Claiming Rights of Way

Cyclists can lawfully cycle on bridleways, restricted byways, byways, and roads used as public paths (RUPPs). These are indicated by blue waymarkings for bridleways, and red waymarkings for byways.

A list of all recorded public rights of way is kept in each local authority’s offices, and is called the definitive map.

What is the definitive map?

The definitive map contains information on all recorded rights of way for the region. Although the presence of a route on the map is evidence that the way is a right of way, it does not become a public right of way by being added to the map.

What about trails which are not on the definitive map?

Just because a route is not on the map does not mean that it is not a right of way. Likewise, just because a way is recorded as a footpath does not mean that there is not be an unrecorded right of way for cycling on it.

How does a right of way come into existence?

Public rights of way can come to exist through creation or dedication.

Local authorities have powers to create new rights of way, or they can make a creation agreement between themselves and the landowner to create a new way. When creating a way, the authority should update the definitive map, but even if they do not, the creation order, or creation agreement, is evidence that the way is a public right of way.

In some instances the landowner may have expressly dedicated the way to the public, which normally can be proven by reference to a deed or other historical document. The landowner must show an intention to dedicate the way, which must be dedicated for the public at large, and the public must accept this dedication by using the way. The dedication must be for all time.

However, the most common way in which a right of way comes into being is through presumed dedication. Here, the landowner is presumed to have dedicated the trail as a right of way, and this is normally inferred by the public using the way for an uninterrupted period, normally of twenty years. Members of the public can claim such ways by showing evidence, either documentary (such as photos and documents) or anecdotal (such as witness testimonies) that the way has been used continuously during the required period.

What do I do if I think I know of an unrecorded right of way?

The first thing to do is to check the way’s status against the definitive map. If it is not recorded, or if it is recorded but as a lesser class of way (e.g. a footpath which you believe to be a restricted byway), then you should contact the highway authority to check whether they believe it to be a public highway. If they accept that it is a highway, then they may be able to take action to reassert the public’s right to use the way.

Assuming the way is neither correctly recorded on the map, and that the highway authority does not believe it to be part of the public highway, then you should begin compiling evidence of use for 20 years or more. Although most authorities will usually accept claims if at least half a dozen witnesses can testify to use ranging over this period, it is recommended that you gather as many witnesses as possible.

Once you have enough evidence, then you may apply for a definitive map modification order (DMMO).

What if someone challenges my right to use an unrecorded right of way?

If the public’s right to use what you believe to be an unrecorded right of way is challenged, whether by the landowner themselves, by a locked gate, or a “Keep Out” sign, then, as with an unprompted claim, you may claim the path as a public right of way.

It is recommended in this instance that you do submit a claim, because otherwise you will lose the right to use the way.

How do I make apply for a definitive map modification order (DMMO)?

Anyone with either anecdotal or documentary evidence which shows that a unrecorded right of way subsists (or may be reasonably alleged to subsist) can apply to modify the map by the addition of the way. There is no charge for applying for a DMMO, and you must fill out an application form and return it to the authority, send a notice to all the affected landowners, and send a certificate of service of notice to the authority to assert that you have notified all the landowners.

By far the most complicated part of this process is notifying the landowners. A search can be undertaken with the Land Registry (http://www.landreg.gov.uk/), but not all rural land has been registered, and neither the Registry nor the local authority may have any information as to who owns the land. In this case you should contact the authority, who have the power to authorise placing a notice in a prominent space, such as on a tree or fence.

What happens next?

Once the authority has received the certificate of service of notice, it must investigate the claim, and having consulted with the relevant council or national park authority, decide whether to make the order. There are three different statutory tests which the authority can apply to a claim, and each has a different procedure to follow. They are outlined in Sections 53(3) of the Wildlife and Countryside Act 1981:

Under 53(3)(b) the authority may make an order based on evidence that the way came into existence through presumed dedication following use over a period of time.
Under 53(3)(c)(i) the authority may make an order to add an unrecorded right of way based on discovered evidence that shows a right of way not shown on the map subsists or is reasonably alleged to subsist. These orders can be made by evidence of either 20 years user or common law user (which may be less than 20 years), and / or documentary evidence.
Under 53(3)(c)(ii) the authority may make an order to show that a way already on the definitive map ought to be shown as a way of another description, such as a footpath shown as a bridleway, or vice versa.

