Discovering Lost Ways
05 March 2008
End of the road for ‘Discovering Lost Ways’, or a new beginning
for historic rights of way?
The Ramblers’ Association has welcomed Natural England’s
decision to scrap the ill-fated ‘Discovering Lost Ways Project’,
and to make a fresh start to the process of mapping and
recording of historic rights of way. Janet Davis, RA rights of
way policy coordinator, looks at the background to the scheme
and explains why now is the time for the Government to repeal
its 2026 cut-off date for recording historic rights of way.
One of the most contentious provisions of the Countryside and
Rights of Way (‘CROW’) Act 2000 is that which will extinguish
all historic rights of way that have not been legally recorded
by 1 January 2026. The government’s aim in introducing this new
law––of completing the legal record of the network and so
ensuring certainty for path users and landowners alike––was
laudable and welcome; as was the promise of funding to assist
with the research needed to make sure that the historic network
was properly recorded. However, organisations representing path
user groups were becoming increasingly concerned about the lack
of progress with this research, which was being carried out by
the government agency, Natural England, under the banner of the
Discovering Lost Ways (‘DLW’) project.
It is now seven years (more than a quarter of the way into the
25-year period before the cut-off date) since the CROW Act
received royal assent, and not a single path has been formally
recorded by the DLW project. As we pointed out when this law was
passed, the task was immensely large and complex. By last year
it was becoming clear that the DLW project was never going to
identify all of the missing paths, let alone get them recorded;
but even if it were partially successful, many thousands of
routes within our cities, towns and villages which the DLW
project was not addressing stood to be lost in 2026. Towards the
end of last year speculation and disinformation about the future
of the project were rife and a number of the leading path user
groups, including the RA, were calling on the government to
repeal the 2026 cut-off date and re-direct the operation of the
DLW project.
In a letter to the Times in the November of last year we said
“The systematic trawl for information about paths in the
National Archives and county record offices is valuable, but
what is being discovered needs to be put in the public domain,
so that the voluntary sector can fully engage in the path
claiming process. Quite separately, the Law Commission should be
asked to review the legislation which governs the recording of
rights of way on definitive maps and which places an enormous
administrative burden on both local authorities and the Planning
Inspectorate, with a view to simplifying it.”
In February of this year Natural England put a set of proposals
to Defra Ministers about the future of the project. Natural
England said that it had reviewed the effectiveness of the DLW
project to date and concluded that researching lost ways is
extremely resource intensive. Even if it were to adopt a policy
of pursuing "high quality" routes, it would still require
exhaustive and costly research. This conclusion came as no
surprise to anyone who has been following the progress of the
project. Crucial from the point of view of walkers and other
path users is what Natural England sees as the way forward :
• progressing from its current role of researching and claiming
individual lost ways to providing advice and guidance to this
that wish to do so at their own initiative;
• Facilitating a fundamental review of the legislation and
current processes that underpin the provision of access;
• working with stakeholders on the review;
• building and encouraging further progress with the Rights of
Way Improvement Plans (ROWIPs) prepared by local highway
authorities; and
• Seeking to invest the money saved on the current DLW project
approach to deliver this work.
Very significantly, Natural England’s review has highlighted
that the term “Discovering Lost Ways” is in fact largely a
misnomer, as many historic routes are not in fact ‘lost’ in the
first place. They are currently used and in existence, but are
simply not recorded on the definitive map. Around 50% of routes
identified in Cheshire to date and around 70% in Shropshire
appear from map analysis to be un-gated, fenced green lanes and
surfaced tracks. Site visits verify that many of these are in
fact in use, and a significant number of these tracks have
recorded routes leading off them. In addition, around 10-15% of
the routes identified to date are upgrades in status from an
existing right of way. That is, the route itself is recorded on
the definitive map, but there is clear evidence to show that the
public’s rights along it are under-recorded – for example, a
bridleway is shown on the map as a footpath. Truly lost, unused
routes are therefore in the minority. This allays some of the
concerns about the impact on property rights of ‘discovering’
these routes.
Natural England says that the likely loss in 2026 of the used,
unrecorded routes will lead to a significant decrease in
availability of access to the countryside and will also have an
adverse impact on local history and heritage. Evidence would
suggest that whilst parts of the routes we have identified often
form the access to properties, the majority are sunken, walled
or hedged lanes which impact little on land use or farming
activity.
We have now learnt that Jonathan Shaw, the Minister for Marine,
Lanscape and Rural Affairs, has agreed to Natural England
recommendations and that implementation of sections 53 to 56 of
the CROW Act (the cut-off date provsions) will not be pursued,
at least until the stakeholder group which had been proposed to
look again at the legislation has reported on its conclusions.
Clearly this 'fundamental review of the legislation' presents us
with a tremendous opportunity to bring some much-needed
improvements to rights of way law. The challenge will be in
ensuring that number one on the list of any changes is repeal of
the 2026 cut-off date now that the supposed safety-net of the
Discovering Lost Ways project has been removed.