News Release [from Byway and Bridleway 2004/3]

PINS's consistency guidelines are to be reissued without proper revision


B&B reports on a disaster in the making
Readers may recall the report in B&B 2003/8/55-6 about the periodic 'user group meeting' hosted by PINS, where the principal topic of discussion was the consistency guidelines - the meeting where PINS's director Brian Dodd famously remarked "I don't care how many cases Inspectors get wrong; I want consistency of decisions." In the run-up to that meeting, Brian Dodd circulated a draft 'protocol' for revising the existing guidelines, and making new ones. This was an iterative process of drafting, consultation and correcting, with the specialist voluntary sector (i.e. the principal critics) deeply involved. That process was discussed (BBT regarded it as a good starting point, and made suggestions in advance of the meeting to improve it further) and it was agreed that PINS would revise the draft and put a proper amending process in place - at which time critics and contributors would be able to have a systematic and trackable input. At the meeting, Robert Halstead and Sue Hogg gave PINS a detailed critique of (in particular) s.11 of the guidelines, dealing with the Finance Act 1910. The section was not, they said, slightly inaccurate; it was downright incorrect and in no way reflected the provisions of the act. As a consequence of this meeting, the following caveat was appended to the contents list of the guidelines on the PINS website:
WARNING
Sections 7 (Inclosure Awards), 8 (Tithes), 9 (Turnpikes) and 11 (Finance Act) are under review. Please refer to paragraph 6 of Brian Dodd's Foreword.
S.11 of the guidelines is not a particularly lengthy chapter: when printing the web pages complete with sidebars it takes only a page and a half of A4. These are two of the substantive paragraphs as originally published, and carrying the 'beware' tag:
Status
11.4 Where the valuation books show a deduction for a path crossing an hereditament, this can be good evidence that the route was then considered to be public. These 'crossing' highways are likely to be footpaths or bridleways. The exclusion from valuation of land forming a way also normally indicates public rights, usually bridle or vehicular. However, a private right of way can diminish to no less an extent than a public right of way the value of land for the imposition of land tax. It is possible that an easement, for which a deduction is specifically allowed by the Act, may be the reason for the exclusion. A private road with a public bridleway running along it would also be unlikely to be assessed for the purposes of the Act. In consequence, the argument that the exclusion from valuation of land forming a way shows that it is a vehicular highway needs to be treated with caution.
Omissions
11.5 The absence of any record of a footpath or bridleway in Finance Act records is not necessarily of significance. The effect on the value of the land may have been too small to make a difference and, while it was in the landowner's financial interest to recognise a public right of way, some may have preferred to pay an unreduced tax rather than admit the existence of a public footpath or bridleway. In these circumstances the records relating to the adjacent landholdings may show the continuation of the path and these should be examined.
Now read the words in a decision letter by Inspector Alan Beckett BA, Msc, MIPROW, (ref: FPS/J1155/7/26, reported in this issue at page 35). The evidence before Mr Beckett included the fact that the order route was 'coloured out' and separate from adjoining hereditaments. At his paragraph 36: "The exclusion from surrounding hereditaments of an enclosed track … may indicate the existence of a public right of way, usually bridle or vehicular. However, a private right of way running over a track can diminish the value of land for land tax purposes to the same extent as a public right… In my view, on the balance of probabilities, the order route was excluded from the provisions of land tax assessment as the whole of the enclosed route was encumbered with a third party private right; as such the track would be unlikely to have any development value on which the incremental duty could be levied." Do you notice the close correspondence of Mr Beckett's reasoning to the wording of the 'suspect' guideline s.11? But the guideline also cited some case law guidance:
Case Law
Robinson Webster (Holdings) Ltd v Agombar (2001) - weight attached to evidence of non-inclusion of a route in the taxable land of a hereditament.
Mr Justice Etherton says at para 46: [our emphasis]
"The next documents on which the Defendants rely are a map and schedule prepared pursuant to the Finance (1909 - 10) Act 1910. The 1910 Act provided for the levying of a duty on the incremental value of land, called increment value duty. The Board of Inland Revenue was to ascertain the site value of all land in the United Kingdom as at 30th April 1909 … The 1910 Act contains specific provision for reducing the gross value of land to take account of any public rights of way or public rights of user, as well as easements. Importantly, the Act contained criminal sanctions for falsification of evidence.

47. The 1910 Finance Act map and schedule are, in my judgment, most material evidence in relation to the status of the Blue Land at that time. It would have been in the interest of the owner of the Blue Land to acknowledge that the Blue Land was a public highway and so not taxable. On the other hand, it would have been the concern of those acting for the Commissioners to establish that the Blue Land was private land and not subject to public rights.

The fact that the Blue Land was not shown as falling within the hereditament of any private individual, but is shown as part of the general road network, in a survey which would have been undertaken by local officers of the Commissioners, and following consultation with the owners of private hereditaments, is a most powerful indication that the Blue Land was at that time thought to be in public ownership and vested in and maintainable by the District Council, which was the highway authority."

So Etherton J construes the act as requiring that all land be valued [except statutory exceptions], and notes a provision for reducing the gross value for easements (e.g. a private right of way), but s.11 of the consistency guidelines, and Mr Beckett choose instead to hold that the presence of an easement is a/the reason that the piece of land in question was not valued. Furthermore, Mr Beckett regards the non-valuation of the order route as consequent in its not having any "development value on which the increment duty could be levied." Increment duty was levied on the general increase in the value of land between valuation and sale; development value was something rather different. It is all set out clearly in the act.

