AC-2025-LON-000298 - [2025] EWHC 2435 (Admin)

This is the Claimants’ application under Paragraph 12 of Schedule 15 of the Wildlife and Countryside Act 1981 (the WCA 1981) to challenge the First Defendant’s decision, made on 16 October 2024, to confirm the “Kent County Council (Restricted Byway AB27 at Tenterden) Definitive Map Modification Order 2021” (the Order). That Order recorded the width of Restricted Byway AB27 (RB/AB27), and modified the Definitive Map and Statement for Kent by amending the description of RB/AB27, so as to record its width as depicted in the Order plan and described in the Order schedule.

The Claimants are the owners of Morghew Park House in Tenterden, Kent. And RB/AB27 passes by their property. The First Interested Party, Kent County Council, are the Order Making Authority (OMA). The Defendant is the decision maker responsible for deciding whether Orders made by the OMA, under relevant powers, should be confirmed. Mr Lewis, the Second Interested Party (IP2), is the neighbouring landowner who resides at the Morghew Park Estate in Tenterden, Kent. Mr Lewis participated in the proceedings leading to the making and the confirmation of the Order and the associated applications related to RB/AB27.

On 1 December 1952 RB/AB27 was recorded on the first definitive map as a Road used as a Public Path (RUPP).

In 2006, the Natural England and Rural Communities Act 2006 brought into force certain provisions of the Countryside and Rights of Way Act 2000. By that legislation all RUPPs were reclassified as restricted byways. Restricted byways are highways over which the public is entitled to travel on foot, horseback, and with non-mechanically propelled vehicles (such as pedal cycles and horse drawn vehicles).

Sometime in 2015 the Claimants instructed a Rights of Way consultant, Mr. Robin Carr, to produce a detailed report investigating the history of RB/AB27. In that report (the Carr Report) dated 5 September 2019 Mr. Carr concluded, amongst other things, that RB/AB27 was originally claimed as a Carriage Road Footpath (CRF). Mr. Carr opined that this suggested that it was predominantly used by pedestrians and had not been subject to public rights for mechanically propelled vehicles. The route was claimed as a Carraige Road Footpath, but that term does not occur in the National Parks and Access to the Countryside Act, 1949 and Kent County Council recorded the route as a RUPP. There had been no objections to the inclusion of RB/AB27 on the Definitive Map, so it remained on the records as a RUPP.  As a result of that report the Claimants made a series of applications for modifications to the Definitive Map.

In his report, Mr Carr explained that:

“RB/AB27 was subject to cattle grids with gates across them, and associated pedestrian bypass gates, and had been for some considerable time. As a result, RB/AB27 and RB/AB28 were inaccessible to certain classes of user who would have a legal right to use a restricted byway.”

Mr Carr had concluded that RB/AB27 had not been subject to public rights for mechanically propelled vehicles prior to the 2006 reclassification. Consequently, Mr Carr concluded that the reclassification of the route to Restricted Byway had, in fact, imposed new and additional public rights (for at least non-mechanically propelled vehicles) over RB/AB27 and that such users were unable to use the route because of the cattle grid arrangements which had been in place for at least a number of decades without any complaint. The Claimants were then advised to submit a series of applications to reflect what, Mr Carr opined, was the correct position.

In relation to the history of the Order Route, the Carr Report said this:

“Section D-C of RB/AB27

15.2

This section of RB/AB 27 is bounded on both sides by fencing and trees with a ditch (predominantly silted up) to each side of the made-up road. What are now trees may have originally been planted to form a hedge line. Whilst it is not possible to confirm it by reference to the documentary evidence, I consider it likely that the ditches were formed at the same time as the roadway was set out. The boundary trees etc were probably also planted at this time. (predominantly silted up) to each side of the made-up road. ”

15.3

It is clear from the Ordnance Survey mapping [App 9/pg 38-39] that all of these features existed prior to the period during which I have concluded that public rights were established (1900– 1949). As a result, it cannot be said that these boundary features were set out by reference to the highway. Therefore, in my opinion the “boundary to boundary” principle will not apply to this section (D-C on Plan 1 [APP 1/pg 1]) of RB/AB/27.

