fallacy as highways maintainable at public expense include roads which existed prior to 1835, roads formally adopted in the nineteenth century which have never been made up to modern standards and most public paths.
The requirement to maintain a highway essentially means to keep it in the same condition as when it was dedicated. The common law responsibility to maintain did not allow even an optional power to improve the highway and a highway authority attempting to improve could be sued for trespass by the owner. But in modern times the highway authority has been given wide powers to improve any highway that is maintainable at public expense.
In addition, the highway authority now has a lawful interest in the surface of a highway, which is maintainable at public expense. This appears to have been introduced originally to allow the authority to have control of adopted streets but as it has been extended to all highways maintainable at public expense, it now covers the surface of rights of way even where there is no made up surface.
We are obliged to Robin Carr Associates, Public Rights of Way Management and Consultancy Services of Northallerton, for a lot this information.