Dunlop and the meaning of Private Carriage Roads€¦ · Dunlop and the meaning of Private Carriage Roads Dunlop v Secretary of State for the Environment and Cambridgeshire County

Dunlop and the meaning of private roads

Joanna Roseff July 2018 1

Dunlop and the meaning of Private Carriage Roads

Dunlop v Secretary of State for the Environment and Cambridgeshire County Council,

Queen’s Bench Division (Sedley J), 29 March 1995. 70 P. & C.R. 307, 94 LGR 427

Dunlop and the meaning of Private Carriage Roads ............................................................................... 1

1 Introduction ................................................................................................................................ 1

2 The arguments considered ......................................................................................................... 2

3 The legal history – objectors’ case .............................................................................................. 3

4 Private as meaning absence of official status – supporters’ case .............................................. 4

5 Private applied to carriage leading to reduced repair of roads – supporters’ case ................... 5

6 Conclusion of the court ............................................................................................................... 6

7 Effect of Dunlop on DMMO applications .................................................................................... 7

1 Introduction

1.1 Dunlop was a judicial review of an order for a BOAT, made as a consequence of the RUPP

review, which was brought by objectors to the order.

1.2 The way in question had been awarded in two parts in the Glatton with Holme Inclosure

Award, called Mill Road and Denton Road, which were each described in the award as a

“public Bridle and Drift road and footpath and private Carriage Road”.

1.3 These two contiguous ways formed a single road between Denton and the mill near Glatton

within the uninclosed part of the parish of Glatton with Holme that continued beyond the

boundaries of the award between fields to Glatton.

1.4 This single road was shown on Hausted's map of 1613 and Jeffry's map of 1766 joining the two

communities of Denton and Glatton so it existed prior to the inclosure.

1.5 The Inspector’s Decision Letter at issue in this case, showed that he had concluded that in the

Glatton with Holme award, the term “private carriage road and driftway” applied to a “public

road of lower status than a ‘public carriage road and highway’”.

1.6 The objectors to the order argued that this was wrong and, using case reports and legal texts

from the period 1628 – 1835, examined the legal user of the ways called via regia and

communis strata in ancient common law, the Latin showing the mediaeval origin of the terms.

1.7 They argued that communis strata might properly be called private, meaning restricted as to

user, even though the natural translation is common road or street.

1.8 Finally they proposed that, by the beginning of C19, the term ‘common road’ meant the same

thing as ‘highway’, both terms meaning ‘public road’, whereas the term ‘private road’ meant a

road restricted as to user.



1.9 By establishing what these terms meant in general usage, it was hoped to shed some light on

the general meaning of the term ‘private road’ as used in the General Inclosure Act, 1801 (IA

1801), and more particularly, the term ‘private carriage road’, as used in the Glatton with

Holme Inclosure Award, 1820.

1.10 This paper is only concerned with the parts of this case that purport to show what is meant by

the term ‘private carriage road’ in an inclosure award.

1.11 A criticism of its shortcomings in considering, or rather, not considering, more particular

relevant evidence, such as the local inclosure act, which varied the terms of the IA 1801 in

respect of the pre-existing roads, has been written by Colin Seymour and is published on the

BBT website at http://www.bywayandbridleway.net/the-seymour-papers/.

2 The arguments considered

2.1 There were three main strands to the arguments put forward as to the meaning of ‘private’

when applied to roads in general.

2.2 The first, from the objectors, was a legal history based on ancient case law and legal texts,

which purported to show that historically there had existed two classes of way, one of which

was open to the whole public, while the other was restricted to a certain local user.

2.3 This history purported to show that in the 17th and early 18th centuries, the ‘restricted as to

user roads’ were called ‘private’ or ‘common’ but by the time of the award in 1820,

terminology had changed so that the term ‘common’ was conflated with highway and

‘private’ meant a restriction on the authorised user.

2.4 The second, from the supporters, was that the word ‘private’ signified an absence of official

status; examples given were a ‘private soldier’, ‘private citizen’ or ‘private member of

Parliament’, and that it meant ‘local’ or ‘low’, which, in essence, was the meaning relied on by

the Inspector.

2.5 The third, also from the supporters, was that ‘private’ qualified the word ‘carriage’ and not

‘road’, a view put forward by Christine Willmore, in her article, Inclosure Awards: Public Rights

of Way (Rights of Way Law Review, July 1990, s 9.3, p1 - 15).

2.6 It was argued that a consequence of “the local roads [not being] available to public carriages”

would have been a reduction in the “significant (and often deeply unpopular) repair

obligations” that applied to the public carriage roads.

