Memorandum by the South Pennine Packhorse
Trails Trust (PI 30)
1. The South Pennine Packhorse Trails Trust
is a registered charity and company limited by guarantee whose
purpose is to obtain legal status for bridleways and byways.[37]
The Trust undertakes historical research into the origins of routes
and submits applications for definitive map modification orders
(DMMOs) to local authorities. It also restores and repairs routes
for which it has obtained definitive status.
2. The Trust has been in existence since
1989. To date we have been involved in over 70 applications for
DMMOs and presented evidence at 16 public inquiries, both on our
own behalf and on behalf of other people. The Trust does not charge
people for this work.
3. The Trust has to raise all its own funding.
It currently employs one full-time officer, and from 1996 to 1999
it employed a full-time researcher on a Lottery-funded programme.
Everyone else works on a voluntary (unpaid) basis.
4. The Trust's officer presents evidence
at public inquiries and members attend inquiries as observers
and in some cases also give evidence.
5. A recent spate of bad decisions by the
Inspectorate is deterring the Trust from submitting further applications
for DMMOs. Our confidence in the public inquiry process and the
abilities of certain inspectors is badly shaken.[38]
One can no longer rely on a well-researched application based
on good historical evidence succeeding at inquiry.
6. The cost of researching and applying
for DMMOs and following them through to public inquiry is spiralling
rapidly, well beyond the reach of the majority of the voluntary
sector. Roughly 75 per cent of the Trust's resources are now spent
on the definitive map process, with the public inquiry taking
the largest slice of the cost. This includes officer time and
research expenses[39]
in (a) assembling evidence for the initial application to the
local authority, (b) appeals to the SoS against an order-making
authority's (OMA) refusal to make an order,[40]
and (c) preparing and presenting proofs of evidence at public
inquiries. The Trust does not have the financial resources to
appeal against inspectors' decisions.
7. Over the past 10 years it has become
increasingly difficult to get orders confirmed: the goalposts
are getting smaller. This uncertainty has a knock-on effect with
OMAs, making them much more reluctant to make orders in the first
place. The result is that, far from ensuring that public rights
of way are properly recorded, the public inquiry process is leading
to the loss—possibly for all time—of ancient rights
of way.
8. The uncertainty generated by the present
public inquiry system is mainly the result of the lack of consistency
of the decisions. One type of documentary evidence will be accepted
by one inspector and rejected by another,[41]
or accepted by the SoS in a Schedule 14 appeal but subsequently
rejected by the inspector at inquiry. Some inspectors display
a distinct bias against vehicular rights;[42]
others refuse to accept historical documentary evidence at all.[43]
9. The key problem is the lack of accountability
of inspectors for their decisions. The only recourse currently
available is through the courts. This is not a course of action
open to Trust, or to most members of the public representing users'
interests. As it operates now the public inquiry system is failing
the public badly.
10. A specific problem is that under current
legislation applicants have no legal standing. Neither the order-making
authority nor the Inspectorate is required to keep applicants
informed of progress or to consult them in any way. Therefore
it is entirely possible for an order to be determined by written
representations without the original applicant being informed
of the fact.[44]
11. Lack of legal standing means that applicants
are at a disadvantage at public inquiries. They either have to
rely on the OMA to present the evidence which the applicants themselves
have originally researched and submitted,[45]
or present the evidence themselves. Inspectors tend to give less
credence to evidence presented by supporters than to the same
evidence presented by the OMA. In addition, not all applicants
have the confidence to stand up in a public inquiry to give evidence
and face cross-qestioning by a hostile barrister or solicitor
representing the opposing side.
12. The inquiry itself can be an extremely
stressful experience, conducted as a "quasi judicial process".
This fosters conflict and an adversarial approach between the
parties for and against the order, and this, we suggest, is not
the best way to arrive at an informed decision.
13. The inspector does not have to account
for his conduct during the inquiry. With the best will in the
world, we have to say that there is often a clear imbalance between
an inspector's treatment of the users (ordinary members of the
public who are usually unrepresented and without financial resources
to mount a challenge) and the landowner (the private interest
who is frequently legally represented).[46]
Legal representatives are much more likely to be granted deferments
than Joe public and are prone to intimidate supporters by threatening
to seek costs against them. The inquiry is by no means a level
playing field.
14. There are some inspectors who are exemplary
in the way they conduct inquiries, but the Trust's officers have
on one occasion been on the receiving end of extreme verbal abuse
from the inspector himself, being told that we were unprofessional
and that our preparation was shoddy.[47]
However, complaints about his conduct by the Trust and others
were simply dismissed out of hand by the Inspectorate.
