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Definitive maps may not be definitive

There is a statutory obligation on local authorities to maintain a definitive map showing all public highways – including bridleways and footpaths.  The obligation arises from the Inclosure Consolidation Act of 1801.
It had previously been held that inclosure commissioners did not have the right to create new public highways – only private highways.
A recent case R (Andrews) v Secretary of State for Environment Food & Rural Affairs and others [2015] EWCA Civ 669 has changed all that.
In this case the Court of Appeal decided that the wording in acts from a long time ago was not always as accurate or complete as it could be.  The court decided to interpret the wording in a purposive manner to give effect to what it thought Parliament intended at the time.  The Court of Appeal decided that Parliament intended to allow for a commissioner to create public highways as well as private highways.
This case is important because it is estimated that there are between 500 and 1,000 highways created by the commissioners which are not currently recorded in the definitive map.  It means anyone seeking to buy land should not rely solely on the definitive map but must carry out a fairly detailed inspection of the site and if it appears that there may be a right of way over the land that is not mentioned on the definitive map, carry out further investigations with the current owner.
For further advice please contact Ika Castka.