Rights of way

Where they come from, how to keep them and how to stop them.

Footpaths and other rights of way have hit the news recently with The Ramblers' Association’s “Don't Lose Your Way” campaign, which uncovered almost 50,000 miles of historic rights of way missing from the definitive maps in England and Wales.  The organisation now hopes that many of these will be granted inclusion before January 2026 (when the opportunity to register rights of way on the basis of historic evidence is lost). 

Definitive maps

The ‘definitive map’ is central to the rights of way system in England and Wales and provides an official record of the rights of way in an area.  The map is the responsibility of the County Council/ unitary authority.  New rights of way can only be added by a Definitive Map Modification Order (“DMMO”).  These are granted on one of three specific grounds: a) the existence of a legal agreement or order effecting a right of way, b) establishment of the way through public use over time; or c) historical evidence of a right of way which was wrongly left of the original definitive maps of the 1950’s and 1960’s. 

It was a desire to rectify the missing historical rights of way that prompted the Ramblers’ Associations’ campaign.  However it is claims of public use through time which can cause the greatest concern to landowners and it is this which is considered in more detail here.

Proving public use over time

The criteria that need to be met to show a claim for public use over time are set out in Section 31 of the Highways Act 1980.

These are as follows:

  • A period of at least 20 years uninterrupted use by the public. This is counted back either from the date when the public’s right to use the way was first challenged (e.g. when the way was blocked up), or if it hasn’t been challenged, from the date of the application;
  • Use must be 'as of right'. The route must have been used without force or secrecy (although the landowner does not have to be explicitly aware that the route is used).  The public do not need to believe they are using an official right of way, but they must do so without having the landowner’s permission (if they had permission, they would no longer be using it ‘as of right’);
  • Use must be by the public in general rather than a specific group (e.g. employees of the landowner);
  • The route must be linear (e.g. not all over a field).

Landowner protection

What then can landowners do to protect themselves from such claims?

Just as users seeking to establish a path need to submit evidence to prove they do have a right of way, landowners can also submit evidence to the relevant Council to prove no ways exist.  The process is known by the memorable description: “Landowner deposit under section 31(6) of the Highways Act 1980”.

The deposit has two stages.  The first is the deposition of a map of the land along with a "highways statement", usually via the Council website.  Then, following receipt of these by the Council, the landowner provides a specifically worded "highways declaration" showing which public rights of way exist (if any). 

Once a valid deposit has been made, this stops the clock on any new acquisition of public rights by usage.  It will also offer an effective challenge against any future claims for the next twenty years. 

However, landowners should be aware that the method does not eliminate all claims:

  • a right of way could still be established if twenty years of continuous and uninterrupted use can be proved to have existed before the deposit was made.
  • The deposit does not protect landowners from public rights of way established through historical evidence (e.g. old maps), although proof of these will only be accepted until January 2026.

Practical steps to prevent claims of public use

As well as submitting a deposit under Section 31(6) of the Highways Act, there are also a number of practical steps a landowner can do to prevent future claims of public usage being established.

These include:

  • clearly displaying notices on a route to state it is private;
  • putting up (and occasionally locking) gates. These don't need to keep people out permanently, but periodically rendering the way inaccessible operates as evidence against public usage, and
  • by maintaining fences and boundary walls (if relevant).

The important thing is that these actions must be clearly noticeable, so that it is obvious to a member of the public that the route is private.  Keeping photographic evidence (including the date such steps were first taken) will also assist in the event of any claim.

Posted on: 11/11/2020

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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