15. Unfortunately there are too many examples
of inspectors simply failing to understand basic historical principles
and misinterpreting/disregarding legislation, case law and government
guidance. Knowledge of the historical evolution of highways and
highway law and practice is essential. Legislation only makes
sense if it is put in context. However, far too often claims based
primarily on historical evidence, backed up with some user evidence
(evidence of reputation), are treated as though they are user
claims. So we are faced with the ludicrous situation of routes
which have existed from time immemorial being turned down because
they have not been used by the public for a period of 20 years
in the second half of the 20th century. Some inspectors are distinctly
unwilling to accept claims based solely on historical evidence,
and this trend seems to be increasing.
16. A major drawback of the public inquiry
system is that there is no feedback during the inquiry. It would
be more beneficial for the inquiry to take the form of a round-the-table
discussion, with each piece of evidence being carefully examined
in an attempt to gain understanding and consensus. As it stands,
we are in the position of having to present a case as if we were
in a court of law without any idea of the inspector's knowledge
or understanding.
17. We need to know that the inspector is
genuinely concerned to examine and understand the evidence rather
than simply anxious to get through everyone's proof in the minimum
time possible. We need to know that he is genuinely impartial.
We need to know that he actually understands what the evidence
means,[48]
otherwise we have to explain the significance of each piece of
evidence at every inquiry, thus running the risk of appearing
to be prolonging the inquiry and opening ourselves up to charges
of acting unreasonably.
18. Our concerns reflect the fact that there
seems to be no uniformity of approach from one inspector to another.
We do not know what training inspectors receive. There is very
little published guidance, and what there is is inadequate. A
recent guidance note on the meaning of the term "cross road"
on 18th and 19th century maps ignores most of the case law.[49]
19. The amount of speculation indulged in
by some inspectors to find reasons for not confirming orders is
of grave concern. Thus extraneous assumptions appear in decision
letters which were not aired at the inquiry, while solid evidence
which was presented at the inquiry is ignored.[50]
20. Very few inspectors are willing to consider
dedication at common law, possibly because they do not understand
it. However, one inspector actually wrote in his decision letter
that he had not considered it because no one had asked him to
in the inquiry. This in fact was not the case.
21. Inspectors themselves admit they make
mistakes.[51]
However, while the Inspectorate continues to refuse to vet decision
letters before they are sent out, mistakes will continue to be
made.
22. Because the inspector's decision is
final, there is no point in complaining to the Inspectorate. All
one gets is the bland reply that the inspector's decision is final.
There is no indication that the Inspectorate is prepared to accept
criticism or comment. The result is that we do not complain—it
is simply a waste of time.
23. What is so unjust is the fact that when
an inspector gets it wrong for whatever reason, his decision has
lost us a public right of way—possibly for ever. Unless
new evidence can be found, the case cannot be revisited.
24. Below are some examples of inconsistency.
They include three cases which are going to be extremely difficult
to retrieve. Two of them—quite simply—are travesties
of justice, where the inspector had made his mind up before the
inquiry opened.
EXAMPLES OF
INCONSISTENCY
FPS/F4220/7/4 Saddleworth 143: The order was
to downgrade a bridleway.[52]
There was no user evidence, but the inspector had no difficulty
in accepting on the basis of the historical evidence that although
the order route had probably been obstructed since 1801 it was
properly recorded. He refused to confirm the order.
FPS/A4710/7/35, 36, 37 Hanging Stones &
High Lee Lanes: The three bridleway orders were made on the direction
of the SoS, whose decision was based on five pieces of historical
evidence: a parliamentary inclosure award, three railway Acts,
and the Finance Act. The inspector rejected most of the historical
evidence and all the user evidence. He confirmed one order on
the basis of the inclosure award but declined to confirm the other
two on the basis of a gate that was alleged to have been locked
in 1925. We are now left with two cul-de-sac bridleways.[53]
FPS/C2300/7/49 Ball House Lane: The application
for a BOAT was submitted by the TRF in 1986/7. The OMA refused
to make an order, and the applicant appealed to the SoS. The resulting
order was made in 1989 but did not go to inquiry until 1997, by
which time the original applicant had retired. The Trust was asked
by local riders to present the evidence at the inquiry as the
OMA refused to do so. This was the most appalling experience.
The inspector was extremely and increasingly abusive, and indulged
in legal one-upmanship. He rejected all the historical evidence
("highway road" in the surveyor's accounts, "cross
road" on 19th century county maps, the fact that part of
order route was a vehicular highway, Finance Act, deeds, no claim
of ownership by frontagers, past and current use by horseriders).
He simply based his decision on the fact that the railway plan
recorded the order route as an "occupation road", although
this description was also applied to other routes which were clearly
vehicular highways. He refused to confirm the order, and also
refused to consider a modification to a bridleway because "no
one asked", even though we asked him to consider this at
the inquiry. Complaints to the Inspectorate from the various user
groups and the local MP about the inspector's behaviour were discounted.
