Justice Prevails

1st April 2004

T. Wyn Jones

I wrote an article earlier this year regarding an attempt by the freehold owners of common land (including The National Trust) to extract payment from house owners who had to cross the respective commons to gain access to their home – even though this had been their means of access since the property had been built – some going back to the late 1500's

The reasoning behind this legal attempt was based in The Law of Property Act 1925 The Road Traffic Act 1998 and more recently the Countryside & Rights of Way Act (CROW Act) and from which as one Judge put it “Public rights cannot be based on long use where the use is prohibited by statute”.

Needless to say on publication of the article numerous telephone calls were received from concerned house owners as in some cases the freeholders of the common land had attempted to claim as much as 4% of the property value as a one off payment to grant legal permission to cross the common.

However, it appears that justice has prevailed - at least in this case.

On 1st April the Law Lords held that rights to drive over common land can be acquired over 20 years of uninterrupted use – commonly known as prescriptive rights. This ruling was, as indicated, in contradiction to the previous judgements where it was found that public rights couldn't be based on long use where the use was prohibited by statute.

This judgement now throws into question part of the CROW Act, which was introduced to regulate the fees which landowners could charge for such an easement over common land.

So no doubt householders who live on a common will now sleep easier at night and not have the worry of facing substantial bills some of which could have been upwards of £15,000!

Wyn Jones’ original article on the attempt to charge one off payments for legal rights to dwellings located on common land is titled "Will your Country Road take you home" - February newsletter.

For further information on Property Matters Wyn can be contacted on Tel 07702 722905 or by e-mail on wyn@mccartneys.co.uk.