KEY POINT

• The Lords confirm that one can, after all, claim a vehicular right of way by long usage over a town or village green without payment.

Q: Access to my property passes over the village green and I've been driving my car over it for years. Have I got a right of way or not?

A: Probably. You should qualify for a right of way if you've driven over the green for more than 20 years, without interruption and without permission of the owner. These are the essential elements of a claim for rights established through long use, or "prescriptive rights" as they are also known.

Between May 1993 and April 2004, it was thought to be impossible to acquire a prescriptive right of way over a village green or common land. In the 1993 case of Hanning v Top Deck Travel Group Ltd, the owner of a common successfully resisted a claim by a neighbouring landowner for a right of way. The Court of Appeal in that case relied on the fact that it is an offence to drive "without lawful authority" over a common or village green. So, as one cannot generally profit from a criminal offence, the 20 years' illegal use could not give rise to a legal right of way.

The Hanning decision was followed in a number of subsequent cases, and led to landowners demanding large sums of money from householders whose access was across common land. It also led to section 68 of the Countryside and Rights of Way Act 2000, which allowed householders in such cases to buy a right of way on payment of a cash sum fixed by regulations.

All that changed on 1 April this year, as a result of the House of Lords' decision in Bakewell Management Ltd -v- Brandwood8 which has vastly improved the position for householders like yourself.

The Bakewell case involved houses surrounding Newtown Common in Berkshire, where vehicular access to the affected houses was by tracks across the common. Residents of the houses had used these tracks for decades without any permission - or complaint - from previous owners of the common.

However when the freehold to the common was sold to Bakewell Management Limited, the new owner notified the residents that they had no legal right to drive over the tracks. It indicated that it would be more than happy to sell such a right to the householders in return for large sums of money.

The House of Lords decided, much to the relief of the householders, that although the use of the tracks might technically have been illegal, that did not prevent a right of way being gained by prescription.

Their reasoning was this. Driving across the common is only an offence if done "without lawful authority". Permission of the owner is "lawful authority", and such permission is presumed if you have driven across the land for more than 20 years. So the "illegality" does not stop a right of way coming into existence. In reaching this conclusion, the Lords overruled the Hanning case and several other Court of Appeal decisions since 1993 which had said that no right of way could arise.

Q: OK - does all that mean I get a right of way without having to pay anything?

A: Yes it probably does, assuming you can show at least 20 years' continuous use without permission. You shouldn't have to pay any money to the owner of the common under section 68 of the Countryside and Rights of Way Act 2000 which I mentioned above.

Q: Great - is there a catch?

A: Yes, the Bakewell decision might not apply where driving across the common or green is a public nuisance (perhaps unlikely, if 20 years have passed without complaint), or would hamper recreational use of the land as a common or green (ditto), or where the land is owned by an authority such as a parish council under statutory powers which prevent rights being granted at less than full consideration.

Q: All this stuff concerns houses in the countryside. Is any of it relevant to commercial property?

A: Yes! Suppose you and your predecessors have gained vehicular access to the car park of your office building, for more than 20 years, over a third party's land which is not a road. Until 2002, you would probably have been advised that you have a right of way by long use.

But in 2002, the Court of Appeal decided in a case called Massey v Boulden9 that one cannot acquire a prescriptive right of way in such cases, because driving across land which is not a road, without lawful authority, is also a criminal offence.10 In reaching that decision, the Court of Appeal relied on the same principles as in the Hanning case.

In the Bakewell case two months ago, the House of Lords confirmed that Massey v Boulden, like Hanning, was wrongly decided. You do have a right of way through long usage after all.

Q: What about people who have paid money for a right of way under section 68 of the Countryside and Rights of Way Act 2000, as you mentioned earlier?

A: This is a real problem and the answer is by no means clear. The Bakewell decision now suggests that such people needn't have bothered paying a penny. It's possible that they may apply to the courts for a refund.

On the other hand, owners of commons or greens who have collected such payments will argue that such transactions, once completed, cannot be opened up. Unfortunately, further litigation may be necessary to resolve these difficult issues. (Shaun Lamplough)

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