Dead End for Historic Rights of Way?

A new cut-off date for adding unrecorded rights of way to the Definitive Map in England has been agreed by the Government.

The original cut-off date, set for 1 January 2026, for recording historic (pre-1949) rights of way on the map, was repealed in February 2022.

Defra has decided to proceed with a new date of 1 January 2031 and, to some extent, this appears to be in response to concerns raised by the CLA, which has worked extensively with civil servants and officials to find a workable solution.

The Definitive Map is intended to record all historic rights of way, and members of the public have long been able to apply to update it, where they have appropriate evidence.  However, the process creates a large degree of uncertainty for landowners.  An application can arrive at any time and the historic route is often disruptive and inconsistent with the current use of the land.

According to Defra, the cut-off date of 1 January 2031 will bring certainty to all parties, promote responsible access, protect nature and support people who work and live in the countryside. The CLA has welcomed the decision, and agree that it brings a degree of certainty to land managers in England. 

Mark Tufnell, President of the CLA, said that the current process has left rural businesses in limbo, with the potential of a claim hanging over every landowner indefinitely. He also highlighted the huge backlogs that local councils are already facing in dealing with claims that have already been submitted.

The vast majority of landowners support appropriate public access to land and want to ensure that people can continue to responsibly enjoy the benefits of the countryside in the decades to come.  It is not a case of wanting to prevent access however the uncertainty created by the old system was unworkable and a longstop date is both sensible and welcome. 

It is worth remembering that section 31(6) of the Highways Act 1980 provides a method to protect your land in a single process and does not require that you are aware of public use.  Both the CLA and the NFU recommend landowners make a deposit under s31(6)

Protecting your land under s31(6) is essentially a two stage process.  First, you must deposit your Highways Statement with the relevant Local Authority and then, once approved, you can move to stage two and make your Highways Declaration.

The beauty of s.31(6) is that once your Highways Declaration is lodged with the Council the process is complete and your land will have the benefit of protection for 20years.  However, this does not act retrospectively.  If rights have already been created, via long use by the public, then your deposit will have no effect on those rights and may trigger members of the public to try and get the rights recorded on the Definitive Plan.