Note The evidential significance of private and local acts can be established only by careful study. Inspectors should therefore request extracts that are long enough for them to interpret quoted extracts within their context. In particular, a copy of any ‘definitions’ section contained in the Act concerned should be obtained.

Case Law

Roberts v Webster [1967] 66 LGR 298, 205 EG 103 – evidential weight of Inclosure documents

R v SSE ex parte Andrews [1993] JPL 52 [1993] – interpretation of sections 8, 10 and 11 of the 1801 Act, ‘ultra vires’ awards

Dunlop v SSE and Cambridgeshire County Council [1995] 70 P & CR 307, 94 LGR 427 – definition of a ‘private carriage road’

Buckland and Capel v SETR [2000] 1 WLR 1949, [2000] 3 All ER 205 – procedure when an award is ‘ultra vires’

Cubitt v Maxse [1873] LR 8 CP 704 – ‘setting out’, public acceptance

Logan v Burton [1826] 5 B & C 513 – ‘stopping-up’ in old enclosures

Micklethwaite v Vincent [1893] 69 LT 57 – propriety of an award not at issue after so many years

Fisons Horticulture Ltd v Bunting and others [1976] 240 EG 625 – unchallenged long-standing awards upheld

Commission for New Towns v J J Gallagher Ltd [2003] 2 P & CR – definition of a private carriage road in an inclosure award (incorporating the 1801 Act provisions) in relation to evidence of a pre-existing public carriageway

Planning Inspectorate Guidance

Rights of Way Advice Note No.11 – Guidance on Dunlop etc

Other Publications

‘Documentary Evidence’ – a paper prepared by Christine Willmore, July 2002 (see annex 2 of these Guidelines)

‘The Dunlop Judgment: A Perilous Path to Follow,’ – C Seymour, 1999 (published by The Byway and Bridleway Trust)

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

‘Inclosure Awards: public rights of way’* – C Willmore [9.3 p1 Jul 1990]

‘Inclosure Commissioners at Work’* – J Sugden [9.3 p39 May 1992]

‘Ex-parte Andrews: case note’ – C Willmore [9.3 p49 Sep 1993]

‘Inclosure Awards’* – T Hart [9.3 p57 Jan 1994]

‘What is a ’private carriage road’ – C Willmore [9.3 p73 Jul 1995]

‘Inclosure Awards: law and practice’* – D Braham [9.3 p139 Oct 2001]

The papers marked * are recommended background reading, exercising the usual caution on the weight to be given to opinions expressed by the authors.

GUIDANCE

Introduction

7.1, Between 1545 and 1880 the old system of farming scattered arable strips of land and grazing animals on common pasture was gradually replaced as landowners sought to improve the productivity of their land. The process of inclosure began by agreement between the parties concerned, although locally powerful landowners may have had significant influence on the outcome. By the early eighteenth century, a process developed by which a Private Act of Parliament could be promoted to authorise inclosure where the consent of all those with an interest was not forthcoming. The process was further refined in the nineteenth century with the passing of two main general acts, bringing together the most commonly used clauses and applying these to each local act unless otherwise stated.

7.2, The four articles noted above (*) offer detailed insights into the inclosure process and highlight the difficulties faced today in interpreting these late 18 th century and (predominantly) early 19 th century documents.

7.3, The significance to rights of way casework arises from the evidential value of inclosure awards as legal documents giving effect to the creation or extinguishment of public highways^{Footnote 1}, depending on the powers given to the Inclosure Commissioners. Awards and maps may also provide supporting evidence of other matters, such as the existence or status of public rights of way over land adjacent to but outside the awarded area.

7.4, By the time Parliament brought the inclosure process to a close in 1876, it was estimated that over 5200 Private Inclosure Acts had been passed covering almost seven million acres with even more covered by agreements. In assessing inclosure evidence, it should be remembered that the process evolved over several centuries, that different Inclosure Commissioners and surveyors were involved with different levels of expertise, operating in different parts of the country at different times with different local practices and traditions. It therefore cannot be assumed that the interpretation of one map and award can be unequivocally applied to another, even in an adjacent parish.

