2.37, This part of the guidelines commences with an explanation of an apparent bias in the selection of reference documents and reiterates an earlier caution (at Part 1) about expert opinion. It then offers specific comment on some issues which have arisen at inquiries and which may well recur. There is no significance in the order in which the subjects are addressed.

Content

RWLR Articles
Highway? Road? Etc
Named Highways
Unclassified County Roads
Administrative Boundaries
Rural Culs-de-sac

RWLR Articles

2.38, At present there appears to be a dearth of articles by reputable authors which present the views of landowners or Local Authorities on rights of way issues. As a result, these guidelines appear to be biased in favour of information culled from RWLR articles. Most are written by acknowledged experts, but as has already been pointed out, when tested by the Courts, expert opinion does not always survive. Experts may also ‘agree to differ,’ if only in degree. For example, advice on the value of tithe maps is cautiously expressed in a RWLR article “Interpreting Tithe Map Evidence” (June 1998 Section 9.3).

2.39, Inspectors should not necessarily let expert agreement override their own judgement. RWLR articles can be unreliable. For example, a RWLR article “Rights of Way and the 1910 Finance Act” (September 1990) holds that a track excluded from taxable land holdings ... must have been considered [by the valuer] to be a public road at that time. Other explanations of the depiction are possible (see ‘Finance Act 1910’).

2.40, This example emphasises the importance of reading RWLR and other articles by acknowledged experts with due respect, but also with an open and inquiring mind. Nothing in such articles should be taken as authoritative advice or guidance endorsed by the Defra.

Highway? Road?

2.41, In a pamphlet called ‘Road and Way’ Mr Alec Fry has made an analysis of expressions used to describe ways on foot, on horseback, driving livestock, by horse drawn vehicles and by motor vehicles, in the context of relevant Acts of Parliament c1500-1920. Inspectors may find it helpful in reaching a general understanding of the topic. It is also a useful compendium of extracts from Acts of Parliament. However, contra-extracts can sometimes be produced from the same documentation or other documents covering the same era. Inspectors will, therefore, have to make their own interpretation. Inspectors will need to look at other qualifications (e.g. ‘public,’ ‘private,’ ‘occupation’ etc) and at other inquiry evidence in order to establish the probable status of the way. The meaning of highway at common law is ‘a way over which there exists a public right of passage, that is to say a right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance’ (see Halsbury’s Laws of England volume 21). Whether a particular highway carries vehicular, bridleway or footpath rights will need to be determined by the Inspector from the available evidence.

What is a Cross Road ?

2.42, It has been argued that the depiction of ways on reputable 18 th and 19 th century commercial maps as cross roads constitutes cogent evidence of general purpose public carriageways secondary only to a direct, main or turnpike road. It should be noted that the approach of various map makers shows considerable variation in their depiction of cross roads. An extract from the Hollins v Oldham 1995 (C94/0206, unreported) judgment has been cited in support of this contention. The final sentence of the relevant paragraph of Judge Howarth’s judgment reads Pingot Lane must have been considered, rightly or wrongly, by Burdett as being either a bridleway or a highway for vehicles. [the underlining is editorial]. This sentence and other relevant extracts from the judgment form the basis of Rights of Way Advice Note No.4. Further information can be found in a booklet entitled ‘What is a Cross Road’ by Susan Taylor, and a paper entitled ‘Cross-Roads’ prepared by Alec and Margaret Fry.

Named Highways

2.43, It is sometimes asserted that a named highway is probably a public highway. One strand of the argument runs like this. One of the requirements of Section 69 Highways Act 1773, was that all ‘common highways’ had to be named before indictment for obstruction or disrepair could take place. This requirement continued in Highways Act 1835. As private roads were not liable in this way, they did not need to be named. It therefore follows that a named way is probably a public highway.

2.44, Inspectors may have some difficulty with this argument. Although the statutory element is probably correct (supporting evidence would be required), it is a matter of fact that nowadays many public highways are not named and some private roads are. Furthermore, road names, like place names, can be corrupted over time, or even disappear completely, and new names appear through local usage. These new names would have no legal import but, nonetheless, they may have found their way onto OS maps and into List of Streets^{Footnote 6} .

2.45, In summary, the arguments that a named highway is probably a public highway, or, at least, that its naming carries some inference of public status, should be thoroughly tested. Of themselves, they are not persuasive evidence.

Unclassified County Roads (UCR)

2.46, This classification has no legal standing but it carries some inference that the public may use the highway with vehicles. Extant advice is that ‘all other relevant evidence must be taken into account’(see letter from the head of Countryside Division dated 24 August 1998) .

Administrative Boundaries

2.47, On the Definitive Map, some long and apparently continuous highways change status at administrative (e.g. parish/community) boundaries, when common-sense suggests they should not. An Inspector may well meet a situation where an Order highway continues into the next administrative area and be invited to accord it the status already awarded there. An Inspector should not feel bound to do so. It would not be safe to draw any firm inference from the awarded status without knowing the diligence of the procedure leading to its award. There was sometimes considerable inconsistency between parishes’ diligence during the creation of the Draft Definitive Map. If, however, the section under consideration continues at both ends as a public highway of the same description, and if there is no other access to the mid-section, and if the ends lie in different parishes, a more firm inference may be drawn. It is a question of considering all the relevant evidence (see also Eyre v New Forest Highways Board 1892).

Rural Culs-de-Sac

2.48, The courts have long recognised that, in certain circumstances, culs-de-sac in rural areas can be highways. (e.g. Eyre v New Forest Highways Board 1892, Moser v Ambleside 1925, A-G and Newton Abbott v Dyer 1947 and Roberts v Webster 1967). Most frequently, such a situation arises where a cul-de-sac is the only way to or from a place of public interest or where changes to the highways network have turned what was part of a through road into a cul-de-sac. Before recognising a cul-de-sac as a highway, Inspectors will need to be persuaded that special circumstances exist.

2.49, In Eyre v New Forest Highway Board 1892 Wills J also covers the situation in which two apparent culs-de-sac are created by reason of uncertainty over the status of a short, linking section (in that case a track over a common). He held that, where a short section of uncertain status exists it can be presumed that its status is that of the two highways linked by it.

6. Section 36(6) of the Highways Act 1980 requires every highway authority to make and keep up to date, a list of streets within its area which are highways maintainable at the public expense.

(October 2005)

How to view PDF documents

PDF files can be viewed using Adobe's Acrobat Reader. You can download Acrobat Reader free of charge from the Adobe website. Visit Access Adobe to find out how people with visual disabilities can get the most from this software.