Rights of Way: Parish role in preparing the definitive map

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The parish role in preparing the definitive map

From this fact sheet brought to you jointly by the Open Spaces Society and  the British Horse Society we will explain how parish councils made mistakes in preparing the first definitive map of rights of way.

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1. Summary

1.1 Part IV of the National Parks and Access to the Countryside Act 1949 (‘the 1949 Act’) laid the foundations for the definitive maps and statements[1] of public rights of way in England and Wales. It required surveying authorities[2] to prepare a draft map for their areas, and it required parish councils and parish meetings to co-operate with surveying authorities in preparing the draft map.  The parish role was fundamental, and sought to ensure that public rights of way — many of them little-used or derelict — were correctly identified for inclusion on the definitive map.

1.2 But for various reasons, parishes were not infallible. Their input into the process could be beneficial, malign, or both. The parish role was key to the process, and in many cases, parishes undertook remarkably thorough surveys. But parishes did not necessarily identify all public rights of way within their area, and even if they did, not all eligible ways were put forward for recording on the definitive map, and others were recorded with a lesser status. Parishes’ conclusions on what ways should be shown on the definitive map, and what should not, frequently are not reliable indicators of what ways were, at that time, eligible to be recorded as public rights of way, and many such ways were incorrectly omitted.

[1] We refer subsequently to the ‘definitive map’, or the parish, draft or provisional map, but this should be taken to include any statement which accompanied the map.

[2] Surveying authorities then (as now) generally were the county councils, but at that time also included county borough councils.

2. The parish process

2.1 Part IV of the 1949 Act[1] required a surveying authority to prepare a definitive map of public rights of way. Under s.27(1), the authority was to ‘carry out a survey of all lands in their area over which a right of way…is alleged to subsist’, and initially, to show such ways on a draft map.

2.2 The initial survey requirement imposed on the surveying authority set a very low bar to the identification of a right of way: it was to ‘survey…lands…over which a right of way…is alleged to subsist’. A mere allegation of a right of way was sufficient to trigger the survey requirement.  It was not necessary that the allegation be reasonable[2] But the authority then was required to show on a draft map only those ways: ‘wherever in their opinion such a right of way subsisted, or is reasonably alleged to have subsisted’.  Thus an allegation from a parishioner that there was a certain footpath called upon the authority to survey it — but it ought not to have been shown on the draft map if the allegation was determined not to be at least reasonable.

2.3 Under s.28(1), the surveying authority was required to consult with its district and parish councils on the arrangements for the provision of information by those councils to contribute to the draft map.

2.4 Under s.28(3), those arrangements were required to include provision for each parish council to hold parish meetings, and for parish meetings to be held where there was a parish with no council. And under s.28(4), every parish council had a duty ‘to collect and furnish to the surveying authority such information, in such manner and at such time, as may be provided for by [the] arrangements agreed or determined’.

2.5 Those arrangements typically called upon the parish council to conduct a parish survey, which was marked up on a base Ordnance Survey map (provided by the surveying authority, and often already marked up with acknowledged publicly-maintainable roads) and described in a schedule of paths. The survey might have been done by parish council members, local volunteers, or representatives of user groups[3]. The survey then was considered by the parish council and by the parish meeting, so that the parish council would put forward a revised version of the survey for adoption by the surveying authority. In rural districts, the rural district council might co-ordinate the survey process among its parish councils.

2.6 In practice, the duty on the surveying authority to survey every right of way alleged to subsist was likely effectively to be discharged by the parish council, as part of its parish survey. An allegation of the existence of a right of way might be made by the parishioner to the parish council, which would consider the allegation and, if it acted in accordance with the spirit of the 1949 Act, survey the way.

2.7 Different parishes relied on different source materials. Undoubtedly, the key source was local knowledge.  ‘The definitive map…was based on evidence then available, including, no doubt, the evidence of the oldest inhabitants then living.'[4] Ways might have been included in the survey for reasons such as that they were:

  • in regular use
  • green lanes
  • indicated by path furniture (such as finger posts, stiles, hand gates and bridges), which might have been maintained by the parish
  • identified by local inhabitants
  • known to local user groups
  • shown on earlier path surveys (such as maps drawn up by some councils following the Rights of Way Act 1932)
  • described in historical documents (such as an inclosure award)
  • shown on Ordnance Survey maps (though, if so, not expressly identified as public rights of way)

Any of these reasons might well have given rise to an allegation that a right of way subsisted.

