HERTFORDSHIRE COUNTY COUNCIL Rights of Way Service

File Ref NH283/MOD
HERTFORDSHIRE COUNTY COUNCIL
Rights of Way Service
Modification Order Application
Investigation Report
Lilleyhoo Lane
Author Tom Ruszala
Date: 10 August 2016
Page 1 of 26
File Ref NH283/MOD
Application Details
An application has been made to record a byway on the Definitive Map of Rights of Way for
Hertfordshire in the parish of Lilley, in North Hertfordshire. An extract of the 2015 Definitive
Map is attached. It shows where the route is and it is labelled Point 1 and Point 2 (appendix
A).
This application was made by Dr P D Wadey on 24 April 2016.
submitted with the following supporting evidence:
The application was

Bryant’s Map of Hertfordshire, 1822

Ordnance Survey 1st Edition 25” extract from map Hertfordshire 11 – 7.

IR126/4/91 Inland Revenue Valuation plan, The National Archives

Hertfordshire County Council Rights of Way Survey, Hitchin Rural, 1938

Hertfordshire County Council Land Charges map, circa 1980.

Hertfordshire County Council Gazetteer, 2015

INSPIRE land index polygon map, 2015.

Applicant’s statement.
Description of Route
The application route is located in the parish of Lilley, North Hertfordshire, approximately 5
kilometres from Luton Airport. It runs for approximately 210 metres from a junction with Lilley
bridleway 9 and Lilley footpath 12 in a generally south easterly direction to meet Lilleyhoo
Lane, a public road. The surrounding area of the application route is arable farmland and
common land at Lilley Hoo to the north. The application route comprises of a track 4 to 5
metres wide part natural - part metalled surface bounded by scrub and a hedge and tree line
19 to 20 metres apart. There are bollards in place adjacent to point 2 to prevent motorised
traffic accessing the application route from Lilleyhoo Lane.
Point 1 looking south east
Point 1 looking north west
towards Lilley bridleway 9
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Between points 2 and 1 looking north west
Bollards adjacent to point 2 looking north west
Documentary Evidence
For each investigation, we check at least 10 primary sources of information for any historic
evidence relating to the application route. You can view the documents listed below at
Hertfordshire Archives and Local Studies (HALS) or at the Rights of Way Service (ROW).
The documents are listed below with a reference number (if it has one) and where you can
find it.
For further information contact:
Hertfordshire Archive and Local Studies (HALS) 01438 737333 (or 01923 471333 from area codes 01923 and 020)
www.hertsdirect.org/services/leisculture/heritage1/hals/
Rights of Way Service (RoW) - 01992 555279 to make an appointment.
If you would like more information about documents and how they are important in
investigating public rights of way, please go to the Planning Inspectorate’s website and view
their Guidance Booklet for Definitive Map Orders: Consistency Guidelines.
See
http://www.planningportal.gov.uk/planning/countryside/rightsofway/rightsofway which also
gives details about related articles and case law.
Where the document shows information relevant to the area of the application route, it is
listed with the following information:
 The Document’s name, date and where it can be found (location and reference)
 Why we consider the document important when making our decision
 What is shown by the document in the area of the application route
 Investigating Officer’s comments
Page 3 of 26
File Ref NH283/MOD
1 Dury and Andrews Map
Date:
1766
Ref:
HALS - CM26
1.1 Why we consider this document important
Dury and Andrews’ 1766 county map of Hertfordshire describes itself as ‘a Topographical
map of Hartford-Shire, from Actual survey; In which is Expressed all the roads, lanes,
churches, noblemen and gentlemen’s seats, and every Thing remarkable in the County’. It is
a map made from an original survey, although it is a schematic map (like the London
Underground map) rather than one to scale. In this way its level of accuracy does not match
modern Ordnance Survey maps, but it is useful evidence for the existence of routes in the
18th century. The Planning Inspectorate's Consistency Guidelines state that “Overall, the
evidential value of the older maps can be significant in helping to determine the location of a
way, and can be helpful in determining the status of a route, especially in conjunction with
later maps.” Dury & Andrews’ map shows the basic layout of roads but details like field
boundaries were probably decorative. The “explanation” (or legend) lists ‘Roads’ in 3
categories – “open”, “one side enclosed by a Hedge”, and “enclosed by Hedges”. It does not
appear to show routes which, at the time, were thought to be footpaths or bridleways. The
map was produced to be sold to members of the public which mean that it is likely the routes
shown were public rather than private. As public roads prior to 1835 were maintainable by
the parish, it is likely that routes shown are now publicly maintainable.
1.2 What is shown by this document in the
area of the application route?
Dury and Andrews map of 1766 depicts the
linear settlements at Lilley in the west and
Offley in the east with the public road known
today as Hollybush Hill/Luton Road connecting
them. Between Lilley and Offley there is a
settlement at Mill Farm. There is no apparent
depiction of the application route on the map.
1.3 Investigating Officer’s comments
No conclusions can be drawn about the
application route from Dury and Andrews map.
