The judgment in Dunlop v Secretary of State for the Environment and Cambridgeshire County Council  94 LGR 427 is widely considered to be flawed because it was made on incomplete evidence. Here Joanna Roseff looks at the evidence that was before the court and the missing evidence in her response to Somerset County Council’s (SCC) investigation of applications for modification orders for restricted byways which were awarded as private carriage road. The arguments are applicable far more widely and comments are welcome on evidence which supports or opposes the argument made.
The problem with Dunlop…
Heard in 1995, Dunlop holds that, in the absence of evidence to the contrary, the rights over inclosure awarded private carriage roads are limited to a specific group of people, i.e. not the public at large. It therefore follows that private carriage roads cannot be added to the Definitive Map on the evidence of the award alone.
But, there are many errors in Dunlop….
In coming to his conclusion, Sedley J examined several legal texts and confirmed to his satisfaction that there existed in English common law a kind of semi-public way open only to a certain local user.
The response to SCC’s investigation report (on the application for restricted byway in Coombe St Nicholas and Broadway) shows that in common law there are two kinds of road or way, one for travellers and one for local people, both of which were fully open to the whole of the public.
It also suggests that private carriage roads corresponded to the public roads for local users.
And it concludes that the effect on Tithe map evidence is that the ways coloured brown can only be public ways, unchangeable in their situation except by due legal process of diversion or extinguishment.
Please read the documents carefully and critically and make comments.
Comments of agreement, particularly where backed up by evidence, are welcome but we would also value any evidence that shows that:
- the communis strata were not local public ways for all users
- the default status for private carriage roads was not a minor public cartway
- the conclusion that all roads coloured brown or otherwise excluded from tithe must be public rights of way is wrong
- Dunlop background
- Response to Somerset investigation on application for Charmoor Drove
- Notes on Charmoor Drove
- Dunlop transcript (parts)
Documents referred to in Consultation response
- 1628 Coke Section 68 Tenant at Will – Google Books
- Coke 2nd part of The Institutes Vol I on statute of Marlborough c 15 – Google Books
- Austin 1 Vent 189 – English Reports
- Thrower 1 Vent 208 – English Reports
- Thrower 3 Keb 28 – English Reports
- R v Saintiff 6 Mod Cas 259 case 369 – English Reports
- R v Hammond, 1717, 1 Strang 44 – English Reports
- R v Hammond, 1717, 10 Mod 382 – English Reports
- The Queen v Inhabitants of Clueworth 1705 – English Reports
- Reg v Inhabitants of High Halden 1860 – English Reports
- Satku Valad Kadir Sausare vs Ibrahim Aga Valad Mirza Aga on 12/12/1877 (Bombay High Court)
- Extracts from Hawkins Pleas of the Crown 1716 edition – Google Books
- Extracts from Hawkins Pleas of the Crown 1787 edition – Google Books
- 33 H 6 10, 1455, Seipp No 1455.062 – Boston University Law Yearbooks
- Tithe map approved symbols – The National Archives
Readers may also be interested, for background, in this paper on social history by Catriona Cook. One of the greatest failings of any historian is a failure to consider any artefact in the context of its time.