1.2
Council duties in relation to
public
rights of way (page
2 of 5)
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1.2.1.2 Continuous Review
Having brought the Definitive Map and Statement up to date, the Council has a duty to keep it under continuous review and make modifications as the need arises. The purpose of the Map and Statement is to be as accurate and complete a record of public rights of way as possible and Section 53 of the Wildlife and Countryside Act is about achieving this intention.
There are two main reasons for modifying the Definitive Map and Statement. These reasons are ongoing, so this is a document that will never be final, fixed and complete.
- The Record May
Be Incomplete
There may be paths that have existed for many years but for some reason have been overlooked and have not been recorded. A path may have become obscured over the years or, on the contrary, may have been so obvious that no one thinks of recording it until a change in circumstances focuses attention on it. Evidence concerning a right of way may come to light at any time and if substantiated, an addition or change to the Map and Statement may be required.
A second group of unrecorded paths are those that come into existence from time to time not by Statutory Order, but through implied dedication at common law or are deemed to have been dedicated under section 31 of the Highways Act 1980. This is the well-known situation where the public starts to use a path and the landowner does not stop them. After a period of time, if certain tests are satisfied, the law has held that a highway has been dedicated, although nothing has been explicitly said or written. Section 53(3)(b) specifically requires the Surveying Authority to deal with these cases. Actual proof of such a dedication can involve complex issues of law and evidence. - Statutory Changes
As has already been mentioned, paths can be extinguished, diverted or created by Statutory Orders, usually under the Highways Act or the Town and Country Planning Act. The Definitive Map then needs to be changed if it is to remain correct.
There will always be a demand for such statutory orders because the landscape does not stand still, development goes on, and improvements to the network are sought. Pressure for change in the network, sometimes for relatively short-term gains, needs to be balanced against the advantages of continuity and stability. It is also important to remember that the idiosyncratic pattern of the path network which gives it its particular charm and character is the result of many influences during its long history. This is easily destroyed if there are too many alterations.
