Bushey and District Footpaths Association

BADFA is a Registered Charity committed to caring for public rights of way
Centred in Bushey, Hertfordshire, but taking a wide view. Incorporating Watford Fieldpath Association (Founded 1898)


Creation and Recording of Public Paths

Taken from a talk given by Phil Wadey to BADFA's year 2000 AGM


This year, I want to talk a little about the CREATION of paths. I have touched on some elements of this before, but this year we have a very good reason for talking about CREATION, namely some of the provisions of the new Countryside and Rights of Way Bill; I'll come back to this later. First, I thought it would be worthwhile to remind members of Creation and Creation - sounds strange, but you were all entertained a few years ago by the Chairman's talk on widths and widths You may recall that any owner of freehold land has the power or ability to dedicate over that land a highway. The highway can be: # for those on foot only - a footpath - # for those on foot or horse - a bridleway (which also allows cyclists) - # or for all users: foot, horse and vehicle - this is a road or if used mainly on foot or horse, a 'byway'. Of course for a path dedicated this way, the highway only comes into being once the public have started to use the route.

We have the issue of recording paths. I have spoken at BADFA's AGM in past years about the definitive map and statement. One activity BADFA has pursued over the years is improving the accuracy of the definitive map and statement by collecting evidence that an owner in the past has dedicated a highway. Not dedicated formally by writing on a piece of paper, perhaps, but rather by "presumed dedication" - the law presumes that if the public have been using a route in the belief it is a highway for long enough, then it must have been dedicated as such, otherwise the owner would have stopped them.

The mechanism of presumed dedication

Take the case of the track outside this hall where I am speaking, I don't know the true facts in this case but suppose that, many years ago, people started to use it. And to use it not just to get to the houses at the end, but to carry on across the fields. Would that make for a presumption of dedication by whoever owned the track? No. But suppose they carried on using the track, and others in their turn started using it, not perhaps very many altogether but a fairly regular use. If no one took much notice, no one said "this is my land, you may use the track, but only by permission", no one put up a notice saying 'no public access' or somesuch; then it would begin to be reasonably assumed that whoever owned the track was minded to dedicate it for public use. After all, most people fairly jealously resist other people intruding on their property. It could still be open to the owner or any successors to the original owner to say that such use must stop or that it was only by permission. But sooner or later there would come a time when the presumption in favour of the existing or previous owner having made a dedication of the track as a public way would become compelling. When would that happen? That depends on the circumstances, but the law says that twenty years of such use is certainly enough to establish the public right, and it may be less. So what status would the track have? If the use had been entirely on foot it would be a footpath, if regularly used on horseback then a bridleway. This is the nature of presumed dedication, no formal document, just enough open use for long enough to make the legal presumption that the then owner had intended dedication.

Whomsoever Lane

This slide shows Whomsoever Lane, just off Merry Hill Road. This was 'recorded' as a bridleway on the basis of presumed dedication. When it was recorded on the definitive map, it wasn't 'created', we were just writing down existing rights that had not at that time got onto the map. There are many paths that are not yet on the map. Hertfordshire County Council has a 20 year backlog of processing applications to put paths on the map.

Now we've mentioned non-creations, let's get back to creations.

The owners of the land here are the University of Hertfordshire and the County Council. They agreed to 'creating' the path and the slide shows the official opening. So 'creation' doesn't necessarily mean 'creation'.

Sometimes, brand new paths are created. When we find a need for a path, or even sometimes just a desire for one, we approach the landowner to see if he will dedicate the path.
Wall Hall
Because of the processing backlog at County, when we submit evidence to have a path recorded we face this lengthy wait to get the path on the map. One of the options available to us is asking the owner of the land crossed by the path to execute a deed 'creating' the path again. Of course, this isn't really a creation - the rights exist but just aren't recorded. However, it means the path can be recorded quickly, easily and cheaply. BADFA is therefore happy to thank the owner publicly for this 'creation'. The picture shows a route recorded in Aldenham. It is an old road which was legally stopped up in the 1960s, but foot and horse traffic continued. It was therefore rededicated as a bridleway by presumed dedication.
New Path, Hilfield Reservoir

This slide shows the bridleway that was really created at the edge of the Hilfield Reservoir site. This was needed to join an existing equestrian cul-de-sac to a road, so that it would become a through route. We created the bridleway adjacent to, but separate from, the existing footpath.
Another creation you will know about is the dedication of the bridleway - we call it the 'Merry Hill Greenway' - on the Woodland Trust land. This route forms part of the London Orbital Bridleroute, and is a genuine creation - no bridleway was there before.
So far, I've talked about the voluntary approach. The work of volunteer groups like BADFA and the British Horse Society has ensured that many paths have been genuinely created or recorded via 'creations' in this area. In fact, when the County republish their definitive map later this year, we expect to find a bigger percentage increase in paths in Bushey than in any other parish. But local authorities also have compulsory powers..

Just as a motorway or by-pass can be created by a council by order, so can new footpaths and bridleways be created compulsorily.

This slide is one I showed last year. It is where Watford started using compulsory powers to create a cycleway over an existing footpath in Oxhey Park. After our objections, they chose not to press the point - you can see how unsuitable this would have been for shared use - it is far too narrow. We like to think that we could have sorted out a proper scheme to allow cycles to get through without putting walkers at risk - and that is the advantage Hertsmere has found in working with the experts rather than ignoring them. We have had only one opposed order in Hertsmere since 1991 - mostly by working for agreements.

Now I would like to turn to one aspect of the current Countryside and Rights of Way Bill which is in the House of Commons at the moment. One of the clauses will give the county council a statutory duty to create a 'rights of way improvement plan'. It will have to set out its plans for the next ten year period to improve footpath and bridleway provision. This should at last get the local authority looking as where paths are needed.

Chris Beney and I put this sign up earlier this year in Shenley. The new bridleway was dedicated by the owners, Arsenal Football Club. They were pleased to help riders get off Bell Lane, which is busy and is effectively a slip road to the M25 - but the clinching fact was that this path would form part of the London Orbital Bridleroute or H25. The DETR have recently approved the use of that route number on signs relating to the H25, and this was the first such sign. The key thing was that this path wasn't just any old request, it was part of a strategic route. So back to the rights of way improvement plans. It is highly likely that BADFA will prepare a draft plan for this area for improving footpaths and bridleways in 'Greater Bushey'. We will need our members' suggestions. Once drafted, the county will be required to put the plan to public consultation. If our routes can be justified, we stand a better chance of getting them into the final plan. So links which make circular walks are in favour. Paths to get to places like shops and schools are in favour (as they may save on car use). But other paths are likely to be at the back of the queue. Over the next year as we start to formulate a plan for the county council (which we hope they will use as their starting point) any and all ideas for paths, and the reasons the path would be useful will be welcomed by your committee.

Now, as well as being Secretary for BADFA, I am also the local access officer for the British Horse Society. I have found that when I try to create bridleways by asking landowners nicely, some of them say yes. Sometimes we need to avoid a dangerous bend, or avoid a busy road crossing. But when I need a path as apart of a strategic path, I get a much higher success rate

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