Now, on the facts, Mr Beckett's decision that the order route was not a highway may be correct, although, i. re-weighing the evidence with the Finance Act provisions properly understood might make a significant difference, and, ii. Mr Beckett's approach to the user and tithe evidence is also questionable [B&B will return to this later. Ed]. It remains clear, though, that in this decision the Inspector accepted the consistency guidelines at face value, despite their being tagged 'suspect', and he has not considered (he certainly has not mentioned and 'distinguished') the 'best' case law available, in which the view of the judge is radically different to his own. Yet that case law is itself cited in s.11.

All of these areas of conflict and confusion between the act, various decided cases, and s.11 of the guidelines, were handed to PINS over four months before the date of the decision letter, yet PINS took no action to alter the section, and no action to start a corrective process. Is that bad? Read on.
In June 2003, John Andrews challenged PINS to explain how an Inspector could have reached a decision on railway plan evidence, which appeared to be in direct conflict with the advice in s.10.5 of the consistency guidelines. This exchange (which, says Mr Andrews, left him none the wiser) ended with PINS' Mrs Rachael Sayers promising that they would look again at s.10.5 "to see if we can make it clearer." Nothing was done, and John Andrews made no other comments on s.10, until January 2004 when, out of the blue, he received a letter from PINS accompanying a proposed revised version of s.10. Consequent on this, John expressed concern about the reference in s.10 to the case of Vyner v. Wirrall Rural District Council (1909) JP 8 May 1909, p.242, where the guidelines state:
"Railway plans are evidence which needs to be considered, but do not necessarily indicate that the routes recorded were highways."
John Andrews has asked B&B to emphasise that he "has asked PINS for assurances that the revised section will be reviewed by genuine experts - but this pleading has been totally ignored. I also made a number of points about the revised version that have not been addressed or answered; the revised version is going ahead in spite of that. So, now we have a situation in which, despite the assurances of a genuine review of the consistency guidelines by experts, an updated section is going into publication after being revised by persons entirely unknown, with similarly unknown qualifications, after PINS turned a deaf ear to the pleading of their sole 'consultee' (who is not an 'expert') that the thing should be done properly; along the way totally ignoring several of the queries he had raised. Brilliant!"

Curious, B&B obtained a copy of the case report. Vyner makes no mention about railway plans whatsoever. The case does not involve railways; it is a straightforward question as to whether certain streets were pre-1835 highways, and the central issue is the admissibility of old maps showing the roads. Lord Chief Justice Alverstone, directing the court below to take cognisance observed "Of course, there is the point to be considered as to whether the maps were made by a person who knew anything about the matter. That goes more to the weight than the admissibility, except that if there was no evidence that a map was made by a person of any responsibility at all, it would be inadmissible."

Walton J agrees. He adds, "[The maps] must be declarations made, or ? they must be maps so recognised and used as, in fact, to be declarations made by persons who had competent means of knowledge of the facts as to the existence of the public highway, and I think by persons who had some interest in the matter."

Now, as anyone experienced in archive research can confirm, 'railway plans' in the sense of the plans that were made in consequence of the act of parliament authorizing the building of a railway, certainly were made by 'persons who had some competent knowledge ?' and 'who had some interest?' One primary purpose of the plans and accompanying schedules was to identify areas, uses and ownership of the land that had to be taken to build the railway - for reasons of compensation, and the building of tunnels, arches and grade crossings for roads as appropriate.

So, not only does Vyner not specifically apply to railway plans, far from casting doubt on the information therein, the court seems to confirm that railway surveyors would be exactly the type of people with both the requisite knowledge and interest to correctly identify public roads. Vyner may well be the genesis of s.32 of the Highways Act 1980 - all the elements of the section are to be found in it; the 1980 provision effectively makes Vyner redundant as to admissibility rules anyway.
How did this 'confusion' happen? Readers will recollect that the consistency guidelines were created by PINS' expert and experienced Inspectors, and that every section was scrutinised and checked by defra's legal people including, we were assured, John Hobson QC. John Andrews raised with PINS the question of Vyner and the apparent inaccuracy caused by its inclusion in s.10. The ever-helpful Rachael Sayers replied "I will arrange for the case report into Vyner to be reviewed. If it has no relevance to the subject of railway plans it will be removed. I'm afraid I don't know who was responsible for inserting this reference." And, later, "The guidelines were cleared through defra before publication in April 2003. I have not asked defra to explain why they found no fault with the reference to the Vyner case as it is agreed that the reference should be removed. If you still wish to pursue this, I suggest you contact defra directly."

PINS' vaunted customer-friendliness seems to be slipping there? A 'customer' finds a toenail in one of their pies, and they tell him to take it up with the custard supplier …
John Andrews also asked Mrs Sayers what has happened to the promised review process for the consistency guidelines. She replies, "We have yet to establish a formal regime for reviewing the guidelines. Therefore, where we have received correspondence and queries on various sections of the guidelines, we have asked Inspectors to review and propose amendments. Any amendments we propose to make will be circulated to everyone who has corresponded with us on that particular subject, for their comments. Defra will then be consulted before the amendments are fully published. As you are the only person to raise any queries on s.10 … I have only forwarded the proposed amendments to you."
On learning this, people who had both expressed concern about the accuracy of the guidelines, and asked to be involved in the promised review process, told B&B that they certainly do have 'outstanding concerns', but had taken it no further in the expectation that the review process was about to start. B&B can confirm that the Trust told PINS that it has concerns about many parts of the guidelines, particularly those now flagged with the 'warning', yet has had no further 'consultation' at all.
Déjà vu, anyone?