We consider the two foregoing decisions to be
travesties of justice.
INCONSISTENCY OVER
"CALLED INTO
QUESTION"
FPS/A4710/7/19 & 20 Moorcock Road and Burnt
Edge Lane: Orders for bridleway were confirmed on written representations.
Although the order route had been obstructed for several years
by a gate which had been locked from 1978 to 1990, the inspector
decided there was no evidence that the obstruction was to prevent
use by horseriders. He therefore based his decision on dedication
at common law.
FPS/Z4718/&/11 Honley Wood: Order for bridleway
based primarily on user evidence. The order route had been partly
obstructed by large boulders to prevent access by vehicles in
1979. However, horseriders could still get through and continued
to use the route until a locked gate was installed in 1991. The
OMA decided that the gate was the date of challenge. The inspector
decided that the boulders were the date of challenge and refused
to confirm the order.
FPS/Z4718/7/12 Brow Grains and High Moor End
Road: Order for bridleway based on user evidence. Same inspector
as in the previous example. He actually argued in the inquiry
that a gate locked across the order route to prevent vehicular
access was not a challenge to use by horses. However, he confirmed
the order under HA s. 31 rather than common law.
FPS/A4718/7/13 Royd Edge Road and Bedlam Lane:
Order for bridleways based primarily on user. New owner locked
gate across one branch of the order route in 1988. Previous owner
claimed that he had put a chain across route one day a year from
1979. OMA took locked gate as date of challenge as no one was
aware of the chain. Inspector decided that because the horseriders
were well organized and knew each other in 1999 they must have
been well organized and known each other in 1979 and so would
have known about the chain. Refused to confirm order. Totally
omitted to consider other branch of order route which has never
been obstructed.
February 2000
37 There was massive under-recording of higher rights
in the former West Riding and Lancashire counties under the NPACA
1949. Back
38
Some inspectors are excellent both in their conduct of the inquiry
and in their ability to assess the evidence. However, because
we do not know in advance who is going to walk through the door
on the first day of the inquiry, the uncertainty before the inquiry
is becoming extremely stressful. Back
39
Obtaining good-quality copies of documents can be very expensive.
For example, West Yorkshire Archive Service currently charges
£40 for a certified copy of a memorial, an increase of over
300 per cent in the past 10 years. Back
40
Schedule 14 appeals against an OMA's refusal to make an order
occurs in a minority of cases-the Trust has made four to date. Back
41
For example, some inspectors no longer accept the evidential
value of a parliamentary inclosure award setting out the order
route as a public carriage road. Back
42
On one occasion the Trust's officer was asked by an inspector
if she wanted to continue presenting evidence because it supported
BOAT status and he did not approve of vehicles in the countryside. Back
43
There have been two extreme examples of this. One inspector was
subsequently retired after complaints in respect of his decision
in a subsequent inquiry. However, his decision in our case remains.
The other inspector is unfortunately still active. Back
44
This has happened on one occasion with an application submitted
by the Trust, denying us the opportunity to submit additional
evidence. Back
45
OMA officers appearing at public inquiries sometimes have little
or no experience of the definitive map process. Others know less
about the evidence than the original applicant. Back
46
In one inquiry the barrister representing the landowner ended
up conducting the inquiry. The inspector failed to deal firmly
with his threats to seek costs against the witnesses, and sat
facing the barrister with his back to the OMA and the supporters. Back
47
We were informed by the OMA's definitive map officer that this
was his standard way of treating officers. Back
48
We cannot assume, for example, that all inspectors understand
or accept Finance Act evidence. The Inspectorate promised four
or five years ago it would issue guidance on the Finance Act.
It still has not done so. Back
49
This guidance was issued as a result of the Trust's publication
What Is a Cross Road? which drew together a large amount
of material to illustrate the origin and meaning of the term.
It took the Inspectorate several years to issue the guidance,
which ignores most of the material presented in the book. Some
inspectors accept cross road evidence, others do not. More recently
the Inspectorate issued guidance on the Dunlop case. This
contained a glaring error, which we wrote to the Inspectorate
about over a year ago. To date no correction has appeared. Back
50
It is covered by the catchall phrase "I have considered
all the other evidence and . . .". Back
51
One inspector commented in one inquiry that he had made a wrong
decision in a previous case. Back
52
We appeared as objectors. The applicant failed to appear at the
start of the inquiry, but the inspector insisted that he be contacted.
When the applicant finally turned up he was unrepresented. The
inspector came over to us and explained that because of this he
would at times act as advocate for the applicant and that we should
not be concerned if he seemed to be taking his side. Back
53
This inspector has subsequently been retired. Back
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