2.8 Parish councils were informed by guidance. They ought to have received a copy of Surveys and maps of public rights of way for the purposes of Part IV of the [1949 Act], a memorandum prepared by the Commons, Open Spaces and Footpaths Preservation Society (now the Open Spaces Society) in collaboration with the Ramblers’ Association and approved by the Ministry of Town and Country Planning (January 1950)[5]

2.9 The information provided by parish councils and parish meetings to the surveying authority was to be used by the authority to prepare, within three years of the commencement date (16 December 1949), a draft map, showing any footpath or bridleway which subsisted, or was reasonably alleged to subsist. It was also required to show on the draft map any way which was, or was reasonably alleged to be, a road used as public path.[6] It may be noted that the correct test to be applied whether to show a right of way on the draft map was a reasonable allegation (at least) of its subsistence.  Thus, any right of way alleged to subsist was to be surveyed (typically by the parish council), and the surveying authority was to include it in the draft map only if the allegation was determined to be (at least) reasonable.

2.10 The 1949 Act provided no machinery for sifting out reasonable from unreasonable allegations, but in practice, the parish council is likely to have played a key role in advising the surveying authority. Guidance from the Ministry of Town and Country Planning advised that: ‘All the paths likely to come forward for serious consideration should, if possible. be included in the draft map, and border-line cases should be decided in favour of inclusion rather than omission at the first stage[7]'.  The memorandum referred to in para 2.8 above gave guidance on ‘how most public paths can be recognised’[8] and included a list of indicators that 'paths are likely to be public’ — including:

  • Where they have been signposted by the County, District, or Parish Council.
  • Where they are, or have been, provided with stiles, wicket gates, footbridges, stepping stones, or other means of passage.
  • Where they, or any of the means of passage along their route, have been repaired at the public expense.

2.11 The memorandum suggested that the parish committee should mark up, lightly in pencil, ‘All paths about which there is any reasonable doubt’[9] about which further information was to be obtained (such as evidence of use by old inhabitants). It continued:

If there is sufficient evidence from which it is reasonable to conclude that there may be a public right of way, the Committee should decide to treat it as public and should mark in the path firmly with a continuous line; if the evidence is insufficient the broken line should be rubbed out.


[1] Part IV of the 1949 Act can be found in its original form (as enacted): www.legislation.gov.uk/ukpga/Geo6/12-13-14/97/contents/enacted.

[2]  C.f. paragraph B.9, and with the test specified today in the Wildlife and Countryside Act 1981, s.53(3)(c)(i) to trigger a surveying authority’s duty to make a definitive map modification order where a right of way ‘subsists or is reasonably alleged to subsist’.

[3] Such as the Commons, Open Spaces and Footpaths Preservation Society (now the Open Spaces Society), the Ramblers’ Association, the British Horse Society and the Youth Hostels Association.

[4] R v Secretary of State for the Environment, ex parte Hood [1975] 3 All ER 243 per Lord Denning MR at 248. In 1950, an 80-year-old parishioner would have been born in 1870 and adult in 1891.

[5]  Available in the ‘Blue Book extra’ (pp.96–105), an online supplement to Rights of way: a guide to law and practice, 4th ed., by John Riddall and John Trevelyan. Ministry of Town and Country Planning Circular 81/1950, para.3, stated that: ‘County Councils will shortly receive sufficient copies of this pamphlet and of this circular to supply two copies to each borough and district council in their area, and one copy to each parish council or parish meeting’.

[6] A road used as public path was defined (1949 Act, s.27(6)) as, ‘a highway, other than a public path, used by the public mainly for the purposes for which footpaths or bridleways are so used.’

[7]  Ministry of Town and Country Planning Circular 91/1950, para.5.

[8]  See fn.5 above, at s.2(v).

[9]  S.3(f).

3. Defects in the parish process

 Exclusion of historical evidence

3.1 Parish councils generally were good at synthesising parish maps from local knowledge. Typically, parish councils mapped those ways which were in use at the time or the recent past, with a reputation for being public.

