Diverting Public Rights of Way and Definitive Map Modification Orders

Roxlena Ltd. v Cumbria County Council [2019] EWCA Civ 1639. 

The recent Court of Appeal decision in Roxlena Ltd. v Cumbria County Council [2019] EWCA Civ 1639 is an important judgment for any landowner, developer or Council seeking to claim or challenge a public right of way (‘PROW’).

This case involved Cumbria County Council, who authorised a Definitive Map Modification Order (‘DMMO’) for the addition of a number of footpaths and an extension to a pre-existing bridleway in woodlands owned by Roxlena (‘the Landowner’). The Landowner unsuccessfully sought a judicial review of the Council’s decision to make the DMMO and subsequently appealed this refusal to the Court of Appeal.

The Court of Appeal then dismissed this appeal and confirmed:

• the evidence required for a DMMO to be granted and the threshold of evidence needed;
• the relevant legal tests to be satisfied; and
• the correct approach to be taken by the Council for the determination of a DMMO. 

The judgment is therefore fundamental for:

• landowners affected by the potential recording of PROWs over their land (including  those seeking to establish or dedicate a PROW); and
• applicants seeking to add previously unrecorded rights of way to the Definitive Map and Statement.

The judgment also acts as valuable guidance for the relevant Council who grants the DMMO under the Wildlife and Countryside Act 1981 (‘the WCA’).   

Public Rights of Ways, Definitive Maps and Modification Orders – the legal background

A definitive map (‘DM’) is the map prepared by a Council which identifies footpaths, bridleways, restricted byways and byways open to all traffic, which exist as public rights of way in their area. A statement accompanies the DM to provide a description of the PROW, including its location, position, width and/or route. The DM and statement are a legal record of the existence of PROWs - although it should be remembered that whilst inclusion in the DMS is conclusive evidence of a PROWs existence, a failure of it to appear is not conclusive evidence that it does not exist!

The Council has a statutory duty to keep the DM and statement under continuous review and to make modification orders (DMMOs) to keep the map and statement up-to-date as soon as reasonably practicable after the occurrence of an event which would require a change to the definitive map as an accurate record of the public’s rights.

The majority of PROWs are established through the dedication of the right to the public, by either an express dedication of the way by the landowner, or by presumed dedication, where after 20 years of continuous use by the public the PROW is presumed to be in existence. Provided there is sufficient evidence, a member of the public can apply to have the PROW registered on the DM or the Council themselves can raise this claim. As well as dedicating a new PROW by notice, a landowner can also apply to divert a PROW crossing their land and if successful, a DMMO will be made to amend the DM and statement.

Roxlena – a useful clarification of the matters to consider

The Roxlena judgment helpfully sets out the approach which the relevant authority is required to take to justify the making of a DMMO.

The Landowner owned woodland in Hayton Woods. The Council received an application for a DMMO to add 34 footpaths to the definitive map and to extend a bridleway over the Landowner’s property. A number of members of the public claimed to use these routes over at least a twenty year period, with a substantial amount of user evidence forms being submitted to support the application.

The Council reviewed the application and authorised the DMMO on the basis that satisfactory evidence had been submitted to demonstrate 20 years uninterrupted use as of right (i.e. without the Landowners specific consent). The Landowner contested the evidence of continuous use and sought a judicial review of the decision to make the DMMO.

Key issues considered in the case

Three main issues were considered by the Court of Appeal:

1. Whether sufficient evidence had been submitted to justify making the DMMO

The Court held that there was sufficient evidence to justify the Council making the DMMO.

There are two stages of the statutory process; (a) the making of the DMMO and (b) its subsequent confirmation to give it effect.

When the order is made, the standard of evidence does not have to meet the balance of probabilities test (as to whether the PROW does exist); the test is only whether the PROW subsists or is reasonably alleged to subsist.