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2. Lilley and Offley Inclosure Inclosure Records
Date:
Act 1768 - Award 1769
Award ref: HALS - QS/E/47
2.1 Why we consider these documents important
Enclosure was the process of physically changing the landscape to benefit the development
of modern farming practices as technology improved. It was popular from the late medieval
period to the 19th century and carried out on a parish-by-parish basis. As it changed the
layout and size of fields it also changed the routes of roads and rights of way.
Inclosure was the legal process of carrying out the physical changes. It could be carried out
by agreement, but where this was not possible an Act of Parliament was needed to grant the
powers to make the desired changes. Through time such Acts became more popular than
agreements. Prior to 1801 these powers were granted to each parish individually by private
Acts of Parliament. In 1801 the first General Act was passed which could be used by any
parish. Further General Acts were passed in 1836 and 1845. However, private Acts
continued to be obtained if the required powers were not granted by the General Acts. They
are important evidence to show us what powers the commissioners had and, if available,
they should be read in conjunction with the Inclosure Award and Inclosure Map, which
recorded the inclosure process.
The award is the written record of the changes that were made. It lists the lands that were
given to each landowner, the roads and rights of way that were stopped up and those that
were set out, or created. The map (which was not legally required until 1845) shows
pictorially the changes made.
As inclosure was a detailed legal process with powers granted by Parliament, it can give us
conclusive evidence of a right of way.
2.2 What is shown by these documents in the area of the application route?
The Lilley Private inclosure act occurred in 1768 and granted the commissioners the power
to set out fields, roads (public and private), bridle roads, foot ways in the parishes of Lilley
and Offley except for the common land at Sheep Down more commonly known as ‘Lilley
Hoo’.
The act required the commissioners to set out and appoint public highways through the
fields, lands and grounds divided and inclosed in the award. Any former roads or ways not
set out and appointed as highways through the inclosures were therefore deemed to be part
of the lands and dived and allotted as such. The Lilley inclosure award does not have an
accompanying map and relies on description to interpret the lands and highways set out.
Four roads were set out leading into Lilley Hoo, two of which were described as ‘private
roads’ including Stocking Hill Lane, which leads from Lilley village east into Lilley Hoo on the
south boundary of Stockinghill plantation, and Broadly Baulk which is to the south of
Stockinghill heading east out from Lilley village into Lilley Hoo and recorded today on the
Definitive Map as Lilley bridleway 10. The other two roads into Lilley Hoo are described as
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‘public’ roads and are set out with a width of 60 feet. One is Kingshill Lane, known today as
Lilley 13 on the Definitive Map, which runs from the road known today as Hexton Road east
into Lilley Hoo. The other is the application route as described in the award below:
“And also that there be another publick cart road and drift way for the use of coaches,
carts and other carriages from out of the said road herein before by us set out from the
said Dogkennel Lane to West Lane at the south east corner of the said copyhold
allotment herein before by us awarded to the said Thomas Shepheard in the said parish
of Offley into through and over the said allotment herein before by us awarded to the
said surveyor of the highways of the said parish of Lilley in Little Field aforesaid into
through and over the said freehold and copyhold allotment herein before by us awarded
to the said Thomas Dove in the parish of Lilley into through and over the said freehold
and copyhold allotments herein before by us awarded to the said Richard Dawes to the
south west corner of the said inclosure called Penn Close and be continued on the west
side of the same close into and upon the said Sheep Down called Lilley Hoo which said
publick coach cart carriage and drift way here in before by us set out shall be and
remain now and at all times forever hereafter of the breadth of sixty foot in every part
there of”.
The application route is described as running ‘into, through and over’ land awarded to the
surveyor of the highways which falls within the land set out in a larger area known as ‘Little
Field’. The land awarded to the surveyor of the highways consists of a small field of one acre
and bounded on the east by the road leading from Lilley to Offley (known today as Hollybush
Hill) and on the west and north by the freehold allotment awarded to Thomas Dove.
“And that parcel of land and ground in Little Field aforesaid containing by statute
measurement one acre as the same is now measured stated and set out and bounded
on the east by the said road leading from Lilley to Offley on the south by the allotment
herein before awarded to the said Fitzwilliam Barrington and Edward Samm in Little
Field and on the west and north by the aforesaid allotment herein after awarded to the
said Thomas Dove in the parish of Lilley and Offley…”
The description of the land awarded to the surveyor of the highways above helps to identify
the location of the application route running into Lilley Hoo.
2.3 Investigating Officer’s comments
The Inclosure award provides strong evidence that the application route was considered to
be a public highway with vehicular status as it sets it out as a ‘publick cart road and drift way
for the use of coaches, carts and other carriages’ with a width of 60 foot running into Lilley
Hoo past inclosures including those belonging to the surveyor of the highways and Thomas
Dove.
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3. Bryant’s Map
Date:
1822
Ref:
HALS - CM88
3.1 Why we consider this document important
Andrew Bryant’s 1822 map of Hertfordshire was again drawn from an original survey. Its
depiction is much more accurate (like an Ordnance Survey map) rather than being
schematic. This may be due to survey equipment (theodolites) becoming commercially
available in the 1790s. The “explanation” (or legend) lists “Turnpike and Mail Roads”, “Good
Cross or Driving Roads” and “Lanes & Bridleways”. It is unlikely that it shows routes which,
at the time, were thought to be footpaths. Like Dury and Andrews’ map, Bryant’s map was
sold to members of the public and cost 3-4 guineas. The commercial nature of the map
means that routes shown are likely to be public unless there is strong contemporary evidence
which shows that routes are private. As public roads prior to 1835 were maintainable by the
parish, it is likely that routes shown are now publicly maintainable.
