New Clause 1 — Vehicular Access

Part of Orders of the Day – in the House of Commons at 1:06 pm on 29 June 2006.

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Photo of Barry Gardiner Barry Gardiner Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Biodiversity, Landscape and Rural Affairs) 1:06, 29 June 2006

I am glad to have the opportunity to respond to the hon. Gentleman's questions, because it is important that these matters are clarified. The section and the regulations made under it were enacted because of the impact of the 1993 judgment known as Hanning v. Top Deck Travel. Before that case, it had been thought that home owners who had, for a sufficiently long period, driven across land such as common or green to gain access to their property had acquired a legal right to continue doing so by virtue of prescription or long use. The Hanning case held that that was not the position, on the ground that a legal right to continue doing something cannot be acquired by virtue of actions that involve committing an offence, and road traffic legislation makes it an offence to drive without lawful authority on land that is not a road. In the wake of that case, a significant number of householders around the country were asked to pay large sums of money to continue to drive to their own property over areas such as commons or greens.

Section 68 was brought about, late in the passage of the CROW Bill, to provide a means by which the payments necessary to secure easements for this purpose could be capped. I want to stress that. Section 68 was not enacted to prevent prescriptive claims of rights of way. It was enacted to cap any payments that, under previous case law, were required to establish an easement. The subsequent House of Lords ruling in the Bakewell Management case in 2004 overruled the Hanning judgment. It confirmed that in circumstances in which the owner of a common or green could, by granting permission to a householder, have made their use of the land for vehicular access lawful, there is no bar on the householder relying on their actual use, without such express permission, to establish the prescriptive right of access.

The reason for enacting section 68, therefore, has disappeared. Where long-standing vehicular use has taken place on land, it is usually the case that the landowner could have given permission for the use so as to prevent its constituting an offence. In such a case, the use would equally be sufficient to create a prescriptive right independently of section 68. If in a particular case, because of some other legislation, it would be an absolute offence to drive across a common or green or to do so in a particular way and the owner has no power under the legislation to grant permission for that use so as to disapply the offence, a right of vehicular use cannot be created at all. We believe that such cases are exceptional, but, where they arise, section 68 has never assisted a householder who has unlawfully been using the common or green for vehicular access and therefore its repeal will not make any difference to that position.

Even on village greens, where a residual role for section 68 was initially alleged following Bakewell, we have concluded that there is no circumstance in which the section can help a householder to regularise his use of a vehicular track to his house over common or other land. If the particular driving does not cause injury to the green and the owner of the land could lawfully give permission to drive over the land in the way that the householder has done in past, such use will have been capable of creating a prescriptive right under the Bakewell principle. We do not consider that any special provisions are needed for greens. Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 are both concerned with injury to the green. In our view, whether or not driving across a green in a particular way contravenes those provisions would be a matter of fact and of degree to be decided on the circumstances of individual cases. If driving does cause injury to the green, section 68 does not reduce the strict protection greens enjoy, which would prevent an easement from being granted at all. I hope that that clarifies the matter and satisfies the hon. Gentleman.