2.7 A summary of the main points of each argument, and the documents supporting it, is given

below.

http://www.bywayandbridleway.net/the-seymour-papers/



3 The legal history – objectors’ case

3.1 This began with a quote (Co Lit 56a) from Coke on Littleton, 1628, by Lord Coke, who,

referring to Fleta and Bracton as his source, classified ways firstly according to mode of user,

as being footpaths, bridleways and cartways, and then subdivided the cartways into:

“Regia via the King’s highway for all men, et communis strata, belonging to a city or

towne, or between neighbours and neighbours”.

3.2 It was proposed on behalf of those opposed to the order that:

[T]he distinction between carriageways open to the whole of the public and carriageways

for the use of a limited section of the public, for example the inhabitants of a town or

parish, has long been known to the law.

3.3 The argument continued:

The first, the King's highway, corresponds with a public carriage road; the second with a

local road which is private in the sense that not everybody has the right to use it for all

purposes.

3.4 The source of the quotation from Coke was Pratt and MacKenzie’s Law of Highways (21st

edition, 1967, p 11).

3.5 There was a note to this extract “citing R v Hammond, 1717, 10 Mod 382, for the proposition

that regia via and communis strata ‘are synonymous expressions and signify the same thing’”,

i.e. that both terms meant a highway.

3.6 It was argued on behalf of the objectors to the order that this note was wrong because

Katherine Austin’s Case, 1683, 1 Vent. 189, and R v Thrower, 1684, 3 Keble 28, both

distinguished private ways from highways.

3.7 Further, R v Saintiff, 6 Mod 255, 1704, distinguished ‘common ways’ from ‘public ways’

because, according to the case report, “there is common for two, three or more; and it will be

hard to understand the word common to be universal …”.

3.8 The argument continued, saying that by the beginning of the 19th century terminology had

changed, as was shown by extracts from three legal text books, Hawkins Pleas of The Crown,

1787 and 1824, and Tomlins Law Dictionary, 4th edition 1835.

3.9 These showed that at the time of the award the terms ‘highway’ and ‘common way’ had

become elided into a single meaning that was distinct from ‘private way’.

3.10 Summarising the argument put to him, Sedley said:

It follows that the usage of the word 'private' in relation to a road had by the first quarter

of the 19th century acquired a precise meaning distinct from and narrower than that of

'highway' or 'public way'.

How much narrower will have varied from case to case, and Mr Burton accepts that if not

sufficiently narrowed the class might be indistinguishable from the general public; but in



the absence of any evidence that the class was this broad, the onus under section 54(3)(a)

of showing that a right of way for vehicular traffic exists cannot have been discharged, with

the result that paragraph (b) of the sub-section operates to define the track as a bridleway.

The nearest one can come to the class of private user is the likelihood that the road went

from Denton to the mill, in which case it will have been communis via only in the earlier

parlance and a private way in later parlance.

3.11 Sedley accepted this legal history as it was put to him, which was that at the beginning of the

18th century, common ways were distinguished from highways, saying:

In my judgment there was a true distinction, certainly into the 18th century, between

private or common roads and public roads or highways.

3.12 But if he were to accept that Pratt and MacKenzie was wrong in saying that the decision in

Hammond, 1717, meant that regia via and communis strata were the same thing, there

needed to be justification for this that accorded with the facts within the case report.

3.13 Sedley’s explanation was that it did not matter in an indictment for nuisance whether the

whole public was affected or just a proportion of them, so an indictment would stand for both

via regia and communis strata. He said:

It appears from the footnote that the nuisance complained of was obstruction of the road

by depositing straw and dung in it.

The court did not have to decide a general point of highway law but only whether it

mattered in an indictment for nuisance whether the Act had been committed on a

common street or on the King's highway, since to obstruct either would be an offence

without regard to the proportion of the public entitled to use the road.

The earlier cases cited by Mr Burton, which may well have been among the 'several

authorities both ancient and modern' cited in argument in R v Hammond, speak clearly of a

distinction between a highway and a private way.

3.14 He did not explain the apparent contradiction with Thrower, where the rule was stated that

for a way for the parishioners to go to church, no indictment would lie.

3.15 Neither did he explain why this apparently superseded part of the history from early C18, was

relevant to an award made in 1820.

4 Private as meaning absence of official status – supporters’ case

4.1 In dealing with this strand of the argument, Sedley consulted the Oxford English Dictionary,

which said that ‘private’ generally meant the opposite of ‘public’.

4.2 He observed that the meanings signifying want of official position or office were applicable to

persons and not things.

4.3 Meanings relating to things were defined as:



Not open to the public; restricted or intended only for the use or enjoyment of particular

and privileged persons.

5 Private applied to carriage leading to reduced repair of roads – supporters’

case

5.1 This argument was derived from an article by Christine Willmore, Inclosure Awards: Public

Rights of Way (Rights of Way Law Review, July 1990, s 9.3, pp 1-15).

