Recording, changing and closing public rights of way
The Definitive Map and Statement (DMS) can be changed by the addition of a previously unrecorded right of way, by the upgrading, downgrading or removal of a right of way or by the diversion of an existing way. It is also possible to create new rights of way and also to extinguish existing ones.
Changes to the DMS are made by legal events following statutory procedures set out in the Wildlife and Countryside Act 1981, the Highways Act 1980 and the Town and Country Planning Act 1990, which regulate the making of such Orders.
Orders to modify the DMS to add unrecorded rights of way or upgrade, downgrade the status or remove an existing right of way, based on evidence that there is an omission or error on the map, are called Definitive Map Modification Orders. Orders to modify the DMS by diverting or extinguishing an existing right of way, or creating a new right of way, are called Public Path Orders.
Creating a new public right of way
Landowners, including developers, Parish or District Councils, can also create a new right of way by entering into a Creation Agreement with the County Council. Owners can use a Creation Agreement to create a new right of way across their land or to access their development.
Before entering into an agreement with a landowner, the County Council will first require proof of actual land ownership and will also need to consider how the proposed route will add to the convenience or enjoyment of the public.
Creation Agreements are different from Creation Orders in that no public consultation is required to create a new route by agreement, whereas a Creation Order follows the same consultation procedures as a Diversion or Extinguishment Order. For further information please see the link to the guidance notes below.
The relevant legislation covering Creation Agreements is Section 25 of the Highways Act 1980.
Definitive map modification orders
A Definitive Map Modification Order is a legal order which changes the Definitive Map and Statement (DMS).
The DMS is a statutory record of public rights of way and anyone has a right to apply for it to be corrected where they believe there is an error or omission. The decision on whether or not to make such a correction is based purely on the evidence of what public rights exist and it is important to understand that the process is not concerned with issues of management of the ways, desirability of the routes or other such matters. These other concerns may be appropriate, and may form part of any subsequent management of a route that is amended or added by an order, but they are not matters that can be taken into account in determining the Definitive Map Modification Order.
A Definitive Map Modification Order cannot create rights that do not already exist, extinguish rights that do exist nor divert paths onto a preferred route (there are other mechanisms for doing this). It is solely concerned with formally recording the rights that already exist on the ground but are not recorded on the DMS.
All applications in Worcestershire are processed by the Countryside Mapping Team and the process is broadly as follows:
- Investigation into the evidence and consultation with interested parties
- Report and recommendation
- Elected Members' decision on whether or not to make a Definitive Map Modification Order
- (Appeal by applicant against decision not to make an order)
- Making of Definitive Map Modification Order
- Objections to the Order
- Confirmation of the Order (if no objections remain) or;
- Referral to Secretary of State for a decision on whether or not to confirm the Order – the Secretary of State may decide to hold a Public Inquiry or Hearing, or to invite written representations, to help her/him to make the decision.
Before making an application to modify the definitive map, it is strongly recommended that the following advice and guidance note is carefully read before continuing further.
Register of applications
(as required under section 53B of the Wildlife and Countryside Act 1981 as amended by the Countryside and Rights of Way Act 2000)
The list of outstanding applications for Definitive Map Modification Orders can be seen by clicking on the link below. To view the map and associated documents of any application, click on the document icon within the last column of the list:
Please note: Links to application documents are currently unavailable due to data migration. If you would like to view a set of application documents please contact countryside@worcestershire.gov.uk. We hope to have the problem resolved soon.
NB: All Valid applications have been prioritised in accordance with the Countryside Services Definitive map Modification order Application Prioritisation Standard Operating Procedure.
Note: Worcestershire County Council is the Surveying Authority for the area within the County boundary, and as such is responsible for the DMS for Worcestershire. The mechanism for making a correction to the DMS is a Definitive Map Modification Order and whilst Worcestershire County Council has a duty to process all applications for such orders, no guarantee can be given regarding the outcome as this is dependant upon [a] the evidence presented or discovered and [b] the Secretary of State's decision, if the County Council's decision is appealed against.
Highways Act 1980 Section 31 (6)
Protection against public rights of way being established
What is Section 31 (6)?
The most common way for a route to become a public right of way is through uninterrupted use by the public for 20 years. Landowners can prevent this by, for example, erecting notices which clearly indicate that no public right of way exists, or by closing the way for one or more days a year.
Section 31(6) of the Highways Act 1980 enables landowners to deposit with Worcestershire County Council, a map showing the extent of their land, and a statement indicating the public rights of way that they recognise over it (if any). The statement can be renewed by statutory declaration. This helps demonstrate an intention not to dedicate any additional public rights of way.
For more information and guidance about making statements and declarations under Section 31(6), please visit the Department for Environment, Food & Rural Affairs (DEFRA).
All deposits and/or subsequent declarations lodged before 1 October 2013, will be valid for 10 years from the date of the last deposit/declaration. Those lodged on or after 1 October 2013 will be valid for 20 years from the date of the last deposit/declaration. To remain valid, all deposits/declarations must be renewed by the date of expiry.
Landowners can also protect their land from its registration as a town or village green, following long term recreational use, by submitting an application under the Commons Act 2006. For more information, please visit the Gov.UK website. See also Commons and Greens.
Benefits
Depositing a map, statement and declaration has several benefits:
- Where a track or path has been used by the public, but for less than 20 years, it will not usually be possible for a right of way to be claimed. However, a claim at common law might still be possible.