3.2 What is shown by this document in the area of the application route?
Bryants map of 1822 depicts the
settlements of Lilley in the west
and Great Offley in the east. The
road connecting Lilley and Great
Offley is clearly depicted with the
Parish Boundary running through
the centre of the lane in the
middle of the two settlements.
The three roads mentioned above
in the inclosure, Kings Hill Lane,
Stocking Hill Lane and Broadly
Baulk, are all depicted running
east out of Lilley and terminating
in Lilley Hoo. Adjacent to the
Parish boundary, Lilleyhoo Lane
is shown running in a south
easterly direction from Lilley Hoo
to the main road in the style of a ‘Lane or Bridle Way’ with the parish boundary running up
the centre of part of the road. The access road to Lilleyhoo farm is depicted connecting to
the Lilleyhoo Lane branching out to the north east. The application route is depicted in the
style of a ‘Lane or Bridle Way’ as an extension of the existing public road Lilleyhoo Lane
terminating in the hills to the north east of Lilley.
3.3 Investigating Officer’s comments
The application route is clearly depicted as an extension of the currently existing public road
leading up to Lilleyhoo Farm. This suggests that at the time that the Bryant map was
surveyed, the application route was considered to be a public highway of bridleway status or
higher.
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4. Oxford & Cambridge Railway Plans
Date:
1845
Ref:
HALS R739 - 744
4.1 Why we consider these documents important
Before compulsory purchase powers were introduced, proposed canal or railway
developments had to either have the consent of all affected landowners or a private act of
Parliament passed to authorise the purchase of land. Before a Private Act could be passed,
the land affected would be specifically surveyed (rather than pre-existing maps being used),
and plans produced showing the strip of land the route of proposed railway/canal would
cross. Land either side of the route would be shown up to the “limit of Deviation”. All land
was plotted, and details given in a Book of Reference.
This included details of
landownership and land use.
There was a requirement in section 71 of the Highways Act 1835 that where the railway was
to cross a vehicular highway, the railway company was to provide gates and employ
someone to open and shut the gates. This was so that users of the highway were not
exposed to danger or damage from the trains. Under the Railway Clauses Consolidation Act
1845 (from s46) strict requirements were laid out about how to deal with public and private
roads crossing railways including widths, arch heights and gradients as shown in the plans
and cross sections. Requirements for how to deal with footpaths and bridleways are also
given. Bridges were generally only required for routes of bridleway status and above.
There was a high level of public consultation required on the proposed plans before they
were considered by Parliament. This led to a high level of accuracy of those plans. Although
it was not the primary purpose of railway plans to record rights of way, these plans provide
good evidence of their existence. Arguably, those plans which went ahead and completed
the parliamentary process have greater evidential weight than those which did not.
4.2 What is shown by these
documents in the area of the
application route?
The planned Oxford to Cambridge
Railway route from 1845 depicts the
planned alignment of the railway
through Royston, Baldock, Hitchin,
Offley, Lilley and Luton onwards. The
plans however never materialised as the
railway company decided to route the
railway from Bedford to Cambridge
through Sandy and Henlow instead.
The application route is shown on the
plans as a continuation of Lilleyhoo
Lane, which falls within the limit of
deviation for the new railway and as such has been given the plot number 6. The
accompanying book of reference describes plot 6 as ‘public highway’ occupied by ‘the
public’.
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4.3 Investigating Officer’s comments
The whole length of Lilleyhoo Lane, including the currently recorded public road and
application route, is depicted on the Oxford to Cambridge railway plans and described as
‘public highway’. This provides strong evidence that the application route was considered to
be a public highway, although the status is not defined.
5. Lilley Tithe Map and Tithe Apportionment
Date:
Award 1847 & Map 1848
5.1
Ref:
HALS DSA4/67/1 - Award
DSA4/67/2 - Map
Why we consider these documents important
A ‘tithe’ was literally a ‘tenth’ of the produce of the land and was paid in kind to finance the
Church (crops were stored in ‘tithe barns’). The tithe surveys were carried out under the
Tithe Commutation Act of 1836 to reform this system to an easier money payment. Maps
were drawn up to show the titheable land in order to assess the amount of money to be paid.
In 1837 the Act was amended to allow maps produced to be either 1st class or 2nd class.
They did not have to be made from an original survey. 1st class maps are legal evidence of
all matters which they portray, and were signed and sealed by the commissioners. They had
to be at a scale of at least 3 chains to the inch. 2nd class maps were evidence only of those
facts of direct relevance to tithe commutation, and are often at 6 chains to the inch. Both 1st
and 2nd class maps have been accepted by the courts as evidence. Unfortunately the
proposed convention of signs and symbols to be used, which included Bridle Roads and
Footpaths, was not strictly adhered to.
