Chapter 6 : Evidence of rights of way status
Click here for the supplement to Chapter 6.
Links and downloads referred to in the text of Chapter 6
| Page | ||
| 141 | User evidence form | download [file BBE08] |
| 152 | London Gazette online archive | link |
| 157 | History of local government areas prior to 1974 | link |
| 160 | Advice Note 4: Advice on the definition of ‘cross road’ (Planning Inspectorate, 1999) | download |
| 160 | Advice Note 11 : Wildlife and Countryside Act 1981 - The meaning of ‘private carriage road’ - Dunlop v Secretary of State for the Environment (Planning Inspectorate, 2001) | download |
| 160 | Advice Note 14 : Legal memory (the evidential value of ancient documents) (Planning Inspectorate, 1st revision, 2003) | download |
| 160 | Definitive map orders: consistency guidelines (Planning Inspectorate, 2011) | download |
| 160 | Draftsmans, plan and field examiners instructions 1905-06 (Ordnance Survey) | link |
| 160 | Enclosure Awards (The National Archives) | link |
| 160 | Enclosure records for historians by Steven Hollowell (Phillimore, 2000) | link |
| 160 | Land: Requisitioned Land (The National Archives) | link |
| 160 | Maps for historians by Paul Hindle (Phillimore, 1998) | link |
| 160 | Numbering of County Series maps (Ordnance Survey) | link |
| 160 | Ordnance Survey maps: a concise guide for historians by Richard Oliver (Charles Close Society, 2005) | link |
| 160 | Ordnance Survey Records (The National Archives) | link |
| 160 | Practice Guidance Note 5: Investigating the status and existence of public rights of way (Rights of Way Review Committee, revised December 2007) | link |
| 160 | Public Rights of Way (The National Archives) | link |
| 160 | Roads and Tracks for Historians by Paul Hindle (Phillimore, 2001) | link |
| 160 | The Enclosure Maps of England and Wales, 1595-1918 by Roger Kain, John Chapman and Richard Oliver (Cambridge University Press, 2004) | link |
| 160 | The Rights of Way Act 1932 (with special reference to the functions of local authorities thereunder) : its history and meaning by Sir Lawrence Chubb (Commons, Open Spaces and Footpaths Preservation Society, 1938) | download [file BBE02] |
| 161 | The Tithe Maps of England and Wales : a cartographic analysis and county-by-county catalogue by Roger Kain and Richard Oliver (Cambridge University Press, 1995) | link |
| 161 | The Tithe Surveys of England and Wales by Roger Kain and Hugh Prince (Cambridge University Press, 2006) | link |
| 161 | Tithe Records (The National Archives) | link |
| 161 | Tithe surveys for historians by Roger Kain and Hugh Prince (Phillimore, 2000) | link |
| 161 | Valuation Office Records: The Finance (1909-1910) Act (The National Archives) | link |
Supplement to the text of Chapter 6
| Page | ||
| 141 | 6.1 Totality of evidence. In R (Ridley) v Secretary of State for Environment, Food and Rural Affairs (2009) Walker J said ‘As a matter of logic and common sense, it is perfectly plausible that an accumulation of material pieces of evidence may lead to a conclusion that while none of them, of itself, actually points to a particular result, taken as whole they do.’ | link to judgment |
| 141 | 6.1 Circumstances may arise in which an inspector or the court has to determine which of two conflicting, or apparently conflicting, items of evidence should prevail. For example, in Parker v Nottinghamshire CC and Department for Environment, Food and Rural Affairs (2009) an order was made adding a restricted byway to the definitive map on the ground of the depiction of the way in an enclosure award [see 6.3.2] made under the Inclosure Act 1771. In 1783 the Trent Navigation Act [see 6.3.3] conferred powers on a navigation [i.e., canal] company to ‘set out …use…and maintain Paths and Ways for haling, towing by men or horses any Boats, Barges or Vessels using the said Navigation’. The Act provided that owners through whose land the path was to pass should have a right to use the path as a ‘footpath, bridleway or driftway for their cattle and that no other person may use the same.’ Adjacent landowners objected to the modification order on the ground that this provision, and in particular the words ‘and no other’, restricting those entitled to use the way precluded the existence of public rights over the route. The court held that the Act created private rights of way over the path (for the benefit of canal users and adjoining landowners.) The existence of private rights did not preclude the existence of public rights (in the instant case, rights of a different nature) over the same route. The order was therefore confirmed. [Semble, if the public rights were extinguished, the private rights created by the Act would not be affected.] | link to judgment link to archived PINS website for decision letter (North Muskham RB 7) |
| 145 and 160 | 6.3.1 Sections 4 and 5 of the Consistency Guidelines (see above list) have been revised by the Planning Inspectorate. Sections 4 and 11 were further revised in April 2010. Section 12 was revised in February 2011. | |
