Rights of Way: Applications for paths based on twenty years’ use

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Applications to record public rights of way after 20 years’ use

If you know of a path or way that has been used for 20 years or more, and it is not recorded as a public right of way, you may be able to apply to your council to have it recorded.

This information sheet explains what you, as a member of the public, can do.  It covers how to make an application, and what your involvement might be thereafter.

In particular, it considers:

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1. How can a right of way come into existence through use?

A right of way may come into existence through dedication by the landowner, and acceptance by the public.  Dedication need not be an express act by the landowner — it can also be inferred, because the way has come about through being used without challenge, either at common law or under statute (ie an act of parliament).

Common law dedication can occur where there is evidence of use but no evidence that the use has been challenged.

However, it is more usual for applications to be made under statute.  The test to show whether statutory dedication has occurred is set out in section 31 of the Highways Act 1980.  This section refers to the dedication of a way as a highway[1] being presumed after it has been used by the public for 20 years as of right and without interruption, unless there is evidence to the contrary.

For statutory dedication to be satisfied, the evidence needs to show that a way over land has:

  • actually been enjoyed by the public, and
  • use has been:
    • as of right (ie without force, secrecy or permission),
    • without interruption, and
    • for a full period of 20 years.

However, the presumption of dedication can be defeated where:

  • the use could not have given rise at common law to any presumption of dedication (eg if the way lacks a definite place of origin and objective, or if the way passes over open land on a variable alignment), or
  • there was sufficient evidence (by the landowner) that there was no intention during that period to dedicate the way.

If you wish successfully to claim a right of way, you need to be able to show:

  • use by the public at large (not just employees, tenants or licencees of the landowner etc);
  • use (‘enjoyment’) for the full 20 years, but you will not need everyone to show they each used the way for 20 years so long as there is good evidence of use throughout the 20-year period;
  • use was done openly, and not by breaking down fences, or walking across a field in the middle of the night or when it was known the landowner was away on holiday;
  • no permission was given by the landowner.

If permission has been given to some users, it is likely to be harder (but not necessarily impossible) to claim that the way is a right of way.  It would depend on how widely known it was that permission was granted, to whom it was granted, and for how long the permission was in place.  If there has been a continuous 20-year period of use without permission being granted, your application may succeed.

Interruptions to use can be made by the landowner, or an agent acting on his or her behalf, such as by locking a gate or erecting a notice forbidding use, or orally challenging use by the public.  To prevent dedication, such interruptions would need to be made with the intention of preventing public use of the way.  This action by the landowner is often the challenge to the public’s use that prompts you to make an application.

If the public’s use of the way has not been challenged by the landowner, the date of your application usually will be taken to be the end of the 20-year period.  If so, you must ensure that your application includes some evidence of use right up to the date of application.

There have also been interruptions to use through closure of the countryside under animal health legislation, most notably owing to foot-and-mouth disease (FMD) in 2001 and again in 2007.  The outbreak in 2001 affected the whole country, whereas the 2007 outbreak resulted in more limited closures. If your claim covers these times, you may need to get information from the council to find out when rights of way in the area were closed to the public and when they opened again.  It is unlikely that any way, not then being recorded as a right of way, was formally closed—but it is likely that use of the way by the public voluntarily ceased or was greatly reduced.  Advice note 15[2], which was produced by the Planning Inspectorate, suggests that closure during a FMD outbreak would not count as an interruption.  However, this advice has been doubted in the courts.  It could be argued that the cessation of use of the claimed way during that time constitutes a break in the use and enjoyment of the way.  It will be better if evidence of use covering any period of FMD describes the impact on use of the way at that time, rather than overlooking it.

[1] A highway is a way over which the public have a right to pass and repass.

[2] https://www.gov.uk/government/publications/rights-of-way-advice-note-15-breaks-in-user-caused-by-foot-and-mouth-disease

 

2. When might an application be needed?

You might be prompted to make an application for a way that you have used for many years if:

  • you found one day that it is threatened by development,
  • you see a new notice which states there is no right of way,
  • you meet someone who tells you not to use the way, or
  • you find that the way is obstructed, such as by a fence or locked gate—perhaps following a change of ownership.

