Christopher Price v Jonathan Nunn

A claim under section 67(5) of the Natural Environment and Rural Communities Act 2006 requires an existing public right of way for mechanically propelled vehicles which falls within section 67(1), and the exercise of that right must have been reasonably necessary to obtain access to the claimant’s land. Reasonably necessary means more than convenient but less than absolutely essential. Section 67(7) makes actual exercise, or ability to exercise the right, immediately before commencement irrelevant, but longer-term non-use may bear on reasonable necessity. A claim is not necessarily barred by earlier litigation where the statutory right was unavailable and the later claim concerns land or issues not determined previously. Ownership of a track may be established up to its centre line under the ad medium filum presumption where the track is sufficiently wide and used as a private road.

The proceedings concerned a long-running dispute between neighbouring owners over the Pitch, Lower Track and Upper Track near Painswick. Mr Nunn counterclaimed for a private vehicular right of way under section 67(5) of the Natural Environment and Rural Communities Act 2006, relying on an alleged former public vehicular highway identified in an 1800 Turnpike Act. Mr Price claimed ownership of the Upper Track and sought relief against vehicular trespass.

The court considered whether earlier judgments concerning the Lower Track barred the statutory claim, the historical line and status of Route 3, whether the Upper Track was an existing public vehicular right of way in 2006, whether vehicular access was reasonably necessary, and whether Mr Price owned the Upper Track in whole or in part.

1. Issue estoppel and abuse of process. The earlier decisions did not bar the NERCA claim. The claim had not previously been decided on its merits, arose from an alleged public right of way, and concerned the Upper Track as well as the Lower Track. The special circumstances of the case prevented an estoppel from operating.
2. Construction of the Turnpike Act. The reference in section XVII to a “common Highway”, read in the statutory context and having regard to the Act’s toll-road purpose, indicated a public vehicular highway. The power to stop up the specified roads was discretionary, not an obligation, and had to be exercised by a positive decision of the trustees. The burden of proving stopping up rested on Mr Price. The presumption of regularity could operate only after an act of stopping up had been shown.
3. Route 3. The evidence established that the Upper Track formed part of Route 3, but did not establish on the balance of probabilities that Route 3 connected with the turnpike road through the Lower Track or the Pitch. The historical evidence favoured a connection through the Woodside Track. The necessary continuous public vehicular route was therefore not proved.
4. NERCA. The Upper Track could not be treated in isolation from the connecting limbs of Route 3. Since the necessary public vehicular connection to the turnpike road was not proved, the Upper Track was not shown to be an existing public right of way for mechanically propelled vehicles within section 67(1) of NERCA. The claim under section 67(5) consequently failed. Section 67(7) did not alter that conclusion.
5. Reasonably necessary access. Had the other statutory requirements been established, vehicular access to Woodside Bungalow would have been reasonably necessary. The test required more than convenience but less than absolute necessity. Access by vehicle was conducive to the reasonable enjoyment of the family home.
6. Ownership. Mr Price was not estopped by the earlier judgment or evidence in the 1976 Proceedings. He failed to prove ownership of the whole Upper Track, because the conveyances and plans did not include it clearly within the Farm. He did, however, establish ownership up to the centre line under the ad medium filum principle. The Upper Track was wider than a narrow footpath and was used for farm vehicles, so the presumption was applicable.
7. Disposition. Mr Price owned half of the Upper Track up to its middle line. Mr Nunn had no private vehicular right of way over it. The parties were directed to agree appropriate declaratory relief and identify any consequential matters for further determination.

First-instance decision. The judgment referred to earlier interlocutory decisions in the same proceedings, including [2012] EWHC 1251 (Ch), [2012] EWHC 1605 (Ch) and the Court of Appeal decision [2013] EWCA Civ 1002, but those decisions were not under appeal in this judgment.