Walna Scar Road - Lake District National Park

Lake District National Park Authority Agenda Item: 7 

Rights of Way Committee: 11 January 2011 Page 1 

MODIFICATION OF DEFINITIVE MAP AND STATEMENT - WALNA SCAR ROAD 

1 SUMMARY 

1.1 This report assesses the evidence as to whether the route known as Walna Scar 

Road should be a restricted byway or a byway open to all traffic. 

Recommendation: a 

b 

we make a modification order to modify the definitive map 

and statement to show the current Walna Scar Road 

bridleway (512064 in Coniston, 576018 in Torver, 521058 in 

Dunnerdale-with-Seathwaite) as a restricted byway; and 

we confirm the order if unopposed, or forward it to the 

Secretary of State for determination if objections are 

sustained. 

2 BACKGROUND 

2.1 We received an application in September 2005 to modify the definitive map to 

show the bridleway known as Walna Scar Road as a byway open to all traffic. 

This route runs across the fells from Coniston to Seathwaite in the Duddon 

Valley. It is of undoubted historic significance, with much usage and 

documentation to help in determining the case. Of crucial importance is the 

effect of the Natural Environment and Rural Communities Act 2006 (NERC). 

3 POLICY CONTEXT 

3.1 The key action for access and rights of way within the Lake District National Park 

Partnership’s Plan is to ensure efficient serviced delivery by the Cumbria 

Countryside Access Partnership. The Authority is performing a statutory function 

under powers delegated to it by Cumbria County Council. The case should be 

determined in accordance with legal requirement and the evidence presented to 

the Committee - the Authority’s policies are of no relevance to any decision. 

4 OPTIONS 

4.1 a: make no modification order; 

b: make a modification order for a byway open to all traffic (BOAT); 

c: make a modification order for a restricted byway. 

5 PROPOSALS 

5.1 I propose that the Authority makes a modification order to amend the recorded 

bridleway to a Restricted Byway; option 4.1c. 

5.2 There has been undoubted public usage with vehicles to a degree satisfying the 

byway modification tests, thereby ruling out option 4.1a. The question is, 

whether on the balance of probabilities, these public mechanically propelled 

vehicular rights have been protected by the exemptions within the NERC Act and 

still exist. 

5.3 The annexes comprise about 50 pages describing and analysing all the 

evidence, together with detailed legal guidance. The issues are complex, and 

each step of the decision depends upon decisions made in earlier steps – so, all 

of this needs to be read to understand the final conclusions.



5.4 Much of the argument (on both sides) rests on surmise, inference and 

interpretation. The evidence affecting the key aspect can be summed up as: 

• Ample evidence exists of specialised cart use (quarry traffic) for over 150 

years before 1913, and no evidence of any permissions being granted 

for this use to take place over other owners’ land; 

• Some evidence exists of specialised motor use (motorbike events and 

trials) between 1913 and 1930, and no evidence of any permissions 

being granted for this use. 

5.5 The test to determine this is whether such use has been as of right – that is: 

without force, secrecy, or permission. The test must be applied logically and 

consistently. 

• There is nothing to show that any force or secrecy was used. 

• With regards to permission - I consider it reasonable to conclude that 

either all the usage (in 5.4) has been with permission, or all has been 

without permission and has therefore helped establish public rights. It is 

difficult to conclude that one set of use has been with permission, but that 

the other has not (option 4.1b). If applied consistently, it would mean that 

the mechanically propelled vehicular rights have been extinguished 

(option 4.1c). 

6 BEST VALUE IMPLICATIONS 

6.1 This is a high priority case which will help resolve a long standing issue. 

a) The challenge is for us to determine this complicated matter in an entirely 

objective fashion – divorced from our policies on green road driving; 

b) Processing modification orders is not a competitive procedure. Cumbria 

County Council can also process orders, but have delegated the duty to us; 

c) We have consulted user bodies, the Local Access Forum, and other 

interested parties as part of the process; 

d) We have compared our casework completion rates with other authorities, 

and this case will help us reach our target of 37 cases this year. 

7 FINANCE CONSIDERATIONS 

7.1 We have a delegated duty to investigate all the relevant available evidence in 

modification cases. Cost factors must not play any part in the decision-making 

process. The main costs are staff time and paperwork, which will be met from 

existing and planned budgets. 

8 RISK 

8.1 Risk in terms of health and safety of the public is not a factor taken into account 

with modification orders as they are purely evidence-based. 

8.2 This case has been investigated following the Authority’s standard procedures and 

the report approved by our Legal Services team. I therefore consider that any risk 

of failure to comply with legislation has been addressed. Whatever order we make 

will almost certainly receive objections. However, reporting to Committee and the 

associated debate and decision provides the most effective defence against any 

potential legal challenge.



9 LEGAL CONSIDERATIONS 

9.1 The statutory provision for this work is found in section 31 of the Highways Act 

1980 and any order will be made under sections 53(3)(c)(ii) of the Wildlife and 

Countryside Act 1981. Determination of the application is a statutory obligation 

that Cumbria County Council has delegated to the Authority under the Rights of 

Way Agency Agreement 2007. Guidance is within the annexes. 

9.2 Any decision would be to record (or not) existing rights, not to create or 

extinguish rights. It has been determined in court cases that modification order 

determinations have no human rights implications. 

9.3 Case law has shown that it is necessary for those making the decision (in this 

case, Members) to be aware of all the evidence and argument – hence the 

lengthy annexes and evidence bundles. 

10 HUMAN RESOURCES 

10.1 The work involved is part of our day-to-day duties, and most of it has already 

been undertaken. 

11 SUSTAINABILITY & DIVERSITY 

11.1 These are not relevant issues. Only the evidence can be considered. 

Background Papers: 1422.512.06 (Case File) 

Author: 

Nick Thorne, Access & Rights of Way Officer 

Date Written: 3 December 2010 

Version 1


Rights of Way Committee: 11 January 2011 Annex 1 Page 1 

ANNEX 1: MODIFICATION OF DEFINITIVE MAP AND STATEMENT - WALNA SCAR 

ROAD 

LEGAL GUIDANCE 

1 Legal Guidance – Section 53(3), Wildlife & Countryside Act 1981 

1.1 Section 53(3) allows the surveying authority to make modification orders to 

amend the definitive map and statement. We have delegated powers to do this 

under our Agency Agreement with Cumbria County Council. 

1.2 Modification orders amend the definitive map, provided that the evidence 

discovered is cogent and shows that, on the balance of probabilities, a change 

should be made. The possible changes are: 

(1) add to the map rights of way not presently shown, 

(2) remove rights of way already on the map, 

(3) upgrade or downgrade rights of way already shown on the map 

or (4) change some details of a recorded right of way. 

1.3 The Wildlife and Countryside Act 1981, part 3, section 53, concerns the making 

of amendments (modifications) to the definitive map on the basis of evidence 

alone. Modifications require us to look back to discover what has happened in 

the past, establish the facts and apply the relevant legal tests to decide whether 

or not a right of way exists, and to what status. All the relevant available 

evidence must be considered before making a decision. Only the facts can be 

considered and whether the legal grounds for an order are met. The evidence 

must be considered in isolation to all other factors such as local history, 

desirability or otherwise, personalities involved, Authority policy, and whether it 

provides new opportunities for users or creates difficulties for landowners (or 

ourselves) and so on. 

1.4 The legal guidance in this case is particularly important and the Natural 

Environment & Rural Communities Act 2006 is the pivotal legislation. 

1.5 The Authority is acting in a quasi-judicial capacity and must reach a decision 

based on the evidence presented. We are not required to resolve conflicts in the 

evidence and there may well be evidence on both sides of the issue. We must 

weigh up the evidence using the test of the ‘balance of probabilities’, and, if on 

this balance, it is reasonable to conclude that the evidence shows that change 

should be made, we must do so. 

1.6 Although officers have considered the evidence, and made a recommendation 

based on their appraisal, members must themselves consider the evidence and 

reach their own conclusions. 

1.7 If a modification order is made anyone has a right to object. The matter would 

then be determined by the Secretary of State. Conversely, if the resolution is not 

to make an order, the applicant also has a right to appeal.



2 Definitions of various rights of way 

2.1 Section 66(1) of the Wildlife and Countryside Act 1981 (as amended) defines the 

following rights of way: 

Public 

Footpath 

Public 

Bridleway 

Restricted 

Byway 

Byway 

Open to 

All Traffic 

Highway over which the public have a right of way on foot only. 

Highway over which the public have a right on foot and on 

horseback, possibly with an additional right to drive animals. 

Highway over which the public have restricted byway rights, with or 

without the right to drive animals of any description. “Restricted 

byway rights” include a right of way on foot, on horseback or leading 

a horse and a right of way for vehicles other than mechanically 

propelled vehicles (so it includes a right of way for pedal cycles and 

horse drawn vehicles, but not for motorbikes or cars). 

Highway over which the public have a right of way for vehicular and 

all other kinds of traffic, but which is used by the public mainly for 

the purpose for which footpaths and bridleways are so used. 

3 Is there evidence that shows that the status of a way shown on the 

definitive map and statement should be a different status? 

3.1 The law states that the definitive map and statement are conclusive evidence of 

what they show but that showing a right of way on the map and statement does 

not preclude the existence of other rights. For example, the fact that a footpath is 

shown on the map is conclusive evidence that foot rights exist, but it is not 

conclusive evidence that bridleway or byway rights do not exist. 

3.2 The evidence triggering the investigation must be new evidence, which has not 

previously been considered in the context of the way and the definitive map. 

However, once new evidence has been discovered – however insignificant, all 

the available evidence must be considered. 

3.3 It is important to note that the commonly cited dual test (Test A & B – referring to 

‘reasonable to allege’) only applies to cases under subsection(c)(i). This case is 

being determined under subsection (c)(ii) – where a highway is shown, but 

claimed at a different status. Under this subsection the only test that applies is 

the normal civil burden of proof: that is – on the balance of probabilities. 

3.4 Statutory inference of dedication 

3.4.3 Section 31 of the Highways Act 1980 provides that a right of way exists when the 

public have used it for a continuous period of at least 20 years before usage was 

questioned, and that this use was open, without permission and without force. 

3.4.4 There is a proviso to section 31(1), which provides that deemed dedication does 

not apply where there is sufficient evidence showing that the landowner had no 

intention to dedicate a public right of way. So, if the landowner has taken 

sufficient steps to show this, such as erecting signs or giving appropriate notice to 

the highway authority, we cannot conclude that a right of way exists. 

3.4.5 Documentary evidence is also very important and must be looked at alongside 

the user evidence. When weighing this up, members must pay attention to the 

source of the document and the purpose for which it was produced.



3.5 Inference of dedication at common law 

3.5.1 In some instances, the statutory inference, and statutory tests, cannot be applied. 

Such instances include: 

• if evidence of use for the full 20-year period is not shown; 

• there is evidence of an intention not to dedicate within the 20 year period; 

• if the land is owned by the Crown; 

• if the relevant period is before the 1932 Rights of Way Act; 

• if the date of challenge is unknown; or 

• if the date of challenge cannot logically be applied. 

3.5.2 In these circumstances it is necessary to apply the common law tests to see 

whether a right of way exists. 

3.5.3 For a way to be successfully claimed under common law, the evidence must infer 

that the landowner’s conduct was such that they intended to dedicate the right of 

way. Not necessarily by overt acts - it could be by simply acquiescing. 

Effectively, this means that the usage was great enough that the landowner 

should have known it was taking place, yet they did nothing to stop that usage. 

3.5.4 Under section 31 of the Highways Act 1980 (above), 20 years usage must be 

proved. At common law, there is no specified period. Each case will be different, 

but the more intensive, blatant and ‘notorious’ the use and the more compelling 

the evidence of knowledge and acquiescence of the landowner, the shorter the 

period that is necessary to infer a dedication of a right of way. 

3.5.5 The burden of proof is also different. Under section 31, once there has been 20 

years usage it is up to the landowner to prove that a right of way has not come 

into existence. Under common law, the legal burden is on the user to prove 

dedication. 

3.5.6 Under common law, there must be someone capable of dedicating a right of way. 

If there is no owner in actual possession of the land, then the common law test 

will fail. 

3.5.7 There is a legal maxim ‘once a highway, always a highway’. If there is evidence 

available showing that a way once had public rights over it, then the highway still 

exists, unless there is evidence of legal stopping up of the rights. 

3.5.8 Again, members must consider any documentary evidence, but in weighing up 

the evidence, attention must be paid to the source of the document and the 

purpose for which it was produced.



4 Effect of reclassification of routes under the Countryside Act 1968 

4.1 Special Review 1976 

4.1.1. After local government re-organisation in 1974, Cumbria County Council 

undertook a special review of the definitive map to combine the maps of the 

former counties. This review was under the provisions of the Countryside Act 

1968. This allowed for reclassification of various categories of rights of way – 

mainly aimed at RUPPs (Roads Used as Public Paths), but also applied to ways 

shown as bridleways, or not shown on the definitive map at all, which the 

authority nonetheless considered should have been shown as RUPPs. 

4.2 Tests for Reclassification 

4.2.1 The tests to be applied to reclassification were basically: 

- did vehicular rights exist? 

- was the condition suitable for vehicular usage? 

- would extinguishment of vehicular rights cause undue hardship? 

4.2.2 The tests were firstly applied by Sub-Committees of the County Council and a 

determination was made. Many of these determinations received objections and 

a whole series of Public Inquiries took place during the mid 1980s to determine 

the issues. 

4.2.3 Using these tests the Inspectors decided the final classification. If the way was 

determined to be a byway then this was generally the end of the matter. 

However, the same was not true where the way was determined to be a 

bridleway, which on the face of it would have appeared to extinguish all vehicular 

rights. As with many legal decisions, confusion and debate followed. 

4.3 Defra’s view – 2004 

4.3.1 After much discussion during the next 20 years DEFRA produced guidance 

(March 2004). In summary they believed that if the suitability and hardship tests 

had been applied during any type of re-classification, then any vehicular rights 

were extinguished. The date of the extinguishment to be taken as the relevant 

date of the definitive map. 

4.4 The Kind Case - 2005 

4.4.1 The first inquiry decision relying on this guidance was taken to the High Court 

(Kind v SoS for Environment, Food & Rural Affairs, 2005). The decision was 

that reclassification under the 1968 Act did not extinguish any pre-existing 

vehicular rights. This decision was mainly based on the statutory construction 

of the 1949 National Parks and Access to the Countryside Act and the 1968 

Countryside Act which said that showing something on the definitive map and 

statement as a footpath or bridleway was conclusive as to those rights, but did 

not exclude the possibility of a public right of way for vehicular purposes; and that 

there was no express extinguishment of any such rights in the reclassification 

provisions of the 1968 Act.



5 Illegal use of rights of way 

5.1 Under section 37 of the Road Traffic Act 1984 it is illegal to drive a mechanically 

propelled vehicle on a bridleway or footpath. This provision has been included in 

all Road Traffic Acts since 1930. 

5.2 It has long been held that criminal acts cannot lead to the establishment of a 

right. Byway claims over footpaths or bridleways have been refused on this 

principle, including one by this Authority in 2001. 

5.3 However, the Bakewell case in 2004 (Bakewell v Brandwood) established that so 

long as the landowner could dedicate over his land, then dedication through long 

use is achieved where that use satisfies section 31 of the Highways Act 1980. 

However, there is a proviso that if a public nuisance is caused by such use, then 

it does not qualify. Exactly what is a public nuisance in these circumstances has 

not been defined. 

6 Natural Environment & Rural Communities Act 2006 (NERC Act) 

6.1 Many byway claims have been considered over the last 25 years. Previously, if 

the evidence showed that the way was a route for vehicles of any kind, then the 

order making authority had to add the route to the map as a byway open to all 

traffic. There was no distinction between mechanically propelled vehicles (cars, 

motorbikes, and so on), and non-mechanically propelled vehicles (for example: 

horse drawn cart) – everything was just a ‘vehicle’ and thus gave rise to a 

vehicular way, which could then be used by all types. 

6.2 One example could be: a route that had been created as a carriageway for horse 

drawn vehicles in 1800, and was used as such until about 1900, and had then 

been ‘forgotten’ and become unused by any vehicle as other routes became 

sealed and used by motor vehicles. Until 2006, this would have to be shown on 

the map as a route open to all traffic – and motorbikes and four wheel drive 

vehicles could use it. This is because of the legal maxim ‘once a highway, 

always a highway’. If there is historical, documentary (or user) evidence 

available that shows that a way once had public rights over it, the highway still 

exists, unless there is evidence of legal stopping up of the rights. 

