A landmark dispute relating to access rights over common land has today moved to the House of Lords.
Residents of homes near Newtown Common in Newbury, Berkshire, are opposing moves by Bakewell Management Ltd, the owner of the common, to charge them for the right to drive over the land in question to reach their homes.
Bakewell maintains that previous acts by residents of driving vehicles over the common had involved the commission of a criminal offence, and that the homeowners therefore had acquired no rights of access.
However, Paul Morgan QC, counsel for the appellants, said: “The principle questions are: ‘Are the appellants entitled to drive across this land to gain access to their houses, which they have done for decades? Or, is it, on examination of legal principle, a case that the appellants have no such right? Indeed, every morning they drive from their homes over the common, do they commit a criminal offence, which their predecessors also committed?’”
He claimed that, in all but four of the 26 properties, successive residents had, for more than 40 years, gained access to their homes via the common. In such circumstances, he argued, they had become entitled to claim a right of way to their properties even if the common owner had not authorised the access.
He maintained that the situation could be summed up by Ward LJ’s comment in the Court of Appeal hearing, namely that it was “an absolutely astounding matter for these residents to be told that they were committing a criminal offence, as had their predecessors for many decades past”.
In response to a question raised by Lord Bingham as to the level of the allegedly criminal aspect, Mr Morgan replied: “The type of offence we are concerned with here would not attract criminal prosecution. It would seem remarkable for the owner of property to be prosecuted for driving a few feet to reach his property.”
He added that, with respect to one particular track, an ordinary vehicle could be driven along it with only one-half technically on the common.
If the law lords back the Appeal Court decision, Bakewell may legitimately impose access charges on the homeowners. It is expected that judgment will be reserved and given in writing at a later date.
Bakewell Management Ltd v Brandwood and others House of Lords
References: EGi Legal 25/2/04