This may answer your question:
Vehicle access on common land
Date posted: 06/08/04
In a number of villages there are private houses where vehicular access to the
property is by means of track across a common from the nearest public road.
Until about ten years ago it was generally assumed that these houses would have
obtained rights of access by prescription providing the vehicular rights have
been used for over twenty years.
However in 1993 the Court of Appeal decided in Hanning v Top Deck Travel Group
Ltd that owners of this type of property would not be able to claim
prescriptive rights of access because Section 193 (4) of the Law of Property
Act 1925 created an offence of driving a vehicle over a common without lawful
authority. Therefore a right of way could not be acquired by prescription
either under the Prescription Act 1832 or by way of lost modern grant as this
would rely upon conduct that was prohibited by statute.
The consequence of the decision in Hanning was that it encouraged owners of
commons to charge adjoining householders up to 30% of the value of their
properties in return for granting specific vehicular rights of way to the
houses. Speculators were even purchasing the freehold of common land in
England and Wales for the sole purpose of extracting money from local residents
who had assumed that they had an established right of vehicular access across
the common to their homes when they purchased the property. Even public
authorities have been charging for access under pressure from the Treasury.
The Government decided that they needed to act in these cases and therefore
Section 68 of the Countryside and Rights of Way Act 2000 was enacted in order
to limit the problem. This did not create a complete solution as an easement
created under these regulations has to be paid for but at lower rates than that
demanded by the owners of the commons. It was a compromise as the Government
recognised that some owners of commons, such as the National Trust and Parish
Councils, were entitled to seek to obtain a financial benefit from the law as
set out in Hanning and it was not its purpose to deprive them of it.
On 1 April this year the House of Lords ruled in the case of Bakewell
Management Limited v Brandwood and Others that residents living next to Newtown
Common near Newbury could use a track across the common for free. This
overrules the Court of Appeal decision in Hanning and means that the provisions
relating to access over commons in the Countryside and Rights Way Act 2000 are
redundant.
This recent decision will be of considerable benefit to owners of properties
adjoining commons and will mean that some owners who have paid for a right of
way may well be entitled to a refund by arguing that the payments were made
under a mistake of law. This may be difficult to achieve if the owner of the
common is a private individual or company which cannot be traced, but if the
owner of the common is a public landowner or a body such as the National Trust,
the potential claims may have a considerable impact on the finances of these
organisations.
There is an offence of driving other than on a road, which is most likely to be the offence.
My advice would be if there is any doubt, stick to the road and highway; if you know its a byway and have checked the Definitive Map, then there shouldn't be a problem.