- From the date of deposit, the landowner is also making a declaration that no additional new public tracks or paths may be created without permission.
- With the landowner's agreement, it allows the continued informal use of tracks and paths, for example, permissive paths, without those paths becoming public rights of way.
How to deposit a landowner statement and declaration
Landowners or acting agents may deposit a statement and/or declaration with Worcestershire County Council by completing the Application Form CA16.
Download Guidance for the completion of form CA16
Deposits under Section 31(6) may be combined with a deposit under Section 15 of the Commons Act 2006 to protect the land against claims for town and village green rights using the same form. For further information please visit the DEFRA website about Towns and Village Greens. It is strongly recommended that you read the guidance provided by DEFRA before completing your application.
Charges for applications
Worcestershire County Council makes the following charges:
-
£200 for the initial deposit made under Section 31(6) of the Highways Act 1980 by completing Parts A and B of Form CA16. This allows up to 10 parcels of land to be included. Please note, applications containing more than 10 parcels of land will incur an additional fee of £100 for every additional 10 parcels
- £200 for any subsequent declarations made under Section 31(6) of the Highways Act 1980 by completing Part C of Form CA16. This allows up to 10 parcels of land to be included. Please note, applications containing more than 10 parcels of land will incur an additional fee of £100 for every additional 10 parcels
- £350 for the statement under Section 15 of the Commons Act 2006 by completing Part D of Form CA16. This allows for 1 parcel of land of no more than 1 hectare to be included. For each additional parcel of land, or for land areas in excess of 1 hectare please contact the council for information on fees. This is to cover the cost of placing the statutory notices on site which will be contracted out by the council
Section 31(6) register
By law from 1 October 2013, we are required to keep a register of deposits and declarations. This includes the name of the person making the deposit, a description and map of the area it covers and the date it was made or renewed.
You can download the Section 31(6) Register
Please note: Links to Statements, Declarations and Public Notices are currently unavailable due to data migration. If you would like to view any of these documents please contact countryside@worcestershire.gov.uk. We hope to have the problem resolved soon.
See a copy by appointment at:
Public Rights of Way Team
Worcestershire County Council
Countryside Centre
Worcester Woods Country Park
Wildwood Drive
Worcester, WR5 2LG
Contact us in advance to arrange an appointment.
This is a general guide only and is not intended as a substitute for specific legal advice.
Planning and rights of way
Planning permission does not alter any rights of way crossing the land. If a path needs to be diverted or extinguished for development to take place, a legal order must be made under the Town and Country Planning Act 1990 before development is completed. This will usually be processed by the District Council Planning Department.
The Countryside Access team must be consulted on any proposed development that affects a right of way.
Public rights of way order consultations
As an Order Making Authority we have the power to make, confirm and certify Public Path and Definitive Map Modification orders. In the interests of public accessibility this list is provided as a supplement to traditional advertising methods. If you have trouble accessing the list please:
Public path orders
The County Council has the power to authorise the making of Public Path Orders to divert, create or extinguish ('stop up') public rights of way. Anyone can make an application.
Diversion orders
Before the County Council will consider an application to divert a public right of way it must be satisfied that:
The proposed diversion is in the interests of either the public, or the landowner or occupier of the land.
The diverted route must not be substantially less convenient to use as the existing route.
A diversion will not result in a negative effect on public enjoyment.
These preconditions are set out in detail in Section 119 of the Highways Act 1980.
Download guidance notes for Public Path Diversion Orders.
Extinguishment orders
Before the County Council will consider an application to extinguish a public right of way it must be satisfied that the path is not needed for public use.
The preconditions are set out in detail in Section 118 of the Highways Act 1980.
Download guidance notes for Public Path Extinguishment Orders.
Creation orders
Before the County Council will consider an application to create a public right of way it must appear to the authority that there is a need for the new path. The County Council must also be satisfied that the new path would add to the convenience or enjoyment for a substantial number of users or local residents.
The preconditions are set out in detail in Section 26 of the Highways Act 1980.
Temporary closures
Public rights of way should be open and available for public use at all times. However, it may be necessary in the interests of public safety to formally close a right of way for a limited period of time to allow works that disturb the surface of a path, or works next to a right of way, to be carried out.
Public rights of way must not be closed or the public use in anyway restricted without the County Council's prior consent. If it is considered necessary for a right of way to be temporarily closed, the County Council must first be consulted so that the correct statutory procedure can be followed.
In the event of animal or plant diseases affecting an area we will act on advice from DEFRA regarding the closure of public rights of way.
The relevant legislation covering Temporary closures is Section 14(1) of the Road Traffic Regulation Act 1984 (as amended).
If you think you may need a closure, contact countryside to discuss. Please contact us at least six weeks before you want the closure to begin. You should note that there is a charge for this process.
Standard Operating Procedure for Emergency and Temporary Closures on Public Rights of Way.
The Deregulation Act 2015
The Deregulation Act 2015 received royal assent on 26th March 2015. Part of the act concerns public rights of way and will take effect once the regulations and guidance have been completed. For further information, please see The Deregulation Act 2015.
Traffic Regulation Orders (TROs)
These Orders may be used to prohibit certain kinds of traffic from rights of way which is considered unsuitable or inappropriate, e.g. prohibiting motorised vehicular use from a Byway Open to All Traffic to prevent damage to the surface of the route.
The relevant legislation governing Traffic Regulations Orders is Section 1 and 2 of the Road Traffic Regulation Act 1984.
Download: A list of Byways in Worcestershire with TROs (PDF)