KEY POINTS

• A right of way normally arises automatically after 20 years' unchallenged use of an accessway without the owner's permission.
• A right of way cannot arise where the use of the accessway was a criminal offence.
• A person driving vehicles without permission over land which is not a "road" - in the legal sense - may not acquire a right of way.

BACKGROUND

The general rule is that 20 years' unchallenged use of a road or accessway as of right, ie without the owner's permission, will get you a legal right of way by long usage (or an "easement by prescription", as lawyers would say).

However, no person can be allowed to profit from their own crime. Driving over someone else's land without permission is usually a civil trespass - but sometimes it is also a criminal offence. And a series of recent cases have established that 20 years' use cannot create a legal right of way if that usage was criminal.

We first looked at this issue a couple of years ago, when the focus was on accessways which run across common land. The Court of Appeal had ruled in Hanning v Top Deck Travel Group Limited that driving a car along an accessway over common land for 20 years does not create a legal right of way.

The basis of the Hanning decision was section 193(4) Law of Property Act 1925. This section makes it a criminal offence to drive a vehicle over common land without lawful authority. (If one has the owner's permission, this counts as "lawful authority" so it's not a criminal offence, but then one can't acquire a right of way by long usage because use of the way will not have been "as of right", meaning without permission.)

PROPERTY OWNERS v ACCESS OWNERS

The decision in Hanning meant that property owners who had used their driveways for many years, in some instances for the best part of a century, now found themselves landlocked as far as cars and other vehicles were concerned. It was accepted that the property owners had a cast iron right of way on foot, but if they wanted to drive they would have to pay some kind of ransom to the access owner.

Last year the Hanning case came under scrutiny in Bakewell Management Limited v Brandwood, but Mr Justice Park in the High Court took the view that Hanning was correct. In January of this year the Court of Appeal agreed with him. So the property owners still had no right to drive over the accessway.

THE RIGHT TO BUY A RIGHT OF WAY

The Government had already begun taking steps to alleviate the anomaly thrown up by the Hanning case. Section 68 of the Countryside and Rights of Way Act 2000 laid the ground for regulations allowing the property owner to insist on purchasing a right of way by compulsion from the access owner. The regulations were approved by Parliament on 3 July 2002 and came into force on the following day.

WHAT DO THE REGULATIONS PROVIDE?

Where the property owner would have acquired a right of way after 20 years’ usage, but for the fact that use of the accessway was an offence, he/she can now compulsorily purchase a right of way for a fixed sum based on a statutory formula. The aim is to give the access owner reasonable compensation but not ransom money.

VEHICULAR ACCESS REGULATIONS 2002

Compensation payable for right of way

• Where the premises were in existence on 31 December 1905, 0.25% of the value of the premises.
• Where the premises were not in existence on 31 December 1905 but were in existence by 30 November 1930, 0.5% of the value of the premises.
• Otherwise, 2% of the value of the premises.

Note: Where the premises are in residential use, and replaced earlier premises on the same site which were also residential, the sum is calculated by reference to the date on which the earlier premises were in existence.

Disputes on price are to be referred to a chartered surveyor, acting as an arbitrator, unless both parties agree that he should act as an independent expert. Once the sum is fixed, the property owner will have a right to withdraw, on payment of the access owner's reasonable costs. It would appear that the right of way, once granted, will be restricted to the current use (eg if currently used for cars, the accessway cannot be used for lorries) and a material change in use or redevelopment of the land served by the access may invalidate the right of way.

A NEW PROBLEM: MASSEY v BOULDEN

The Court of Appeal's decision last November in Massey v Boulden identified a brand new problem which had not previously been thought to exist. If this new case is correctly decided - which we rather doubt - it would mean that rights of access to many other properties must now be called into question. As with Hanning and Bakewell, this was a case about rights of way using vehicles. The property owners' rights to cross the land on foot were not in dispute.

The facts

The property owners in this case, and their predecessors in title, had used a vehicle track over land belonging to the access owners for 41 years. The land in question was a village green rather than (as in Hanning and Bakewell) common land. The access owners then tried to prevent vehicles using the track; the property owners claimed they had a right of way by virtue of their long usage.

Section 193(4) of the Law of Property Act 1925 did not apply here, because the land in question was not common land. But the access owners relied on a different provision - section 34 of the Road Traffic Act 1988 (see box) - and the Court of Appeal found in favour of the access owners.

ROAD TRAFFIC ACT 1988, SECTION 34

(1)…If without lawful authority a person drives a motor vehicle (a) onto or upon any common land, moorland or land of any other description not being land forming part of a road, or (b) on any road being a footpath or bridleway, he is guilty of an offence. [emphasis added]

(2) It is not an offence under this section to drive a motor vehicle on any land within fifteen yards of a road, being a road on which a motor vehicle may lawfully be driven, for the purpose only of parking the vehicle on that land. [emphasis added]

"Road" is (rather unhelpfully) defined by section 192 of the Road Traffic Act 1988 to mean:

"any highway and any other road to which the public has access".