6.3 In 2006, the Government did precisely this. The NERC Act extinguished, from 

the date of commencement, all existing unrecorded rights for mechanically 

propelled vehicles, thus breaking the automatic connection between horse and 

cart routes, and full motor vehicular routes of today. 

6.4 However, a number of routes will not have had their mechanically propelled 

vehicular rights extinguished. These are ones where one (or more) of a number 

of exceptions applies. These exceptions are: 

Subsection 67(3) 

Subsection 67(2)(a) 

Subsection 67(2)(b) 

Subsection 67(2)(c) 

where a correctly made application to record a byway open to all 

traffic was made before the cut-off date of 20 January 2005 

ways that have been lawfully used more by motor vehicles than by 

other users in the five years preceding commencement. 

ways that are recorded on the “list of streets” as being 

maintainable at public expense and are not recorded on the 

definitive map and statement as rights of way. 

ways that have been expressly created or constructed for motor 

vehicles.



Subsection 67(2)(d) 

Subsection 67(2)(e) 

Subsections 67(5) & (7) 

ways that have been created by the construction of a road 

intended to be used by mechanically propelled vehicles. 

ways that were created by use by mechanically propelled vehicles 

before 1930, when it first became an offence to drive ‘off-road’. 

ways having private vehicular rights for which applications have 

been made to record byway status. 

6.5 Defra guidance states that it is up to the applicant to make the case for these 

exceptions applying, not the order making authority. The specific exception cited 

by the applicants for the Walna Scar Road is subsection 67(2)(e). 

6.6 The exact text of the legislation is important. It reads: 

“Subsection (1) [extinguishment of mechanically propelled vehicular rights] does 

not apply to an existing public right of way if it was created by virtue of use by 

such vehicles during a period ending before 1 st December 1930”. 

6.7 Further guidance was sought from Defra on the exact interpretation of the words 

‘created by virtue of use’. They have stated that the exception applies to routes 

that gained their public vehicular status only because of usage by mechanically 

propelled vehicles prior to 1930. And that if the route was already a public 

vehicular route (for example: a horse and cart road), then any subsequently 

established mechanically propelled vehicular rights (even if established through 

long usage before 1930) will have been extinguished. 

7 Cumulative effect of above provisions 

7.1 The above provisions are understandably complex, and result in the 

determination of byway claim being multi-staged. I have therefore compiled a 

flow diagram (on page 8 of this annex) showing all the stages to go through to 

reach the final decision. This is repeated in the evidence report (Annex 2), with 

the route through the diagram I have taken to reach the recommendation. 

7.2 The first stage is to ask the simple questions (Q1) of what the route is currently 

recorded as (exceptions 67(3) and 67(2)(b)), and when the application was 

made. 

7.3 Then it is necessary to determine whether vehicular rights can be reasonably 

alleged to have existed at the date of commencement of the NERC Act (2 May 

2006) - (Q2). The statutory inference of dedication provisions (section 3.4 above) 

should be used at this point, and then the common law provisions if necessary 

(section 3.5), whilst also having regard to the guidance in sections 4 and 5. 

7.4 If vehicular rights are determined to have existed, then it is necessary to assess 

whether the mechanically propelled rights have been extinguished by the NERC 

Act. This is done by seeing whether any of the remaining exceptions have been 

cited and whether they apply (Q3-6). 

7.5 In this case it is exception 67(2)(e) that is claimed as being relevant. So, the 

Committee will need to look at whether it was mechanically propelled vehicles 

that created the vehicular right, and whether this was before 1930. Because the 

date of challenge was not until 2005, the tests to be applied are those of common 

law (section 3.5 above).



8 Effect of previous modification order process 

8.1 This case has already been through a recent modification order process. The 

Inspector finally determined that the way should be a Byway Open to All Traffic. 

The decision was quashed because of procedural unfairness. Eight other 

grounds of appeal were submitted but not pronounced upon. 

8.2 Whilst note should be taken of the Inspector’s interim and final decisions 

(included as a separate bundle), it should be borne in mind that the legal process 

was two-fold. The Inspector made his interim decision based on the available 

evidence at the time (as did we). Later evidence then became available, and the 

legislation implies that this evidence had to considered to see if it overturned the 

interim decision. 

8.3 We are now in a different position in that we can consider all the evidence as one 

body, which could lead to a different interpretation. 

9 Recommendation and decision 

9.1 Although a recommendation has been made, it is recognised that, in this case in 

particular, the issues and evidence are very finely balanced. Therefore, 

members of the Rights of Way Committee are reminded that the final decision 

should only be taken after careful analysis of the evidence and guidance. 

9.2 I advise that when doing this, the following questions should be uppermost: 

1. Was Walna Scar Road already a public carriageway by the time the public 

began to use the road with mechanically propelled vehicles (MPVs), or 

was it only a route over which the public exercised rights on foot and on 

horseback? To determine this, consider: 

a. Is there evidence that there was cart use of Walna Scar Road 

before about 1913? 

b. Was this usage through public or private rights? 

2. Was the use of Walna Scar Road by MPVs prior to 1930 of sufficient 

quality to show at common law that the public had acquired MPV rights by 

then?



BYWAY CLAIM FLOW CHART 

Q1 

CURRENTLY 

RECORDED 

STATUS? 

= 

Not on Definitive Map 

and Statement 

On List of Streets 

Bridleway 


Bridleway 

Not on List of Streets 

Not on Definitive Map & 

Statement 


No rights extinguished. 

Flow chart does not apply. 

Test whether BOAT exists, 

and make order accordingly. 

Proceed through 

flow chart 

Q2 

Using statutory dedication 

and date of challenge, or 

common law if necessary. 

Ignore 1968 

reclassification and 

‘illegality’ of usage 

Are Vehicular Rights reasonably alleged to exist as at cut-off date (2 May 2005)? 

YES 

NO 

Q3 

Guidance states that it is 

up to the applicant to 

make this case. If they 

have not, then we do not 

need to consider the 

issues 

Does exception 67(2)(a) apply? – main use in five 

years to 2/5/05 

OR 

Do exceptions 67(2)(c) or 67(2)(d) apply? – 

expressly constructed or created 

for mechanically propelled vehicles 

Are Restricted Byway rights 

reasonably alleged to exist? 

YES 

YES 

NO 

Make a Byway Open to All 

Traffic modification order 

NO 

Make a Restricted Byway 

modification order 

No modification order, 

or make a modification 

order for bridleway or 

footpath as appropriate 

Q4 

Does exception 67(2)(e) apply? – created by 

virtue of use by mechanically propelled 

vehicles (mpv) before December 1930 

Q5 

If the mpv right was 

brought into question 

before 1930 – use 

statutory dedication 

provisions. 

Before mpv use of the way, did the way have a 

right for vehicles? 

YES 

MPV rights extinguished – 

make a Restricted Byway 


If it was not – use common 

law provisions 

NO 

NO 

Q6 

Were MPV rights created before 

December 1930? 

YES 

MPV rights not extinguished - 

make a Byway Open to All 

Traffic modification order



ANNEX 2: MODIFICATION OF DEFINITIVE MAP AND STATEMENT - WALNA SCAR 

ROAD 

EVIDENCE REPORT 

1 Background 

1.1 The route known as ‘Walna Scar Road’ (sometimes abbreviated to WSR in this 

report and accompanying documents) is of historic significance, appearing in many 

guide books and maps. It runs over the fells from Coniston to Seathwaite in the 

Duddon Valley. It is currently recorded as a public bridleway, and as a public road. 

1.2 An application was made by the Cumbria Trail Riders Fellowship on 21 September 

2005 to upgrade this bridleway to a byway open to all traffic. The evidence 

supporting their claim is a combination of documentary evidence and usage by the 

public on motorbikes and in cars. 

1.3 Of crucial importance is the effect of the Natural Environment and Rural 

Communities Act 2006 which had the effect of extinguishing all unrecorded rights 

for mechanically propelled vehicles unless the route in question fell into one of a 

number of categories. This has been explained in Annex 1. 

1.4 The legal guidance in Annex 1 sets out the issues to address when determining 

byway claims. In this particular case I am of the opinion that the two most important 

questions to have in mind when reading the evidence report are: 

• Was there an existing vehicular right of way before the usage by motor cycles, or 

was the vehicular right actually created by motor vehicles? 

• If the latter, then was there sufficient usage by motor vehicles to have created 

the vehicular right before 1 December 1930? 

1.5 The italicised and bracketed numbers (p1-394) refer to the pages in the separately 

bound document bundle. When lettered points (A, B, and so on) are mentioned, 

reference should be made to the large A2 overview map supplied. Much of the 

evidence reproduces poorly, so copies of many specific items are also on a CD. 

Some of the maps on the CD show the whole area, rather than just the cropped 

section in the bundle pages. 

1.6 In general, the early sections of the report are descriptive and explain what the 

evidence is, with references to it’s significance. The later sections discuss the 

significance in more detail and how disparate pieces of evidence may have greater 

importance, or different interpretations when looked at together. 

1.7 There are also separate bundles for the user evidence, and for the Secretary of 

State’s decision letters during the first process, with the differing cases put forward.



2 The route 

2.1 It should be noted that Walna Scar Road as an entity is longer than the section 

under consideration. The road runs from Coniston village over the fells to join the 

Duddon Valley road just north of Seathwaite (p1). The sections at either end, where 

the road is (now) enclosed separately from the surrounding fields, are assumed to 

be vehicular highways, and sealed with tarmac. The section in question is between 

point C and N, and is recorded as a bridleway (p2-5). It is the unsealed portion that 

passes over the unenclosed fell (except for the 100 metres, C-D, which is tarmac). 

The whole length of the road (A-R) is recorded as a highway maintainable at public 

expense (p6-10). A description of the route is included within the document bundle 

(p11), and photographs (from 2007) are on the CD. 

2.2 Regardless of the current legal status and physical condition, much of the evidence 

relates to the whole route A-R. And it is important that this evidence is considered, 

as the crucial period in this case is what happened before 1930. The evidence 

shows that there was little difference in condition or status between the sections 

now sealed with tarmac and the claimed section (other than the short section 

between Coniston Village and the Railway Station QR) until tarmac was applied. 

2.3 Other useful things to note are; 

• ‘Walna Scar’ is not just the road itself, but also the fell top area around the 

summit of the pass. 

• Many older documents and maps refer to ‘Walney Scar’ or ‘Walner Scar’, 

rather than ‘Walna Scar’. 

• In some documentation and in parts of this report, Walna Scar Road is 

abbreviated to WSR, and mechanically propelled vehicles to MPVs. 

• The whole road lies in what was, until 1974, Lancashire. The Lonsdale 

Hundred of Lancashire was split into two – Lonsdale ‘proper’ and Lonsdale 

‘north of the sands’ (North Lonsdale), connected by the road across the 

sands. North Lonsdale comprised two distinct geographical areas, Cartmel 

and Furness, Furness encompassing Low Furness (Barrow and the 

peninsular) and High Furness (northwards to the Langdales). The area later 

fell within the jurisdiction of Ulverston Rural District. 

2.4 The road was badly damaged during the storm of November 2009, and parts have 

again been damaged since then. It has been partly patched up, but not fully 

restored as yet. We have a project to repair the route in 2011. 

2.5 The Green Lanes Protection Group has provided a short summary of their case (p12- 

15), and the Cumbria Trail Riders Fellowship (p16) has pointed out their views and 

what we should be taking account of. Their full arguments are included in the 

separate, previous process, document bundle. 

3. Date of challenge 

3.1 There has not been a specifically identifiable challenge to the usage by vehicles. 

However, legislation states that where there this is the case, then the making of the 

application for a modification order will be taken as the date of challenge. 

3.2 The application was made on 21 September 2005, so to examine whether there 

has been statutory dedication of a byway open to all traffic before the ‘cut-off’ date 

of May 2006, it is necessary to look at the 20-year period of 1985-2005 (Q2 on 

flow-chart).



4 Direct User Evidence (p17-36, and separate bundle of user evidence forms) 

4.1. We have received standard evidence forms from 35 people who claimed to have 

used the Walna Scar Road on a motor cycle or in a car (four-wheel drive). 

4.2 Their usage varies between occasional to frequent, and from a few years to 50 plus 

years. The earliest usage cited in the evidence forms seems to be about 1952, and 

usage continued until the passing of the Natural Environment & Rural Communities 

(NERC) Act in 2006 (p17-19). 

4.3 We also have our own records of usage from 2002 until the NERC Act in May 

2006, as the route was monitored through our Hierarchy of Trails programme (p20- 

22). This shows that (when no restrictions were in place) approximately 150 motor 

cycle journeys and 60 other vehicular journeys were made every month – although 

some of these would have been agricultural vehicles. 

4.4 Going further back, we have documentation relating to the public inquiries 

regarding this road in the 1980s (see section 15 below), and a few more recent 

letters. This includes the following: 

• Harry Holmes (p23) – first rode up from the Coniston side on a 350 Raleigh 

in about 1931-1932, when he was 17-18. Has a photograph of about 15 

riders on the Coniston side (not provided), and a photograph from 1934 

riding a Velocette up the Seathwaite side. His father had ridden up Walna 

Scar previously, in about the early 1920s. 

• A number of people provided lists in 1986 of routes they had ridden or 

driven. However, no frequency is given, nor is there an indication of when 

usage of Walna specifically started. Only Bernard Crabtree has provided a 

date before 1930, and he provided such a long list of routes that it would be 

difficult to conclude that he had used any of them very frequently. 

o Bernard Crabtree, 1924-1980 (p24-27), Paul Vogt, 1935-1965 (p28-29), 

Bob Humber, 1932-1970 (p30-31), Alan Todd, 1934-1974 (p32-33) 

4.5 We have also received three letters from pedal cyclists who have ridden their bikes 

over Walna Scar since 1960 without meeting any vehicles (p34-36). 

4.6 Other evidence of usage in the form of photographs and guide books is discussed 

later in the report.



5. Photographic and other evidence of historic use (p37-67) 

5.1 Photographs 

5.1.1 The applicants have provided photographs and cuttings to show the extent of use 

since 1917. They have been taken from the Margaret & Percy Duff Collection - a 

series of albums which have contributed to many local history books (p37). 

5.1.2 These specific photographs are accompanied by labels with the rider’s name and 

(approximate) date. Various members of our staff, who know the road well have 

studied the photographs to pinpoint where they were taken - as shown on the 

main overview map (where known). 

5.2 Station Hill, Coniston, 1913 (p38) 

5.2.1 Although to the east of the claimed route, this (p38) is on the road above Coniston 

Station, on the way to the fell gate (Between P and O). It is likely that this 

photograph was taken during the first international 6-day trial held in 1913. The 

trial began from Carlisle, and was then held in later years in France, Switzerland, 

Sweden, Norway and Belgium. It returned to the Lake District in 1927, and 

photographs exist of the event passing over Hardknott Pass. 

5.2.2 Information exists about the 1913 trial on the internet (p39-46). It was obviously over 

difficult terrain, with competitors complaining about the ‘impossible tracks’ included 

in the itinerary. The specific route is not set out, but it is notable that it was held on 

the ‘roads of that particular time period’ (p42), and ‘primarily on roads’ (p43), and also 

on routes passable in all weather (p44). The routes were also published a month in 

advance (p)45 – so landowners would probably have known about it beforehand. 

5.2 Harry Whinnerah – 1917 (p47-48) 

5.2.1 The first three photographs show a one-armed sidecarist with other motorcyclists, 

and are annotated as being on Walney Scar. The first (p47) is at the summit of the 

pass and shows the sidecar on a cart-width track. The second photo (p47) is just 

east of the Dunnerdale Fell Gate. Although on a grassy track which appears to be 

slightly off the modern route, this is because the route has been altered within the 

last 10 years at this point. The third photograph (p48) of the two motorcycles is less 

clear – our view is that the gradient is too steep to be the road, and the location of 

the Dunnerdale Fell Wall (seen in the bottom left hand corner) has led us to 

wonder whether they are riding straight up the flanks of the Scar. However, these 

are the same bikes as in photo 2 – so they were obviously accompanying the 

sidecar to the summit one way or another. Each of the photographs show the 

bikes heading eastwards. 

5.2.2 The accompanying newspaper (or possibly magazine) cuttings (p48) are 

unfortunately undated and have no indication of provenance. But they do appear 

to be of the era 1 . The cuttings describe the ascent of Walna Scar by Harry 

Whinnerah, and mention that reaching 2,100’ is the highest point yet reached by a 

sidecar in the Lake District. 