5.2 She suggested that the term ‘private carriage road’, meant a road for private carriages as

opposed to public carriages, such as stagecoaches.

5.3 She continued:

… one may need to look to other factors, such as the destinations of roads, or their names

indicating a destination to ascertain their status.

A route indicated as going to the next or a further off town or village is almost certainly

public. It is not in the nature of private roads to be thoroughfares from one village to

another; private roads existed and exist, to give access to the land they lead to and abut.

5.4 It then followed that if a road was not available to public carriages, the repair obligations

would have been reduced which would have been a benefit to the parish.

5.5 Ms Willmore explained that:

Many hamlets were owned by one or two landowners.

As such they could well have seen the road to the hamlet in much the same way as we

may today see a way to an isolated cottage as private.

5.6 Sedley said firstly that if the term ‘private’ qualified ‘carriage’ and not ‘road’, it would have

been “an elliptical and uncharacteristic use of language for the period in which this Award was

made”.

5.7 Further, it was his understanding of the law was that “the parish or the local inhabitants [had]

to repair all public roads, high or low, local or turnpike” and so the amount and standard of

repair required flowed from the use that was made of the road.

5.8 He continued:

… the best that a 'local' road could achieve was reduced wear and tear and less frequent

repair to, quite possibly, a lower standard.

5.9 He continued that merely designating a road as a ‘private carriage road’ would not have had

any legal force in excluding “anybody who wanted to use it, with or without a vehicle”.

5.10 So because roads designated as ‘private’ would have been as open to use as roads designated

‘public’, and both classes of road had to be repaired in the same way, this would have

“created a nominal distinction without a legal difference”.



6 Conclusion of the court

6.1 From the ‘legal history’, Sedley identified that in the 17th and early 18th centuries, there had

existed two classes of road being via regia and communis strata.

6.2 These differed in that via regia corresponded to a ‘public carriage road’ in inclosure legislation

and the second, ‘communis strata’, was, in his view, a private road used in common by a

restricted section of the local community.

6.3 He came to this conclusion about the user of communis strata based on an interpretation of R

v Saintiff, 1704, that showed that the word ‘common’ did not necessarily signify the whole of

the public.

6.4 He also considered that the conclusion in R v Hammond, 1717, was reached because an

indictment for nuisance would stand for a way open to the whole of the public as well as for a

way open only to a restricted section of the public.

6.5 But by the end of the 18th century, based on the legal texts Hawkins (1787 and 1824) and

Tomlins (1835), he considered the terms via regia and communis strata had fallen into disuse.

6.6 Public roads and ways by now could be called either highways or common ways and both of

these were distinguished from the private ways for the “benefit of the particular inhabitants

of such parish, house, or village only”, which “belongeth not to all the King's subjects but only

to some particular persons”.

6.7 Sedley did not agree with the argument presented that ‘private’ meant having a lack of official

status, because from the OED that meaning applied to persons and not to things, whereas

private things were restricted for the use of particular persons.

6.8 And neither did he think that there had existed two kinds of public way because there was no

identifiable legal distinction between them, particularly with respect to repair obligations.

6.9 So Sedley based his judgment solely on his understanding of the legal history and said:

This history furnishes compelling evidence for the construction advanced on the applicant’s

behalf, namely that … public and private carriage 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.

6.10 He continued:

No internal evidence suggests that the choice of words in the Award is casual or accidental.

Exactly the same, admittedly complex, formulation is used for Mill Road as for Denton

Road, which is appropriate since they are continuous with one another; and different

language is used, as I have indicated, for other roads in the Award.

But throughout the words ‘public’ and 'private' are used differentially and with evident

care in a context suggestive of the defining of rights to use the road rather than of the

characterisation of the road's quality or status.



6.11 Sedley concluded that:

all the indications are that 'private carriage road' is deliberately used in the 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 an equal right of

vehicular passage.

6.12 Sedley returned to the subject of the authorised class of user in the final paragraphs of his

judgment:

The remaining problem is that there is no indication from any source of the class to whom

the 'private' vehicular use of Denton Road and Mill Road is to be confined.

Since it is conceded by Mr Burton that if the class is large or vague enough it may be

indistinguishable from the public at large, this is capable of mattering.

But if it is to matter, section 54 (3) (a) permits the designation of a road as a byway open to

all traffic only 'if a public right of way for vehicular traffic has been shown to exist'. In the

absence of any evidence that the permitted class of vehicular users of this private carriage

road was so large as to make their right of way a public right of way, the test posed by

section 54 (3) (a) is not met.

This being so, the road is to be shown in the definitive map and statement, pursuant to

paragraph (b) of the sub-section, as a bridleway.