The Inclosure Process

7.5, Inclosure was achieved by different means during different periods, broadly (but not exclusively) in the following phases:

1500s onwards Inclosure by agreement

1600s onwards Local inclosure acts

After 1801 Local inclosure acts operating together with the provisions of the Inclosure Consolidation Act 1801 (unless expressly stated not to apply)

After 1836 Local inclosure acts operating together with the provisions of the General Inclosure Act 1836 (unless expressly stated not to apply)

After 1845 Few local acts, mostly inclosure under the Inclosure Act 1845

7.6, In general, the process involved a number of distinct stages (although each individual Act should be checked since procedural variations do occur, especially in earlier inclosures); these were:

1. The Act

2. Appointment of the Inclosure Commissioners

3. Survey (in fact this may have pre-dated the Act)

4. Advertisement

5. Division, including setting out highways (marking on the ground)

6. Hearing objections to the above

7. Allotment of lands to individuals

8. Hearing objections to the above

9. Final Award

10. Enrolment of the Award

11. Making up of highways under the supervision of a surveyor

12. Justices’ declaration that the highway was satisfactorily made up and thereafter publicly maintainable

7.7, The point at which the public acquired the right to use the highway may have arisen at the enrolment stage or, as in the case of Cubitt v Maxse 1873, upon the Justices’ declaration (which was never made in that particular case); each individual Act should be checked.

Evaluating inclosure evidence

7.8, It is impossible to fully evaluate inclosure evidence on the basis of extracts from a map and award alone. Where the process was carried out under statute, the relevant inclosure act must be examined to establish the extent of the powers available to the Inclosure Commissioners.

7.9, The facts set out in an inclosure award carry significant evidential weight (Roberts v Webster [1967]), but they are not always easy to determine. The problem often relates to the exact meaning of the words used and these matters have been the subject of prolonged debate. For example, the meaning of the word ‘private’ continues to be a much debated issue. Also of fundamental importance has been the correct interpretation of the language of Sections 8 and 10 of the 1801 Act and the applicability of Section 11.

7.10, The following approach to dealing with inclosure awards is recommended:

1. The land to be inclosed

i) Is the land in question that described in the Act?

ii) Is the route across old inclosures or across land being newly inclosed?

2. The route in question

i) How does the award describe the route? Check the width awarded, the description of the right, the route description and whether the route is said to be for the benefit of any particular persons.

ii) How is it depicted on the inclosure map? Was it a pre-existing way?

iii) How are other routes described in the award and depicted on the map?

3. The extent of the Commissioners’ powers

i) Consider the terms of the relevant act and establish the extent of the Commissioners’ powers in relation to highways and other roads. If the awarded highway in question does not fall within the scope of those powers it should be regarded as ultra vires^{Footnote 2}unless there is good evidence to show it was a pre-inclosure public highway. If it was a pre-existing way, what did the act say was to happen to these?

ii) If the setting out of the way in question was ultra vires, consider whether the way was ‘made’ (in the sense of being physically constructed), and whether there is evidence that it was subsequently used by the public. If it was, then this may be evidence from which it could be concluded that a public right of way has been dedicated and accepted.

iii) If the setting out was intra vires^{Footnote 3}, consider whether any other event was required by the act or award before the way became a highway (as distinct from before becoming maintainable at public expense), for example, a declaration by the Justices of the Peace that a carriageway had been “fully and sufficiently formed, completed, and repaired” (see 7.17 below). In the case of Cubitt v Maxse 1873 not all the required events had occurred and therefore no public rights accrued. Note that the requirement in Section 9 for a way to be “made up” applied only to public carriage roads.

7.11, Inspectors should normally accept that an award based on the 1801 Act and not shown to be ultra vires is very strong evidence of the legal status of the highways described, although in Jacombe v Turner (1892) 1QB 47 and Collis v Amphlett (1918) 1Ch 232 an inclosure award was found to be only conclusive as to matters within the Commissioners’ jurisdiction. In the 1893 case of Micklethwaite v Vincent where an inclosure award dated 1808 was at issue, the Court of Appeal held that “Even if the Commissioners in this case have acted ultra vires, it would be impossible to hold that the award at this distance of time could be impeached.”