1 The mention of the R.F.C helps to date the document, as the R.F.C was the ‘Royal Flying Corps’ which 

was amalgamated with the Royal Naval Air Service to form the Royal Air Force on 1 April 1918. 

Therefore, it is logical to assume that the cutting and photographs date from about 1917.



5.2.3 The cutting also describes the condition of the route, which would appear to have 

only just about been suitable for a sidecar. However, the first does show that the 

road at the summit consisted of a relatively even, smooth track of a width which 

must have been created by carts rather than merely horses. 

5.3 Tyson Wilson & unknown rider -1920s (p49) 

5.3.1 These photographs (p49) are from Harry Wilson’s albums, and show Tyson Wilson 

and an unknown rider ‘in the late 1920s. However, we are of the strong opinion 

that the bends shown are not on the Walna Scar Road – as there are no zig-zags 

of this nature, or any such noticeable boulder. The photographs are strongly 

suggestive of the track to Bursting Stone Quarry (SD 279 972 to SD 282 968). 

Although not on the claimed route, the bikes would have had to reach this point, 

and the obvious way is from Coniston along a small portion (700m; N-M) of the 

Walna Scar Road. But at this point in time, it is impossible to tell. It is possible 

that ‘Walna’ was used as a generic term for the area. It is also clear that this was 

an organised event. 

5.4 Unknown Rider – Late 1920s (p50) 

5.4.1 This shows a rider at the recognisable gully on the Coniston side of the pass (p50- 

top). It is undated, and appears to be a trial or event. 

5.5 Bernard Crabtree – 1930 onwards (p36) 

5.5.1 From the Margaret Duff Collection, this shows Bernard Crabtree starting out on 

Walna from the Seathwaite side in 1930 (p50-bottom). 

5.5.2 Bernard Crabtree also wrote a book (‘An Old Westmorland Garage’) about his 

recollections of the Westmorland Motor Club (p51-58). He mentions a Sporty Boys 

Trial in 1930, and describes crossing Walna Scar from the west gate (Seathwaite) 

to Coniston in just over 15 minutes (p55), and the article is illustrated with the same 

picture as mentioned at paragraph 5.5.1(p50 & 57). The bike has a trials number 

plate – so it is reasonable to assume that the picture is of the Trial. The speed of 

the crossing implies that the quality of the road had improved since the guide book 

descriptions of the late nineteenth century (detailed in next section). 

5.5.3 There is also a further reference to Walna Scar at page 139 of the book (p56-57). 

This describes usage by three motorcyclists from the west. The description of the 

experiences show that it was a different Sporty Boys Trial than above, and the 

chronological layout of the book means that this must have been after 1930. A 

later reference to trials locations (page 156 in the book (p58)) does not include 

Walna Scar. 

5.5.4 The book also sets out some of the history of the Westmorland Motor Club and its 

organised events. 

5.6 Harry Holmes –1930s (p59-60) 

5.6.1 These photographs show Harry Holmes on Walna Scar in the 1930s, and are 

probably related to those mentioned at paragraph 4.4. The first picture shows the 

tricky condition of the route, with people seemingly pushing the motor cyclist (p59- 

top).



5.7 Westmorland Motor Club – the first 75 years, published 1984 (p61-63) 

5.7.1 This account of the history of the Westmorland Motor Club mentions social hill 

climbs on Walna sometime after 1915 (the actual dates are not mentioned, but it 

would appear that these were wartime events). (p63). 

5.7.2 The account goes on to discuss speed events and says that a ban on speed 

events was introduced on public highways from 1 st April 1925. 

5.8 Jim Marshall – 1933 (p64-65) 

5.8.1 These pages are from ‘So This Is Yorkshire’, published by the Ilkley & District 

Motor Club in 1999. They describe Jim Marshall (with others) ascending Walna 

Scar from the eastern side (from Coniston) in his Morris 8, and a photo shows the 

Morris 8 passing through the same gully as at paragraph 5.4.1 (p64-top right). 

5.9 Motorcycle Sport Magazine (p66-67) 

5.9.1 An article in ‘Motorcycle Sport’ from 1978 relates some of the writer’s (R.D.H.) 

experiences (p66). It describes an eventful journey over Walna Scar sometime in 

the 1930s. 

5.9.2 Another article mentions the Sporty Boys Trial in the late 1940s passing over the 

old fell pass “road” from Coniston to Seathwaite (p68).



6 Guide Books (p68-205) 

6.1 The Walna Scar route is mentioned in numerous guides to the Lake District. It is 

still written about today both in walking and cycling books - but the most relevant 

are those between 1840 and 1950. These build a picture about the state of the 

route, and how it was used, during the crucial era before and after 1930. 

A Guide Through The District of the Lakes, 1835 & 1842 (p68-74) 

The 1835 edition (p68-69) merely says that an ‘enterprising tourist might go to the Vale of the 

Duddon, over Walna Scar’. The 1842 edition (p70-74) elaborates slightly with distances. There 

is nothing to say what the condition of the route was, or whether the tourist should be on foot, 

horseback or otherwise. However, the map accompanying the later edition (p73-74) shows the 

whole of Walney Scar as a “Mountain Road sometimes travelled over by Carts” as distinct from 

Mail Roads, Cross Roads and Foot Roads. 

Onwhyn’s Pocket Guide to the Lakes, 1841 (p75-78) 

Describes the route from Duddondale to Coniston over Walney Scar as ‘the road over the 

mountain is about as primitive and rude a piece of art as any in the country; ……..this route is 

not practicable for a carriage of any kind, but it is sufficiently passable on horseback’. 

The accompanying map shows the route crudely, but clearly (p77-78). 

Sylvan’s Pictorial Handbook to the English Lakes, 1847 (p79-84) 

Says that “Ambleside may be reached from Seathwaite by the Walney Scar road through 

Coniston, a distance of about 14 miles, the first 6 miles must be accomplished on foot, as the 

road over Walna Scar is steep and rocky”. 

The map shows the road as one of the few in the area. 

The Old Man; or Ravings & Ramblings round Conistone, 1849 (p85-89) 

Describes the route and its difficulties. One relevant passage says “Follow the cart-road from 

Walna Scar to Seathwaite”, whilst another advises “You will find the descent of Walna Scar 

worse than the climb, for, on the Seathwaite side, the road is good and smooth, but, on the 

Conistone side, it is less like a road than a superannuated water-course”. It describes Cove 

Bridge as a “primitive stone bridge”. 

A Complete Guide to the Lakes, 1853 (p90-93) 

This is a later edition of the 1835/1842 versions mentioned above. The description now 

includes “Horses may be taken over this mountain track, which is, however, in places very 

steep and difficult.” Later descriptions of carriage roads to Seathwaite show that the 

recommended roads were round to the south of the high fells. 

At page 17 (p93) it calls it “the ancient horse-road over Walna Scar”. 

Black’s Guide to the English Lakes, 1856 (p94-95) 

The itinerary mentions “..the Walna Scar road, which passes through Church Coniston and 

under the Old Man. This road, which is very mountainous and rough…” 

Black’s Picturesque Guide to the English Lakes, 1859 (p96-97) 

Mentions the Walna Scar road as a route between Coniston & Seathwaite but adds that “the 

carriage visitor, however, must make a longer round” – to the south. 

A Guide to the Mountains Lakes and North-West Coast of England, Mackenzie Walcott, 1860 

(p98-102) 

In a list of passes with means of crossing, some are on foot only, some by carriage; Walney 

Scar is “traversable on horseback”. In the later description (p102) it says that “The pedestrian or 

horseman may also reach Seathwaite, (6m) Newfield and the Vale of Duddon by a wild, steep 

and undulating moor path over Walna Scar.”



The Lake Country, by E Lynn Linton, 1864 (p103-104) 

Mentions the road from Coniston being ‘a good enough road in the beginning, but which soon 

goes off into rudeness’. 

Handbook for Travellers in Westmoreland & Cumberland, Murray, 1866 (p105-106) 

Describes the route as “practicable only for pedestrians” 

Transactions of the Historic Society of Lancashire & Cheshire, 1868 (p107-108) 

Discusses an ancient settlement near the road, and says “at no great distance from the road, 

which scarcely merits the name” 

The Scenery of England & Wales, Mackintosh, 1869 (p109-111) 

Recommends a route to Goats Water. This follows the “Walna Scar road” and when leaving 

this to go to Goats Water “you follow a quarry cart-road..” 

The English Lakes, how to see them for 5½ guineas, John Bradbury, 1872 (p112-116) 

There is no description in the book – but the poorly reproduced map shows the road over 

Walna Scar as part of the tour; ‘The red line shews the route’. The red lines mainly traversed 

accepted carriage roads. 

Pedestrian and General Guide to the English Lakes (or Ascents and Passes in the Lake District 

of England), Herman Prior, 1873 (p117-127) 

This contains two detailed descriptions of Walna Scar (one for each direction) aimed at the 

walker. 

From the Coniston side (route 28 (p119-123)) the road is clear to the fell gate (where the current 

bridleway begins), then “From this point to the summit of the pass a good deal of care is 

required…..It is difficult not to get confused with the quarrymen’s tracks, which are numerous 

and perplexing…” It describes the crossing of the tracks immediately by the fell gate, then the 

right fork about 350m further on. It mentions the zig zag road on the right (Bursting Stone), and 

the rock step (“threads the eye of two rather noticeable rocks”). It describes the road beyond 

the Cove Quarries turn off as “well-marked”, and mentions other side quarry routes. Once over 

the pass it describes the route down past Walney Scar Quarries. 

The reverse description (route 70 (p123-125)) implies that the route is easier to follow west-east 

than east-west. Probably because most of the main tracks join the road rather than fork off it. 

And also because, as in other books, the way uphill is easier on the western side than the 

eastern – and in general routes downhill are more instinctive. 

Jenkinson’s Practical Guide to the English Lakes, 1885 (p128-132) 

This includes a description of Walney Scar Road from the Coniston side. The point at which 

the current bridleway begins (point N) is mentioned as ‘When the tourist gains the open fellside’, 

it goes on to say that the tourist must ‘follow a rough track…and avoid entering a carttrack 

which branches to the right, and leads to some slate quarries’ [The Old Man Quarries]. 

The maps in the book clearly show the route. On the detailed map, the road is no more 

prominent than any of the many other tracks on the fell; but on the overview map, it is the only 

route shown on the fells between the Coniston and Duddon valleys. 

Murray’s Handbook to the The English Lakes, 1889 (p133-137) 

This contains a number of advised routes. The guide for route 8 (p135) says that the Duddon 

may be reached from Coniston by three routes, one of which is Walney Scar which is 

‘practicable for ponies’. One of the other routes to get to Duddon (Wrynose) is described as 

‘practicable for cars, but is very steep and rough’. Cars in this era would not have meant 

mechanically propelled vehicles, but horse drawn traps, carts or carriages. 

Later in route 8 (p136) there is a description of the route from Coniston as ‘there are few grander 

walks in the North of England’. Between the Torver Beck and the top of the pass it says that 

‘the various quarry tracks about here are confusing to strangers and for their benefit the hillside 

has been adorned with a smart “indicator.”’



The Highways of the Lake District of England, J Garnett, 1891 (p138-143) 

This includes Walna Scar, but with little description other than tourists needing to take their 

sandwiches with them. The road is clearly shown on the map, in a similar fashion to other 

routes that are today bridleways or public roads. It is highlighted to show the route described in 

the text. 

English Lakes, Thorough Guide, MJB Baddeley, 1895 (p144-148) & 1936 (p156-158) 

Baddeley described many routes in great detail and his books were revised many times and 

were extremely popular (they became the Ward Lock Red Guies). This is the seventh edition 

from 1895. 

The guide (p146) refers to Walna Scar as a track, and like Jenkinson, mentions the ‘good cartroad, 

leading to the slate quarries’ [from the fell gate above Coniston, point N] and describes 

Walna Scar as a track (it later mentions the same as an “excellent cart-road”). 

The guide also states that it is practicable for carriages to the foot of Walna Scar (from the 

western, Seathwaite, side) (p148), but that the continuation path over Walna is a “pony track”, 

and that ‘Carriage-folk must proceed to Broughton.’ The description of the walk includes 

mention of a finger-post at the start of the track in Seathwaite. [The ‘foot of Walna Scar’ seems 

to mean where the road diverges from the main valley road; Point A – being 3½ miles beyond 

Ulpha, and ½ mile beyond the Inn at Seathwaite as described in the text and measured on 

modern maps.) 

The first edition was in 1880, and though they were revised, without a copy of an earlier edition, 

I cannot tell how much change there has been. The description in the 1913 edition is identical, 

whereas in 1936 all the descriptions were roughly the same (including the ‘good cart-road’ and 

so on) – the only notable difference is the inclusion of ‘the pony-route over Walna Scar’ (p157) 

and a mention that driving was via Broughton. 

The Book of Coniston, WG Collingwood, 1897 (p149-155) 

This mentions that cycles will usually go within a short distance of the spots to be sought – but 

does not mention Walna in specific relation to this (p150). 

In a description of the Walna Scar group (p151-152) it says ‘Up the road behind the railway 

station, in 25 minutes you reach the gate of Banniside moor…[it describes a ‘quarry road to the 

right’] follow the Walna Scar path over Bannisde to the south-west for 10 minutes; 300 yards 

west of the flagstaff is..a tarn, now almost peated up’. 

This is Boo Tarn [by point M], which is about ½ mile from the fell gate, which, on this terrain, 

would take about 10 minutes to walk – so the description would appear to be aimed at 

pedestrians. 

On page 37 (p153) there is a description of a round trip via Dunnerdale & Seathwaite by catching 

the train in the morning to Woodland. The route is ‘12 miles by map, but with an allowance of 8 

hours to look at the points of interest and for lunch’. This is walking pace rather than cycling, 

and is obviously a summer walk. The plan is to reach the top of Walna Scar for sunset as ‘the 

road down to Coniston [4 miles] is easy, and most impressive in twilight. Cycle impossible.’ 

And at page 39 ‘At the sign post we turn to the right and keep upwards’ [the start of the road at 

Seathwaite], there are a few mentions of ‘rejoining the road’, and from the top ‘Coniston is an 

hour’s easy walking by a well marked path from the summit’ 

Later, the book describes an enclosure ‘a few steps down Torver Beck’. A ‘cart-track now runs’ 

through the enclosure (this is now the bridleway on the left bank of the beck). This ‘cart-track’ 

joined the Walna Scar road just east of Torver Bridge (p154). 

The Lake Counties, WG Collingwood, 1902 (p159-161) 

Describes the road as an ‘old pack-horse road’ within the text, and in the gazetteer as a ‘road’ 

between Coniston and Torver/New/Cove Bridge and as a ‘cart-road’ beyond there, over the 

pass to Seathwaite.



The English Lakes, Brabant, 1902 (revised 1920) (p162-166) 

This describes the Walna Scar Pass from the summit to Coniston as a ‘cart track’, and includes 

a Bartholomew’s map showing it as ‘Walna Scar Road’ with a Footpaths and Bridlepaths 

symbol (date of survey of map unknown). 

The book later has a more detailed description (p166). The road above Coniston station being a 

“rough road under trees”, and the beginning of the descent to Seathwaite as a ‘sloping grassy 

path’, with a guide-post at the foot of the road. 

Guide to Ulverston, Canon Ayre / Atkinson, 1904 (p167-170) 

The description of Walna Pass is for walkers. However, Walna is described as one of a 

‘choice’ of two ‘roads’ – the other being the main valley road. And the Wrynose/Hardknott road 

was described likewise. Immediately after the Walna description of ‘rough at first, but 

afterwards comparatively easy’ there is reference to a grassy pathway – neatly differentiating 

between the types of way being descrbed. 

A History of the County of Lancaster: Volume 8, 1914 (p171) 

Refers to the valley road at Seathwaite as ‘The principal road’, and Walna Scar as a ‘minor 

road’. 

Lakeland Passes, John Barber & George Atkinson, 1928 (p172-175) 

This has a short chapter on Walna Scar pass, mainly described for the walker. There is little 

description that assists except for the constant description of it as a ‘track’ as opposed to the 

‘path’ off it. The way from the east is described as ‘For the first part the ascent is rough, but 

after crossing the ridge…it assumes a soft grassy character and so continues to the summit’ 

Walking in the Lake District, HH Symonds, 1933 (this is the reprint of 1947, but it was not 

revised in the interim) (p176-179) 

This describes the main Walna Scar route as a ‘cart-road’. 

