There is a rebuttable presumption that a county council’s definitive map and statement of public rights of way is conclusive evidence of footpath and highways.
The Court of Appeal has considered this issue in McLeish and another v The Secretary of State for Environment Food and Rural Affairs and another [2024] EWCA Civ 1562.
County councils are obliged under the Wildlife and Countryside Act 1981 to prepare a definitive map and statement of public rights of way and to keep it updated. Section 53 requires councils to keep the definitive map and statement under continuous review and to modify them where evidence shows that they are incorrect.
Modifications can be made where there is evidence that (i) a right of way not shown on the map or statement subsists; (ii) a highway ought to have a different description; or (iii) there is no public right of way or highway or other modification is required.
During checks for a planning application, it became apparent that footpath ZR281 shown on the 2013 definitive map of the parish of Doddington, Kent, ran through the present garage and cesspit of Victoria Bungalow. Investigation revealed that a series of errors in copying meant the line had drifted eastwards in re-drafts of the definitive map from 1951 onwards. The correct route ran through Yew Tree House owned by the appellants.
The appellants objected and the respondent appointed an inspector who held a public hearing. Long-standing residents gave evidence and historic documents were considered, including the tithe map for Doddington of 1840 and successive editions of both the Ordnance Survey map of the area and the council’s definitive map and statement. The inspector concluded that the 2013 map and statement were incorrect. The correct path was through Yew Tree House.
The appellants’ challenge to both the High Court and the Court of Appeal failed. A definitive map prepared under the 1981 Act is authoritative in establishing the existence and location of public rights of way but mistakes can be corrected by the review process. There can only ever be one definitive map so when a modification is made the modified map and statement become definitive.
Whether a modification should be made must be determined on the balance of probabilities. There is a rebuttable presumption that the existing definitive map and statement are correct and substantial evidence is required to rebut it. The inspector’s decision – that the definitive map resulted from copying errors with no intention of modifying the route – was sufficient to rebut the presumption applying to the 2013 version.
Louise Clark is a property law consultant and mediator
