Hayling v Harper & Anor

©Crown Copyright

LORD JUSTICE WARD:

1. This is an appeal brought by Mr and Mrs Harper against the order made by His Honour Judge Hutton in the Gloucester County Court on 27th June 2002. The actual order is not in our papers but, assuming it is drawn in accordance with the judge's judgment, he ordered in favour of Mrs Hayling, the respondent, that there be a declaration that Mrs Hayling and her successors in title are entitled to a right of way for pedestrian and vehicular access over a field known as “the Common” in Staunton in Gloucestershire. The appeal is brought with the judge's permission.

2. The factual background to this appeal is shortly stated as follows. Mrs Hayling and her late husband lived at a cottage now known as Birchlas Cottage near the village of Staunton in rural Gloucestershire from the time they purchased that property in August 1946. Mr Hayling died in February 1994, but Mrs Haying continued to live in the cottage on her own. More recently, at the venerable age of 85, she has had to move into sheltered accommodation, which has been distressing for her.

3. The cottage is surrounded by fields owned by others. There have been various means of vehicular access to the cottage, but, relevantly for this appeal, the principal means has been along a green lane (that is to say, a country lane between two hedges) which leads off a public road, Slad Brook Lane. The green lane extends from Slad Brook Lane to the field called the Common. It is not, however, common land. A footpath runs from the end of the green lane along the north-western perimeter of the Common. The footpath then turns right across the north-eastern perimeter of the field, past the cottage owned by the appellants, to the respondent's home, and thence across the countryside. It is a public right of way shown by Gloucestershire County Council on the definitive map and statement as a footpath. Notwithstanding that dedication, it has been used by Mr and Mrs Hayling and many others for vehicular access to the cottages.

4. Mr and Mrs Harper acquired the cottage next door to Mrs Hayling in February 2000. That was also known as Birchlas Cottage, but more recently it has become known as Broken Cottage. Importantly, however, Mr and Mrs Harper also purchased the field known as the Common, and it is that field which has the track across it which is in dispute. The track across the Common was virtually impassable during the winter months and during wet weather at other times. An old water course apparently crossed the field and it was liable to flooding. Mr and Mrs Harper were aware of this difficulty and one of the first tasks they undertook on moving into that cottage was to lay about nine inches of hardcore along the track for ease of access. No one seems to know who owns the green lane. It has been, and probably still is, used by local farmers to gain access to other fields on the other side of the Common and even to the south of the Common. This green lane would also become quite rutted, and I understand that Mr and Mrs Harper have now laid hardcore along the green lane as well.

5. Although it matters not for the purpose of this appeal, it seems that an incident in October 2000 provoked the litigation. Mr and Mrs Harper had not objected to Mrs Hayling's visitors using the track or parking on this field, the Common, but they insisted that they did so at their own risk. In her witness statement Mrs Harper says:

“As owners of the Common we would permit vehicular access for [Mrs Hayling] and her visitors to Birchlas Cottage at all times.”

Apparently in October 2000 Mrs Hayling's son-in-law visited and, having parked his vehicle in the field, he discovered that it had been damaged by the Harper's horse rubbing against it. This led to some minor altercation.

6. In the result, Mrs Hayling launched proceedings in the local County Court seeking the declaration to establish her right of way, asserting that it had been openly enjoyed as of right from time immemorial; alternatively, that it was a right of way acquired by virtue of a lost grant; alternatively, by virtue of use for 20 or more years before the action; all of that use enjoyed as of right (that is to say, not used with force, by stealth or with permission).

7. The defendants, Mr and Mrs Harper, besides challenging the extent of the use of the track over the Common, relied on the fact that the track was in fact a public footpath, that driving upon it was a criminal offence and that in the circumstances no vehicular right of way could arise. It is this latter defence which brings the matter to this court in the appeal.

8. Judge Hutton heard evidence over two days from Mrs Hayling and her three supporting witnesses and from Mrs Harper and her three supporting witnesses. In his judgment he said this:

“Having heard that evidence, I found the relevant facts to be as follows:

1.From 1946 at the latest and, in view of the apparent age of Birchless Cottage, and records of people occupying it, probably for many years before that date, until the present time, the occupiers of that cottage, tradesmen delivering to it and other people visiting the occupants thereof, have used the disputed access in vehicles as well as on foot, namely via the green lane and the route round the edge of the Common.