…

Section A1-A on RB/AB27

15.14

This section of RB/AB27 appears, by reference to the 1871 – 1908 Ordnance Survey Maps [APP9/pg 38-40] to have been bounded on both side by physical boundary features, however the later maps [APP 9/pg 41-45] suggest that these features were removed. Notwithstanding this, it is currently bounded, in part by a retaining wall to the south and fence to the north. Given the close proximity of the boundary features to the made-up surface of the road it is likely, in my opinion, that the “Boundary to boundary” principle may apply to this section”

On 14 January 2019 the Claimants applied for a DMMO seeking to record the existing gates on RB/AB27 as a limitation on use on the DMS (the historic limitations application) (Footnote: ¹). A further DMMO application was then made on 18 April 2019 to downgrade Restricted Byways AB27 and AB28 to Public Footpath Status, on the basis that no public rights higher than footpath had ever existed (Footnote: ²).

A third application for a DMMO was made on 7 October 2019 and that was to add a width to the definitive statement (Footnote: ³). It is this application, and the decisions which followed in relation to it, which form the subject of this claim. The Claimants point out that the width application and the historic limitations application had materially the same evidence base.

A further application was submitted on 24 February 2020 by the Claimants seeking to modify the DMS by amending the alignment of public footpath AB35 (Footnote: ⁴).

There was a delay by the OMA in issuing a decision on the historic limitations application and subsequently the Defendant’s Inspector directed the First Interested Party (IP1) to determine it.

All four modification applications were determined by IP1 on the 9 July 2021 and followed the recommendations in a delegated report. That report took into account submissions made by IP2, Mr Lewis, who also sent in two statutory declarations from local residents who provided evidence regarding the route and its use since 1930. Relevant conclusions from the report included the following:

“87.

Taking the evidence as a whole, there is nothing to suggest that public rights over the entirety of both routes were not established at the same time. The physical nature of both routes is consistent amongst all the documentary evidence. Whilst a specific date when public rights were dedicated cannot be proven, it would be reasonable to conclude that there were public rights over the application routes before the Finance Act 1910 Map was drawn up and, in all reality, long before then, possibly even before the Tithe Map was drawn up. Therefore, the County Council cannot agree with the applicant’s conclusions that public rights were dedicated in the period 1900-1949, as the applicant has failed to submit any cogent evidence to that effect.

…

97.

… it is considered that a logical methodology and fairly reasonable approach to determine a width, is to scale off the 1st and 3rd Edition OS Maps, giving preference to the 3rd Edition’s accuracy where there are differences, essentially using the “boundary-to-boundary” principle where possible.”

On the 27 July 2021 the Claimants appealed the decision of the OMA to refuse to make orders in relation to the historic limitations application and the downgrade application.

Separately, on the 23 September 2021 the Order dealing with the width application was made.  It was published on 22 October 2021 and recorded the width of RB/AB27.  An Order made on 2 September 2021 amended the alignment of public footpath AB35.

On the 27 October 2021 the Claimants submitted a statutory objection to the making of the Order and as a result the matter was referred to the Defendant. Five key submissions were made, as follows:

This appeal was against the OMA’s decision not to make orders to record the gates and to downgrade the restricted byways.  On 17 June 2022 Planning Inspector Martin Small dismissed the appeal. That decision is relevant to the claim only insofar as Inspector Small made findings of fact as to when public rights were dedicated. The Claimants rely on the following key finding: 

“Although a specific date when public rights were dedicated cannot be proven, I find, on the balance of probability in the absence of cogent evidence to the contrary, that public rights for the majority of the route AB27 did not exist prior to 1910 and for section D-C prior to 1929.”

The Order was submitted to the Planning Inspectorate for confirmation and Inspector Spencer-Peet was appointed to determine the matter. Following a site visit on 12 September 2023, the Inspector issued his IOD on 9 January 2024 setting out his analysis and proposing to confirm the Order with modifications.

At paragraph 28 of the IOD decision letter the Inspector made the following findings:

“28….However, it does not appear that a specific date when public rights over the route were dedicated can be proven and, irrespective of the above described previous finding that public rights for the majority of the route did not exist prior to 1910, it is noted that the full width between the boundaries has been available for people to use since at least the time of the Tithe Map (1843). As such, whenever the public acquired the rights, people have been able to use the width between the boundaries as depicted on maps and including the Third Edition OS Map (1907-1923). Consequently, in the absence of any evidence to displace the presumption, the boundary to boundary principle applies.”

