Definitive Map Orders: Consistency Guidelines
Annex 2 - Documentary Evidence Paper
by Christine Wilmore
Annex 2 Part 6
6 INTERPRETING SOURCES
Published papers, particularly in Rights of Way Law Review consider the key document types, setting out both agreed approaches and testing hypotheses, but when approaching less commonly presented documents we need to be alert to some basic techniques in reading documents. A number of general principles should be applied when evaluating documents and other historical material, notably an understanding of the context in which the maps and documents were compiled. Always be cautious of short extracts from documents: things can easily be taken out of context. Information can only be properly evaluated when it has a context – and that context is the rest of the document. Equally, beware of documents taken out of the context of their process – for example an Inclosure Award tendered without its parent Act.
Historians can offer advice as to how to interpret documents for the purposes of historical research, but the amount of evidence required for an academic historian to assert something is not necessarily the same as that required for an Inspector to reach a conclusion. Historians also have the luxury of being able to conclude that there is insufficient evidence to determine an issue, although the evidence suggests a possible conclusion which merits further research. Inspectors have to reach a decision - yet sometimes the reality will be that the evidence is inconclusive. History is not like a detective novel: where there is always an answer if one only looks hard enough. Sometimes there simply is no historical answer: either there was an answer at the time, but we have lost it; or there never was an answer. Put bluntly sometimes today we ask questions that historically were never asked and cannot now be answered.
If we are to understand what help can be taken from history, a starting point must be the removal of modern presumptions about travel. A common assertion at inquiries is that ‘vehicles could not have used this route, it’s too steep or too muddy’. Evidence of the gradient of Porlock Hill or Robin Hood’s Bay are tendered in rebuttal, and the whole thing becomes a mess. Sedley J in the Divisional Court Footnote 2 commented on the nature of travel 200 years ago. He rejected the submission in that case that steepness of a way, making it impassable in bad weather, was evidence the route was not a public vehicular route:
“The reality would have been that a vehicle setting out on this road, as on most roads at the time, had to take its chance on the state of the road and might find itself forced to turn back”.
That was indeed the very reason for the success of the road pricing system known as turnpikes.
So, in embarking upon the analysis of documentary evidence it is important to start from what the people at the time of the document would have taken as normal conduct, not what we today would assume.
One must then ask: Why, What, Who and When? Why was it compiled? What did they do to compile it? Who compiled it? When was it compiled.
6.1 WHY was the document compiled ?
The purpose of the process, and of the particular document within that
process is important. Never go straight to the map and accompanying statements,
whatever the evidence. Consider the type of document. In the case of
tithe, is one dealing with a first or second class map? In the case of
inclosure awards, what sort of award is it? What Act was it made under
? Are there any special local provisions? Compare the right of way in
question, with the way a path of known status is recorded. Orientate
yourself to the map and its conventions. What were the consequences of
falsification?
In the case of tithe maps, for example, withholding or falsifying evidence
was an offence (albeit a misdemeanour).
Lord Denning has said of the tithe map
"It is of great value. It was prepared under statutory authority by the
Tithe Commissioners, with great care and accuracy, to show all cultivated land,
arable and pasture, because tithe was payable on land which produced crops. It
also had to show waste land and definite roads which did not produce crops, because
tithe was not payable on these. If a road passed over a man's land he would naturally
require it to be shown, so as not to pay tithe on it. So on the question whether
there was a road at the specific place the tithe map was of much importance". Footnote 3
Was recording the existence or status of a public highway of significance
to the process ? This adds considerable weight. In some cases the exact
status of the way was important, for example in railway proposals,
it affected the obligation to bridge. In other cases the existence
of a public right, not its exact status mattered. Sometimes one form
of right was important enough to be mapped, whilst others were not.
Is the document conclusive evidence for any purpose? Quarter Sessions records are conclusive evidence of those matters the court actually decided, but are not conclusive in relation to other matters. Inclosure and tithe records are conclusive for certain statutory purposes, but the scope of conclusivity depends on the particular statute. If a map is conclusive for a purpose, a highway authority must accept it as conclusive evidence of that fact for that purpose at the date of the document; the question is then whether something has happened subsequently to change things or whether the map award lacks sufficient clarity to establish what it is conclusive of in the first place. Once a document is deemed conclusive in law, one cannot dispute that conclusivity simply by saying historical information shows the entire process was rather inaccurate.
6.2 WHAT was done to compile it?
Check the recording requirements. What scales and conventions were applied
to the mapping and recording processes? Was the process based upon a new survey,
or on updating of an older map? To what standards was that earlier map drawn?
