SECTION 7
INCLOSURE AWARDS
REFERENCE MATERIAL
Statute
Pre-1801 Private Inclosure Acts
Inclosure Consolidation Act 1801
Post-1801 Local Acts (see Note below)
General Inclosure Act 1836
Inclosure Act 1845
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 and 11 of the 1801 Act
(Andrews 1993)
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
Hall v Howlett (1976) EGD 247 – setting out a new private road almost
conclusive that there was no pre-existing public road in the same position
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
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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
Meldale Ltd v Ludgershall Parish Council (2007) – an interesting exercise in
construing a pre-1801 inclosure act and award by the Adjudicator to HM
Land Registry (available o
n www.bailii.org)
Parker v Notts CC and SSEFRA (2009) – another judicial view of the
construction of a pre-1801 inclosure act and the inference that the proper
procedures were carried out.
R (oao Andrews) and Secretary of State for Environment, Food and Rural
Affairs [2015] EWCA Civ 699 (Andrews 2015) – places a purposive
interpretation upon the terminology used in section 10 of the 1801 Act
Planning Inspectorate Guidance
Rights of Way Advice Note No.11 – Guidance on
Dunlop etc
Other Publications
Articles in Section 9 (Evidence of the Existence of Highways) of the Rights
of Way Law Review.
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link to page 3
GUIDANCE
Introduction
7.1
Between 1545 and 1880 the old system in parts of England and Wales 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
18th century and early 19th 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
14, 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
14 Note that pre-1835 the term “highway” did not usually include footpaths or bridleways.
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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.
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link to page 5 link to page 5
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?
iv) What is the quality of the map showing the route? Is it at a large
scale? can its accuracy be ascertained?
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 vires15 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 vires16, 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
15
‘ultra vires’ – beyond the authority conferred by law
16
‘intra vires’ – within the relevant powers
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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 v Barnes (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 1801 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
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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 roads, bridleways, footways, ditches,
drains, (etc.)”. The Court of Appeal has held that the term ‘private’ in
section 10 qualified only ‘roads’ and was not used to qualify all other
items listed in the section. The items listed after ‘
private roads’ which
Commissioners were empowered to set out and appoint could therefore
be either public or private.
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
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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 case law
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
v Berger [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
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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
(Andrews 1993 and
Dunlop
1995) which had a major impact on the controversy concerning
interpretation of inclosure evidence. The judgement in
Andrews 1993 in
relation to section 10 of the 1801 Act was overturned by the Court of
Appeal in
Andrews 2015.
7.31 In
Andrews 1993, Schiemann J decided that:
- 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)
- 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.]
In
Andrews 2015 the Court of Appeal held that, in construing the 1801
Act as a whole and setting the Act in the context of events prior to its
enactment, a purposive approach was to be taken to the language used
in section 10 and that the powers conferred by that section included the
setting out of public bridleways and footpaths.
7.32 The Court of Appeal considered it unnecessary to address the question of
whether Commissioners could set out bridleways and footpaths at widths
of less than the 30 feet minimum specified in section 8 of the 1801 Act.
Given that there is no minimum width requirement specified in Section 10
and that the bridleways at issue in
Andrews 2015 were set out at widths of
15 feet and 10 feet respectively, it is implicit in the judgement in
Andrews
2015 that Commissioners were empowered to set out public bridleways
and footpaths at widths of less than 30 feet.
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 18th and 19th century publications,
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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
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‘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.
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