Time running out to establish old public rights of way

Is that 'way' a public right of way, and, if so, what is its nature? May it lawfully be used by motor vehicles? Even today this issue still arises. There may be intensification of use leading to dispute, or access by motor vehicles may be necessary or highly desirable for a proposed new development which is opposed by local people and where lack of access would prevent the proposal going ahead.

In 1949 '“ that is, over 60 years ago, before the accession of the Queen '“ parliament sought to establish a system of universal registration of public rights of way in the National Parks and Access to the Countryside Act Part IV, but the process is still far from complete.

Public rights of way fall into three broad categories, namely footpath, bridleway, and a way open to vehicles, originally carts, now mechanically propelled vehicles. The public right of way may be proved by express dedication, uncommon, or by implied or inferred dedication, namely by 20 years user by the public, openly without force and without permission Highways Act 1980 section 31. Many ways can be traced back to before 1835, when the local authority became responsible, the modern regime. The rule that 'Once a highway always a highway' applies to affirm that the status once acquired is not lost by disuse.

The case over the existence of a right of way usually turns on the evidence Highways Act 1980 section 32, namely any map, plan or history of the locality or other relevant document, including the antiquity of the document, the status of the maker, and the custody from which it is produced.

There are many factors which might go to prove a public right of way for vehicles (or conversely the absence of which might disprove). These were recently reviewed in Fortune v Wiltshire County Council [2012] EWCA Civ 334.

Considering relevant factors

The way, between points A and B, might be a clear route between two important roads, and an obvious alternative to the way between nearby points C and D because of the poor condition of C to D or to avoid the tolls on C to D. Incidentally the phrase 'cross road' to be found in old documents means a road crossing from A to B, not a 'crossroad' as understood today.

The way may be of sufficient width for vehicles, with hedges or walls or fences alongside, and verges. There may have been no gates or obstructions along the way. There may be a bridge constructed over a stream which would not have been necessary for pedestrians and horses if the way were only a footpath or bridleway. The way may provide access to more than the occasional private house or farm, for example access to a common or coppice or playing field or pub. Even a cul-de-sac could be a public right of way, for instance giving access to a common or town or village green.

Modern ordnance survey maps are superb, but they only indicate what is on the ground, when they were compiled, they do not purport to indicate legal status. Old maps can be very helpful, but may not conform to modern standards of cartography. Colouring on old maps may be significant, indicating different sorts of way. Inclosure awards and tithe awards can provide information. Nomenclature may be revealing, the name and description of the way over the years. The absence or presence of a 'private' notice displayed on the way should be considered too.