Was there provision for correcting errors? Was there an external check on accuracy?
Distinguishing between accurate mapping and illustrative mapping. A map can be relatively poor in technical terms, inaccurate in its lengths or land measures, but can still be very accurate in relation to the location and status of a public right of way.
It is rare to only have a map, generally there is a document explaining the map, and there may also be bundles of working papers. Always cross reference between drawings, documents and bundles of papers where available.
Public participation strengthens the value of evidence. Were the public able to find out what was going on? Was there a procedure for objecting? Where would the balance of public interest have laid?
Lord Denning explained the relevance of these process questions in the case of tithe maps:
"In the first place, the document is a public document: it is prepared under the provisions contained in the Tithe Commutation Act of 1836. The Commissioners under that Act have power to examine witnesses on oath. An agreement may be come to and ratified by the Commissioners as to the amount of tithe rent?charge to be apportioned on various lands within the parish. Such parts of the land as are not tithable are matters which concern all the parish. It is certainly to the interest of any one who has land part of which is not tithable to put forward is claim and establish it if he can; and the question in this case is whether the particular piece of land over which a road is said to run is a road or not. If it was a road it would not be tithable, and if it is not a road then it would be tithable as part of the land;.... It is therefore one of the matters material to the preparation of the award and the plan. It is also a matter of publicity, and I find Stuart V.C. in the case of Giffard v Williams referring to a Tithe Commissioner's award and map, says:"But the Act of Parliament requires these things to be done, not in a corner, but upon notice in all the most public places so that it is impossible to treat this document otherwise than as a public one, and as public evidence that at that time the owner of the undivided moiety of this field was aware of the facts." Footnote 4
If a person knows a decision is being made, adverse to his interest, has an opportunity to seek its correction and does not do so, in the absence of good reason, one can conclude he accepted it as correct. Thus, where an inclosure award stated land was to be laid out as a highway and not form part of an allotment, this was against the interests not only of adjoining allottees, but also of all the people interested in the share out of the common lands. Where details of proposals were public, with public opportunity to comment, the law will presume that they made sure all necessary procedures were complied with.
Publicity at the time the document was compiled, going beyond persons with a legal 'interest' to the public at large further strengthens the resulting evidence. Whilst many could not read the documents, sufficient would have done so for injustices to pass by word of mouth. Errors are unlikely to have gone undetected, albeit the public may not have been in a position to use their opportunities to challenge the accuracy of documents. Consequently, whilst publicity can help, at least in showing that landowners affected must have known what was going on, for all these documents one cannot hold a lack of public right of way in the records against the public. Only a few people would have been able to protect the public right against the might of local landowners. Breach of the publicity and consultation procedures generally did not invalidate the processes, even if challenged at the time in a court.
However, it cannot be assumed that publicity results in accurate let alone comprehensive recording of public rights. The inclosure process was public, often highly controversial. As Walton J said
"In the age in which those Acts operated there could be no doubt that publicity for the actions of the commissioners would be rife. The countryside would be ablaze with tales of injustices they had done."
Being aware of error was one thing, getting it corrected quite another. A whole host of practical issues and study of historical documentation in individual parishes confirm that very often the small landowners, those with only grazing rights or the property-less had no realistic prospect of getting their objections heard or errors corrected. Publicity, even knowledge of content, does not mean one can assume errors were identified let alone rectified.
6.3 WHO compiled it?
What were the consequences for the compiler's rights/duties of including / not including a public right of way ? What were the consequences for the rights / duties of others ?
Declarations against the compiler's interests will always be given more weight than declarations in the compiler's interests. The law firmly believes people do not lightly assert things against their interest.
The sanctions for falsifying evidence also affect the weight accorded
to evidence. The prospects of falsification of evidence depend partly
on the scope for public complaint about errors, or for external checking;
but they also depend partly upon the sanction for detected falsification.
The sanction may simply have been that the record would be corrected.
In other cases, a criminal sanction may apply. A comparison of inclosure
and Finance Act maps illustrates this. The inclosure map process was
public, with ample scope for public complaint about inaccuracies, but
the sanction for falsification of evidence was simply that the record
would be corrected. In contrast, the Finance Act process was a private
matter between the individual and the Inland Revenue, but the lack of
public participation is made up for by the criminal sanctions available
if a willful falsification of evidence was detected.
6.4. WHEN was it compiled?
Documents are only evidence of what people thought or what existed at
the time they were compiled. It can be dangerous to treat a document
compiled at one date as evidence of conditions on the ground at a different
date. A seventeenth century map cannot be assumed to show conditions
on the ground in 1820, any more than a map from the 1860 can be assumed
to show what is on the ground today. It might be the same, but it might
not. It can be tempting to draw inferences from an absence of any reason
for change, but even this must be treated with caution.