7.12, A highway may have originated as a private road or path but later became public through express dedication or use by the public leading to presumed dedication. The case of Reynolds vBarnes (1909) 2Ch 361 is one such example. However further evidence would be required to demonstrate subsequent dedication to the public.

Inclosure by agreement

7.13, Agreements to enclose land could be informal or formal, the latter often being confirmed by a legal court and the former, by their very nature, being unlikely to be evidenced by records still existing today.

7.14, Formal inclosure agreements were usually made between the lord of the manor and the principal farmers and landowners, and were normally drawn up by a local solicitor. Without the powers to do so under an Act of Parliament, the parties concerned would have had no authority to alter existing public rights of way. However agreements may provide evidence of pre-existing highways or of dedication by the landowner (if there is corresponding evidence to show acceptance by the public).

Local inclosure acts

7.15 A Private Act of Parliament to inclose land authorised the process, defined (in broad terms) the land to be inclosed and set out the procedures to be followed by, and the powers available to, the Commissioners.

7.16 These Acts were many and varied and each must be studied to ascertain its precise terms.

Inclosure Consolidation Act 1801

7.17 In 1801 Parliament determined to simplify the process of Private Bills by standardising the clauses most frequently used so that these would be automatically incorporated into Local Acts, thus making them shorter and allowing for more efficient passage through the Parliamentary process.

7.18 Sections 8 and 9 of the Act included a set of provisions relating to public carriage roads including a minimum width requirement (30 feet) and the appointment of a surveyor to oversee the making up of the roads to a satisfactory standard followed by a declaration to that effect by the Justices. Commissioners were also empowered to stop up roads running through old enclosures but were required to obtain an order from the Justices to do so. Where a local inclosure act imported section 11 of the 1801 Act, any pre-existing roads on the lands being inclosed would be extinguished unless these had been ‘set out’ in the award by the Commissioners.

7.19 Section 10 dealt with “private ways, bridleways, footways, ditches, drains, (etc.)”, implying that there was no mechanism by which the Commissioners could set out any new public bridleways or footways. Unless the local Act itself included the relevant provisions, it seems that Commissioners had no powers to create highways less than 30 feet wide.

7.20 Section 44 of the 1801 Act applied its powers and provisions to all local Acts (passed after 2 July 1801 ) unless the latter specified otherwise. In such cases, the provisions of both the local Act and the 1801 Act should be examined.

The General Inclosure Act 1836

7.21 Even after the 1801 Act, the passage of Private Acts continued to be difficult and expensive. Pressure to provide a more efficient system resulted in the 1836 Act which authorised inclosure without an Act of Parliament, on standard terms contained in the 1836 Act, if two thirds of the landowners agreed.

The Inclosure Act 1845

7.22 The 1845 Act enabled landowners to dispense with the need for an Act of Parliament to authorise inclosure. They could proceed by agreement under the 1836 Act under the direction of an independent national body of Commissioners operating a code agreed by Parliament. Sections 62–68 of the 1845 Act set out similar provisions to the 1801 Act although the minimum width requirements accorded with the Highways Act 1835: 20 feet wide for a new public cartway, 8 feet for a public horseway and 3 feet for a public footway beside a carriageway or cartway.

7.23 The Act required the Inclosure Commissioners to produce an Annual General Report for the approval of the Principal Secretary of State and both Houses of Parliament. The schedules published at the end of these Annual Reports itemised the progress of each inclosure, giving the date when each key stage was confirmed by the Commissioners.

7.24 Between 1845 and 1852 the Inclosure Commissioners could authorise the inclosure of certain lands without first obtaining the prior consent of Parliament; such inclosures are not included in the same Schedules attached to the Annual Reports but are listed separately as ‘Cases Authorised by the Inclosure Commissioners not requiring the previous Authority of Parliament’. However this practice ceased with the passing of an “Act to amend and further extend Acts of Inclosure, Exchange and Improvement of Land” in 1852.

