What is the history of the law?

Before 1949 there were no official records of public rights of way. If there was a dispute, then there would be litigation between the person asserting the right of way and the landowner.

The National Parks and Access to the Countryside Act 1949 set out provisions for the preparation of a "definitive map" and a statements by a surveying authorities to record all footpaths, bridleways and roads carrying vehicular traffic but which were being used primarily as footpaths.

The idea was that local authorities would record public rights of way and once they were recorded, they were deemed to exist until lawfully terminated.

However section 29 of the 1949 Act required notice of preparation of the draft map and statement to be advertised and allowed objections to be raised. Any objections would be determined by the local authority with a right of appeal to the government.

Section 33 required each surveying authority to review and revise its definitive map and statement at periodic intervals.

The Act also introduced a new category of right of way, a Road used as a Public Path or "RUPP". This was defined as a highway other than a public path, used by the public mainly for the purposes for which footpaths and bridleways are so used.

The 1949 Act was partly replaced by the Countryside Act 1968. This Act introduced a very limited power to revise the definitive map at the instance of a person prejudiced by the entry of a right of way upon it where no right of way existed.

The 1949 Act also introduced the term "Byway open to all Traffic" ("BOAT"). Local authorities were required to re-classify RUPP’s as either byways open to all traffic, footpaths or bridleway.

In turn the 1968 Act was replaced by the Wildlife and Countryside Act 1981 which introduced a system of rolling reviews. Section 54 required the surveying authority to carry out a review as soon as reasonably practicable after the 28^th February 1983 to designate in a "definitive map" which roads in their area were to be used as public paths and to make modification order re-classifying them.

The 1981 Act provides that every RUPP re-classified as a BOAT is maintainable at public expense (with limited exceptions).

Click here for a summary of the 1981 Act

The 1981 Act was amended and extended under the Countryside and Rights of Way Act 2000. This Act gave extra powers to local authorities, and laid down further rules for the inclusion and exclusions of certain rights of way.

The Natural Environment and Rural Communities Act 2006

Section 66 of the Act restricts the creation of new public rights of way for mechanically propelled vehicles. New public rights of way for mechanically propelled vehicles will only be created if they are expressly provided for or if they relate to a road intended to be used by mechanically propelled vehicles, or constructed under an enactment.

Section 67 extinguishes unrecorded rights of way for mechanically propelled vehicles.

Click here for a full explanation of the 2006 Act.

What is a definitive map?

A definitive map is maintained by the local authority and it has to show every road used as a public path as one of the following:-

• A byway open to all traffic
• A bridleway
• A footpath

Are there any cases where people have tried to stop BOATS?

One of the leading cases is Todd and another v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 1450 (Admin)

Facts

Hampshire County Council made an order on the 26^th May 2000 modifying its definitive map of public rights of way under section 53 of the Wildlife and Countryside Act 1981. The modification made was the inclusion of a byway ("Sandy Lane") open to all traffic (BOAT) in the parishes of Bramshill and Eversley.

The origins of the byway went back to the nineteenth century. Originally it had had been a new road built by Sir William Cope between 1866 and 1885 and described as a "public convenience". Sir William’s intention had been that the road should be an "all purpose highway" but this was conditional upon its being adopted by the local authority. This never happened and so Sandy Lane remained a private estate road.

In 1922 the Forestry Commission took out a 198 year lease of the land adjoining Sandy Lane on both sides, which lease included a private right of way over the lane itself. A later owner, Lord Brocket confirmed the non public status of Sandy Lane. In 1952 the estate was sold off in lots, none of which included Sandy Lane.

However after 1970 there was enough evidence of the use of Sandy Lane by walkers and horse riders to support a deemed deviation as a bridleway under section 31 of the Highways Act 1980.

In 2000 Hampshire County Council modified its definitive map so as to include the byway as a BOAT and effectively open it up to motorised traffic.

The Claimants, Phillip Todd and Douglas Bradley objected. Mr Todd was a local resident, chairman of Eversley Parish Council, chairman of Forest of Eversley Trust and Secretary to the Hart and Rushmoor district group of the Campaign to Protect Rural England. Mr Bradley owned a property adjoining Sandy Lane.

The authority submitted the modification to the Secretary of State, who appointed an inspector and a public inquiry was held. The inspector found that the way could be "reasonably alleged to subsist as a vehicular highway" and confirmed the order on the 15^th September 2003.

The Claimants sought to have order quashed on the grounds that the inspector had applied too low a standard of proof when making his decision. The inspector had assumed that the authority could establish facts from which the existence of a BOAT could reasonably be alleged to subsist, as opposed to the normal civil burden of proof that such a way subsisted on the balance of probabilities.

Held

Mr Justice Evans-Lombe considered the first and main issue, which was the burden of proof required under Schedule 15 of the Wildlife and Countryside Act 1981 for confirmation of an order. He considered the way in which the legislation in this area had developed.

Evan-Lombe J held that the burden of proof to be applied by the Secretary of State when confirming orders modifying the definitive map and statement was the civil burden of proof, namely the balance of probabilities. Consequently the order of the inspector would be quashed.