Once the authority makes the order, then they will inform the public, to give people the chance to refute the inference that the route was dedicated as a public right of way.

If you are trying to get an unrecorded right of way recognised, then it is recommended that you aim to get your case examined under s.53(3)(c)(i), because the test which you case must pass before the authority can make the order is less stringent: the authority must be satisfied that the evidence indicates that there is a good chance that the right of way subsists, whereas under s.53(3)(b) they must be satisfied that the evidence indicates that a right of way subsists.

How are objections dealt with?

Once the authority has made the order, it must advertise the fact, and allow 42 days for objections. Anyone may object, but as the order deals with existing rights of way, not potential rights of way, then concerns based on environmental grounds or matters of privacy do not apply, as the debate surrounds matters of fact: is there sufficient evidence of use, and is there evidence that the landowner did not dedicate the way?

If any relevant objections are lodged, then the matter must be referred to the Secretary of State for Environment, Food and Rural Affairs, although in practise this is dealt with by a Government agency acting on her behalf called the Planning Inspectorate.

If there are no objections, then the authority should confirm the order and the way is recorded. This confirmation secures the public’s right to use the way.

What does the Planning Inspectorate do?

The Inspectorate appoints an inspector, who decides whether to hold a public inquiry, or to ask for written representations. This is usually decided on the basis of the number of objectors; the more objectors, and the more complicated their objections, the more likely the case will be decided through an inquiry.

What happens if the inspector calls for written representations?

If the inspector asks for written representations, then interested parties will be given notice of the authority’s statement of case, and invited to comment. The inspector will make a site visit. Correspondence is exchanged until no-one has anything further to say. The inspector can choose to take the matter to an inquiry should he decide that it has become necessary.

After the exchange has concluded, the inspector will make his decision, and notify all interested parties.

What happens if the inspector calls for a public inquiry?

If the inspector decides on an inquiry, then the Inspectorate should try and hold the inquiry at a date which is convenient for all parties, and at a location near the trail. The inquiry must be advertised at least 14 days before, in the local paper and at either end of the trail. This is the authority’s responsibility. Anyone who made representations before the inquiry is invited to submit a proof of evidence at least three weeks prior to the day of the inquiry.

The authority will argue your case, but is likely to call you as a witness. You can also supply your own separate proof of evidence to the inspector. In some instances (such as where, under a Schedule 14 appeal where the Secretary of State has ordered the authority to make the order) the authority may take a neutral stance, and ask you to argue the case in its place.

The inspector will usually ask the authority to submit its case first, although this need not be the case. Both sides are permitted to employ professional representation and to cross-examine witnesses.

When the evidence-taking is over, the inspector will close the inquiry with a site visit, which anyone is entitled to attend. This is not for raising new evidence, but to enable the inspector to get an idea of the physical layout of the area.

Can the order be modified?

Sometimes, the evidence taken at the inquiry points towards a right of way with a different status from the one advertised in the order: a claim submitted by horse-riders for a bridleway may find support from cyclists or carriage drivers, indicating that the way ought to have the status of a restricted byway. The inspector can modify the order, but must then re-advertise the modified order, and solicit objections. This may necessitate a new inquiry altogether.

What happens next?

The inspector considers the evidence, and makes his decision. Once this has been made, there is no right to further inquiries or representations. It is, however, possible to challenge the decision through the courts.

Assuming that the decision goes in your favour, then the authority should automatically make the modification to the definitive map, which endows the right of way with a protected status.

CTC Charitable Trust - Registered as a charity in England and Wales number 1104324 and in Scotland number SCO38626