Easements — Acquisition by prescription — Village green — Section 34(1) of Road Traffic Act 1988 — Whether right of way acquired by prescription over village green — Whether track over village green “land of any other description” under section 34(1)(a) of 1988 Act — Whether use of track criminal offence contrary to section 34(1) — Whether breach of section 12 of Inclosure Act 1859 — Whether breach of section 29 of Commons Act 1876 — Enlargement of purported dominant tenement in 1977 — Whether any easement based upon prescription restricted to pre-1977 dominant tenement
The appellants owned a village green (the Pinn), together with a track that ran across it. The track led from a public highway to a residential property owned by the respondents and, at one point, crossed a public footpath. The Pinn was an open green space, which had been registered under the Commons Registration Act 1965 as a village green. It consisted of the remains of manorial waste that had been created by the enclosure of adjoining land to build a village school, which incorporated a schoolmaster’s house and a schoolroom. In the 1920s, the school closed. The schoolroom was then used as parish rooms and the schoolmaster’s house was converted into two adjoining semi-detached cottages. In 1977, one of these cottages and the former schoolroom were both acquired in order to create the one large residence that was later purchased by the respondents.
The track across the common had been used as a vehicular access to the property by successive occupiers, including the respondents, until it was physically obstructed in 1999. The respondents’ claim for declaratory and injunctive relief was granted by the county court judge. The appellants appealed, contending that: (i) use of the track was illegal under section 34(1) of the Road Traffic Act 1988, and a right of way could not therefore have been acquired by prescription, having regard to Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14; and (ii) even if a right of way could have been acquired by prescription, it would have been solely for the benefit of the original semi-detached cottage and not for the benefit of the larger dominant tenement created in 1977.
Held: The appeal was allowed in part.
(1) A right of way by prescription could not have been acquired. Section 34(1)(a) of the 1988 Act had been contravened; the subsection was unambiguous in its application to “any common land, moorland or land of any other description”, and the ejusdem generis principle did not apply to limit the words “or land of any other description” to land that was either common or moorland. Accordingly, any land would fall within the subsection, including the track. Even if the principle did apply, the genus would include a village green. The concluding words of section 34(1)(a), “not being land forming part of a road”, did not apply to exclude the subsection, since the track was not, within the meaning of section 192 of the 1988 Act, “a road to which the public had access” as a road. Section 34(1)(b) had also been contravened because the track crossed a footpath documented as having existed for over 100 years. No breaches of either section 12 of the Inclosure Act 1859 or section 29 of the Commons Act 1876 had taken place. However, the respondents would be entitled to acquire a right |page:25| of way under section 68 of the Countryside and Rights of Way Act 2000.
Per Mantell LJ, dissenting: Section 34(1)(a) of the 1988 Act did not apply. The track was a road to which the public had access, and there was no authority that use of a road by the public must be qua road. Section 34(1)(b) did not apply because the road became a footpath where the track coincided with the latter.
(2) However, any right of way that the respondents might purchase under the 2000 Act would benefit not only the original cottage but also the larger dominant tenement created in 1977. In so far as the use of the track served the part of the respondents’ property that had previously comprised the parish rooms, that use could sensibly be described only as being ancillary to its use for the purposes of the original dominant tenement, that is, the cottage.
The following cases are referred to in this report.
Das v Linden Mews Ltd; sub nom Chand v Linden Mews Ltd [2002] EWCA Civ 590; [2002] 2 EGLR 76; [2002] 28 EG 130
Director of Public Prosecutions v Coulman [1993] RTR 230
Director of Public Prosecutions v Vivier [1991] 4 All ER 18; [1991] RTR 205, DC
Graham v Philcox [1984] QB 747; [1984] 3 WLR 150; [1984] 2 All ER 643; (1984) 48 P&CR 354; CA
Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14
Harris v Flower (1904) 74 LJ Ch 127
Harrison v Hill [1932] JC 13
Lang v Hindhaugh [1986] RTR 271
Larsen v Sylvester & Co [1908] AC 295, HL
Lister v Romford Ice & Cold Storage Co Ltd; sub nom Romford Ice & Cold Storage Co v Lister [1956] 2 QB 180; [1955] 3 WLR 631; [1955] 3 All ER 460; [1955] 2 Lloyd’s Rep 325, CA
Oxford v Austin [1981] RTR 416
Peacock v Custins; sub nom Custins v Peacock; Peacock v Custin [2001] 2 All ER 827; (2001) 81 P&CR 34; [2001] 1 EGLR 87; [2001] 13 EG 152
Pepper (Inspector of Taxes) v Hart [1993] AC 593; [1992] 3 WLR 1032; [1993] 1 All ER 42, HL
R v Bristol Magistrates Court, ex parte E [1999] 1 WLR 390; [1998] 3 All ER 798, QBD
Robinson v Adair The Times 2 March 1995
This was an appeal by the appellants, Graham and Susan Boulden, from a decision of Judge Poulton, sitting in Canterbury County Court, granting declaratory and injunctive relief in proceedings relating to rights of way by the respondents, Paul Massey and Stephen Drew.
Vivian Chapman (instructed by John Collins & Partners, of Swansea) appeared for the appellants; Peter Harrison (instructed by Kingsfords, of Ashford) represented the respondents.
Giving the first judgment, Simon Brown LJ said:
[1] This appeal concerns a vehicle track (the track) across a village green called the Pinn at Bonnington, near Ashford in Kent. The track leads from a public highway over the green to a residential property known as the Old School House. The appellants own the green, the respondents own the house. On 1 October 2001, Judge Poulton, in Canterbury County Court, upheld the respondents’ claim to a prescriptive vehicular right of way over the track, and awarded them damages of £3,500 for its physical interruption by the appellants. He found that the use had commenced by 1956 at the latest, and had not been interrupted until 1997.
