Section 9
Evidence of existence of highways
9.3: Documents continued
Christine Willmore, LL.B., Barrister, Lecturer, University of Bristol
Inclosure awards both created public rights of way and provided statutory evidence of
existing rights of way which they recorded. This article examines the provisions of the
Inclosure Acts of 1801 and 1845 and offers solutions to problems which commonly arise from
the interpretation of local awards, based on the analyses of previously unconsidered cases
from the early nineteenth century.
Zara Bowles
The survey carried out by the Valuation Department of the Inland Revenue under the
Finance (1909-10) Act 1910 is the most comprehensive record of land ever undertaken. It
became known as the “Second Domesday” and was as hotly disputed as was the
passage of the legislation requiring it. Between 1910 and the repeal of the Act in 1920,
the whole country was surveyed. The fact that it was carried out under statutory authority
by the Valuation Department of the Inland Revenue, and that there were criminal sanctions
associated with falsification of evidence, means there can be no argument about the
authenticity or legal validity of the resulting plans and records.
Bill Riley
The deposited plans made under the provisions of the Private Acts of Parliament which
authorized the compulsory acquisition of land for the purpose of constructing railways,
are admitted in courts as evidence of public rights of way. The legal process developed to
identify public highways on railway plans were at least as thorough as any other system in
use to record highways at that time, and modern procedures are substantially the same. The
material available for canal schemes is more limited in quantity and scope because, with
the coming of the railways, canal building had practically ceased before Parliamentary
Bill documentation became fully developed.
Christopher Padley
Tithe maps are of good repute for their general accuracy. Although they are not
directly concerned with public rights of way important inferences can be drawn from them.
Yolande Hodson, B.Sc.
"Everie man knoweth that lande is our riches in the
hyest nature, and yet
true surveying, and valuing thereof is shoufled up,
as though it were a
metter of small importance."
Nearly two hundred and fifty years after this remark was made, similar comments were still
current. Thus a complaint was made in 1818 that
"It is rather surprising in the present improved state of
mathematical
knowledge, that the precise superficial admeasurement
of any of our
counties should be involved in doubt and that the
wide difference
between [them] should oblige us to suspect them all
of inaccuracy."
These contemporary criticisms, which were well justified, can hardly inspire confidence in
the use of old maps as a source of reliable evidence in any historical study; yet a
thorough study of how a map was made can allow an authoritative assessment of its relative
accuracy to be made.
David Lamb, B.Sc. (Econ.)(Hons.), M.Phil, D.A.A.,
Deputy County Archivist of Hampshire
An explanation of how to discover whether documentary evidence is available to
establish the existence of a public right of way.
John Sugden, Ph.D., C.Eng., M.I.C.E., Assistant Director
(Planning & Transportation), Cleveland County Council
Inclosure resulted from the need to modernise agricultural practices when the
traditional methods of communal farming were no longer adequate to meet increasing demand
for greater output and efficiency. Parliamentary inclosure was the means of achieving
modernisation without undergoing the often impossible task of trying to get all the
existing owners to agree. The creation of new roads was an integral part of the work of
inclosure commissioners, and an understanding of how they set about their work is
necessary if the documents handed down from the inclosure period are to be interpreted
correctly.
Christine Willmore, LL.B., Barrister,
Lecturer in Law, University of Bristol
In R. v. Secretary of State for the Environment ex parte Andrews Schiemann J. was
called upon to interpret the complex wording of s.8 of the General Inclosure Act 1801.
This article sets out the judge's reasoning, and considers some of the wider implications
of the strict approach which he adopted.
Christine Willmore, LL.B., Barrister,
Lecturer in Law, University of Bristol
As a consequence of the truism "once a highway, always a highway",
documentary evidence of the existence of a public right of way at some stage in the past
is still of immense importance today. Historical difficulties, however, can make such
evidence daunting to the uninitiated. A consistent and systematic approach is the best way
to overcome such fears, and this article sets out some basic guiding principles.
Tim Hart, M.A., Ph.D., RoW Mapping Officer, Nottinghamshire C.C.
Interpreting the repetitive wording of antique statutes and Inclosure
Awards is no simple task. This article examines a number of general difficulties which
occur; and does so by considering in detail a group of local Awards from Nottinghamshire.
In particular, some complexities of the inter-relationship between the words 'public' and
'private' are considered.
John Andrews
The background to the Tithe Surveys and the form which they took is described in
detail by Christopher Padley in his article "Tithe records" earlier in this
section. This article considers some practical examples of the real but patchy value of
tithe maps in establishing the location and status of public rights of way.
Christine Willmore, LL.B., Barrister,
Lecturer in Law, University of Bristol
In Dunlop v. Secretary of State for the Environment and Cambridgeshire County Council
Sedley J. in his judgment concluded that "All the indications are that 'private
carriage road' is deliberately used in the award as a term of art distinguishing the
particular road acccording to the extent of the particular rights over it from the public
carriage roads on which all subjects enjoyed an equal right of vehicular passage".
The case undoubtedly helps remove some of the uncertainties surrounding the meaning of
'private carriage road', but it does not, and indeed could not, offer a conclusive
interpretation to be used on all occasions.
Graham Watson, LL.B., Barrister
A case note
His Honour Judge Cracknell ordered that:
"Flamborough Parish Council is required by statute
forever to maintain
that portion of the quickset hedge in the
ownership of the Parish
Council which forms the boundary between the
parish allotments and
the highway running from Flamborough to Bempton
and known as the
Bempton Road".
The Council was therefore not entitled to remove the hedge even to provide a public
amenity on the site.
Graham Watson, LL.B., Barrister
The amenity value of hedgerows is important for recreational rights of way users and
the protection of hedgerows will often be welcomed by them. The County Court decision in
Seymour's case demonstrates the value of old inclosure legislation for ensuring such
protection. More generally, the case shows the continuing importance of Inclosure Acts for
determining legal rights and duties today. The permanent protection which an Inclosure Act
may provide for a hedgerow suggests parallels with those provisions whereby such Acts
require the laying out of highways. However, the statutory protection of a hedgerow under
an Inclosure Act could have the effect of preventing the dedication of a more recent
highway. Now, the Hedgerows Regulations 1997 have introduced new and wide ranging
statutory protection for hedgerows which may also be of significance for rights of way
law.
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