2.This has been the principal means of access at all times of the year, although, during some periods, particularly in winter, that access would become temporarily impassable due to flooding.

3.The use of this route, by vehicles, as well as by pedestrians, has always been accepted, by the various owners of the Common before that field was acquired by the defendants, as a user by right and not permissive.

4.On occasions when this route has become impassable, due to weather conditions, various other access routes have been used but that was always by permission given by the relevant landowners as a temporary expedient.

5.In addition, for longer periods Mr Hayling, alone, used to drive his cars over a different route, namely over Bonds Field, because it was convenient for particular journeys, in the course of his work but the use of this route was by express permission, given and subsequently withdrawn, by the owner of Bonds field.”

9. The judge went on to hold:

“On my findings of fact, as set out above, there would be no doubt in my mind that the occupiers of Birchlas Cottage had acquired the claimed easement, were it not for a statutory provision, relied upon by the defendants, which has caused me such a doubt. This provision appears in a number of statutes, the latest being s.34(1) of the Road Traffic Act 1988, namely: `... if without lawful authority a person drives a motor vehicle ... (b) on any road being a footpath ... he is guilty of an offence.' As there is a public footpath which runs along the green lane and continues along the edge of the Common (and beyond), the defendants' case is therefore that the occupiers of Birchlas Cottage and of [Broken Cottage] have, for the last fifty-five years or so, been committing the crime of driving motors along this way and that it is not possible in law to acquire an easement by such criminal use.”

10. He perhaps characteristically described the section as “an incredibly inept piece of parliamentary draftsmanship”. He considered that:

“... the provision was only intended to make it an offence to drive motors on footpaths or bridleways, such as ridgeways or ways across common land, as opposed to private occupation ways to farm fields, as this one is. There must be hundreds, if not thousands, of such occupation ways all over the country, which also have footpaths following the same route. For example, it would be a complete nonsense, if farmers were said to be committing crimes each time they drove their motor tractors along such occupation ways, in order to gain access to their fields or buildings, unless they had got the authority to do so, if some or all of that way ran over land belonging to others, such as neighbouring landowners. Further, the provision that it is an offence, `unless lawful authority' is obtained, is presumably to protect walkers or riders from the presence of motors on footpaths and bridleways, so it might seem that `authority' should be obtained from the local rights of way authority, namely the County Council, rather than from the owner of the land over which the way runs. However the Court of Appeal has ruled that the `lawful authority' is to be obtained from the relevant landowners, so I would be bound by that authority, if it were relevant, in this case, which it is not.”

11. He came to this conclusion:

“On the facts of this case, therefore, I distinguish it from others that were quoted by counsel for the defendants, and, in particular, from Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14, which was concerned with a track across common land, as I consider that the provisions of s.34(1) of the Road Traffic Act and the provisions of the similar statutory provisions that preceded it, do not apply to this occupation way.

12. Mr and Mrs Harper now appeal against that decision, contending that the judge was wrong to distinguish the instant case from Hanning v Top Deck by characterising the way claimed as an occupation way.

13. In Hanning v Top Deck a right of way for vehicular use was claimed over Horsell Common. Section 193 of the Law of Property Act 1925 gave the public the right of access for air and exercise on common land, but subsection (4) made it an offence for any person without lawful authority to drive upon common land. It is an offence not dissimilar from the offence created by section 34 of the Road Traffic Act 1988, which recreates an offence first finding its place on the statute book in section 14 of the Road Traffic Act 1930. In Hanning v Top Deck it was held by Dillon LJ, at p.17, that:

“The reference in subsection (4) to `lawful authority' must mean the authority of the owner of the land, in relation to such land as the present case is concerned with.”

His conclusion was, after a review of the authorities, that:

“I take all these cases to recognise what has always been the rule of the law; that an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute.”

14. Very recently, on 30th January 2003, in Bakewell Management Ltd v Brandwood & Others [2003] EWCA Civ 23, this court rejected a submission that Hanning v Top Deck was decided per incuriam. Thus the principle expressed about it is binding on us, as it was on the judge below.

