The definitive map and accompanying statement form the legal record of the position and status of public rights of way in England and Wales. They have been described as being to rights of way what property deeds are to land.
The concept of the definitive map and statement was introduced by the National Parks and Access to the Countryside Act 1949.
The legislation governing the compilation of these records and their review and amendment has altered since the coming into effect of that Act, principally by the Countryside Act 1968 and the Wildlife and Countryside Act 1981. The Countryside and Rights of Way Act 2000 brought in the "cut off" date of 2026 by which time all rights of way over footpaths and bridleways outside Inner London which have not been not recorded on definitive maps will be extinguished.
In response to this the Countryside Agency established the Discovering Lost Ways project to help ensure routes are recorded before the cut off date.
Definitive map work takes up much of the resources of rights of way sections. Managing the definitive map below covers the main tasks associated with this work which require understanding of Duties and Powers. Many authorities employ dedicated definitive maps officers to do the work required to modify, update or correct the definitive map.
The relationship between the definitive map and the list of streets is discussed in List of Streets
The Countryside Agency (now Natural England) produced a short guide to definitive maps. It is aimed at all interested parties available free from Natural England or as a download.
Managing the Definitive Map and Statement
The orders most commonly made to change footpaths and bridleways are:
- public path creation orders made under section 25 or 26 of the Highways Act 1980 - see Creation of Public Paths which also gives information on :
- the latest code of pactice for creating paths
- common law dedication
- public path extinguishment orders under section 118 of the Highways Act
- public path diversion orders under section 119 of the Highways Act
The work of keeping the definitive map and statement under continuous review has a history of being under-resourced. It is complex, controversial and has been subject to legislative change and High Court challenge. It is still seen as expensive, confrontational, and often irrelevant to delivering access to the public. Many authorities still have areas with no definitive map - see Excluded Areas for advice on mapping excluded areas.
Schedule 14 Applications
Anyone may apply to the surveying authority for a definitive map modification order to add a right of way to, or delete a right of way from, the definitive map and statement, or to upgrade or downgrade one that is already shown, on the basis that there is evidence to support the claim being made. The majority of applications are to add rights of way to the map, the presumption being that they exist but have not previously been recorded.
On receipt of an application made in the prescribed form, the authority has 12 months in which to decide whether or not to make an order. If the authority does not meet this target the applicant may appeal to the Secretary of State against the authority's failure to determine the application. Applications have to be supported by evidence, which may be documentary or user, or a mixture of the two.
The introduction of the modification order procedure by the Wildlife and Countryside Act 1981 led to a large number of individual applications being made very shortly after the commencement of the legislation. This was because the Act introduced a process whereby individual disputes could be resolved.
The other effect of the Act was to end the periodic review of maps and the limited special reviews that were allowed under previous legislation. Abandonment of these reviews before completion often resulted in unresolved matters being resubmitted as individual applications.
Initially, surveying authorities dealt with evidence at a relatively superficial level, tending to take all evidence, including witness statements as to use, at face value. The 1989 O'Keefe case altered this as the judgment included three broad points:
- The surveying authority is acting in a quasi-judicial manner and must therefore test the evidence before it rather than taking it at face value. An authority must reach a decision and not simply rely on an inspector at a later stage.
- The surveying authority must consider not just the evidence submitted with the application but all other relevant evidence available. This has implications for the authority in terms of carrying out its own research.
- Landowners and occupiers must be afforded natural justice by being allowed to comment fully on all the evidence that the authority considers.
The O'Keefe case led most authorities to review their procedures and devote more time and resources to investigating evidence, particularly to interviewing witnesses rather than relying on user statements. This was challenged in 1994 by the Bagshaw case, which was heard in the Court of Appeal. The judge, commenting on the obligation in the Act that the authority must make an order if a right of way subsists or is reasonably alleged to subsist, stated that the authority could make an order where the evidence of use was only on paper. Despite this, however, it is still the practice of most authorities to interview user witnesses.
Many authorities also investigate documentary evidence tendered by the applicant, and also carry out their own research. The general view has been that the law places a duty on a surveying authority to consider all available relevant evidence, and this requires the authority to carry out research in order to ensure that this duty has been adequately discharged.