You need to check whether the way is recorded as a public right of way on the definitive map and statement (DMS).  Although rights of way have been shown on Ordnance Survey maps since the 1960s, it is your surveying authority (referred to here as ‘the council’, ie your county council, unitary authority or London borough council) that is responsible for keeping the legal record of rights of way.  This record is known as the ‘definitive map and statement’ of public rights of way and applies to most of England and Wales.  Only councils in Inner London (approximately the area of the former London County Council) are not required to have a DMS.

The definitive map shows the alignment and status of the way, while the definitive statement describes the way’s position and width.  Both parts need to be read together.

If the way that you use is a recorded right of way, you can contact your council to ensure that it is kept open, or protected from development. See also 'impassable paths' for more information.

If the way that you use is not recorded as a right of way, or the details recorded are incorrect, you can make an application to have the record changed (while the DMS is said to be ‘definitive’, the information that it shows may be incorrect).  The DMS can be changed for a number of reasons, provided that sufficient evidence exists, but only by following a statutory process. As the statutory process requires an order to be made, any applications to change the DMS are known as definitive map modification order (DMMO) applications.

Applications can be made to record:

  • footpaths ie ways for use on foot,
  • bridleways ie ways for use on foot, with horses or bicycles,
  • restricted byways ie for use on foot, with horses, with bicycles or with horse-drawn vehicles,
  • byways open to all traffic (BOAT) ie for use on foot, with horses, with bicycles, with horse drawn vehicles, or with mechanically-propelled vehicles.

But rights for mechanically-propelled vehicles over any way not recorded on the DMS, and not otherwise recorded by the council as publicly-maintainable, have very often been extinguished.[1]

DMMO applications can be made to:

  • add ways where previously no way was recorded, or
  • modify the rights that are recorded; for instance, where a way is shown on the DMS as a footpath, but it should be recorded as a bridleway, or
  • modify the details in relation to a way which already is recorded; such as a bridleway running down a defined lane between hedges that are seven metres apart, but having a recorded width of only three feet.

Alternatively, you might look at the DMS, and realise that there is a way marked that you use, but that not all of it is recorded.  ‘Gaps’ in the record often occur at parish boundaries, perhaps where two paths do not meet on the DMS, but where you know you that they join seamlessly in reality since you have used the way for many years.  Ways that might be entirely unrecorded can include urban alleyways in built-up areas.

When you make a DMMO application, it is because your application seeks to show that the way that has been used for many years has become a right of way and needs to be added to the legal record.  A DMMO application is not about creating new rights, but about recording the rights that already exist.  The purpose of the application is to supply sufficient evidence that the rights do exist.

[1] Under section 67 of the Natural Environment and Rural Communities Act 2006, all unrecorded mechanically propelled vehicular rights have been extinguished unless an exception applies.  Every council which is a highway authority must, under section 36(6) of the Highways Act 1980, maintain a list of highway maintainable at public expense.

3. What is the process?

You can see the process for making an application (and what may happen) in the flow chart.

There are three steps that you will need to take.

  • Make an application and send it, with the supporting evidence, to the council.
  • Notify the owners and occupiers of the land that is crossed by the way that an application has been made.
  • Let the council know that you have notified the owners and occupiers.

The council will check that your application complies with the legislation, and will return it to you if you need to amend it.  You will need to respond to any request for amendment promptly, and within the timescale that it has given you. You will be told by the council once the application has been accepted, and you will be given a file reference for use in future correspondence.

You should wait until the council has confirmed that your application complies with the legislation before notifying the owners and occupiers.  You will then be able to refer to the council’s file reference.  Otherwise, there is a risk that you will have to notify everyone again if you are required to amend your application.

Your application will be recorded by the council on its ‘register of applications’.  This register shows all the DMMO applications that the council has received, and the decisions that it has made.  As an applicant, your details will appear on the register, unless you ask the council to anonymise your personal information.  You will need to give a reason for your request.   Even then, if your application is contested, your personal details will be made available to the public.

Once you have told the council that you have notified the owners and occupiers, the council must determine your application.  If the council has not made a decision on your application within 12 months of receipt, you, as the applicant, can, if you wish, ask the Secretary of State for Environment, Food and Rural Affairs or the Welsh environment minister for a ‘direction’ to the council to determine the application.  If the Secretary of State or minister agrees that the council should promptly deal with your application, he or she will direct the council to make a decision on your application within a given timescale.  This does not mean that your way will be declared to be a right of way—only that the council will be compelled to follow its normal process for investigating your application. Your application may yet be turned down.  More details about the process of appealing to the secretary of state or minister can be found if you follow the links for England and Wales.

When the council investigates your application, you will be informed and consulted.  Because processing applications can be a lengthy business, the council may have a waiting list.  In fact, the council may contact you several years after you have made your application.  If you have collected any additional evidence in the meantime, you should submit it when you are contacted.

A decision report should be produced setting out what evidence the council has found, and how it has reached its decision.  The decision will either be made by officers (if they have the authority to do so[1]), or by a council committee[2] . If the report is heard by a committee, you may be able to speak at the committee meeting before the decision is made.  The landowner may also be invited to address the committee.

The decision will be whether or not to make an order, and you, as the applicant, will be informed of the decision.

If the decision is not to make an order and the application was duly made, you (but only you), as an applicant, can appeal to the secretary of state or minister against the council’s decision within 28 days of being told the decision.  This is known as a schedule 14 appeal (see links in paragraph five above).

On an appeal, the secretary of state or minister can overturn the decision made by the council and can direct the council to make an order.  Again, a successful appeal does not mean that your way is declared to be a right of way—only that the council should then follow the process for making an order.

The council may decide to make an order in response to your application, but it may decide that it is a right of way with a different status, width or location to the one for which you applied.  It should explain its decision in a decision letter and make an order.  If you wish to be kept informed of the outcome of your application, it is recommended that you contact the council and tell it that you wish to be kept informed. 

If an order is made, it will go through a process which, if the order is confirmed, will result in the way being added to the DMS.

If an order is made, it must be advertised.  This allows for objections to be made against the order—eg by any affected landowner.

You cannot appeal to the secretary of state or minister if the council decides to make an order, even if the order does not fully reflect the way which you applied for.  But you may be able to object to the order on the grounds that it does not correctly record the way applied for.  You should carefully consider whether to make an objection, as an objection may make it less likely that the order is eventually confirmed.

If no objections are made, the council can decide to confirm the order itself.  However, if objections are made to the order, the order will be referred to the secretary of state or minister for confirmation.  This means that an inspector appointed by the Planning Inspectorate will decide whether to confirm the order on the basis of a public inquiry, hearing or an exchange of written representations.

If a public inquiry is arranged, you are likely to be asked by the council to assist it by contacting your witnesses.  You may also need to be prepared to speak at the inquiry.  If the council decides not to support your case[3], you may need to prepare your own case for the inquiry.  Even if the council presents a case for confirming the order, you may wish to present your own case in support.

Following the inquiry, hearing or exchange of written representations, the inspector will make a decision on the order.  The order may be confirmed, modified, or not confirmed.

  • If the order is confirmed, the way and a description of the way will be added to the DMS.
  • If the inspector proposes to modify the order, the inspector may decide to give notice of that intention. This allows for further objections, potentially leading to a further inquiry, hearing or exchange of written representations.  The order will, in the end, either be confirmed with or without modifications (and added to the DMS) or ‘not confirmed’ i.e. rejected.
  • If the order is not confirmed, the case will be closed.

[1] This is known as ‘delegated authority’.

[2] Most councils operate an ‘executive’ form of governance, where many decisions are made by an executive, such as a mayor, a cabinet or a cabinet member.  An executive is not allowed to determine an application for a DMMO.

[3] for example, if the council are directed to make an order by the secretary of state, the council may decide to take a neutral stance at any subsequent inquiry.

4. What do I need to do before making an application?

4.1 Making an application for a DMMO based on user evidence will take time. Check first whether someone else has already made an application.  Council officers may be able to tell you if someone else has made enquiries about the same way.

You should check to see whether the way is shown or referred to in:

  • the DMS,
  • the register of applications for DMMOs,
  • the list of the streets held by the council under section 36(6) of the Highways Act 1980,
  • the maps and statements deposited under section 31(6) of the Highways Act 1980 (sometimes known as ‘landowner deposits’).

