Public rights of way can come into existence through creation (either by order or by agreement made with the landowner) or dedication by the landowner (either expressly or by presumption).
Highway authorities (i.e. county councils and unitary authorities) and the Secretary of State have the power to make an order creating any type of right of way over a piece of land where they think it would add to the convenience or enjoyment of the public. A creation order may create a new right of way or establish higher rights over an existing right of way (turning a footpath into a bridleway, for example). The procedure for making a creation order is the same as for any other public path order.
Once a creation order has been confirmed the definitive map should be updated to reflect the newly established rights; this may happen automatically or it may need a legal event order, depending on how the authority has drafted the creation order.
Highway authorities can enter into agreements with landowners to create footpaths, bridleways or restricted byways. Unlike with creation orders there's no period set aside for objections to creation agreements; they are simply drawn up and signed, and the right of way comes into existence on the date given in the agreement. Notice of a creation agreement must be published by the highway authority in at least one local paper.
Once a creation agreement has been signed the definitive map should be updated by the authority by way of a legal event order.
A landowner may expressly dedicate a right of way over his or her land, but this is rare. Express dedication is a unilateral act on the part of the landowner, there's no agreement with the relevant highway authority (although the highway authority may subsequently agree to adopt an expressly dedicated right of way - i.e. take on liability for its maintenance). Whether express dedication has taken place depends on whether there is evidence of the landowner's intention to dedicate (only the freeholder of a parcel of land can dedicate expressly) and whether the public has accepted the dedication (i.e. they have begun to use the way).
Once express dedication has taken place the definitive map should be updated by the authority by way of a legal event or definitive map modification order (DMMO).
The most common way rights of way come into existence is through presumed dedication. Presumed dedication refers to a long-established principle that long use by the public without challenge can constitute evidence that the landowner intended to dedicate the used route as a public right of way. Presumed dedication can take place by common law or statute law, which provide slightly different frameworks (see below). Anyone who has evidence that a right of way has come into existence by statute or common law may apply for a definitive map modification order (DMMO) to have the right of way recorded on the definitive map.
Common law
Common law is made up of custom and decisions of the courts over time. Over the centuries the principle of presumed dedication has evolved and it now provides that a person claiming a right of way by common law must be able to demonstrate that public use took place openly and freely for a sufficient period for their claim to succeed. No rule has been established respecting what constitutes a “sufficient period”, so each common law claim is decided on the particular facts of each case. The onus is on the person claiming a right of way to show that by the landowner's conduct, or the absence of any action by the landowner to prevent the public from using the claimed route, it can be inferred that the landowner intended to dedicate the way to the public. Learn more about common law dedication.
Statute law
The lack of clarity in the common law as to what constitutes a 'sufficient period' led Parliament to enact a law about presumed dedication. The law is set down in section 31 of the Highways Act 1980, and says that if a route is enjoyed by the public for twenty years or more, as of right and without interruption, the way is deemed to have been dedicated as a highway, unless there is sufficient evidence that there was no intention during that period to dedicate it. The twenty year period is counted back from the date when the right of the public to use the way was brought into question (usually by a new landowner moving in and challenging the public using the way).
The statute did not supplant the common law, so it is possible to claim a right of way by either statute law or common law.