3.2 But parish councils did not necessarily have access to historical documentary evidence. Such evidence would have included tithe maps and apportionments, railway plans and old Ordnance Survey County Series maps and area books — but except where copies were held by the parish, these were primarily available at the county archives.  It is possible that some such evidence was produced and acted upon by the surveying authority, or researched by the parish council.  But there seems to have been no nationally systematic process to ensure that such evidence was used to inform parish council surveys — although some surveying authorities were assiduous in researching the known and available resources, and using them to inform the preparation of the draft map.  Moreover, some of the evidence available to us today was not available at the time of the 1949 Act survey (e.g. the Finance Act Survey) [1], was not held locally (being held at the Public Record Office[2]), was not widely understood to be relevant (e.g. proposals to lay lines in roads under the Electricity (Supply) Acts 1882 to 1922, or the National Farm Survey maps dating from the Second World War), or was not practicable to research (e.g. local newspaper archives which now can be searched electronically and online).

3.3 This is the first defect in the parish process — that parish councils generally did not have or seek access to all the common historical sources available to researchers today. Most ways were recorded by parish councils only because they were reputed to be public paths, and were believed to have been used by the public for many years.

3.4 Had parish councils had greater recourse to historical sources, they might have included other ways for which historical evidence of status existed, but which were no longer in frequent use, claimed by landowners or occupiers to be private, or perceived to be of a lower status than the historical evidence indicated. And they might have excluded ways which historical evidence demonstrated were not public in origin.

3.5 Such historical evidence may be used today to support a definitive map modification order to record or amend the record of a way. In that event, it cannot be assumed (unless there is evidence to the contrary) that the parish council, in omitting that way from its parish survey, or recording the way with inferior status, was aware of all the relevant historical evidence for the way. It may be that the council had regard only to local knowledge of current or recent use.

3.6 But if, as was often the case, there was a paucity of use of a way during the era leading up to the 1949 Act process (typically, during the inter-war period and in the years immediately after the Second World War), that shows only that the reputation of the way, as a public right of way of particular status, had begun to recede during that period. Such a diminution in use cannot depreciate good evidence of reputation from an earlier era, least of all if there is no evidence that the parish council considered such evidence at the time.

3.7 For example, a parish council may have had recourse to an inclosure award in preparing its parish survey — in that event, it would be reasonable to expect that the council accurately recorded what was shown in the award (as to, for example, alignment and width). In the absence of an accurate record, it may be reasonable to infer that the inclosure award was not available to the council.

Omission of ways on inappropriate grounds

3.8 The surveying authority was required to prepare a draft map showing rights of way which subsisted, or were reasonably alleged to subsist.

3.9 It is doubtful that all parish councils were properly informed of their role at this stage, and so far as they were, whether they fulfilled that role in accordance with the statutory requirement.  It may be that a parish council, apprised of an allegation of the existence of a right of way, took it upon itself, or was advised by the surveying authority, to consider that allegation, to survey the alleged right of way, and to reach a decision as to whether the allegation was reasonable[3]. If so, the parish council acted correctly if it advised the surveying authority of its findings, so that the authority could decide whether to show the alleged right of way on the draft map[4]

3.10 It might also be said that the guidance in the memorandum[5]  imposed on parish councils a more demanding test than the legislation required, by commending inquiry into ‘All paths about which there is any reasonable doubt’, and the deletion of paths where the ‘evidence is insufficient’.  The guidance might be inferred to require that a parish council were satisfied of the existence of a path beyond ‘any reasonable doubt’, or at least on the balance of probability — in either case, a test substantially more demanding than that of a reasonable allegation.

3.11 Parish councils are the most subsidiary unit of local government. Most parish councils, then and now, do not benefit from legal advice, and meetings generally are not supported by a legally qualified officer.  Instead, parish councils are advised by a clerk, who is not normally legally qualified, and may lack detailed knowledge of laws relating to the council’s functions.  While today, training for clerks is considered routine, there was little systematic training in the 1940s and 1950s, and the duties imposed by Part IV of the 1949 Act were novel[6]. It is questionable whether the parish clerk would have understood the distinction to be made in deciding whether to include a path in the parish survey on the basis of an allegation, a reasonable allegation, on the balance of probability, or beyond reasonable doubt.  And therefore it is questionable whether the parish council was likely to be properly advised in reaching such a decision.

