Highway Act 1835 – sections 5 & 23

Highways Act 1862, 1980 (1835 Act sections 5 & 23; and 1980 Act only)

Public Health Act 1872

Highways and Locomotives Act 1878 (see ‘Turnpikes’)

Local Government Act 1894

Local Government Acts 1924, 1929

Rights of Way Act 1932

National Parks and Access to the Countryside Act 1949

Note: The above list is not exhaustive. They are some of the acts from which Highway Records may emanate. (see also Halsbury, Vol.21, paragraphs 39-42)

Case Law

R v SSE & Somerset CC ex parte Masters [1999] CO 3453/97 – amongst other things, evidential status of 1929 Handover Maps

Other Publications

‘Documentary Evidence’ – a paper prepared by Christine Willmore, July 2002

The following articles, which are of interest, have appeared in the RWLR

Highways Use and Control up to 1895 – D Coombs, June 1990 (Section 1.1)

Highway Authority Records – John Sugden, Sep 1995 (Section 9.1)

Discovering Documentary Evidence – David Lamb, Sep 1991 (Section 9.3)

GUIDANCE

Introduction

6.1, All highway records have to be interpreted carefully, with particular attention paid to the meanings of words within the given context. Usually they will provide suggestive, rather than conclusive, evidence on the case as a whole, but they may be conclusive evidence of what they purport to show. Below are listed some of the types of highway records that may be presented at inquiries, with some general commentary. Inspectors will find it helpful, in understanding 19 th century evidence, to know something of the development of the highway network in England and the legal framework within which the development took place. The RWLR article on ‘Highway Use and Control up to 1895’ provides a useful outline. This is reinforced by extracts, from statute law from 1500 to 1929, provided in an article entitled ‘Road and Way’ by Alec Fry.

Manorial Records

6.2, Manorial records may include Court Rolls (which carry the same weight as their successors in Quarter Sessions), books and papers relating to tenancy matters, mills, watercourses, rights of way diversions, destruction of footbridges etc.

Quarter Sessionsand Petty Sessions

6.3, Quarter Sessions records go back a long way. The following extracts illustrate the sort of material they provide.

On reading an order made at Bridgewater on 14 July 1674 for the setting up of a bridge over the mill stream at Nortlett Bridge below Glaston, and upon a petition now made by the inhabitants of Meare shewing that a “sleaneing” or fordable way through the mill stream will be more convenient than a bridge, and praying that this may be done at their costs; the Court grants the said petition.”

...plans of roads in Sampford Arundel, Thorne St Margaret and Holcombe Rogers showing route of the public road through Trull Farm in Sampford (now blocked) and the extent of the turnpike road to Whitehall (run by the Tiverton Trust), showing the gate and an undescribed grievance ...

These records may provide conclusive evidence of the stopping up or diversion of highways. Presentments or indictments for the non-repair of identifiable stretches of highway may also be found here and may provide strong and perhaps conclusive evidence of status where proved. It should be borne in mind that Quarter Session records are conclusive evidence of those matters the Court actually decided, but are not conclusive in relation to other matters. Reliance on orders alone can be misleading and evidence of completion may be required. Petty Sessional records may also be a source of evidence.

Deposited Plans of Public Undertakings

6.4, The legal deposit of plans or public undertakings was first provided for in the 1793 Standing Orders of the House of Lords. The need for such deposits was recognised following the canal mania of the early 1790s when it became evident that canal bills were being hurried through Parliament without proper scrutiny. Thereafter, promoters of canal or waterworks bills (and later bills for other public undertakings) were required to submit to the Lords plans of works, books of reference, and other papers before a bill was brought up from the Commons to the Lords. In 1837 an Act compelled the local deposit of plans of public undertakings with the Clerk of the Peace, although in practice local deposit had been taking place from a much earlier date.

6.5, Plans of canals, river navigations and highway diversions are common from 1793 onwards. By the early 19 th century, records of harbour works and turnpike improvements are also found. From 1829 until the late 19 th century railway undertakings predominate. (Canal, Railway and Turnpike documentary evidence is covered in more detail in later sections of these guidelines). Papers relating to schemes for street lighting, tramways, gas, electricity and water undertakings become numerous in the late 19 th century.

6.6, Any of these various types of document may provide evidence on adjacent paths, roads or tracks and therefore could be relevant at an inquiry under the Wildlife and Countryside Act 1981.

County Records

6.7, County records go back into the 19 th century and may consist of any of the following, in addition to those items already mentioned:

County Surveyor ’s Annual/Quarterly Reports

Report of County Works Committee

Special Reports on Main Roads

Various minutes, estimates, tenders and grants

Rights of Way Reports

1929 Handover Maps

County List of Streets

County Surveyor ’s Map and other records of Roads and Bridges

Aerial Photographs

Definitive Map and Statement

Often these records bear notes relating to rights of way. Some of the annotations may have been for internal administrative purposes and may sometimes reflect only the views of the surveyor or engineer of the day. The evidence they provide therefore needs to be viewed with caution. The RWLR article ‘Highway Authority Records’ provides helpful background, particularly on those relating to County Roads and the Definitive map.

