1.2 Council duties in relation to
public rights of way (page 1 of 5)

Jump to: 1.2.1.2 Continuous Review 1.2.1.3 The Countryside and Rights of Way Act 2000
1.2.2 Maintenance 1.2.3 Signposting 1.2.4 Protection

The Council's duties relating to public rights of way are defined in the Highways Act 1980, the Wildlife and Countryside Act 1981 and the Countryside Act 1968 and may be classified under four headings: recording, maintenance, signposting and protection.

1.2.1 Recording

The recording of public rights of way began after the Second World War with the National Parks and Access to the Countryside Act 1949. This legislation recognised the importance of rights of way for their heritage and wildlife value and provided the means by which to conserve them in the face of increasing urbanisation and the intensification of agriculture. The 1949 Act placed a duty on local authorities to record their public rights of way. Three categories of path were defined in the Act: footpaths, bridleways and roads used as a public paths (now called byways). Footpaths are rights of way for pedestrians only, horse-riders and cyclists may use bridleways, and byways are old carriageways, which are used mainly by non-motorised traffic.

These rights of way were recorded on a 'Definitive Map and Statement' (DMS), which provided a complete record of proven non-vehicular access. The original DMS for the Isle of Wight was produced in 1952 and reviewed in 1968. Since then, the National Parks and Access to the Countryside Act 1949 has largely been superseded by the Wildlife and Countryside Act 1981. In 1991 a consolidated DMS was made under the Wildlife and Countryside Act 1981, Sections 53 and 57. The current edition of the DMS for the Isle of Wight has a "relevant date" of 29th February 2000. The Definitive Map is conclusive proof of the existence and status of a right of way at the relevant date.

1.2.1.1 Modification Orders

The Definitive Map and Statement may only be changed by and according to a Modification Order made by the surveying authority (the Isle of Wight Council). The authority has a duty to make such orders, on the basis of evidence, to continuously review the Map and Statement so it will form an up-to-date and accurate record of the public rights of way that exist in its area. In some cases, modification is an administrative exercise only, because the evidence of the change to be shown is absolutely clear and certain. This happens when some legal document deals with a right of way, for example when an order has been made under the Highways Act 1980 creating, diverting or extinguishing a path. The Council then makes a Modification Order, commonly known as a 'legal event order', without advertisement and changes the Map and Statement accordingly.

In other cases, the evidence needs to be weighed up to decide whether a right of way exists and should be recorded on the map, or whether what is shown on the map is inaccurate in some way and should be changed. A right of way is shown without prejudice to any further rights that might exist, so it might become evident for example that a footpath is in fact a bridleway. Public use of a path over a period of time may be evidence that a right of way has come into existence and must be added to the map. It is the Council's duty to consider such evidence and decide whether an order to modify the map should be made. Under Schedule 15 such orders must be advertised to the public for a period of six weeks during which representations and objections can be made. These orders are often referred to as 'evidential orders', to distinguish them from the 'legal event' orders described above. If there are any objections during the statutory period of advertisement, the evidence will be tested in detail at a public inquiry. The Secretary of State will appoint an independent inspector from the Planning Inspectorate to hold the inquiry and recommend whether or not the order should be confirmed. Orders are not effective until they are confirmed. The Council may itself come into possession of evidence whereby a modification order should be considered. Or, under section 53(5) of the Wildlife and Countryside Act, anyone may make an application to the Council to make an order. They must follow the procedure laid down in Schedule 14 to submit their evidence.