COUNTRYSIDE AND RIGHTS OF WAY ACT 2000

 Section 68   Part 11 Vehicular access across common land etc.

(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way –
  (a) was an offence under an enactment applying to the land crossed by the way, but
  (b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.
(2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.
(3) An easement created in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.

This came into force on 4 July 2002 when regulations were published under Statutory Instrument 2002 no 1711, known as Vehicular access across commons and other land (England) Regulations 2002.

The regulations include the procedure to be followed by an owner of premises, to which section 68 of the CROW 2000 applies, when applying for the creation of an easement upon payment to the landowner for vehicular access to his or her premises.

Section 68 attempts to resolve some of the difficulties over acquiring by prescription vehicular rights of way across commons.

Section 68 only allows a right to cross the land. It does not give the right to construct a new accessway, or upgrade an existing one.

OSS Common Land Policy Statement response

National News New access for vehicles on commons

CROW Act

VEHICULAR ACCESS ON COMMONS

Vehicular access on commons: section 68 of the Countryside and Rights of Way Act 2000

It is four years since the High Court judgment on Bucklebury Common in the former Berkshire (Newbury District Council v Hartley Russell and Poynter, unreported, 7 March 1997) legitimised owners of common land charging owners of adjoining property to drive over the common.

As a result of the exorbitant charges made by some owners of commons, MPs and peers pressed the government to amend the Countryside and Rights of Way Bill to restrict this practice. At a late stage, the government agreed, and consulted us, at speed, on the content of its amendments.

We said that, while welcoming government’s recognition that vehicular access over common land is a major issue for owners, rightholders and residents, we were concerned about the implications of granting statutory rights of vehicular access as the government proposed.

We asked government to acknowledge that driving on common land is illegal under the Law of Property Act 1925, and Road Traffic Acts since 1930, and therefore that it is highly questionable whether lawful authority can be given - as confirmed in Hanning v Top Deck Travel Group Ltd [1994] 68 P&CR 14.

Permitting vehicular access, even in limited circumstances, will infringe the rights of commoners and other users of the land. Commons will be at risk from damage, especially if tracks are made up. It is also possible that, if the owner’s right to prevent vehicular access over a common or green is removed, he may have recourse to the Human Rights Act.

The Commons Act 1876 section 29 and the Inclosure Act 1857 section 12 make it illegal to damage or encroach on village greens, and this will conflict with statutory vehicular access. Also, defined access on greens will interfere with existing recreational rights.

The Law of Property Act 1925 section 193 gives the public a right of access for air and exercise to ‘urban’ commons, and allows owners to grant a deed of access to any land subject to rights of common. This section makes it an offence to drive on the land ‘a carriage, cart, caravan, truck or other vehicle’ - so there is potential for conflict and problems of enforcement.

Indeed these provisions seem contrary to the ethos of the Countryside and Rights of Way Act which aims to reduce vehicular rights on public paths.

Possibly as a result of our comments, the government restricted the scope of its amendment to the bill. Now, section 68 of the Countryside and Rights of Way Act provides that, where a person has used a vehicular access to property across land over which it is an offence to drive (which is far more than just commons and greens), regulations may provide for the creation of a statutory easement in certain circumstances.

The regulations, on which we expect to be consulted in March, will set out how to apply for an easement, the criteria to be met, the conditions to which it will be subject, the compensation to be paid by the property owner to the landowner and the means of resolving disputes.

We remain concerned and hope to influence the regulations.