Unlawful use of land

Massey and another v Boulden and another (CA TLR 27 November)

The claimants claimed to have acquired a prescriptive vehicular right of way over a track across a village green owned by the defendants to a property owned by the claimants. Section 34 of the Road Traffic Act 1988 provides: ‘(1) … if without lawful authority a person drives a motor vehicle – (a) onto or upon any common land, moorland or land of any other description not being land forming part of a road or (b) on any … footpath … he is guilty of an offence.’ Accordingly, the claimants who, without permission, had driven over the track had been making unlawful use of the land and were guilty of an offence. Prescriptive rights to vehicular access could never be acquired save over a public highway or over a road to which the public already had de facto access.