The council will hold these records, and is required to make them available for the public to view.  They may be available on the council’s website, or you may need to contact the council to arrange to inspect them.

Definitive map and statement

You need to ensure that the way is not already recorded as a public right of way, so check if the way is shown on the DMS, with the status you believe it to hold.  If the way is already recorded, you may wish to read 'Impassable Paths' and to contact the council to ensure you can use the right of way.

 

Register of applications

The council should have a register of all the DMMO applications that it has received, and decisions it has made.  If someone else has already made an application for the way that you are interested in, you should be able to submit additional evidence in support of the application that has already been made. You might also want to contact the original applicant, particularly if you could work together to support the way being added to the DMS.  You could decide to make your own application for the same way—unless you make your own application, you will not be able to appeal if the council decides not to make an order, and you will not be able to ask the secretary of state or minister to make a direction if the council fails promptly to act on the original application.

Section 36(6) list of streets

Section 36(6) of the Highways Act 1980 requires the council to keep a list of the highways (including rights of way) that are maintainable at the public expense, known as the list of streets.  If the way for which you are applying is shown on the list of streets, you can include that information in your application.  However, please note that the list of streets only states what ways are maintainable at public expense and not what the status is of the rights that exist over those ways.

If you cannot find a reference to the list of streets on the council’s website, try looking up ‘local street gazetteer’ instead.

Section 31(6) deposits (landowner deposits)

Section 31(6) of the Highways Act 1980 enables landowners to take certain steps to show that they have no intention to dedicate new ways over their land as public rights of way.  The landowners are required to deposit with the council a map and statement showing their land, and any rights of way that they acknowledge on their land.

Then, from time to time, they may submit a declaration that they have not dedicated any new ways over the land since the date of the deposit, or the previous declaration.

You should check if your application way crosses land shown in such a deposit.  It may be that the landowner has declared the way to be a right of way, and you could include this as part of your evidence for your application.  This is, however, unlikely.  It is more likely that the declaration by the landowner will actually work against your application. If the way is within the land identified in a deposit, and the landowner has made a declaration at any time within the period of 20 years to which your proposed application relates, your application is unlikely to succeed.  If the way is within the land identified in a deposit and no declaration has yet been made, the landowner may still (usually within 20 years of the date of the deposit) make a declaration at any time—even after you have made an application—which will make your application unlikely to succeed.

 

5. What information will I need to collect?

You will need to obtain:

  • the council’s DMMO application pack and forms;
  • a map to show the location of the way for which you wish to apply;
  • information as to the owners and occupiers of the land crossed by your way.
  • user evidence, ideally on user-evidence forms;
  • photographs of the way to help identify the course of the way and any features, obstructions or difficulties in following it;
  • information about any dates that use of the way was challenged eg by a locked gate, notice, fence, being told not to use the way.

Application pack and forms

Contact your council to get a copy of the information it has for making an application.  A copy is likely to be available on its website.  If there is an application pack available, it should explain how the council will deal with your application.  The forms that you will need to use have been set out in legislation.  They are designed to provide the information that is needed, rather than necessarily being user friendly.  The council’s forms are likely to comply with the requirements of legislation.  You do not have to use the council’s own forms—but if you do not, your application may be refused if it does not comply with the legislation.

Map

Your application will need to include a map showing the way.  You will need to identify the way.  The purpose of the map is to inform everyone, including the landowner and the council, of the whereabouts of the path for which you are making an application.  The map must be to a scale of no less than 1:25,000 (two and a half inches to one mile).  This is the scale used by the (orange-covered) OS ‘Explorer’ maps (and should not be confused with the 1:50,000 (crimson-covered) OS ‘Landranger’ maps).  You can use a larger scale map (eg 1:10,000) if you wish, but not a scale smaller than 1:25,000.  You do not have to use an Ordnance Survey map, but it will be better to use one in most cases.  However, sometimes, a street atlas may show the way more clearly, and you may use this if it is of a scale of at least 1:25,000.  Google maps will seldom show sufficient features to be useful.  If you are not sure of the alignment of the way on the map (eg because the way is not itself marked), you may need to compare with old aerial photographs, often available online, to check the alignment of the way and to enable you to mark it accurately on the map.  If you mark the way incorrectly on the map, it is possible that your application will be refused.

