Councils and Highways

Who are Councils answerable to?

The Status of Highways ….. by the leading farm groups, a Welsh Quango, signed off by an under secretary of state for Wales in a book called ‘Access, a guide to’.

A ‘highway’ is a defined route over which the public has a right of access. Public highways are customarily divided into two categories: ‘public rights of way’ and ‘public roads’. Public footpaths and motorways are both highways in law; the difference lies in the ways in which each can be used. Both should be respected by those whose land they cross. Highways must be kept open and available for public use at all times.

Once a highway comes into existence it remains a highway unless and until it is ‘stopped-up’ or ‘extinguished’ ny a formal legal procedure; it cannot be lost by non-use alone. ‘Once a highway always a highway’ is an important maxim. A highway may not be visible on the ground because it has not been used for many years, but that does not alter its legal status, including the obligation to keep it open and available for use.

Where a highway is maintainable at public expense (as most are) the right to control the land is vested in the highway authority, not in the landowner or occupier,In simple terms, the surface of a highway, whether a public right of way or a road, is owned by the highway authority rather than by the owner of the land over which it passes. In some cases the highway authority may also own the subsoil. Obstructing a highway or damaging its surface are criminal offences under the Highways Act 1980.

What’s Definitive ……. Law to be made in the high court of Parliament, not by Judges, that’s been said before now.

In 1949, Parliament enacted a law which required every local authority in England and Wales to conduct a survey of all the land in its area over which a right of way was alleged to exist. The purpose of this survey was to prepare a comprehensive list of all local rights of way across the country. However, the scheme was unsuccessful and, in the majority of cases, local authorities failed to carry out a full survey.

The position changed in 1981, when Parliament introduced the Wildlife and Countryside Act ( which I shall refer to as the 1981 Act ). Where a local authority had failed to carry out a survey, or a survey had been abandoned, the authority was required to prepare a map and statement identifying where it thought rights of way existed. This is known as the definitive map and statement ( although the term “definitive” describes what the map is eventually to be, rather than what it is at present ).

the 1981 Act acknowledged that there might be mistakes in the map and statement, so it laid down a procedure by which any member of the public, if they produced sufficient evidence, could apply for the map to be modified. The effect of this was to pass responsibility for finalising the definitive map ( and thus the existences of rights of way ) from the local authorities to members of the public. Local authorities were to produce a plan showing where they thought rights of way existed, but that plan could be challenged by members of the public, including landowners.

In my opinion, the way in which the system was probably supposed to operate was that the local authority should produce the “definitive” map and then seek to justify it, by producing evidence to suport its basis for including a particular route. However, this is not quite the way in which the law has developed. In 2001 the Court of Appeal ( in a case called Trevelyan v SSETR ) decided that, where a right of way is marked on a definitive map, it should be presumed that the map is correct unless evidence can be shown to the contrary.

The effect of the decision is two-fold. First of all, it shifts the burden of evidence from the local authority to the individual applicant: rather than requiring the local authority to prove that a right of way exists, it requires the applicant ( usually the landowner ) to prove that no right of way exists. Secondly it requires anyone who is reviewing a right of way to assume that the definitive map is correct unless someone can show evidence to the contrary. The difficulty with this approach is that, in effect, the landowner is required to prove a negative and, from the point of view of gathering evidence, this is something which is difficult to do.


definitive map points