Off to the Lakes, Jessica Lofthouse, 1949 (p180-184) 

This book describes many wartime (WWII) trips and walks in the Lake District, including two 

over Walna Scar. The later trip is of interest for her description of the poor quality and the 

damage done by army transport. 

The English Lakes, The Little Guides, 1952 revised edition (p185-187) 

This again describes the route, in a very similar fashion to other guide books. 

Lake District National Park, Countryside Commission, 1969 (p188) 

Describes Walna Scar Road as “a walker’s route only” 

Roads and Tracks of the Lake District, Paul Hindle, 1998 (p189-192) 

This book is a detailed historical account of the development of roads in the area. It mentions 

the Walna Scar road as an ‘excellent route with a widened packhorse bridge built to serve the 

extensive quarries in the area’. 

And for some contemporaneous views, I have included some descriptions from webpages. 

www.markrichards.info/... (p193-195) 

Describes the start of the pass above the fell gate on the Coniston side as “a rough track”, and 

the Seathwaite side as a ‘rough road’. 

www.mbpost.com/.... (p196-199) 

Includes the comment that ‘”Road” is a bit of a misnomer – ‘a high track ..through rocky terrain’ 

www.mountain-bike-cumbria.co.uk/... (p200) 

This describes a ride from the Torver boundary eastwards down to Coniston on ‘the main 

Walna Scar road (calling it a road?).’



www.forum.ctc.org.uk/... (p201) 

This is advice from mountain bikers and includes ‘Once on the Walna Scar road (it’s not a road 

at all, but knarly with rocks)’. 

www.grough.co.uk/... (p202-203) 

On this forum Enzo recalls that ‘the first time I ever drove over the Walna Scar ROAD it was in 

a Triumph Dolimite!’ (sic). 

www.bikemagic.com/... (p204-205) 

Another forum from 2002 discussing some resurfacing of the route, Tony Ferrari say that he 

remembers ‘driving to the summit of the road to go climbing on Dow Crags…in a Triumph 

Dolomite Sprint!’ 

6.2 It is quite clear from the guide book evidence that the road across Walna Scar has 

always been fairly rough going. The early guidebooks seem to quite consistent in 

saying that it was a horse route rather than a carriage route. However, it is 

noticeable that the condition seems to have improved over the years until by the 

early twentieth century it was generally described as a cart-track. 

6.5 It is notable that even today the Walna Scar road is described by users and guides 

as rough and not really a ‘road’. It is signed as unsuitable – but it is regularly used 

by vehicles, both mechanically and non-mechanically propelled. 

6.6 Descriptions in guides, whilst useful, must be considered in the context of who they 

were aimed at, and why they were written. And that the advice they gave / give 

may not necessarily show what was/is actually happening on the ground.



7 Commercial Road Maps (p206-228) 

7.1 County maps were produced by commercial surveyors from the end of the eighteenth 

century, and commercial travel (cycling and motoring) maps were produced during 

the twentieth century. A number of maps for Lancashire and the Lakes area were 

produced, at varying scales, some of which show the claimed routes. Keys are 

included where I have been able to find them. Those generally accepted to be the 

more reliable and accurate are in bold. 

7.2 These maps are of little evidential value on their own, but are very useful for showing 

a general picture of whether a route was considered important enough to regularly 

appear on commercial maps. Consistent depiction over many years can indicate that 

a route was public by repute, and was accepted as public by all concerned. 

7.3 It is also important to look at what the map showed – that is, did it only show the more 

important roads, are the roads on the map all generally regarded to be public, or did 

they show every single little track such as the Ordnance Survey do? It is generally 

considered unlikely that a route consistently shown on publicly available 

commercial maps would not have had some form of public status. 

7.4 The table overleaf gives a breakdown of how the Walna Scar Road has been 

shown between 1745 and about 1950. It is clear that it has always been 

considered to be the main route between the Coniston and Dunnerdale valleys – 

indeed, the only route. 

7.5 It is also clear that it has always been considered to have been of a status higher 

than merely a footpath, and in some instances, the map makers have quite clearly 

shown that they consider the route to have been higher than just a pony route. It 

often appears in a similar fashion to today’s motor vehicular roads. 

7.6 The depiction of the route in four of the maps as a ‘cross-road’ could lend itself to 

the argument that it was a public carriageway. But guidance on this is less clearcut 

(p206-207). Whilst there is a general acceptance that a cross-road would have 

been a public way, the current advice is that it was most likely a bridleway OR 

carriageway. 

7.7 The maps also show that the route was important enough to have a bridge by 1745, 

which, given the nature of the beck it was crossing, would imply that the route was 

used by more than just pedestrians. In 1745 it was called ‘New Brig[Bridge]’, which 

implies that it had recently been built or that it was a replacement for an earlier 

bridge. It has been widened at some time since then, and is a ‘packhorse’ style 

bridge.



Date Map Pge Description Notes 

1745 Brasier’s map of 

Furness 

208- 

209 

Included in Hindle’s book, he points out that 

the Walna Scar Road is shown, but not the 

present main road from Lowick to Broughton. 

The bridge (later called ‘Torver’ or ‘Cove’ 

Bridge) is here shown as ‘New Brig’ 

1772 Anitquities of 210 A copy of the 1745 map. 

Furness 

1778 Cary 211 Very early map, showing few roads in the area 

– includes Walna Scar. 

1786 Yates 212- 

213 

Cross Road 

1818 Greenwood 1” 214- 

215 

Cross road 

One of the first county maps. Shows 

bridge as ‘New Bridge’ (later shown as 

Torver Bridge and now Cove Bridge), and 

other topographical features. 

Greenwood was a respected map maker of 

the era. This map of Lancashire only 

showed the major through routes. Almost 

all the other routes shown on this map are 

today public vehicular highways. There is 

no indication of the quality of the road. 

1824 Baines 216 Cross Road A rather crude map that only seems to show 

the main routes. Most of the routes shown 

are today public vehicular roads. 

1826 Paterson’s 

Roads 

1827 Otley 218 No key, but 

implies an 

unfenced road 

1829 Hennet 219- 

220 

217 Shown as an unfenced road across fell. 

Cross Road 

1830 Cary ½” 221 Parochial 

Road 

c1910 

Bacon’s Cycling & 

Motoring 

Even more basic map – only road shown 

between the valleys. 

Greater detail as to the surrounding area 

(quarries and so on) can be seen. Again, only 

the more ‘important’ roads were shown, 

including the two quarry roads heading south 

(these are today only recorded as public 

bridleways). 

Cary was one of the most respected mapmakers 

of his time, and so it is probably 

the best map of the era to consider. His 

maps tended only to show the more 

important roads rather than every single 

little track. Almost all are today public 

vehicular roads. 

222 Shown as a dashed line, rather than as a 

road, implying that it was not considered 

suitable for road cyclists. 

1920/30 Phillips 223 Other road Shown with dashed edges (probably meaning 

unfenced). Other tracks on the fell (which are 

today only bridleways) are shown in a similar 

fashion. 

1920s? Geographia Road 

Map 

c1930 

Motoring & Hiking 

Map 

224 Neither A nor B 

road, nor a 

footpath. 

Similar to Phillips. 

225 Shown as a dashed line, rather than a road - 

in a similar fashion to other footpaths and 

bridleways. 

1934 Bartholomews 226 Track Shown at a lesser status than a road, but 

more than a footpath - although annotated 

as Walna Scar Road. 

1936/60 Gall & Inglis 227 No key Only route between the valleys. 

c1940s 

WH Smith & Son’s 

Travelling Map 

228 Other road Shown as an other road, more important than 

just a ‘pony track’



8 Ordnance Survey Maps (p229-235 & 286-287 – and overview map) 

8.1 The Walna Scar Road has been consistently shown on Ordnance Survey maps as 

a well-defined route since they were first published in 1851. Unfortunately, because 

of the fell nature of much of the land, the early surveys and maps were only at the 6” 

to a mile scale, rather than the more useful 25” to one mile. 

8.2 Since 1888, Ordnance Survey maps have carried the disclaimer that routes shown 

were no indication that they were public rights of way. However, they are still of 

great use in showing what the track was considered to be like in comparison with 

other routes in the same area – which gives an indication of what the status of the 

route could have been. 

8.3 The first maps were published in 1851 at a scale of 6” to a mile (1:10,560) (p229-232). 

This shows the road in a similar fashion to its modern depiction - as mainly a 

bounded lonning east of point D, and west of point N (on map attached to report, 

and at page 1 of document bundle), and an unfenced track over the fell. The 

relevant points to note are: 

• A Guide Post at the point where the Walna Scar Road leaves the Duddon 

Valley road (point A). Guide Posts were a feature generally connected with 

rural roads. The Highway Authority of the time was obliged to erect signs at 

road junctions (but this does not automatically mean vehicular roads) (p233); 

• The wide extent of the area known as ‘Walney Scar’, when compared to the 

‘Walney Scar Road’; 

• The location of various quarries (see overview map); 

• The existence of boundary stones where the road crosses the parish 

boundary between Dunnerdale and Torver (implying that the road was an 

important feature); 

• The annotation of some other tracks as ‘Foot Path’ – thereby implying that 

the Walna Scar Road was of a greater status. 

8.4 The first 25” maps (1:25,000) were published in 1890, and covered the eastern half 

of the route. The depiction of the road is broadly similar to the earlier 6” maps. 

Copies are not included copies as they are too large, and show little extra detail. 

8.5 By the 1913 editions of these maps (see highway maps at paragraph 11.5 (p286-287)), 

the differentiation between the Walney Scar Road and linking paths was more 

obvious. Footpaths were depicted as thinner routes and annotated FP, whereas 

bridleways were annotated as BR. Walna Scar Road carried neither annotation. 

8.6 The 1920 (reprinted 1948) OS tourist map (p234-235) shows Walna Scar Road as a 

Minor Unfenced Road, as opposed to a bridle or footpath. Guide Posts are 

noticeable at various locations along the road. 

8.7 The inference from these maps is that Walney Scar Road was considered to be of a 

greater physical status than a bridleway since at least 1913, and probably earlier – 

and that it was a route of some importance. But the Ordnance Survey showed 

physical features rather than legal status – so the depiction of a ‘road’ does not 

automatically mean ‘public vehicular road’. It should be noted that the quarry road 

south of Walna Scar Quarries (point F and southwards), and part of the track down 

from Banishead Quarry (south of points K/L) were generally shown in the same 

way. These are today only recorded as public bridleways.



9 Enclosure Maps, Tithe Maps, Estate Maps and Railway plans (p236-242) 

9.1 No records can be found relating to many of these maps. No tithe awards were 

made for either Dunnerdale or Coniston (Church Coniston as it was at the time), as 

the tithes had previously been merged. Most of the land is unenclosed, so no 

enclosure award applies to this. The field pattern to the east of point N resembles 

that created by parliamentary enclosures, but no records exist of any award. 

9.2 An estate plan in the Crown Estates records dates from 1805 (p236-237) and shows 

Walna Scar Road as “Road from Seathwaite to Coniston”. The status (whether 

bridleway or vehicular, public or private) is not mentioned. 

9.3 The deposited plan and book of reference for the Coniston branch of the Furness 

Railway was lodged in 1856. This was drawn up to show where the railway would 

run, and what it would be built over. 

9.3.1 Walna Scar Road was mapped as plot 109 (p238-239), and is listed as “Public 

Highway” in the book of reference (p241), owned by the Surveyors of Highways for 

Church Coniston. It is labelled on the map as “from Seathwaite” – which would 

imply that the status was the same throughout. It is unlikely that the status 

changed, as beyond the railway line the road only led to the fell and beyond, not to 

any houses or farms. The photograph of Station Hill from 1913 shows the 

steepness and condition 60 years later – it was still a rough, steep, unsealed track. 

9.3.2 Other listings in this document include: 

• 17a: Public Highway (map not provided, but probably the main road); 

• 3 & 107: Occupation Road; 

• 81: Occupation Road and public footpath; 

• 82: Occupation Road and footpath; 

• 92: Pasture field and footpath. 

There are no examples of public or private bridleways. 

9.3.3 The strong inference here is that the Walna Scar Road was considered as a through 

route from Coniston to Seathwaite. The fact that a distinction was made where the 

‘road’ was private with lower public rights, infers that Walna Scar Road was more 

than an occupation road being also a public footpath or bridleway – but actually a 

public road / carriageway.



10 Finance Act 1910 (p243-267) 

10.1 The Finance Act 1910 imposed an ‘increment value duty’ on land. The Board of 

Inland Revenue was required to calculate the site value of all land in the UK by 

plotting and recording every piece of land. The survey was undertaken by local 

professional valuers and included consultation with the landowners. It became 

known as the “Second Domesday” as it was one of the most comprehensive 

records of land ever undertaken in this country. The result was a 6” or 25” map for 

all parishes, together with field books for each heriditament (parcel of land). 

10.2 The Act contained criminal sanctions for falsification of evidence. It specifically 

allowed landowners to reduce the gross value of land by declaring any public rights 

of way (or user). So, by claiming a reduction for a right of way, the landowner was 

formally declaring that one existed – if it did not exist then the landowner was 

committing a criminal offence. Generally it can be said that if the records refer to a 

public footpath or bridleway, then that right existed. Conversely, it was only at the 

landowner’s discretion as to whether he wished to claim this reduction, so if there is 

no claim for a right of way, it does not mean it did not exist. 

10.4 It is also generally held that land excluded altogether from the Finance Act was 

probably a public carriageway. 

10.5 The following is a list of the heriditaments that the whole of Walna Scar Road (WSR) 

passed through in 1910 (on maps p243-247, and on overview map) – this includes the [now 

tarmac] sections to the west and east of the claimed route. The list is west to east. 

The maps do not copy well – so the CD copies should be used. 

Ref 

No. 

Page Occupier / Owner Notes Any deductions for rights of 

way? 

18 248- Hartley / Moses The boundary of this 

No – although “Main Road” is 

249 

Tyson of Boot heriditament obscures the road mentioned – presumably the valley 

– so it is not positive that WSR road. 

does lie in this plot. 

7 250- 

251 

12 252- 

254 

Tyson / Moses 

Tyson of Tongue 

House 

Dawson / Caddy, 

Bootle 

86** 255 Hartley / Butler 

Solicitors & 

Hartley of Boot & 

Tyson of Tongue 

House 

69 256- 

257 

82** 258- 

259 

407** 260- 

261 

159 262- 

264 

Common Holders / 

Cheetham 

Torver 

Commoners / The 

Crown 

Various / Le 

Fleming 

Fleming / Gildard 

(Manor of 

Coniston?) 

Contains a short enclosed 

length of WSR. 

Contains a short enclosed 

length of WSR to last habitation 

(Beck House). 

Large area of Fell Land with a 

1.5km section of unenclosed 

WSR from the end of the 

current tarmac to the fell gate. 

7000 acres of Dunnerdale & 

Seathwaite Common – from fell 

gate to parish boundary. 

Large common, with about 

1.4km stretch of unenclosed 

WSR. 

Large fell area (3,500 acres) of 

Coniston Common belonging to 

the Lord of the Manor of 

Coniston. 

In one plot runs a stretch of the 

WSR below the fell gate, then 

the edge of a field, now 

enclosed. 

None – and no mention of road or 

track. 

No. 


track. 

£100 deduction for ‘Rights of Way’ 

– but no indication of where these 

were over this very large plot. 


track. 


track. 

£10 deduction for an 800 yard 

Occupation Road. No indication of 

where, but WSR was about 490 

yards within OS field 73 and



339 265- 

266 

Coniston Slate Co 

/ Le Fleming. 

A thin heriditament containing 

four OS land parcels, numbers 

64, 78, part of 106, & 405. But 

only 64 and part 106 are 

mentioned in the field book. 

The land is described as a ‘slate 

quarry’. 

another track runs north-west to 

field 72 – (320 yards). The two 

together totalling about 810 yards 

It would seem as though only plots 

64 and 106 were counted for rating 

purposes – which would mean that 

plot 78 was considered unrateable. 

A very low valuation of £5 was 

given for the whole plot, and no 

deductions were made for rights of 

way. 

342 267 Furness Railway Railway Land 

Unallocated Land further east is not 

allocated, therefore presumably 

a public highway. 

**These records were all completed by the Valuation Department rather than the landowner. 

10.6 These records give little assistance in determining what the status of the Walna 

Scar Road was in 1910 – which is strange given its obvious importance at the time. 