 Owners and Occupiers

You will need to find out who the owners and occupiers are of the land crossed by your application way, so that, when you have made your application, you can notify them of the application.  You will need to look for ownership information in the Land Registry.  It costs £6 to purchase details of who is the registered owner and a map from the Land Registry.  It can be contacted via www.gov.uk/government/organisations/land-registry.  There are a number of other websites that will charge you more to give you the same information, so be careful.  Try asking locally if people know who owns or farms the land.  You may be able to find details of any farm or woodland management agreements covering the land, including the name of the agreement-holder, on MAGIC.[1]  Any deposit made under section 36(6) of the Highways Act 1980 will include details of the landowner.

You must notify not only the landowner, but also any occupier: eg if the land is farmed by a tenant farmer, you will need to notify the tenant as well as the farmer.  It is often easier to identify one than the other.   If, after searching, you are unable to identify every owner or occupier, you will need to inform the council of this.  The council will be able to give you permission to put notices up on site.  The council will explain what it expects you to do.

 User evidence 

  1. a) The form

Most councils will have a standard user-evidence form available for you to use.  If this form is not on its website, contact the council and ask for a copy.

These forms are long and every question needs to be answered. This is because the council needs to have as much detail as possible to show what has happened on the land.  More information can be included on a separate sheet if necessary.

  1. b) What the users need to do

You can provide copies of the user-evidence form for each user, or witness, to complete, or, if necessary (eg because the witness is unable to write), you can assist them—but you should not guide the witness in what to write.  Ideally, the form needs to be filled in by the user, using his or her own words.  If there is a reason why someone cannot fill it in, note an explanation on the form.

Ask that any changes to the frequency of use, or any changes in use, such as a period when the way was not used by the witness owing to leaving the area and later returning, are clearly explained.  Ask witnesses to be as specific as possible (even if the form does not require this)—for example, in response to the question ‘how often did you use the way?’, an answer ‘five or six times per year but not during the winter’ is preferable to ‘occasionally’.

When recording information about the width of the path, ask witnesses if they have ever used it with a friend.  If so, were they side-by-side or in single file?  When they used it on their own, did they ever meet someone coming the other way?  What happened when they passed each other? Did they ever use the way holding hands with a child, with a child mounted on a pony on lead rein, or with a pushchair or a dog?

  1. c) What you need to do

You will need to collect evidence to show that:

  • a specific way was consistently used, and people were not freely roaming over the land;
  • there has been use for 20 years by the public prior to the date of challenge (such as a landowner erecting a fence across a way);
  • where there is no date of challenge, there was 20 years’ use prior to the date of application;
  • the way was used openly (without force, secrecy or permission);
  • the landowners or occupier were aware that the way was being used, and that any actions taken by the landowners have been noted.

 If you are applying for more than one way, or there are branching ways, you might need to discuss with the council how it wants the evidence collected.  It is likely that you will need to ask each person to complete one form for each way.

Get as much information as you can from people.  Do not expect everyone to provide evidence of use for the full 20 years.  It is more likely that an individual’s use will have been only for a few years, but that this use will be likely to overlap with that of other witnesses. This would demonstrate that, collectively, the public had used the way for the full 20 years.  It can be helpful to draw up a table that plots each witness’s evidence against the specific years of their use within the overall time-frame over which the way was used. This collation of evidence can be helpful in showing how much collective annual use was made of the way over the time-span by all of the witnesses combined.

Try to find people who used the way in the past, and have stopped using it or moved away.  Encourage witnesses to record their entire period of use of the way, even if it looks forward or back further than what you expect to be the relevant 20-year period.  Additional periods of use can reinforce the reputation of the way as a public right of way, can be helpful if the application is determined on the basis of common law (rather than statutory) use, and may be relevant if a different 20-year period is identified as relevant.

You will need to ask people to complete the forms in advance of making the application.  This is because the application needs to include the evidence that is the basis for the application.  If the path is still being used, you will need to submit the application promptly after collecting the evidence.  This is to prevent there being a long gap between the date when the evidence of use was collected and the date on which you make the application. If a witness is still using the way, ask that your witness notes this on the form.

