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.
This fact sheet is brought to you by the Open Spaces Society and the British Horse Society. The Open Spaces Society campaigns for stronger protection for common land, village greens, open spaces, and public paths in England and Wales, and for greater opportunities for everyone to enjoy them. As a small charity, memberships are vital to our ability to continue to support more than 800 cases annually helping individuals, groups and communities to save their local green spaces and paths. Individual membership costs £3/month. Join us today.
1.1 Part IV of the National Parks and Access to the Countryside Act 1949 laid the foundations for the definitive maps and statements of public rights of way in England and Wales. It required parish councils and parish meetings to co-operate with surveying authorities in preparing the draft map in each authority’s area. The parishes’ role was fundamental, and ensured 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. 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 should be shown on the definitive map, and what should not, frequently are not reliable indicators of what ways were, at that time, considered by the parish to be public rights of way.
2.1 Part IV of the 1949 Act required a surveying authority (the county council, or, at that time, a county borough council) to prepare a definitive map and statement (referred to below as just ‘the definitive map’) of public rights of way. 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 Under 28(1) of the 1949 Act, it was required to consult with its district and parish councils on the arrangements for the provision of information to contribute to the draft map.
2.3 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 no council for a parish. 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’.
2.4 In practice, 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 described in a schedule of paths. The survey might have been done by parish council members, local volunteers, or representatives of user groups. The survey was then 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.
2.5 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.’ 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 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)
- shown on Ordnance Survey maps (though not necessarily as public rights of way)
Exclusion of historical evidence
3.1 Parish councils often were good at synthesising parish maps from local knowledge. Typically, parish councils mapped those rights of way which were in use at the time or the recent past, with a reputation for being public.
3.2 But parish councils will not necessarily have had access to historical documentary evidence. Such evidence would have included tithe maps and apportionments, railway plans and County Series Ordnance Survey 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 systematic process to ensure that such evidence was used to inform parish council surveys. Moreover, some of the evidence available to us today was not available at the time of the 1949 Act survey (eg. the Finance Act survey); was not held locally (being held at the Public Record Office); or was not widely understood to be relevant (e.g. proposals to lay lines in roads under the Electricity (Supply) Acts 1882 to 1922).
3.3 This is the first defect in the parish process — that parish councils generally did not have or seek access to the common historical sources available to researchers today. Most rights of way were recorded by parish councils 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 sufficient access 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 believed to be of a lower status than the historical evidence indicated (typically, bridleway vice footpath). And they might have excluded ways which historical evidence demonstrated were not public.
3.5 Where such historical evidence is used today to support a definitive map modification order to record a way, it cannot be assumed (unless there are records 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 the historical evidence for the way. Only that the council had regard to local knowledge of current or recent use. But a paucity of use 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) shows only that the reputation of the way, as a public right of way of particular status, had begun to recede during that period: it cannot diminish good evidence of reputation from an earlier era, least of all if there is no evidence that the parish council considered such evidence of reputation.
Omission of ways on inappropriate grounds
3.6 Parish councils are the most subsidiary unit of local government. Most parish councils, then and now, do not benefit from legal advice, and meetings are not generally supervised by a legally qualified officer. Instead, councils are supported 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.
3.7 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).
3.8 Moreover, in this earlier era, soon after the Second World War, many parish councils were chaired by, and often dominated by, landowners and farmers. There was frequently a majority of such interests in control of the council, if it were minded to depreciate evidence of the existence of rights of way.
3.9 And riding activity was at a low ebb. The equestrian population had been decimated by losses in the First World War, the shortage of feed during the Second World War, and post-war austerity. The horse and cart was 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).
3.10 Consequently, 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 definitive map), because:
- The parish council may have overlooked the way (including where the way was mainly in a neighbouring parish) .
- 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 roads already marked up in colour so that the council was firmly discouraged from recording these roads — but some of these roads subsequently were deleted from the highway authority’s list of streets.
- 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 council may have recorded a road or 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.
3.11 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), 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 (eg. ‘path not deemed 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.
3.12 Even where a parish council expressly considered and weighed all the available evidence and decided to omit a way on rational grounds that no right of way subsisted, it is almost inevitable 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. 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. 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 is therefore to weigh again all the evidence now available.
Now the National Archives.
i.e. the list of publicly maintainable highways which the highway authority must maintain under s.36(6) of the Highways Act 1980.
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 the 1949 Act, s.29(3).
4.1 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’.
4.2 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 (on the evidence then available) or seriously flawed, and there is seldom a means to identify which, still less to what extent. To put the matter into sharp relief, many claims to historical rights of way, which present cogent evidence of reputational status in the nineteenth century, might otherwise be rebutted by showing that, in the twenty-first century, the way has no such reputation whatsoever.
4.3 This conclusion 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.’
A1. 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, which are believed to be 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
A2. Devon County Council (Footpaths No. 21, Combe Raleigh and No. 59, Luppitt) Definitive Map Modification Order 2016, decision dated 6 February 2018. In relation to the order to record a public footpath, the inspector quotes from minutes of Luppitt parish meeting of 27 March 1956:
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”.
Adisham parish, Kent
A3. 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.
A4. 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).
Barley parish, Hertfordshire
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.
Walberton parish, West Sussex
A6. 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, 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’, 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. 
Hitcham parish, Suffolk
A7. The clerk of Hitcham parish council wrote to East 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.’
A8. The County Surveyor of East Suffolk County Council replied on 2 October 1950, writing that:
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. 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.
East Langdon, Kent
A9. 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.
The order is confirmed with modification in a decision letter dated 29 June 2018.
Parish minute book, p.56, Jan.1947–Feb.1959: West Sussex Record Office, Par 202/49/3.
Suffolk Record Office: 3319/13.
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.
East Langdon parish minutes, p.159–160. Kent County Archives PC123/A1/1.