Unrecorded way to the west of Lifton church, Devon. No longer at risk of extinguishment?

In East Kent, near Wingham, a small town with mediaeval lineage, a footpath was diverted in the late eighteenth century. Plainly, the footpath irritated the owner of the park which it traversed, and it was diverted to a new alignment which was much longer (although allegedly more ‘commodious’), and barely any shorter than walking along the road. Even at the time, the diverted path passed in front of several cottages, presumably which were tenanted and whose tenants had no say in the matter. There can be little doubt that the old path ceased to be used at this time, but it is far from clear whether the new path became established. It does not appear on the first edition of the Ordnance Survey County Series twenty-five-inch map less than a century later, and its course can only be guessed at from the inadequate plan which accompanies the order. Suffice to say, its ‘imposition’ on the householder who now occupies those cottages (they are just one dwelling today) would be distinctly unwelcome and unexpected.

Strictly speaking, the footpath exists today, for the diversion order is conclusive evidence of its legal existence, and there is no subsequent record of its further diversion or its extinguishment. An application to the surveying authority (in this case, Kent county council) for a definitive map modification order, made under s.53(5) of the Wildlife and Countryside Act 1981, adducing evidence of the diversion order, is bound to succeed. The footpath would have little utility, running parallel to a country lane (whereas the original diverted path avoids an unpleasant walk along the main road). Under reforms promoted in the Deregulation Act 2015, but not yet brought into effect, the surveying authority could suggest a modification consent order to the owners of land affected by the application, which could divert the ‘new’ path to an alternative route, perhaps outside the curtilage of the dwelling. But as the householder does not own the land outside that curtilage, he or she would be ransom to the adjacent landowner, who might agree in return for a hefty fee. In that case, the householder would be no better off than now, by which he or she might seek a diversion order under s.119 of the Highways Act 1980, and accept liability for any compensation which (if necessary) a tribunal might award to other affected landowners.

As it happens, no such application yet has been made, and I do not intend to make one. Others might yet. That this might occur from the chance discovery of an old diversion order in the county archives, arises from the legal principle best encapsulated in the maxim, once a highway, always a highway (cited by Byles J in Dawes v Hawkins in 1860). A highway endures until lawfully it is stopped up under statute, or rarely, where it ceases to exist (as where a cliff-top path subsides onto the rocks below). In that respect, highways are becoming increasingly isolated in retaining their old, common law, rules of continuing subsistence. Over the past 50 years, several other ancient principles affecting land have become regulated into the modern era. Surrender of land to adverse possession is now rendered effectively voluntary in respect of registered land. Unregistered, non-obvious easements across land are not binding on successors in title. Obligations to repair the chancel of a church must be registered. Various land charges must be registered.

That a highway proven to exist in the eighteenth century, or earlier, but not heard of since, can be resurrected in the twenty-first century, is remarkable.  The legal principle fails to discriminate between ways which have been out of use for 250 years (or more), and those which have gone out of use in more recent times owing to obstruction or oversight.  It gives equal weight (in theory) to a rediscovered way across an open moor, and a built-over way through a recently-completed housing estate.

It is doubly extraordinary that the legal principle applies in an era when we have records of known subsisting highways — the list of publicly-maintainable streets held under s.36 of the 1980 Act (which primarily records public roads) and the definitive map and statement of public rights of way held under Part III of the 1981 Act. But neither record is complete — far from it — and the process for adding new ways to either record (whether arising from eighteenth century or contemporary evidence) is cumbersome and costly. Moreover, what is missing from the record is not just long-lost eighteenth century highways, but ways which endured well into the twentieth century. Most of these were omitted from the parish surveys conducted under Part IV of the National Parks and Access to the Countryside Act 1949 either because those in charge of parish councils and parish meetings decided that they were unwanted or troublesome (often the same people in charge as were interested in the land crossed by these ways), or because local authorities convinced them that they were publicly-maintainable roads which ought not to go on the definitive map and statement (some of which subsequently were scrubbed from the record).

