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.

Likewise, auction particulars, contracts and conveyances may yield information, but these private documents may not be entirely reliable and claims of private not public for ways may be assertive and optimistic rather than accurate.

The absence or presence of private easements may be indicative of the local arrangements.

Under the old Lloyd George Finance Act 1910 taxable land always excluded public rights of way from valuation for the tax.

Maintenance of the way by the high authority is a good indication that the way is public. Though for one reason or another it is not unknown for the highway authority by mistake to maintain a private way, and not to maintain a public way, leaving the frontagers to fill in the potholes.

Green lanes

Difficulties have arisen in the countryside over 'green lanes', so called because they are ways over which technically rights of way exist for mechanically propelled vehicles but which have over the years become countrified or ruralised into footpaths and bridleways. They were known as 'roads used as public paths' (RUPPS) in the 1949 Act and subsequently rechristened 'byways open to all traffic' (BOATS) in the Countryside Act 1968 and Wildlife and Countryside Act 1981 '“ both singularly unattractive acronyms.

These ways had become abused by motorcyclists roaring around the countryside, damaging the environment and interfering with and upsetting country lovers.

Parliament therefore legislated to prevent the use of green lanes by mechanically propelled vehicles as from 1 May 2006, passing the Natural Environment and Rural Communities Act 2006. Its section 67(1) defines and extinguishes existing public rights of way for mechanically propelled vehicles that have not been recorded before the entry into force of the Act (see Dyson LJ in R (Warden and Fellows of Winchester College v Hampshire County Council [2008] EWCA Civ 431).

As a result, rights of way for mechanically propelled vehicles were abolished for unregistered or unrecorded rights of way and for registered or recorded byways open to all traffic.

Section 67(2) provides for a number of exceptions to abolition or extinguishments. The principle set out in section 67(1) does not apply to a public right of way where: (a) a way whose main lawful use by the public over 2001-2006 was for mechanically propelled vehicles, (b) the way was recorded on a highway authority street list of highways maintained at public expense, (c) and (d) it was created expressly or impliedly by statute, or (e) it was created before 1930.

The courts have said that the procedural requirements of the legislation should be strictly complied with (R (Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431).

In Fortune the way in question did not appear on the definitive map, but did appear on the highway authority list of streets maintained at public expense, although the list was shown to be rather defective in a number of ways. The electronic record sufficed. Therefore the way in question survived extinguishments, at least until 2026, the current final date for registration on the definitive map or extinguishments.

If history is anything to go by, the next 13 years are not long for the task. Solicitors should be on the lookout on behalf of clients, and warn them, and act. Local knowledge is often key.