Presumption of Regularity (paragraph 2.20 refers)

7.25 One consequence of the complexity of the inclosure process is that there may not be evidence to confirm that each stage in the process was completed in its entirety. It is, for example, frequently the case that records of declarations by Justices of the Peace are not available. Although an Inspector may usually rely on a presumption that the correct procedures were followed at the time unless there is evidence to the contrary, this cannot provide a remedy where it is reasonably certain that the legal requirements were not complied with. However an omission may not always be fatal to the case and it might be appropriate to consider the possibility that public acceptance of an awarded highway, if supported by the evidence, occurred nevertheless.

7.26 The cases of Micklethwaite v Vincent 1893 and Fisons Horticulture Ltd v Bunting and others 1976 show that the Courts generally uphold long-standing awards that were not challenged at the time.

Recent caselaw

7.27, Inclosure awards can be evidence of the existence, or repute, of highways at the time they were made. Two relatively modern judgments are useful though previous authority establishes the point (for example, R vBerger [1894] 1 QB 82).

7.28, First, in Roberts v Webster (1967) 66 LGR 298, Widgery J (as he then was) considered an 1859 inclosure award made under the Inclosure Act 1845. The case concerned an appeal against a decision of the justices at the quarter sessions which had involved them deciding whether a highway existed before 1835 so as to decide whether the highway was publicly maintainable. The justices’ decision was based on the award as evidence that the highway existed in 1859. Widgery J stated:

“It seems to me that the inclosure award of 1859 is very powerful evidence indeed to support the view that Pipers Lane at that time was reputed to be a public highway....If they (the justices) concluded, as they did, that the inclosure award was such a powerful piece of evidence that they should infer from it that a highway existed over this road in 1859, I can see no fault in their doing so. Indeed, speaking for myself, I am prepared to say that had I been sitting with the justices at quarter sessions, I feel sure that I should have adopted the same view.”

7.29, Second, Hall v Howlett (1976) EGD 247, the question was whether an overgrown lane was an obstructed public highway. Evidence was given that under an inclosure award a “private carriage road and driftway” was created over the line of the lane in question. Widgery CJ said:

“Then we were shown what on any view must be an important matter, namely an inclosure award.... I should have thought that if the Commissioners set out a new private road in an inclosure award it is almost conclusive that the Commissioners did not think that there was already a public highway there, because there is no basis to establish and lay out a new private road over existing public highway. I think this is a point of considerable weight to go into the scales when those scales are operated by the tribunal of fact concerned with this matter.”

However, see the more recent case of Gallagher 2002 below.

7.30, There were two judgments in the 1990s (Andrews1993 and Dunlop 1995) which had a major impact on the controversy concerning interpretation of inclosure evidence. However, they have not extinguished the debate which is discussed in two of the RWLR articles listed above, ‘Ex parte Andrews’ and ‘What is a private carriage road.’

7.31, In Andrews, Schiemann J decided that:

the 1801 Act did not give Commissioners acting under that Act the power to set out new public carriage roads and highways of less than 30 feet in width over the land being inclosed. Such a power must be found in the local acts, otherwise an awarded carriageway less than 30 feet wide was ultra vires.

the power in Section 8 ‘to divert, turn and stop up ....’ was an ancillary power to be exercised if existing highways interfered with the proper functioning of the new highway system

existing public footpaths across newly enclosed land (which are not specifically mentioned in Sections 8 and 10), being in the category “old and accustomed roads” (within the meaning of the proviso to Section 8) are not stopped up by the award. (Schiemann J also set the Logan v Burton [1826] judgment in context)

in his judgement “It is implicit in the minimum width provision (in Section 8) that it is not intended to give an express power to create public rights of way on foot alone, although there is nothing to prevent the creation of such rights as part of a general right of passage”.

it was inappropriate to rule on the ‘setting out’ issue.

[Note: although not specifically mentioned, it may be reasonable to assume Schiemann J’s references to footpaths also apply to bridleways.]

7.32 An Inspector minded to decide that an awarded highway is ‘ultra vires’ should be guided by Kay J’s direction in the Buckland and Capel case that the lack of an appropriate power by Commissioners to create new highways is not necessarily fatal to the possibility that the public may have acquired a right of way by other means.