The tithe process received a high level of publicity. This ensured the documents were an
accurate record of the agricultural landscape at this period of history. Therefore, although the
process was not directly concerned with rights of way, inferences can be drawn from tithe
documents regarding the existence of public rights. Non-titheable land deemed to be
unproductive could be excluded from the process. No tithe was therefore payable on roads
and so it was in the interest of the landowners for these to be shown correctly. Taken
together with corroborative evidence, highways that are coloured yellow or sienna can
indicate public status. Footpaths and bridleways are not often shown on tithe maps as they
did not generally affect the
productivity of land and so the
calculation of tithe rent.
5.2 What is shown by these
documents in the area of the
application route?
The Lilley Tithe map surveyed by
W.T. Heard, Hitchin depicts the
settlement at Lilley and the
parish boundary dividing Lilley
from Luton in the west, Hexton in
the north and Offley in the south
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and east. The public road dividing Lilley and Offley known today as Hollybush Hill/Luton
Road is depicted bounded by 2 solid lines under the reference 209 which the accompanying
award describes as a ‘Road’. Lilleyhoo Farm is depicted under references 81 and 83 which
the award describes as Rick yard, Homestead and Orchard. The application route is
depicted in the same manner as Hollybush Hill/Luton Road bounded by 2 solid lines running
to the west of Lilleyhoo Farm and labelled under the reference 79a, which the award
describes as a Road. Plot 77, adjacent to the application route and the road known today as
Hollybush Hill, is described as an arable field of 1 acre awarded to ‘Parish Highway
Surveyors’ previously mentioned in the inclosure award of 1769.
5.3 Investigating Officer’s comments
The Tithe records of Lilley provide supporting evidence that the application route was a road
and is suggestive of public status. This is because its reference 79a, along with other public
roads including 209 the reference for the public road known today as Hollybush Hill, appear
under a separate list of Roads at the end of the award who have no listed owners and are
remarked to be ‘Tithe free’ suggesting that these were public roads maintained by the parish.
6. Ordnance Survey maps
Date:
1881 1st Ed & 1898 2nd Ed
Ref:
HALS
6.1 Why we consider these documents important
The original surveys were carried out by Royal Engineers at the time of the Napoleonic wars
in order to better plan the transportation of ordnance around the country. It was only in the
early 20th century that the OS evolved to become a public service that sold its mapping
information to the public. Since the 1960s this mapping information has included public
rights of way, which are derived from each county’s Definitive Map.
The Ordnance Survey has produced a series of topographic maps at different scales notably
the one inch, six inch and 1:2500. The detailed, large scale 1:2500 maps from the 1870s
onwards provide the best evidence of the position and width of routes and the existence of
any structures on them. These maps provide good evidence of the physical existence of
routes at the time the map was surveyed. When compared with earlier, less accurate maps
they can help corroborate the existence of routes. Ordnance Survey maps show features
that physically exist and may label routes as footpaths and bridleways etc. However, the
disclaimer which has been added to all editions since the 2nd edition maps (circa 1897/8 in
Hertfordshire), along with official guidance to the surveyors of the maps at the time, states
that the representation of any track or way is no evidence of a public right of way.
6.2 What is shown by these documents in the
area of the application route?
The Ordnance Survey 1st Edition 1: 2500 scale map
surveyed in 1881 depicts the application route as a
continuation of Lilleyhoo Lane adjacent to Lilleyhoo
Farm bounded by 2 solid lines and included within
land parcel number 480. The public road known
today as Hollybush Hill connects to Lilleyhoo Lane
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at its southern end and is recorded under
reference 200. The area books for Lilley and
Offley do not contain land use information however
so it is not possible to check the land parcel
references.
The Ordnance Survey 2nd Edition 1: 2500 scale
map surveyed in 1898 depicts a very similar
picture to that of the 1st edition with the addition of
double dashed lines connecting to the application
route adjacent to point 1 depicting the routes
known today as Lilley footpath 12 running east to
west, Lilley bridleway 9 running north west and
Lilley bridleway 10 running north/south. Lilley bridleway 10 is annotated ‘B.R.’ which stands
for ‘Bridle-Road’ under Ordnance Survey mapping convention. The width of the application
route varies from 19 to 20 metres between the 2 solid boundary lines.
6.3 Investigating officer’s comments
The 1st and 2nd edition Ordnance Survey maps are evidence of the physical existence of the
application route on its current alignment since at least 1881. Ordnance survey maps
however provide no evidence of the status of the application route or whether it was a public
or private route.
7. Inland Revenue Documents
Date:
1909-10
Ref:
HALS Map
Book of reference
7.1 Why we consider these documents important
IR1 103
IR2 37/1
The Finance (1909-1910) Act 1910 was passed in order that a tax could be levied on any
increase in the value of land when it changed hands. In order to ascertain the value of all
land as at 30th April 1909, a survey was carried out assessing each piece of land. The OS 2nd
Edition Plans (usually from 1898) were used as the base maps and annotated. Details were
recorded in field books and valuation books. These books included a column which allowed
a deduction in tax if a public right of way crossed the land. Every property was given a plot
or ‘hereditament’ number which was then referred to in the valuation books and maps.
Hereditaments were coloured on the maps to identify land holdings. Not all land was
coloured.
