Private keep out!

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:

  1. stopping people using the route, either by turning people away or by putting obstacles in their way;
  2. restricting use of the highway to a particular section of the public;
  3. 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.

Valued Landscapes Must Be Something Special

In Forest of Dean District Council v Secretary of State for Communities And Local Government& Anor [2016] EWHC 2429 (Admin), the local authority failed to quash the grant of permission for 95 homes in the open countryside on appeal. The development was in an undesignated landscape area. The authority claimed it was ‘valued’ nonetheless (so engaging NPPF 109 – requiring a starting point of “protection and enhancement” rather than a planning balance).

Out of the ordinary

Valued landscape is that which is “out of the ordinary”, rather than designated or simply popular (Stroud District Council v Secretary of State for Communities and Local Government [2015] EWHC 488 (Admin)). The Inspector decided there were “no particular landscape features, characteristics or elements that demonstrate that the appeal site is in [landscape assessment] terms representative of the wider landscape i.e. a particularly important example which takes this site beyond representing anything more than countryside in general“. However he also concluded that  ‘valued landscape’ must mean a landscape that is considered to be of value because of particular attributes that have been designated through the adoption of a local planning policy document.

The Secretary of State accepted the claimant’s argument, that this was a misapplication of NPPF 109, but resisted quashing of the decision on the basis that the decision would have inevitably been the same. The developer fought back harder, on the basis that the Inspector properly found the landscape not to be valued because it lacked the necessary attributes, and so approached the NPPF 109 policy lawfully.

The claim was dismissed on the basis that while the Inspector’s phrasing was in places “less than optimal”, he had ultimately properly determined the issue having addressed the critical question of whether the landscape had extra-ordinary aspects taking it beyond ‘mere countryside’. The outcome would therefore have been no different.

The status and effect of valued but undesignated landscape is an increasingly common element of objections to greenfield housing schemes. Understanding whether there is any underlying objective basis for local perception of value is crucial to deal properly with these issues.