The issue of Public Rights of Way (PROW) has, and always will be, a hugely complex area.
Highlighted on what is known as the Definitive Map and Statement (DMS), which was produced by local authorities following the National Parks and Access to the Countryside Act 1949, it has become clear in recent years that many PROW have been detailed incorrectly on the seemingly trusted map – with some given the wrong status, some in the wrong position, private routes being shown as public, and others simply missed off all together.
This has ultimately led to a confusing picture with legal challenges potentially at every turn for landowners, farmers and local authorities – not helped by the fact that some PROW have been established on the basis of long use which can potentially result in “deemed dedication” by landowners themselves, and by virtue of the 1980 Highways Act or common law.
Claims for additional PROW to be put on the DMS on the basis of historical evidence, or for existing routes to be modified, can be extremely problematic and time-consuming for landowners so in this blog I want to highlight the key things they must be aware of when looking to change or challenge a route.
The following three points are vital to consider:
- The route – determining the extent of the existing or claimed route itself – particularly if it extends through farm buildings or even a newly-built or proposed development.
- Cost and time – If the claimed route is based extensively on historical evidence, generally it can be extremely time consuming and costly to undertake the necessary research to object to changes or to subsequently divert a route - even instructing an historian to assist doesn’t come cheap.
- Local authorities – Staying on the issue of time, it is taking local authorities a considerable amount of time to deal with these often-complex applications – some stretching into years and even decades which can be mainly down to a long waiting list. Those timescales will cause landowners a huge amount of uncertainty and stress, potentially causing difficulties with selling or refinancing their property or land.
These three points aside, there is another issue on the horizon for landowners to be aware of. To try and put it simply, Section 53 of the Countryside and Rights of Way Act 2000 (CROW) was introduced to provide a cut-off date of 1 January 2026, for PROW created before 1 January 1949 to be recorded on the DMS. Some PROW created before 1 January 1949 that had not been detailed on the DMS by this date would be terminated immediately after the cut-off date.
However, Section 53 CROW was never actually brought into force. This has not stopped a flood of applications based on historical evidence being lodged with the local authorities though as the expectation was that the required regulations would bring Section 53 CROW into force, either with the 1 January 2026 cut-off or an alternative date.
To add further to the mix, in February this year DEFRA announced that they would be repealing the 2026 cut-off legislation altogether – essentially meaning there will no longer be a time limit to claim that historical pre-1949 routes be added to the DMS.
There is no doubt that the January 2026 cut-off would have provided certainty and comfort for landowners that, after this date, they would not face applications for further historical (pre-1949) PROW affecting their land to be registered on the DMS.
For those in the rural sector it has come as a surprise and I know it is disappointing to landowners who expected that they would soon have more certainty. It has however, been welcomed with open arms by groups such as the Ramblers Association and Open Spaces Society who want to ensure that historical routes are not lost.
I am, however, not altogether surprised at this latest development, nor is it a huge shock that DEFRA have indicated that they will be seeking to progress other Statutory Instruments relating to PROW.
One specific Statutory Instrument relates to ‘Right to Apply’ legislation under section 23 of the Deregulation Act 2015. The idea here is that local authorities will be forced to consider diversion or extinguishment applications made by landowners. This is an important development as at present local authorities can simply refuse to process them. Given the current backlog of applications I am interested to see how this will play out as local authorities do not appear to have the resources to deal with the volume of applications and face many other pressures.
To sum up, this latest announcement is understandably disappointing for landowners who are facing increasing difficulties with PROW. They now face an uphill challenge to resolve such difficulties due to the ever-increasing waiting times.
As ever, the rule of thumb for landowners is to take advice at the earliest opportunity on how to prevent PROW claims wherever possible.
Based at our offices in Worcester city centre, Hannah Taylor is a Senior Associate within our award-winning Agricultural and Rural Affairs Division.