[2] The appellants appeal against that holding, by permission of the judge below, on two central grounds. They contend that: first, the user was in breach of the criminal law and so could not found a prescriptive right; and, second, the dominant tenement was, in any event, enlarged in 1977 so that, even assuming that a prescriptive right of way had accrued by 20 years’ use before that time, that right did not avail the occupier in respect of the additional part of the dominant tenement. Simply stated though these two grounds are, they contain within them numerous difficult issues, some apparently of wide general application.
[3] With that briefest of introductions, let me turn next to the facts of the case, which I shall set out as shortly as possible, describing both the topography and the history in only the barest outline.
[4] The Pinn is an open green space on the south side of a public highway (the B2067 road between Bilsington and Hythe), mostly to the east side of the T-junction where the B2069 from the north (Aldington) joins the B2067. It is what remains of manorial waste land after the southern part of that land had been enclosed in 1837 to build a village school consisting of a schoolmaster’s house with (attached to its northern elevation) a schoolroom. The latter was itself extended northwards into the green in the 1890s. Those three contiguous buildings, besides being mostly south of the green, are also somewhat to the east of the T-junction already described.
[5] In the 1920s, the school closed, and for the next 50 years the original schoolroom and its extension to the north were used as parish rooms. The schoolmaster’s house was split into two semi-detached cottages, School Cottage West and School Cottage East, each separately tenanted with its own garden opposite. In May 1977, however, following the sale of both cottages (subject to their tenancies) and the parish rooms, the parish rooms were combined with School Cottage East to form one large residence, thereafter known as the Old School House.
[6] The track leaves the B2067 to the east of the T-junction (opposite, or perhaps just to the east of, the line of the school buildings) and describes a broadly south-easterly route across the green to a gate at the north-east corner of the Old School House’s garden. Having passed through the gate, vehicles are parked on hardstanding at the bottom of the garden. Pedestrian access to the Old School House and its various component buildings has always been available by a variety of paths, which I need not describe. These proceedings concern vehicular access only: vehicular access to the bottom of the respondents’ garden.
[7] The judge below found, as stated, that continuous use of the track over the green was made by successive occupiers of the dominant tenement (initially School Cottage East, and then, after 1977, the Old School House) between 1956 and 1997. Those occupiers included the first appellant’s sister, the purchaser and first occupier (with two successive husbands) of the enlarged house, who lived there from 9 May 1977 until April 1986; a Mr and Mrs Burton, who lived there from October 1986 until 1997; and the respondents, who acquired the property from the Burtons in 1997 knowing of the dispute that had by then arisen as to the right of way, and who had probably paid a substantially lower sum on that account: the asking price of £120,000 having been reduced to £80,000. The judge held that the period of continuous use had been interrupted in law in March 1997, when the appellants complained about it to the Burtons in writing. The track was not, however, physically blocked until 1999, by which time the respondents were in occupation of the house. It was the respondents who initiated these proceedings later that year, claiming declaratory and injunctive relief, with the result already sufficiently indicated.
[8] The appellants, as stated, own the green. They also own Pinn Farm, which lies immediately to the south-east of the Old School House and to part of which, over many years, they have themselves gained access by the disputed track (via a spur towards its south-eastern end). As to the Pinn itself, its eastern part was registered as a village green (as VG 185) under the Commons Registration Act 1965 in 1972; its western part was similarly registered (as VG 230) in 1994. There was little evidence before the court below as to the actual extent to which the green had been used down the years.
[9] Against that broad factual backdrop, I come now to the first of the appellants’ grounds of appeal, namely that the use made of this track by the respondents and their predecessors in title was illegal. That a prescriptive right of way cannot be acquired by a user in breach of a criminal statute is well established, and (subject to [30] below) is not in dispute before us: see particularly Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14 and Robinson v Adair The Times 2 March 1995. Central to the appellants’ case on illegality is section 34 of the Road Traffic Act 1988:
Prohibition of driving mechanically propelled vehicles elsewhere than on roads
(1) Subject to the provisions of this section, if without lawful authority a person drives a motor vehicle; |page:26|
(a) on to 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.
…
(3) 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.
(4) A person shall not be convicted of an offence under this section with respect to a vehicle if he proves to the satisfaction of the court that it was driven in contravention of this section for the purpose of saving life or extinguishing fire or meeting any other like emergency.
(5) It is hereby declared that nothing in this section prejudices the operation of —
(a) section 193 of the Law of Property Act 1925 (rights of the public over commons and waste lands), or
(b) any byelaws applying to any land,
or affects the law of trespass to land or any right or remedy to which a person may by law be entitled in respect of any such trespass or in particular confers a right to park a vehicle on any land.
[10] “Road” is defined by section 192 of the 1988 Act to mean:
any highway and any other road to which the public has access
[11] It is convenient to consider this provision as now enacted (substituted in the 1988 Act in almost identical terms by the Countryside and Rights of Way Act 2000: see section 67 and para 5 of Schedule 7), although, strictly, the legislation relevant for present purposes was that in force between 1956 and 1976, when the right of way was (or was not) being acquired by prescription. During those 20 years, five different statutes were in force. There were, however, no material differences between their provisions and those of section 34 (and section 192) of the 1988 Act, save perhaps that the phrase “land of any other description” in section 34(1)(a) read initially (when this provision was first enacted as section 14(1) of the Road Traffic Act 1930) “or other land of whatsoever description”.