It hardly is surprising that Part II of the Countryside and Rights of Way Act 2000 sought to bring some measure of closure to unrecorded highways. It did so (or would have done so) incompletely, by intending to extinguish from 2026, generally speaking, only unrecorded footpaths and bridleways (but not roads) which were in existence in 1949 (and therefore might be proven through the production of historical evidence). But it also did so indiscriminately — an indiscriminate response to an indiscriminate legal principle. It did not distinguish long-existing and well-defined ways from those which have had no physical existence for centuries. And it did not distinguish unrecorded ways which remain in use today (but are pre-1949 in origin) from those which had not been used for centuries — although undertakings subsequently were given to protect the former, just so far as continuing use could be proven to the required degree of regularity and consistency.

The 2000 Act was enacted by the then Labour Government, with a commitment from the Minister that funding would be provided to voluntary bodies to enable them to research and complete the definitive map and statement before 2026 and closure. That funding morphed into a project, Discovering Lost Ways, by the then Countryside Agency (subsequently Natural England) itself to research, identify and record ‘lost ways’, which was brought to a very premature halt on the grounds that the process for claiming and recording rights of way was not fit for purpose and required reform. A stakeholder working group was established in 2008 to consider potential reforms and reported in 2010 (Stepping Forward), and those reforms, allegedly consensual, were enacted in the Deregulation Act 2015. The group’s intention was that these reforms would be delivered and monitored long before 2026, to inform enactment of the cut-off provisions. But endless delay (the group had met once in the last three years) mean that those reforms in the 2015 Act still await implementation.

On 16 February 2022, the group met again, to be informed that Defra has decided not to implement the 2026 cut-off. On the face of it, this is a cause for celebration by supporters of greater access to the countryside. Research into unrecorded ways can continue without any impending closure to new claims. What’s not to like?

Quite a lot. The first downside is that abolition of the cut-off is not sustainable in the long-term. It merely has deferred a mechanism for bringing closure to unrecorded ways, but eventually, and perhaps not before too long, political pressure will build again to enact closure. Whether that will be done according to a constructive, consensually-prepared legislative agenda remains to be seen. Alternatively, perhaps something will be done in an even more damaging form than Part II of the 2000 Act (anyone remember the sudden extinguishing effect of s.67 of the Natural Environment and Rural Communities Act 2006 on public rights for mechanically-propelled vehicles?). Will it allow for a sufficient opportunity to complete the definitive map and statement in every part of England? I am not suggesting for a moment that the present Government will renege on its commitment now to repeal the 2026 measures: but sooner or later, a Government will have to revisit the matter.

What we need is a sufficiently-funded opportunity to properly research and bring up to date the definitive map and statement in each surveying authority’s area. How could that be done? Even now, Natural England has a strong, committed cohort of staff working on completion of the English coastal route. Their roles soon will come to an end. Give them new training on rights of way research (many of them will know plenty already), and second them in turn to surveying authorities to carry out research and process the findings into definitive map modification orders. When their work is done in each authority’s area, close the definitive map to new historical evidence.

The second drawback is that there are no immediate plans to repeal the cut-off provisions in the 2000 Act. Defra will await a suitable legislative vehicle. The provisions will not (Defra says) be brought into force, but in theory, pending repeal, they could be given effect at any time up to 2031 by making a small suite of statutory instruments. There is a significant risk if there is a future change of Government not bound by today’s disclosure, if repeal has not been effected.

The third is that Defra has decided to prioritise implementation of the right to apply for public path diversion and extinguishment orders. The right is conferred on landowners affected by public paths: the tests for making orders remain unchanged, but highway authorities are required to consider every application according to the tests, and with new supportive Government guidance. The right also was enacted in Part II of the 2000 Act, but the legislation was faulty, and required correction in the 2015 Act. It then was coupled with implementation of the 2026 cut-off, and therefore delayed in the same way. Not only will implementation of the right require highway authorities to consider making a diversion or extinguishment order on the initiative of the landowner, but it threatens to divert skilled and experienced rights of way staff, in local authorities, into processing such applications, and the orders which might arise from them. It may also have the same effect on staff and inspectors in the Planning Inspectorate, who will process appeals, and orders referred to the Secretary of State for confirmation.