In the IOD the Inspector made further key findings as follows:

“29.

Furthermore, and although a specific date when public rights over the route were dedicated cannot be proven, the physical layout of the Order route has not changed significantly between the time of the Tithe Map (1843) and the Third Edition OS map (1907-1923). The Third Edition OS map would have been published following an accurate survey of the physical features present at the date of the survey and as noted above, this edition was used as the base mapping for the Finance Act (1910) map. As such, it would be reasonable and appropriate to scale up from the Third Edition OS map (1907-1923) given the reliable nature of the details contained thereon.”

He went on to conclude that it had not been necessary to consider whether the principle of a “reasonable width” should be applied in light of his conclusion that it was reasonable to scale off measurements from the Ordnance Survey (OS) maps in order to define the width of the Order route. He had come to his conclusions on scaling off OS maps because the recent ground survey measurements had not been supported by documentary evidence FOD30.

The Claimants then lodged an objection to the IOD on the 19 March 2024. The objections contended that: the Inspector had misinterpreted the law and evidence in defining the boundaries of the highway; reference should be made to the maps as originally published by the OS, rather than computer generated composites; and the width of the route should be defined as a reasonable width of 3 metres.

The Claimants made further representations to the Inspector following the issue of the IOD. Those maintain their position that the Inspector erred in defining the boundaries of the highway using the boundary to boundary presumption.

Sue Rumfitt Associates, acting on behalf of Mr Lewis also submitted comments on the Claimants’ Statement of Case. Ms Rumfitt said that the Claimants contention that there was no evidence that the public had used the land was incorrect. She pointed to the existence of the later unauthorised cattle grids across part of the width of the carriageway being strongly supportive of the width being greater than that argued by the Claimants. Her contention was that at least at the time the grids were installed in around 1971, then the landowner must have considered that the width of the carriageway highway included the verges generally.

Ms Rumfitt also highlighted the evidence within the statutory declarations of Mrs Evelyn Luck and Mr Beach as to the nature and extent of use of the highway since the 1930s. The case put to the Inspector on behalf of Mr Lewis was that the Inspector need not concern himself with the boundary-to-boundary principle because the user evidence was sufficient to establish the lateral extent of the order route.

The FOD was issued on 16 October 2024 and it confirms that it should be read in conjunction with the IOD of 9 January 2024. After setting out various procedural requirements, and the objections of the Claimants, the Inspector went on to define the main issue as follows:

“5.

The main issue is whether there is any evidence or argument which has a bearing on the modifications proposed in paragraph 50 of my IOD and which might indicate that those modifications should be amended or not pursued.”

Dealing with the objectors’ (i.e. the Claimants) contention that his approach with regard to the date of dedication should be consistent with that of Inspector Small, the Inspector maintained his original conclusions:

“ 7. The Objector has put it to me that a consistent approach must be taken with regards to when dedication of the route occurred and that it would be unreasonable to make a finding now, in the matter of the date of dedication, which differs from that previously found within the abovementioned appeal decision. Furthermore, and in that respect, it is maintained that it is impossible for any structure shown to exist before 1929 for the route section A-B-C on the Order plan and before 1910 for the route section C-D-E-F-G-H on the Order plan, to have been set out with reference to the highway and that, consequently, the boundary to boundary principle cannot apply here.

8.

It will be seen from my IOD that I have noted the finding of the Inspector in the abovementioned previous appeal decision and have also noted that the OMA maintained that dedication occurred around the time of the production of the Tithe Map. The finding contained within my IOD was that, irrespective of the previous finding that public rights for a majority of the route did not exist prior to 1910, the full width between the boundaries had been available for people to use since at least the time of the Tithe Map. Consequently, irrespective of the previous finding, people have been able to use the width between the boundaries as depicted on maps including the 25 Inch Third Edition OS Map sheets (1907-1923):”

In relation to the submissions regarding the unreliability of scaling off OS maps, the Inspector said this:

“11.

The Objection further maintains that the maps from which the measurements of width would be taken are only accurate to within +/- 5 metres over a 100 metre length. As such, it has been put to me that it would not be appropriate to scale off from maps in order to determine the width of the route.

12.