7.33 In Dunlop in 1995, Sedley J decided that the words ‘private carriage road’ were deliberately used in the [Glatton with Holme] inclosure award as a term of art distinguishing the particular road according to the extent of the particular rights over it from the public carriage roads on which all subjects enjoyed right of vehicular passage. Earlier in the judgment, as a conclusion arising from his study of 18 th and 19 th century publications, Sedley J had concluded “This history furnished compelling evidence for the construction advanced on the applicants behalf, namely, that both in the Act of 1801 and the Glatton with Holme Inclosure Award of 1820 public and private carriageway roads were deliberately distinguished, and that the distinction signified differential rights of user, embracing all the monarch’s subjects in the former case and a limited if unspecified class in the latter.”

7.34 This judgment has been strongly criticised (see below) and some seek to limit its application. In the latter context it has been argued that ... [the judgment] does not, and indeed could not, offer a conclusive interpretation to be used on all occasions. Other documents, or even the same document given different evidence, may give rise to a different meaning for the same phrase [private carriage road]. In any event such investigations at best can only decide the legal status of the actual award subject to the decision. This is an expert opinion, but nevertheless it may do less than full justice to Sedley J’s reasoning (see Section 3 ‘Case Law’ for the argument in principle). The language of the judgment permits only one interpretation of the words ‘public’ and ‘private’ when used to describe the status of a carriage road. The terms refer to the lawful class of user. This interpretation applies equally to both the 1801 General Act and the Glatton with Holme Award 1820. Two rebuttable inferences appear to arise:

The terms ‘public’ and ‘private’, when used in the 1801 General Act, have the same distinction in respect of any other highway so described in it e.g. private road, public bridleway etc. It would be perverse to argue otherwise.

The terms when used in any other local acts which derive from the 1801 General Act probably have the same meaning as that in the Glatton with Holme Award.

7.35 There is a strongly held opinion that these inferences are wrong because the judgment itself is wrong. It is argued by some that the terms ‘public’ and ‘private’ refer to maintenance responsibilities, since maintenance rather than rights dominated highway disputes during the inclosure period. However, this has not been tested in the Courts and Inspectors should look very carefully at arguments concerning the meaning of the words ‘public’ and ‘private’, particularly in the context of the inclosure award in question.

7.36 There is also an assertion that the absence of definition in an award of the class of user entitled to use a private carriage road is evidence of a public right. For the reasons given by Sedley J in his judgment, this is a self-defeating argument.

7.37 The use of the term ‘private’ in a local act does not exclude the possibility that some form of public right existed. That may be obvious from the language of the award itself, e.g. the description of a highway as a ‘public bridleway and driftway and private carriage road.’ In some instances it is explicit in the award that the public have full rights of use over the ‘private’ road. In other cases it may be that the class of authorised vehicular user has, in subsequent case law, been held to constitute ‘the public’ (see guidance on ‘Dedication’). In yet further cases, there may possibly be evidence of subsequent user unrelated to the language of the award. Nonetheless, despite all these possibilities, when the term ‘private carriage road’ is used in the 1801 Act or in a local act, the term of itself does not confer or infer a public right of passage by vehicle.

7.38 Despite the criticism of this judgment, Inspectors should follow it unless and until a Court holds otherwise.

7.39 In Gallagher in 2002 the case concerned the status of a lane claimed to be a public vehicular highway but which was shown in an inclosure award of 1824 as a “private carriage road”. Neuberger J accepted other evidence was sufficient to show that the route was a public carriageway prior to (and since) the date of the award and “in the light of the provisions of the Inclosure Act 1801, that, if (the) lane was a public carriageway at that time, the Inclosure Award cannot have deprived it of that status.” However he did not dissent from the interpretation of “private carriage road” adopted by Sedley J in the Dunlop case, that it meant and still means “a private road (as opposed to a public highway) for carriages.”

Concluding Comment

7.40 Inclosure documents can provide conclusive evidence of public rights of way. However, the lack of consistency between different maps and awards with their corresponding Act(s) of Parliament, means that every case must be examined individually in the context of all the local circumstances and the prescribed details of the process, all of which may vary.

Note that pre-1835 the term “highway” did not usually include footpaths or bridleways.
‘ultra vires’ – beyond the authority conferred by law
‘intra vires’ – within the relevant powers

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