The fourth is that the reforms in the 2015 Act are not now seen by Defra as a priority. It does not propose to repeal them — but equally, there is no timeline for their implementation. One of those reforms would have been highly advantageous to researchers — they would have been freed of the time-consuming and costly responsibility of notifying the owners and occupiers of land affected by an application (costly because identifying ownership usually means the purchase of titles from HM Land Registry, and service of notice by recorded delivery). Other reforms would have reduced the burden on surveying authorities, responsible for administering the definitive map and statement — they would no longer have been required to advertise public notices in local newspapers, they would have been able to weed out poor quality applications at the outset, and they would have acquired streamlined powers to correct administrative errors in the definitive map and statement.

Arguably, everyone might have benefited from the provision in the 2015 Act for modification consent orders (MCOs) — though perhaps not in the case cited in the opening paragraphs of this blog — which enabled the authority to negotiate passage for a definitive map modification order without objection, by agreeing with the landowner a package including any combination of diversion, reduced width and additional limitations (such as gates) not justified by the historical evidence. While MCOs were not obviously in the interests of the applicant for an order, they did offer an opportunity to ameliorate the embarrassment which might be caused by an application for a route which had a marked impact on land management or enjoyment.

None of these 2015 Act reforms necessarily now will be introduced. Some of them might be pursued at a later date, but only if it legally is achievable. For example, it has been suggested that provision for MCOs could be enacted in isolation, and indeed, it is contained in a free-standing insertion of ss.54B and 54C into the Wildlife and Countryside Act 1981 (see para.5 of Part 1 of Sch.7 to the 2015 Act). But those sections rely on the parallel implementation of Sch.13A and Sch.14A to the 1981 Act — and in my view, those Schedules are indivisible and now unlikely ever to be implemented. It is not entirely clear that transitional provision could be made modifying references to those Schedules, if the true intention is not to give effect to those Schedules at all.

In short, Defra risks throwing the baby out with the bathwater. A wide range of reforms, seen as essential irrespective of the cut-off date, now may never see the light of day. There is cause for all interest groups to lament this potential outcome.

The fifth objection is that the glacial processing of the group’s reforms has enabled Defra to sideline everything to do with rights of way for ten years or more. Any identified need for reform has either been referred to the group, or pigeon-holed for later. Revision of the Consistency Guidelines (the Secretary of State’s policy on interpretation of historical evidence) has been referred to the group: will it ever grapple with the guidelines? New regulations on public path orders were being drafted as a necessary consequence of the reforms, bringing a welcome opportunity to update and modernise, but very likely, now there will be no vehicle at all for changes. An update to Defra Circular 1/09 on rights of way was on the agenda: now perhaps nothing will emerge. After all, Defra now will be focused on bringing the right to apply into force. Above all, the proposals for monitoring the 2015 reforms, which surely would have shown that ever-diminishing capacity in surveying authorities has derailed the entire process, will not now take place.

The sixth and final objection is that abolishing the 2026 cut-off may engender a sense that now there is no reason to press on quickly with historical research. Researchers and user groups may let up on the throttle. Surveying authorities may divert resources to higher profile activities (such as obstructed paths, or processing public path orders — see above). That may be particularly regrettable if a future extinguishing provision is enacted with much less notice and fewer protections.

There still is cause for limited celebration. The 2026 cut-off was poorly targeted and would have had colossal unintended consequences. It is right to abolish it. But it is not the end of the story.

Postscript: On 22 March 2023, Defra sort-of announced (without making any announcement) that the 2026 extinguishing legislation would be implemented after all, but with the cut-off date set back to 1 January 2031. (It subsequently published a low-key blog on 24 March.)