10.7 Neither of the 6” maps ‘colour out’ any of the area’s roads – not even the main 

Duddon Valley road. Therefore the lack of separate plots for the Walna Scar Road 

across the fell has no significance. It certainly cannot be concluded that because it 

is not shown, it was not a public carriageway - otherwise the other undoubted 

carriageways would also have to be denied. 

10.8 The majority of the valuations simply do not mention any rights of way, let alone 

Walna Scar – therefore its absence again has little significance. Especially as three 

of the four main valuations were completed by the valuation department, thus 

weakening the link between the knowledge of the landowners as to rights, and what 

was recorded. Where there is a deduction for rights of way (plot 69), it is such a 

huge area, with so many current rights of way, that it is impossible to determine 

which ways were referred to, or what status they were. 

10.9 It could be inferred that one section between the railway and the fell gate was 

‘excluded’ and this could therefore have meant that it was a public carriageway. 

However, the value of the entire plot (339) was only £5, and it may well have been 

that the track was simply considered to be of no value to the landowner. But this 

would equally apply if the way was a public bridleway with private vehicular rights. 

Also, the fact that no mention of any road is made, and no deduction claimed is 

fairly irrelevant – as, given the £5 valuation, there would have been no real benefit in 

claiming any. 

10.10 There are no deductions or references to private easements for quarry traffic from 

outside of the holdings. 

10.11 The only apparent mention of the road is in plot 159, where it appears to be classed 

as an ‘Occupation Road’. But from this single mention, it would be unwise to infer 

that this meant that the whole of the route was not a public carriageway, because to 

do so, would also have to result in the conclusion that it was not a public highway at 

all – and the other evidence shows that it was certainly was, of some sort, by 1910. 

10.12 The section east of the railway is not valued, and this almost certainly was a public 

carriageway at this time, as it was one of the two roads to the railway station. 

10.13 In summary, the Finance Act records offer virtually no assistance.



11 Local Authority Records and other associated records (p268-287) 

11.1 Records of the Surveyor’s of the Highways (p268-272) 

11.1.1 The account book for the Torver Surveyor of the Highways exists for 1768 – 1834. 

Only in some instances were specific roads mentioned (no highways were named 

after 1803), and Walna Scar is referenced five times. 

Page Year Expenditure Amount Percentage 

of yearly 

spend 

268 1777 Ben Wilson for going to Wanacar (probably 

Walna) 

Two Thos. Wilsons for ditto 

269 1782 Two days work at Walney Scar 2/8 2% 

270 1783 Alexander Milligin for making 100 Rood in 

Walney Scar Road (a rood has various 

definitions, of various lengths depending on the 

source) 

£4 73% 

271 1787 Expenses at setting Walney Scar Road 6/8 3% 

272 1803 Repairs of nue bridge (although there was also 

an £8+ entry for labour – but unspecified as to 

where this was) 

£1:17/0 17% 

11.1.2 The accounts show that the, relatively short (1500 yards), section of Walna Scar 

within Torver was maintained at public expense at this time. Unfortunately, the 

accounts do not really reveal to what status the route was maintained – but it is of 

note that the road served little direct purpose for Torver inhabitants, merely being 

part of the through route between Coniston & Dunnerdale Parishes. Torver 

inhabitants would have only joined it at the bridge. This basically re-emphasises the 

regional importance of the Walna Scar Road. 

11.2 Quarter Sessions Records – Bridges (p273-275) 

11.2.1 The 1777 record is from a book of Plans of Bridges in North Lonsdale (p273-274). 

Torver Bridge itself is not included, but Church Bridge in Coniston is. This bridge is 

immediately adjacent to the junction of Walna Scar Road with the main road through 

Coniston. Walna Scar Road is shown as coming “From Seathwaite” in a similar 

fashion to the other three destinations, which were undoubtedly vehicular routes at 

the time. 

11.2.2 The November 1801 record is from a set of returns of bridges in Lancashire, which 

were considered not to be county or hundred bridges (p275). This entry reads “New 

Bridge some time since repaired by the Hundred but not found on the list, has been 

neglected which is on the road from Seathwaite to the Market Town of Hawkshead”. 

Again, this does not actually mention what size the bridge was, or how it was used. 

It would seem as though this survey prompted the works by Torver Parish in 1803 

(see 11.1.1) on ‘nue bridge’. New Bridge being the one shown on the 1745 map. 

11.2.3 A Guide to the Packhorse Bridges of England (p276-277) – This gives details of the 

underneath widths of the bridge. At sometime it has been widened from 57” to 78” 

(4’9” to 6’6”) – which would imply that the purpose of widening it was to enable cart 

use. 

1/6 

8/0 

2%



11.3 High Furness District Highway Board (p278-283) 

11.3.1 The Highway Board was responsible for the maintenance of highways in High 

Furness (which included Coniston, Torver, & Dunnerdale) between 1892 and 1899. 

11.3.2 In 1896 the Walner Scar Road was discussed (p279). A letter was read from William 

Bell (agent for Walna Scar Quarry Slate Company, Seathwaite (p280)) complaining of 

the bad state of the road. The clerk was instructed to write to Mr Bell asking him to 

contribute towards the maintenance on the grounds that it was extraordinary traffic. 

It is likely that the section referred to was the western side down to Seathwaite, 

between points F or G and A. 

11.3.3 Basically, the highway authority could, and can, recover the costs of repairs to 

highways if they have been damaged by usage over and above what the route was 

intended for, or maintained for. In essence, the highway authority could recover 

costs from those using a footpath in vehicles and similar instances. 

11.3.4 The traffic related to Mr Bell was considered to be ‘extraordinary’ – which could 

mean a number of things, for instance: 

• it was wheeled quarry traffic, using the route as a public vehicular route, but 

accompanying sledges were doing the damage; 

• it was wheeled quarry traffic, using the route as a public vehicular route, but 

which had increased (either in trip numbers, size or weight, etc); 

• the route was not considered to be a public vehicular route, and the wheeled 

quarry traffic itself was ‘extraordinary’. 

With there being no further related entries, it is difficult at this time to determine 

which of these was the case. However, it is reported (see section 12.5) that at the 

Coniston Parish Council meeting of 1901, councillors voted to outlaw the use of 

sledges completely because of the damage to the road down to the station (at the 

other end of the road) – so it would appear that it was this, rather than the wheeled 

carts, that was considered ‘extraordinary’, and that the public highway was for 

wheeled traffic. 

11.3.5 In any case, Mr Bell’s traffic does appear to be quarry cart traffic, and his request for 

the road to be repaired by the Highway Board would indicate that he / the quarry 

operators assumed that the route had public carting rights, and that the quarry 

themselves had no private rights to use the road or any associated responsibility for 

maintenance. 

11.3.6 In 1896 the Board considered an estimate for relaying 1155 yards of Station Road 

(p281). It is difficult to know exactly what this referred to. Mrs Mallinson, who 

submitted the evidence suggests that this incorporates a substantial length of Walna 

Scar Road both to the east and west of the station (1155 linear yards is the ‘new’ 

Station Road and between points Q & O. If so, then this is further evidence that the 

route was publicly maintainable – but not to its actual status. 

11.3.7 However, an associated entry is for 1066 yards at the junction of Station Road and 

the main road. 1066 square yards encompasses the junction and a short approach 

(about 10 linear yards) on all four joining roads (p283). So, if the 1155 refers to 

square yards on Station Road (rather than liner yards), then this is a short stretch 

completely unrelated to Walna Scar Road.



11.4 Coniston Parish Council Minutes 1894-1930 (p284-285) 

11.4.1 Within the minutes are two references to Walna Scar Road. 

• 3 November 1903 (p284): “That the District Council be requested to take into 

consideration the erection of finger posts on the highway leading from Coniston 

to Walna Scar pass, and suggest that posts be fixed at the following places viz 

at the Coniston Fell gate, Cove Bridge and Walna Scarr Quarries” 

• 3 September 1906 (p285): “that the Rural District Council be requested to erect a 

guide post at the corner of the Level Field on the road leading to the Duddon 

Valley, Walna Scar, and the Old Man” 

11.4.2 The guide posts at Coniston Fell Gate and Cove Bridge were presumably then 

erected as they appear on the 1913 Ordnance Survey maps. Signposts were also 

present at the station and the start of the road. 

11.4.3 The minutes show that Ulverston RDC were by then responsible for the 

maintenance of the entire Walna Scar Road. 

11.5 List of Streets – Westmorland then Cumbria County Council 

11.5.1 The route is listed as a ‘Highway Maintainable at Public Expense’ in the List of 

Streets maintained by Cumbria County Council under section 36 of the Highways 

Act 1980 (p6-10). However, there is no indication of when or how this route came to 

be listed as such. Unfortunately, the earliest official highway records for Lancashire 

(the 1929 ‘handover’ records) are missing a number of map sheets, including the 

two covering the Walna Scar Road. 

11.5.2 The maps used by the Lancashire (North Lonsdale) highway surveyors up to 1974 

show the route as number 1/21 – later changed to the U5033 after local government 

re-organisation (p286-287). These maps also show the location of County Council 

maintained signposts and their wording. Both ends of the Walna Scar road were 

signposted as a through route, but with the additional wording ‘unfit for cars’. This is 

an indication that, in the motor era, the highway authority considered that the route 

was vehicular, just not suitable for cars – there is no indication of whether they were 

erected before or after 1930. 

11.5.3 Cumbria County Council is unable to provide any records of maintenance that they 

have carried out on this road. Nor have we any records of maintenance carried out 

by ourselves before 2002, but considerable work has been done since then. 

Despite the lack of documentation, there is no doubt that the highway authority has 

maintained the route since 1930, and that this maintenance facilitated vehicular 

usage to continue. In particular, the bridge at SD 270 965 (Torver Bridge or Cove 

Bridge) bears relatively evidence of typical ‘County Council’ rails and repairs. In 

1982, reference was made to £4,000 worth of repairs recently being carried out to 

the bridge by the council (paragraph 544 – p351). 

11.5.4 The road was not shown on the first definitive map for Lancashire. Although few 

records exist for the process undertaken in Lancashire, and the parish council’s 

involvement – it is probable that nothing was shown on the definitive map as the 

route was already on the council’s ‘List of Streets’ as a highway. 

11.5.5 The route between D & N was added to the definitive map and statement following 

the Limited Special Review described in section 13 below.



12 Quarrying & Associated Records (p288-353) 

12.1 It is the usage made of Walna Scar Road by quarry traffic that is the most important 

factor in determining the status. I have therefore listed the evidence below, but it is 

also discussed in the analysis at section 16. 

12.2 The history of slate quarrying around Coniston has been explored in detail by 

Alistair Cameron, a local historian. He has published a book “Slate from Coniston” 

(1996, revised 2005) which gives detailed information about various quarries, who 

operated them, who owned them, and the access to them. Relevant extracts from 

this book have been included and summarised. Mr Cameron has also provided a 

statement and e-mail response providing further evidence relating to some of the 

specific points of interest. 

12.3 A good way of assessing the evidence is by using the 6” overview map of the 

Walna Scar Road, on which I have indicated the relevant quarries, their access 

tracks, and ownership, in 1910 (although it is clear that much of the land has not 

changed hands for centuries). 

12.4 Other documents have been provided by interested parties, and these have also 

been included and referred to. 

12.5 Alistair Cameron - Slate From Coniston, 1996 (copies from revised 2005 edition) 

(p288-310) 

12.5.1 The sketch map at page 126 of the book, combined with the 6” OS map shows 

the quarries in relation to Walna Scar Road. These were: Goatsfoot, Goldscope, 

Cove, Bursting (Brossen) Stone, The Old Man Quarries, and Walna Scar Quarry. 

Bundle Book Date Notes 

Page 

Page 

290 126 Sketch map of quarry locations and relationship with Walna Scar Road. 

304 130 1680s Gold Scope quarries … from Walna Scar Road. The quarries here were one of the 

first to be worked on the Coniston Fells. In 1680 they were well established and 

could have been working for over 100 years before this date … few records exist. 

291 8 1720s The big quarries, the important quarries were high on the Old Man and Walna Scar. 

Gold Scope workings are also ancient. In 1688 Coniston slate was being exported. 

291 8 1772 Estimated that some 2000 tons of slate was transported from Coniston. Slate would 

be brought down from the quarries by cart and loaded onto boats at Kirkby Quay. 

291 9 1779 Many of the slate and flag quarries at Tilberthwaite, Walna Scar, Torver and 

Coniston were working continually. 

291- 

292 

9-11 1750 Le Flemings were “Lords of the Manor” – signed a lease with Riggs to work the 

quarries within the Manor of Coniston. Le Fleming lands included the workings on 

the Old Man & Walna Scar [they still do today, except for Walna Scar]. Gold Scope 

Quarry did not fall on their lands [it was in the Manor of Torver – still owned by the 

Crown]. 

292 11 1750s Five carters were employed for bringing slate down from the quarries to the head of 

the lake. 

304 130 1820s Goatsfoot Quarry, at the foot of Walna Scar Pass [near the middle of the road as a 

whole] was opened during the 1820s. Access to the quarry was via Walna Scar 

road and the small amount of slate worked there would have been taken away by 

horse and cart. 

295- 

296 

18-20 1832 Lady Le Fleming put the leases of the slate quarries up for sale, and again in 1841. 

299 25 1841 Mandalls took on leases for the Old Man quarries. 

302 36 1843 Coniston Slate company took over the lease on Cove Quarries. Later, the company 

acquired the Cat Bank Slab Quarry (see Finance Act 1910). 

296 20 1859 Furness railway branch to Coniston opened.



296- 

297 

21-23 1860 The Cove and Banniside Slate Company (later to become the Coniston Slate 

Company) set up a slate stockyard at Torver Station. The Mandall Slate Company 

did the same at a purpose-built slate wharf at Coniston. 

301 27 >1880 Mandalls constructed a cart road from their Saddlestone Quarries up the 

mountainside to replace pack-horse track [the track down to Walna Scar Road 

already existed]. 

304- 

306 

293- 

294 

131- 

133 

1890- 

1920s 

Detailed history of Cove Quarries, it’s origins from before 1700 until the last work in 

the 1920s. In the 1890s the existing access road (already designed to take horses 

and carts) was improved. Transport was always a problem, the quarry never 

progressed further than the horse and cart era. The route of the cart track can be 

traced from the Walna Scar Road. 

15-16 1900s Gold Scope and lower quarries at Cove were extensive, the Old Man Quarries were 

in full production. 

303 47 1906 Walna Scar Quarry closed. Gold Scope & Cat Bank continued. Last proprietor of 

Gold Scope worked quarry with son – slate was carted down to Torver [not 

Coniston]. 

298 24 1910 Photograph of slate being carried in a cart and sledge from the Old Man Quarries [to 

point N, then down the Walna Scar road to the station at Q]. Coniston Parish 

Council in November 1901 voted to outlaw the use of sledges because of damage. 

304 131 1920s Last proprietor of Gold Scope worked quarry until 1920s. 

300 26 1922 Photograph of carter returning from Coniston Station – Carters normally made three 

trips down from the quarries each day. 

308- 

309 

135- 

137 

History of the quarries on the Old Man. Track from fell gate and Walna Scar Road is 

old quarry road, was the cart route down to Coniston. Each cart dragged a sledge 

behind it, sledge would run on own set of wheels on less steep section. On steep 

section down to Coniston station the sledge was dragged on runners. The road was 

a public highway and the state of the surface was a constant problem to the council 

at the turn of the century. This cart track served a number of quarries. 

305 132 ? Photograph showing two carts with their sledges on the Old Man Quarry road on 

their way to Walna Scar Road [at point N] and then down Station Hill. The sledges 

acted as a brake on the steep hill. 

310 142-3 History of Low Water Quarries 

12.5.2 Mr Cameron has also provided further information (p311-315). The notable points are: 

• Horses and carts were used on both sides of the Pass in the 19 th Century. 

• Old Man Quarries - the slate went along quarry roads and then eastwards down to Coniston 

along Walna Scar Road (N to Q/R) [same ownership – differently occupied]. 

• Bursting Stone - the slate (until 1860) went eastwards along Walna Scar Road from M to N, 

Q/R) [same ownership – differently occupied]. 

• Cove Quarries - the slate was originally carted across Walna Scar Road and down to Torver 

Station. After a dispute with other quarry operators and the railway company, the slate was 

carted along Walna Scar Road from L to M, N, Q/R [same ownership – differently occupied]. 