Whilst I acknowledge those submissions, in respect of the width of a route it is likely that the level of accuracy would be significantly greater than the margin of +/- 5 metres over a 100 metre length as put to me in the objection. Furthermore, the accuracy of OS maps generally has been confirmed by the Courts, indicating that the OS has, through its long history, had a reputation of excellence in that regard. I therefore do not find that it would be inappropriate to scale off the measurements from the 25 Inch Third Edition OS map (1907 1923).”

In paragraph 15 the Inspector summarised his conclusions as follows:

“…there is no substantive evidence before me that the public did not or could not use the whole width between the boundary features as shown on the 25 Inch Third Edition OS map. On the contrary there is some evidence as described above which suggests that the public did use the full width between the boundaries. In the absence of any other evidence which clearly confirms the width of the route, and given the reliable nature of the details contained within OS maps, it would be appropriate and necessary in the circumstances to define the width of the Order route with reference to the 25 Inch Third Edition OS map sheet references Kent LXXI.16, Kent LXXIX.4 and Kent LXXIX.3, published in 1908.”

The FOD was published on 20 December 2024 in accordance with the statutory provisions within Schedule 15 of the Wildlife and Countryside Act 1981. The Order was confirmed on the basis that the width for RB/AB27 should be recorded on the DMS as “a width as shown on the 25 Inch Third Edition Ordnance Survey map sheet references Kent LXXI.16, Kent LXXIX.4 and Kent LXXIX.3, published in 1908”.

The Claimants issued the claim on 29 January 2025. They seek to challenge the FOD on three grounds, namely: the Inspector misdirected himself as to the correct legal test in relation to application of the boundary-to-boundary principle and he failed to have regard to guidance on determining the correct widths for PROW; that the Inspector departed from the findings of fact of Inspector Small without evidence; and further or alternatively that the Inspector erred by applying the boundary-to-boundary principle.

The Defendant resists the claim in its entirety and contends that the witness evidence of Mr Carr dated 29 January 2025 is inadmissible in part (Footnote: ⁵) given that it is expert opinion and does not comply with the requirements of CPR 35. The Defendant further submits that the issues in the case do not require expert evidence in order to reach a determination and that the further evidence adduced was not before the Inspector.

The Claimants invite the Court to refuse to grant the request sought by the Defendant which would require paragraphs 18-29 of the witness statement of Mr Robin Carr to be removed and the witness statement re-served. They submit that those paragraphs contain admissible evidence of fact which is central to the issues raised in this statutory challenge.

The OMA, (the First Interested Party), has filed its acknowledgement of service form indicating that it wishes to remain neutral. It took no part in the hearing of this matter. The Second Interested Party (IP2), Mr Lewis, supports the Defendant’s position and was represented at the hearing before me.

Section 53(2) of the WCA 1981 imposes a duty on the OMA to keep the definitive map and statement (DMS) under continuous review and “by order, to make such modifications to the map and statement as appear to them to be requisite in consequence of the occurrence, before that date, of any of the events specified in subsection (3).”

Section 53(3)(c)(iii) provides that one of the specified events is the “discovery by the authority of evidence which (when considered with all other relevant evidence available to them) shows… that there is no public right of way over land shown in the map and statement as a highway of any description, or any other particulars contained in the map and statement require modification.”

The test therefore for a decision-maker when applying s53(3)(c)(iii) is whether there is discovered evidence which, when considered with all other relevant evidence available, shows that any particulars contained within the DMS require modification.

Paragraph 12 of Schedule 15 to the WCA 1981 provides that a person aggrievedby any order purporting to have been made pursuant to s53 may apply to the High Court to question its validity on the ground that it is “not within the powers of s53.” If satisfied that the order is not within the powers of s53, the High Court will quash the order, or any provision of the order, either generally or in so far as it affects the interests of the applicant.  

It is established that a decision infected by legal error will not be within the powers of s53, Berry v Secretary of State for the Environment, Food and Rural Affairs [2005] EWCA Civ 1597.   

As to the dispute regarding the admissibility of paragraphs 18-29 of Mr Carr’s statement, Dr Stedman Jones, on behalf of the Claimants, summarises and relies upon the relevant legal principles as set out in Kirkman v Euro Exide Corporation [2007] EWCA Civ 66. Kirkman differentiated between professional advisors providing evidence as to facts rather than statements which provide expert opinion, whilst acknowledging that such a distinction might not be immediately obvious.

