Checking public rights of way on the definitive map

Before you fix a site layout in open countryside, check the definitive map and statement held by the surveying authority for the area. That record, not what you can see on the ground, is what legally establishes a public right of way. A definitive map public right of way exists whether or not there is a stile, a waymark or a worn path, and building across one without first diverting it is an offence under the Highways Act 1980 as well as a planning problem.

The surveying authority is the county council, unitary authority or National Park authority. It has a continuing duty under Part III of the Wildlife and Countryside Act 1981 to keep the map under review, and section 56 of that Act makes the map conclusive evidence of the existence of the rights it records, as at the relevant date.

Where the record is held and how to get it

Ask the rights of way team at the surveying authority, not the district planning department. Most authorities publish an online version of the map as a viewer layer, and many charge a modest fee for a certified extract of the map and the accompanying statement.

Two documents, two jobs. The map shows the line and the classification. The statement, which people forget to ask for, often records the width, any limitations such as gates or stiles, and the position of the route relative to field boundaries.

Order both. A map extract alone will not tell you whether the recorded width is one and a half metres or five, and that difference decides whether your proposed driveway sits on the path or beside it.

Reading the classification and the width

Four classifications appear on the map in England:

• Footpath: a right of way on foot only.
• Bridleway: on foot, on horseback and, since 1968, by pedal cycle, with cyclists giving way to walkers and riders.
• Restricted byway: on foot, on horseback, by cycle and by non-mechanically propelled vehicle, a class created by the Countryside and Rights of Way Act 2000.
• Byway open to all traffic: all of the above plus motor vehicles, though used mainly on foot and on horseback.

Where the statement records no width, the position is governed by common law and by presumption rather than by a stated figure. Authorities often apply working assumptions for unrecorded widths, and those assumptions vary. If width matters to your scheme, raise it with the rights of way officer in writing and keep the reply.

Paths recorded but not visible on the ground

This is the situation that damages schemes. A route crosses the middle of a field, has not been walked in decades, was ploughed out years ago, and appears on no map the seller gave you. It still exists.

Historic under-use does not extinguish a recorded right of way. Only a legal order can remove it, and the fact that a path has been obstructed for years may itself be an enforceable offence rather than a defence.

So the first task on any rural site is to overlay the definitive line onto the topographical survey. Do that before the architect settles the plot positions, alongside the other data you gather when building a constraints plan. A path discovered at planning committee stage is a redesign. A path discovered at site assembly stage is a line on a drawing.

Development that obstructs a recorded path

Planning permission does not authorise obstruction of a public right of way. The two regimes are separate, and a decision notice will normally carry an informative saying exactly that.

Where a scheme cannot avoid the line, you need an order. The routes are:

1. A diversion order under section 119 of the Highways Act 1980, where the path is moved for the benefit of the landowner, occupier or the public, and the new route is not substantially less convenient.
2. An extinguishment order under section 118 of the same Act, where the path is not needed for public use. These are hard to obtain and user groups resist them.
3. An order under section 257 of the Town and Country Planning Act 1990, where the diversion or stopping up is necessary to enable development that has planning permission to be carried out.

The section 257 route is the usual one for a housing site. Note the sequence: permission first, order second, then build. Applying for the order before permission exists is premature, and an authority will normally say so.

How long orders take and what they cost

An order is made by the authority, advertised in a local newspaper, posted on site and served on prescribed bodies including the Ramblers, the Open Spaces Society, the local highway authority and the parish council.

If nobody objects within the objection period, the authority can confirm the order itself. If an objection is made and not withdrawn, the order goes to the Planning Inspectorate for determination by written representations, hearing or inquiry.

Budget accordingly. An unopposed order can complete in a few months. An opposed order that goes to the Inspectorate adds many more, and the authority will usually require the applicant to meet its costs under a cost recovery agreement before it starts. Build that into the programme, because the order cannot be rushed and the development cannot lawfully proceed across the old line until the order is confirmed and the new route is available.

Talking to user groups early

Consultation with the statutory bodies happens whether you engage or not. Engaging early tends to reduce objections, particularly where the replacement route is well surfaced, well signed, no longer than the original, and does not funnel walkers between two close-boarded fences. A diverted path squeezed down a 1.5 metre alley between gardens is the single most common reason a diversion order attracts objections.

Showing the path correctly on application drawings

Case officers check this. Put the definitive line on the site location plan and the proposed site plan, labelled with its authority reference number, and show the proposed diverted line if one is required.

If the path is unaffected, say so in the covering material and explain how construction traffic will avoid it. If it is affected, set out the order route you intend to use and the stage at which you will apply. Silence invites a holding objection from the rights of way team and a condition you will later have to discharge.

The same drawing discipline applies to levels, because a path that runs along a bank behaves very differently once the ground is regraded. If you have not yet established the site levels from survey data, do that before you commit to a diverted alignment.

Where a path sits close to the built form, expect the officer to ask about surfacing, lighting, boundary treatment and overlooking. Those are ordinary planning matters, and they belong in the design and access material rather than in the order application.

A sensible order of work: order the map and statement, overlay the line, decide whether the layout can avoid it, and only then decide whether you are running an order at all. You can also check which supporting reports the scheme will need at the same time, since a rural site with a path across it usually needs landscape and ecology evidence as well.

This is general guidance, not legal advice. Rights of way law is technical and fact-specific, so check the position with the surveying authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.