| 150 and 160 | 6.3.6 The sections of the Consistency Guidelines (see above list) dealing with the Finance Act have been revised by the Planning Inspectorate. Section 11 has been extended to cover also Farm Survey records and records of wartime closures. | |
| 157 | 6.3.12 List of Streets In Fortune & Ors v Wiltshire Council & Anor (2010), claimants with properties on a lane objected to a proposal for the construction of a housing estate adjacent to the lane. In 2002 and 2006 obstacles were placed on the verges of the lane. The Council, as highway authority, claimed that the lane was a public highway and that by virtue of HA 1980 s 130 it had acted lawfully in removing the obstacles. The residents claimed that either that no vehicular rights existed over the lane; or that, if such rights had existed, they had been extinguished by NERCA 2006 s 67(1). The Council argued that highway rights had not been extinguished by section 67(1) by virtue of the exception to section 67(1) in section 67(2)(b), namely the existence of 'a list required to be kept under section 36(6) of the Highways Act 1980', which sub-section required every county council to make, and keep corrected up to date, 'a list of the streets ... which are highways maintainable at the pubic expense', the list being required (by section 36(7)) to be open to inspection by the public at the offices of the county council and that for each district of the council, at the offices of the district. The claimants contended that the list maintained by the Council was not compliant with NERCA 2006 s 67(2)(b) and HA 1980 s 36(6) with the result that the exception did not apply. The court held that, on the evidence, both at common law and under HA 1980, vehicular rights existed over the lane. The exceptions in NERCA 2006 s 67(2) were not to be given a narrow, restrictive interpretation but were to be interpreted in the context of the section's purpose. With regard to the arguments advanced by the claimants as to why the list of streets maintained by the Council was not a list of streets for the purpose of section 67 (2)(b), the arguments and the court's finding were as follows. 1. The list was not (being in digital form as an Exor database) in writing on paper. The court held that a list that could be 'rendered visible to the public either by printing off a copy of it or displaying it on a computer screen', constituted a list within section 36(6). 2. The list did not contain minor highways (i.e. footpaths, etc) which, being highways maintainable by the public, should have been included. The court held that whilst a list should properly contain minor highways, the omission of minor highways did not of itself prevent the list from coming within section 36(6), since the under the section the list was open to correction. 3. The list did not contain words that identified the list as one kept for the purpose of section 36(6). The court held that the list kept by the council for the purpose of section 36(6) did not require a label identifying it as such. 4. A section 36(6) list was a list of streets maintainable by the public. The list relied upon by the council was a list of streets maintained by the council, and so contained both streets that were in law maintainable and streets that were not in law maintainable but which were in practice maintained.. The list therefore did not comply with section 36(6). The court held that the fact that the list contained, out of a total of 11,000 roads, 19 that were not maintainable (because they were under construction or had not yet been adopted), was de minimis and irrelevant. “..having regard to the mischief at which section 67 NERC is directed, on the facts of the case, the difference between 'maintainable' and 'maintained' is an insignificant one.” Thus the list maintained by the council was compliant with section 36 with the result that since the exception in NERCA 2006 s 67(2)(b) therefore applied, vehicular rights had not been extinguished. The Council had thus acted lawfully in removing the obstacles. In dismissing an appeal, (Fortune & Ors v Wiltshire Council & Anor (2012)), the Court of Appeal held, confirming what had been held in the court below, that the Winchester principle of strict compliance should not be applied to the section 67(2)(b) exception, and also endorsed the other conclusions reached by the High Court. |
link to High Court judgment link to Court of Appeal judgment |
| 158 | 6.3.12 footnote 15 The advice to authorities is now, for authorities in England, in Defra circular 1/09, paragraph 4.42. | download circular 1/09 |
| 158 | 6.3.12 footnote 16, the 1992 regulations have been replaced by the Street Works (Registers, Notices, Directions and Designations) (England) Regulations 2007 and the Street Works (Registers, Notices, Directions and Designations) (Wales) Regulations 2008. These require registers to be indexed, to comply with BS 7666 Part 1 and, by no later than 1st April 2009, to be based on a geographical information system. The Department for Transport and the Welsh Assembly Government have each published guidance on street works, which includes guidance on the registers. | link to English regulations link to Welsh regulations link to DfT website for English guidance download Welsh guidance |