Using definitive map data for public rights of way

A public footpath crossing your land is a highway, and planning permission does not give you any right to build across it, move it or block it. The definitive map and statement held by the surveying authority is the legal record of where it runs and what rights exist over it, and getting a copy of the relevant extract is the first thing to do on any rural site before a layout is drawn.

Plenty of schemes reach the planning committee with a house sitting on a recorded footpath. The permission may be granted. The house still cannot be built until a separate order has been made and confirmed.

What the definitive map and statement record

Surveying authorities, which are county councils and unitary authorities, keep the definitive map and statement under Part III of the Wildlife and Countryside Act 1981. The map shows the line of each recorded route. The statement describes it in words, and where the two conflict the statement usually resolves the position.

Four categories appear:

• Footpath, giving a right of way on foot only.
• Bridleway, giving rights on foot, on horseback and, since 1968, by pedal cycle, with cyclists giving way to walkers and riders.
• Restricted byway, giving rights on foot, on horseback and for non-mechanically propelled vehicles.
• Byway open to all traffic, giving vehicular rights as well.

The map is conclusive evidence that the rights shown exist, at the date it speaks from. It is not conclusive that no other rights exist, which is the trap discussed below.

The statement often contains detail the map cannot show: a recorded width, the presence of stiles or gates, and limitations such as a right subject to a field gate. A width recorded in the statement is enforceable, and a layout that leaves a metre where the statement records three metres will be objected to by the rights of way team.

Getting the extract and reading it properly

Ask the surveying authority's definitive map team for an extract covering the site and a reasonable margin around it, and ask for the accompanying statement entries. Many authorities publish an online viewer as well, which is useful for a first look but is not the legal record.

Check three things on receipt.

1. The date the extract speaks from, and whether any modification orders are pending in the area.
2. Whether any route ends at the site boundary, because a path that stops abruptly often continues as an unrecorded route.
3. The recorded status and width of each route, taken from the statement rather than assumed from the map symbol.

Record the date you checked and keep the extract on file. On a site with a long lead-in the position can change, and a submission relying on a three year old extract invites a consultee response that costs a month.

More detail on the mechanics of obtaining and interpreting an extract is in checking public rights of way on the definitive map.

Why the recorded line may not match the path on the ground

Definitive map lines were often drawn at a scale of six inches to the mile in the 1950s, then digitised. A line that looks precise on screen may carry an error of several metres on the ground.

Walkers also take the convenient route rather than the legal one. Where a path has been walked around a wet corner for 40 years, the trodden line and the recorded line diverge, and the public right remains on the recorded line unless it has been lawfully moved. Building on the trodden line is not safe. Building on the recorded line is a breach.

Where the discrepancy matters to your layout, commission a measured survey that plots the recorded line against the topographic survey, using the definitive statement description to fix the alignment. That drawing is worth having before the architect starts, not after.

Development across a recorded route

Planning permission and highway rights are separate. A permission can be granted for a scheme that crosses a footpath, but implementing it would obstruct the highway, which is an offence.

Two order-making routes exist.

Under section 257 of the Town and Country Planning Act 1990, a local planning authority can make an order to stop up or divert a footpath, bridleway or restricted byway to enable development for which planning permission has been granted. The permission has to exist first, which is why the order usually follows the decision rather than preceding it.

Under sections 118 and 119 of the Highways Act 1980, a public path extinguishment or diversion order can be made where the path is not needed, or where diversion is in the interests of the owner, occupier or the public. This route does not depend on a planning permission.

Both routes involve advertisement, a 28 day objection period and, where objections are not withdrawn, determination by the Secretary of State through the Planning Inspectorate. An unopposed order can be confirmed by the authority itself. An opposed one goes to written representations, a hearing or an inquiry, and the timescale runs into many months.

Budget accordingly, and do not sequence the build programme on the assumption that an order will be unopposed. Local walking groups and the parish council object routinely and competently.

Unrecorded routes and claimed rights

The definitive map is not conclusive that no other rights exist. Routes used by the public for 20 years without interruption may have been dedicated at common law or under section 31 of the Highways Act 1980, and anyone can apply for a definitive map modification order under section 53 of the Wildlife and Countryside Act 1981 to have them added.

Applications are frequently made in response to development proposals, and an application in the system creates real uncertainty even before it is determined. Modification order backlogs are long in many authorities.

The legislative position on recording historic rights, including cut-off dates for pre-1949 routes, has been through several announced changes. Check the current statutory position rather than relying on a summary, including this one.

If you are aware of public use of a route that is not recorded, take advice before doing anything about it. Erecting a sign or closing a route for a day are both steps with legal consequences, and doing them badly strengthens the claim you were trying to defeat.

Showing rights of way on the application

Councils expect the application drawings to show every recorded route across and adjoining the site, with its status and recorded width, rather than a note saying a footpath exists. Include the route on the site location plan, the existing site plan and the proposed layout, and show how it functions after development.

The supporting Planning Statement should address whether the scheme affects the route, what order will be required, and what the route will be like to use afterwards. Surface, width, lighting, enclosure by fencing and the sense of overlooking all matter, and a diverted path squeezed between two close-boarded fences attracts objection even where the legal position is sound.

Where the route runs through open land, the Design and Access Statement should explain the relationship between the path, the layout and any landscape proposals rather than treating it as a constraint to be drawn around.

The practical consequences of a route running across a site, including construction phase management and temporary closures under highway legislation, are covered in public rights of way across a development site.

Get the extract first. Everything else on a rural site is easier once you know exactly where the public has a right to walk.

This is general guidance, not legal advice. Check the position with the surveying authority or a qualified professional before relying on it.

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