3.12 In relation to their conduct of a parish survey, parish councils were advised by the surveying authority and, where appropriate, the district council. However, many decisions were likely to have been taken at meetings of the parish council and parish meetings which were not attended by an officer from a superior council (and even if they were, that officer was unlikely to be legally qualified).

3.13 Moreover, in this earlier era, soon after the Second World War, many parish councils were chaired by, and often dominated by, landowners, their tenants, and farmers generally. There frequently was a majority of such interests in control of the council, if it were minded to diminish evidence of the existence of rights of way.

3.14 Recreational riding activity was at a low ebb. The equine population had been suppressed by losses in the First World War, the shortage of feed during the Second World War, and post-war austerity.  The horse and cart were no longer being used for transport (the market once again saturated with military-surplus vehicles), while the enjoyment of recreational riding was largely confined to a small segment of the farming and landowning population (typically, those engaged in hunting).

3.15 In the context set out above, a parish council may have omitted a way from the parish map where the way was eligible to be recorded on the map (and so on the draft map), because:

  • The parish council may have applied the wrong test to determine whether the way should be included in the parish map. A council ought to have surveyed any alleged right of way, and may have elected to exclude any way if it considered that the allegation of its subsistence was unreasonable.  But the parish council may have gone further, and sought to determine on the balance of probabilities, or beyond reasonable doubt, whether the alleged right of way did, or did not, subsist (which it ought not to have done).
  • The parish council may have overlooked the way (such as where the way was mainly in a neighbouring parish), so that it was neither surveyed nor appraised.
  • The parish council may have considered the way, but concluded it was not a public right of way on the information then available to it (which would not have included the Finance Act evidence, and may not have relied on any documentary evidence at all — see Exclusion of historical evidence above).
  • The parish council may have concluded that the way was not a candidate to be recorded on the definitive map and statement, because it was a public road, lane or drove and perceived not appropriate to a record of ‘footpaths’. Some surveying authorities provided parish councils with maps which showed county-maintainable roads already marked up in colour so that the council firmly was discouraged from recording the roads — but some of these roads subsequently were deleted from the highway authority’s list of streets[7]
  • The parish council may have decided not to claim the way as it was little used, intrusive, burdensome to maintain, or otherwise undesirable from the councillors’ or other local perspective, or taking into account other improper considerations. For examples of such considerations, see the annexe below.

Or the parish council may have recorded a road as a bridleway or footpath, or a bridleway as a footpath, because there was little awareness of, and little perceived need to protect, higher rights, and minimal recreational equestrian use of ways to remind people of their true status.

3.16 Very often, there will be no record of why a particular way was omitted from the parish survey, or recorded with an inferior status. It will not be known whether the parish council expressly considered, and discarded, the way (and if so, why, and what test was adopted), or whether it was not considered at all.  Sometimes, records may show that a particular way was indeed considered, but that it was discarded without any coherent reason being given.  Or a reason may be given, albeit unsatisfactory (e.g. ‘path deemed not to be a public right of way’).  It is not unusual to discern from the written record that the parish council believed that it was empowered to select which rights of way should be recorded, and to dispense with (and effectively extinguish) those which had little perceived purpose.  A decision not to record a right of way on the parish survey theoretically had no extinguishing effect, but its omission from the definitive map was likely to have had that effect in practice.[10]

3.17 Even where a parish council expressly considered and weighed all the available evidence and decided to omit a way on the grounds that no right of way existed, it is invariably the case that no record will have been made of the balance of the evidence either way, and so no conclusion now can be drawn about that balance[8]. It is not now possible to know whether the decision was a close one, such that slight new evidence may well have tipped the balance, or decisive, such that there was no doubt in councillors’ minds. It will not be known whether the parish council decided the matter on the basis of whether the claimed right of way was reasonably alleged to subsist, whether it merely was alleged to subsist, or otherwise,[9]. In the absence of a detailed record, it is therefore impossible to conclude how the decision might have been influenced in the light of new evidence which subsequently has been discovered, and the only possible course of action therefore is to weigh again all the evidence now available and to arrive at a fresh determination.

