Respondents accessing their property via common land — Respondents claiming prescriptive right of way — Whether use in breach of section 34(1)(a) of Road Traffic Act 1988 — Whether prescriptive right can be founded on commission of criminal offence — Appeal allowed
The appellants owned part of a village green registered under the Commons Registration Act 1965. In 1997, the respondents purchased a house, which had been accessed for many years by way of a vehicle track across the green, in the knowledge that the appellants objected to the use of the alleged right of way. The respondents claimed a prescriptive right of way across the track on the basis that it had been used for a substantial period of time by previous owners of the property.
The appellants contended, inter alia, that such use was in breach of section 34(1)(a) of the Road Traffic Act 1988, which provided that it was a criminal offence to drive a motor vehicle on “common land, moorland or land of any other description”. The appellants claimed that: (i) the green was “land of any other description”; (ii) the respondents were therefore committing a criminal offence; and (iii) it was not possible to found a prescriptive right on a use that breached a criminal statute. At first instance, the judge held that the reference to “common land, moorland and land of any other description” had to be construed ejusdem generis. The assertion that the green was “land of any other description” failed under that rule, and so, therefore, did the section 34(1)(a) argument. The appellants appealed.
