The Natural Environment and Rural Communities Act 2006 can provide a private right of way to access land but only where, immediately prior to commencement, an existing public right of way to access the land was exercised.
In Christopher Price v Jonathan Nunn [2023] EWHC 3200 (Ch), the latest iteration of a neighbour dispute spanning almost 50 years, the court has considered a claim to a right of way under the 2006 Act.
The case concerned rights of way over sections of a track running between neighbours in Gloucestershire. The defendant acquired Woodside bungalow adjacent to the upper track and a paddock adjacent to the lower track in 1991. The claimant owned a farm at the end of the lower track. A third section – the pitch – gave access from the B4070 to a junction between the upper and lower tracks.
Earlier proceedings established that the claimant owned the lower part of the track but no one owned the upper part which formed part of a public footway. The defendant’s predecessors in title were entitled to use the lower track only to obtain access to the paddock.
Section 67 of the 2006 Act NERCA extinguished all existing public rights of way for mechanically propelled vehicles over ways which, prior to 2 May 2006, were either not shown on local authority maps or only shown as footpaths or bridleways. However, where the exercise of an existing public right of way was reasonably necessary to enable a property owner to obtain access to land the right became a private right of way for such purpose. The defendant claimed such a right to enable him to gain vehicular access to Woodside bungalow.
The Turnpike Act 1800 was passed to create a turnpike road – the B4070 – and empowered trustees to discontinue specified routes which connected to the turnpike road, to facilitate the collection of tolls. One such route included the upper track as both a road and a common highway.
The judge found that earlier decisions did not bar the defendant from pursuing a claim under the 2006 Act. The evidence pointed to the upper track being dedicated as a public vehicular highway and there was no evidence that it had been stopped up.
However, the defendant had not established that prior to 1800 the specified route to the turnpike road comprised the upper track and either the lower track or the pitch. Consequently, the upper track was not an existing public right of way for mechanically propelled vehicles, within the meaning of the 2006 Act, and so, the claim failed.
Louise Clark is a property law consultant and mediator