Once a provisional valuation of a property had been reached, landowners were given the
opportunity to appeal. The whole process was carried out under statutory authority by the
Valuation Department of the Inland Revenue and there were criminal sanctions associated
with the falsification of evidence. It would have been negligent to omit such land from the
survey, including private roads, which might have had value. However, it was not a criminal
offence not to deduct tax if a right of way did cross your property. Consequently, the resultant
records carry a high level of evidential weight as to the routes which they show to exist, but
are unlikely to be good evidence that rights of way do not exist.
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Where a route is shown uncoloured on the plans and excluded from the taxable land this
provides very strong evidence of it being public highway. Usually this will be of vehicular
status unless there is other contemporary evidence to indicate otherwise. Where footpaths
and bridleways cross privately owned land these may be recorded as a reduction to the tax.
However, where routes cross large hereditaments it can be difficult to establish which route is
considered to be the right of way without additional details.
7.2 What is shown by these documents in the area of the application route?
The Inland Revenue plans show the
whole of Lilleyhoo Lane including the
current public road and the application
route which runs from the southern
boundary of Lilleyhoo Common (plot 431)
in a south easterly direction to the
southern boundary of Lilleyhoo Farm. It is
uncoloured
and
separate
from
surrounding taxable land plots 416, 403
and 431. The width of the application
route varies between 19 and 20 metres.
The accompanying field book describes
plot 403 as Lilleyhoo Farm belonging to
Tobey Cork with a total acreage of 66.
Plot 416 belongs to Franklin Thurs with a
general acreage of 211 and a deduction
of £30 for rights of way or user.
7.3 Investigating Officer’s comments
The fact that the whole length of Lilleyhoo Lane, including the part currently recorded as a
public road, is shown uncoloured and excluded from the surrounding taxable land on each
side, is strong evidence that the application route was considered to be public highway at the
time, most likely with vehicular status.
8. Highways Maintenance Records
Date:
1926 - 2016
Ref:
HALS HCC Highways
The Rural District of Hitchin (Main Roads) (No.2) Order 1926
8.1 Why we consider these documents important
Maintenance of a route by the public is strong evidence that it is a highway, although it
should be noted that not all highways are automatically maintainable at public expense.
However it is important not to confuse ‘maintainable’ (i.e. duty to maintain) with maintained
(i.e. works done). It should also be noted that lack of maintenance of a route does not
necessarily mean a route is not highway.
The Highways Act of 1555 provided that parishes and their inhabitants had the responsibility
for maintaining all existing public highways. The physical work was to be done by the
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inhabitants and each parish had to provide an unpaid parish surveyor who was obliged to
keep a detailed account of public monies expended. This situation remained largely
unchanged until the 1835 Highways Act, which allowed parishes to combine into larger
groups for maintenance purposes. The Highways Act of 1862 allowed parishes to combine
into Highway Districts under Highway Boards and after 1878 Highway Boards could
amalgamate with Rural Sanitary Authorities. The Local Government Act of 1888 introduced
elected County Councils, which took over “main” roads, while after the Local Government Act
1894 new Rural District Councils took over all other roads. Responsibility for maintenance of
these roads was handed over to the County Councils in 1929.
Under the Highways Act 1835 pre-existing highways continued to be maintained at public
expense. Any highways established after that date needed to be ‘adopted’ to show they
were liable for repair at public expense. Highway Boards accounts from this period can
provide evidence of a route being maintained and is therefore strong indication of public
highway. Most routes referred to in this manner are now part of the county’s road network.
The County Council is required under the Highways Act 1980 to keep up to date a list of the
streets within Hertfordshire which are highways maintainable at public expense. There are
no rules or regulations about what information is required, or how it is to be presented or
amended. The County Council holds this information as part of the Hertfordshire Roads
Gazetteer, which is itself part of the Hertfordshire Roads Management Database. It is a
record of what is maintainable, not necessarily what is maintained. It should be noted that
whilst the information is referred to as the “List of Streets”, it is not held as a paper list but
kept electronically.
If there is evidence that the application route was a vehicular highway, consideration of
whether or not a route was recorded on HCC’s List of Streets has to be given due to the
effect of the Natural Environment and Rural Communities Act 2006 (‘NERC’). NERC
introduced legislation which automatically extinguishes all mechanically propelled vehicle
(‘MPV’) rights, unless they were exempted by one of the exceptions provided. One of these
exceptions applies to routes that were recorded on HCC’s List of Streets immediately before
2nd May 2006, provided that they were not already recorded as a public footpath, bridleway,
or restricted byway. Where there is evidence that a route was a vehicular highway, then
under NERC the continued existence of any MPV rights will depend on whether this or any
one of the other exceptions provided is met.
8.2 What is shown by these documents in the area of the application route?
The Rural District of Hitchin (Main Roads) (No. 2) Order 1926 for Lilleyhoo Lane was an
order made by Hertfordshire County Council with powers granted by The Highways and
Locomotives (Amendment) Act 1878, and the Local Government Act 1888 to declare certain
highways in Hertfordshire to be ‘main roads’ which were vehicular highways maintainable
under public expense. Lilleyhoo Lane was included in the order under number 974 with the
following description:
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“From Main Road between Hitchin and Luton, past
Lilley Hoo Farm towards Lilley Hoo”.