• Goatfoot - there are no records of transport routes – but logic dictates that Walna Scar 

Road must have been used for part or all of the journey [different ownership beyond point 

K]. 

• Gold Scope – had two sets of workings, reaching Walna Scar Road at two different 

locations. One track was used for carting westward over the pass to Dunnerdale; IHGF-A. 

The last proprietors took their slate eastwards, some along Walna Scar Road IJKLMN-Q/R, 

but mainly southeast to Torver – only using Walna Scar Road for IJK [same ownership I-H 

and I-K, one different owner K-Q, four different owners H-A]. 

• Walna Scar Quarries – most of the slate was taken south via Broughton Mills – but some 

from the north quarries along the ‘Slate Road’ to Walna Scar Road, and down FE-A (and 

see 11.3.2 – complaint about this road) [three different owners G-A, none of which owned 

the quarry].. There are stories of heavy equipment being brought over the pass from 

Coniston (Q-NMLKJIHGF). 

• In all his years of research, he has never seen any reference to permission being required 

from landowners to use Walna Scar Road. There is no record in the way of licences or rent 

within the multiplicity of owners and quarry operators – of which there were many. 

• A map of 1915, which belonged to one of the quarry companies, has three routes marked in 

brown (p315 & CD) – eastern half of WSR, and the two routes south-east from Torver bridge 

to Torver. [The quarry roads, and other footpaths and bridleways were not shown like this]



12.6 1871 Lease – Torver High Common (Crown to Thomas Field) (p316-323) 

12.6.1 Mrs Mallinson has searched all the archives relating to quarry leases, and has 

found little relevant information. One lease does exist from 1871 relating to Gold 

Scope and other quarries in Torver. The only relevant reference is “to make and 

erect all necessary pits shafts buildings and machinery roads and watercourses on 

the said land (so far as the said Commissioners can authorise the same)”.. (p)317 

This does not say which roads, and there is no reference to any permissions given 

or needed to use existing roads (such as Walna Scar). From Gold Scope, use of 

Walna Scar road is described in section 12.5. 

12.6.2 A later reference mentions the ability of the Crown to grant the use of roads on the 

land to other person or persons as thought fit. But again, this is far from an 

indication that permission was given to use Walna Scar Road. 

12.6.3 There are no references to any ability to use any roads beyond the land owned by 

the Crown. 

12.7 1880 Lease – Le Fleming to Mandalls (Old Man Quarries) (p324-328) 

12.7.1 The relevant parts of the lease are: 

• “And also full & free liberty unto & for the s d . Thos: Mandall Clarke & Jno: Mandall their 

exors: admors: & assns: workmen agents & labourers with or without waggons carts 

carriages horses or other animals to use all the usual & accustomed roads & ways to 

& from the s d . quarries” (p324). 

• “And also that they the s d . Thos: Mandall Clarke & Jno: Mandall their exors: admors: & 

assns: shall & will at their own costs & charges from time to time & at all times during 

the s d . term hereby granted repair & keep in good order & repair all & singular the 

erections & buildings hereby demised & all those wh: may hrafr: be erected & all walls 

fences drains watercourses ditches rails tramways roads & ways & which now are or 

hereaf r. shall be used by the s d . Thos: M Clarke & Jno: Mandall their exors: admors: or 

assns: in connection with the said quarries & premises hereby demised And also shall 

particularly amend repair & maintain any roads wh: shall have been made or shall be 

made by the lessees of the Coniston Copper Mines & upon wh: no sledges or 

carriages other than carriages upon wheels shall be used wholly if for the time being 

used only by the s d . Lessees or in proport n . to the respective usuage theof: if used by 

both the Lessees & the s d . Coy: such proport n…. ”(p326) 

12.7.2 So, the lease seems to explicitly give permission to use the usual and accustomed 

roads, and to repair and keep them in good order. However, as there are no 

detailed descriptions or map, there is no way of knowing whether the references 

were restricted to the quarry roads leading onto Walna Scar Road – or included 

Walna Scar Road itself. The road to the station between N & Q was also in the 

ownership of the Le Flemings, but leased separately. 

12.7.3 There are no references in these leases to any ability to pass over land owned by 

others. We have not been provided with copies of any leases pertaining to quarries 

that may have used Walna Scar Road over other landowners holdings; Mrs 

Mallinson and Mr Cameron have looked through the records, and have not found 

any.



12.8 1880 correspondence relating to dispute (p329-353) 

12.8.1 This correspondence relates to a dispute between Mandalls, who leased Eddyscale 

Quarries from the Crown (Torver Parish) and Jackson & Co, who leased Banishead 

Quarries from the Le Flemings (Coniston Parish). The actual documents have not 

copied well, so Mrs Mallinson has provided a transcript; a clearer scan of the 

documents is also on the CD. They need to be read in their entirety to be fully 

understood. 

12.8.2 The access from Banishead was entirely on Le Fleming’s land – going south and 

east from the quarry to Little Arrow. But the access track was not in good condition, 

and difficult to use. The access from Eddyscale was mainly on Crown land south 

and west to Scar Head; and was a far better route. 

12.8.3 Jackson’s reached an agreement to break through a fence to give them access to 

the Scar Head road, which obviously benefitted them. Mandalls complained about 

this, as it gave their competitors an unfair advantage – and they stated that they 

had been prevented from making a new road across other landholdings. 

12.8.4 The key items from this correspondence are: 

• There was obviously an understanding that a formal process was required to 

gain permissions and agreements to create and use tracks (that were not 

already accepted as public) across other landholdings. 

• The whole dispute centred around the creation of a very short stretch of 

road to join with the Torver-Seathwaite road, the second half of which is the 

Walna Scar Road from K-A. The quarry operators considered that this road 

was a ‘public highway’ (p330 & 339), and as their method of transport was 

carting, then it must be assumed that they considered it a public vehicular 

highway. Unfortunately, the actual question posed in July 1888 (in response 

to an earlier comment that it was an ‘occupation road’ (p329 & 335)) was not 

specifically answered. 

12.9 Report, 1916 (p351-353) 

12.9.1 This report for the Crown Estate refers to Gold Scope slate quarry being operative 

in 1835, when cartage was 5/- a ton (p352). This strongly implies that at least one 

section (I-K/L) of the Walna Scar Road was usable by carts in 1835. It is also an 

indication that the bridge (New/Torver/Cove Bridge) had been widened sufficiently 

for cart use by 1835.



13 Public Inquiries during the Limited Special Review – 1982 & 1988 (p354-374) 

13.1 The first point to note is that any previous proceedings are not binding on the 

current decision making process. The information below is included to explain 

where we are now, and to summarise the evidential matters that are still of 

relevance. 

13.2 Local government re-organisation in 1974 created the new county of Cumbria from 

the former counties of Cumberland & Westmorland, part of Lancashire north of the 

sands, and three parishes in Yorkshire. 

13.3 A new definitive map was needed and the process begun in 1975. In addition to 

merging the various pre-existing definitive maps, the opportunity was taken to 

reclassify all the current Roads Used as Public Paths (RUPPs). There was also 

dispensation to look at routes not on the definitive map (or on the map but only as 

bridleways) but which had the character of RUPPs. These were generally termed 

‘Green Lanes’. The reclassification process was carried out under the provisions of 

the Countryside Act 1968, which allowed for considerations such as suitability and 

potential hardship if routes were stopped up. Such considerations no longer apply, 

as under the Wildlife & Countryside Act 1981, the only aspect that can be looked at 

is whether or not rights exist. 

13.4 Two public inquiries were held to consider that status of the Walna Scar route, and 

the reports by the Inspectors are included within the document bundle. The exact 

process is not easy to follow, but is summarised below: 

• The route was added to the draft review map by Cumbria County Council as 

a bridleway. 

• Legal guidance to the effect that as it was not currently a RUPP, but was on 

the ‘List of Streets’, and therefore could not be reclassified led the council to 

propose deleting it from the definitive map before publication. 

• But objectors disagreed, claiming that the way should be shown on the 

definitive map, and as a byway open to all traffic – not a bridleway. 

• At the public inquiry in 1982 the Inspector agreed that the evidence showed 

that the way should be a byway, but also agreed with the County Council 

and recommended that the route should be deleted. 

• The Secretary of State disagreed with the logic that a public road could not 

also be on the definitive map and ruled that the way should be byway. 

• He also stated that a second hearing be held for those who may be 

adversely affected by the decision. 

• At this hearing the Inspector recommended that the way should be a 

bridleway, mainly on the grounds of unsuitability for vehicular use. 

• The Secretary of State confirmed the recommendation. 

13.5 It should be noted that although Cumbria County Council were instructed to show 

the route as a bridleway on the definitive map and statement, one section (Torver 

Parish, between B & C) was correctly shown as a bridleway on the map, but as a 

byway in the statement. This type of minor typographical error has no relevance to 

the current decision making process. 

13.6 Most of the evidence mentioned within the Inspectors’ decision letters has been 

brought forward again during the current investigation. However, there are a few 

points worth noting, either because they add evidence or clarification. The numbers 

in the list below refer to the paragraph numbers of the Inspectors’ decision letters.



13.7 First Inquiry - 1982 (p354-363) 

• 563 (p355) – concludes that there is substantial evidence of public vehicular 

rights, and of substantial and unchallenged evidence of regular and 

uninterrupted use by recreational motorcyclists for nearly 50 years (that is – 

back to the mid-1930s). 

• 541 (p360) – reference to nearby prehistoric settlements indicate that the route 

is indeed ancient, and there is no debate about this. Unfortunately, it does 

not help towards deciding when vehicles started using the route. 

• 542 (p360) – there is reference to Wainwright describing the route as a road of 

some importance, following a course over which horse-drawn vehicles could 

be taken. Although interesting, little weight should be paid to such a 

comment written in the latter half of the twentieth century unless there is 

some corroborative evidence. 

• 544 (p361) – the mention that Cove Bridge had been recently repaired by the 

council at a cost of £4,000 shows that the local highway authority maintained 

the route at public expense. And also that the maintenance was to a level 

that continued to facilitate vehicles. 

• 549-552 & 555 (p361-362) – relates witness evidence of usage, most if which 

has been replicated earlier in this report. 

• 554 (p362) – refers to Jenkinson describing the Walna Scar Road as a cart 

track from the foot of Walna Scar to the town of Coniston. A copy of 

Jenkinson’s guide is mentioned above in Section 6, and the phraseology 

actually used seems less clear-cut than implied here. 

13.8 Second Inquiry – 1988 (p365-374) 

• 37 (p371) – reference made to the use of sleds rather than vehicles for 

carrying quarried slate. 

• Most of the inquiry revolved around the suitability, or otherwise, of the route 

for vehicles. This cannot play a part in any current decision, but does give a 

further indication of the state of the route.



14 Consultations (p375-388) 

14.1 I consulted before the original order with the relevant local authorities, interested 

parties, and landowners. Not all the consultees responded and the relevant 

comments of those that did are included below. Comments on suitability, desirability, 

or whether the respondee wishes to see the route as a byway or not have been 

excluded, as they cannot be taken into account. 

14.2 A map showing the ownership of the route is included for reference. 

Consultee 

LDNPA property surveyor – 

tenant of section B-C (owned by 

the Crown) 

James Pennefather – owner of 

section from C to the 

Dunnerdale Fell Wall (p376-377). 

Rydal Estates – owners of 

section A-B (p378-381). 

Ben Reedy, member of the 

public (p382). 

CTC – UK national cyclists’ 

organisation (p383). 

County Councillor (p384). 

Coniston and Torver Parish 

Councils (p385). 

Ramblers’ Association (p386). 

The Trail Riders Fellowship 

have also provided some useful 

information on motorcycle 

development and use before 

1930 (p387-388). 

Relevant comments. 

No evidence or relevant comments. 

Land was bought in 1900 by the Cheetham family, and sold to 

the Pennefathers in the 1970s. Have no record of motor 

usage before 1930, and has only seen 4X4 usage in the last 

10 years. 

No records of motor usage before 1930, and disputes that 

there has been long-standing vehicular usage. 

Sure that vehicles have been driving over the road for 

centuries. 

No evidence. Members of the Rough Stuff Fellowship have 

used it on bicycles for many years. 

Has no evidence of vehicular usage. 

Locals have provided the following information: 

• Little by way of evidence that pre-1930 use was by anything 

other than motorbikes. 

• Very few motor vehicles seen in Coniston before the 1939- 

1945 war. 

• Quarries on Walna side of the Old Man (western side) were 

using horses and carts into the 1940s & 1950s. 

• Bursting Stone Quarry used lorries in the late 1950s. 

• In 1913, there was a six-day event organised by the 

Westmorland Motor Club that used the Walna Scar Road 

(see below). 

• Army despatch riders were trained on the same routes. 

No relevant comments. 

Motor cycles did not normally have drive chains and 

gearboxes until 1920, and significant volumes of machines at 

relatively affordable prices were only then available. But 

enthusiasts had them long before this. Trials were popular 

and were held to test the ability to cover distance and climb 

steep hills, and so on, coupled with reliability. The Barrow & 

District, and Westmorland Motor Cycle Clubs were foremost 

in this region. Passes such as Walna Scar were used as the 

test, or latterly, to get to off-road sections. The photographs 

provided with the application come from a series that show 

events on other Lake District passes, some of which are now 

tarmac covered, some not 

14.4 The same consultees were again contacted at the beginning of the present process. 

None had any additional information or comments to make.



15 Order Decision 2010 (see separate bundle) 

15.1 The process recently undertaken resulted in: 

• an order being made by us; 

• objections to the order; 

• an interim decision; 

• objections to that decision; 

• confirmation of a Byway Open to All Traffic order; 

• order being quashed on appeal. 

15.2 The grounds for quashing the order centred on procedural errors in that certain 

papers were not circulated for comment as they should have been. The wording of 

the quashing order was “the Defendant erred in law, breaching the Claimant’s 

legitimate expectation and acting unfairly”. 

15.3 There were a total of nine grounds in the appeal to the High Court, but this one was 

so fundamental that the order was quashed without the other grounds being 

considered. This is not to say that they were rejected. 

15.4 The legislation governing objections to interim decisions is such that the Inspector 

may be limited in what he can take into account when considering these objections. 

15.5 We are now in the position where we are effectively starting the whole procedure 

again, and can look at the evidence as a whole. So, although the Inspector 

concluded that the route was a Byway Open to All Traffic, this was challenged – and 

the challenge was not considered by the High Court. Consequently, we have no 

higher guidance on his findings. As a result, although the Inspector’s decision letters 

are useful guidance, we are not bound by his findings. Therefore, I have included 

them for completeness, but have made no reference to them (see separately bound bundle). 

15.6 I have also included the various statements made by the parties involved in the 

previous process. These set out their arguments over the individual pieces of 

evidence, and like the decision letters, should really only be used as reference 

documents. 

15.7 It should be noted that the lettering ABCD in these letters refer to the first order plan, 

which is included for reference.



16 Summary and analysis 

16.1 The best way of summarising this case is to re-visit the flow diagram within Annex 1. 

The questions within this are replicated as headings below, and I have then 

attempted to answer each question by drawing on the evidence outlined above. 

The final page of this report shows the route I have followed through the flow 

diagram to reach the recommendation. However, it is important that Members of 

the Rights of Way Committee follow their own route when assessing the evidence. 

16.2 It is also important to note that the matter should be decided on “the balance of 

probabilities”. 

16.4 Question 1 - Currently recorded status 

16.4.1 The section of Walna Scar Road claimed is shown on the definitive map and 

statement as a public bridleway and it is also on the List of Streets. 

16.5 Question 2 - Are vehicular rights reasonably alleged to have existed at the 

cut-off date of 2 May 2006. 

16.5.1 The evidence to refer to is: 

• the direct user evidence outlined in section 4; 

• the photographic and other evidence of use outlined in section 5; 

• the lack of any evidence to show that such usage has not been ‘as of right’; 

• the evidence of usage from our own records (paragraph 4.3); 

• local authority maintenance (section 11); 

• descriptions of the route (various sections); 

• the conclusions of the Inspector at the public inquiry in 1982, when the direct 

user evidence was tested and held to show that vehicular rights existed then 

(section 13). 

16.5.2 The evidence provided by users, and our own knowledge of the usage, shows that 

motor vehicles (mainly motorcycles) have used the route for at least 70 years. 

There is no evidence of any steps taken by landowners to prevent such usage. 

