Section 9
Evidence of existence of highways
9.3: Documents continued
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.
Professor J.V. Beckett,
University of Nottingham, Department of History;
Mr. B. Cowell, Postgraduate Student, University of Nottingham,
Departments of History and Geography; and
Professor M.E. Turner, University of Hull,
School of Economic Studies
The Flamborough case has highlighted the differences between the contemporary legal
interpretation of the terminology used in inclosure awards and the intentions of those who
were responsible for drafting the awards and for carrying them out. It is averred that, on
analysis, the purpose of the fencing requirements in the awards was to provide partitions
between land holdings which were reasonably stock proof, and that provided these
requirements are still fulfilled, the type of fencing may be different to the extent that
drains can be culverted and hedges replaced by modern fencing.
The analysis of the fencing issue ranges over the requirements and implications of
inclosures for farming and rural communities at the time.
R. Kain, Montefiore Professor of Geography, University of Exeter
A detailed study of the circumstances in which tithe maps were produced indicates that
they are of too heterogeneous a nature to permit the formulation of general rules for
their interpretation.
Yolande Hodson, B.Sc., Ph.D., F.S.A., F.B.Cart.S., Map Historian
The symbol of the shaded line (a thickened line) drawn on some roads on Ordnance
Survey 1:2500 scale plans has occasionally been used to suggest that such roads can be
interpreted as public. This paper explores the possibilities of the interpretation of this
symbol in relation to plans for England and Wales, and illustrates the complex issues that
underlie the attempted explanation of any lines on the OS map. It is demonstrated
that it is not possible to use the evidence of the shaded line to make an unequivocal
distinction between private and public roads on the large-scale plans. The depiction of
footpaths and bridleways, which are subjects in their own right, is not considered here.
Yolande Hodson, B.Sc., Ph.D., F.S.A., F.B.Cart.S., Map Historian
Three editions of the Ordnance Survey one-inch maps were published between 1801 and
1904. This article traces the evolution of the depiction of roads on these small-scale
maps and examines selected aspects of their interpretation.
Christine Cox, B.A.(Hons.), M.A., M.I.F.A., Air Photo Interpreter
An introduction to the history of aerial photography, the types of photographs which
are available for interpretation, the properties of those photographs and the way in which
they may be used and presented as legal evidence, with particular reference to rights of
way and established land-use issues.
David Braham Q.C.
The deductions allowed for the existence of public rights of way in arriving at the
valuations required by the Finance (1909-10) Act 1910 can be highly relevant where highway
status is in issue.The marked up maps can also be highly relevant where they show that a
road running between inclosures was omitted from the valuations. This article examines the
implications of such omissions with particular reference to two unreported High Court
cases in which those implications were considered. Both those cases also involved
consideration of the weight to be given to the manner in which a road is shown in a tithe
map and apportionment.
Alex Lewis, LL.B., Solicitor, Senior RoW Officer, Hampshire C.C
Many Parliamentary inclosures required one or more Justices to declare that awarded
carriage roads were "sufficiently formed completed and repaired", yet very
little evidence of this certification procedure has survived. This article examines
whether the absence of the Justices' certificate is fatal to the recognition of inclosure
carriage roads as vehicular rights of way.
J. Pearson B.Sc.(Hons), M.Phil, Ph.D.
This article examines the recorded decisions on highways made by the Essex magistrates
in the eighteenth and early nineteenthcentury. It identifies some of the complexities that
confront the researcher trying to retrieve information relating to highways from the
Quarter Sessions records of this period. It concentrates on the system and sources to be
found in the Essex Record Office, an archive well-known for its extensive series of
Quarter Sessions records, but it is generally relevant to other county archives.
David Braham Q.C.
Earlier articles have covered the main points concerning the valuations made pursuant
to the Finance (1909-10) Act 1910 but further points, discussed in this article, have
arisen. The discussion includes the treatment of private rights of way, further details
concerning the deductions for public rights of way and for other public rights and further
points on the official instructions given to the valuers.
David Braham QC
Case note
This case concerned an Inspector’s decision to confirm a definitive map modification
order redesignating as a bridleway a way which was shown in the definitive map as a
footpath. The decision called for the evaluation of evidence which included early small
scale maps, the tithe map, the valuations made under the Finance (1909-10) Act 1910 and
Parish Council minutes dating from 1925 and the 1950s
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