That is not to say documents can only illuminate one point in time, if
a route is similarly shown in documents from 1760, 1780, 1880 and 1820,
it is pretty safe to conclude that the route effectively remained the
same throughout that period.
A growing tendency is to use early conveyancing documents to seek to prove the position on the eve of enclosure. This can be dangerous. Such documents seldom have maps, so all work depends on the identification of named features in the deeds. This process of associating names with features on far later maps is fraught with difficulty: a field may have been called ‘dingle’ in a 1640 conveyance, but that does not mean it is the same field as the one called ‘dingle’ in 1800. Names do migrate. It might be, but it might not be.
6.5 Variability
(I) Relativity in terminology and attitudes
Terminology, priorities and attitudes have changed greatly over 200 years. To understand the weight to be attached to a document of 1800, one must put oneself in the position of a person in 1800. Given the process, given the circumstances, given the time, would this information have been recorded carefully, can it be relied upon, what did people mean?
This problems of interpretation even applies to statutes. The 2001 cannons of interpretation cannot be applied to the 1801 Inclosure Act, let alone the many private Acts promoting railways, canals or individual inclosures.
The Guidance on DMOs (the Consistency Document) includes a useful analysis of commonly found expressions and extracts from statutory definitions. This is a starting point. As draftsmen managed to include different definitions in different statutes it is important not to read definitions across from one Act to another: and to recognize that in non-statutory documents the consistency with which words are used varies.. Aside from the statutory definitions the Guidance offers a useful starting point from which to check what this particular author meant.
Terminology has changed even in 50 years, since the original definitive map process. To understand why something was put on the definitive map requires one to read the documents of guidance which parish council used to complete their report forms. Only then can one understand what a council might have thought it was doing when it called something a RUPP, or chose to claim it only as a footpath.
Attitudes have also changed. In 2001 we would expect to find the public urging that a public right of way should be mapped, and a landowner arguing against this. Prior to 1888 the public had a strong interest in arguing the way was private, to avoid the burden of maintaining it falling upon the local community, whilst may sometimes have benefited from arguing a route was public - either in relation to taxation or liability to maintain.
(ii)Variation with area, compiler and document
Terminology was not standardised in documents over 100 years ago, varying from county to county, and in some cases from one compiler of a document to another Footnote 5. Different people used different words for the same thing - even different words in the same document. So care is needed in working out the prevailing jargon.
Inclosure commissioners are typical, adopting different conventions to modern ones, and lacking consistency. As Michael Turner QC said Footnote 6:
"It is at once apparent that the commissioners were not accustomed to the legal convention that any description, if intended to refer to an identical idea or feature, ought to be expressed in identical terms."
The weight also depends upon the individual document. In the case of
official documents one should start from the view that they were properly
prepared, unless evidence indicates to the contrary, but being properly
prepared means properly prepared according to the standards of the time.
It does not mean adopting modern cannons of interpretation or terminology.
6.6 Compliance with procedures in particular cases
(I) The significance of procedural compliance
The evidential value of a document will often depend not on the document itself, but upon what was actually done. Were the legal procedures complied with?
Often long and complex procedures were required by law. At the time compliance with some procedures was mandatory. Failure to comply could mean administrative rejection or judicial disregard. It depended both on the particular process, and the role of the procedure.
"It is no use merely looking at the form of words which were
used to decide whether requirements in an Act were mandatory or directory.
One must look at the whole setting of the Act to answer the question
whether compliance with the particular requirements was so fundamental
to the purpose which the Act was designed to secure that non-compliance
rendered what was done under it null and void." Footnote 7
Modern courts are willing to presume that all legal requirements were
complied with, to avoid upsetting ancient applecarts, or will hold
the procedural requirements to be directory not mandatory. As Walton
J said in 1976, in relation to inclosure awards, "In my opinion,
the courts will lend their weight to uphold longstanding awards if
they were unchallenged at the time" Footnote 8. By doing so it discourages
people from reopening questions of fact from 150 years ago. One cannot
possibly reopen issues of what was or was not done 150 years ago. If
a public document has remained unchallenged for 80 years or more, one
can presume everything was done properly. Evidence of the absence of
action is not easy to find at the best of times. It will be rare indeed
for there to be sufficient positive evidence to displace that presumption
and conclude that particular steps were not taken 150 years ago.