15. An offence under section 34 of the Road Traffic Act 1988 arises if without lawful authority a person drives a motor vehicle “on any road being a footpath” or bridleway. Section 192 of the Act defines “road” to mean “any highway and any other road to which the public has access”. “Highway” is not defined, but it has not been questioned in this appeal that the law is accurately stated in paragraph 1 of Volume 21 of Halsbury's Laws of England to this effect:

“A highway is a way over which there exists a public right of passage, that is to say a right for all Her Majesty's subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance. A highway may be dedicated subject to certain restrictions or obstructions; and it may be limited to a recognised class of traffic, that is it need not be a way for vehicles, as, if they are open to the public generally, footpaths, bridleways and driftways are highways.”

16. The track across the field, the Common, is accepted to be a public footpath. Mr Clargo, who appears for the respondent, submits that the information provided by the County Council would suggest that it only became recognised as a footpath in 1952, but, in view of the fact that the evidence from the Gloucestershire County Council was agreed, I have to bear in mind that the County Council drew attention to the fact that the 1923 Ordnance Survey basic map showed the definitive line of the footpath to run along the perimeter of the field as I have described. Mr Clargo has now conceded that driving down the track is an offence and, in light of my finding that this was a footpath from at least 1923, it was an offence ever since the 1930 Road Traffic Act came into operation.

17. The judge expressed his understandable surprise at the consequences of the operation of this principle on much activity in the countryside which will have been taken for granted for generations. I agree that it is a surprising state of affairs, and I said so in my judgment in Bakewell Management v Brandwood. It is, however, the law. To classify driving for agricultural purposes as driving on “an occupation way”, as the judge did, does not, in my judgment, meet the point that it is also driving on “a road being a footpath”, as those word have to be understood.

18. Mr Clargo has recognised his difficulties. He did so in his skeleton argument, where he did not seek to support the judgment but wished merely to advance his cross-appeal. I conclude that Mr Clargo was right to make the concessions he did. In my judgment the judge erred in classifying this way as an occupation way and in overlooking the admitted fact that it was, and remained, a footpath, with the result that driving on it was unlawful, it never having been asserted that Mrs Hayling had the owner's permission to drive along that footpath.

19. In my judgment the appeal has to be allowed.

20. I turn to the cross-appeal. Mr Clargo submits that, although it may be impossible to establish any prescriptive right for vehicular use of the track after the Road Traffic Act 1930 came into effect, nevertheless he is entitled to rely on the doctrine of a lost modern grant to claim a right of way which would have accrued by 1930. To succeed he has to establish vehicular use as of right for 20 years immediately preceding the coming into force of the 1930 Act.

21. 21.To support his submission Mr Clargo relies on a passage in the judgment of Sullivan J in Stevens v Secretary of State for the Environment (1998) 76 P & CR 503, at 515. There a track was shown on the definitive map as a Road Used as a Public Path (“a RUPP”). The county council decided to reclassify that track as a bridleway, and some objectors then alleged that it should be designated as a Byway Open to All Traffic (“a BOAT”). The track had been used contrary to the provisions of the Road Traffic Act and the question was whether evidence of post-1930 user could be led in the determination of the classification. Sullivan J gave this guidance at p.515:

“In conducting the review it would not be right to refuse to take into consideration any evidence of post 1930 use, because that would be to assume from the outset that the RUPP was a bridleway or footpath as defined in section 192. In such a case it would be right to look at the evidence of vehicular use, both pre and post 1930, because evidence of user in the latter period may give added credibility to evidence of user in the former. If, having looked at the evidence overall, including both evidence of user and the documentary evidence, the Inspector is satisfied that there was no dedication of the way for vehicular use at common law or by 20 years user prior to 1930, then and only then will it be possible to say that evidence of post 1930 use should be excluded because such use would have been unlawful.

22. I have no reason to doubt the correctness of that observation. When Mr Clargo comes to apply that to the facts of this case, he faces the difficulty that there is very little evidence to support his assertions. Mr Warner, for the appellants, would emphasise that part of Sullivan J's judgment that evidence of user in the latter period can give credibility “to evidence of user in the former”. Mr Warner submits that there is simply no evidence of any pre-1930 use.

23. The principal passage in the judgment which bears upon this is the first finding of fact the judge made, which, to repeat it, was this:

“From 1946 at the latest and, in view of the apparent age of Birchless Cottage [spelt as indicated], and records of people occupying it, probably for many years before that date, until the present time, the occupiers of that cottage, tradesmen delivering to it and other people visiting the occupants thereof, have used the disputed access in vehicles as well as on foot, namely via the green lane and the route round the edge of the Common.”