The length of the road from Hollybush Hill, extending north
west towards Lilley Hoo was declared to be 649m (3
furlong 50 yd) meaning that the order is inclusive of the
application route between points 1 and 2 as the distance
from the extent of the highway at Hollybush Hill to point 1
of the application route is currently approximately 638m.
However, only part of Lilleyhoo Lane, not including the
application route, appeared on Hertfordshire County
Councils List of Streets on 2 May 2006. This was the date
of the commencement of the Natural Environment and
Rural Communities Act 2006 which stopped up all
unrecorded vehicular rights except in certain exceptions
such as routes appearing on the list of streets immediately
prior to the date of commencement. The entirety of the
application route between points 1
and 2 did not appear on the list of
streets on 2 May 2006.
The Hertfordshire County Council’s
Gazetteer 2016 depicts the full extent
of Lilleyhoo Lane including the
application
route
as
highway
maintainable at public expense. The
Gazetteer however differentiates
between who in the county council
maintains the currently recorded
public road and the part of the
application route between points 1 and 2. The public road is maintained by the highways
department and the application route, from the access to Lilleyhoo farm to Lilley Bridleway
09, is maintainable by the Rights of Way service as in 2006 the county council decided that
all un-metalled routes would be maintained by the Rights of Way Service and all metalled
services would be maintained by the Highways service.
8.3 Investigating Officer’s comments
The Rural District of Hitchin (Main Roads) (No. 2) Order 1926 shows that the application
route was adopted as publically maintainable highway with vehicular status in 1926 as part of
Lilleyhoo Lane. The application route however must have fallen off Highways records
between 1926 and 2015 when it was placed back on the List of Street as an un-metalled
Unclassified County Road.
Hertfordshire County Council’s Gazetteer in 2016 indicates that the council contemporarily
consider the application route to be highway maintainable at public expense.
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9. Definitive Map Records
The National Parks and Access to the Countryside Act 1949 required the County Council to
prepare a Definitive Map and Statement to show and describe the public rights of way in the
county. The Map is conclusive evidence of what it shows, but is without prejudice to what is
not shown.
The process resulting in today’s Definitive Map and Statement consists of several stages
which are dealt with below:
a) the Parish Survey
b) the Draft Map, Provisional Map and first Map and Statement (1953)
c) the Special Review (following the Countryside Act 1968)
9a. Definitive Map Records – Lilley Parish Survey
Date: 1951- 1954
9a.1
Ref:
HCC
Why we consider these documents important
Under the National Parks and Access to the Countryside Act 1949 the county council was
required to show all public paths which were defined as “footpaths”, “bridleways” and “roads
used as public paths”. This last term was never properly defined and has resulted in much
confusion ever since. There was no requirement to record public vehicular highways.
In Hertfordshire each parish carried out a survey of the paths which were believed to be
public. Sometimes additional surveys were carried out by the Ramblers’ Association or the
Youth Hostel Association; or comments were made by them on the parish’s survey. The
surveys once completed were sent to the County Council for collating and publishing as the
Draft Map.
9a.2
What is shown by these documents in the area of the application route?
The application route appears on the underlying Ordnance Survey map used to construct the
parish survey map as part of Lilleyhoo Lane connecting to routes 9 and 12. The application
route however was not recorded in the Lilley Parish statements although the statements for
the connecting routes 9 and 12 made mention of
the application route as ‘Lilleyhoo Lane’. The
statement for Lilley Bridleway 9 connecting to the
application route at point 1 read:
“Commences from junction with CRB 8
(Icknield Way) W. of Telegraph Hill thence SE.
to Lilley Hoo thence S. passing to the E. of
Kingshill Plantation and Stockinhill Plantation
past RB 10 to join Lilleyhoo Lane W. of
Lilleyhoo farm.”
The statement for Lilley 12 connecting to the
application route also at point 1 read:
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“Commences from N. end of Lilleyhoo Lane thence W. to join BR. 10 at edge of
plantation”.
9a.3
Investigating officer’s comments
The application route was not considered during the Lilley Parish Survey. The statements for
Lilley 9 and Lilley 12 however both refer to Lilleyhoo Lane. It may have been that the
application route was not considered to be added to the Definitive Map in the parish survey
as it was considered to be a public road and therefore public highway of a higher status than
those required to be recorded on the Definitive Map.
9b. Definitive Map Records – Draft, Provisional and First Definitive Map
Date:
1954-1958
Ref: HCC
9b.1 Why we consider these documents important
The parish surveys were collated into the Draft Map and Statement. Notices were published
advertising that the Draft Map and Statement had been produced so that the public (including
landowners) could object to what was included or to what was omitted. Hearings were held
to consider these objections and recommendations were made based on the evidence
presented.
The Draft Map and Statement was amended following the hearings to produce the
Provisional Map and Statement. As before, notice of the production of the Provisional Map
and Statement was advertised but this time only landowners, lessees and tenants could
apply to the crown court to amend the map – the public could not. The map and statement
were then amended to reflect the court’s finding.
Please note that these records vary across the county as a full sequence of Draft Map and
then Provisional Map has not always been kept.
After the amendments to the Provisional Map and Statement were made, the First Definitive
Map and Statement for Hertfordshire was produced. The Map and Statement together
provide conclusive evidence of the existence of those public rights of way shown at the
‘relevant date’ of 1953; i.e. the information shown was correct at that date.
