Claiming an unrecorded right of way helps to ensure the right is protected for the benefit of the public and future generations.
Here we explain why, and how to go about doing it.
Surveying authorities (i.e. county councils or unitary authorities), with the exception of Inner London boroughs, are legally obliged to draw up and maintain a document called the definitive map, which is an official record of the public's rights of way in an area. Just like the deeds to a property 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 for the area. Once a right of way is on the definitive map it’s easier to protect it from those who want to interfere with it.
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 must follow a legal procedure.
A right of way automatically gets put on the definitive map if it was created by a legal agreement or order; but not all rights of way come into existence like this. A period of long use by the public can establish a right of way; also, there are hundreds of historic rights of way which are yet to be formally recorded, having been mistakenly left off the first definitive maps when they were drawn up in the 1950s. To record a right of way on a definitive map it’s necessary to apply for a Definitive Map Modification Order (DMMO).
A right of way may be claimed on the basis of user evidence (i.e. evidence that the public has established a right of way by using a defined route over a period of time), or documentary evidence (i.e. evidence based on historical documents such as tithe maps), or both.
In order to make a claim for a right of way based on public use you’ll need to be able to demonstrate all of the following:
- A period of at least 20 years uninterrupted use by the public, counted backwards from the date when the public’s right to use the way was called into question. If the public's right to use the path has not been called into question the 20-year period should be calculated backwards from the date of your DMMO application.
- Use should 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.
- Use must be by the public at large, not just certain tenants or employees of an estate.
- Use must follow a linear route.
Please note:
It may be possible to establish a right of way on the basis of public use over a period less than 20 years: read more about this).
Claims cannot be made for ways over land where access is already prohibited: such as motorways and railway lines. Nor can a right of way be acquired over Access Land.
The law says a right of way can only be extinguished through a legal process. This means a right of way which came into existence a long time ago and has become invisible on the ground still legally exists - and may be claimed - if it's never been formally extinguished.
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 tithe awards. The Rights of Way Review Committee (of which the Ramblers' is a member) has produced a guidance note which explains about the different types of documentary evidence, 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 is worth bearing in mind that documents may be open to more than one interpretation. If there has been recent public use of the right of way you're claiming, it's worth submitting user evidence as well.
Before you start doing lots of research and hard work 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 if the order was confirmed.
Anyone may apply for a DMMO and there is no charge for doing so. Applications should be made to the surveying authority for the area (i.e. the county council or unitary authority). There are no definitive maps for Inner London Boroughs, so DMMOs cannot be made in respect of Inner London rights of way.
To apply for a DMMO you must do the following:
1. Submit to the appropriate surveying authority:
- An application form (the surveying authority can provide you with this)
- Evidence to back up your application
If your claim is based on user evidence you'll need at least six witnesses to complete an evidence form confirming that they used the route. The evidence forms should be accompanied by a map/plan which shows the route of the claimed right of way and has been signed by the witnesses.
If your claim is based on documentary evidence you'll need to submit copies of the documents on which your claim relies. If this is likely to be difficult the surveying authority may agree to waive this requirement. - A certificate of service of notice
Confirming that you have served notice of your application on every landowner or occupier affected by it (see below).
2. Serve on every landowner or occupier affected by the application
- A notice of application
Finding out who the owner of the land is can be difficult. One way of doing it is by carrying out a search with Land Registry, but be aware that not all land is registered - particularly in rural areas. If you can't serve a notice of application because you don't know who to serve it on, you can ask the surveying authority to authorise the placing of the notice on the land itself, usually on a fence or tree where it can be easily seen.
Once a surveying authority has received a DMMO application and a certificate of service of notice it has a duty to investigate the matters in the application. It must consult with local councils in the area and decide whether the evidence supports the 'reasonable allegation' that a right of way subsists over the claimed route. An applicant has a right of appeal if she or he thinks the authority has made the wrong decision on the basis of the evidence.
We've created a DMMO flow chart to explain the process from start to finish.
