Road charges–Tithe map of 1846 strong evidence against existence of road as a maintainable highway in 1835–No evidence that road had ever been repaired by a public authority–Presumption that arises in such circumstances–Frontagers held liable to pay for the making-up of the road despite decision in their favour in the Divisional Court
This was an
appeal by Kent County Council from a decision of the Queen’s Bench Divisional
Court dated November 19 1974 upholding, on a case stated by Dartford
magistrates, objections by the respondents, all frontagers of houses in Fairby
Lane, Hartley, to proposals by the council to make up a stretch of the lane at
their expense. The decision of the Divisional Court was reported at (1974) 233
EG 759, [1975] 1 EGLR 129.
Mr R A W Sears
(instructed by Sharpe, Pritchard & Co, agents for W G Hopkin, of Maidstone)
appeared for the appellants, and Mr T I Payne (instructed by A L Proctor, of
Gravesend) represented the respondents.
Giving judgment,
LORD DENNING said that many old villages were now encompassed by new
development, and fields and farms were swallowed up by houses and roads. At the
outset the roads were private roads made by the builders and kept up by the
residents. Later they were taken over by the local authority and became public
roads. When that happened the authority could by statute charge the making-up
cost against the frontagers. Thereafter they were maintained by the authority.
All that was well known, so that anyone building a house or buying one in a
private road should be aware that when the authority took it over he would be
liable to pay road charges.
One such old
village was Hartley. Its history had been written by its rector 50 years ago.
This came into the story because the author drew a map showing the village in
late Plantagenet and early Tudor times. It was, he confessed, a piece of
imagination; but he showed matters as if there existed 400 years ago a track
along the way now called Fairby Lane, today a road with houses on both sides.
Basing themselves largely on that map, the householders claimed that the lane
was not a private road but a highway repairable at public expense, and
therefore that they were not liable to pay the frontage charges. The developers
of the houses backed the householders, because they had a considerable
frontage; they had agreed to indemnify some of the householders. The question
depended on a provision in the Highways Act 1959 which made frontagers liable
for the cost of making up a ‘private street,’ defined as ‘a street not being a
highway repairable at the public expense.’
So the question was whether Fairby Lane was a highway maintainable at
the public expense. To solve it, the court had to go back 140 years to 1835. If
in that year the lane was a highway repairable by the inhabitants at large the
frontagers won, and the
the position was fixed in 1835. No new highway coming into existence after that
year became repairable by the inhabitants at large unless strict requirements
were fulfilled, and nothing had happened since 1835 to make Fairby Lane
maintainable at the public expense.
The burden was
on Kent County Council to show that in 1835 the lane was not a highway
repairable by the inhabitants at large. Of course, no one now living could give
evidence about the 1835 position, and the court could only go by what had
happened since. In this case the justices found that ‘neither Kent County
Council nor any other authority had ever maintained or repaired Fairby
Lane.’ From that evidence it could be
inferred that in 1835 the lane was not repairable by the inhabitants at large.
The only other thing to go by was maps. There was the map drawn by the rector
in his book on Hartley. In the foreword he had said he had been ‘obliged to
fall back, in some degree, upon imagination.’
He was well endowed with imagination, a writer of fairy tales. The map
was useless. It should have been discarded. The county council archivist produced
maps between 1769 and 1819. None showed Fairby Lane at all, but they were to so
small a scale that they showed only public carriage roads. The first
large-scale map was the tithe map of 1846 and the schedule annexed to it. The
Lord Chief Justice had treated this as of little value, but he (his Lordship)
thought it of great value. It was prepared under statutory authority by the
Tithe Commissioners, with great care and accuracy, to show all cultivated land,
arable and pasture, because tithe was payable on land which produced crops. It
also had to show waste land and definite roads which did not produce crops,
because tithe was not payable on these. If a road passed over a man’s land he
would naturally require it to be shown, so as not to pay tithe on it. So on the
question whether there was a road at the specific place the tithe map was of
much importance. Such a map had been so regarded in A-G v Antrobus
[1905] 2 Ch 188 and Stoney v Eastbourne Rural District Council
[1927] 1 Ch 367.
