Hayling v Harper & Anor [2003] EWCA Civ 1147 (2 April 2003)

Hayling v Harper & Anor [2003] EWCA Civ 1147 (2 April 2003)

No prescriptive right or easement for vehicular use can be acquired over a public footpath where such use is prohibited by statute, unless 20 years' use as of right can be established prior to the statutory prohibition. On the evidence, the court inferred sufficient pre-1930 use to establish a right by lost modern grant.

Citation
[2003] EWCA Civ 1147
Parties
Claimant/respondent: Sarah Irene Hayling; Defendant/appellant: Stephen Paul Harper; Defendant/appellant: Theresa Harper
Jurisdiction
England and Wales
Judgment Date
02 April 2003
Procedural Posture
Civil Appeal / Appeal From County Court to Court of Appeal
Outcome
Appeal allowed; cross-appeal allowed.
Legal Topics
Right of Way, Prescription, Lost Modern Grant, Road Traffic Offences, Public Footpaths, Vehicular Access, Statutory Interpretation
Property Law Easements Civil Procedure Right of Way Prescription Lost Modern Grant Road Traffic Offences Public Footpaths +2 more

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Parties

Sarah Irene Hayling

Claimant/respondent

Stephen Paul Harper

Defendant/appellant

Theresa Harper

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From County Court to Court of Appeal

Legal Issues

  1. 1 Whether a right of way for vehicles could be acquired over a track designated as a public footpath where vehicular use was a criminal offence under the Road Traffic Act 1988 and its predecessors.
  2. 2 Whether sufficient evidence existed to establish a prescriptive right or lost modern grant for vehicular access prior to the relevant statutory prohibition.

Ratio Decidendi

No prescriptive right or easement for vehicular use can be acquired over a public footpath where such use is prohibited by statute, unless 20 years' use as of right can be established prior to the statutory prohibition. On the evidence, the court inferred sufficient pre-1930 use to establish a right by lost modern grant.

Court Disposition

Appeal allowed; cross-appeal allowed.

Orders

  • Declaration of right of way for Mrs Hayling by virtue of lost modern grant.
  • No order as to costs of appeal.