Magistrates entitled to ignore negative evidence of tithe map and find that a lane to be made up by the council was already a public road–Case a ‘very close thing,’ but frontagers hold decision quashing council’s provisional apportionment
This was an
appeal by the Kent County Council from a decision of Dartford justices on
February 19 1974 holding that Fairby Lane, Hartley, Kent, was a public road and
quashing a provisional apportionment of the cost of making it up served by the
council on the respondents, Mr E J Loughlin and 13 other frontagers.
Mr R A Sears
(instructed by Sharpe, Pritchard & Co, agents for the solicitors to the
council) appeared for the appellants, and Mr R A Henderson (instructed by A L Proctor,
of Gravesend) represented the respondents.
Giving
judgment, LORD WIDGERY said that the council, who wanted to make up part of
Fairby Lane and felt it was a private road, sent a provisional apportionment to
the appropriate frontagers so that they should contribute to the expense. The
14 people with property fronting on to the lane objected on the ground that it
was not a private road, and this contention was upheld by the magistrates.
As often
happened in similar cases, there was no positive evidence as to when the lane
became a public highway. The council were thus thrown back on the tactics of
endeavouring to prove that the highway came into existence after the year 1835.
The relevance of that date was that under an Act of that year, highways dedicated
to public use before that date were to be maintained at public expense. This
did not automatically apply to roads which came into existence after that date.
As it was not possible to prove the status of the road in 1835, the county
council set out to prove that it did not even exist as a road in 1835. If so,
it would automatically follow that it could not have been a public highway in
1835, and this would have settled the issue. The council placed a number of
maps before the magistrates. The first three in order of date, those of 1769,
1779 and 1794, did not show the road, and neither did an ordnance survey map of
1799. A map by a Captain Mudge, who surveyed the roads of Kent in 1801, also
did not show the road, nor did an ordnance survey map of 1819 or a tithe map of
1846. The first map featuring the road was an ordnance survey map of 1864. The
frontagers put forward a book by the Reverend Geoffrey Bancks, a former vicar
of Hartley, published in 1927, which contained a map of the area in late
Plantagenet and early Tudor times. This showed some kind of road or way
following the line of Fairby Lane. In the foreword to the book, Hartley
Through The Ages, the author pointed to some difficulties with the map. He
said: ‘The maps I have endeavoured to make as truthful as possible, but I have
been obliged to fall back to some degree on imagination.’ The magistrates in their conclusions said,
‘We are of the opinion that Fairby Lane is not a private street.’ This was a conclusion of fact with which the
Divisional Court could not interfere. The court could only overrule the
magistrates’ decision if they were satisfied that it was perverse, or one which
no reasonable bench of magistrates, properly instructing themselves, could have
reached.
He (his
Lordship) did not think the magistrates should have been significantly affected
by the Rev Bancks’s work. His map was intended to show late Plantagenet and
early Tudor times, and those times were not of concern in the present case. A
map which was a reconstruction could not be given anything like the authority
and weight of a contemporary map made by a professional map-maker. He (the Lord
Chief Justice) did not think it was putting it too high to say that Hartley
Through The Ages was an unreliable guide. With the ordnance survey maps,
all the council could prove was that Fairby Lane came into existence between
1801 and 1864. This left the tithe map of 1846, which did not show the road.
Tithe maps were produced to illustrate the various areas where tithes could be
levied. They were not intended to be used as a kind of ramblers’ guide by
people seeking a route from A to B. The position of roads was often of little
importance. The fact that the tithe map omitted the road was of far less value
than if it included it. The man who made the map could have thought the road
was irrelevant for his purposes. If the road was shown on the map, it would be
important, because if it was shown it would mean that it definitely existed.
The ultimate question in the case was whether the magistrates’ decision was
perverse. Were they entitled, as reasonable people, to take the view that the
tithe map was unreliable? If so, the
council would be left with no means of saying that the lane came into existence
after 1835. Tithe maps should be approached by reasonable people with care. The
case was a very close thing, but he (his Lordship) had reached the conclusion
that the magistrates were entitled to take the view they did and to refuse to
place reliance on the tithe map. In his opinion, therefore, the appeal failed.
MAIS and
CROOM-JOHNSON JJ agreed, and the appeal was dismissed with costs.
