CREATION

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 (from the talk given by Phil Wadey):

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.

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.

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. The owers 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'.