Apparently in the UK it does matter because it contributes to the open availability of the land to wanderers. Document that it used to be a path and it remains a path.
A few comments from someone who has spent nearly 30 years working as a public rights of way professional.
It is great that so many people care enough about this topic to be posting comments on Christmas Day and Boxing Day, and it is good that journalists are writing articles about such apparently obscure aspects of highway law. Unfortunately this is a complex and much misunderstood subject, and it is all too easy for confusion to arise. Therefore, in the interests of clarification: the legislation in question applies only to England and Wales, and has nothing to do with access rights in Scotland or anywhere else. It also has nothing to do with the so-called 'right to roam', which is actually a limited right of access on foot only to defined parts of the countryside, and does not involve wandering through gardens or across farmers' fields.
Nor is it anything to do with the extensive network of existing recorded public rights of way - the ones that are already shown on the Definitive Maps held, and updated, by County Councils and Unitary Authorities. Those paths are unaffected by the cut-off date. It is also nothing to do with the Ordnance Survey: their maps show public rights of way information supplied by the Councils, and on every OS map you will also find the disclaimer, "the representation on this map of any other road, track or path is no evidence of the existence of a right of way". The OS record what they see on the ground, they don't ask questions about who can use a path or track, and they don't make decisions on such matters.
What the cut-off date is actually about is a classic piece of law making: it is part of the Countryside and Rights of Way Act of 2000, the Act which established open access (the 'right to roam') and which is full of the deals and trade-offs of the Parliamentary process. In order to get agreement to the open access proposals something had to be offered to the landowners who were vehemently opposed to it. One of the offers was the cut-off date, to bring an end to the supposed blight of historical rights of way suddenly being discovered and threatening the livelihoods, privacy etc. of individual land and home owners. This section of the 2000 Act never came into force, probably because no-one could decide how to make it work, so the 2026 date sat there, waiting for a decision on its future. It might have been easier to scrap it, but instead the Deregulation Act of 2015, the last twitch of the coalition Government, included the awakening of the cut-off date, and suddenly 26 years has become 10.
Paths that have been well used by the public, but are currently not recorded as public rights of way, are not at risk. Public rights can still be acquired on the basis of 20 years use. In simple terms, the cut-off only applies to unrecorded paths where the evidence of status is based on documentary evidence (old maps, Enclosure Awards etc).
The real issue is that Local Authorities have never had sufficient resources to carry out their statutory duties of looking after the existing network of recorded public rights of way, and to keep the Definitive Maps up to date. That situation has got much worse since 2010 and will continue to deteriorate for the foreseeable future. For a Rights of Way Officer fighting to keep the recorded paths open, the prospect of
hundreds of applications for new paths to be recorded is pretty daunting. Does the public want to see efforts concentrated on keeping the current recorded paths open, or on recording new ones to improve the accuracy of the Definitive Map? If you want either or both, someone has to start making the political choices to provide the resources.
I don't think there is a risk to the public use of many of the unrecorded paths; if they are well used then I suspect they will continue to be well used, regardless of their formal status. They won't actually disappear unless someone makes a deliberate attempt to block them, and if no-one has done so before now, are they really waiting for 2026 before getting out the barricades? Of course in an ideal world there would be a comprehensive record of everything and all doubt would be eliminated, but as the existing network shows, it still takes resources to keep paths open. Recorded status is great, but it is only part of the answer.
Sorry for the essay. I meant to be fairly brief, but could have said a lot more!
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