On the basis that Mr Carr’s evidence is not opinion evidence, Dr Stedman Jones submits that the court may consider that evidence since it provides background and context in which the issue of law arises. R (Al-Sweady) v SSD [2009] EWHC 2387 (admin) at §23.

A way becomes a highway by virtue of the doctrine of dedication by the owner of a right of passage to the public, and the acceptance of such a right, which is generally by actual use of the way by the public. Dedication may be, and commonly is, inferred from the conduct of the landowner which is such as to lead the public to infer that he was willing for the public to have a right of passage. Both dedication and use by the public must occur to create a common law highway. See Fortune v Wiltshire Council [2013] 1 WLR 808 at paragraphs 11 – 14 and Halsbury’s Laws of England (Vol. 55 – Highways) paragraphs 141 143 and 149).

The boundary to boundary principle is the presumption that a highway extends over the whole space between its boundaries. The presumption only applies when the boundaries were erected by reference to the highway. As Goff J explained in Attorney General v Beynon [1969] 2 WLR 1447:

“12.

… It is clear that the mere fact that a road runs between fences, which of course include hedges, does not per se give rise to any presumption. It is necessary to decide the preliminary question whether those fences were put up by reference to the highway, that is, to separate the adjoining closes from the highway or for some other reason.”

The correct legal approach to the boundary-to-boundary principle is set out by Chadwick LJ in the Court of Appeal case of Hale v Norfolk County Council [2001] Ch 717

“33 It seems to me much less clear that there is any foundation for a presumption of law that a fence or hedge which does, in fact, separate land over part of which there is an undoubted public highway from land enjoyed by the landowner has been erected or established for that purpose. It must, in my view, be a question of fact in each case. To take an obvious example: there could be no room for any such presumption unless the highway predated (or was contemporary with) the fence or hedge. If it were unknown which came first, I can see no reason in principle for making an assumption—or adopting a presumption—that the landowner fenced against the highway rather than that the highway followed the line of the existing fence. Whether it is right to infer, as a matter of fact in any particular case, that the landowner has fenced against the highway must depend, as Lord Russell of Killowen CJ observed in Neeld v Hendon Urban District Council 81 LT 405, 409 on the nature of the district through which the road passes, the width of the margins, the regularity of the line of hedges, and the levels of the land adjoining the road; and (I would add) anything else known about the circumstances in which the fence was erected. If nothing is known as to the circumstances in which the fences were erected, the fact that the soil of a highway and the adjoining land on each side was once in common ownership and that the highway is separated from the adjoining land by continuous fence lines may well enable a court properly to infer that the landowner has fenced against the highway; that is to say, "that the fences may prima facie be taken to have been originally put up for the purpose of separating land dedicated as a highway from land not so dedicated", per Vaughan Williams LJ, at p 410. But it is, I think, wrong to treat the remarks of Vaughan Williams LJ in Neeld's case as authority for a presumption of law that, whenever it is found that a highway runs between fences, the fences were erected for that purpose. ”

LJ Chadwick was careful to point out in Hale that one must draw appropriate inferences about the intentions of the landowner with regards to dedication of any land from the facts that are known about the circumstances in which the boundary features were erected. So, the question as to whether the boundary features were erected by reference to the highway is a matter of fact to be resolved on the individual facts of the case.

Dr Stedman Jones contends that where it is either (1) unknown whether the boundary features pre-dated the highway, or (2) established by the evidence that the boundary features pre-dated the highway, there is no scope for the boundary-to-boundary presumption to be raised. Further, Dr Stedman Jones says that where the boundary-to-boundary presumption is engaged, its effect is that (absent evidence to the contrary) the width between the boundary features is taken to be dedicated as the width of the highway. 

There are a number of key principles established by the courts when considering a challenge to the decisions of Planning Inspectors. Excessive legalism has no place in planning and the courts should always resist over complicating concepts that are basically simple (per Lindblom LJ in East Staffordshire BC v SSCLG [2018] PTSR 88 at para. 50; St Modwen v SSCLG [2017] EWCA Civ 1643 at para. 7).

The courts should respect the expertise of specialist planning inspectors who are tasked with resolving disputes between planning authorities, developers, and others and are in some ways analogous to expert tribunals. It should start from the presumption that they have properly understood the relevant statutory scheme and policy/guidance (Hopkins Homes Ltd v Secretary of State [2017] 1 WLR 1865 per Lord Carnwath at para. 25).