Once an order is made, the Council must consult on the DMMO with landowners and affected parties and where no objections are received, the Council can progress and confirm the Order to add or amend the PROW. An opposed DMMO is referred to the Secretary of State for confirmation and all objections will need to be overcome or the Secretary of State otherwise satisfied that the legal tests are met and the PROW exists, before the DMMO is confirmed.

The judgment in Roxlena confirms that for the Council to make the DMMO, the applicant only needs to show that the PROW is reasonably alleged to subsist; there is no need to scrutinise the case any further. A significant amount of user forms is sufficient evidence to satisfy this requirement. This is a much lower threshold of evidence than the balance of probabilities test that needs to be considered at confirmation stage and could cause issues for landowners where the evidence is weak, especially if there is a prolonged period of time between making and confirmation and/or if the landowner wishes to sell, let or charge the land during that period.

The judgment also confirms that a reasonable allegation can be based on documentary material alone and does not have to be based on user evidence.

2. The extent of the Council’s duty to ‘investigate the matters’ in the application and whether the Council had failed to discharge its duty to investigate the alleged interruption of the use.

The Court of Appeal found that the Council hadn’t failed in its duty to investigate the alleged interruption of the use. The Court held that the Council had no duty at the order making stage to investigate the merits of the evidence presented and was free to take it at face value The Council did not have to send letters to the 40 users, or even a sample, to confirm that their assertions were true.

3. Whether there had been a discovery of evidence by the Council?

The WCA requires the Council to update the definitive map and statement if one of the events listed in the legislation takes place. One of these events is ‘the discovery of evidence’.  The Landowner argued that there was no discovery of evidence for the purposes of the WCA as the same evidence had been submitted to the Council on a previous occasion and so this was not new evidence which had been ‘discovered’. The Court of Appeal held that the “discovery of evidence” related to the consideration of the evidence, rather than just physically finding or being presented with it. Therefore, as the Council had not previously considered this evidence, this was deemed to be newly discovered evidence. The Council could therefore seek to rely on this evidence as a trigger event for a DMMO.

Impact for developers, landowners and Councils

The judgment is not favourable to landowners where a PROW can be established or dedicated on their land, or indeed for any party wanting to oppose a DMMO. This case confirms that even where an application is unlikely to succeed when the evidence upon which it is based is scrutinised fully and properly, the Council are still to progress the DMMO and provided that the PROW can be reasonably alleged to subsist, a DMMO can be made. Although the Order may not ultimately be confirmed, the PROW subsists until such determination, and with PINS caseloads ever increasing and delays between referrals and public inquiries getting longer, this could have a serious impact on a landowners ability to deal with their property, particularly if the land in question has development potential, or if a proposed use is not feasible with public access across it.  

Where a PROW is established (or diverted) under a DMMO, landowners cannot ignore this. All PROWs are deemed to be a highway and to obstruct one is a criminal offence. Diverting or stopping up a PROW requires legal process to be completed and necessary Orders made and eventually for the DM and statement to be amended accordingly.

The judgment should also be a salutary reminder to local authorities of the importance of updating the DM and statement as soon as changes occur to PROWs to avoid costly challenges and potential private litigation between users and owners. The DM, after all, is the sole public record of definitive rights of way.   

Although this is the current legal position, it is not all bad news for landowners. The Deregulation Act 2015 contains an amendment to section 53 of the WCA,  which sees the inclusion of  “reasonably alleged to subsist” deleted from section 53 (c) (i). This legislation however, is not yet in force, but Roxlena may be the prompt needed to see it commenced.

Applicants also have a much clearer idea of the level and type of evidence required for a DMMO application at first instance. The case has not changed the level of evidence or scrutiny required at the confirmation stage, however, anybody who wants to frustrate proposed development or plans for a use of land potentially now has a handy (if short term) weapon at their disposal.  

For more information on the topic please contact Sophie Stewart or Felicity Wimbush. 

This article was originally published in the Estates Gazette in 2020.