[12] The appellants’ principal argument under section 34 is that the track across the Pinn is (a) “land of any other description” that (b) does not form part of a road, so that those driving along the track (who ex hypothesi did not have “lawful authority” to do so, otherwise their use could not in any event have given rise to a prescriptive right) have therefore been guilty of an offence contrary to section 34(1)(a). Both limbs of the argument raise difficult questions. The appellants succeeded below on the second argument, the judge holding:
There has to be more than effectively a private driveway, even though, of course, the meter man, the postman and others with business at the premises may go there, though in fact with this particular road, they would not go that way, it would probably only be those coming to stay, certainly those coming to visit for some period, who would use that track.
[13] The appellants lost, however, on the first limb. Although the judge appeared to have overlooked the argument when initially giving judgment, he then, upon this being pointed out, added a brief ex tempore judgment, concluding that the phrase “land of any other description” must be construed ejusdem generis with the previous words “common land” and “moorland” so that the section 34(1)(a) argument failed.
[14] Mr Vivian Chapman, for the appellants, now advances three alternative submissions with regard to this important first limb of the argument. First, that it is plain, on the language of the statute, that the ejusdem generis principle is not to apply: the words “land of any other description” unambiguously mean what they say. Second, that, if ambiguous, clear statements made by the promoting minister in parliament, admissible under Pepper (Inspector of Taxes) v Hart [1993] AC 593, resolve the ambiguity in the appellants’ favour. Third, even assuming that the ejusdem generis principle applies, a village green clearly falls within the relevant genus. Let me examine each of these three submissions in turn.
[15] Mr Chapman submits that the language of section 34(1)(a) is unambiguous, first because the introductory words “any common land, moorland” themselves give rise to no genus — there being no real common feature between common land and moorland (at least until the latter came to be recognised as such in the 2000 Act) — and, second, because the insertion of the words “of any other description” (previously, “land of whatsoever description”) demonstrates parliament’s intention to exclude the ejusdem generis rule of construction: see the House of Lords decision in Larsen v Sylvester & Co [1908] AC 295. He might, too, have pointed to the sharply contrasting words at the end of section 34(4): “any other like emergency” (my emphasis).
[16] Mr Peter Harrison’s contrary submission rests essentially upon there being express reference in section 34(1)(a) to “common land” and “moorland”. Why, he asks forensically, refer to these specific types of land at all, unless it is to limit the scope of the general words. The difficulty with this argument, however, is that it would arise in every case where the application, or otherwise, of the ejusdem generis principle falls for consideration, and cannot therefore be decisive in bringing the principle into play.
[17] For my part, I accept Mr Chapman’s submission that section 34(1)(a) is unambiguous, although I recognise that the use of the word “whatsoever” in residuary words is not of itself necessarily sufficient in every case to disapply the principle: see Bennion on Statutory Interpretation (3rd ed), in particular at pp961 and 963. That conclusion notwithstanding, I think it right still to consider both the other arguments with regard to the application of section 34(1)(a) on the facts of this case, since, as Mr Harrison points out, the somewhat striking consequence of so construing the section is that prescriptive rights to vehicular access can never be acquired save over “land forming part of a road”, that is, over a public highway or over a road to which the public already has de facto access (as to which, see below). There will accordingly be those, say, using a neighbour’s private drive to access their own houses, who, contrary to their long-held belief, have never gained the prescriptive right of way that they thought they enjoyed.
[18] Let it then be assumed, contrary to my already stated conclusion, that section 34(1)(a) is ambiguous. A further difficult question then arises before one comes even to consider the effect of ministerial statements in parliament under the Pepper approach. It is Mr Harrison’s contention that any ambiguity must inevitably be resolved in the respondents’ favour because of the presumption in favour of the strict construction of penal statutes: see Cross on Statutory Interpretation (3rd ed) 1995, at p172, and Bennion, section 271, at p637:
It is a principle of legal policy that a person should not be penalised except under clear law.
(Wording that, as the recent supplement to the third edition of Bennion points out, I adopted in my own judgment in R v Bristol Magistrates’ Court, ex parte E [1998] 3 All ER 798, at p804.)
[19] For my part, I find this argument convincing. Neither counsel was able to find any case in which the Pepper approach had been invoked to resolve an ambiguity in a penal statute. That seems to me unsurprising. If, therefore, I had thought section 34(1)(a) unclear, I would have construed it as being subject to the ejusdem generis principle, difficult though I find it to identify any coherent genus within the clause.
[20] Assume, however, that Hansard may be consulted under the Pepper principle even in a criminal context. The question then arises as to whether the statements of the promoting minister clearly resolve the supposed ambiguity, and, if so, in which way, it being each side’s contention that these statements favour them. In this regard, I shall hope to be forgiven for not quoting extensively from the series of debates in the House of Lords during which the provision that ultimately became section 14 of the 1930 Act was discussed and, in certain respects, amended. There were many passages in the various statements made by the promoting minister, the Earl Russell, that attracted extensive submissions from counsel on both sides. I content myself with a reference to the minister’s explanation for amending the clause at the third reading to substitute the words ultimately enacted, “common land, |page:27| moorland or other land of whatsoever description”, for the original single word “land”:
The object of this Amendment is to call special attention to common land and moorland in connection with this clause.
It is clear to me, from consideration of the entire course of the debates, that the minister’s concern was not thereby to limit the provision to these sorts of land (to the inclusion of which in the ban many motorists had taken exception), but, rather, to emphasise that even they, perhaps the least likely to be included, were included. It would have been thought very odd to legislate for them but not for other sorts of land. As, indeed, the minister had said earlier in the debate (and this is a much abbreviated citation):
With regard to the clause about driving on commons, or driving elsewhere than on the highway… [and the “indignant complaints of people who say that they have been in the habit of going for motor drives in the country and enjoying picnics”]… I [do not] think it should be recognised as a right of the motorist simply because he owns a car to drive on other people’s property.