16.5.3 However, it is important to consider levels of usage other than vehicular in order to 

determine the true status of the road as at May 2006. This is because a byway 

open to all traffic is a vehicular road that is mainly used as if it were a bridleway or 

footpath. That is, to fall into the byway category, the vehicular use of a route 

should not outweigh the pedestrian, equestrian or cycling use (if it does then it is 

an all purpose ‘road’ and falls outside of the definitive map process). 

16.5.4 We have not received much evidence of usage from walkers, equestrians or 

cyclists. Mainly because their usage of the road is not in question. But, it is 

notable from the evidence forms provided by motor cyclists that not only have a 

significant number of the 35 used the route on foot as well, but almost every single 

vehicular user has seen groups of walkers and cyclists (although few, if any, 

horses) when passing. Thereby showing that foot and pedal cycle use is more 

common than motor vehicle use. 

16.5.5 This bears out our own observations on the road over many years. Although not 

all walkers complete the whole of the Walna Scar Road at once, it is an important 

arterial route allowing access to the fells, especially The Old Man of Coniston, 

Goats Water, White Pike and the Seathwaite Fells.



16.5.6 I therefore consider that vehicular usage is more than sufficient to show that in 

May 2006 a right for all vehicles existed, and that this usage was not dominant. 

16.5.7 In the case of section H-K, which is owned by the Crown, I consider that usage 

has been so open and obvious over the last 70 years, that it also satisfies the 

common law tests of dedication. 

16.6 Question 3 - Do exceptions 67(2)(a), 67(2)(c), or 67(2)(d) apply? 

16.6.1 We have not been presented with any evidence to show this. Motor cyclists 

themselves show in their evidence that they are not the main users of the route, 

thereby it would not meet exception a. The evidence shows that the Walna Scar 

Road is an historic (if not prehistoric) route, therefore not meeting exceptions c or d. 

16.7 Questions 4&5 - Exception 67(2)(e) - before mechanically propelled vehicular 

use of the way, did the way have a right for vehicles? 

16.7.1 This can be broken down into two parts: 

(a) was there vehicular usage of the route, either in part or in full? 

(b) if so, was this use public or private? 

16.7.2 The answer to (a) is fairly straightforward. 

16.7.3 The descriptions in the guide books are of great assistance. Some allowance must 

be made for the crude descriptions employed by early guide-book writers, and 

indeed for the level of fear that the more mountainous areas inspired in many early 

travellers. But the picture is fairly consistent in that all through the nineteenth 

century the route was not considered to be suitable for carriages. 

16.7.4 However, it must be borne in mind that these guide books were aimed at tourists 

and ‘carriages’. Whereas, the description in later books of a ‘cart-road’, and the 

1842 reference to ‘sometimes used by carts’ would probably be a more accurate 

description of the nature of the route. That is: unsuitable for tourist carriages – but 

usable by small carts. 

16.7.5 The photographs of Harry Whinnerah in 1917 on the very top of the pass show 

that there was a decent track of sorts by 1917. The question is whether this track 

was made by horse and carts, or by motorbikes (it is unlikely that motor cars were 

using the route by then, and we have no evidence to show that they did). The 

track seems to be quite wide, and formed by double, fixed width, wheel tracks 

rather than single file wheels – which would imply that it had been created through 

use by non-mechanically propelled vehicles (carts). 

16.7.6 There is ample evidence from the quarrying records and history that quarry traffic 

was carts (and sledges where steep) rather than packhorse. Records exist to show 

that carting took place in 1750 from the Old Man Quarries, in 1820 from Goatsfoot, 

and in 1835 from Goldscope. Slate appears to have been carted westwards from 

point G, and eastwards from point L. It was also carted between I & K. Anecdotal 

evidence indicates that some slate was carried I westwards, and indeed the Harry 

Whinnerah photograph shows that there was a good enough track at H. 

16.7.7 It is therefore likely that the whole of the Walna Scar Road was usable and used, to 

varying degrees, by carts long before 1913.



16.7.8 Whether this use was public or private (b) is more problematical 

16.7.9 This is probably the most crucial question which will determine the matter. I have 

therefore set out individual aspects in the table below, with notes describing the 

arguments for and against. WSR stands for Walna Scar Road. 

Implying public vehicular use 

Not implying public vehicular use 

Guide books 

• Shown as a ‘mountain road sometimes used 

by carts’ in 1842 – this does not automatically 

mean that such use was public, but the book 

was aimed at tourists, so it could reasonably be 

inferred that either such public use was taking 

place, or could take place. 

• Not one guide book recommends the route as 

a carriage route for tourists, and they 

consistently describe the route as being for 

pedestrians or horses – however, this does not 

mean that usage was not made, and does not 

mean that the public could not use it in carts 

rather than carriages. Incidentally, apart form 

a general acceptance that it was - there is no 

actual evidence, and few mentions, that this 

route was a ‘pack-horse’ route. 

Commercial Road Maps 

• Consistently shown as an important link in the 

region’s road networks and as more than a 

footpath. There are a significant number of 

maps that show the route to be of a status 

somewhere between a footpath/bridleway and 

a full blown road. Which roughly equates to a 

‘green lane’ or byway. 

• Some of the more respected mapmakers such 

as Cary and Greenwood produced maps that 

appear to have concentrated on vehicular 

roads (most of the routes shown on them are 

accepted vehicular routes today)…... 

• Greenwood, Yates, and Hennet show the route 

as a ‘Cross Road’ – which could indicate 

carriageway status….... 

• ..…but not all their roads are today vehicular – 

just ‘most’. 

• …..however, it could also mean bridle status. 

Ordnance Survey Maps 

• Guide Posts are shown on the 1851 map, and 

highway authorities were obliged at the time to 

erect signs at ‘road’ junctions (see also 

Coniston Parish Council Minutes, 1903)…... 

• Many other tracks were shown as ‘Foot Path’ 

(and by 1913 as FP or BR) and the general 

depiction of the road was as an important 

physical feature – more than just for horses…... 

• ..…however, ‘road’ does not automatically 

mean ‘vehicular’, especially in 1851, and a 

major public bridle route, with confusing side 

private quarry tracks, may well have qualified 

as being important enough for guide posts. 

• ..…however, this does not mean that the 

physical track was for public vehicular use, or 

that it was not just created by quarry traffic and 

quarry operators. 

• The 1920 map showed it as a’Minor Unfenced 

Road’.



Estate Records 

• Shown as “Road from Seathwaite to Coniston” 

on Crown Estate map of 1805, which strongly 

indicates acceptance as a public highway…... 

• …..however, ’road’ does not automatically 

mean ‘vehicular’. 

Railway Plan & Book of Reference, 1856 

• Shown as “Public Highway” “from Seathwaite” 

in this important legal document. This is 

almost conclusive proof that the route was a 

public highway throughout its length in 1856, 

and other entries imply that it was a vehicular 

highway…... 

• …...however, the actual status may have 

applied merely to one end of the route – it may 

have changed at, say, the fell gate, where the 

character of the route changed as described in 

the guide books of the time, and continued to 

Seathwaite as a pony/bridle highway. 

Finance Act 1910 

• East of the railway (R-Q) almost certainly a 

public carriageway. West of the railway 

towards the fell gate (Q-O), inferred 

carriageway status. 

• The majority of the route A-N not mentioned…. 

• …but if this was taken to mean ‘not a 

carriageway’ it should also be taken to mean 

‘not even a bridleway’. 

Surveyors of the Highways Records 1777-1803 & Quarter Sessions Records 

• A large percentage of annual budgets in some 

years on the road – which would imply that it 

was of prime importance, suggestive of a 

vehicular route. 

• WSR described (in Coniston) as “From 

Seathwaite” in a similar fashion to the roads it 

joins – which were undoubted vehicular routes. 

• Also described as a road from Seathwaite to 

Hawkshead – that is: of regional significance. 

• New Bridge existed in 1745, and appears to 

have been maintained at public expense since. 

It is now wider than necessary for packhorses, 

implying that it was widened for cart use..…. 

• …..but there is no specific evidence to show 

exactly when this was done, and whether it 

was entirely at the public’s expense…. 

• ..…however, we can make certain inferences. 

In 1745/1786/1818 it was called ‘New Bridge’, 

and by the early 1800s it was being repaired 

and maintained by the Surveyors of the 

Highways for Torver. 

In 1835 it was usable by cart traffic from 

GoldScope quarries. 

By 1851 it was called ‘Torver Bridge’ – which 

could be a reference to the work done by 

Torver parish (in 1903 when maintenance had 

passed to the District Council it was called 

‘Cove Bridge’).



The inference is that it was widened at public 

expense sometime in the early 19 th century, 

the further inference being that if it was 

widened at public expense, the traffic for 

which it was widened was using public rather 

than private rights. 

• …..but.. this is inference rather than hard facts. 

High Furness District Highway Board, 1896 & Coniston Parish Council 

• It is likely that the terms ‘highway’ and ‘road’ • .....but the request for and erection of guide 

when used by local councils in the early 20 th posts does not automatically infer that the way 

century had lost their generic use, and referred was vehicular, although it would mean that it 

to ‘roads’ as we think of them today – that is; was one of the more important routes in the 

vehicular roads, rather than ‘bridle roads’, or area. 

‘foot roads’. There is still the same general 

distinction in terminology when referring to 

‘highways/roads’ and ‘rights of way’. If so, then 

it would imply that the local council considered 

WSR to be a public vehicular route before 

motors used it...... 

• The discussion over ‘extraordinary traffic’ 

implies that wheeled traffic on this public 

highway was accepted by all, but that sledges 

were ‘extraordinary’ – which would mean that 

there was a presumption that the way was a 

public vehicular highway…... 

• ..…but, the length under discussion was only 

the western end down to Seathwaite from 

Walna Scar Quarries, G-A. It does not mean 

that the entire length was publicly vehicular…. 

• …but later (1901), Coniston Parish Council 

also complained about sledge use on the 

‘public highway’ – at the other end of WSR, 

west of the claimed route to the station, N-Q. 

And as the cart use appears to have taken 

place over almost the entire length of WSR, 

then logically the acceptance of vehicular use 

as if it were public also applied to the whole 

length. 

• The request by Mr Bell implies that the quarry 

operators had no private rights or maintenance 

responsibility (which they would do if their right 

to use WSR was private), and that they 

considered WSR to be maintained by the 

public for their vehicles. 

• [If the public vehicular length was only A-G (for 

instance), then sections would have protected 

rights and sections would not.] 

• Planning Inspectorate consistency guidelines 

(paragraph 6.15) says that “highways upon 

which significant or recurring expenditure were 

lavished were probably public vehicular 

highways” – and this seems to be the case with 

WSR before the handover to Lancashire 

County Council in 1929…... 

..…however, the terrain, geology and 

occasionally extreme weather conditions would 

have necessitated (and still necessitate) large 

scale maintenance for non vehicular traffic.



International 6-Days Trial, 1913 & subsequent motor cycle use 

• The history of these events shows that they • The photograph relates to the section below 

were run on what were considered to be the Coniston fell gate, and it is not known whether 

normal ‘roads’ of the day. It is extremely the trial actually went over the main part of 

unlikely that the trial would have used ‘private’ WSR. 

vehicular roads, as they would not have been 

the ‘normal roads’. ‘Road’ by the early 20 th 

century almost certainly would have meant 

vehicular. 

Quarry traffic 

• There has been substantial quarry traffic over 

most, if not all, of WSR for over 200 years. 

• Much of this traffic has been with carts, with 

references to carting from 1770 and 1835. 

• The pattern of quarry transport shows that 

some of the quarry operators must have 

crossed land not owned by those they had 

leases with (mainly Goldscope, Goatsfoot, and 

Walna Scar Quarries), in some cases passing 

over four other ownerships. 

• If WSR was private, then, in these cases, each 

operator would have had to gain permission 

from each landowner, and these permissions 

would have had to be renewed / amended with 

changing leases and ownerships. There is no 

evidence that there were ever any agreements 

for permission to use WSR across other 

ownerships, and Mr Cameron has not seen 

records of such agreements during his 

extensive research. Nor were there any 

references to easements for quarry traffic in the 

Finance Act documents. 

• To conclude that usage of WSR outside of the 

land connected to the specific lease would 

mean having to assume that the usage was 

with some form of implied permission. Given 

the length of quarrying, the multiplicity of 

leases and ownerships, and the need for 

permission on private roads within the leased 

plots, this is a large assumption to make. 

• The 1880 lease gives explicit permission to the 

quarry operators to use the usual and 

accustomed roads. However, there is no map 

so whether these included WSR is not certain 

(such a lease would have been needed 

whether or not WSR was public – to enable the 

traffic to reach WSR). This lease covered the 

Old Man Quarries, and to get from these 

quarries to the station, there was no need to 

travel over the Order Route itself, so its 

significance is weakened…...



• …..but carts did need to use the route down to 

the station (N-Q), and the lease does not 

appear to give rights for this. Although outside 

of the order route, it was part of the through 

road and the lack of an agreement to use it 

could indicate that the whole of WSR was used 

without permission. 

• The 1880 dispute shows that the quarry 

operators at the time considered that at least 

the eastern side of WSR (H-A) was a public 

highway for carts…... 

• ..…but the Crown never actually responded to 

the direct question, and referred to the Torver – 

WSR length in an earlier letter as an 

‘occupation road’…. 

• …..but there was no question raised over the 

actual ability to use the road with carts, without 

permission – which is what leads to public 

rights becoming established. 

• The 1880 dispute also infers that there was a 

clear understanding that a formal process was 

required to gain permissions and agreements 

to create and use tracks across other 

landholdings (that were not already accepted 

as public)…no such agreement or dispute has 

been found relating to WSR, despite quarry 

operators using it over other’s land – 

presumably because it was accepted as a right 

to do so. Logically, the requirement for 

express permission shows that usage could 

not have been through implied permission. 

• Indeed, after a dispute, Cove Quarries reverted 

to using WSR rather than the route to Torver – 

which would imply that usage over other land 

needed permissions, but over WSR it didn’t. 

• There is no evidence that WSR has been 

privately maintained [for vehicles] at any time. 

16.7.10 It is important to recognise that usage and condition may have been different. 

However, in general, the evidence tends to show that the entire route A-R (or A-Q 

after the railway was built) was the same legal status until the twentieth century. At 

the eastern (Coniston) end the enclosed section N-P only served the fell, not houses 

or settlements. Therefore it would have had no different legal status than the rest of 

the track over the fell (and the condition wasn’t great - as shown in the 1913 

photograph of Station Hill). At the western (Seathwaite) end, the tarmac seems to 

have been applied as part of improvement works for Seathwaite Tarn, rather than 

because it was a public road – only one house was served, and the tarmac today 

carries on just past the point at which the public road starts up the fell (where the 

modern ‘Walna Scar Road’ starts – point D). However, an argument could be made 

that higher public rights became established over sections A-G and N-R because of 

their nature, and other relevant factors discussed below. 

16.7.11 The whole road was recorded [probably from 1929] as a public road, and the first 

time it was subdivided in recorded form into road/bridleway/road was in 1976 – 

when the unsealed section was subject to the limited special review.



16.7.12 The main problem with determining the exact status at the time is that there is no 

one conclusive piece of evidence either way. There is insufficient documentary 

evidence to say categorically whether vehicular rights existed or not. In fact, for 

almost every area of evidence a valid argument could be made to show the 

existence, or alternatively, the non-existence of public vehicular rights before 1913. 

16.7.13 The other problem is that much of the necessary judgement has to be made on 

things that ‘aren’t there’ in the evidence, or are presumptions / assumptions made 

on inferences from the part inclusion or absence of something in the evidence. And 

to reach a conclusion either way it is necessary to draw inferences and extrapolate 

from extremely sparse pieces of evidence. So, what is important is to try and work 

out what the ‘theme’ of the evidence is. 

16.7.14 There is no specific evidence showing that the public crossed Walna Scar Road in 

carts, unlike the photographs and articles relating to motorbike usage. However, it 

should be borne in mind that carts were the commonplace means of travel, and 

therefore it would not have been something noteworthy to attract photographers and 

the press. So, it is not surprising that no records exist. They don’t exist for most 

roads in the country. 

16.7.15 The test revolves around the ‘balance of probabilities’. The question is really – is it 

probable that: 

• an important local and strategic route maintained by the public; 

• with a bridge on the route probably widened for carts at public expense; 

• with no records of private maintenance responsibilities for vehicles; 

• considered by at least one quarry operator to be (in part) public for carts; 

• signed as if it were a ‘road’; and 

• generally considered to be a public ‘road’; 

was not already used by the public to some degree as a vehicular road? 

