End of the road for ‘Discovering Lost Ways’, a new beginning for 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.”
We have now learnt that Natural England has put a set of proposals to Defra Ministers about the future of the project. Natural England says that it has 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 will come 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 now:
- 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.
Natural England say that Defra civil servants are 'broadly comfortable' with this approach but the response of Ministers is still awaited. Clearly the '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. Watch this space for more news in the coming months.
