Whilst it was conceded by the claimant that the driving of vehicles on a footpath amounted to an offence, there was enough evidence to conclude that she was entitled to a declaration of a right of way for vehicular use under the doctrine of lost modern grant since the access way had been used by vehicular traffic for more than twenty years prior to the coming into force of the provisions that created the offence.Defendants' appeal from the order of HH Judge Hutton at Gloucester County Court on 27 June 2002 making a declaration in favour of the claimant ('C') that she was entitled to a right of way for pedestrian and vehicular access over a field ('the field') owned by the defendants. C and her late husband lived at a cottage ('the cottage') in Gloucestershire from August 1946. The cottage was surrounded by fields owned by others. The principle means of access to the cottage was along a green lane ('the lane') which led off a highway. The lane extended to the field and a footpath ran from the lane along the inside perimeter of the field, to the cottage and beyond. The footpath was a public right of way as a footpath. Notwithstanding that, it had been used as vehicular access to the cottage. The defendants acquired the field in February 2000 and a dwelling that was situated within. The defendants did not object to the use of the access by vehicles requiring access to the cottage, but insisted that users did so at their own risk. When a car was damaged by horses in the field, C commenced these proceedings seeking a declaration that there existed a right of way for vehicular access which had been enjoyed for time immemorial, and that the right had been acquired under the doctrine of lost modern grant. The defendants contended that the access was a public footpath and that the driving of vehicles on the footpath amounted to an offence under s.34(1) Road Traffic Act 1988, and accordingly C could not have established a right acquired from an illegal use. The judge found that the facts of the case were distinguishable from those of Hanning v Top Deck Travel Group Ltd (1993) 1994 P&CR 14 since, the judge concluded, s.34(1) of the 1988 Act did not apply to occupational rights of way. He accordingly found that the defence under the 1988 Act was not made out and made the declaration sought. The defendants appealed on the grounds that the judge was wrong to distinguish Hanning (supra) and to characterise the right of access in this case as an occupational right of way. It was conceded by C that the driving of vehicles on the footpath did amount to an offence under the 1988 Act, but C cross appealed seeking to uphold the declaration on the grounds that she had established a lost modern grant since the evidence established that the access way had been used by vehicular traffic for more than twenty years before the coming into force of the provisions that created the offence contained in s.34(1) of the 1988 Act, namely s.14 Road Traffic Act 1930.HELD: (1) The judge expressed surprise that the activity of driving over a footpath in a field in the countryside was unlawful. That however was the law. The classification for agricultural purposes of the right of way in this case as an occupational right did not meet the clear position that it amounted to driving on a footpath. C was correct to make the concession that the judge's conclusion in that regard could not be supported, especially in light of Bakewell Management Ltd v Brandwood & Ors (2003) 09 EG 198. The judge overlooked the fact that it was a footpath and it remained unlawful to drive on it. To that extent the appeal was allowed. (2) There was no explicit finding by the judge of a use of the footpath by vehicular traffic before the 1930 Act, and it was plain that the judge did not address his mind to that question notwithstanding that it was raised by C from the outset of her claim. However, there was enough evidence to reach the conclusion that C was entitled to her declaration of a right of way for vehicular use under the doctrine of lost modern grant. There was clear evidence that the access had been used by occupiers of the cottage since at least 1881 and there was no evidence to show that it was not used by vehicles. (3) Accordingly, C's cross appeal was allowed. She was entitled to the declaration sought.Appeal and cross appeal allowed. Declaration accordingly.

[2003] EWCA Civ 1147

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