The result has been to place a large burden on authorities in dealing with any definitive map review matter and especially applications. For many authorities this has resulted in a large backlog of unresolved applications. In order to meet targets set by the Government and the Countryside Agency and those identified within their own Milestones statements, authorities have adopted a variety of strategies to deal with applications.
The first priority for many authorities has been to review their workload. This enables staff to identify duplicate applications, to weed out any that are incapable of further processing, and to rationalise the backlog according to agreed priorities. It may be appropriate to group applications that have certain similarities - for example, shared documentary evidence or the same group of user witnesses. Processing such applications together reduces the amount of time spent on research. Most authorities have already carried out this process as a part of their Milestones review.
In dealing with new applications where there is already a backlog, it is important for authorities to:
- establish a policy for prioritising all applications, both new ones and those in the backlog;
- ensure that new applications are sufficiently complete to allow for them to be processed. This means that a new application should be given a prima facie check to ensure that it has been correctly made; if it has not, it should be returned to the applicant with a covering letter explaining what is wrong and how this should be remedied;
- assign all new applications a priority for being dealt with, in accordance with the authority's policy. New applications could be linked to an existing application if they relate to the same route or involve the investigation of common evidence.
The situation should be monitored and regularly reviewed. Strategies for dealing with a backlog of applications are only of limited use; they cannot be a long-term substitute for adequate resources.
CSS (formerly the County Surveyors' Society) research identified one authority that had adopted the position of requiring all applicants to carry out fully documented research before making an application. This could be controversial, and involves the authority taking a political decision to refuse to accept applications that, in the view of the authority, have insufficient evidence presented as part of the application. In effect, the authority is refusing to investigate an application unless it is accompanied by all the necessary information to enable a decision to be made.
This position is in contrast with the more usual approach, in which the authority accepts that it has a clear duty to investigate any application that has been made, provided the technical requirements of the legislation have been met. The difficulty with this view is that the authority may then be obliged to accept all applications, even those accompanied by scant or inconclusive evidence. One possibility is for the authority to include in its prioritisation system a score to account for the level of research done by the applicant. This encourages applicants to do a small amount of research, without precluding the submission of applications where applicants do not wish or are unable to carry out research. Alternatively the authority may offer training and guidance to potential applicants to help them understand the amount and standard of preliminary research required and how to record it in a way that is useful to the authority.
Strategy for Backlogs
- An initial full review of the backlog of applications, weeding and sorting as appropriate.
- Consultation with users and landowners to agree a priority system for dealing with applications.
- Provision of guidance, and possibly training, for potential applicants to enable them to submit as much useful information as possible. The use of a Schedule 14 application pack is recommended.
- Regular review of the backlog to monitor progress, with reports to councillors as necessary.
The Isle of Wight Council undertook a total survey of its 520 miles of path network in 1993. The survey identified 232 routes where the line on the ground differed from that shown on the definitive map. On examination 156 cases were considered by officers to be de minimis; that is, the amount of divergence of the route on the ground from the definitive line was too small to be of concern. In 25 cases enforcement action was taken to reinstate the definitive line. This left 51 cases in which officers considered the best solution was to make a diversion order to resolve the discrepancy. The council consulted parish councils and local users and, once agreement had been reached, it made and advertised 51 orders. Each attracted a single objection from an individual living in Hertfordshire. It proved impossible to resolve the objections. To avoid stringing the process out over a number of months, the council asked the Secretary of State to hold consecutive public inquiries. Ultimately all the orders were confirmed.
The majority of surveying authorities are aware of inconsistencies and inaccuracies in their maps and statements. These range from a discrepancy between map and statement - the map shows one status and the statement records another - to cartographic errors such as the depiction of a right of way on the wrong side of a boundary. Comparison of the definitive map with other highway records may also show inconsistencies, such as discrepancies between the recorded extent of a road and a right of way. A number of authorities have anomalies where the route on the ground differs from the route recorded on the definitive map. The purist view may be that each such anomaly or inconsistency requires detailed investigation and the making of a definitive map modification order. The resolution of anomalies might equally be approached by enforcing the definitive map line or by seeking to divert the definitive line to the line used on the ground. CSS research indicates that authorities have steered away from making diversion orders because of the cost of and difficulty involved in dealing with objections, the perception being that such orders would attract objection from national organisations or individuals operating on a national basis.