Hayling v Harper & Anor

An easement for vehicular access cannot be acquired by prescription or lost modern grant through use criminally prohibited by statute. Driving a motor vehicle on a public footpath falls within section 34(1) of the Road Traffic Act 1988, unless there is lawful authority from the relevant landowner. Describing the route as an occupation way does not alter that conclusion. However, later unlawful use may be considered as corroborative evidence of 20 years' vehicular use as of right before section 14 of the Road Traffic Act 1930 came into force. On the evidence, longstanding access, census returns and the absence of contrary evidence supported an inference of sufficient pre-1930 use, establishing a right of way by lost modern grant.

Mrs Hayling sought a declaration that she and her successors in title had a vehicular and pedestrian right of way over a track crossing the Common in Gloucestershire. The County Court found that the route had been used by vehicles as of right since at least 1946 and granted the declaration.

The landowners appealed, arguing that the route was a public footpath and that vehicular use was criminal, preventing acquisition of an easement. Mrs Hayling cross-appealed, contending that a lost modern grant had accrued through 20 years' vehicular use before the statutory prohibition took effect. The central issues were the effect of statutory illegality and whether the evidence established the necessary pre-1930 use.

1. Appeal. Ward LJ allowed the appeal, with Carnwath LJ agreeing. The track was a public footpath and therefore a highway. Under section 192 of the Road Traffic Act 1988, it was a road to which the public had access. Driving a motor vehicle on it therefore fell within section 34(1), unless supported by lawful authority from the relevant landowner.
2. Statutory illegality. The Court of Appeal followed the binding principle in Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 that an easement cannot be acquired through conduct prohibited by a public statute. Bakewell Management Ltd v Brandwood & Others [2003] EWCA Civ 23 had rejected the contention that Hanning was decided per incuriam. The description of the route as an occupation way did not take it outside the statutory wording. Post-1930 vehicular use could not itself establish the claimed easement.
3. Lost modern grant. To establish a lost modern grant, Mrs Hayling had to show vehicular use as of right for 20 years immediately before section 14 of the Road Traffic Act 1930 came into force. Ward LJ accepted the guidance in Stevens v Secretary of State for the Environment (1998) 76 P & CR 503 that post-1930 evidence could be considered as corroboration of earlier use. The census returns, the age and occupation history of the cottages, the evidence of longstanding access and the absence of evidence pointing to a different earlier arrangement were sufficient to support the inference of pre-1930 use.
4. Disposition and costs. The cross-appeal was allowed. The Court of Appeal considered that remitting the matter was unnecessary because the evidence justified its own conclusion that the required period of use had been established. There was no order as to the costs of the appeal, and the claimant was awarded two-thirds of her costs below. The possible statutory remedy under the Countryside and Rights of Way Act 2000 and the Vehicular Access across Common and Other Land (England) Regulations 2002 was noted but was not determinative.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 1147, the appeal and cross-appeal were allowed. There was no order as to the costs of the appeal; the claimant received two-thirds of her costs below.
• Gloucester County Court: On 27 June 2002, His Honour Judge Hutton granted a declaration recognising a right of way for pedestrian and vehicular access over the Common.