24. Mr Warner submits that there is simply no evidence to support that finding. Mr Clargo submits that there was sufficient to enable that to be found. Mr Clargo has to rely on various passages in the witness statements, to which he has drawn our attention. It is some evidence, but fairly thin evidence. Mrs Hayling herself asserted her belief that the access to the cottage had been used for a number of years prior to her acquisition in 1946. She knew absolutely nothing to indicate that any of the persons who lived in the cottage before then were ever limited in any way whatsoever in relation to what they might or might not do on the land. She expressed the view that for well over 50 years no one had complained about the use and she asserted that that supported her view. She commented that vehicular use must have been available in order to convey the building materials for the erection of the cottage. Her daughter was not able to give any more convincing evidence. The owners of the Common were called on her behalf. Mr French, who acquired the property in 1968, said in his witness statement that when he acquired the Common its owner at that time told him that both cottages enjoyed a right of way and told him not to obstruct it. He passed that information on to a Miss Patrick, who acquired the property from him. She, as it happens, was the daughter of the lady who lived in the Harper cottage.

25. So there was not a great deal of oral evidence about prior use, but there was some documentary evidence in the form of census returns going back to 1881. In 1881 the two cottages are shown, the spelling being the spelling the judge adopted in reciting his first finding of fact, i.e. “Birchless”. They were occupied by agricultural workers, as they were for the census return of 1891 and for the census return of 1901.

26. That is probably the sum total of that evidence. Mr Clargo submits that it is enough to justify the finding. Mr Warner submits that it is insufficient. He submits that there has to be, as Sullivan J observed, some evidence of previous use and that it is not permissible to draw an inference from illegal use from 1946 onwards.

27. In this case, in my judgment, the census returns do give some evidence from which to draw an inference that the occupiers of the landlocked property (or the road-blocked property) would have crossed the field. Three points are made by Mr Warner, the first being that the census returns are at least equivocal in that they do not necessarily lead to the inference that this field was used, still less that it was used for vehicles. He secondly observes that there was evidence before the judge that the late Mr Hayling used other routes across other fields to get to the main road. Thirdly, he makes the point, which is a powerful point, that the judge, who plainly was anxious to find for Mrs Hayling, need not have gone out of his way to distinguish Hanning v Top Deck if he had the easier option of finding a lost modern grant arising out of 20 years of use before 1930.

28. Mr Clargo, however, relies upon the judge's first finding of fact. The question of difficulty in this appeal is what to make of that first finding. On one view of it, a finding that there had been vehicular use probably for many years before 1946 is a finding to which the judge was entitled to come. In my judgment the judge did have some evidence from the census returns to justify an inference that there had been some use prior to 1946 and going back many years. His reference to records of people occupying it, and his spelling of Birchless Cottage, indicate to me that he was relying upon those returns. But there is no explicit finding of 20 years use before 1930, and it is plain that the judge simply did not address his mind to that question. It is clear from the pleadings, from the opening statement presented to the judge by Mr Clargo and from his skeleton argument to the court below that the lost modern grant was being asserted, although, in fairness to the judge, I suspect that the attempt to overcome Hanning v Top Deck resulted in that alternative case being lost in what Mr Clargo today (bearing in mind the news in our newspapers everyday) describes as having been “lost in the fog of war”.

29. The problem is made even more acute by the fact that the Countryside and Rights of Way Act 2000 enables the owner or occupier of any premises who has used a way as a means of access for vehicles to the premises to avail of the remedy given by that Act where use of the way was an offence under any enactment applying to the land crossed by the way and which was insufficient, therefore, to give rise to an easement for vehicular access. That Act was in force at the time that the case was before the judge and even, I think, at the time the claim was launched, but the regulations under the Act had not been promulgated. They were put into effect on 3rd July 2002, weeks after the judge's judgment, by the Vehicular Access across Common and Other Land (England) Regulations 2002. They provide for the acquisition of a right of way, which would have been blocked by Hanning v Top Deck, at a price fixed as a percentage of the value of the property. By regulation 11(2), “Where premises were in existence on (a) 31st December 1905 ..., the compensation sum shall be 0.25 per cent ... of the value of the premises”. We asked what the value of the premises was likely to be. There were no figures firmly put before the court, but it was thought that it was worth in the region of £100,000 or not much more. At 0.25 per cent, Mrs Hayling could acquire this right of way for £250.

