Challenging rights of way decisions
Rights of way are a vital part of the landscape of England and Wales, providing access to open spaces, helping promote outdoor activities, boost tourism, and connect communities. While the collective cultural, historical, and recreational importance of paths is well recognised, the status of individual paths is difficult to determine. Making alterations to the network can sometimes feel like a black box for landowners and the general public and can be a lengthy and cumbersome legal process. This blog explores the legal framework underpinning rights of way, how conflicting interests are balanced, and how approaches might change in the future.
Please note, the information contained in this blog post is for informational purposes only and should not be construed as legal advice.
Rural village road, Hampshire | Photo by Scott Evans on Unsplash
Alleyway, York | Photo by Jack Plant on Unsplash
Legal foundations
The definitive map and statement forms the official legal record of all public rights of way in England and Wales. All rights of way (footpaths, bridleways, restricted byways, and byways open to all traffic) shown on the map are legally protected, giving everyone a right to use them. Each surveying authority has its own definitive map and has a statutory duty to it keep up to date. Any changes made to rights of way are recorded by definitive map modification orders.
The diversion or closure of a path can only occur by an Act of Parliament, or specific legal action by a local authority, magistrates’ court, or government department. Conversely, the creation of a path can only occur if dedicated by a landowner, if public use has been unchallenged by a landowner, if there is an agreement between landowner and local authority, or if an order is made by the local authority.
Competing interests
While paths facilitate public access, disputes often arise when landowners seek to divert or modify them to accommodate private interests. This tension is exemplified by the divergence in urban and rural rights of way. Kate Ashbrook, general secretary of the Open Spaces Society, highlights the unequal treatment of these paths in different contexts, especially in terms of path diversion to address landowner concerns of privacy and security. This disparity poses a fundamental question: How can the historical integrity of the path network and contemporary landowner interests be reconciled?
A defaced sign which was put up by one of the Cambridge colleges on a regularly used path | Photo by Elsa Noterman
New approaches
Elsa Noterman and Camilla Penney’s Accessing Land Justice project has attempted a novel approach by appealing to University of Cambridge Colleges to encourage them to voluntarily dedicate at-risk paths on their land as public rights of way. This raises important questions about the responsibilities of landowners, particularly charitable institutions, in enhancing land access - especially in areas that have been historically extremely ‘gatekept’.
A path forward
Public rights of way constitute part of our shared heritage in England and Wales, whether in urban or rural environments. The intrinsic value of paths is often overlooked but forms an integral part of their cultural and historic significance. This should be carefully measured against the interests of landowners whose expectations of privacy understandably differ depending on the surrounding environs.
The discourse surrounding rights of way is all too often oversimplified as a dichotomy between landowners and the public. Alterations to the right of way network can be made for a variety of reasons, and changes which benefit the public do not automatically disadvantage landowners, and vice versa. The In All Our Footsteps project seeks to shed greater light on this process as a whole, particularly how decisions are made, so that a robust review can take place. This will provide greater clarity to everyone concerned with rights of way.
Rights of way represent a shared legacy for everyone in England and Wales. While the legal aspects and competing interests of these paths is complex, they involve a delicate balance between preserving history and accommodating contemporary needs. As we look to the future, a nuanced approach, informed by legal understanding, community dialogue, and stakeholder cooperation, is crucial. The In All Our Footsteps project aims to clarify rights of way decisions as we unpick how the network has been codified over the last 74 years.
