Definitive Map Modification Order
鈥淥nce a highway, always a highway鈥� is a phrase that has been at the heart of the law relating to public rights of way in England and Wales.
Claims can be brought on the basis of historical documentary evidence - Tithe maps - for example - which show that a right of way over land existed at an earlier point in time. Many of these routes have fallen out of use and are unknown to the current landowner, but were never formally extinguished or diverted.
If a right of way has never been formally extinguished, anyone can apply to their local authority to have it reinstated and added to the definitive map and statement (a record of rights of way held by a local authority).聽
The map shows all rights of way (eg聽footpaths and bridleways) in the authority鈥檚 area and outlines the urban areas that are excluded from the Deregulation Act.
If substantial historical evidence is found on the existence of a right of way, a DMMO (Definitive Map Modification Order) can be submitted to add the right of way to the definitive map. Once a historical right of way is reinstated onto the definitive map, it is very difficult to delete, divert or modify the route.
For more information on DMMOs, see the NFU鈥檚 Business Guide on: Public rights of way: diverting, downgrading and extinguishing
Applications to amend the definitive map
Section 53 of the Wildlife and Countryside Act 1981 places a duty on a local authority to amend the definitive map in certain situations, including when the available evidence shows that a right of way is 鈥渞easonably alleged鈥� to exist over the land in question, or that a right of way shown ought to be shown as a right of way of a different status (e.g聽that a footpath ought to be a bridleway).
Below we have highlighted 8 key steps of the application procedure to be aware of and what you can do if they impact your land.聽
1. An application is made to the local authority
An individual or organisation makes an application to the local authority to have the route added to the definitive map. Applications have to be made in the correct form (application forms are available from the local authority) and copies of the evidence relied on have to be provided with the application.
2. Defects
Defects in the application can result in the application being invalid, so affected landowners may wish to take legal advice to ascertain whether there is any defect in the application that could invalidate it.
3. Giving notice
The applicant is also obliged to give notice to the owners and occupiers of the land crossed by the right of way that the application has been made. If the owner of the land cannot be identified through reasonable enquiries, it may be possible to do this by fixing the notice to conspicuous objects on the land, eg, a gatepost.
4. Investigation
The local authority will then investigate the application and consult with certain other local authorities before deciding whether to make the order and modify聽the Definitive Map. Any Order made will not come into effect until it is confirmed.
5. Appeals process
If the local authority refuses to make the order, the applicant can appeal to the Secretary of State. The Secretary of State can then decide whether to direct the local authority to make the order.
6. Publishing the order
If the local authority is directed to make the order, they must serve a copy on, among聽other people, the owners and occupiers of the affected land and publish the order in a local newspaper. The order must also be displayed at various places, including council offices and at both ends of the route in question.
7. Objections
Notice of the order should explain how objections to the order can be made, the deadline for submitting an objection, and how to see the evidence submitted in support of the application. Note deadlines for objections.
An objection must be made under appropriate ground, eg聽procedural point, lack of evidence or false evidence.
Unfortunately, objections based on the fact that the right of way has not been used for many years, or that it is no longer practical or possible to re-open the path are unlikely to be successful in most cases.
8. Diverting the Right of Way
The fact that it is impossible to re-open a right of way (eg because a barn has been built on the line of the path) or that it is impractical to re-open the right of way (eg, because of a change in the way the land is used) also does not extinguish a right of way. However, it may be possible to apply for the right of way to be diverted in order to avoid the problem area.聽It could be worth discussing this option with the local authority if you think it is necessary to go down that route. Unfortunately, this may require a separate order to be made, formally diverting the right of way.
For more information on applications to diverting rights of way, see the NFU's business guide on Public rights of way: diverting, downgrading and extinguishing
What can landowners do?
Many landowners are unaware of the existence of unrecorded historic RoW until they receive the notice of the application to add the route to the definitive map.
Consequently, they are being faced with an official notice with very little practical information about what will happen. It can come as a shock.
Check the evidence
The key to opposing an application to have a route added to the definitive map is to discredit the historic evidence presented by the applicant.
This can be done by demonstrating that the documents relied on are inaccurate or unreliable, or by producing other, more credible, evidence that does not show the RoW being claimed.
NFU here for you
NFU members affected by these issues can get free initial legal and professional advice from NFU CallFirst on 0370 845 8458.
Individuals who have been notified that an application has been made in relation to a route crossing their land should also consider seeking independent legal or professional advice regarding their situation.
It is important that deadlines for submitting objections and other documents are complied with. It is also important that the evidence is presented clearly so that the inspector understands the basis of the argument and what the evidence shows. Consider at an early stage whether you would like to instruct a solicitor or other professional adviser to assist you.
Preventing new rights of way
Under section 31(6) of the Highways Act 1980, landowners can deposit documents with the local Highway Authority to prevent new RoW being claimed over their land.
Read our business guide on: Acquiring (and preventing the acquisition of) new rights of way through a period of long use in England for more information. We also have a version for Welsh members.
These deposits do not prevent someone claiming that an old RoW exists over your land and should be reopened. Therefore, these documents are unlikely to be of value in historic documentary evidence cases. However, in some cases they could be used to demonstrate what the landowner鈥檚 view about the RoW that existed on their land in the past was if one covered the period in question, or what status the landowner believed the route to have.
It may be worth looking into a Section 31(6) application if you do not wish to create any new public rights of way. NFU CallFirst can also help signpost to more information on this.
January 2031 deadline scrapped
A cut-off date for adding historical rights of way back onto the 鈥榙efinitive map鈥� has once again been scrapped, creating uncertainty for many farmers and landowners amid a backlog of existing claims.
Previously, the CRoW (Countryside and Rights of Way) Act 2000 set a cut-off date of 1 January 2026 for unrecorded historic RoW to be registered.
In March 2023聽the Secretary of State reversed a decision聽made a year earlier to scrap this cut-off date, with the previous Conservative government committing to use existing powers from the CRoW Act to extend the deadline to January 2031.
The government has now said the cut-off date will be repealed when 鈥榩arliamentary time allows鈥�.
Reforms package
There are several provisions in the Deregulation Act 2015 which aim to speed up the processing of claims, but those provisions remain unenforced while the fine details are thrashed out.
In 2023, Defra had proposed a timetable for implementing the remaining legislation, but this has now been further delayed by the government. 皇家华人has expressed frustration with the delays and is telling ministers that rapidly progressing the rest of the reform work is now essential.