9b.2
What is shown by these documents in the area of the application route?
The Draft and Provisional maps are not
available for the area crossed by the
application route.
The First Definitive Map depicts the Lilley 9
and 10 in green in the style of a public
bridleway. Lilley 12 is depicted in purple in
the style of a public footpath connecting to
Lilley 9 and the application route on
Lilleyhoo Lane bounded by 2 solid lines and
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coloured white on the underlying OS map.
The statements for the first Definitive Map read as follows:
Lilley 9 – “Commences from junction with C.R.B 8 (Icknield Way) W. of Telegraph Hill
thence S.E. to Lilley Hoo thence S. passing to E. of Kingshill Plantation and Stockinghill
Plantation and Stockinghill Planation (sic) past B.R. 10 to join Lilleyhoo Lane W. of
Lilleyhoo farm.”
Lilley 12 – “Commences from N, end of Lilleyhoo Lane thence W. to join B.R. 10 at the
edge of plantation.”
9b.3
Investigating officer’s comments
The application route is not included on the 1st Definitive Map although it is depicted by the
underlying OS base map and described as the end points of Lilley 9 and 12 indicating that
the public road Lilleyhoo Lane, inclusive of the application route, was considered to extend
as far as Lilley 9 and 12. It may have been that the part of Lilleyhoo Lane inclusive of the
application route was considered by the county council to be a public road of a higher
highway status than those recorded on the Definitive Map.
9c. Definitive Map Records - Special Review
Date: 1984
Ref: HCC
9c.1
Why we consider these documents important
The Countryside Act 1968 created the new designation right of way to be recorded - a
“byway open to all traffic”. This was the first time that vehicular rights were recorded on the
Definitive Map. It also required county councils to carry out a Special Review to reclassify all
“roads used as public paths” as either “footpaths”, “bridleways” or “byways open to all traffic”.
In Hertfordshire the Special Review was started in 1977. This was later extended to include
all the amendments to the network made by diversions since the first Definitive Map. It also
showed if applications had been made to add or amend details of routes. Copies of the
Special Review Draft Map showing all these changes were published, inviting objections from
the public. Due to the number of objections received and not resolved, the Secretary of State
ordered the abandonment of the Special Review in Hertfordshire in 1984. The Definitive Map
and Statement was amended to show all changes which did not have outstanding objections,
and these were shown on the Definitive Map and Statement produced in 1986.
9c.2
What is shown by these
documents in the area of the
application route?
None of the documentation on file refers
to the application route, which was not
considered during the Special Review
Process.
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9c.3
Investigating officer’s comments
No conclusions can be drawn about the application route from the Special review.
10. Highway Diversion, Creation and Extinguishment Records
Date:
1972
Ref: HCC – ROW SRO 53
10.1 Why we consider these documents important
Most orders diverting or extinguishing rights of way were made under the Highways Acts.
The orders could be made by certain courts, which up until the mid-part of the 20th century
were the Quarter Sessions courts and were held 4 times a year. The Quarter Sessions
courts were superseded by the magistrates’ court in 1972. Certain orders can now also be
made by other authorities, such as a governmental department or local highway authority.
Orders relating to highways can also be made under other Acts of Parliament, such as the
New Towns Acts, the Housing Acts, the Town and Country Planning Acts or the Defence
Acts. Side roads orders are made under the Highways Acts to deal with changes to the local
highway network following the construction/improvement of a road. These can be made by
the government minister in respect of trunk roads, or by the highway authority in respect of all
other highways.
In all cases, these legal orders affect the public highway rights by creating, diverting and
extinguishing them. As these are legal documents they provide conclusive evidence of those
matters actually decided, but are not conclusive in relation to other matters.
10.2 What is shown by these documents in the area of the application route?
In the 1970s the Department for the
Environment planned and built the Offley
Bypass (A505) creating a direct road dual
carriageway connection between Luton and
Hitchin.
Part of the plans included the
stopping up and diverting of other adjacent
highways affected by the new Bypass of which
Lilleyhoo Lane was one of them.
The Great Offley By-Pass Road Scheme (Side
Roads) Order 1972 was made under the
enabling powers of the Town and Country
Planning Act 1971. Points 4 and 5 of the
schedule dealt with the stopping up of part of
the public highway at Lilleyhoo Lane:
4. “A length of Lilleyhoo Lane (U.C.109)
starting at its junction with the Luton to
Hitchin Road (A.505) and extending north
westwards for 63 yards”.
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5. “A further length of Lilleyhoo Lane (U.C.109) starting 97 yards north west of its
junction with the Luton to Hitchin Road (A.505) and extending north westwards for 57
yards”.
as well as the proposed re-routing of Lilleyhoo Lane underneath the newly created Bypass
and connecting to the public road at Hollybush Hill (the old route of the A505).
The side roads order does not mention the part of Lilleyhoo Lane inclusive of the application
route, although the plans depict part of it from point 2 adjacent to the southern boundary of
Lilleyhoo Farm continuing beyond the extent of the plan.
10.3 Investigating Officer’s comment
The Great Offley By-Pass Road Scheme (Side Roads) Order 1972 provides evidence of the
realignment of part of Lilleyhoo Lane (not including the application route) in 1972. It shows
that Lilleyhoo Lane at the time of the order was considered to be an unclassified road (U.C.
