Respondents accessing their property via common land — Respondents claiming prescriptive right of way — Whether use in breach of section 34(1)(a) of Road Traffic Act 1988 — Whether prescriptive right can be founded on commission of criminal offence — Appeal allowed
The appellants owned part of a village green registered under the Commons Registration Act 1965. In 1997, the respondents purchased a house, which had been accessed for many years by way of a vehicle track across the green, in the knowledge that the appellants objected to the use of the alleged right of way. The respondents claimed a prescriptive right of way across the track on the basis that it had been used for a substantial period of time by previous owners of the property.
The appellants contended, inter alia, that such use was in breach of section 34(1)(a) of the Road Traffic Act 1988, which provided that it was a criminal offence to drive a motor vehicle on “common land, moorland or land of any other description”. The appellants claimed that: (i) the green was “land of any other description”; (ii) the respondents were therefore committing a criminal offence; and (iii) it was not possible to found a prescriptive right on a use that breached a criminal statute. At first instance, the judge held that the reference to “common land, moorland and land of any other description” had to be construed ejusdem generis. The assertion that the green was “land of any other description” failed under that rule, and so, therefore, did the section 34(1)(a) argument. The appellants appealed.
Held: The appeal was allowed.
The language of section 34(1)(a) was unambiguous. “Common land” and “moorland” did not mean the same thing and the insertion of the words “of any other description” demonstrated that parliament had intended to exclude the ejusdem generis rule of construction.
Prescriptive rights to vehicular access could only be acquired over a public highway or other road over which the public already had access. The respondents were not proscribed, however, from purchasing an easement from the appellants by virtue of section 68 of the Countryside and Rights of Way Act 2000 and the Vehicular Access Across Common and Other Land (England) Regulations 2002 in order to give them vehicular access to their land.
Vivian Chapman (instructed by John Collins & Partners, of Swansea) appeared for the appellants; Peter Harrison (instructed by Kingsfords, of Ashford) appeared for the respondents.
Vivienne Lane, barrister