16.7.16 This ‘reputation’ aspect is important. The Walna Scar Road does appear to have 

been considered to have been a route of high importance locally. When motorbikes 

began to use it in 1913/1917 it is likely that they, the public, the relevant highway 

authorities, and the landowners considered the route to be open for use by motor 

vehicles – and this, coupled with the (albeit limited) evidence from the highway, 

railway and map records, would mean that it had already effectively been dedicated 

as a vehicular road. 

16.7.17 One of the oddities is that the route has been referred to as a ‘pack-horse’ road by 

various parties involved in the process so far. However, there is no specific 

evidence of use as a trade route, just inference and reputation. The main assumed 

pack-horse use was from the quarries – and if this is dismissed along with cart 

traffic – then there is little but reputation to show that the route was even an historic 

bridleway. That is – either the quarry horse traffic AND cart traffic is classed as 

private, or both are classed as public. It is not reasonable to class one as qualifying 

for bridleway status, but classing the other as not qualifying for vehicular status. 

16.7.18 This leads into the question of whether the undoubted quarry traffic using the route 

did so with or without permission. There is no evidence that traffic crossing other 

landholdings had any such permission. And in my view, this lack of permission, tips 

the balance towards the route being considered, and used, at least in part, as if it 

were a public route for vehicles.



16.7.19 There is also the question of sections potentially having a differing usage and 

therefore status. For example, the argument that the quarry traffic was considered 

to be using (or creating) public rights is probably stronger for section G-D, given the 

complete lack of evidence regarding any permissions, and the discussions over 

extraordinary traffic (the inference being that it was not the wheels that were ‘nonpublic’). 

It is therefore open to conclude that different sections had different rights 

pre motorbike use, and if so, then different orders should be made for different 

sections. 

16.7.20 However, I consider that it was more probable that the whole route had the 

reputation of a vehicular route at the time motorbikes began to use it. So, on the 

balance of probabilities, it would be a fair conclusion that public vehicular rights 

existed by 1913. However, it must be stressed that the balance is extremely fine, 

and the opposite could also be validly argued. 

16.8 Questions 4&6 - Exception 67(2)(e) - were mechanically propelled vehicular 

(MPV) rights created by 1 December 1930? 

16.8.1 I have recommended in section 16.5 that mechanically propelled vehicular rights 

existed at the 2006 cut-off date. Because of the fine balance of the arguments in 

the previous section, it is still necessary to assess exception 67(2)(e). 

Consequently, it is necessary to determine whether the MPV rights were created 

before 1 December 1930. 

16.8.2 The vast majority of the user evidence relates to the period after 1930, and there is 

little in the historic documentary evidence to help here. It is therefore necessary to 

look carefully at all the evidence that relates to motor usage before 1930, and 

assessing its worth. It is also worth referring back to section 3.5 in Annex 1, which 

discusses dedication by common law, as this is the relevant test. 

16.8.3 Six-Days Trial, 1913 

This is the first instance cited of motor usage on Walna Scar Road – but it has not 

been fully verified. 

• There is no clear evidence that the trial passed right over Walna Scar Pass, 

apart from a comment made by the parish council. 

• The applicants (CTRF) consider that it was likely that part, but not all, of the 

route was used – mainly because bikes of that era did not have gearboxes, and 

would have been unlikely to achieve a crossing. 

• In addition to this, sidecars took part in the trial, and the first known crossing of 

the pass in a sidecar was not until 1917 (see later). 

• The 1913 photograph is from between P & O, well below the pass itself – how 

far up they went, we do not know. 

16.8.4 Usage by Bernard Crabtree from 1924 

• Bernard Crabtree merely gives a long list of roads that he used between 1924 

and 1980, when he was 16-22 years old – this includes Walna [Walma] Scar. 

The list he provides mentions over 80 roads, and ‘many’ tracks in areas. 

There is no indication of when he first used Walna Scar, or how often he used 

it. Bearing in mind the number of routes mentioned, and the relatively short 

period of time (6 years between 1924 and 1930) I consider it unlikely that he 

could have made much use of the Walna Scar Road.



• In his book he makes specific reference to crossing Walna Scar in 15 minutes 

during the Sporty Boys Trial of 1930, and the only photograph of him 

seemingly relates to this event. The speed would imply that he was racing. 

• Given the thinness of his listed evidence, I think that the only proof of his 

usage is this 1930 photograph and his account of the Sporty Boys Trial. 

• This is also the only undeniable account of a full crossing of the whole road. 

• Harry Holmes also refers to his father using Walna Scar in the 1920s, but how 

often, where, and over how much of the route is unknown. 

16.8.5 Photographs and cutting re Harry Whinnerah – 1917 

• The photographs of the Whinnerah party ascending Walna Scar in 1917 are 

direct evidence that at least part of the route was indeed used by motor cycles 

before 1930. 

• However, it is pertinent to note that all the photos are on the western half of 

the route – and in 1849 (see ‘The Old Man’ to this day (see mountain bike 

guides) this is the easier side to use. Nothing in the photographs or 

description show that the whole route was used, and the cutting makes no 

reference to ‘crossing’ Walna Scar, merely ‘ascending’. So it could well be 

that they went up and back on the western half (A-J), and not right across. 

• The fact that the sidecar seems to be the novelty aspect of the trip could 

imply that by 1917, normal motor cycle use was taking place. Conversely, 

the description of the state of the route could be taken to show that it was 

still a rarity. 

16.8.6 Photographs of Tyson Wilson – 1920s and of unknown rider in the 1920s 

It is important to note that these photographs are not on Walna Scar Road itself, 

but it is likely that a 700 metre section of the eastern side of the claimed route (M- 

N) was used to reach the site of the photographs. 

16.8.7 The Westmorland Motor (Cycle) Club – the First 75 Years 

This mentions social hill climbing events on Walna Scar during the first world war. 

But it does not say how often, how much of the route was used, from which 

direction, or whether it was actually Walna Scar Road or somewhere else such 

as Bursting Stone Quarry Road, or elsewhere on the hill. It also says that there 

was a ban on speed events on the public highway from 1925, which could imply 

that there were no organised events on Walna Scar between 1925 and 1930. 

16.8.8 Further evidence of use in the 1930s 

The greater amount of direct user evidence and photographs during the 1930s 

does imply that this usage was most likely a continuation and expansion of pre- 

1930 usage, as the sport of motor cycling developed and grew over time rather 

than happening all at once. The photograph of the car is from 1933, and the book 

says that the ascent from the eastern side had been ‘long regarded as 

impossible’. Thus implying that there had been no previous use by motor cars. 

So, any motor rights can have been created only by motorbikes.



16.8.9 Nuisance 

An argument has been put forward that motorbike usage in this period constituted 

a public nuisance, and if that was the case, then a right could not be established. 

The Green Lanes Protection Group have summarised their appreciation of the 

law regarding public nuisance (p389-394). 

It is impossible to tell at this time what the exact conditions were in the Coniston 

& Dunnerdale area at the time – and whether the use of the road by motorbikes 

actually caused a nuisance. It is unlikely that the public use of the route was 

large, almost certainly less than today – so it is difficult to see how much of a 

nuisance motorbikes would have been. In addition to this, although the use could 

have been noisy and ‘notorious’, the attitudes may not have been the same in 

that the limited use may have aroused interest rather than complaints – in much 

the same way as the first cars appearing in villages. Therefore, it is difficult to 

conclude that such usage constituted a public nuisance. 

Summary 

16.8.10 All the photos are of interest, but, apart from the Harry Whinnerah trip, they 

appear to be of specific motorcycle events rather than general public use. It is 

difficult to know at this removed time whether the events took place on Walna 

because it was considered to be a public vehicular road, or whether they were 

with the permission of the then landowner as ‘one-off’ type events – there is no 

evidence either way. It is also difficult at this time to tell whether these events 

were notable because of their rarity. If they were, this could mean that usage 

was not substantial enough to pass the common law test. 

16.8.11 There is also no way of knowing where the motor cycles were going. It is 

possible that some of them would have crossed the pass in its entirety, but some 

may just have gone to the trial site and back. Only the Sporty Boys Trial of 1930 

gives direct evidence of a full crossing. It is notable that Harry Holmes only talks 

about ‘going up’ the Coniston side, and if this also applied to his father ‘going up’ 

in the 1920’s it could mean that he did not fully cross the pass. 

16.8.12 The Westmorland Motor Club book says that events were banned on public 

highways from 1925 – which would infer that no organised events took place on 

Walna Scar after 1925, although the Sporty Boys Trial was in 1930. 

16.8.13 The evidence is scarce by modern standards, but it is no more than can be 

expected when looking at actual usage of a route some 70-80 years ago. If it is 

improbable to consider that there was not some public cart use of such an 

important track (above), then it is equally improbable that the occasions listed 

comprised the total motor use, especially given the obvious appeal of such a high 

and challenging Lake District pass to members of a new and growing sport. 

16.8.14 For a way to be successfully claimed under common law, the evidence must infer 

that the landowner’s conduct was such that he/she intended to dedicate the right 

of way. Effectively, this means that the usage was great enough that the 

landowner should have known it was taking place, yet did nothing to stop that 

usage. There is no specified period that needs to be looked at, but the more 

intensive and blatant the use and the more compelling the evidence of knowledge 

and acquiescence of the landowner, the shorter the period that is necessary to 

infer a dedication of a right of way.



16.8.15 Given of the novelty of motor cycles at the time, and the nature of the area, it is 

unlikely that the known usage would have gone unnoticed. In fact, the 

photographs of the organised events show that crowds were attracted to the 

trials. It is probable that the landowners would have known about organised 

events such as these on their land. 

16.8.16 We do not know whether the events just went where they did because the 

organisers considered them to be public roads, or indeed whether they just used 

any suitable track whether public or private (before the Road Traffic Act of 1930, 

it was not specifically illegal to use vehicles away from public highways). 

16.8.17 There is no evidence of any steps being taken by the landowners to prevent 

usage, for instance there is no evidence of permission being granted by the 

landowners, or gates being locked, etc. 

16.8.18 The evidence seems to show that motor vehicles started using Walna Scar Road 

as soon as they were practicably able to do so, and continued using it from then 

onwards. 

16.8.19 It must also be borne in mind that usage after 1930 continued and grew, despite 

the Road Traffic Act making ‘off-road’ driving illegal. The landowners clearly had 

an ability from 1930 to try and prosecute motor users of Walna Scar if they had 

so wished, but there is no evidence to show that they took any such steps. One 

reason for this lack of action could well be that they assumed that it was already 

a vehicular road by that time. 

16.8.20 On balance, although the direct evidence is minimal, I consider that it is sufficient 

for the purposes. The usage appears to have been without force, secrecy or 

permission. 

16.8.21 It is more likely than not that the landowners knew that at least some of Walna 

Scar Road was being used by motor cycles before 1930. The continued, and 

increased, use over the next 75 years would imply that no landowner took any 

steps to stop such usage at its outset. The logical conclusion is that they were 

quite happy for it to be used by the public in or on motor vehicles. Thereby, 

effectively dedicating Walna Scar Road as a route for mechanically propelled 

(and other) vehicles under common law, creating this right by 1930. 

16.8.22 The only caveats to this are: 

• if usage was simultaneously taking place by the public in carts, the 

situation might be different. The wording of the legislation seems to infer 

that the vehicular right is only protected if it was created solely by MPVs. 

That is, if the pre 1930 right was created by a mix of MPV and non-MPV 

use, then the exception may not apply – but there is a lack of guidance 

available on this specific aspect. Although it would be unlikely that the 

only vehicular usage in the qualifying period was motorised, there is again 

a lack of actual evidence of public cart use. 

• If MPV use does not show that the whole route was used to a sufficient 

degree, then only those sections with sufficient use will have been 

created as an MPV route by 1930.



17 Recommendation 

17.1 This is an extremely finely balanced case, with the final question being decided 

more on the likelihood and probability of something, more than actual hard 

evidence. Many of the arguments either way are based on making assumptions 

and suppositions and adding to earlier similar arguments. It is fair to say that for 

each category of evidence arguments can be made for both points of view. 

17.2 The test that must be applied is what the status is ‘on the balance of 

probabilities’. That is: 

• is it more probable than not that the public were using the route with 

vehicles before motorbikes first used the route? 

• was the quarry traffic more likely to have been public than private? 

• is it more probable than not that the public use in motor vehicles was 

sufficient, and was known about and accepted by the landowners? 

17.3 In the briefest way possible, the key aspect within the whole of the previous 40 

pages can probably be best summed up as follows: 

• There is ample evidence of specialised cart use (quarry traffic) for over 150 

years before 1913, and no evidence of any permissions being granted for this 

use to take place over other owners’ land; 

• There is some evidence of specialised motor use (motorbike events and trials) 

between 1913 and 1930, and no evidence of any permissions being granted 

for this use. 

17.4 The test is whether such use has been as of right, without force or secrecy, and 

without permission - and must be applied logically and consistently. I consider that 

it would be reasonable to conclude that either all this usage has established public 

rights, or that all has been with permission. It would be difficult to conclude that 

one set of use has been with permission, but that the other has not. If applied 

consistently, it would mean that the mechanically propelled vehicular rights have 

been extinguished. 

17.5 With regard to the reputation of the route from the available documentation, I 

consider that: 

• although there is no specific evidence, it is improbable that the public were 

not using the route with (small) vehicles; 

• this, together with the 

o evidence inferring that it is more likely than not that the quarry traffic 

was using the route with permission on the same owners 

landholdings, but without express permission from other 

landowners over their holdings; 

o documentary highway evidence relating to bridge and road 

maintenance and the lack of any private maintenance records; 

o the railway plans; 

o the information about why early riders began to use it; 

o the general terminology used about the road at the start of the 20 th 

century, and 

o other related documentation; 

is probably just enough to tip the balance towards the whole route having the 

reputation of, and therefore being, a public vehicular route before 1913.



17.6 Consequently, my recommendation is therefore that we make a modification order 

to amend the route known as Walna Scar Road from a public bridleway to a 

Restricted Byway. 

17.7 If members consider that the balance is the other way and public vehicular rights 

did not exist by 1913, then I consider that the motorbike usage and its continuation 

was sufficient to show that a right for mechanically propelled vehicles was created 

by 1930. And that if this is the case, then we should make a modification order 

amending the route to a Byway Open to All Traffic. 

17.8 If members consider that public vehicular rights existed by 1913 on only part(s) of 

the route AND/OR that mechanically propelled vehicular rights were only created 

by 1930 on part(s) of the route then the modification order should be made 

appropriately, depending on which aspects apply to which sections. 

17.9 I would stress again that the final decision is for Members of the Rights of Way 

Committee.



BYWAY CLAIM FLOW CHART 

Q1 

CURRENTLY 

RECORDED 

STATUS? 

= 

Not on Definitive Map 

and Statement 


Bridleway 


Bridleway 


Not on Definitive Map & 

Statement 


No rights extinguished. 

Flow chart does not apply. 

Test whether BOAT exists, 

and make order accordingly. 

Proceed through 

flow chart 

Q2 

Using statutory dedication 

and date of challenge, or 

common law if necessary. 

Ignore 1968 

reclassification and 

‘illegality’ of usage 

Are Vehicular Rights reasonably alleged to exist as at cut-off date (2 May 2005)? 

YES 

NO 

Q3 

Guidance states that it is 

up to the applicant to 

make this case. If they 

have not, then we do not 

need to consider the 

issues 

Does exception 67(2)(a) apply? – main use in five 

years to 2/5/05 

OR 

Do exceptions 67(2)(c) or 67(2)(d) apply? – 

expressly constructed or created 

for mechanically propelled vehicles 

Are Restricted Byway rights 

reasonably alleged to exist? 

YES 

YES 

NO 

Make a Byway Open to All 

Traffic modification order 

NO 

Make a Restricted Byway 


No modification order, 

or make a modification 

order for bridleway or 

footpath as appropriate 

Q4 

Does exception 67(2)(e) apply? – created by 

virtue of use by mechanically propelled 

vehicles (mpv) before December 1930 

Q5 

If the mpv right was 

brought into question 

before 1930 – use 

statutory dedication 

provisions. 

Before mpv use of the way, did the way have a 

right for vehicles? 

YES 

MPV rights extinguished – 

make a Restricted Byway 


If it was not – use common 

law provisions 

NO 

NO 

Q6 

Were MPV rights created before 

December 1930? 

YES 

MPV rights not extinguished - 

make a Byway Open to All 

Traffic modification order

Walna Scar Road - Lake District National Park

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