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Basic issue:
Lost Ways (Vanishing unrecorded Ways)

There is a cut-off date of 1 January 2026 when all footpaths and bridleways that were in existence prior to 1949, and that are not at that date on the definitive map, will be extinguished and have all public rights removed.

There are some classes of exceptions. But the fact that a claim (under WCA 81) may have been made is not one of the exceptions and claims will not prevent this extinguishment. But although the CROW Act does allow the government, by Statutory Instrument, to except claimed paths or to extend the cut-off date with parliamentary approval, and that may well happen, we would be foolish to assume at this moment that such a Statutory Instrument definitely will be made.

Under the law as it stands (December 2004) all such extinguished paths will require fresh dedications or a fresh period of uninterrupted public use to be able to get onto the definitive map after 2026.
There does remain some lack of clarity, parliament can change the rules by Statutory Instrument [CROW s56(2)(b)], Defra says they will but it is up to parliament , not defra. Even the Blue Book is unclear.

 

Examples of what will happen on 1st Jan 2026 to well-used non-definitive public paths:
 


1. A farmer, who owns a field, fences off a path and there is nothing we can do about it.
Public path from pre 1949 to today
Path at Jan 1st 2026 neither legally nor physically usable


     
2. A householder, who may or may not own the land, fences off a short length of path thus blocking it and there is nothing that we can do about it.
Public path from pre 1949 to today        
Path at Jan 1st 2026 neither legally nor physically usable  
In both these cases if the public walk the remainder of these paths then they are trespassing, and there is no public right left to enforce.
 

 

Who will look for and claim these lost/unrecorded ways? The Countryside Agency plans to fund some research into truly ‘lost’ ways, those no longer in current use. It is not clear that they have considered the sort of cases above. Their approach seem to be wholly about routes that are lost to use as well as to the map. For instance see this sample web page.
It is possible that about one tenth of all public paths are at risk. And because total processing time for claims is currently over 12 years in some areas (e.g. Hertfordshire) that gives us only about nine years to get all the claims in.

We welcome discussion of the issues, and please contact us over anything to do with these unrecorded ways, initially through: Chris Beney, chris@beney.org, 01923-211113 or 240107

A relevant article from Open Space, the Open Spaces Society's journal, on the same theme as this page is at: http://www.oss.org.uk/features/unrecordedways/lostwayspdf.pdf  

Some more specific detail relevant to south west Hertfordshire:

Some path user groups are trying a pilot scheme in SW Herts, with a handful of people given maps and charged with nagging everyone to mark the map with all routes used, especially everyday routes not yet on the map. They will have the benefit of the Watford Fieldpath Association’s historic records from 1899 to 1908 and beyond, currently being digitised for easy access.

Volunteers are sought for recording of Lost/Unrecorded ways anywhere in south-west Herts. Initial contact to:
Chris Beney, chris@beney.org, 01932-211113
12 Woodlands Rd., BUSHEY, WD23 2LR
or (especially for equestrian routes) Phil Wadey, mailforpdw-badfa@yahoo.co.uk

This document is based on the writer’s understanding of the Countryside and Rights of Way Act 2000 [CROW] sections 53 - 56 and he welcomes comment or correction

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