How do you know if a path is a right of way? And how can you prove it when it is?
Up until 1949, the public had to go through the courts to prove that a path was a right of way. But that changed with the passing of the National Parks and Access to the Countryside Act 1949, which made it necessary for surveying authorities (county councils and unitary authorities) to draw up and maintain a ‘definitive map and statement’ of the rights of way in their area.
A definitive map is a legal document which must be produced and kept up to date by every county council or unitary authority in England and Wales (except the inner London boroughs). It should show every right of way in an authority's area and the nature of the rights over the paths shown i.e. whether there's a right of way on foot, on horseback or in a vehicle.
It should be accompanied by a document called the definitive statement, which records additional details, For example, the legal width (if known) of a right of way, and any limitations on the public’s use of it such as stiles or gates.
Definitive maps are public documents and must be available for the public to view, free of charge, at surveying authorities’ offices during normal office hours. Some authorities have online versions of their definitive map which are usually described as ‘working copies’.
Recording a path on the definitive map is conclusive evidence that public rights exist over it. Rights may also exist over paths not shown on the map, and ‘higher’ rights may exist over a path shown (for example, a path shown as a footpath may in fact be a bridleway).
It’s the duty of every surveying authority to make sure their definitive map reflects reality by amending it to remove discrepancies between rights of way that exist, but which aren’t recorded, and those that are recorded.
But modifying the map is more complicated than simply drawing or erasing a line. A surveying authority has to follow a legal procedure, making and confirming a Definitive Map Modification Order (DMMO) before a change can be made.
Rights of way information shown on Ordnance Survey Pathfinder and Explorer maps is taken from definitive maps so they’re key to the public’s use of the path network, but the most important reason is that the legal status of a definitive map provides protection for a right of way on it.
A council wanting to take action over a problem can do so in the sure knowledge that the a right of way is public. Enforcement action can be taken where there's a problem on a right of way that's not recorded on the definitive map, but in practice local authorities may be reluctant to act if the path isn’t recorded.
A definitive map is modified by making and confirming a DMMO. Anyone can apply for a DMMO, but there must be evidence to support the application. Find out more about applying for a DMMO.