Rights of way (RoW) fall into two categories: private and public. The legal basis of each of these is completely different, although the help that can be offered by a Chartered Land Surveyor is similar.
Private rights of way are formed by the grant of an easement (a right to do something) over a piece of land, usually when a property is separated from the public highway and needs an access route, or when access is needed for instance to the back gardens of terraced houses. The easement will usually be granted as part of a legal transaction such as a conveyance. It attaches to the land rather than the person owning the land, which means that anyone can make use of it. The legal aspects of private rights of way can be complex and legal advice should be taken in the event of a dispute. Chartered Land Surveyors can assist by accurately locating the right of way on the ground in accordance with the original deed of grant of the easement, since a common cause of conflict is whether the beneficiary of the easement is straying off the correct route. It may also be vital to a proposed development to know where a right of way runs.
Public rights of way are very different. Over the centuries the public had acquired common law rights to use many paths and routes to cross land either on foot or horse, or by some form of vehicle. In the 1950s this rather haphazard system was formalised as a result of the 1949 National Parks and Access to Countryside Act. After a consultation process local authorities compiled Definitive Maps showing all public rights of way. The system was updated by the 1968 Countryside Act. Local Authorities are obliged to maintain Definitive Maps, usually at a scale of 1:25,000 but occasionally at 1:10,000.The quality varies, and at 1:25,000 it is difficult to make out the fine detail of precisely where the rights of way are located. The Ordnance Survey (OS) show public rights of way on their 1:25,000, 1:63,360, and 1:50,000 maps as a service to the public, but the routes are derived from the Definitive Maps and a disclaimer is added to that effect.
Are Definitive Maps completely definitive? The answer is far from clear, but appears to be no. They are only definitive as to the existence and status of a right of way, and it seems that other evidence may be used to establish the precise line. This evidence could include old Ordnance Survey maps, documents, and material used in the 1950s consultation process if available including the Provisional Map. This is a similar situation to the Land Registry Filed Plan for a property which defines the general location of the boundary, but leaves the precise position to be decided from other evidence.
This is where a Chartered Land Surveyor can help. Very careful analysis of the Definitive Map and supporting evidence is likely to be needed where the precise route is important. In a recent case the route either went across the centre of a garden, or round the edge. There was only about a 10m maximum difference between the two: very difficult to establish when the best that can be scaled from a 1:25,000 map is about 8m. The Definitive Map appeared to show the right of way to run around the edge of the garden, while the supporting evidence clearly showed a path to have crossed the centre in the past. In this case the Definitive Map route was altered by the more detailed supporting maps, which included an early 20th century 1:2500 map. It should be noted that, as with boundary problems, the OS surveys physical features rather than legal boundaries or rights of way.
Finally, the Countryside and Rights of Way Act 2000 (CRoW) is just coming into force. This has several affects: