Natural England

Implementing the lost ways project (AP02/38)

FOR  DECISION

to agree a process to undertake extensive research into "historic" ie. pre 1949 public rights of way which are likely to expire in 2026; to establish an arms length Archive Research Unit ( ARU), with assistance from groups of volunteers, to identify and record systematically such 'lost ways'; to establish an independent Rights of Way Claims Trust ( RCT) to convert the findings of the ARU into formal applications to modify the definitive map to standards agreed with the appropriate professional bodies.

Relevance to Strategy and Corporate Plan: the Corporate Plan says we will encourage and support research that will lead to the rediscovery of lost rights of way over extensive areas of England starting from March 2002. (This is an important post-Countryside and Rights of Way Act priority for Defra, taken into account in approving our corporate plan and grant in aid).

Staff and financial implications: Defra have stated a clear expectation that this work (costing about £1 million a year) will continue in the long term; staff resource to manage this work is provided for in the corporate plan.

Main issues to concern the Board: are the Board content to progress this work as suggested? are we right to opt for a comprehensive approach to this work exploring archives, irrespective of value of the additional route, or should we focus on "quick wins" by being selective and shorter term in our approach? are we right to establish arms length bodies to research and pursue claims to Highways Authorities? This is likely to increase the effectiveness of the process but also to create a degree of external pressure to see the job through! are the Board satisfied that this activity will represent good value for money compared to other uses to which the Agency's resources could be put? are the Board satisfied that we can evaluate success as we go along?

Introduction

1. To recreational users of the countryside, the most important single means of gaining access is through the public rights of way network. Since the National Parks and Access to the Countryside Act 1949 there has been a statutory duty on surveying authorities to record these public rights of way on the definitive map and statement. For various reasons (Annex 1) the process of recording public rights of way on the definitive map and accompanying statement is still not complete. 

2. By the end of the 1990s there was widespread acceptance that a substantial number of 'lost ways' remained to be discovered. It was also widely accepted that if these ways are to be properly recorded as rights of way on the definitive map and statement, comprehensive, detailed archive research into their origins and status would be essential (Annex 2). To resolve the situation the Countryside and Rights of Way Act 2000 provides that footpaths and bridleways, that were in existence before 1949 but not recorded on the definitive map by 2026, will be extinguished. Unrecorded higher rights that may apply will also be extinguished. 

The current situation

3. There has been considerable uncertainty over the extent of 'lost ways' but consultants have recently estimated that there may be some 20,000 unrecorded rights of way (or 16,000km)  (Annex 3). By undertaking a comprehensive survey of highway authorities, consultants estimated that 58% of this increase would be in the form of footpaths (9,300 km), 25% bridleways (4,000) and 17% byways open to all traffic (2,700 km). Only one authority reported that its definitive map was up date and nearly half of existing Schedule 14 applications to Highway Authorities had been outstanding for more than 5 years. Fourteen sources of documentary evidence were identified by the research. Overall it is estimated that some 200,000 primary items of evidence are held at over 110 county and national archive offices.The importance of identifying historic rights of way4. Identifying the unrecorded historic rights of way could result in a 9% increase in the network (6% increase in footpaths, 12% increase in bridleways and a significant 71% increase in byways open to all traffic) - routes that would be 'lost' forever if they are not claimed before 2026. Furthermore, these 'lost ways' are often the critical links between paths already on the map.

5. There is a strong latent demand for paths and tracks. A recent study found that 'just under 70% of households say that their level of activity would increase in some way if supply of available routes increase' . In 1998, 1,253 million day visits were made to the countryside, 40% of all visits included walking, cycling or riding.  Although not all the lost ways will be "useful", we can assume that additional routes would widen choice and produce additional trips. A 9% increase in availability of routes could lead to an additional 50 million trips. This would translate into health, enjoyment and economic advantages.

Main Objective

6. Our main objective is to ensure that unrecorded historic rights of way are properly recorded by:

• uncovering documentary evidence that shows the existence of unrecorded ways so that they can be considered for addition to the definitive map;  

• submitting routes with sufficient evidence that a public right exists, to the relevant highway authority to consider for inclusion on the definitive map.  

Options considered

7. In determining the optimal way of carrying out the research there were three main considerations (detail in Annex 4):

• should the research be route led or archive led?
• who should carry out the research: volunteers only, highway authorities and/or professional researchers?
• how should cases be brought to the attention of highway authorities?  

8. The main objective of the work is to ensure that historic rights of way are properly recorded. This can only be achieved by a systematic and structured approach to identifying the documentary evidence that exists. This points to a thorough trawl of both national and county archives (the archive led approach, rather than a highly selective route based approach looking not only at lost routes but underrecorded rights such as footpaths that should be available to horseriders and cyclists).

9. Volunteers have carried out excellent work on specific routes but the scale of the task is well beyond the availability of the volunteer resource. Consultants have identified it will take 54,000 days to carry out all of the archive research that is necessary and consultations have shown that the volunteer effort would provide significantly less than this. To bring the process of drawing old routes to an end, definitely demands a systematic, thorough and professional trawl of the archives. The very nature of volunteers - other priorities, lack of obligation - precludes them being relied upon as the sole means of carrying out the task.

10. Highway authorities have, in general, a poor record of updating their definitive maps and it seems unlikely that they would increase significantly the priority they give to this area of work. The necessity for a systematic trawl of the archives, points strongly to using professional researchers with volunteer support.

11. Our preferred option is to carry out the archive research as part of a national research contract with volunteer researchers invited to carry out secondary research on routes that have been identified as potential 'lost ways'. This has the advantages of trained researchers (under contract) working to agreed standards and identifying available primary evidence which can then be supplemented by volunteers (where available) working to their favoured 'route-led' approach.

12. Having discovered the archive evidence, cases need to be brought to the attention of highways authorities. It is important to ensure that there is a body in place for as long as it takes for highway authorities to determine applications and determine and make subsequent definitive map modification orders. There are some points of law that require clarification but we propose to establish a 'Claims Trust' which will apply for amendments to the definitive map.

 

13. We propose close working with highways authorities as there is currently a large amount of duplication of effort in the processes and lack of consistency. We will therefore work to agree standards for archive research that could form part of an accreditation scheme. We will further explore whether there is any scope for formalising the 'fast tracking' of modifications that come through the archive research unit and Claims Trust process to achieve better value for money. 

 

Management of the project  

14. Following legal advice we will set up a six month pilot archive research unit in April 2003 based on two counties. It will first compare digitised 1st and 2nd edition Ordnance Survey maps with current Ordnance Survey maps (already held in digital form by the Agency). Professional researchers will identify primary evidence and invite volunteers to identify secondary evidence. Estimates suggest it could take up to ten years for all the primary and secondary sources of evidence to be examined. At the end of the pilot phase we will assess whether it is possible to reduce this period. Following agreement about standards, a skeleton claims trust will be established in October 2003 with full roll-out of the national research unit later that year.

 

15. We propose to establish a 10 to 15 year programme (ARU - 10 years; RCT -15 years) which would allow sufficient time for all of the archive research to be carried out and a the vast majority of claims to have been made. But we will also ensure that progress is monitored and evaluated regularly to ensure its continuing worth. 

Costs and benefits  

16. We estimate the cost of identifying and providing a claim at £1000 per mile. This compares very favourably with the cost of creating new rights of way - as our experience with National Trails has shown very clearly.

17. Annex 5 sets out the summary costs anticipated for the initial ten years of the work. For the duration of the new corporate plan it is proposed that funding is provided at the following levels:

1. 2003/2004 2004/2005 2005/2006
2. £600k £1,054k £1,065 

18. The work could result in a substantial 9% increase to the rights of way network. Over ten years and for the cost of £11 million, the project could provide all of the archive evidence and be well on the way towards claiming these historic rights of way.

Project Risks and exit strategy  

19. Our advice to Government in 1999 called for a proper assessment and adequate resourcing for this work. We should be prepared to set up a ten year project to enable archive evidence to be identified and collected with the Claims Trust in place for five years beyond that to ensure the work is carried through to completion. Annex 6 lists the main risks and the steps we plan to take to manage these risks. 

 

 

  

ANNEX 1

Why the process of recording public rights of way on the definitive and accompanying statement is still not complete.

1. The National Parks and Access to the Countryside Act 1949, gave all county councils the duty of surveying and mapping all public rights of way. The survey to be in three stages (draft; provisional; and definitive) with reviews every five years. The Countryside Act 1968 attempted to speed up the definitive map process but at the same time required all disputes to be determined by the Secretary of State, thus adding to the backlog. The complications of local government reorganisation in 1974 led to a breakdown of the system in the late 1970's. The Wildlife and Countryside Act 1981 replaced the procedure for county-wide surveys and reviews with a system of continuous amendments to the definitive maps.  

 

However, for four main reasons, and over 50 years on from the 1949 Act, the process of recording rights of way on the definitive map and accompanying statement is still not complete: 

• lack of sufficient rigour in the original definitive map making process in the early 1950's (insufficient resources being made available by many councils); 

 

• variations in the accuracy and completeness of the records that were eventually compiled; 

 

• a failure of subsequent legislation (the Countryside Act 1968 and the Wildlife & Countryside Act 1981) to inject any real impetus into the corrective process; and 

 

• Highway authorities not giving sufficient priority to the work.  

 

Although both the 1968 and the 1981 Acts had been based on the assumption that research into 'lost ways' would primarily be undertaken by the Highway Authorities for the area, in practice it has been largely left to volunteers. There are some 400 voluntary researchers in England but research carried out by the University of Gloucestershire found that only 12% carry out more than 10 hours of research in a week and 70% undertake less than ten hours. 

 

Much capable work that has been carried out by volunteers (both individually and as part of organised volunteer groups eg the Cumbria Brideways Society, the South Pennine Packhorse Trails Trust) but this reliance on the efforts of a small group of volunteers has meant that the process of recording public rights of way on the definitive and accompanying statement is still not complete.  

 

ANNEX 2 

Background to provisions regarding 'lost ways' in the Countryside and Rights of Way Act 2000.

1. Recognition that there were large numbers of unrecorded rights for which applications had to be made led to the Countryside Commission's recommendation to Government in early 1999 that the Government should: 'ask the Countryside Agency to advise it on the scale and cost of the task of researching and recording currently unrecorded rights of way'; and 'state that it intends to take powers to enable the eventual closure of individual definitive maps to further amendments based on historical documentary evidence'. 
2. In March 1999 the Government announced its intention to legislate to improve the rights of way system and in July issued a Consultation Paper. Agency paper 99/21 welcomed the main thrust of the Government's (1999) consultation paper on 'Improving Rights of Way in England and Wales' but reiterated the Agency's recommendation that before closing amendments to the definitive map based on historic documentary evidence, the scale and the cost of the work should be properly assessed and adequate resources be made available to undertake the work.
3. In an attempt to resolve the situation and bring continuing uncertainty about 'lost ways' to an end, the Countryside and Rights of Way Act 2000 provides that footpaths and bridleways, that were in existence before 1949 but not recorded on the definitive map by 1 January 2026, will be extinguished. Unrecorded higher rights that may apply to a definitive footpath, bridleway or restricted byway will also be extinguished. The Government is providing funding to the Countryside Agency for the establishment of an efficient system of research to rediscover those historic rights of way and higher rights that have, so far, not been recorded on the definitive map.  

ANNEX 3 

Assessment of the current situation 

Research method 

 

A consortium led by the Countryside and Community Research Unit at the University of Gloucestershire undertook research to: identify the size of the potential task of recording "lost" ways, by reporting on the progress made in bringing the definitive map and statement up to date; and estimate how many unrecorded rights of way are likely to be brought onto the definitive map. This part of the research covered both England and Wales and was undertaken in conjunction with the Countryside Council for Wales. 

 

The research included a literature review, postal questionnaires to highway authorities, volunteer researchers and archive offices, interviews with researchers and focus group meetings with highway authorities. 

 

The definitive map 

 

A postal questionnaire was sent to all 136 Highway Authorities. Seventy were returned which represents a response rate covering 70% of the existing rights of way system. This is appreciably higher than previous studies. 

 

The Isle of Wight was the only authority that reported it had brought its definitive map and statement up to date at the time of the research. 70% of authorities in England intend to have their maps up to date by 2026. In England, the longest estimate was 2300 (Gloucestershire). 16 authorities in England have not yet started compiling a definitive map for previously excluded areas but all but one would commence by 2004. 

 

Problems identified by highway authorities in bringing the map and statement up to date included: 

• rate of applications to change the definitive map exceeds highway authority capacity to process them. Nearly half of the existing Sch 14 applications have been outstanding for more than five years;
• insufficient evidence often submitted with claim and there is a cost to checking that evidence;
• irrelevant objections to orders;
• shortage of skills amongst new highway authority staff and lack of access to legal departments. 

Estimating the extent of unrecorded rights of way  

 

20% of the authorities that responded to the consultation had undertaken structured assessments of the extent of unrecorded rights. Based on these estimates, the extent of the number of unrecorded rights in England is likely to be in the region of 20,000. The estimate for the length of additional unrecorded rights in England is 16,000km 

 

On average 58% of this increase would be in the form of footpaths (9,300 km), 25% would be bridleways (4,000km), and the remaining 17 % (2,700km) would be byways open to all traffic. 

 

A map overlay exercise suggests an upper ceiling of 36,000km of unrecorded rights in England and Wales together. This is an overestimate because with this method it is not possible to differentiate between public and private rights. 

The extent of documentary evidence  

 

Questionnaires were returned by over 90 of the 110 local archive offices and highway authorities were also questioned about national and local archive resources. This information covered the extent and availability of their collections, search aids, ease of use and restrictions. Local offices are historically associated with county areas although with local government organisation this association is now more complicated. In addition there are 8 national archive offices 

 

There are around 14 main sources of evidence identified as either primary or secondary evidence: 

 

Primary 

• Tithe award maps;
• 1910 Finance Act maps;
• Inclosure award maps
• 1st edition Ordnance Survey maps and books of reference;
• 2nd edition Ordnance Survey maps and Object name books;
• Turnpike Trust Acts and plans;
• Railway acts and plans;
• Canal Acts and plans; 

 

Secondary 

• Glebe terriers;
• Utility deposited plans;
• HA hand over maps;
• Highway Act deposited plans
• Parish surveyors records
• Estate plans  

 

The estimated number of primary documents amounts to 200,000 translating into 33,000 person days required to systematically check each document. The benefits of checking all secondary sources of material is likely to diminish progressively, but it is anticipated that another 21,000 person days of research would be needed to review these documents. 

The human resource available to carry out the research  

 

Some 400 researchers were identified in England and Wales through questionnaires to groups and individuals. Of these, only one third to a quarter may be active at any one time. 77% report that they carry out research for two hours or less a week, and 12% more than 10 hours a week. 

 

The consultants believe that there are insufficient numbers of people able to carry out the work required and the age of existing volunteers is such that many are unlikely to be available for the entirety of the project. There is no identifiable pool of new researchers waiting to fill the gaps.  

Developing national standards of research  

 

One of the aims of the project was to develop nationally agreed standards for archive research. The elements of the research process which could be covered by standards include formats for the order of research and recording information and findings, obtaining copies of documents, and for electronic files and Schedule 14 applications. 

 

Standards should ensure that material presented about a case includes information that does not support the claim as well as information that does. They should consist of a simple, standard checklist for evidence and its interpretation. 

ANNEX 4

Options considered

Introduction

1. To date historic 'lost ways' have been researched by volunteers (as local authorities have placed little priority on the work and it was the only option available). It is important not to detract from the capable work that has been carried out (both individually and as part of organised volunteer groups eg the Cumbria Bridleways Society, the South Pennine Packhorse Trails Trust etc). However, the 'volunteers or nothing' approach has not worked and we need to find a better way of achieving the main objective. 
2. In determining the optimal way of carrying out the research there are three main considerations: 

• should the research be route led or archive led?
• who should carry out the research?
• how should cases be brought to the attention of the highway authorities? 

Should the research be route or archive led? 

1. The volunteer's traditional way of working is the route led approach whereby the volunteer focuses on a route that is of particular interest to them. This has led to a piecemeal claiming of 'lost ways'. If this approach were to continue, there would inevitably be a large number of historic ways that end up being extinguished simply because all the evidence held in archive offices etc had not been identified and no-one had cared enough to press the case.
2. Having established that the main objective of the work is to ensure that unrecorded rights of way are properly recorded, this can only be achieved by a systematic structured approach to identify the documentary evidence that may exist. This points to a thorough trawl of both national and county archives.

   Who should carry out the research?

3. It is clear that the current volunteer resource is not sufficient to carry out all the work that is necessary to undertake a structured archive led approach to identifying 'lost ways':  

• although some 400 volunteer researchers have been identified, significantly fewer are active at any one time;
• volunteer numbers may decline;
• there is no obvious new pool of volunteers;
• volunteers have not been used to taking an 'inclusive' approach to lost ways research. The norm appears to have been focusing on a route that was of specific interest to the volunteer and finding sources of evidence for that route. If this approach were to continue there would inevitably be a large number of historic ways that end up being 'lost' simply because they do not fall within the type of search or interest of a particular enthusiast;
• it is important that the research evidence is produced to set standards. It is recognised that a number of volunteers have carried out sterling work but it may be difficult to persuade some experienced volunteers that the way in which they have been collecting evidence for years is perhaps not the best approach;
• volunteers to date have not always provided sufficient evidence to progress a claim, evidence my be poorly represented or indeed not relevant to the specific route. It would create bad feeling if volunteers were considered not to be providing suitable evidence;
• the difficulties in co-ordinating the volunteer effort cannot be over-emphasised.  

• Possible options for carrying out the archive research identified by the Countryside and Community Research Unit at the University of Gloucestershire were: putting the onus on each highway authority to ensure that research is carried out; using only professional researchers; and supplementing the voluntary approach by teams of paid researchers.  

• Highway authorities have, in general, a poor track record on this front. The Wildlife and Countryside Act 1981 placed a duty on every highway authority to keep its definitive map and statement under continuous review. The majority of authorities have either chosen not to interpret this duty as a proactive one (waiting instead for applications to modify the definitive map to be made to them) or have been unable to allocate sufficient resources to enable likely sources of evidence to be properly investigated. It seems unlikely that highway authorities will raise the priority they give to this area of work.
  • The consultants advised that a joint volunteer and paid researcher approach would provide the additional resource to ensure that a systematic trawl of the archives could be carried out. Volunteers (steered by regional co-ordinators) could be supplemented by teams of paid researchers to help systematically trawl through the archives is one option. However, there would be considerable costs and potential management difficulties involved in managing this approach and it could not deliver comprehensive data about lost ways in a consistent form acceptable to highway authorities. 
    • )A further option would be for professional researchers to carry out all of the primary and secondary research in the archives. This would ensure that the work was carried out as quickly and professionally as possible but would risk alientating the voluntary sector. Furthermore, Government has indicated that it will provide funds to the voluntary sector through this project to carry out research into lost ways. 

• The preferred option is therefore, that the primary research is carried out as part of a national research contract (the Archive Research Unit), with volunteer researchers being invited to carry out secondary research on routes that have been identified as potential 'lost ways'. This has the advantages of trained researchers (under contract) working to agreed standards and identifying available evidence, which can then be supplemented by secondary evidence researched by volunteers where available, working to their favoured 'route-led' approach. 

How should cases be brought to the attention of the highway authorities?

• Having discovered the archive evidence, cases need to be brought to the attention of the highway authority so that (where necessary) a definitive map modification order can be made. Sch 14 applications (under the Wildlife and Countryside Act 1981) are currently (and are likely to remain) the most common means by which highway authorities become aware of changes that are needed to the definitive map. Assessing the evidence uncovered by the archive research process and translating that documentary evidence into Sch 14 applications is a specialist task requiring particular skills and expertise. This task could potentially be undertaken by: volunteers; by the Archive Research Unit; or a separate Claims Trust 

• It is unlikely that volunteers would have the capacity to deal with the volume of additional cases that will arise once the Archive Research Unit is established. The Archive Research Unit is planned to exist for ten years and should have as its priority the collection of archive evidence. It is important to ensure that there is a body in place that remains in existence for as long as it takes to determine applications, and determine and make subsequent definitive map modification orders. It is proposed therefore, to establish a Claims Trust which will be in existence for 15 years. At the end of 15 years we propose inviting the voluntary sector to take over any remaining claims until at least, and probably beyond, the cut off date of 2026.  

13.....)))()There are a number of issues concerning the submission of Sch 14 applications that need to be resolved before the Claims Trust is established. These include: the definition of 'any person' under section 53(5) of the 1981 Act; the transferability of ownership of applications; and, whether applications can be brought based solely on documentary evidence. We propose to take legal advice on these issues. 

ANNEX 5

Discovering Lost Ways Summary Project Costs

Discovering Lost Ways Project Costs £000s
	03/04	04/05	05/06	06/07	07/08	08/09	09/10	10/11	11/12	12/13
Project Cost	600	1,054	1,065	1,070	1,332	1,332	1,332	1,329	1,329	1,329
Project costs include: legal advice; digitised 1st edition Ordnance Survey maps; scanning of Finance Act maps; Archive Research Unit (IT; pilot primary research; pilot secondary research; roll out of primary research; roll out of secondary research); Claims Trust (likely to be in existence up to 2015); and National Archive Research.

 

ANNEX 6

Project Risks

1. The main risks are as follows: 

• we have under or over estimated the scale of the task? First estimates suggest it could take up to ten years for all of the sources of primary and secondary evidence to be examined. The project plan will be reviewed in the third quarter of 03/04 at the end of the pilot stage and we will assess if it is possible to reduce the documentary evidence collection period. Yearly monitoring systems will be put in place with a major review at the end of year five; 

 

• difficulties in accessing archive material. Archive offices vary in their approaches to allowing access to documents. Wherever possible, we will obtain documents from national archives and will work with the 'Association of County Archivists in Local Government', to establish uniform access to documents; 

 

• archive research unit contractors fail to perform. We will make clear contractual obligations from the outset, being prepared to invoke a break clause and retender the archive research unit if necessary; 

 

• Highway authorities unwilling to accept work presented by the claims trust. We will seek legal advice on acceptable evidence and will work with highway authorities and their representatives to establish an accreditation scheme. Highway Authorities have been provided with funding directly from Government for 'any new burdens' created by the Countryside and Rights of Way Act, this includes the processing of increased numbers of claims that may be created by the 'cut-off' date provision. However, we will work with DEFRA to explore ways in which highway authorities can be encouraged to give greater priority to definitive map work and we will seek with the Planning Inspectorate clarification on decisions and acceptability of evidence; 

 

• the claims trust gets overwhelmed with the legal process leading to increasing costs per rights of way discovered. The Agency should set benchmarks and not fund the claims trust to pursue doubtful claims; 

 

• overlap with other major projects. Internally we will coordinate aspects of the procurement of the National Access Database, Desktop Access Management system (DAMS) and other map based Agency projects to ensure that we spend money in the most cost effective way. 

 

• no-one wants to use the new routes that become available, so the whole exercise becomes an expensive white elephant. We will monitor and evaluate the project as it proceeds to ensure it provides value for money and useful products.