[21] It should be remembered that these were comparatively early days for popular motoring, and it may be doubted whether their lordships really contemplated that motorists be permitted to drive over other people’s land, least of all so as to acquire vehicular rights of way by prescription.
[22] Assume, however, contrary to my conclusions thus far, that the ejusdem generis principle is to apply; I would still find the first limb of section 34(1)(a) to be established here. As already stated, I find it difficult to identify any coherent genus within the clause. But even were one able to construct such a genus, it could not, to my mind, sensibly exclude a village green. As Mr Chapman pointed out, common land and village greens are almost invariably of the same legal origin, and, indeed, land sometimes comprises both together. Mr Harrison’s argument that the genus should be regarded as land that is particularly attractive to recreational driving, and that it excludes this village green, I find wholly unconvincing.
[23] I turn, therefore, to the question arising under the second limb of section 34(1)(a): whether the track across the Pinn is “land forming part of a road”, “road”, for this purpose, being defined by section 192 to mean “any highway and any other land to which the public has access”. Has the public access to the track? Assuming, as I do, that the inhabitants of Bonnington who are entitled to use the Pinn as their village green are sufficient to constitute “the public”, the answer to this question is clearly “yes”, in the sense that the public can, and probably do, walk over the track during their use of the green. Is that, however, sufficient for this purpose, or, as Mr Chapman submits, for the definition to be satisfied must the public have access to the track in the sense of using it as a road? In my judgment, Mr Chapman is right on this argument too. Perhaps the most helpful authorities on the point are Director of Public Prosecutions v Vivier [1991] RTR 205 and Director of Public Prosecutions v Coulman [1993] RTR 230. Although neither of them addresses the narrow question arising, to my mind they lend general support to the view that it is only if walkers use the road qua road that this use is regarded as relevant access: see, for example, the discussion of Harrison v Hill [1932] JC 13, at p210 of the court’s judgment in Vivier.
[24] There was some suggestion during the course of argument that unless the track were to be regarded as “land forming part of a road”, those driving along it would not be subject to the breathalyser law: the particular context within which Vivier and Coulman were decided. That, however, is not so: the breathalyser law applies to those driving “on a road or other public place”. As, indeed, was stated in Vivier, at p208, it was there “unclear, and immaterial, whether the defendant was driving upon one of the roads or at some other place within the caravan park”. Even assuming, therefore, that the track is not within the section 192 definition of “road”, it is undoubtedly a “public place”.
[25] It follows from all this that I, for my part, accept Mr Chapman’s submission that the relevant use of this track down the years has at all times contravened section 34(1)(a).
[26] Again, however, lest I am wrong in that conclusion, I turn next to consider Mr Chapman’s alternative contention that the use contravened section 34(1)(b). Two main questions arise also in this regard as to whether, first, the track crosses a footpath, and, second, whether, in that event, the provision is contravened. The judge decided both these issues in the respondents’ favour: the first on the facts and the second on the basis that, in this context:
“on” means “along” and is not concerned with crossing the footpath. … s34 is aimed at… ensuring that people do not leave a road in the ordinary sense and drive along a convenient-looking footpath or bridleway because it is a short cut or it may lead them to a nice place to have a picnic or something along those lines…
(A view that he thought was supported by reference to section 33 of the Act.)
[27] Mr Harrison, on the appeal, did not seek to uphold the judge’s conclusion on the second point: he accepted that the offence is committed irrespective of whether the vehicle is driven along, or merely across, a footpath. He vigorously relies, however, upon the judge’s factual conclusion that he could not be satisfied, on the balance of probabilities (the correct test to be applied), that the track does in fact cross a footpath. Mr Harrison points out that this judgment followed a five-day hearing, during which the judge not only heard from 12 witnesses (including, albeit on a different point, an expert document examiner) but also had a view. He urges us, in these circumstances, not to interfere with the judge’s findings of fact. It is, of course, a powerful submission. Mr Chapman, on the other hand, draws our attention to indisputable documentary evidence that, he submits, points conclusively to there having been a footpath along the entire northern length of the respondents’ garden for well over 100 years, a footpath that must inevitably therefore have crossed the track. This footpath is shown consistently, by a succession of Ordnance Survey maps and definitive footpath plans, to have led from the T-junction on the B2069 south-eastwards across the Pinn, immediately to the north of the school and along the north side of the respondents’ property, before turning southwards after passing the north-east corner of the Old School House’s garden.
[28] Reluctant though I am to overturn the judge’s factual finding here, I feel compelled to do so. In reality, the evidence on the point was all one way, and it is unfortunate that the judge allowed his undoubted and understandable sympathy for the respondents to cloud his view of it.
[29] Even, therefore, had I not concluded that the use of this track contravened section 34(1)(a), I would have felt driven to hold that it contravened section 34(1)(b).
[30] There is one further argument advanced by Mr Harrison that I should notice at this stage, an argument that, if sound, would preclude the appellants from relying upon contraventions of section 34(1) to prevent the acquisition of prescriptive vehicular rights of way. This argument focuses upon section 34(5), and contends that, were the appellants’ case on section 34(1) correct, that would indeed “affect the law of trespass to land” because it would enlarge the remedy enjoyed by the landowner by enabling him to avoid prescriptive rights that would otherwise have accrued. This seems to me an impossible argument. The law of prescription is not that of trespass; rather, it is a law under which one infers the notional historical grant of an easement from long use. The provision as to trespass in section 34(5) was to confirm, in the landowner’s favour, that, section 34(3) notwithstanding, the section did not grant motorists the right to park within 15 yards of a road, or deprive landowners of their private law rights in this regard. On this point, I add only that Mr Harrison’s argument as to the effect of section 34(5) is inconsistent with the Divisional Court decision in Robinson, which applied the principle established in Hanning (based upon section 193 of the Law of Property Act 1925) to uses in contravention of section 34.
