My main aim in this paper is to consider the interpretation and use of historical evidence of rights of way at public inquiry, setting in place a general structure and some basic approaches before we turn to inclosure.

From the start we need to hold onto the reason for what, at times, seems an excessive level of historical analysis. In many fields of activity public rights can be lost by disuse. Public rights of way are unique for "It is an established maxim ? once a highway, always a highway; for the public cannot release their rights, and there is no extinctive prescription."

If it can be established that a public right of way existed at any past date, that right continues today. The right cannot be lost by disuse. It can only cease to exist if the public right to use the route was lawfully removed: until recently that required an order from the justices of the peace. Lack of modern user evidence does not obstruct such claims.

The massive expansion of modern tarmac and the coming of the motor vehicle had a major impact in ‘freezing’ the rights of way hierarchy. Those routes seen as relatively important at the time the tarmac decision was taken remain tarmaced; those seen as relatively unimportant at that point in time may now appear to be nothing more than muddy farm access tracks. Yet at that time those decisions were taken, they might have both had the same legal status, it just happened that one was important at the time and another was not. The Definitive Map process requires all those involved to get behind such accidents of history to explore true status: however welcome or inconvenient the conclusions.

Quite apart from the objective of correctly recording the status of all rights of way on the Definitive Map, it can be important to trace correct historical designations to save money. For example, it is by no means uncommon to find that an application to place a route on the definitive map as a footpath based on twenty years modern use is actually a reassertion of a much older bridleway or byway which fell into disuse but because of the construction of a new development has found a modern need. In such cases it can be cost effective to get the route correctly recorded first time round, rather than record it as a footpath and possibly face legal problems at a future date; or becoming involved in the costly process of creation agreements/orders.

The original idea of providing a once and for all, accurate, record of public rights, as envisaged in the 1949 Act seems amazing in its naivety now. Fifty years on, we are nowhere near achieving an accurate record: if anything we are more aware than ever of the inaccuracy of records and the impossibility of achieving accuracy. That impossibility is important: there are questions we cannot answer, however thorough the research. This is a process of ‘best evidence’ - the pursuit of ever more peripheral sources of evidence in the hopes of finding a ‘trump card’ to prove, or disprove a claim is a problem. Whilst due respect must be paid to such evidence, we need to ensure we distinguish between those sources which can give considerable help and those which are of little weight: quality, not quantity of evidence matters - and in particular the interaction of sources over a period of time.

There is now a fairly high degree of shared understanding and methodology between inspectors, authorities, objectors and user groups in their approach to such evidence: the Rights of Way Law Review for example providing a forum for the development and dissemination of expertise. For a while amenity and landowner representatives seemed largely outside of this debate, reacting on a case by case basis, but these too have now developed common networks of information, with key activists turning up at inquiries all over the Region or country. There are some commonalities of interpretation, but there are some differences of interpretation between user and landowner representatives which occur repeatedly until resolved in court (or even despite being resolved in court). Nonetheless, it is still all too common to find well settled points being re-argued ab initio.

These differences seem to focus not upon the evidence itself, but upon the interpretation of that evidence. In approaching interpretation it can be helpful to identify

(a) On which issues have the courts ruled?
On these issues, however convincing the arguments to the contrary might be, the court’s approach binds until overruled by another court.

(b) On which issues is there general agreement?
A novel argument could upset that consensus but care is needed

(c) Which issues are still ‘at large’?
Here there is scope for argument ab initio about the interpretation of the evidence.

With research moving into ever greater proliferation of potential documentary sources and increased confusion as to the weight to be attached to particular sources, what started as a legitimate foray into a number of critical historical sources has become an obscure and resource intensive process, where the marginal costs of researching an extra piece of evidence is wholly out of proportion to the light it sheds on the problem, and we have lost sight of the purpose of the process.

However obscure the evidence, it is admissible if relevant and Inspectors are limited in the messages which can be conveyed via decision letters, for fear of judicial review. The result can be everyone wastes considerable periods of time (and money) listening to pretty marginal evidence, and the decision letter has to confirm that the Inspector has paid due regard to it.

With this growth in the range and complexity of evidence tendered, it is not possible to provide a complete guide to approaching documentary sources. Instead we need to return to basics, to refresh our memories and share experience of how we evaluate documents. That way we can approach documents of a kind new to us, with the confidence that we have the key historical skills to analyze them.

Papers today from independent specialists try to introduce the key issues affecting the major sources of documentary evidence. In this initial session, however, we will explore the underlying principles: how can we distinguish those sources which are likely to be saying something relevant and reliable, from those which are peripheral and potentially unreliable? How can we approach the analysis of a source of evidence which is new to us?

Part 2 and 3 on Next Page

April 2003

Definitive Map Orders: Consistency Guidelines

Annex 2 - Documentary Evidence Paper by Christine Wilmore

Annex 2 Part 1

1. ROLE OF HISTORICAL EVIDENCE

Annex 2 - Documentary Evidence Paper
by Christine Wilmore