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Abandonment of Rights - update |
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There have been recent developments in relation to the extinguishment and abandonment of rights of way. This update considers the status of a public right of way not appearing on the definitive map and also a recent case in connection with abandonment of a private right of access.
Public Rights of Way
The Countryside Rights of Way Act 2000 (CROW) states that from 1 January 2026 all public rights of way which were created prior to 1949 and are not shown on a definitive map will be extinguished. The aim of this measure is to bring certainty to landowners and members of the public about what rights actually exist over a particular landholding.
Definitive maps are a legal record of footpaths, bridleways and similar public paths and byways. They have been drawn up and are maintained by the appropriate surveying authority, usually the County Council. The definitive maps can be inspected free of charge at the appropriate authority's offices.
In an effort to ensure that no existing rights are lost, the Countryside Agency has set up a programme called "Discovering Lost Ways". This aims to ensure that any rights of way not currently shown on any definitive map will be saved. This will be done by gathering historical evidence from documents held in over 100 national and local archive offices and, where sufficient evidence exists, making an application to the relevant authority to have the definitive map altered.
Private Rights of Access
The case of CDC2020 Plc - v- Ferreira has shown the extent to which private rights of access are protected, even when they appear to be no longer in use.
Facts
In this case, the claimant had the benefit of an easement over neighbouring land to access three garages which existed at the time of the grant of the right in 1959.
The garages were demolished several years later and replaced by ramps to gain access to car parks situated on another part of the property. The right of access granted in 1959 was not utilised for these purposes. In 2002 the claimant acquired the land, demolished the ramps and rebuilt the garages.
Decision
The Court of Appeal decided that when the garages were rebuilt in 2002, the right of access was still effective even though it had not been used for over 35 years. It was reasoned that for rights to be abandoned there must be a firm and clear intention on behalf of the owner that neither he nor his successors in title should ever exercise the right again.
Comment
The case demonstrates that there is a particularly high threshold to overcome in claiming that a right of way has been abandoned. It is assumed that owners of property do not normally wish to divest themselves of property rights even if they have no present use for them. In this case although the works were substantial the intent to abandon the rights forever had not been shown.
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August 2005 |