[1] Strictly, the survey under Part I of the Finance (1909–1910) Act 1910.  The survey documents were not released into the public domain until the late 1960s at the earliest.

[2] Now the National Archives.

[3] For example, did other parishioners concur in the allegation, or was there supporting documentary evidence of the alleged right of way?  It was not necessary or appropriate for the parish council to decide whether the allegation was substantiated: only to decide whether it was reasonable (i.e. whether there was a sound basis for the allegation).

[4] In the memorandum (see para 2.8 above), parish councils are encouraged to mark on the parish map with a continuous line ways for which there is sound evidence, and with a broken line ways ‘about which there is any reasonable doubt’, about which further evidence must be obtained.  The intention is to establish whether ‘there is sufficient evidence from which it is reasonable to conclude that there may be a public right of way’ — i.e. a reasonable allegation that the right of way subsists, per s.27(1).

[5]See para.2.8 above, at s.3(f).

[6] The National Association of Local Councils was established only in 1947, the Society of Local Council Clerks in 1972.

[7] i.e. the list of publicly maintainable highways which the highway authority must maintain under s.36(6) of the Highways Act 1980.

[8] In contrast, where an objection was made to the surveying authority about ‘anything contained in or omitted from the draft map and statement’, the authority was obliged to afford the objector an opportunity to be heard, and to give notice of its determination.  Records, such as minutes of a committee meeting, may well endure, detailing what evidence was given.  See s.29(3).

[9] See s.27(1), being the test to be applied by the surveying authority in deciding whether to include the way on the draft map, or the test to be applied by the parish council.  In the latter case, the parish council could have decided to show on the parish map every right of way which was alleged to subsist (see s.27(1)), and left the surveying authority to decide whether the allegation was reasonable.  It is not known whether this distinction was, in practice, meaningfully exploited by parish councils.

[10] It is commonplace that paths are shown on Ordnance Survey County Series plans with dates of survey up until the early post-War period, but omitted from National Grid plans with dates of survey from the 1950s onwards.

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4. Conclusion

4.1 Part III of the Wildlife and Countryside Act 1981 (‘the 1981 Act’) replaced the mechanisms contained in Part IV of the 1949 Act, so as to replace the provision for supposedly quinquennial review of the definitive map and statement with a process for updates arising from the discovery of new evidence. These reforms recognised the defects in the 1949 Act mechanisms, and introduced a more flexible process for correcting errors and omissions.

4.2 Many ways were not recorded in a parish survey because they no longer had the reputation, locally, as public rights of way, having ceased to be used as such before the Second World War, or long before that. Many 1949 Act parish surveys did not rely on extensive consideration of archival evidence, but on the knowledge of local inhabitants, as moderated by the parish council or the chairman of a parish meeting. Where a way had long since ceased to be used, it is hardly surprising that it had ceased to have the reputation of a public right of way — but that does not affect its true status: ‘Once a highway, always a highway’.[1] 

4.3 Where a way had a reputation, founded in convincing historical evidence, as a right of way at a particular time, the often inadequate determination of a parish council under the 1949 Act that no such way exists provides, in the absence of detailed records, no plausible foundation to the contrary: such a determination may have been sound (applying the correct statutory test and on the evidence then available) or seriously flawed, and there is seldom a means to identify which, still less to what extent. Moreover, such ways may have been entirely overlooked by the parish council lacking recourse to historical records.

4.4 It may be said that the presumption of regularity[2] applies to the findings of a parish council in carrying out and concluding a parish survey — i.e. according to a common law maxim, all things are presumed to be done correctly until the contrary is proved, or that:

The wheels of business will not go smoothly round unless it may be assumed that that is in order which appears to be in order.[3]

But on the contrary, the role of the parish council in the 1949 Act process appears, in certain respects, not to have been in order, and vulnerable to misunderstanding or abuse.  That this is so was rendered more likely by the invariable absence from the proceedings of the council, or of a parish meeting, of any legally-qualified person who might have been in a position to advise it on its challenging role in conducting a survey of ways and preparing a map to inform the preparation by the surveying authority of its draft map.

