Discovering Lost Ways
Sections 53 to 56 of the Countryside and Rights of Way Act 2000 provided a cut-off date of 1st January 2026 for recording certain rights of way created before 1st January 1949 and providing for the extinguishment of those pre-1949 rights not claimed by this deadline. (It should be noted that sections 53-56 of CROW have not yet been brought into force).
The introduction of this cut-off date was aimed at bringing certainty to users of the countryside and landowners / managers about what rights actually exist. Going hand in hand with this deadline was a project aimed at increasing and improving the rights of way network in advance of the cut off date, by seeking to research and record certain routes which would otherwise be lost in 2026.
The Discovering Lost Ways (DLW) project was set up by the Countryside Agency (now Natural England). The focus of the project was to identify so called 'lost ways' through systematic archive research. In 2004 the Archive Research Unit (ARU) was set up (under contract with LandAspects) to carry out this research. The ARU formulated a research methodology which was to be piloted in the counties of Cheshire and Wiltshire (as it turns out, work in Wiltshire was put on hold due to the closure of the County Records Office and lack of suitably qualified Definitive Map officers). The research methodology followed a five stage process:
- Business readiness
- County planning and scoping
- Base map development
- Archive research
- Case evaluation.
It was not the responsibility of the ARU to transfer this research into routes on the ground.
The spring of 2007 brought a new chapter in the DLW story. The Countryside Agency had become Natural England (NE), a very different organisation with a different remit and different motivations. Natural England made it clear from the outset that it saw itself very much as an 'enabler' rather than a 'provider', leaving a large question-mark over the future of DLW.
Meanwhile, by 2007 questions were being asked. Public money had been spent on researching historic routes, but it was not clear how the results of this research were to be published. There was no forward plan for how this research would be translated into routes on the ground: would cases be submitted to Surveying Authorities through Wildlife and Countryside applications? Who would make these applications? How would Local Authorities and PINS cope with the additional workload? Who would choose which routes should be claimed? What would happen to those routes identified as potential lost ways, but not claimed? What about town centre paths? Was there really a body of able and willing volunteers ready to assist the ARU in their task?
Above all, did the Discovering Lost Ways project really reflect good value for money? And what did DLW aim to do - record all lost ways in advance of 2026, or only those which filled in the gaps in the existing network, and provided a real public benefit?
In May 2007 it was announced that NE would undertake a fundamental review of the project, taking into account what the project had so far achieved, and what the future direction of the project should be. The review had two main components:
- A programme of stakeholder engagement
- A series of pathfinder projects
During the summer of 2007 a series of three 'Stakeholder' workshops were held. These workshops were held to consider the future direction of the DLW project, and the role of Natural England in that future. Meanwhile, a Technical Working Group was convened to consider detailed technical aspects of the project, such as legislative issues.
The outcome of these projects is published in the 'Finding the Way Forward' Report.
A series of five projects, designed to look at how routes identified through research could be transferred to routes on the ground, took place during 2007. The five projects are described below:
Research has identified 109 strong or tentative cases for potential lost ways. Of these 109, 5 applications have been made under section 53(5) of the Wildlife and Countryside Act 1981. These applications have yet to be determined.
Research has identified 167 strong or tentative cases for potential lost ways. NE is working with Shropshire County Council to look at how these cases might be transferred into routes on the ground through avenues other than formal 53(5) applications.
Work has been taking place with the County Council and local groups to asses how research might be focused to concentrate on those routes which, if established, would provide a clear public benefit.
The Herefordshire Local Access Forum has set up a sub-group to asses how local stakeholders might contribute to the project.
NE has worked with local volunteer groups and LAFs to investigate how local volunteers might contribute to the identification and research of routes.
The evaluation reports on each of these pathfinder projects are scheduled to be published in 'Spring 2008"
The first formal indication of the outcome of the 2007 review was a Natural England Board Paper (approved by the NE Board on 13th February 2008). This paper recognised that the DLW project was extremely resource intensive, and made five proposals:
- NE to move away from actively researching/claiming routes and to instead provide advice to individuals and groups wishing to do this for themselves.
- NE to facilitate a fundamental review of access legislation and processes.
- NE to work with stakeholders on this review (the paper suggests that the Rights of Way Review Committee or a sub-group of it may be a suitable body to consider this review).
- To build on and progress ROWIPs.
- To invest the money saved on DLW on the above proposals.
NE wrote to Defra with its proposals, and Ministerial approval was granted in early March. Following this approval the NE report "Discovering Lost Ways: outcome of the review and recommendations for the way forward" was published. This document provides a brief background to the DLW project, outlines the scope and outcomes of the 2007 review and makes recommendations as to the future direction of the project. The paper estimates that if the DLW project, in its current format, were to be rolled out across England, the initial estimate (made in 2002) of 20,000 cases still stands, but the potential costs would increase from the initial estimate of £11.1 million to around £80 million. NE recognise that even if this amount of money were available, the claims generated by the project could remain unprocessed for many years. On the 16th March 2008 Defra wrote a letter to stakeholders confirming that no action would be taken to bring sections 53 to 56 of the Countryside and Rights of Way Act 2000 into force, at least until the conclusions of the stakeholder group (as proposed by NE) have been reported to Defra.
One outcome of the project was a series of papers termed 'research standards' for each of the document sources included in the search.
- Estate records
- Finance Act 1910
- Handover records (highway authorities 1932)
- Non-OS mapping
- Ordnance Survey mapping and ancillary records
- Quarter Sessions
Following Discovering Lost Ways
In the autumn of 2008 Natural England set up a Stakeholder Working Group to undertake a fundamental review of the law and procedures relating to the recording of rights of way. The group considered ways of completing the definitive map (in effect, trying to achieve by other means what the Discovering Lost Ways project failed to do), and to explore other improvements to the way in which rights of way are recorded and managed.
The Group consisted of fifteen members (five from each of the authority, landowner and user interests) and was chaired by Ray Anderson. Its final report, Stepping Forward was published by Natural England on 22nd March 2010 and recommended a package of legal and procedural improvements in relation to unrecorded public rights of way.