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The Abolition of Prescriptive Rights?
The law has previously allowed people to have a right of access
over land that they don’t legally own provided that the rights of
way are used continuously and uninterruptedly for over 20
years.
However the case of Massey & Drew v Boulden decided in
November last year may have abolished this right. The case
concerned access across a village green to a residential house by
way of a vehicle track. The track had been used from 1977 to 1999
when the owners of the green objected to use of the track.
The owners of the green objected on the grounds that a
prescriptive right of way cannot be established in breach of a
criminal statute. This principle is well established and was not
contested by either side. However, the dispute centred on whether
the right of way breached s.34 of the Road Traffic Act 1988. The
section states that it is illegal to "drive a vehicle on to or upon
any common land, moor land or land of any other description, not
being land forming part of a road". The Court of Appeal held that
'land of any other description' meant any land whatsoever that was
not part of a road.
The consequences of this could be significant. The decision
casts a doubt over whether a prescriptive right can therefore ever
be created over land that is not a public highway and whether any
rights currently existing could be upheld.
The extent of this decision is unknown but commentators agree
that care should be taken when dealing with property that has
access by way of a prescriptive right. However the Countryside and
Rights of Way Act 2000 allows the user of a right of way to pay a
sum of money to the owner of the land for access. While the Act
sets out how much can be charged by the landowner this is far from
ideal but should now be considered in light of this case.