Public and Private Right of Ways and the Ownership of Roads

In her article, Emily Griffiths explores one of the longest running legal disputes currently before courts which concerns neighbouring property owners and their dispute over sections of tracks that operated between the Properties.

Case Name, Reference and Bailii Link

Summary

This case centres around whether the owners of a bungalow could obtain vehicular access over the neighbouring farm, as there had been no right of way reserved over the grounds of Woodside Bungalow. With the first solicitor’s letter in relation to this litigation being written in October 1960, the first proceedings failed to establish such rights and were concluded, after an appeal to the Court of Appeal in 1979, with the grant of an injunction against the then owner of the bungalow preventing him from using part of the track that led through the farm’s farmyard. The second set of proceedings brought were struck out as a result of abuse of process. The proceedings at the centre of this article were initially commenced in 2011 by the Claimant, who was seeking to prevent the current owner of the bungalow from using a different part of the track. 

Facts

The Claimant, Mr Christopher Price, is the freehold owner of Painswick Slad Farm, comprising a farmyard, which is let under summer grazing licences, and a chauffeuring business which from time-to-time involved parking clients’ vehicles in the farmyard. Painswick Slad Farm is at the bottom of the track. The Defendant, Mr Jonathan Nunn is the owner and occupier of a bungalow, Woodside Bungalow, which is at the top of the track. 

The track subject to this dispute is divided into three different sections, “the Pitch”, “the Lower Track” and “the Upper Track”. The Pitch and the Upper Track are recorded as public highway, with the status of a Footpath. It is well documented throughout this dispute that the Pitch is very steep. Mr Nunn has a registered caution against the Upper Tracks first registration. No highway rights are recorded over the Lower Track, and it is not disputed that Mr Price owns the Lower Track. 

Woodside Bungalow was built in the 1920’s in the grounds of an older dwelling namely Woodside House. Mr Nunn also owns a separate piece of land referred to as the Paddock. New access to the Paddock was created by Mr Nunn in 2020, allowing him to access Woodside Bungalow by vehicle by driving across the Paddock and joining the Upper Track at the point where the top of the Pitch, Lower Track, and the Upper Track meet. Mr Nunn needed to establish the right to do this, meaning he would no longer have any need to pass through the Farm in order to use the Lower track, as the outcome of the 1976 proceedings limited him and his successors in title to using the Lower Track for purposes connected with the Paddock. 

Mr Nunn also constructed hard standing within the Paddock close to the area where the three tracks meet for the purpose of parking cars as close to his home at Woodside Bungalow as possible. 

The Claimant, Mr Price, however, claims ownership to the whole or, in the alternative, one half of the Upper Track. He is therefore seeking a negative declaration that Mr Nunn has no vehicular right of way over the Upper-Track and is seeking injunctive relief prohibiting Mr Nunn from trespassing and using vehicles over the Upper Track. 

Issues

The pleaded cases in this case can be broadly distinguished into two categories, Right of Way and Ownership of the Upper Track. 

Right Of Way 

In reality, the issue in regard to the right of way dispute has been broadly narrowed, as Mr Nunn was not perusing his claim to a vehicular right of way by prescription. 

The only remaining claim was to establish whether, subject to any estoppel that may be argued, a private vehicular right to the Upper Track under s67 (5) and (7) of the Natural Environment and Rural Communities Act 2006 could be established, on the basis that, alongside it, either the Lower Track or the Pitch formed part of the former public highway for mechanically propelled vehicles (MPV’s).  Such a road was known to have existed in 1800 because it was specifically identified in a Turnpike Act, but only for the purposes of giving the Turnpike Trustees powers to discontinue it and to stop it up after the construction of a new road. 

Ownership of the Track 

In order for Mr Price to allege that Mr Nunn’s use of the Upper Track amounted to trespass, Mr Price would have to claim ownership of the Upper Track. Mr Price claims ownership of the whole of the Upper Track, or alternatively, ownership up to the centre line. The basis of this claim is various conveyances from which title to the farm has been derived. Mr Nunn denies this claim on the basis that at no time before 10 December 1919 (one of the conveyances relied upon), did the Upper Track form part of the estate of which the Farm was part of. 

The Court will need to establish as to whether Mr Price is estopped or barred from perusing a claim to ownership of the Upper Track as a result of previous proceedings, and the judgement previously handed down by HHJ Cridlan. If it is found Mr Price is not barred from bringing this claim, the Court are to ascertain whether ownership can be established for the Upper Track in its whole, or alternatively, for the Upper Track to its centre line. 

Decision

Judgement 

This case has a litigation history of over half a century, with His Honour Judge Russen KC having a vast history of previous cases to consider when reaching a Judgement. The ultimate conclusion was that the farm owned the road up to its centre line, applying the ad medium filum presumption that establishes that the owner of land abutting a highway or watercourse generally also owns up to the median line (‘ad medium filum’) of the road. 

His Honour Judge Russen KC acknowledged that relevant parts of the track had formed part of the road in 1800 and it could not be presumed that the highway had been ‘stopped up’ (the highway land ceases to be a highway, road or footpath i.e. the highway rights are extinguished in law), however, Mr Nunn was unable to establish that any private right of way had arisen under section 67 of the Natural Environment and Rural Communities Act 2006. 

Comments

Whilst this Judgement concludes some of the longest litigation recorded and spreads across some 400 paragraphs, the facts of this case boil down to whether or not a vehicular public or private right of way can be established, and details with the matter of establishing ownership of roads. 

This case underscores the necessity for clarity and precision in conveyancing, as well as the importance of adhering to the law. When the law is not executed properly, this case uniquely highlights the scale of issues that may arise.