5.1 The definitive map and statement for an area is kept by the Highway Authority and records existing public footpaths, bridleways and byways open to all traffic and roads used as a public path.

5.2 Section 53 of the Act updates the definitive map and statement by:

adding any of these types of right of way which have not been included;
changing the recorded status of a right of way already shown;
deleting any way that can be proved not to be a right of way; and
changing other details of the map or statement

The questions that will affect the decision

5.3 The only things to consider are whether or not the path exists and, if it does, its route and status. Questions such as the effects of its use on nearby properties are not relevant. Authorities have other powers to deal with problems of this kind.

5.4 To confirm an order the inspector has to be sure that the order shows and describes the public rights of way which actually exist. If it does not, he or she may modify (change) the order.

5.5 In making a decision, the inspector only considers the facts of the route based on the evidence presented. He or she does not consider what the council, or anyone else, would like the situation to be. Section 53 cannot be used to change the definitive map and statement to show only the paths which people would like to have.

5.6 Once public rights of way have been created, they remain unless they have been closed by order. So in cases where historical evidence proves that a public right of way was created some time ago, those rights will still exist even if the route is no longer suitable for the purpose for which it was created, or no longer passable.

The types of evidence which may be relevant

5.7 There are two main types of evidence: documents and user evidence.

Documents

5.8 Many different types of maps, plans and other documents are presented as evidence to prove that public rights of way do or do not exist, or that the definitive map and statement needs updating in some other way.

5.9 How much a document will influence the decision on an order depends on what type of document it is, why it was originally produced and what information it contains about the path shown in the order. It is not unusual for each side to argue a differing meaning for the same document.

5.10 If you present a document at a local inquiry or through the written representations procedure, you should also provide an argument to show the inspector its meaning and relevance to the decision. The document should be in as clear a form as possible. For example, a black and white photocopy of a colour-coded map would obviously be of limited value, whereas a colour photocopy of the same map including its key, would be of more use.

5.11 The Planning Inspectorate's Consistency Guidelines provide more details of the different types of documents you can use as evidence.

User evidence

5.12 This is evidence of the actual use of the path, supporting the claim that the landowner has allowed a public right of way to become established over their land.

5.13 User evidence may take the form of:

written or spoken statements by witnesses; or
legal declarations by users, which give details of how and when they have used the path or how they know that there is a right of way.
Witnesses can speak at the inquiry and answer questions about past events.

5.14 Witnesses at the inquiry will be helpful to the inspector. Evidence which has been tested by cross examination will often carry more weight than evidence which has not.

5.15 User evidence, and any evidence that is presented against it, may describe events which seem to contradict one another. Inspectors are experienced in dealing with this kind of evidence and understand that people's memories of past events are likely to be different. The Secretary of State or the inspector will consider all the evidence and assess the cases for and against the order. The decision will be based on what most likely happened.

5.16 The Planning Inspectorate's Consistency Guidelines contain more details on 'deemed dedication' and explain the legal background to user evidence.

Section 54 (Reclassification orders)

5.17 Under Section 54 the authorities responsible for preparing and updating the definitive map have a duty to change the status of paths which are currently shown on the definitive map and statement as a road used as a public path (RUPP). They must now be classed as a byway open to all traffic, a bridleway or a footpath. This is to make clear exactly what rights there are on roads used as public paths.

5.18 The same questions and types of evidence will apply to reclassification orders as to modification orders (see sections 5.3 to 5.16). The aim of reclassification orders is to make sure that the definitive map and statement are accurate in recording what rights exist. The inspector does not consider whether it is better to change the status of a road used as a public path. He or she just follows the law and makes a decision based on the actual evidence about the route and status of the way.

5.19 The main difference between reclassification and modification orders is that for reclassification orders the Secretary of State or inspector cannot decide that there is no public right of way of any kind along the path. If there are rights for cars and other vehicles the path will become a byway open to all traffic. Otherwise, the path will automatically become a bridleway, unless it can be shown that bridleway rights do not exist. In this case, it will be classed as a footpath.

5.20 If the authority believes the path does not exist, it will make an order under Section 53 to delete it from the definitive map and statement.