Vehicle access is a recurring issue for property lawyers. Now the impact of two cases will completely change how this is viewed, predicts Chiara Drukarz Kantor

Over the last few years, the problems homeowners face when seeking to secure vehicular access across common land to their homes have been highlighted regularly.


Until 1993 it was believed that prescriptive rights of way could arise over common land, if a homeowner could show a continuous (vehicular) use of an access way for at least 20 years without let or hindrance. The homeowner would be entitled to a right of way. ‘Let’ means express permission including a lease or licence so that, for example, any property using a right a way pursuant to a lease granted by the landowner does not acquire a prescriptive right. This was established by obtaining statutory declarations going back at least 20 years to confirm the position. Having obtained such information, it was then believed that a homeowner had acquired a prescriptive right of way over the track or other private road in question.


However, it was the Court of Appeal decision in Hanning v Top Deck Travel Group Limited (1993) 68 P&CR 14, in which the court held that a prescriptive right of way cannot arise where it is based on an illegal act.


It was held that the mere act of driving across a common was illegal pursuant to section 193 of the Law of Property Act 1925, as driving cars over common land would constitute a criminal offence.


In practice, this meant that thousands of homeowners were committing criminal acts on a daily basis. The only way out would be to obtain express consent of the landowner, who in turn would be able to charge for this consent. Since then, many landowners have successfully used the law to their advantage and have exploited the homeowners’ position in that they have charged high sums for granting express consent.


In 2002, the Court of Appeal gave landowners an extra treat in its ruling in Massey v Boulden [2002] EWCA Civ 45 [2003] I EGLR. In that case the decision in Hanning was upheld, but it was added that it would be an offence to drive on any land that is not a road. This meant that all private tracks would be affected as they were not within the definition of ‘road’, as roads are public highways.


With pressure mounting, the government finally responded with the introduction of an amendment to the Countryside and Rights of Way Act 2000 (CROW). The new provision, section 68, provides for the creation of a statutory easement that gives, in effect, a permanent right of vehicular access across the land where a prescriptive right would otherwise be available, but for the fact that the access is over common land. CROW was designed to end the uncertainty faced by people who have driven access common land for many years to reach their homes but who apparently had no legal right to do so.


Section 68 and the regulations made pursuant to it (vehicular access across common and other land (England) regulations 2002) set out the procedures to be followed by a person who wished to obtain a legal right of vehicular access to premises. The regulations aimed to strike a fair balance between landowners and the owners of premises served by vehicular access because in return for permanent rights being created landowners were to receive a set amount of compensation.


The compensation payable under CROW depends on the age and value of the property in question. It varies from 0.25% of the value of premises in existence before 31 December 1905; 0.5% of the value of premises in existence between I January 1906 and 30 November 1930; and 2% of the value of the premises for all other premises more than 20 years old.


In addition, the homeowner has to show a continuous use of the access way for at least 20 years without the permission of or hindrance by the landowner. If a homeowner was not able to do so, for example, where 20 years’ use of a right of way could not be verified by statutory declaration or other suitable evidence, then the value to be paid would have to be negotiated on open market terms.


The obvious downside of a section 68 application is that it assumes that a homeowner is able to comply with the requirements of the act and regulations. Even if a homeowner is able to make an application, the compensation payable can still be very high. For example, if a property was valued at £1.5 million and was built after 1930, £30,000 would have to be paid to the landowner. In practice, landowners often object to certain points in a section 68 application, thus making the procedure more costly, lengthy and difficult.


Anyone wishing to apply for an easement under CROW first had to serve notice on the landowner within 12 months of the date on which the legislation come into force or if later, the date on which the relevant use of the way had ceased. As CROW came into force on 4 July 2002, many landowners considered 4 July 2003 to be the deadline to make applications. That interpretation of the deadline is wrong, but nevertheless has created an element of uncertainty about a provision that was intended to bring clarity to the problem.


On 1 April 2004 the long awaited House of Lords decision in Bakewell Management Limited v Bradwood and Others was made. The case concerned a battle between the Newtown Common Residents Association and the management company, which became owner of the common in 1997 and started demanding compensation payments from up to 100 residents for using the access way to their houses. Some 47 homeowners refused to pay and proceedings were issued.


In Bakewell, the Lords unanimously overruled the decision in Hanning and held, in brief, that anyone with a prescriptive right of way can revert to relying on just that right, without the need to buy a right of way under section 68.


The Law Lords did not address one practical issue, namely whether homeowners are now in a position to demand their money back following a successful application under section 68. It is in fact not possible to recover any payments made under section 68 or indeed any payments made before that section came into force. Such payments were not made pursuant to either a mistake of fact or a mistake of law (as it stood at the time).


With hindsight, it is now unfortunate that those payments were made, albeit that this was the right way of achieving certainty on a sale at that time. Any resident who purchased a right of way will of course continue to enjoy the benefit of an express grant registered in favour of their property.


Chiara Drukarz Kantor is a property litigation solicitor at Reading-based law firm Pitmans