(ii) Lack of evidence about procedural compliance
So far, I have considered the evidential effect of conduct which can be ascertained. But often a modern tribunal will simply not be able to ascertain what happened a century and a half ago. Even at the time, many things were not written down. Some things were so well known locally as not to need writing down, everyone knew where the main roads were, for example. Nearly two hundred years later, such information may be lost. The law has to provide a means for filling those gaps.
We are not here dealing with the situation where there is evidence that a particular procedure was NOT followed, rather we are dealing with a lack of evidence. Many of the best known nineteenth century cases, are actually cases were there was evidence that something had not been done. Today we are unlikely to be able to show something was not done - rather we will simply be unable to show something was done. In the absence of evidence there are a range of legal presumptions which may assist.
The most useful presumption will be: Omnia praesumuntur rite esse acta. Translated this means "everything is presumed to be done which should have been done". Thus, for example in the Somerset case Footnote 9, the judge said "the Inclosure Act procedure should be presumed to have been completed ....”. This legal presumptions reverse the burden of proof. Once the preliminary fact that there was an attempt to comply with the procedures (ie the documentary evidence itself) is shown, the law presumes something to be the case, unless the contrary is shown.
This presumption only applies to fill an evidential gap. It cannot be used to cure a total lack of action, or where the record is wholly unambiguous, so for example in R v East Hagbourne Footnote 10 the presumption was of no avail as it was agreed that no steps had been taken towards implementing the provision. In Cubitt v Maxse Footnote 11 the court took the view that the way had NOT been formed and had NOT been used. It was not a case where there was "no evidence" and one was relying on inference to fill the gaps, there must have been actual evidence of inaction. Such positive evidence is unlikely to emerge today, one is more likely to be in the situation found in Turner v Ringwood Highway Board Footnote 12 , where there was no evidence about what had been done to lay a road out. The court concluded that, in the absence of evidence to the contrary, the road had been completely formed.
In those situations where the evidence shows there was a failure to comply with procedures, as in Cubitt v Maxse Footnote 13, this does not rule out the possibility that the public have acquired a right of way by other means.
(iii) Once a highway, always a highway
The presumption that where one item is expressly mentioned Footnote 14, silence on others means they are excluded has no place in the context of documentary evidence. In the absence of evidence that procedures to extinguish a highway were carried out, the right of way is presumed to continue, even if omitted from the map Footnote 15. The law strongly holds the view that once something is a highway it is always a highway, unless some legal event causing the highway to cease to exist is actually shown to have occurred Footnote 16.
The fact that one public right of way is specified in the award cannot mean that others not mentioned do not exist, it merely means they were not shown, for any one of a number of reasons. Landowners or map compilers had ample reason for seeking to suppress public rights of way. If evidence can be found to explain the absence, that is useful, but even without such evidence, the failure of a map to mention a right of way is generally explicable. For the same reason, if there is any evidence that a right of way had a particular status prior to a document, but the document shows it at a lower status, the courts will not presume the higher status to be extinguished, without evidence showing the appropriate legal requirement has been fulfilled.
Exclusion from a map is not necessarily strong evidence against the existence of a right of way, although it has some evidential value. In the context of tithe awards, for example, Lord Denning commented that it may put an evidential burden upon the other side, for if it were a public right of way:
" the area that it occupied was not in strictness tithable, and such area should have been shown upon the map. It may of course be said that its area would have been so small that it would not have been practicable to exclude it from the tithable area, and that this is the explanation of its omission. But, even so, it might reasonably be expected that the Commissioners would have shown it upon the map in a way that while indicating its existence, would also indicate that its area was negligible for the purpose of computing the tithable area." Footnote 17
2, Dunlop v Secretary of State for the Environment and Cambridgeshire
Couty Council (1995)
3, Fisons Horticulture Ltd v Bunting (1976) 240 EG 625
4, Fishons Horticulture Ltd v Bunting (1976) 240 EG 625
5,
Dunlop v Secretary of State for the Environment and Cambridgeshire
Couty Council (1995)
6, Sitting as a High Court judge in Somerset C.C v Scriven (1985)
7, Fisons Horticulture Ltd v Bunting (1976) 240 EG 625
8, Fisons Horticulture Ltd v Bunting (1976) 240 EG 625
9, Supra
10, (1859) L.J. (M.C.) 71
11, Supra
12, LR 9 Eq 418
13, Buckland and Capel [2000] 4 PLR 16
14, Expressio unius est exclusio alterius
15, R v Inhabitants of Cricklade (1850) 14 QB 735:
16, Dawes v Hawkins (1860) (supra)
17, Fisons Horticulture Ltd v Bunting (1976) 240 EG 625
Part 7 on Next Page
April 2003