[31] At this stage, I must briefly mention yet another alternative argument advanced by the appellants: their contention that even if the use over the relevant 20-year period did not contravene section 34 of the |page:28| 1988 Act (or, more accurately, its predecessor provisions), it in any event breached section 12 of the Inclosure Act 1859, which makes it an offence, inter alia, to injure a village green or interrupt the “use or enjoyment thereof as a place for exercise and recreation”. This is a particularly unattractive argument, since, if correct, the appellants and their family down the years would necessarily have committed this same offence by driving over the track. As it is, I reject it both because: (a) I see no sufficient reason to regard the existence and use of the track as injuring the green or interrupting its use or enjoyment by others (a point not apparently considered below); and (b) in any event, the judge was, to my mind, entitled to find on the facts that the prescriptive right had already been acquired before the relevant part of the Pinn became a village green: the track, as he found, bordering, rather than falling within, the eastern part of the Pinn that was registered as VG185 in 1972, and there being no sufficient evidence to show that the western part, including the track, was a village green prior to its registration as VG230 in 1994. As with so many of the myriad issues in this case, a full discussion of all these questions would require many more pages of judgment. I shall therefore hope to be forgiven for dealing with them in this somewhat summary form. I add only that Mr Chapman additionally, but unpersuasively, sought to contend that this use over the years also constituted a breach of section 29 of the Commons Act 1876.
[32] When these proceedings were brought, the conclusion expressed above with regard to section 34 would have defeated, apparently for all time, the respondents’ claim to a prescriptive right of way over the track. That, however, is no longer the case. By virtue of section 68 of the 2000 Act and the Vehicular Access Across Common and Other Land (England) Regulations 2002, which came into force on 3 July 2002, the respondents are now able to purchase from the appellants an easement identical to that which the judge found they had acquired for 0.25% of the current market value of the Old School House. Section 68 provides, so far as relevant:
(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way —
(a) was an offence under an enactment applying to the land crossed by the way, but
(b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.
(2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.
I have already sufficiently indicated the effect, on the facts of this case, of the 2002 Regulations.
[33] As the General Note to the Current Law copy of the 2000 Act states, section 68 was enacted in the aftermath of the Court of Appeal’s decision in Hanning — by which double-decker buses were enjoined from driving through a wooded common — when numerous houseowners became faced with claims from commons’ owners. It is no less apt, however, to cure unfairness suffered at the hands of other landowners.
[34] I come, finally, on this part of the case, to a question raised by Sedley LJ in the course of argument as to whether prescriptive rights can ever be acquired for a use of land that is in conflict with public rights enjoyed over the same land. Assume, for example, that the vehicular use of this track was inconsistent with the public’s rights to use the Pinn as a village green. The landowner could not lawfully grant such a right of way; no more, therefore, could such a right be acquired prescriptively by a presumed (lost modern) grant. Such an argument, of course, if sound, and established on the facts, would appear to defeat not only any present claim by the respondents to an easement over the track but also any future right to purchase an easement under the 2000 Act: the use of the way would not “otherwise have been sufficient to create… an easement giving a right of way for vehicles” within the meaning of section 68(1)(b). For my part, however, I rather doubt whether the argument is sound. It seems to me that it proves too much. Section 68 necessarily implies that, sometimes, a prescriptive right would otherwise be acquired despite the use being unlawful, yet, on this argument, the landowner could never properly have made an express grant of such an easement in the first place. In any event, the point was not taken in the court below, and the facts were accordingly not explored with this consideration in mind. I am wholly unprepared, in these circumstances, to conclude that the factual basis for such an argument has been made out. Indeed, as already pointed out in [31] above, the judge found the track to be within only that part of the Pinn that was registered as a village green in 1994, and would not, I think, have regarded its use, during the first 20 years, from 1956, as inconsistent with any public rights over that land before it became thus registered.
[35] I come now to the second ground of appeal: the appellants’ contention that even if the respondents already have, or (as I would hold) are now entitled to purchase, an easement over the track, that would be solely for the benefit of the original dominant tenement, School Cottage East, and not for the benefit of the larger tenement created in 1977, when that cottage was extended to include the two parish rooms. This is so, the argument runs, notwithstanding the judge’s conclusion that the enlargement of the house in 1977 brought with it no significant increase in the use made of the track, but merely made the property “somewhat more commodious”. It is Mr Chapman’s submission that the extent of use is not the issue; what is important is that the benefit was acquired only for the original dominant tenement and could not also be used thereafter in favour of the added property.
[36] Before turning to examine this argument, I would just point out that, quite apart from the 21 years’ use of the track established by the original dominant tenement from 1956 to 1977, the track was then used uninterruptedly in favour of the enlarged tenement for only two months short of a further 20 years — May 1977 to March 1997 (see [5] and [7] above) — for the first nine years, indeed, by the first appellant’s sister. It is difficult to conceive of a more unmeritorious claim to restrict the present use of a right of way or a less promising basis upon which to seek relief by way of injunction or even damages. Putting that aside, however, the issue is important for present purposes, since it will dictate whether the respondents now have the right to purchase the easement in favour only of the original tenement (of course at a lesser price) or in favour of the enlarged tenement, consisting of the Old School House.
[37] As already indicated, Mr Chapman’s core submission is that a right of way established for the benefit of Whiteacre cannot be used for the benefit of both Whiteacre and Blackacre, irrespective of whether such extension of the dominant tenement involves any increase in the overall use of the easement. (Whiteacre, of course, is here School Cottage East and its garden, Blackacre, the added parish rooms). This, he submits, is the effect of the governing authorities, most notably Harris v Flower (1904) 74 LJ Ch 127, Graham v Philcox [1984] QB 747, Peacock v Custins [2001] 1 EGLR 87 and Das v Linden Mews Ltd [2002] EWCA Civ 590*.