If a witness has relevant information to give, but the form does not appear to require it, ask the witness to record the information—on another sheet if necessary.

How much evidence you will need to collect depends in part on how densely populated the area is where the way is located.  You need to collect a sufficient number of forms to show that the  way is in general use by the public.  How many forms will be sufficient depends on how many people in the area could be expected to use the way, and the use which was made of it.  There is no minimum number and no maximum, but a good number is likely to range from:

  • 6 to 10 unrelated people in a very sparsely populated area, to
  • 30 or more people in a more populous area.

In both cases, it will help if the witnesses made frequent use of the way throughout the 20-year period, otherwise a greater number of witnesses are likely to be needed.

It is recommended that completed user-evidence forms are collected by you, as the applicant, as they will need to be submitted with your application.  As the applicant, you should keep a list of who has completed a form and, if possible, a copy of all the forms submitted.  This is because you may need to refer to them later.  You will need to state on your application how many user-evidence forms have been enclosed with the application.

Once the forms have been sent to the council, the council will not be able to give you copies of the forms or the witnesses’ contact details, because of rules concerning privacy of personal data.   Please note that you can ask the council to anonymise your and your witnesses’ personal information, but you will need to give the reason for your request.  If a DMMO is made in response to your application, and the DMMO is contested, it will not be possible to keep these details confidential.

Photographs of the way

Take photographs of the way, with a location plan.  Photographs should be numbered in order to identify them.  They need to be marked with the date on which they were taken.  You will need to mark on the location plan where each photo was taken, and in which direction.  You will need to point out or describe any significant features.  It may be several years before your application can be investigated, and the way might look very different by then.  So, photographs can be important contemporaneous evidence of what the way was like at the date that the application was made.  For example, if the way crosses a field which is due to be developed, and works begins on site, the way may no longer be identifiable on the ground.

[1] magic.defra.gov.uk, and see www.oss.org.uk/how-to-use-magic/

6. How is an application made?

Your application can be made on the forms provided in the council’s DMMO application pack.  If these are not available, you should use the forms as set out in the legislation[1] (or try searching the internet for a ‘DMMO application pack’).

You need to complete three forms:

  1. Form 1 - an application form,
  2. Form 2 - a notice, and
  3. Form 3 - a certificate.

 

Form 1 — application form to be sent to the council

The application form is reasonably self-explanatory and includes words that you may need to select or cross out, and spaces that you will need to fill in.  Make sure you delete any words which are not required, and insert words where they are needed: the form identifies in brackets where there are alternative words.

You will need to provide your name and address.  If possible, include your email address, as this will ensure that the council can contact you even if you change your postal address.

You will need to choose whether you are:

  • adding a new way, ie it is not already recorded in the DMS, or
  • modifying the status of an existing recorded way shown in the DMS, or
  • modifying the details of an existing recorded way shown in the DMS, such as the width.

You will need to describe the start and end of the way, by using Ordnance Survey grid references, by reference to physical features and place names, and by identifying the ways with which it connects.  For example, ‘a footpath beginning on Back Lane, Barchester, at a gate opposite the Old Vicarage at Ordnance Survey grid reference AB12345678, and passing west along the headland for 200m to a stile in the corner of the field…’.  Ask the council for help to do this if you are not sure.

You must list the evidence, and supply copies of all the evidence that you are submitting in support of your application, such as:

  • the evidence forms,
  • photographs numbered 1-X and location plan,
  • any other documentary evidence included.

As well as the form, and copies of the evidence, your application must include a map at a scale of not less than 1:25,000 (as explained above) on which you have marked your application way.

Once you have all your information and have taken a copy, you will need to send the application to the council.  If the path crosses a council’s boundary, separate applications will need to be made to each council—although you may use the same evidence to support each application.

You must include all the evidence on which you are relying to support your application.  As your application will include the original signed witness statements, it is probably best to send your application by post rather than by email (but the council may appreciate an electronic copy too). .  Send your application by signed-for delivery, or take it along to the council’s reception and ask for a receipt.  In your covering letter with your application, ask the council to confirm receipt of your application and also that, in its opinion, the application complies with the legislation.

