Massey v Boulden

JurisdictionEngland & Wales
JudgeLord Justice Simon Brown,Lord Justice Mantell,Lord Justice Sedley
Judgment Date14 November 2002
Neutral Citation[2002] EWCA Civ 1634
Docket NumberCase No: B2/2001/2462
CourtCourt of Appeal (Civil Division)
Date14 November 2002

[2002] EWCA Civ 1634

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CANTERBURY COUNTY COURT

(HHJ POULTON)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Simon Brown

(Vice-President of the Court of Appeal Civil Division)

Lord Justice Mantell and

Lord Justice Sedley

Case No: B2/2001/2462

Between
Massey & Drew
Claimant/Respondent
and
Boulden
Defendant/Appellant

Vivian Chapman Esq (instructed by Messrs John Collins & Partners) for the Appellants

Peter Harrison Esq (instructed by Messrs Kingsfords) for the Respondents

Lord Justice Simon Brown
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 the house. On 1 October 2001 Judge Poulton in the 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 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 first that the user was in breach of the criminal law and so could not found a prescriptive right; secondly, that the dominant tenement was in any event enlarged in 1977 so that, even assuming 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 which was itself extended northwards into the green in the 1890's. 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 1920's 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 which had by then arisen as to the right of way, and who 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 was 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 when 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 own too 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 paragraph 30 below) not in dispute before us—see particularly Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14 and Robinson v Adair The Times, 2 March 1995. Central to the appellants' case on illegality is s34 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;

(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 s192 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, s67, Sch 7, paragraph 5) 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 twenty years five different statutes were in force. There were, however, no material differences between their provisions and those of s34 (and s192) of the 1988 Act, save perhaps that the phrase "land of any other description" in s34(1)(a) read initially (when this provision was first enacted as s14(1) of the Road Traffic Act 1930) "or other land of whatsoever description".

12

The appellants' principal argument under s34 is that the track across The Pinn is (a) "land of any other description" which (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 else their use could not in any event have given rise to a prescriptive right) have therefore been guilty of an offence contrary to s34(1)(a). Both limbs of the argument raise difficult questions. The appellants succeeded below on the second, 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...

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