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* Editor’s note: Reported at [2002] 2 EGLR 76
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[38] Mr Harrison argues the contrary. His wider submission is that there is no absolute rule of the sort contended for by the appellants, and that the critical question is rather whether the use made of Blackacre is more than merely ancillary to that made of Whiteacre. His narrower submission is that any such rule prevents the use of Whiteacre only for direct access to Blackacre, and that there has been no breach of that rule here, given that the vehicles using the track are not, of course, driven through Whiteacre onto Blackacre, but remain parked at the bottom of Whiteacre’s garden.
[39] For present purposes, I think it unnecessary to discuss the judgments in the various authorities in any great detail. The following summary will suffice. In Harris, the owners of Whiteacre had acquired Blackacre and had built a factory partly on each site. The Court of Appeal held that the proposed use of the existing right of way for the |page:29| purposes of that part of the building that was erected on Blackacre exceeded the grant. Vaughan-Williams LJ concluded, at p132:
there must be many things to be done in respect of the buildings on [Blackacre] which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of [Whiteacre]… It is not a mere case of user of [Whiteacre] with some usual offices on [Blackacre] connected with the buildings on [Whiteacre].
[40] Romer LJ said, at p132:
The law really is not in dispute. If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.
[41] Graham is a difficult case and its full exegesis would occupy many pages. It is the respondents who seek to rely upon it, in particular for the Court of Appeal’s rejection of the servient owners’ “principal submission… that as the dominant tenement for the benefit of which the way is now claimed, namely the coach-house, is not the same as and is indeed greater than the dominant tenement for the benefit of which the way was originally granted, namely only the upper flat in the coach-house, therefore the plaintiffs cannot use that way now when the coach-house is now one dwelling and the original two flats which it comprised have been combined into one”: see May LJ’s judgment at pp755G-757C. Mr Chapman argues that, on the very different facts of that case, the decision was correct and explicable by reference to section 62(2) of the Law of Property Act 1925 (see May LJ’s judgment at p757E-G), a provision that has no application in the present case. For my part, I find Graham unhelpful in the present context, and note that it was not even referred to in either of the two subsequent cases to which I now come.
[42] Peacock concerned a claim by the dominant tenement owners to use a way granted for the limited purposes of 15 acres of agricultural land (Whiteacre) for the additional purpose of accessing and cultivating a further 10 acres (Blackacre). Schiemann LJ, giving the judgment of the Court of Appeal rejecting the claim, said, at p91B-E:
Considering the position as a matter of principle, we would consider that the defendants are entitled to the declaration that they seek. In our judgment, the authorities to which we have referred, and, in particular, Harris v Flower, also confirm that, where a court is being asked to declare whether the right to use a way comprises a right to use it to facilitate the cultivation of land other than the dominant tenement, the court is not concerned with any comparison between the amount of use made, or to be made, of the servient tenement and the amount of use made, or that might lawfully be made, within the scope of the grant. It is concerned with declaring the scope of the grant, having regard to its purposes and the identity of the dominant tenement. The authorities indicated that the burden on the owner of the servient tenement is not to be increased without his consent. But burden, in this context, does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden, and one must ask whether the grantor agreed to the grantee making use of the way for that purpose. Although in Harris v Flower Vaughan-Williams LJ mentioned the “heavy and frequent traffic” arising from the factory that “could not have arisen without the use of the white land as well as of the pink”, the view we take of the reasoning in all three judgments in that case, as appears by the passages set out above, is that all three judges were addressing not the question of additional user, but the different question of whether the white land was being used for purposes that were not merely adjuncts to the honest use of the pink land (the dominant tenement), or, rephrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement.
…
It is, in our judgment, clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This cannot sensibly be described as ancillary to the cultivation of [Whiteacre].
[43] Mr Chapman relies heavily upon that statement of the law. Mr Harrison submits that it does not support the absolute principle for which Mr Chapman contends, and that, on the facts of the present case, Blackacre is properly to be regarded as being used merely as an adjunct to the use of Whiteacre.
[44] Das concerned claims by the owners of two end-of-mews houses to use their right of way along the mews to access what had been garden land, in separate ownership, at the end of the mews to park their cars. In upholding the trial judge’s rejection of that claim, on the basis that the asserted use of the way was to access and serve a separate use on a tenement that was not part of the dominant tenement, Buxton LJ, in the Court of Appeal, described the reference to “ancillary” use in the final sentence of the passage quoted above from Schiemann LJ’s judgment in Peacock as merely a “very limited extension of the enjoyment of the access to the dominant tenement, rather than as we are asked to find in this case, extension of enjoyment of the dominant tenement”. He pointed out that the issue in Das concerned “a use of a way to access land that is not the dominant tenement without going through the dominant tenement at all”, an issue that was addressed neither in Harris nor directly in Peacock, “another ‘passing through’ case”, as he called it.
[45] Having regard to those authorities, I, for my part, would reject Mr Harrison’s narrower submission outlined in [38] above: the mere fact that this is a vehicular right of way and that the vehicles themselves do not pass through Whiteacre into Blackacre cannot, in my judgment, operate to distinguish this case from Harris and Peacock. I would, however, accept his wider submission, and, on the facts found here, hold that, in so far as the use of the way serves Blackacre, it can only sensibly be described as ancillary to its use for the purposes of Whiteacre. This ground of appeal accordingly fails.
[46] I would therefore allow the appeal only on the issue of unlawful use, and with the result that although the respondents presently have no easement over the track, they are now entitled to acquire it under section 68 of the 2000 Act.