6.13 He acknowledged that if the class of persons permitted to use the road were to be large or

vague enough, it might be indistinguishable from the public and that this was “capable of

mattering” because the way could be considered to be a public way.

6.14 But for awards where there was no appointment clause, there was then no evidence as to

who the permitted class of user was, and this meant there was no evidence to show that a

right of way for the public existed.

7 Effect of Dunlop on DMMO applications

7.1 The effect of Dunlop on determining the rights over private roads appointed in inclosure

awards is described in The Planning Inspectorate’s Consistency Guidelines, section 7, Inclosure

awards, in paragraphs 7.33 – 7.38 and per 7.38, where it says, “Inspectors should follow it

unless and until a court holds otherwise.”

7.2 In paragraph 7.34, it says that the judgment has been strongly criticised and that it has been

suggested that the meaning of ‘private carriage road’ in awards varies and that:

Dunlop does not, and indeed could not, offer a conclusive interpretation to be used on all

occasions (Christine Willmore, What is a ‘private carriage road’, Rights of Way Law Review,

July 1995, s 9.3, p 73-79).



7.3 In paragraph 7.37 of the Guidelines, it is acknowledged that there are instances where it is

“explicit in the award that the public have full rights of use over” the private carriage roads,

which would seem to rule out that ‘private’ when applied to a road or way always meant a

road with a restricted authorised user.

7.4 Paragraph 7.37 continues that there are other instances where “the class of authorised

vehicular user has, in subsequent case law, been held to constitute ‘the public’” (although

there is no information in the Guidelines as to what this case law is), which perhaps echoes

Sedley’s conclusion that the permitted class may be so widely defined as to constitute the

public.

7.5 These doubts suggest that Sedley’s conclusion that ‘private’ means ‘restricted as to user’ may

not be universally applicable, which in turn suggests that it is simply wrong.

7.6 Rather than seek to impose his conclusion on all cases except where there is evidence to the

contrary, it is surely preferable to seek an alternative explanation that fits all circumstances.

7.7 This would seem on the face of it to require new evidence but Sedley’s conclusion that

communis strata was a way for a restricted user is at odds with the legal record, being the

reported outcome of R v Hammond, 1717, and is an obvious weak point in his argument.

7.8 Sedley used his conclusion to support his judgment, saying:

In my judgment there was a true distinction, certainly into the 18th century, between

private or common roads and public roads or highways. The distinction between them was

apparently held not to matter where nuisance by obstruction was laid since in either case

the offence was the same. But so far as rights of access were concerned, these differed by

definition, being limited in the case of a private or common way to a class which might be

defined by any of a number of factors or criteria.

By the beginning of the 19th century, however, it appears that legal usage had changed so

as to conflate common ways with highways and to distinguish these from private ways: see

Hawkins Pleas of the Crown 1787 and 1824 editions, and Tomlins' Law Dictionary (4th

edition, 1835). This history furnishes compelling evidence for the construction advanced

on the applicant’s behalf, namely that both in the Act of 1801 and in the Glatton with

Holme Inclosure Award of 1820 public and private carriage 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.

And also:

No internal evidence suggests that the choice of words in the Award is casual or accidental.

Exactly the same, admittedly complex, formulation is used for Mill Road as for Denton

Road, which is appropriate since they are continuous with one another; and different

language is used, as I have indicated, for other roads in the Award. But throughout the

words ‘public’ and 'private' are used differentially and with evident care in a context

suggestive of the defining of rights to use the road rather than of the characterisation of

the road's quality or status . All the indications are that 'private carriage road' is

deliberately used in the 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 an equal right of vehicular passage.

7.9 Establishing what the actual rights are over the communis strata and applying the results in

line with Sedley’s logic, may help to establish what the default rights were over the private

carriage roads in the absence of direct evidence.

7.10 Those familiar with awards will know that private carriage roads tend to be of two main

types:

i. Roads for the use of all the allottees and normally repairable by them at their joint

expense, exceptions being repair by the vill or by the parish

ii. Roads leading to a particular plot or parcel of land and specified in the award to be

for the use of the owners and occupiers of that plot of land only

7.11 Awards are often silent as to the permitted user of the communal private carriage roads

described in (i) above.

7.12 This suggests that, in the absence of evidence to the contrary, the user of them follows as

naturally from their designation as private carriage roads as does the user of the public

carriage roads from their designation.

7.13 Establishing that private carriage roads are minor public ways, unless they are clearly

easements, would simplify adding ways to the Definitive Map on inclosure award evidence

and help make achievable a complete and correct Definitive Map by 2026, at least as far as

ways awarded as private carriage roads is concerned.

Documents

Dunlop and the meaning of Private Carriage Roads€¦ · Dunlop and the meaning of Private Carriage Roads Dunlop v Secretary of State for the Environment and Cambridgeshire County