UKH

Interesting xmas piece on the Institute of  Public Rights of Way and Access Management FB page yesterday posing the question: could routes be claimed and recorded as PROW? To summarise, the author, a rights of way officer,  could see no substantial legal impediments and there would be plenty of documentary and usage evidence available!  We already have scrambling routes, e.g. Striding Edge, recorded as footpaths so, taking it further, why not routes.......or rather: why bother?

Apparently. it's been discussed with the BMC before now and maybe on here. 

Maybe an option if a cliff was threatened in some way?

In reply to Bulls Crack:

For a vertical route, how do you mark something with no extent in the XY plane on a definitive map?

If it’s not on the definitive map…

In reply to Bulls Crack:

Possibly some landowners might prevent any further access to new crags to avoid loss of control in the future? Also if climbs are ROW then that automatically implies a right of access to them, often across private land, which landowners might want to nip in the bud by preventing any climbing early on. Perhaps best to keep as an option of last resort for access negotiations.

In reply to wintertree:

A dot?

There would also be the access and descent paths  to the route to include on the definitive map.

In reply to Bulls Crack:

I was trying to understand this.  I might be wrong but it was always my understanding that if a landowner gives permission, either in writing or verbally, that people can use part of their land then this can be withdrawn (something that often happens with permitted footpaths). As the BMC or other local groups have negotiated access in most places, i would have thought the landowner could then withdraw it if they wanted. 

I might be wrong, but it was always my understanding that requesting a new right of way can only be done if it has been in regular use for the past 20 years, the landowner has not expressly given permission but at the same time has not actively stopped people using the land.  This would only apply in a few limited circumstances. 

In reply to Davidlees215: I think it would apply in rather a lot of cases , and would be well documented by the existence of older guidebooks 

In reply to wintertree:

Good point. Anything off vertical however should be possible. and there's always the definitive schedule 

In reply to Davidlees215:

Yes, some sorts of permission would invalidate a claim but not necessarily all and, on access land,  little point anyway given there is access to cliffs. 

Most claims are probably  'as of use' ie usually 20+ years (of what is technically trespass!) and claims can also still be made with  sufficient historic source evidence eg old maps/documents. A lanowner can of course decide to dedicate a right of way themselves but this is less common. 

In reply to oldie:

Absolutely . It was more of a technical 'what 'if?' question but interesting to know it might possibly be an option. 

In reply to Davidlees215:

You're absolutely right that giving permission stops a right being established. But that permission has to be openly and explicitly stated, by obvious signage for example. Just tolerating access without anything much stated by the landowner does leads to rights being established. A lot of crags do have negotiated access agreements but I think more don't, landowners just accept they're going to be climbed on.

Use also has to be "as of right" (genuinely believing you have a right even though legally you don't) rather than "by right" (by already having having a right by some other piece of legislation). So it has not been possible in recent years to establish public footpaths on CROW Access Land by 20+ years' use because we already have that right thanks to the CROW Act

In reply to Bulls Crack:

Interesting question.  Intuitively, I feel that climbing a route for the sake of it is different from using a right of way to get from one place to another, but I don't know what the law says or even if it is clear.  It might be possible to argue for a PRoW, but my gut feeling is that the courts would resist creating hundreds of rights of way over Stanage, for example.  Whatever the technicalities, climbing is probably not what this law is intended to protect.

I think a better claim would be under Village Green rights, which allows rights to be claimed for recreational purposes.  Again, they have to have been exercised as of right for at least 20 years, and it has to be by a significant proportion of the local inhabitants, but "significant" and "local" are not defined.

In reply to Howard J:

A PROW has to link one place frequented by the public to another. Cul-de-sac PROWs are still possible as places such as beaches or the summit of a hill are places frequented by the public. So unless the very top of a crag is a PROW or otherwise frequented by the general (non climbing) public I'm not sure it would be able to establish a PROW up the line of a recorded climb

In reply to Bulls Crack:

The PROW from the North towards the summit of Moel Hebog seemingly cuts across the crag of Y Diffwys and quite possibly follows the scrambling/easy to moderate climbing route of “The Companionway” coincidentally or possibly not. 

In reply to wintertree:

Interesting. A definitive map is in plan, but is there anything to say it can't also be drawn in elevation where appropriate?

