The 'right to roam' has a storied history. The first parliamentary bill was introduced in 1884, then re-introduced in successive years to 1914; this culminated in the mass trespass action and imprisonment of six activists on Kinder Scout in the Peak District in 1932 to draw attention to the lack of public access across the countryside.
Fast forward to 2000 and the Countryside and Rights of Way Act 2000 (CROWA 2000) finally granted the public a 'right to roam' over certain designated open country land and coastal margins. CROWA was two faced. While it secured a right to roam, under Part II, some historic footpaths and bridleways are now threatened with extinction. Those rights of way that came into existence before 1949 but have not been recorded on any definitive map and statement by 1 January 2026, may be extinguished if section 56 is brought into force.
The definitive map and statement is a record of public rights of way held by every local authority (including county councils and London borough councils) in England and Wales. Many of these unrecorded historical paths are still in use, and an application can be made for a modification to a definitive map on the basis of 20 years' use under section 53 of the Wildlife and Countryside Act 1981.
According to a Freedom of Information request by the Ramblers, there are over 4,000 outstanding applications to record historic rights of way on definitive maps, and DEFRA has estimated that 20,000 applications may be made before the proposed cut-off date of 2026.
There is currently little guidance on when/if section 56 of CROWA 2000 will be brought into force, and the longer it is delayed the likelihood increases that the 2026 cut-off date may be extended. The sensitivity of the issue was highlighted in a recent debate in the House of Lords regarding a potential five year extension to 2031.
Users of historic rights of way established before 1949 will have to collect sufficient evidence that supports an application for a presumed dedication of a public right of way based on 20 years' use before 1949. This can be difficult given the intervening period, but manorial records, inclosure awards and maps, tithe and award maps, OS maps and Council records can assist.
For landowners to resist such an application, they will have to demonstrate that prior to 1949 the current or previous landowner did not intend to dedicate the route as a public right of way by:
- stopping people using the route, either by turning people away or by putting obstacles in their way;
- restricting use of the highway to a particular section of the public;
- lacking capacity to dedicate the land.
There is a prescribed procedure for making an application for a modification to a definitive map and for objections to be made. Whether one agrees with the potential cut-off date will depend on their particular views as landowner or right of way user. However, if public rights of way were established before 1949 and are important to local people, there is potentially a limited opportunity to formalise that right of way and help to keep definitive maps up to date for the benefit of all.
Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.