It is also established that decision letters are to be read benevolently and as a whole, in a reasonably flexible way. Because they are written principally for parties well-aware of all of the issues involved and of the arguments deployed at the inquiry, it is not necessary to rehearse in the decision letter every argument relating to each matter ( Seddon Properties v SSE (1981) 42 P. & C.R. 26, per Forbes J. at p.28). An adverse inference that the inspector misunderstood something or failed to have regard to it will only be drawn where all other known facts and circumstances point overwhelmingly to that conclusion (South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at paras. 34-35).

There is a difference between a challenge based on misinterpretation and a challenge based on the application. Matters of application are matters of judgment and are within the exclusive jurisdiction of the decision-maker. They are not for the court. A public law claim does not afford an opportunity to review the planning merits of the first instance decision (Bloor Homes Ltd v Secretary of State [2017] PTSR 1283 per Lindblom J (as he then was) at para 19(3)).

Both parties also refer to the DEFRA guidance ‘Non statutory Guidance on the recording of widths on public path, rail crossing and definitive map modification orders’, dated 12 February 2007 which says:

“Definitive Map Modification Orders

Unlike public path orders and rail crossing orders, DMMOs do not extinguish or create rights; instead they merely record them. DMMOs are determined according to the evidence available. Widths should be included in all DMMOs and these widths should also be based on the available evidence. For this reason, where the evidential source is vague or approximate then it may be appropriate for the recorded width to reflect that fact. For instance, an historic document may refer to a width of “20 feet or thereabouts” or “30 feet at the least”. In such cases it may be appropriate for OMAs to draft the order in similar terms. Care should be taken to distinguish between the legal width of the highway and specific “making up” requirements.

In some cases the width of a route to be recorded may be based on the depiction of the route on an historic plan or map. For instance, the way may be shown as excluded from taxable hereditament on a Finance Act 1910 map. The approach suggested in Illustration 3 above, of shading the relevant area on the order plan, could be used or, alternatively, the schedule could refer to the width of the way as being “that shown excluded from the hereditament on the Finance Act 1910 map”. In some circumstances it may be appropriate to refer similarly to specific Ordnance Survey plans or maps based on them.

OMAs will be aware that that it may not be appropriate to scale off precise measurements from such maps. However they will provide valuable indications of where the width varies significantly.

There will be a small number of cases where there is little if any evidence, either documentary or user, as to the width of the route. In such cases the OMA should include a width that appears appropriate having regard to all relevant factors which may include, for instance, the type of user, location and the nature of the surface and other physical features. OMAs should bear in mind that such a width should be the minimum necessary for the reasonable exercise of the public right in these circumstances, enough for two users to pass in comfort, occasional pinch points excepted.

Precision

The regulations do not prescribe the degree of precision to which widths should be stated in orders and thus it is open to the OMA to use their discretion in this area. Nonetheless, it seems desirable to establish a consistent standard of precision to be used. It is thus recommended that widths are normally quoted rounded up or down to the nearest 0.1m. Measurement to such a degree of precision is easily achievable in most circumstances using a standard tape measure.”

The Planning Inspectorate (“PINS”) guidance, entitled “Widths on Orders”, is consistent with the DEFRA Guidance. It makes clear that it clarifies PINS position on the need for widths to be shown on all definitive map orders, but states expressly that the PINS guidance has no legal force and is not an authoritative interpretation of the law. It notes that under DEFRA Circular 1/09 the width of a path should be included in the order schedule, and that the “effective future management of the rights of way network and land over which the rights of way pass requires that widths of routes are recorded as accurately as possible”, but notes that the extent to which that is feasible may vary depending on the type of order, and that in applying the advice inspectors will need to take into account the nature of the order under consideration and the specific circumstances of the case.

Dr Stedman Jones also points to the OMAs own guidance, the ‘Countryside Access Design Standards Path Widths and Heights’ Guidance which provides:

“In the event that a width cannot be established by [checking the Definitive Statement, DMMOs, mapping evidence, boundary-to-boundary principle, etc], the following table provides guidance as to what the County Council would normally expect to be available for public use.

…and later…

In cases where the path runs between two established boundary features, such as a hedge or a ditch, the whole width between them can be presumed to be available, so long as they were laid out in reference to the highway.”