109) and that it continued, on the map, beyond point 2 of the application route adjacent to the
southern boundary of Lilleyhoo Farm.
11. Contemporary Evidence of Use
11.1 Why we consider the evidence important
Evidence is generally provided through the completion of evidence questionnaires by users
and from information provided by the owner of the land. User evidence may support historic
evidence of a right of way. However, where there is no historic evidence of a route it is
possible for a public right of way to come into existence if it can be shown that members of
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the public have used it ‘as of right’ without interruption (usually) for a period of 20 years. In
order for the public’s use of a route to have been ‘as of right’ it must have been:
 without force (e.g. not breaking down a fence to access the route)
 without secrecy (e.g. not just using the route when landowners were away)
 without permission (i.e. not having the permission of the landowner).
Unless there is historic evidence of rights as well, legislation requires there to be evidence of
20 years’ use which ends with a ‘date of challenge’ (section 31 of the Highways Act 1980).
The ‘date of challenge’ is the date at which the landowner challenges the use of the route
e.g. by putting up a notice. Where there is no evidence that use has been challenged,
section 31(7B) of the Highways Act 1980 specifies that the date of application should be
used as the end of the 20 year period.
Under common law a right of way can also come into existence in less than 20 years if it can
be shown that there was dedication of the route by the landowner and acceptance of the
route by the public.
Under Section 31, after a period of 20 years use, it is presumed that a right of way has come
into existence. Where a landowner can produce evidence to show that they have taken
steps to prevent the accrual of new public rights of way through use of a route by the public,
no such right will be dedicated. Such steps must be overt and make the public aware of the
landowner’s intentions. They can include placing and maintaining notices on site stating that
the route is not public or that it is used with permission; by erecting and locking gates; or by
telling people seen using the route that it is not public, etc.
In addition to placing notices on site, section 31(6) of the Highways Act 1980 (following on
from the Rights of Way Act 1932) allows landowners to deposit a map and statement with the
County Council showing the public rights of way across their land. Following this,
declarations need to be made regularly to the effect that no additional ways have since been
dedicated. It should be noted that making such deposits and declarations will not affect preexisting rights.
Below is a summary of the evidence we have received, including a table showing the
information provided in the user evidence forms.
11.2 Summary of Evidence
At the time of investigation no user evidence had been submitted. There are no section 31
(6) 1980 Highways Act deposits covering the area which the application route crosses from
points 1 to 2.
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12. Additional Evidence Supplied by Applicant
As well as extracts of documents already considered above, the applicant submitted the
following items:
i)
Hertfordshire County Council Rights of Way Survey (c. 1938) – reference HALS
Off Acc 288 (unboxed)
The applicant submitted an extract of the record book from a 1938 survey of rights of way, for
the area Hitchin Rural – West by Hertfordshire County Council. The book contains a record
of all the public highways recorded by Hertfordshire County Council at the time (Appendix B).
The survey includes Trunk roads, County Roads (class 1, 2, 3 & unclassified), Footpaths,
Bridleways, Green Lanes and diversions of rights of way.
The application route is depicted on sheet 7 coloured in yellow, which represents unclassified
county roads, as part of Lilleyhoo Lane. Points 1 and 2 of the application route appear on
the map as the route extends from the southern boundary of Lilleyhoo Farm up to and past
the southern boundary of Lilley Hoo connecting to 2 two bridleways indicated by blue dots at
its northern extent.
The applicant draws the conclusion that the Hitchin Rural West survey of public footpaths
and bridleways by Hertfordshire County Council shows that application route carried
vehicular rights at the time of the survey.
ii)
Land Charges Map (c. 1980)
The applicant submitted an extract of a Hertfordshire County Council Land Charges map
from the 1980s which depicts the full extent of Lilleyhoo Lane including the application route
coloured in yellow and labelled 5U109 (Appendix C). The purpose of these maps was to
show which routes the county council regarded to be highways maintainable at public
expense at the time. The applicant states that “the relevance of these records is that where
a route is coloured yellow and numbered, it was considered by the county council to be a
vehicular highway maintainable at the public expense. This means that a formal stopping up
order (or perhaps a magistrates court order ceasing the public maintainability) is needed if
the route no longer has that status”.
iii)
Inspire (2015)
The applicant submitted an extract of the application route from INSPIRE mapping which is a
web mapping service that provides map images of HM Land Registry’s records (Appendix D).
It shows the whole of Lilleyhoo Lane, including the application route, being separate from any
registered landholding. The applicant states that ‘this characteristic is typically found for
vehicular highways of ancient origin’. The applicant draws the conclusion that this supports
the view that the application route is a vehicular highway of ancient origin.
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Appendix
A – Extract of Definitive Map of Rights of Way for Hertfordshire showing application route.
B - Hertfordshire County Council Rights of Way Survey (c. 1938) (submitted by the applicant)
– reference HALS Off Acc 288 (unboxed)
C - Land Charges Map (c. 1980) (submitted by the applicant)
D – Inspire Map (2015) (submitted by the applicant)
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Appendix A
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Appendix B
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Appendix C
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Appendix D
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