Dissenting, Mantell LJ said:
[47] Simon Brown LJ has sufficiently set out the background to this appeal and referred to the relevant statutory provisions. He has concluded that the appeal should succeed on the first ground but not the second. I agree that the appeal should fail on the second ground for the reasons given by my lord. However, I take a different view as to the proper interpretation and application of section 34 of the 1988 Road Traffic Act, both in its present form and in its previous incarnations. The result is that I would dismiss the appeal altogether. Some explanation is required.
[48] My starting point is the definition of “road”. For the purposes of the Road Traffic Acts, which culminate in the Act of 1988, “road” is defined as:
any highway and any other road to which the public has access.
So, for the disputed right of way to fall outside section 34(1)(a), it must first be a “road”, and, second, it must be accessible by the public. The first question is entirely one of fact (see Lister v Romford Ice & Cold Storage Co Ltd [1956] 2 QB 180 per Birkett LJ, at p205) as, largely so, is the second: see Director of Public Prosecutions v Coulman [1993] RTR 230 per Mann LJ, at p233. The judge resolved the first, but not the second, question in favour of the respondents. At pp19 and 20, he said:
I accept that it was a road; it was clearly defined as such. I do not, however, accept that the public had access. It seems to me that the only people who had access were the owners of and visitors to First School Cottage East and then the Old School House and to Pinn Farm, and as I read the judgment of Mann LJ in DPP v Coulman (1993) Road Traffic Reports 230, that is really not sufficient. There has to be more than effectively a private driveway, even though, of course, the meter man, the postman, and others with business at the premises may go there, though in fact with this particular road, they would not go that way, it would probably be only those coming to stay, certainly those coming to visit for some period, who would use that track.
[49] There is no challenge to the judge’s first finding of fact, namely that this was, and is, a road. However, the respondents take issue with the second finding. Since public access is not confined to vehicular use, they ask, rhetorically: how can that be, when the public has access, and has always had access, to what is now the village green? Members of the public are as free to walk along the disputed right of way, or road as it has become by virtue of the judge’s finding, as the respondents and |page:30| their visitors. If the proposition, not accepted, be right, that access must be for the purpose of using the road qua road, then members of the public are free to use it in that way also. It matters not that they have no destination or particular purpose in mind beyond that, perhaps, of walking the dog without wishing to tread on the grass, and, accordingly, the judge should have held that this was a road to which the public had access.
[50] The appellants’ pithy response, taken from the skeleton argument, is as follows:
It is understood that the respondents argue in support of their respondents’ notice that the access way is a road to which the public have access because it runs across the Pinn and the Pinn is open land of which the public has had de facto access on foot. It would make a complete nonsense of the section if it were unlawful to drive on (a) open land or (b) a road which was de iure a public footpath or (c) a road which was not used by the public, but it were lawful to drive on a road which was de facto a public footpath. The scheme of the section is clearly to make it unlawful to drive without authority on any land except on what is de iure or de facto a public vehicular right of way.
[51] As stated, and unsurprisingly, the respondents accept the judge’s holding that this was a road. I do not understand it to be challenged on behalf of the appellants. In so far as a road is a definable way between two points over which vehicles can pass (see Oxford v Austin [1981] RTR 416), I have no doubt that the judge was right. Was he correct in holding that the public does not have access? I think not. Although I am conscious of arguments waiting in the wings as to whether the class, or classes, of people entitled to walk over the Pinn is, and are, so limited as not to constitute the public at large, it has been assumed, for the purposes of this appeal, that the Pinn itself is open to members of the public. It follows that members of the public 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. Harrison v Hill [1932] JC 13, discussed in Director of Public Prosecutions v Vivier (1991) RTR 205, was concerned with access to a private farm road, but, in so far as it was held that unopposed recreational use by the public was capable of amounting to access, it seems to me that the authority supports, rather than confounds, the respondents’ argument.
[52] It follows, in my view, that section 34(1)(a) does not bite, and if the use of this road is to be deemed unlawful it must be by virtue of section 34(1)(b) or not at all.
[53] But it would be craven of me to proceed without first attempting to grapple with the difficult question of construction, which has been central to the argument.
[54] I readily accept that the words “other land of whatsoever description” or even “land of any other description” offer an unpromising starting point for a submission that the section is ambiguous. But if they mean simply what they say, a number of curious consequences would seem to follow. First of all, there is that mentioned by Simon Brown LJ, namely that, unrestrictively construed, the section would have the effect of preventing prescriptive rights to vehicular access being acquired save over “land forming part of a road”, with the further unhappy consequences mentioned by my lord. Second, it will mean that those who access their own houses via a neighbour’s private drive will have been committing, and probably continue to commit, a criminal offence. Nor does it stop there; such a construction means that those of us who may have turned our cars around by backing into someone else’s driveway will have committed the offence, whereas anyone who parks in someone else’s driveway within 15 yards of the road will not. Third, it will mean that 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.
[55] Quite apart from this being a penal provision to be construed as leniently as possible, the absurdity produced suggests that this is one of those rare cases in which it is permissible to refer to Hansard. As was said by Lord Browne-Wilkinson, expressing the view of the majority of their lordships in Pepper (Inspector of Taxes) v Hart [1993] AC 593, at p634:
In my judgment subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity.
[56] On turning to Hansard, however, I find little by way of a clear statement of intention. There is the passage cited by Simon Brown LJ, which speaks in favour of an unlimited construction, but there are other passages that appear to me to have the opposite effect. At one point, Earl Russell, in moving an amendment to insert clause 13 (now section 34), said:
What is desired I understand is to prevent cars travelling here and there all over the downs and other similar places where there are no roads, and where those persons have no business to be, and also rushing up and down the seashore at seaside places. Those are desirable objects, and we think will attain what is aimed at, but if any of your lordships see a way of improving the clause before the next stage we shall be glad to consider any suggestions that may be made.
