How to defend claims for historic rights of way

Following a CLA lobbying win which saw the cut-off date for claiming historic rights of way reinstated by the Secretary of State back in March 2023, it will come as no surprise that members have seen a spike in applications for Definitive Map Modification Orders (DMMOs) to add historic paths across their land. Read on for our brief guide to these claims and how best to defend yourself against them.

By way of background, the Definitive Map (DM) and statement is a record of public rights of way which highway authorities have a duty under the National Parks and Access to the Countryside Act 1949 to keep up to date. If a route is shown on the DM, the public have a right to use it, the map and statement is conclusive. However, there may be rights of way not shown on the map that are valid or they are shown but not correctly recorded such as a footpath that ought to be a bridleway.

Under the Wildlife and Countryside Act 1981 (WCA 1981) a DMMO is used to add public rights of way to the DM or amend routes recorded incorrectly. An application for a DMMO may be made by any person or group. It is common to see them made by regional branches of the British Horse Society/Ramblers or by a local access enthusiast.

Evidence is needed to support such claims. This evidence can be by way of long use (explained in our article about the 20-year rule) and/or historic documentary evidence, such as old maps and inclosure awards. DMMOs are not about creating new rights of way, they are a way to record routes which already have public rights but were missed off the DM following its introduction.

Local authorities are battling against a huge backlog of DMMO claims. Realistically because of the time involved in assessing the evidence and going through the legal process they can usually only deal with between two and seven DMMO cases per year. The trouble is that there are more than that joining the pile each year. On the basis of our most recent figures, Somerset has an expected 29-year backlog before a Definitive Map Modification Order is processed, Shropshire 30 years and Worcestershire an incredible 67 years.

It is very hard to say when an individual claim will reach the top of the local authority’s pile and start the full consultation process. This is because the system allows an applicant, who has not received a determination on their DMMO application, to appeal to the Secretary of State. The inspector representing the Secretary of State will order the relevant local authority to deal with that application by a certain date. In this respect, the order on which they are dealt with is disrupted. This only adds additional uncertainty to members facing such claims.

There is often some confusion about claims for historic rights of way where the land manager has made a deposit under S31(6) of the Highways Act 1980. Unfortunately, these statements and deposits will only protect you from claims of long use and not from claims of rights of way based on historic documentary evidence.

The fact that a route has not been used in living memory will not help your defence either as the legal test will only be assessing the allegation of whether a right of way existed on the basis of the historical evidence presented. This occasionally leads to anomalies where a claimed route goes through the sitting room of a farmhouse with a modern extension or through farm buildings. In this scenario, if the inspector determines that the right of way exists and should be added to the Definitive Map, then a separate process can be followed to divert the path to a more sensible physical location.

It is becoming more common for farm insurance policies to include cover for the legal expenses to defend a DMMO claim, as these can run into tens of thousands of pounds. CLA Insurance offer this as part of their package, but if you end up with a notice advising you of a claim for a historic right of way, it will be worthwhile spending some time in the office unearthing your policy documents and checking whether cover is included. If you still aren’t clear, then a quick call to your broker could save you thousands of pounds in the long run.

If you find that you are in receipt of a notice for a historic rights of way across your farm or estate, then it is crucial that you contact the CLA for assistance. We can help put you in a stronger position to defend such claims by explaining the statutory process that a claim travels through and then giving you tailored advice based on the evidence being relied upon for your particular claim.