1929 Handover Maps

6.8, The following comments apply to the 1929 and all other formal handover/takeover documents and to today’s List of Streets^{Footnote 1} . The view that this form of documentary evidence may be relevant appears to have been endorsed by Hooper J in R v SSE and Somerset County Council ex parte Masters 1999 . The Secretary of State for the Environment (SSE) had argued that such documents were a positive indication of what the Highway Authority then believed to be the status of the roads listed. Hooper J rejected as irrelevant a counter argument that SSE’s conclusion was one which could not lawfully be reached in the light of Stevens v SSE 1998. He found that SSE’s decision to treat the handover documentary evidence as a relevant consideration had not been one that no reasonable tribunal could have taken on the evidence available, i.e. it was not ‘Wednesbury unreasonable’^{Footnote 2} . It should be noted that it is unsafe to hold that the fact that a road does not appear to have been accepted by the new highway authority at the time of handover necessarily suggests that it can not have been a highway.

6.9, The evidential strength of handover and similar documents is that they are conclusive evidence of the highway authority’s acceptance of maintenance responsibility, a commitment that would not normally have been undertaken lightly. However, Inspectors should be mindful that these documents were principally for internal administrative use, were not readily available to the public and did not purport to be a record of rights. Consequently, while such evidence will clearly weigh in favour of the existence of public rights, their evidential weight will be for the Inspector to decide in the context of other evidence. If, for example, there is evidence that the documents entered the public domain during the Definitive Map process (or in any other circumstances) and were not challenged, their evidential weight would increase. Inspectors should also be mindful that some counties include private access/accommodation roads in their List of Streets.

S56 HA 80

6.10, Inspectors should be aware that sometimes witnesses claiming a right of way first seek a decision under HA80, s56, at the Magistrates’ Court and then cite it as a legal event which establishes a public right. The Court’s decision is legal evidence of a maintenance responsibility and such evidence could confirm a public right, but is not, in itself, conclusive.

Deposited Maps of Admitted Rights of Way

6.11, Under HA80 s31(6), a landowner can deposit with the appropriate Council a map of the land on a scale of not less than 6 inches to the mile with a statement indicating what ways (if any) over the land he admits to have been dedicated as highways. If this is done, a statutory declaration by the owner or his successors in title should be lodged within six years to the effect that no additional way (other than specifically indicated in the declaration) has been dedicated. Similar statutory declarations should be made every subsequent six years. (This has been amended under the Countryside and Rights of Way Act 2000 to every 10 years with effect from 13 February 2004 ). As this procedure was first introduced in the Rights of Way Act 1932, records of any statutory declarations made can go back many years. In the absence of proof to the contrary, a properly made statutory declaration of this type is sufficient evidence to deny the intention of the owner or his successors in title to dedicate any additional highway during the associated 6 year period.

6.12, Following the 1932 Act, many local authorities began to produce lists and maps usually only of non-vehicular rights of way, which may survive in more or less detail. Such documents may reflect the view of the authority, and may provide supporting evidence of the status of a way, but are not conclusive.

Parish Records

6.13, Prior to 1894 when the Local Government Act transferred responsibility for the maintenance of public highways to Rural District Councils, such responsibility generally belonged to the parish. Relevant acts often included provision for the use of locally available materials and there was a statutory requirement upon parishioners to fulfil a fixed annual labour commitment. The final responsibility for maintenance lay with the local Surveyor of Highways who was obliged to keep a detailed account of public monies expended. Some of these records survive, usually in county archives. Under the 1862 Act parishes could combine to form Highway Boards, and their records are also found in county archives.

6.14, It is generally accepted that longer distance use of horse drawn vehicles increased significantly during the late 18 th and early 19 th century. Some highways which had been adequate for hoofed traffic were unsuitable for wheeled traffic and consequently fell into disuse. Parishes were often reluctant to expend time, money and effort for the benefit of travellers who merely passed through. In consequence, maintenance, not rights, became the main point of contention in legal wrangles concerning the highway network.

6.15, Because of the reluctance of some parishes to spend money on highway maintenance, a rebuttable presumption can arise from an entry in a local Highway Surveyor’s Account Book. However, while highways upon which significant or recurring expenditure was lavished were probably public vehicular highways, an Inspector must, as a safeguard, check that the highway can be identified accurately from records. Some of the names used may since have been corrupted or, like the highway, have fallen into disuse.

6.16, More recent parish records are also of great importance, particularly those relating to the Parish Survey from which the Definitive Map followed. These usually include a statement which accompanied the Draft Map, a survey card and also the relevant contemporary parish council minutes. (‘Rights of Way: A guide to law and practice’ by John Riddall and John Trevelyan, page 76 and paragraph 4.20 of these guidelines also refer.

Deeds of Sale (Conveyance or Transfer)

6.17, The inclusion of a specific reference to a public right of way within (or adjacent to) land being conveyed is of some evidential value. However, it should be borne in mind that the conveyance or transfer was essentially dealing with private rights of property and was not prepared with a view to defining public rights. Similarly, the inclusion in a conveyance or transfer of mutual private rights for the purchaser and others over the land is not conclusive evidence that there is no public right over it. Mutual private rights might well have been included by the conveyancer only out of abundant caution. The evidence provided by a conveyance or transfer needs to be considered along with all other relevant evidence.

6.18, Sales particulars, as opposed to the actual conveyance document, should be treated with special caution. The art of embellishment in advertising is not a newly acquired skill. Nevertheless, if a public right of way were admitted, a convincing reason for disregarding the entry would need to be provided before an Inspector discounted it entirely.

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.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB223

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