A. W. & C. Barsby: Legal Research and Publishing

Chapter 6 - Access

6-7 Presumption of ownership. The highway presumption also operates where land is sold which includes the whole width of the highway. Even if there is no mention inthe sale of the transfer of the highway, it will be presumed in these circumstances that the whole width is owned by the frontager. See Commission for New Towns v JJ Gallagher Ltd [2002] EWHC 2668, The Times 27 December 2002.

6-31 Link to the Planning Inspectorate for information about rights of way. Link to DEFRA for information about rights of way.

6-34 Link to HMSO for the Countryside and Rights of Way Act 2000, and Explanatory Notes on the Act. DEFRA for information about the Act. Link to the Countryside Agency for information about public access to land.

6-45 Link to Land Registry for leaflet on registration of prescriptive easements (pdf download).

6-46 The case of Smith v Brudenell-Bruce [2002] 2 P&CR 4 concerned a claim for a right of way over a track. It was argued that the use which had taken place was no different from use by the public. The court decided that the use was nonetheless sufficient to create a private right of way. [21/9/02]

6-47 The Vehicular Access Acrosss Common and Other Land (England) Regulations 2002, SI 2002/1711, came into force on 4 July 2002. They have been made under s. 68 of the Countryside and Rights of Way Act 2000. In brief, they allow a person to acquire a right of way over land by use over a period of time, even though the use is criminal. They apply to almost all land (not just commons). A person seeking a right must show that there has been use which would (if it had not been criminal) would have led to the creation of a right of way on or after the "prescribed date", which is 5 May 1993. Compensation is payable, the amount depending on the age and value of the house which will enjoy the right of way.

6-47 In the case of Bakewell Management Ltd v Brandwood, the House of Lords has overruled the decision in Hanning v Top Deck Travel. The law now is that it is possible to acquire an easement by prescription even if the use made of land was criminal at the time. Link to UK Parliament site for the judgment.

6-47 In the case of Massey v Boulden [2002] EWCA Civ 1634, 14 November 2002, the Court of Appeal considered the scope of s. 34 of the Road Traffic Act 1988, by which it is an offence to drive a motor vehicle on "any common land, moorland or of any other description, not being land forming part of a road". ("Road" has a special meaning here and means a highway or a road where public use takes place and is tolerated.) The court decided - with some hesitation - that s. 34 means what it says and that driving anywhere other than a road, without permission or other authority, is an offence. Driving which is an offence could not formerly lead to the creation of a prescriptive easement, but can now do so under the Regulations mentioned above. The case of Massey v Boulden is now reported at [2003] 1 WLR 1792

6-61 The scope of an easement of necessity would depend upon the circumstances.

6-62 This paragraph summaries two rules of law: the rule laid down in the case of Wheeldon v Burrows and the rule in s. 62 of the Law of Property Act 1925. For a fuller explanation of the circumstances in which these may apply see Protecting Your Property from A. W. & C. Barsby

6-70 For an article by Andrew Barsby about the effects of the Access to Neighbouring Land Act 1996 see the New Law Journal for 18 August 2000. Link to downloadable pdf version.