Rights of way – lost highways
Many more landowners could face claims for rights of way following the recent ‘Don’t Lose Your Way Campaign’ by walking charity, the Ramblers.
The Ramblers’ campaign encouraged the general public to assist them in identifying ‘missing routes’, in order to re-establish them as public rights of way. Based on this research, the charity now estimates that more than 49,000 miles of footpaths are currently missing from the official record of rights of way, known as the definitive map and statement. If every one of these footpaths were to be registered as public rights of way, they say, it would increase the path network in England and Wales by up to a third, improving the existing network, creating new circular walking routes and connecting people more easily to local green spaces, nature and the countryside.
The Ramblers now plan to identify which paths would be the most useful additions, research the historic evidence for them, and then make applications to local authorities to add them to the definitive map and statement. Once legally recorded as rights of way, and added to the definitive map, they would be protected in law ‘for people to use and enjoy forever’.
Out of the blue
The Ramblers campaign was prompted by the fact that the Wildlife and Countryside Act 2000, s.53A provides a ‘cut off’ date of 1 January 2026 for applications based solely on historic evidence: after that date, no claim can be made solely on the basis of documentary evidence dating from prior to 1 January 1949. The Ramblers are clearly keen to make as many applications as possible before the ‘cut off’ date.
The Ramblers’ enthusiasm for reinstating such missing routes is unlikely to be shared by landowners who find themselves subject to a claim. Some of these routes will be not merely overgrown or unused, but will have disappeared entirely decades ago, and will now be entirely forgotten, superseded by later routes and roads or perhaps even built over. Reinstating such a route now may seem unfair and unjustified to the current owner.
As the Country Land and Business Association, in its report on rights of way, The Right Way Forward (February 2012), said:
‘It is wholly wrong, and defies all sense of propriety and logic, that paths which have been unused for decades, centuries or even at all, can be “discovered” out of the blue and opened up across land… when there has been no use within living memory and there is no evidence of a path on the ground.’
To understand how such ‘missing’ highways can suddenly ‘appear’ requires an appreciation, first, of the legal maxim ‘once a highway, always a highway’ and, second, of the limitations of the definitive map and statement.
‘Once a highway, always a highway’
The meaning of the legal maxim ‘once a highway, always a highway’ is relatively straightforward: it means that a public right of way (such as a footpath) does not cease to exist if no-one uses it:
‘Mere disuse of a highway cannot deprive the public of their rights. Where there has once been a highway, no length of time during which it may not have been used would preclude the public from resuming the exercise of the right to use it if and when they think proper’ (Harvey v Truro Rural District Council (1903) per Joyce J).
Because of this maxim, a highway can be shown to exist, not on the basis of recent use, but on historical evidence, eg old maps, guidebooks, journals. The difficulty for a landowner is that there is no way to prevent a ‘lost’ highway from being rediscovered, even though the existence of the highway may be universally unappreciated until the relevant evidence is assembled by the claimant.
The difficulty is particularly pronounced for purchasers as, of course, these ‘lost’ highways will not be recorded against the vendor’s title. Moreover, no purchaser is likely to carry out the detailed historical research which would be needed to discover the existence or otherwise of any potential historic rights across the land to be acquired. At best, a purchaser can make detailed inquiries of the vendor regarding his knowledge of the existence, or indeed the alleged existence, of any such rights – but the vendor may also be unaware.
‘Definitive’ doesn’t mean ‘complete’
Added to that, the definitive map and statement is not a complete record of all public rights of way – it is not ‘definitive’ in that sense. Rather, it is definitive evidence of the status of the ways which it shows and describes, ie a right of way which is shown on the definitive map and statement is a public right of way. Therefore, the fact a claimed route is not shown on the definitive map and statement does not mean that the route is not a public right of way.
Local authorities are the custodians of the definitive map and statement. Each local authority has a duty to keep the definitive map and statement under review and must modify it (ie by adding, diverting, re-classifying or removing rights of way) as required to reflect any new evidence which comes to its attention regarding rights of way within its area.
This duty allows an applicant to make repeated claims for the existence of a highway, submitting more and more historical evidence, until they are successful. On each application, the local authority has a duty to consider whether the new evidence submitted is relevant and, if it is, to investigate the matter.
Moreover, a local authority will not reject a claim based on historic evidence simply because that evidence was, in part, available at the time the definitive map and statement was created. Indeed, it need not do so even if the landowner demonstrates that the evidence was before the local authority, was considered, and rejected, in the course of preparing the definitive map and statement.
Because of the maxim ‘once a highway, always a highway’, if the local authority concludes, on the totality of the evidence now before it, that a highway existed, then it is irrelevant that the local authority previously considered that no highway existed. In short, the applicant need only succeed once.
Defeating a claim
There is likely to be a marked increase for claims for these ‘lost’ highways in the next few years, as the 1 January 2026 ‘cut off’ approaches, not least as a consequence of the Ramblers’ campaign.
Opposing a claim requires careful analysis of the evidence submitted and usually further research and expert assistance to ascertain the true nature of the route as it existed over time. Further research may show, for example, that the historic use of the way was permissive (eg it was used only to get to a private residence) or customary (eg a churchway) such that no public rights existed over it. Or evidence may be found to show that the highway was already stopped up, eg by court order, under emergency powers during World War II, or under railway or works legislation.
Alternatively, the landowner can accept the existence of the right, but seek to divert the claimed route to a new, more appropriate, alignment.