How to claim an unrecorded right of way

Claiming an unrecorded right of way helps to ensure the path is protected for public use, both now and in the future. Find out why and how to go about doing it.

Introduction: Recording rights of way on the definitive map

Surveying authorities (county councils or unitary authorities, with the exception of inner London boroughs) are legally obliged to prepare and maintain a document called the definitive map.

The definitive map is the official record of the public’s rights of way in an area. Just like the deeds to a house prove who the owner is, the definitive map proves that the public has a right to use the paths which are shown on it.

By claiming a right of way we mean getting it recorded on the definitive map. Once a right of way is on the definitive map it’s easier to protect it and ensure it can be enjoyed by walkers.

How do rights of way get recorded on the definitive map?

Surveying authorities are responsible for keeping their definitive map up to date, but they can’t just change it as and when they please – they have to follow a legal procedure.

A right of way can be put on the definitive map as a matter of course if it was created by a legal agreement or order, but not all rights of way come into existence like this.

The public using a route over a period of time can establish a right of way. Also, there are hundreds of historic rights of way which are yet to be formally recorded, having been wrongly left off the first definitive maps in error when they were drawn up in the 1950s and 1960s.

To get a right of way recorded on a definitive map it’s necessary to apply for a Definitive Map Modification Order (DMMO).

The grounds on which a right of way claim can be made

A right of way can be claimed on the basis of user evidence (i.e. that the public has established a right of way by using a defined route over a period of time), or documentary evidence (i.e. based on historical documents such as Enclosure Awards or other old maps), or a combination of the two.

Claiming a right of way using user evidence

In order to make a claim for a right of way based on public use, the law (section 31 of the Highways Act 1980) requires that you’re able to show all of the following:

  • A period of at least 20 years’ uninterrupted use by the public. This is counted backwards either from the date when the public’s right to use the way was called into question (for example, when somebody locked a gate across the path) or, if the public's right to use the path hasn’t been called into question, from the date of your DMMO application.
  • Use must be 'as of right', which means without secrecy, force, or the express permission of the landowner. But there's no need for the public to have believed it was a right of way they were using, or for the landowner to be aware that public use was taking place, provided he could be aware of it if he chose to look, i.e. not by stealth.
  • Use must be by the public at large, not just certain tenants or employees of an estate.
  • Use must follow a linear route.

In some circumstances it may be possible to establish a right of way on the basis of use by the public over a period less than 20 years under common law.

Claiming a right of way using documentary evidence

Sometimes a combination of old documents will show that a right of way exists. The law says a right of way can only be extinguished (permanently closed) through a legal process. This means that a right of way which came into existence a long time ago and is no longer visible on the ground still legally exists – and may be claimed – provided it's never been formally extinguished.

Before you start doing lots of research and hard work investigating archives, it's worth checking with the surveying authority whether the right of way you're claiming has been extinguished by a legal order. Any evidence of right of way status before an extinguishment order will have been invalidated by that extinguishment.

To prove that a right of way came into existence at some time in the past you'll need to rely on documentary evidence like old maps and Enclosure Awards. The Rights of Way Review Committee (of which we’re a member) has produced guidance which explains the different types of documentary evidence, and the weight such evidence carries, and explains how to go about finding it.

Sometimes documentary evidence will be sufficient in its own right to prove that a right of way exists, but it’s worth bearing in mind that documents may be open to more than one interpretation. If there’s been recent public use of the right of way you're claiming, it's worth submitting this evidence of use as well.