Massey & Anor v Boulden [2002] EWCA Civ 1634 (14 November 2002)

Massey & Anor v Boulden [2002] EWCA Civ 1634 (14 November 2002)

The use of the track by the respondents and their predecessors was in breach of s34(1)(a) and (b) of the Road Traffic Act 1988, precluding acquisition of a prescriptive vehicular right of way; however, under s68 of the Countryside and Rights of Way Act 2000 and the 2002 Regulations, the respondents are now entitled to purchase an easement. The right of way, if acquired, extends to the enlarged property as the use of the additional part is ancillary.

Citation
[2002] EWCA Civ 1634
Parties
Claimant/respondent: Massey & Drew; Defendant/appellant: Boulden
Jurisdiction
England and Wales
Judgment Date
14 November 2002
Procedural Posture
Appeal / Court of Appeal Judgment on Appeal From County Court
Outcome
Appeal allowed in part; respondents have no prescriptive easement but are entitled to purchase one under s68 of the 2000 Act; appeal on the second ground (scope of right of way) dismissed.
Legal Topics
Prescriptive Easements, Vehicular Rights of Way, Village Greens, Interpretation of Penal Statutes, Road Traffic Act 1988 S34, Commons Registration Act 1965, Acquisition of Easements by Prescription
Property Law Criminal Law Statutory Interpretation Prescriptive Easements Vehicular Rights of Way Village Greens Interpretation of Penal Statutes Road Traffic Act 1988 S34 +2 more

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Parties

Massey & Drew

Claimant/respondent

Boulden

Defendant/appellant

Procedural Posture

Appeal / Court of Appeal Judgment on Appeal From County Court

Legal Issues

  1. 1 Whether a prescriptive vehicular right of way can be acquired over a village green where use was in breach of criminal law (Road Traffic Act 1988 s34)
  2. 2 Whether the right of way, if acquired, extends to the enlarged dominant tenement after 1977

Ratio Decidendi

The use of the track by the respondents and their predecessors was in breach of s34(1)(a) and (b) of the Road Traffic Act 1988, precluding acquisition of a prescriptive vehicular right of way; however, under s68 of the Countryside and Rights of Way Act 2000 and the 2002 Regulations, the respondents are now entitled to purchase an easement. The right of way, if acquired, extends to the enlarged property as the use of the additional part is ancillary.

Court Disposition

Appeal allowed in part; respondents have no prescriptive easement but are entitled to purchase one under s68 of the 2000 Act; appeal on the second ground (scope of right of way) dismissed.

Orders

  • Declaration that no prescriptive easement exists over the track due to unlawful use.
  • Respondents entitled to purchase an easement under s68 of the Countryside and Rights of Way Act 2000 and the Vehicular Access Across Common and Other Land (England) Regulations 2002.