The tithe map
of 1846 showed no road at all on the line where Fairby Lane now was. It only
showed it as a boundary hedge or fence between a cherry orchard and pasture.
And in the schedule, those were shown in their full acreage as in the
occupation of the local squire, Francis Treadwell, without any deduction for
any road. He (his Lordship) regarded that tithe map as sufficient to show that
Fairby Lane did not exist as a road in 1846. It might have existed as a
footpath, but that was neither here nor there. If there was not even a road
there in 1835 it was most unlikely that it was repairable by the inhabitants at
large; he (Lord Denning) agreed with the statement of Widgery J in Alsager
Urban District Council v Barratt [1965] 2 QB 343 that ‘the onus of
proof can be satisfied by showing that the highway did not exist even as a road
before 1835.’ The next map was the
ordnance survey of 1864-67, made before any development had taken place. It
showed a track where Fairby Lane now was, but nothing as to whether the track
was a public way or an occupation way. The justices said it appeared ‘as a
highway,’ but nothing on the map showed that. It could not be a ground for
thinking that there was an ancient highway going back before 1835. The court
had been shown a map of 1938, with Fairby Lane shown as a made road with houses
on the south side and fields on the north. Since the war the whole area had
been much developed. It was plain that Fairby Lane had never been repaired or
maintained by any public authority and that there was not even a road there in
1835. Those two facts went far to show that it was not then a highway
repairable by the inhabitants at large. And there was nothing to the contrary.
The justices stated the facts and then said, ‘We were of the opinion that
Fairby Lane was not a private street.’
That conclusion was not warranted by the evidence. It was not a
conclusion to which the justices could reasonably have come. On the facts found
by them Fairby Lane was not a street maintainable at the public expense, and
the appeal should be allowed.
Agreeing,
STAMP LJ said that, without hesitation, he had concluded on the balance of
probability that had there in 1835 been a road on the site of what was now
Fairby Lane it would by the date of the 1846 tithe map have been sufficiently
well established to have been indicated on that map. But whether or not the
tithe map were regarded as sufficient evidence to show that no road existed, he
(his Lordship) agreed with the Master of the Rolls that it ought to be presumed
in 1975 that in the absence of any evidence to the contrary, a road found not
at any time after 1835 to have been repaired by the inhabitants at large or any
local authority, and not shown to have existed in 1835, was never so
repairable. The map drawn by the rector in his book, published in 1922, must
have been taken from the 1864-67 ordnance map, to which it bore a strong
resemblance, and the rector must have presumed that the roads shown on that map
had been there since time immemorial. He (Stamp LJ) agreed that no tribunal
properly approaching the case could have placed reliance on the rector’s map
and that the justices were wrong in doing so.
Also agreeing,
ORR LJ said that on the tithe map the combined effect of the Antrobus
and Stoney cases was that an inference might be drawn from the fact that
a road was not shown, in as much as a road might involve in total a substantial
area withdrawn from agriculture, so that it would be in the landowner’s
interest to have it shown as untithable. For that reason it would have been
wrong for the magistrates to disregard the tithe map. But they did refer to it,
and the weight to be given to it was a matter for them. If therefore that
matter had stood alone, he (his Lordship) would have hesitated to interfere
with their decision. But two other considerations led him to conclude that the
appeal should be allowed. The first was that where a road had, on the
ordnance-map evidence, existed for at least a century, it was a powerful
consideration that no evidence had been adduced of any repairs to it at the
public expense, and the justices were satisfied that there had been no such
repairs. The second was that the magistrates attached undue importance to the
map in the rector’s book, which the author admitted to have been in part
conjectural and which was, if it was evidence at all, heavily outweighed by the
six maps between 1769 and 1820, none of which showed the road.
The appeal
was allowed. Leave to appeal to the House of Lords was granted.
