Lost paths and indefinite maps

While those pursuing an agenda for public access to the countryside will welcome the government’s decision to abolish the 2031 deadline for registering historic or ‘lost’ rights of way on the Definitive Map (the Map), the change will present a significant headache for landowners, who could face years of trouble and expense dealing with these applications.

It is already nearly impossible, when buying or selling a property, for buyers to be sure that no new right of way will be registered against the land they are acquiring. There is a backlog of over 8,000 applications for registering lost paths – and with no long-stop date for new applications, this is only set to get worse.

Where new paths are recorded, landowners will not only inherit new responsibilities, but will also have to face up to the practical (and safety and liability) implications of managing increased public access alongside existing farming operations.

The Map dates from post-War legislation, which aspired to create “an authoritative record of rights of way… before it is too late”. It is prepared by the local surveying authority and is a legal record of the public’s rights of way. If a path is shown on the Map, it is “conclusive evidence” that the public had those rights at the date of the Map. The reverse is not true: just because a path is not on the Map does not mean that it does not exist.

In 1981, the Wildlife and Countryside Act (WCA) provided that the Map should be kept under ‘continuous review’ and added a mechanism for anyone with the appropriate evidence to apply to the authority for a path to be added (section 53). In 2000, the Countryside and Rights of Way Act (CROW) set a cut-off for recording pre-1949 paths, after which unrecorded ways would be lost. This cut-off date was later extended to 2031, but in December 2024, the government scrapped it entirely, meaning the public can continue to register new ‘lost’ paths in perpetuity.

How can the public register rights of way?

There are two options for applying to have a new (or rather, old or lost) path added to the Map. The first is to show that “a right of way which is not shown in the map… subsists or is reasonably alleged to subsist”. For this, an applicant would usually need to find old maps on which the path is shown, or other documentary evidence demonstrating that it existed.

The second option is to collect evidence that “any period [of time] such that the enjoyment by the public of the way during that period raises a presumption that the way has been dedicated as a public path…” has expired. This refers to section 31 of the Highways Act 1980 (Highways Act), which provides that where a path has been used by the public, as of right and without interruption, for a full period of 20 years, it is deemed to have been dedicated as a highway. For this, the applicant is likely to need contemporary statements from individuals who have used the path (the Ramblers Association recommends at least five and ideally 20), together with evidence that the use has since been interrupted, such as the path having been barred with a locked gate.

In terms of process, an application must be made on the correct form to the relevant (local) authority, together with supporting evidence. The application must also be sent to the landowner. Where the landowner cannot reasonably be traced (generally via the Land Registry), site notices may be put up instead – so landowners, especially of unregistered land, should keep an eye on their fenceposts.

What can landowners do about it?

Although it is governed by statute, the process is asymmetric, with relatively little effort required to make an application, but significantly more work and cost required to oppose one.

Once an application has been made, the authority will review the evidence and may hold an initial consultation. Although some authorities will consult the landowner at this stage (and the Department for Environment, Food and Rural Affairs and the Rights of Way Committee encourage this), there is no legal requirement for them to do so. The authority will then decide whether to make an order. If made, copies of the order will be sent to the landowner and other affected parties, and the order will be ‘advertised’ in local papers and on site. The landowner has 42 days from the date of the notice to object – although the order has been made, it still needs to be confirmed.

Landowners who wish to object will need to demonstrate that the claimed right does not exist as a matter of law (for example, it has only been used in secret). It is irrelevant whether the claimed right is desirable, suitable, secure, or safe. The authority will then determine whether to confirm the order. If an order is confirmed, the only means of challenging it is via the High Court, either on the grounds that the correct legal process has not been followed or that the law has been misinterpreted by the authority. Either way, this is likely to be a long-winded and costly process.

Prevention is better than the cure

Although it is very difficult to prove the negative of old ways not existing, it is easier to ensure that new ones are not unwittingly created. The aim here is to stop a claim arising under the 20 years of use principle. Practically speaking, landowners can:

• Put up clear notices notifying the public that the land is private and there is no public right of way over it. This is to make it abundantly clear that there is no intention on the part of the landowner to dedicate it as a right of way.
• If the landowner is willing to allow access, this is often a more effective way of managing the situation than trying to prevent it entirely. It may also decrease the risk of an application in the first place, because the public is being permitted to do what they want to do. At the same time, it allows the landowner to manage access on their own terms, such as temporarily withdrawing it on shoot days. Signs should be erected to make it clear that access is permissive and may be withdrawn at any time.
• Use gates or fences, either to prevent and deny access or, alternatively, to permit but control it.
• Keep records of any trespass or informal use and challenge it promptly (thus ‘interrupting’ the use).
• Identify unrecorded routes crossing the property and maintain time-stamped photographic and written records showing signage, recent obstructions or damage to structures.

Another useful tool for landowners is to deposit their own map and declaration with the authority pursuant to section 31(6) of the Highways Act. This is a map showing boundaries and existing rights of way. The accompanying statement should acknowledge those rights but assert that the landowner has no intention to dedicate any further rights. An additional statutory declaration affirming that no new public rights of way have been dedicated since the map and statement were deposited should be submitted after 20 years. In this way, the landowner is creating evidence that they have no intention to dedicate any new rights of way.

The road less travelled

The repeal of the 2031 cut-off date represents a major reversal. It restores an indefinite opportunity for historic rights to be claimed and recorded, which constitutes a victory for access campaigners, but a source of long-term complexity and risk for landowners. Rather than restoring ‘lost’ paths – which may well have been lost for a good reason – perhaps a more sensible policy would be to consider designing ones that are useful and appropriate for modern land-use patterns, for instance connecting housing developments with existing public amenity land. Ultimately, that is for higher powers to decide, and in the meantime, landowners need to beware and take practical steps now to ensure that no new rights are created.

This article is part of our Rural Estates Newsletter 2026, click here to read the full edition.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2026