At another place, rather more ambiguously, Earl Russell said:
With regard to the clause about driving on commons, or rather driving elsewhere than on the highway I have put down an Amendment, which is intended to meet the point of the noble Earl opposite, and I hope that he will find that it does so.
But perhaps the matter appears most clearly from what was said during the second reading in the House of Commons. The then minister of transport, Mr Herbert Morrison, said of this clause:
There is another useful provision which has been introduced. It is a common grievance against the minority and not the general body of motorists, who, I say again, are a fairly decent lot of people and are really on the whole, as decent as we are, that some of them have been driving their cars a little wantonly and brutally over bridle ways, pathways, commons and moorlands not forming part of a road. We propose in clause fourteen (as it had become) that it shall be an offence to drive a motor vehicle without lawful authority onto to any such land but they may drive onto land within fifteen yards of a road for the purpose of parking. The Clause does not interfere in any way with the existing remedies for trespass whether the vehicle is within a fifteen yards margin along the road or not.
[57] Having regard, therefore, to the content of the parliamentary debates, I consider there is much to be said for the application of the ejusdem generis rule, and, had it been necessary to do so, I would have been inclined to uphold the judge in that regard. However, of itself, that would not have allowed the respondents to survive because, like Simon Brown LJ, I am firmly of the view that a village green falls within the same genus as common land and moorland.
[58] So I turn at last to section 34(1)(b).
[59] The first question that arises concerns the judge’s failure to be satisfied that the disputed right of way is crossed by a footpath. On this, I am entirely in agreement with Simon Brown LJ. I share his reluctance, but, for the reasons that Simon Brown LJ found compelling, I, too, would overturn the judge’s findings.
[60] That should be the end of it. However, in the course of argument, Mr Harrison, for the respondents, made a concession that he probably regrets, and which, in my view, was a mistake. He accepted that the offence was committed irrespective of whether the vehicle is driven along, or merely across, a footpath. The judge had concluded that:
“on” means “along” and is not concerned with crossing the footpath… s34 is aimed at… ensuring that people do not leave a road in the ordinary sense and drive along a convenient looking footpath or bridle way because it is a short cut or it may lead them to a nice place to have a picnic or something along those lines…
[61] From which I take it that the judge considered that the road referred to in section 34(1)(b) was to be taken to be the disputed right of way, and, giving the words their natural meaning, the road and footpath must be one and the same, and so it would follow that what was envisaged was someone driving along a road that was also a footpath. The contrary view expressed by Simon Brown LJ is that the |page:31| road in question is the footpath that crosses the disputed right of way, and consequently that by driving along the disputed right of way and over the footpath one drives on “a road being a footpath”.
[62] I accept, of course, that a public footpath is a highway and, therefore, falls within the statutory definition of “road”: see Lang v Hindhaugh [1986] RTR 271. It follows that anyone who drives along the disputed right of way at the intersection must cross over “a road being a footpath”. But possible though it is to read section 34(1)(b) in that way, it does not seem to me to give the words their natural meaning. Moreover, this is a penal provision and must be construed accordingly. So, after a deal of hesitation, I have come to the conclusion that the judge’s construction is to be preferred. It is scarcely necessary to say that it is only with the greatest diffidence and regret that I have differed from my lord, Simon Brown LJ.
[63] Of course, the respondents can prevail only if Mr Harrison is permitted to withdraw his concession. My provisional view is that the appellants would not suffer any injustice if he were allowed to do so. That done, and as already indicated, I would dismiss this appeal.
Agreeing with Simon Brown LJ, Sedley LJ said:
[64] I agree with the entirety of the judgment of Simon Brown LJ, subject only to the following remarks.
[65] While it is disappointing to be precluded from referring to the diverting chapter of social history contained in Hansard‘s record of the hereditary peerage of the United Kingdom debating, in 1930, how to keep the new and growing swarm of motor tourists off their land, it must be right that the principle that penal statutes are to be narrowly construed intervenes to resolve any ambiguity without resort to Hansard. But it seems to me conclusive, against construction ejusdem generis and in favour of an open category of which common land and moorland are merely examples, that moorland was not a term of legal art when parliament introduced it. It was simply a way of describing large tracts of unenclosed land that invited trespass. If there were an ambiguity, it would not follow that the resolution of it had to be accomplished by devising a genus where there was none. The right way might be simply to submit that the land specified in the charge is neither common land nor moorland nor land that can be demonstrated to be of the same kind, and, like the other members of the court, I see great difficulty in making such a submission about a village green.
[66] The parliamentary genesis of what is now section 34(1)(a) does, however, help to explain why the provision is apparently capable of having the curious effects pointed out by Mantell LJ in [54] above. Such effects are a well-known characteristic of interpolations made in bills to meet special interests. It has to be left to the good sense of prosecutors and — if necessary — courts not to use such provisions, or to let them be used for purposes for which they were plainly not intended.
[67] I agree with Simon Brown LJ that the concession was rightly made that to drive across a footpath is to drive upon it. It might be that a single such incursion does not matter, but repeated crossing of a footpath by motor vehicles is destructive of the protection that the path’s status is designed to ensure. Since you cannot construe section 34(1)(b) so as to permit the first of these without also permitting the second, the answer has to be that it permits neither.
[68] Lastly, I agree that — as Simon Brown LJ holds in [34] — the question of whether a prescriptive private right can ever be acquired over publicly dedicated land, such as a village green, does not fall to be answered on this appeal, not having been canvassed below. It may be that the factual basis for the argument is in any case not present here. But it seems to me an important question, and I would not want to see it marginalised without full consideration in a suitable case. For the present, I do not share Simon Brown LJ’s scepticism about its viability in law.
Appeal allowed in part.
