Definitive Map Orders: Consistency Guidelines
Annex 2 - Documentary Evidence Paper
by Christine Wilmore
Annex 2 Part 2 and Part 3
2. WHAT STORY DO THE DOCUMENTS TELL?
The first, and most important concept, is that individual documents are seldom conclusive Footnote 1. All the documents must be taken as a whole to give a picture. Documentary evidence must also be read in conjunction with topographical evidence. Simply by looking at the landscape an experienced eye can learn much. And in the case of both documents and topography, one must be cautious about reaching conclusions based on the absence of evidence. The lack of a track on the ground today does not mean that the route was not a well used main road 200 years ago - more than enough has happened in 200 years to provide an explanation for the loss of the evidence, even in areas not well ploughed.
Landscape analysis has developed rapidly in recent decades and there are now many books accessible to non-specialists. However it is rare, if ever, that the legal status as opposed to the existence of a physical route can be determined on the basis of such evidence. It might offer confirmatory explanations or context, but will not determine the issue.
How can we bring documents and topographical clues together? One tool used by advocates is to identify a story line. This is a short, simple, theme that links all the pieces of evidence together, so that they cease to be a list of documents and become part of an historical narrative. It makes sense of the pieces of the jigsaw. The story line must be capable of being written on no more than half a side of paper. It is a simple overview of what happened to the right of way concerned. That explanation will go beyond the basic question of status and will look at the purpose of the route. It will provide a context and an understanding. In some cases it can be very difficult to identify such a story, but in most cases, once it is found, everything falls into place.
One example will suffice.
Route D led from village B to village C, across the parish boundary. Both villages
were on chalk promontories. They were linked to two routes. The first, now
an ‘A’ road, led around the chalk downs from one headland to the
next. The shorter route, Route D, cut across the clay valley floor. The documentary
evidence showed a patchy history for route D, with long periods of disuse historically,
which could easily confuse an inspector. In early documents from parish B the
route is given a high status, but parish documents from village C make no reference.
Later, parish B falls silent, whereas parish C refers to the route. Behind
those documents was a very simple historical theme. Village B was agricultural,
with its market in C. Village B was desperate to preserve the short route to
market, market C was less concerned as long as village B continued to arrive,
the difficulties of doing so were not their problem. On inclosure, village
B became a closed parish i.e. one landowner owned almost all of the land. He
would have sold his produce in bulk, and the need for access to the local market
declined and the route ceased to be shown on maps from either parish for a
while. Later, a factory was built in village B - at which point village C became
concerned to document what was now a vital short cut to and from work.
That short story translates four days of evidence into a simply story, into which all the evidence fitted.
Stories will not always emerge, but it is worth listening not just to the individual items of evidence, but also listening for the story from which they emerge. It is vital to let the story emerge from the evidence, rather than the other way around.
1, The exceptions being some inclosure awards and certain court orders.
3 SOURCES OF DOCUMENTARY EVIDENCE
Section 32 of the Highways Act 1980 requires a court or tribunal to
"take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and shall give such weight thereto as the court or tribunal considers justified by the circumstances, including the antiquity of the tendered document, the status of the person by whom and the purpose for which it was made or compiled, and the custody in which it has been kept and from which it is produced".
This is supplemented by the Guidance Notes to Inspectors.
There are some types of document whose use is now so common that we are able to make general statements about the reliability and use of such documents. However, those general statements do not in any way replace the need to consider the particular document. They merely provide a starting point for that consideration. Each document requires individual consideration. The more information which can be given about a particular document submitted in evidence, the stronger its effect will be when determining a claim.
There are a number of types of document which are of particular significance to rights of way: the key sources. Where these exist in relation to a particular route they should always be presented: inclosure, tithe and Finance Act. Inclosure records often provide conclusive evidence of status at the date of the Award. The nature of tithe and Finance Act records make them strong evidence, of that which they purport to show. Their strong evidential value necessitates their consultation in all cases.
Beyond that lies a far wider group of sources. Some provide evidence primarily of physical rather than legal status, such as OS records. Others, such as railway and canal records will only be available sometimes; or are of lesser weight. Such documents serve to confirm the indications of the key sources in most cases, although a case can be constructed sometimes relying a consistent view in these further sources. They can provide vital aides to interpretation of the main sources.
In all cases, care should be taken if only photocopies are provided. These seldom do justice to the complexity of the cartography involved, and often being of very limited areas preclude any sort of comparison between the depiction of different routes of similar status on the map.
Before looking at a document, it is important to determine whether the document is creating/removing the legal status of a route, or is evidence of status or a change in status. Most documents are evidence of the status. They are not conclusive, and did not historically create or alter status - they merely record what the status is thought to be to the extent relevant for the purpose of the document in hand.
However there are a limited number of processes through which the legal status of a route can be changed. The final document produced in those processes has a different status - it is not merely recording an event, but is giving effect to the change. Quarter Sessions records set out the decision just taken by the court to change the status of a route; Inclosure Awards create, alter or extinguish those legal rights the Commissioners had the power to change (not necessarily all the routes within the affected area). This latter group of documents have a special status: one cannot impugn the Quarter Sessions order, as a matter of historical fact it happened and has a particular effect, no matter what the other evidence. Similarly some (but not necessarily all) inclosure awards are conclusive evidence in relation to some matters.
Part 4 on next page
April 2003
