Taking action
This page highlights a series of guidance notes about preserving unrecorded rights of way from extinguishment on the cut-off day of 1 January 2031.
These notes, written by Open Spaces Society Chairman Phil Wadey, were originally published in separate editions of Open Space Magazine.
This article is a reprint with updates for 2025 from our Open Space magazine, Summer 2015, and is the first in a series on Taking action.
Our chairman Phil Wadey explains how you can ensure that you will not be losing vital sections of path on the cut-off day, 1 January 2031.
Section 53 of the Countryside and Rights of Way Act 2000 provides that footpaths and bridleways that existed on 1 January 1949 but are not on the definitive may on the cut-off day will be extinguished, subject to safeguards yet to be put in regulations.
The cut-off was to take effect on 1 January 2026 preceded by an intensive quarter century of identifying and applying for routes to be added to the definitive maps. The previous government brought the legislation into force but delayed the cut-off to 2031.
The present government has announced that it plans to repeal the cut-off but until primary legislation is passed, it remains in place, and so it remains essential that we carry out research and make applications for unrecorded, or under-recorded, paths to be put on the definitive map of rights of way—or they could be lost for ever.
Three categories of path are particularly vulnerable because they may be wrongly assumed to be correctly recorded and so no one will make an application for their retention. These are:
- paths shown on the Ordnance Survey map as ‘other routes with public access’ (ORPAs);
- definitive map anomalies; and
- routes straddling local authority boundaries.
ORPAs are shown with green blobs on the OS Explorer maps and red blobs on the Landranger series.
In the second article of a series about preserving unrecorded rights of way from extinguishment on the cut-off day, 1 January 2031, Phil Wadey explains how to start a systematic search for routes.
There are of course many ways of starting a comprehensive trawl for unrecorded paths but, with so many possible approaches, those wanting to perform research often just need a single method to get going. As ever when researching, it will be necessary to keep good notes of what is found and to take photographs or copies of any records examined. I use an old Ordnance Survey Explorer map for noting any routes I find.
I number these routes, so that I can refer to them when taking notes about what is seen on the historical documents. If you take good notes at this stage, whether handwritten or on a laptop or tablet, it will save much time later when you are compiling applications to modify the definitive map.
In the third article of a series about preserving unrecorded rights of way from extinguishment on the cut-off day, 1 January 2031, Phil Wadey looks at the use of tithe and enclosure records as evidence of highway status.
We saw last time (OS autumn 2015) how to be systematic in examining the 1910 Inland Revenue (IR) valuation-maps and related records in order to extract the most information from them. The aim was to look at each document just once (and photograph it) and to record each feature that might or could assist in proving a highway (footpath, bridleway or byway).
The method can be applied to other documents. After the IR documents the next most useful are the records relating to tithes and inclosures. These documents often reveal footpaths and bridleways as well as roads, whereas the IR documents might not show the exact routes of footpaths and bridleways for which tax deductions were claimed.
In the fourth of a series about preserving unrecorded rights of way from extinguishment on the cut-off day, 1 January 2031, our chairman Phil Wadey looks at routes that call for investigation.
In the last three editions of Open Space we have considered how to take action in respect of evidence found for rights of way that are unrecorded or under-recorded on the definitive map of rights of way. However, some people have questioned whether there are any unrecorded rights of way, or have otherwise wanted to know how to find routes that ought to be investigated.
Caption Highwoodhall Lane, Abbots Langley, Hertfordshire. Spotted as a route with public access but no longer to be found on the county’s list of streets in 2010. Restricted-byway status applied for on 20 September 2010. Photo: Phil Wadey
Some readers have even suggested that there may be no unrecorded ways in a whole county: in my experience this is most unlikely.
In this article we consider some starting points for research. They will not all produce paths that can be added to the definitive map, but many will. Each case will, as ever, need to be considered on its merits once evidence has been collected.
The relevant parts of the Deregulation Act 2015 have not yet been brought into force but could be introduced in England when the secretary of state wishes.
When you apply for the addition of a path to the definitive map, the surveying authority is required to determine your application within 12 months. If it has not done so, you can apply to the Secretary of State for the Environment Food and Rural Affairs, or the Welsh ministers, for a direction to the council to determine the application. There is no charge for the application.
Once the Deregulation Act 2015 takes effect in England, your application must be made to the magistrates’ court rather than the secretary of state. This is a drawback since current court fees are £205 to commence proceedings and £515 for a contested hearing.
So, if 12 months have elapsed since you certified to the council that you have told the owners and occupiers of your application, we urge you to apply now to the secretary of state for a direction to the council, and get in before the Deregulation Act comes into effect. The situation in Wales is less urgent.
For further information, have a read of the final edition in our 'Taking Action' series in which our chairman Phil Wadey explains why, in England, it is urgent for applicants for definitive-map changes to challenge councils which have failed to make progress with those applications. In the same edition linked above, he gives a short update on a recent case.
Receive the latest news to your inbox
Sign up to our monthly eZine to stay up to date with news, views, and more from the Open Spaces Society. Signing up takes less than two minutes.