30. That, however, is an aside. The question is whether this court should remit the matter back to the County Court for clarification of the finding that “probably for many years” extended so far back as 1910. It seems to me to be unlikely that Mrs Hayling will produce any more evidence than she has. If, as I have found, the census returns are a sufficient if tiny peg on which to hang a finding of fact and to enable an inference to be drawn that the use made by Mrs Hayling was likely to have been use made by her predecessors, as I think it is, then I would, for my part, conclude that the inevitable result of sending the matter back would be that the court would find that there had indeed been the necessary 20 years of vehicular use pre-1930 and that Mrs Hayling was entitled to her right of way by virtue of the operation of the doctrine of lost modern grant. It is not, I confess, an entirely satisfactory position to be in. But I conclude that there is enough for us to conclude for ourselves, building upon the judge's finding, that probably for many years this vehicular use had been enjoyed, and to find, as I would, that there had been user sufficient to establish the operation of a lost modern grant.

31. For those reasons, unsatisfactory as they are, I would allow the cross-appeal.

LORD JUSTICE CARNWATH:

32. I agree.

33. It has been conceded by Mr Clargo that this track (if that it be) was a “road being a bridleway or footway” within the meaning of section 14 of the Road Traffic Act 1930 and the subsequent re-enactments of that provision. It has also been conceded that this court is bound by the decision in Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14, to which my Lord has referred, to hold that over 50 years' unchallenged use since 1946 does not in itself establish a right by prescription or lost modern grant.

34. I have to confess that at first sight I found that second concession very surprising. Most of the cases on the subject refer to the decision of the Court of Appeal in Neaverson v Peterborough RDC [1902] 1 Ch 557. One finds in the judgment of the Master of the Rolls in that case, at p.563, a simple statement of principle:

“The question is whether that ought to be treated as evidence of a lost grant, which might have had a legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”

35. Speaking for myself, I would have said that this was clearly a case where section 14 of the 1930 Act gave a basis for presuming a legal origin, since it enabled lawful authority to be given by the owner of the land. That approach would avoid the highly improbable conclusion that the occupants of this house, for the last 50 years or more, have been committing a crime every time they took their car out onto the highway.

36. However, I am persuaded that Mr Clargo was right to make his concession, in the light of the subsequent decision of this court in Bakewell Management Ltd v Brandwood [2003] EWCA Civ 23. A similar argument seems to have been put by Mr Morgan QC in that case. In his judgment my Lord, Lord Justice Ward, shows clearly that the point was before the court in Hanning. At para 39 my Lord referred to the extract from the judgment of Kennedy LJ at p.22 in Hanning, where he referred to the fact that counsel:

“... focuses our attention on the appellants' express power to authorise use of the track. He contends that the `illegality' rule does not preclude the acquisition of an easement by prescription where the illegality lies in an activity to which the servient landowner can lawfully give his consent.”

So although the particular passage of the judgment in Neaverson does not seem to have been referred to, the point was clearly before the court and was decided against that proposition.

37. However, I agree with my Lord that the cross-appeal is entitled to succeed. I would not perhaps focus so much on the fact that the evidence of use only begins in 1946. It seems to me that one is entitled to look at the matter more broadly, as I suspect the judge did. The evidence here is of a house built in the late nineteenth century. We have no precise knowledge of what access there was to it during the first half of the last century. We do, however, have clear evidence from all those who have any knowledge of the property, and that includes those speaking in the interest of the dominant tenement and the servient tenement, that this access for vehicular purposes was used by the occupiers of this property for as long as they have had knowledge of it. So all those witnesses who speak on the subject speak with one voice for the whole of their memory. We have no evidence to suggest that anything different happened before 1946 and no evidence that there is any reason to infer that anything different might have happened. In those circumstances it seems to me that the judge was entitled to find that what was known to be the use since 1946 dated back long before that. Once one gets to that point, there seems to be no difference between saying “for a long time before 1946” and saying “back to at least 1910”.

38. For those reasons, I agree that the cross-appeal be allowed.

Order: appeal allowed and cross-appeal allowed; no order as to costs of appeal; claimant to have two-thirds of her costs below.