4.5 The position adopted here has been endorsed by a long-established Planning Inspectorate inspector. In her decision letter on an appeal to the Secretary of State against refusal to grant an application for a definitive map modification order, the inspector ruled that:

In the 1950s many paths were omitted from DMS all over the country for reasons which might now appear legally doubtful or spurious. One of the purposes of the 1981 Act was to permit corrections to be made. Consequently, dismissing a claim on the basis that the omission of the path was not challenged at the time is not evidence that it did not, or does not exist. The DMS is conclusive evidence only of what it shows, and not what it does not show.[4]

[1]   Dawes v Hawkins (1860) 8 CB (NS) 848, per Byles J, at 858

[2]   omnia presumuntur rite esse acta.

[3]   Morris v Kanssen [1946] AC 459, per Lord Simonds at 475

[4]   Order Decision FPS/W1850/14A/2, dated 4 October 2018, para.40.

Annexe: examples of parish irregularities

5.1 This annexe contains some examples of parish and other councils which expressly or impliedly took into account improper considerations when deciding what ways to include on a parish map. These examples are simply a handful of recently observed cases  It is submitted that, although apparently isolated, they are examples of practices which were widespread — indeed, commonplace.  They describe circumstances where ways were excluded from the parish map notwithstanding express or implied evidence, in the record, that the ways were rights of way.

Luppitt parish, Devon

5.2 In relation to an order to record a public footpath, the inspector quotes from minutes of Luppitt parish meeting of 27 March 1956:[1] 

The minute records that “Many of the paths were considered to be now not used and were crossed off”. At a further meeting on 24 April 1956 it was recorded the “Further footpaths were discussed, many were found to be of no public use and omitted”.

5.3 Comment: The parish meeting decided whether to include certain paths (presumably rights of way) on the basis of whether they had any contemporary use.

Adisham parish, Kent

5.4 The Dover Express and East Kent News for 4 August 1950 records a parish meeting in Adisham to discuss the parish survey to inform the new definitive map. The report says that:

A large map of the Parish was closely scrutinised, showing 13 footpaths and 12 bridle roads. Each path and bridle road was dealt with individually, and, of 13 [foot]paths, it was agreed that 7 were necessary, 2 necessary for part of their length and that 4 no longer had any useful purpose. Of the 12 bridle roads, 7 were considered to be still serving a use [sic] purpose, 2 for part of their length and 3 were considered of no use whatever.

5.5 It is not known whether, in fact, those paths which ‘no longer had any useful purpose’ or which were 'considered of no use whatsoever' in 1950 were indeed excluded from the definitive map and statement, but the draft definitive statement records 11 bridle roads (figures may not be comparable owing to different methodology in identifying a discrete path).

5.6 Comment: The parish meeting decided whether to include certain paths (presumably rights of way) on the basis of whether they had any useful purpose.

Barley parish, Hertfordshire

5.7 In an interim decision on an order to add a restricted byway, the inspector records [2] that:

During the preparation of the draft map the Ramblers’ Association suggested that the route “Shaftenhoe End by junction of Willow Lane southwards towards Pondbottom Wood” should be included on the map. The matter was considered further by the Parish Council but it was not agreed that the route should be included as the landlord of the Three Crowns had stated that the path was little used.

5.8 Comment: The way was put forward by the Ramblers’ Association, but apparently rejected on the grounds that it was ‘little used’ (but not on the grounds that it was not a right of way).

Walberton parish, West Sussex

5.9 Footpath 15 and 18 was identified in the Walberton parish survey (West Sussex), recorded in the minutes of a parish meeting held on 29 January 1951. The footpath lay between Walberton Smithy and Ford Lane,[3] and was described as: ‘Not obstructed, but very rarely used.’  The evidence for the footpath (not necessarily considered by the parish council) is good, including provision of a footpath crossing over the Brighton to Portsmouth railway in accordance with the deposited plans.  It was later described in the minute of a subsequent parish council meeting that footpath 351 (as renumbered) ‘is in fact a path’,[4] but subsequently, that:

A letter from the Yapton Parish Council and also WSCC [West Sussex County Council] was read and it was resolved that they be informed that the footpath is no longer required.[5] 

5.10 Comment: The footpath was recognised by the parish council as a path (and presumably therefore a right of way), but ‘no longer required’.