The council should then acknowledge receipt of your application.  If the council needs you to amend anything in your application it should let you know.  You need to respond promptly.  The council must add your application to its register of applications within 28 days of receipt.  If you do not want your name and address to appear in this register, you need to send a covering letter with the application explaining why you do not want your details on the register (but the council may not be able to grant your request).

If your application has not appeared on the register within 28 days of receipt, you will need to contact the council to let it know.  The council may not tell you when your application has been added to the register, so, if possible, look at the register online to find out.

Once you have made your application, you need to notify the owners and occupiers affected by the application using Form 2.  We recommend that you wait before notifying, until the council both has confirmed that the application is compliant, and it has registered the application.  You will then be able to quote the application’s reference number on the notice.  Some councils refuse (we think wrongly) to register an application until you have notified the owners and occupiers.

Form 2 — notice to be sent to the owners and occupiers

The notice is also reasonably self-explanatory and includes words that you may need to select or cross out and spaces that you will need to fill in. You will be repeating the information that you have put in the application form.  You will need to include your name and address on the notice.

You must serve this notice on the owners and occupiers of the land crossed by the way for which you have made an application.  While the legislation does not specify what you are expected to do to ‘serve notice’, serving notice generally means giving the person named on the notice a copy of it, either by hand, via the post, or by leaving it at their address.  Proof of posting is not proof of receipt; we recommend you use ‘signed for delivery’, and obtain (online) confirmation that the notice has been signed for. If you are unable to prove you have ‘served’ notice this should not be critical to the validity of your application.  But it may affect your ability to refer to the secretary of state or minister where:

  • the council has not made a decision within 12 months of receipt of your application, or
  • where the council decides not to make an order.

If you cannot be reasonably certain that you have identified all owners and occupiers of the land, you will need to contact the council for permission to post notices on the land.  You may be asked what steps you have taken to identify the owners and occupiers.   If the council gives you permission, it will explain what it expects you to do.  This will involve you going to the site and putting up notices addressed to ‘The owner or occupier of [describe the land]’.

Form 3 - certificate to be sent to the council

  1. The certificate is short and self-explanatory. You will need to insert the information required.

The certificate should not require you to specify whom you have notified of the application (if the council-supplied form does require this information, it is not compliant with the legislation).  However, the council will find it helpful to be given this information.

Make sure that you keep copies of all of the evidence that you submit to the council, and any correspondence that you receive — you may need to refer to these later.  You will also need to make sure that you can still contact any of your witnesses (particularly those who are willing to come to a public inquiry, if there is one) if they move.

[1] Section 53(5) and Schedule 14 (1) and (2) of the Wildlife and Countryside Act 1981; Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 - SI 1993/12 & Schedules 7-9

7. Other points of note

While there is no fee associated with making an application to the council, it will take your time.

Many councils have backlogs of applications, due to the time that it takes to process applications.

  • It may take several years before your application is investigated.
  • Once the process starts, it can take four to six months to investigate and make a decision.
  • It will take another four months if you appeal a decision not to make an order.
  • It will take over two months to make and advertise an order.
  • If there are objections, it could take 2­4-months for the Council either to try to get the objections withdrawn, or to send the case to the Planning Inspectorate.
  • Once a case has been submitted to the Planning Inspectorate, it can take up to 12 months for the case to be heard.
  • It can take about two months for the Inspector’s decision to be published.

At best, with no objections, an application can be investigated and an order made and confirmed within 7 months.  However, more usually, it will take around 3 to 5 years, but can take much longer.  You will be able to see from the council’s register of DMMO application how many such applications are outstanding.  The council should also publish a policy explaining how it prioritises the determination of applications on the register (eg first come, first served).

It is likely that, if your evidence is based solely on use, even if you are successful and the way is recorded, the way will not be maintainable at public expense.  The council will not have to maintain the surface of the way—but it must nevertheless seek to prevent it from being obstructed.

Once an application has been made, it cannot be withdrawn; the council will be under a duty to investigate it.

It is not currently possible to transfer the status of ‘applicant’ to another person.