These provisions were not new in 1988, having first appeared in the Road Traffic Act of 1930.

The legal point in Massey v Boulden If driving along the track was a criminal offence under the Road Traffic Act, then the property owners could not earn themselves a legal right of way by virtue of their 41 years' use.

So was it an offence? This depended on several difficult legal questions, of which the two most important were:

1. Should the section 34(1) phrase "common land, moorland or land of any other description, not being land forming part of a road" be read so that "land of any other description" must be taken as meaning land which has similar characteristics to common land or moorland?

2. What does "road to which the public has access" mean?

On these points the Court was split two to one.

The Court's answer to question 1

Two of the three judges in the Court of Appeal said no. "Land of any other description" meant just that, land of any other description. It did not need to have similar characteristics to common land or moorland. The majority judges went on to say that even if they were wrong about this, the track in this case was part of a village green and therefore did have similar attributes to common land or moorland anyway.

The views of the dissenting judge

Lord Justice Mantell disagreed with the majority view. Section 34 has generally been understood by the conveyancing fraternity to be limited to land which is of a similar ilk (or ejusdem generis) to common land or moorland. As Lord Justice Mantell said, if the majority are right then "an offence with far-reaching effect will have been on the statute books since 1930, so far as I can discover, without receiving notice from any quarter". He described this result as an "absurdity".

However, Lord Justice Mantell accepted that on the facts of this particular case, the track did have similar attributes to common land - given that it ran across a village green. So in this instance, the land was indeed caught by section 34, but the majority decision has much wider implications, as we explain below.

The Court's answer to question 2

The Road Traffic Act defines "road" as "any highway and any other road to which the public has access" (see above). This track was clearly not a highway. Was it a "road to which the public has access"?

Again the Court was split. All three judges accepted that the inhabitants of the village were sufficient to constitute "the public" and that they did have access to the track in the sense of routinely walking over it.

But the two majority judges then went on to say that for the definition of "road" to be satisfied, the public must have access to the track in the sense of using it as a road. Use on foot was not relevant access. Only use with motor vehicles would count.

The views of the dissenting judge

Again Lord Justice Mantell disagreed. He said that the track and the rest of the village green were, of course, open to members of the public, who "are as well able to walk over or along the disputed right of way as anyone else. I can find no warrant for the proposition that the only relevant access is use of the road qua road."

Therefore, he felt, the track was a "road to which the public has access". If so, no offence had been committed and the property owners had earned their right of way by long usage.

MASSEY v BOULDEN: THE RESULT

The majority decision in favour of the access owners means that the property owners had no automatic right of way despite the fact that they and their predecessors had accumulated 41 years' uninterrupted use of the track.

All is not lost for the property owners. The Court of Appeal confirmed that they could certainly exercise compulsory purchase rights under the Vehicular Access Regulations, paying between 0.25% and 2% of their property's value depending on when it was built.

But this may be of limited comfort to them. Not only will the compulsory purchase price be a fairly significant amount, but they will presumably have to pay the costs of the litigation in which they tried to secure the right of way for nothing. Unless they can successfully appeal to the House of Lords, of course.

MASSEY v BOULDEN: THE WIDER IMPLICATIONS

The two judges in the Court of Appeal majority said that where vehicles have been driven (without permission) over any kind of land whatsoever, no right of way can accrue by 20 years' usage unless it is land to which the public have access "as a road", ie land across which the public are routinely permitted to drive without objection in practice.

It is not enough for the adjoining property owner claiming a right of way to show that the track in question is not of a similar type to common land or moorland. Nor is it enough to show that members of the public routinely have access on foot.

As a recent article in the Estates Gazette put it:

"The effect of this decision is that many properties where prescriptive easements [ie rights of way by long usage] were understood to exist are now effectively landlocked."

Or at least, landlocked to vehicles.

Perhaps the situation is not quite as bad as it sounds. The majority decision poses no real problem for properties which have an undisputed legal easement for vehicular access, and merely rely on 20 or more years' use for pedestrian access. Massey v Boulden does not affect pedestrian access.

We would also doubt whether the majority decision is a serious problem for property owners where the track or driveway is not common land as such, and is used by the general public for vehicular access to a range of other premises other than the subject property. Even under the stringent test laid down by the majority judges in Massey v Boulden, we think it fairly likely that such a track or driveway would be treated as a "road to which the public has access" so that a right of way would probably accrue after 20 years.

And even in cases where the only vehicular access is over a track or driveway which is not used by the public in their motor vehicles, the compulsory purchase rights under the Vehicular Access Regulations would still of course apply.

Nevertheless, we would respectfully suggest that the broader views expressed by the majority in the Court of Appeal were unwarranted by previous authority, as well as being quite unnecessary to decide this case. We would hope that the House of Lords have an early opportunity to review this entire topic in order to bring the law into line with long standing and realistic conveyancing practice.

 © Lovells