Ascertaining and Recording Rights of Way
| Author | William Webster/Robert Weatherley |
| Pages | 219-231 |
INTRODUCTION
21.1 Certain rights of way (footpaths, bridleways, restricted byways and BOATs)
21.2 Those seeking to develop land are well advised to consult the definitive map to ascertain where such rights exist over development land, but should be aware that the map itself may not provide the full picture, as such rights may arise but have yet to be recorded.
WHAT IS THE DEFINITIVE MAP?
21.3 Those seeking to consult the definitive map and statement may find that there is more than one map and statement kept by the authority for their area (although provision is now made for consolidation)
220 Restrictions on the Use of Land
21.4 The term was originally introduced by virtue of the National Parks and Access to the Countryside Act 1949, which required the council of every County in England and Wales to ‘carry out a survey of all lands in their area over which a right of way … is alleged to subsist’ and not later than 3 years thereafter, prepare a draft map.
21.5 Changes were subsequently made by the Countryside Act 1968, the WCA 1981 and the Countryside and Rights of Way Act 2000. It is beyond the scope of this book to consider the full history of the statutory law surrounding the definitive map, for which a different text should be consulted,
(a) the latest revised map and statement prepared in definitive form for that area under section 33 of the National Parks and Access to the Countryside Act 1949; or
(b) where no such map and statement have been so prepared, the original definitive map and statement prepared for that area under section 32 of the National Parks and Access to the Countryside Act 1949; or
(c) where no such map and statement have been so prepared, the map and statement prepared for that area under section 55(3) of the WCA 1981.
21.6 The definitive map itself is based on an Ordnance Survey map on a scale of not less than 1/25,000.
INCLUSION OF RIGHTS ON THE DEFINITIVE MAP
21.7 Inclusion of a right of way on the definitive map and statement is, conclusive evidence that, at the relevant date (as defined below), such a right existed; in most cases such a right is without prejudice to any other right that might exist. Thus the map is conclusive of the lesser, but does not preclude the greater existing. In the case of:
(a) Footpath – inclusion on the map is conclusive evidence that there was at the relevant date a highway and that the public had a right of way on foot,
without prejudice to any question whether the public had at that date any other right of way.
(b) Bridleway – inclusion on the map will be conclusive evidence that there was at the relevant date a highway and the public had a right of way on foot and a right of way on horseback or leading a horse, without prejudice to any other right that might exist.
(c) Restricted byway – the map will be conclusive evidence that at the relevant date a highway as shown on the map existed and that the public had at that date a right of way on foot, horseback or leading a horse, together with a right of way for vehicles other than mechanically propelled vehicles,
without prejudice to any other rights that might exist.
(d) BOAT – the map will be conclusive evidence that there was at the relevant date a highway as shown on the map and that the public had thereover a right of way for vehicular and all other kinds of traffic.
21.8 Where the statement contains particulars as to the position or width of the way, or contains particulars in relation to any limitation or condition upon the way, that too will be conclusive evidence of the way’s width and position at the relevant date. The relevant date for the purposes of the definitive map in most cases will be the date specified in the statement, but where a way is shown as a result of a modification order, the relevant date will be the date specified in the order.
21.9 It may be subsequently claimed that a greater right than that which is included in the statement exists, or that by error, the map wrongfully included a way at the relevant date. In each case, the rights are expressed to be without prejudice to ‘any question [as to] whether the public had at that date any right of way [other than the right provided for in the definitive map and statement]’. Such rights may naturally change over time so as to expand, for example, to include rights by other modes of travel. The mere fact that the definitive map is said to be conclusive that such a right exists at the relevant date, does not preclude rectification of the map where evidence comes to light from before the relevant date that the right has been erroneously included.
222 Restrictions on the Use of Land
ROADS USED AS PUBLIC PATHS
21.10 ‘Roads used as public paths’ or ‘RUPPs’ were formerly recorded on the definitive map and may still be discovered on some older maps. A RUPP was defined as ‘a highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways...
To continue reading
Request your trial