The ‘right to roam’ has a storied history. The first
parliamentary bill was introduced in 1884, then re-introduced in successive
years to 1914; this culminated in the mass trespass action and imprisonment of
six activists on Kinder Scout in the Peak District in 1932 to draw attention to
the lack of public access across the countryside.
Fast forward to 2000 and the Countryside and Rights of Way Act 2000 (CROWA 2000) finally granted the public a ‘right to roam’ over certain designated open country land and coastal margins. CROWA was two faced. While it secured a right to roam, under Part II, some historic footpaths and bridleways are now threatened with extinction. Those rights of way that came into existence before 1949 but have not been recorded on any definitive map and statement by 1 January 2026, may be extinguished if section 56 is brought into force.
The definitive map and statement is a record of public
rights of way held by every local authority (including county councils and
London borough councils) in England and Wales.
Many of these unrecorded historical paths are still in use, and an
application can be made for a modification to a definitive map on the basis of
20 years’ use under section 53 of the Wildlife and Countryside Act 1981.
According to a Freedom of Information request by the
Ramblers, there are over 4,000 outstanding applications to record historic
rights of way on definitive maps, and DEFRA has estimated that 20,000 applications
may be made before the proposed cut-off date of 2026.
There is currently little guidance on when/if section 56 of CROWA 2000 will be brought into force, and the longer it is delayed the likelihood increases that the 2026 cut-off date may be extended. The sensitivity of the issue was highlighted in a recent debate in the House of Lords regarding a potential five year extension to 2031.
Users of historic rights of way established before 1949 will
have to collect sufficient evidence that supports an application for a presumed
dedication of a public right of way based on 20 years’ use before 1949. This
can be difficult given the intervening period, but manorial records, inclosure
awards and maps, tithe and award maps, OS maps and Council records can assist.
For landowners to resist such an application, they will
have to demonstrate that prior to 1949 the current or previous landowner did
not intend to dedicate the route as a public right of way by:
- stopping people using the route, either by turning people away or by putting obstacles in their way;
- restricting use of the highway to a particular section of the public;
- lacking capacity to dedicate the land.
There is a prescribed procedure for making an application
for a modification to a definitive map and for objections to be made. Whether
one agrees with the potential cut-off date will depend on their particular
views as landowner or right of way user.
However, if public rights of way were established before 1949 and are
important to local people, there is potentially a limited opportunity to
formalise that right of way and help to keep definitive maps up to date for the
benefit of all.