In reply to topic :

On a serious note, if climbs are to be recorded as Historic Rights of Way we as climbers will need to get a move on, because we have only got 4 years left to get them registered after which the opportunity will be lost forever, unless a future landowner decides to gift climbs, and access thereto on their land to the public.

The Countryside and Rights of Way Act 2000 introduced a provision for a cut-off date of 1 January 2026 for the recording of historic rights of way. This was seen as an opportunity to bring more certainty for the public and landowners alike as to what and where the recorded Public Rights of Way are.

In reply to Trangia:

One can either prove the existence of an unrecorded PROW by showing that it has "always" existed but got left off the Definitive Map by accident, or that it has come into existence by 20+ years use.

You will not be able to use historic evidence to prove unrecorded PROWs (inclosure awards, ancient maps etc) after 2026 but you will still be able to use evidence of 20+ years use post 2026 to get the Definitive Map amended.

In reply to Trangia:

There should be some sort of announcement about 2026 in the Spring but don't hold your breath.  Enabling legislation, to speed up and make fairer the process of recording these routes, eventually made it into the 2015 Deregulation Act but has yet to be fully enacted. Millions were earmarked to record these routes by the last Labour Government but that never materialised and instead cuts resulted in growing back-logs in rights of way departments so now, with 2026 increasingly looming, not that much has been achieved. 

In reply to Trangia:

I believe that the legislation also states that the absence of an indication of PRoW on a definitive map does NOT mean that there is no PRoW - i.e., 'definitive maps' are not legally definitive. There is an onus on the relevant body to update their maps, but their not doing so does not disestablish the PRoW.

In reply to Bulls Crack:

If anyone is going to attempt this, it will have to be for a crag which is not on CRoW Access Land; where there have been uninterrupted access during the last 20 years; no formal or informal access agreements with the landowner and no signage during that period; and where the landowner has not lodged a declaration under s31(6) of the Highways Act 1980 stating that they do not intend to dedicate further PRoWs. Any suggestions?

Even then only individual routes which are more than 20 years old could be claimed.  Newer routes could not be claimed as they would not have 20 years' use.  It might also be difficult to show 20 years' use for very hard routes which see only a handful of ascents.

My gut feeling is that local highways authorities would resist this, and might be supported by the courts. I think they might feel it is disproportionate to allow a proliferation of rights of way, all in very close proximity and going nowhere in particular.  A PRoW imposes certain liabilities on the landowner and local highways authorities which they could not have contemplated and which a court might not consider reasonable in the circumstances. They might feel there are better and more appropriate ways of permitting access, such as CRoW or Village Green rights.

The local highways authority has an obligation to keep a public right of way safe for users, and reasonably accessible to all.  Think carefully about the implications of this. 

In reply to Howard J:

Seconded. Climbs (or for that matter any 'adventurous routes') and PRoW (as defined in legislation) seem to me to be non-overlapping sets.

In reply to Howard J:

'The local highways authority has an obligation to keep a public right of way safe for users, and reasonably accessible to all.'

That was where I thought it might fail  too but not neccessrilay  -  not that I wish to make a claim! 

'The public' have a right to pass and repass  for 'purposes reasonably incidental thereto'. However, the relevant legislation does not define public (ie the users) as such unless to indicate the legal use of a route. (Public however as opposed to private  and/or 'occupational' use eg a track to a farm/a mill for example)

S130 of the Highways Act 1980 specifies  the authorities protection of those public rights for 'use and enjoyment' but as far as safety goes it would in some way  be an extension of some paths being 'naturally' unusable by  some/many users  - perhaps people with mobility problems and more rugged paths. The authority has limited liability on a PROW but maybe they'd want to get it bolted to do as much as reasonably possible?  

In reply to Bulls Crack:

You might want to look at Derbyshire CC's attitude vis-a-vis the path up Rushup Edge and extrapolate from that. The stuff of nightmares!

In reply to Bulls Crack:

I thought that Dennis Grey had this clever idea of getting access to crags by treating crucial routes as 'long established footpaths' about 45 years ago, and had considerable success when he was in the BMC of using this legal device to secure crag access to many 'restricted' crags ?? 

In reply to Marek:

Chapel Gate resurfacing?

In reply to Bulls Crack:

Apparently there was a Public Footpath sign fixed to the rock halfway up Middlefell Buttress for a while (1950's?)