If your witnesses are elderly, or are unlikely or unwilling to attend a public inquiry, it may be advisable for them to make a statutory declaration—they will need to see a solicitor or magistrate to do this.  Such evidence would carry more weight than a simple user-evidence form.

Your DMMO application will not halt the development of the site across which the route runs, nor will it prevent the obstruction of the path.  However, a landowner, occupier or developer will need to recognise that, should your application be successful and the route is recorded as a public highway, any obstruction will have to be removed.  Strictly speaking, if your application is well-founded and the way is already a public right of way, it is a criminal offence to obstruct the way—but it is unlikely that the council will be willing to take action until a DMMO has been confirmed.

 

Legislation and Guidance

Legislation

  • Highways Act 1980 – section 31
  • Wildlife and Countryside Act 1981 - section 53 and Schedule 14
  • Countryside and Rights of Way 2000 - section 53 – 56.

Regulations

  • Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993 SI 1993 No. 12, schedules 7, 8 and 9.

Guidance

  • England - Defra Circular 1/09
  • Wales - ‘Guidance for Local Authorities on Rights of Way, 2016’

Natural England  'A guide to definitive maps and changes to public rights of way—2008 revision’, which includes flowcharts of the process:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/414670/definitive-map-guide.pdf

More information about rights of way, including advice notes and Inspectors decisions about cases that have been to Inquiry can be found at:

https://www.gov.uk/topic/outdoor-access-recreation/rights-of-way-open-access

Future changes to the legislation in England

Changes have been proposed by legislation[1], but these will only take effect when the legislation is brought into force by making the necessary regulations.  This applies to England only.  The effect of the proposed changes include:

  • automatically extinguishing any footpath or bridleway that is not recorded on the DMS if the way came into existence prior to 1949 (with certain exceptions);
  • requiring the applicant to provide a statement as to why he or she considers the application way to be a right of way;
  • requiring the council, rather than the applicant, to serve notice on the owners and occupiers;
  • requiring an applicant to apply to the magistrates’ court, rather than the secretary of state if the council, did not make a decision on the application within 12 months.
  • enabling the applicant to transfer the application to another person.

 

Conclusion

There is a process, set out by legislation, to enable members of the public to apply to record public rights of way.  The steps need to be followed carefully to ensure the application is properly made, and to increase your chance of success in recording the way.  It will take time to do properly, and can be very rewarding, especially if your way is added to the DMS.

[1] Part II of the Countryside and Rights of Way Act 2000

 

While the Open Spaces Society has made every effort to ensure the information obtained in this fact 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 paper.

 

© Open Spaces Society, September 2020

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Further resources about Rights of Way: Applications for paths based on twenty years’ use

  • Deregulation Act

    A small but important part of the act concerns public rights of way, and will take effect once the regulations and guidance have been completed.

  • Claiming a Public Footpath

    It is possible to apply to include on the definitive map routes which have been used by the public, ‘as of right’.

  • Getting Decent Widths in Path Diversion Orders

    Some slightly random thoughts on the matter to encourage action.

  • Information on Highway Verges

    Along many of the highways of England and Wales are to be found strips of land open to the public.

  • Parishes dealing with highway obstructions

    Town, parish and community councils are likely to take a strong proprietorial interest in their parish rights of way, and in their local highway network generally.

  • Frequently asked questions: Rights of Way

    Common questions about rights of way.

  • Government Guidance - Public Access and Rights of Way in England

    Insider hacks: three Government publications that will help you to protect public access and rights of way.

  • Taking action

    Challenging councils who have failed to make progress with definitive map change applications

  • Local Access Forums: role of the local authority

    As a local authority or national park authority, find out what responsibilities you have for your LAF.

  • Local authority rights of way improvement plans

    As a local authority you must review your rights of way improvement plan every 10 years.

  • Authorising structures on rights of way

    Good practice guidance for local authorities on compliance with the Equality Act 2010

  • Path Paraphernalia

    Removing and improving path-paraphernalia

  • Restoring the Record

    Our former trustee, Phil Wadey, and his colleague Sarah Bucks have published the second edition of their book, Rights of Way – Restoring the Record

  • What to do about overgrown paths

    Our recommended action if you happen to come across an overgrown path.

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