Hitcham parish, Suffolk

5.11 The clerk of Hitcham parish council wrote to West Suffolk County Council on 26 September 1950, with concern that there were ‘hundreds of footpaths…and…scores of footpaths which have not been used for at least 25 years’, and suggested that ‘the used paths be surveyed instead of wasting time going over the whole parish.’ [6] 

5.12 The County Surveyor of West Suffolk County Council replied on 2 October 1950, writing that:

In my address to the Parish Councils Association, I included the following “it is obvious that what is wanted is an adequate framework of footpaths which will open up the countryside and which will be utilitarian as well as offering a means of enjoying the rural scene. The preservation of the useless and outdated way would be both tedious and expensive.”

…It would seem there are a number of footpaths in your parish which have not been in use for some 25 years, and it falls upon your Council to decide if it is considered necessary or desirable for these to be retained, bearing in mind the right of appeal of any interested landowner, should he consider the path to be of no further advantage for public use. [7]  I suggest your Council should only include those paths which it considers desirable to preserve and maintain and over which there can be no dispute as to a public right-of-way.

5.13 Comment: The surveying authority commended to a parish council the selection only of those rights of way which it was perceived to be 'desirable to preserve and maintain', and which were unlikely to be disputed. It is clear that similar advice was offered to other parish councils in its area: the County Surveyor referred in the letter to his address to the Parish Councils Association in which he had stated that, ‘The preservation of the useless and outdated way would be both tedious and expensive.’

East Langdon, Kent

5.14 At a special parish meeting held on 23 October 1950:

to discuss the proposed map showing rights of way in the parish. …The chairman explained the reason for the meeting saying it was open to the people of the parish to express their views as to which Rights of Way should be retained and which, for various reasons, should be omitted.

…The chairman then asked the opinion of the meeting about each Right of Way separately.  Where opinion was unanimous that a Right of Way was of no present use it was decided to omit it; all others were to be included in a revised map.[8] 

5.15 Comment: The chairman invited views on which rights of way to ‘retain’ (sic), on the basis of their (then) present use.

Elston, Nottinghamshire

5.16 A letter from Elston parish council to the surveying authority dated 27 March 1953 referred to four paths marked on the parish map as X, X1, X2 and X3. These paths had been allotted in an inclosure award of 1801.  The chairman of the council wrote:

Those [paths] marked X, X1, X2, X3 have not, to our knowledge been in use for many years now. All indications (except on maps) have disappeared long ago, previous to my personal knowledge of the last 16 years.  In two cases the plank bridges disappeared some years ago when this stream flooded the land here for a while in 1947 (March).[9]

5.17 Comment: The chairman appeared to acknowledge that the ways, which had been identified on the parish map, were public, although he also noted that the paths seemed to have originated for the purpose of farm workers reaching their employment — perhaps on the perception that this is the purpose for which they were allotted in the award. However, the chairman (presumably on the council’s behalf) took the view that they should not be recorded as public footpaths because they had fallen out of use.

[1]   Order decision ROW/3174227, dated 6 February 2018, para.27.

[2]  Order decision ROW/3179816, dated 14 February 2018, para.22. The order is confirmed with modification in a decision letter dated 29 June 2018.

[3]   Parish minute book, p.56, Jan.1947–Feb.1959: West Sussex Record Office, Par 202/49/3.

[4]   Ibid, p.102.

[5]   Ibid, p.186.

[6]   Suffolk Record Office: 3319/13.

[7]   The 1949 Act provided a right of appeal against the provisional map on the grounds, inter alia, ‘there was no public right of way over the land’ (s.31(1)(a)). However, the grounds for objection to a draft map, and the criteria for determining such an objection, are not stated (s.29) and must be assumed to be the same as those in s.31(1), so that an absence of ‘advantage for public use’ is not one of them.  If at draft map stage, the county council could legitimately delete a path on the grounds that it offered no public utility, the decision to delete could have no effect on the existence of the path — only on whether it could be shown on the definitive map and statement.

[8]   East Langdon parish minutes, p.159–160. Kent County Archives PC123/A1/1.

[9] Interim order decision ROW/3248883, dated 30 May 2022, para.37.

While the Open Spaces Society has made every effort to ensure the information obtained in this information sheet is an accurate summary of the subject as at the date of publication, it is unable to accept liability for any misinterpretation of the law or any other error or omission in the advice in this information sheet.


© Open Spaces Society, July 2022

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