Vehicles on the Common

Laws govern the right to drive and park motorised vehicles on common land in England. A vehicular right of way over common land cannot be acquired by long usage, if that long usage was itself an offence. Central government has issued general Guidance on the subject.

Section 193 of the Law of Property Act 1925 makes it an offence for a person to drive "any carriage, cart, caravan, truck, or other vehicle" on common land without lawful authority. The land owner may grant the authority that is needed for such driving not to constitute an offence. Offenders can be prosecuted summarily and punished with a fine of £20.

Section 34 of the Road Traffic Act 1988 makes it unlawful for a person to drive "a mechanically propelled vehicle" on any common land without lawful authority. Normally, it is for the land owner to grant permission and he may wish to consider questions of amenity when deciding whether or not to grant the required authority (but he is not obliged to do so). Under the Act, it is not an offence to drive on common land in emergency situations. Nor is it an offence under the Act to drive over common land within fifteen yards of the road to reach a parking place. Offenders can be prosecuted summarily and punished with a fine up to level 3 (£1,000) on the standard scale.

The police have been given powers to stop unlawful driving on common land. Under section 59 of the Police Reform Act 2002 a "constable in uniform" is given the power "if the motor vehicle is moving, to order the person driving it to stop the vehicle" and "to seize and remove the motor vehicle" if it "is causing, or is likely to cause, alarm, distress or annoyance to members of the public".

A vehicular right of way is not a right to park. However, there is no general legislation prohibiting the parking of vehicles on common land. But it might be argued that a prohibition on driving amounts to a prohibition on parking. And in 1969, Mr Justice Foster ruled that car parking interfered with access rights:

"It is true that if you consider car parks without any cars parked upon them a person can exercise upon them but when the car parks have cars upon them, it seems to me inevitable that the space so occupied cannot be used for exercise or air..."

The same argument is used to restrain "works" which inhibit access and contravene section 38 of the Commons Act 2006.

Driving or parking a vehicle on common land without the land owner's permission could constitute trespass. The land owner can seek compensation. This does not necessarily mean that the owner has to get a court order. The civil law of England and Wales permits someone to detain the property of someone who owes him money (e.g. compensation for parking an unauthorised vehicle on his land) until that money is paid. Therefore, the land owner has the right to clamp the vehicle.

There might be local acts or byelaws that make driving or parking an offence. Byelaws can be enforced by local authority officers, the relevant transport operators, community support officers, as well as by police officers but it can be a time-consuming and resource intensive process. Offenders are currently prosecuted through the Magistrates Courts, with fines ranging from £200 to £2,500.

Easement for property owners

Driving restrictions might be eased for property owners whose sole means of vehicular access to their property is across common land. Easement was granted under section 68 of the Countryside and Rights of Way Act 2000 and, in 2002, the Secretary of State made Regulations setting out the procedures to be followed by a person wishing to obtain a legal right of vehicular access to their property over common land. Then, in 2004, the House of Lords ruled (see Bakewell Management Ltd v Brandwood and others) that, provided the owner of common land could lawfully have granted permission for vehicular access, there was no bar on a property owner relying on their actual use of the land for access (even without the owner’s express permission) to establish a prescriptive right to do so (under the Prescription Act 1832). This judgment made section 68 of the Countryside and Rights of Way Act 2000 redundant and it was repealed by section 51 of the Commons Act 2006.

The Land Registry can register prescriptive rights but it will require evidence of the actual use of the land for access over a period of at least 20 years. This is not always a straightforward process (see High Court Judgment). However, easements can be negotiated between a property owner and the land owner even if a prescriptive right cannot be claimed.

Cambridge regime

Cambridge has some ancient byelaws (dated 23rd October 1851 and 5th August 1880) which are still in force and regulate vehicles on their "Common Pasture". Byelaw 9 states that:

"Every person not lawfully authorised or permitted so to do who shall go upon, over, or across any such Common Pasture, with any cart or other carriage"

have committee an offence and are liable for a £1 fine. Byelaws 4 and 6 state that:

"Every person not lawfully authorised or permitted so to do, who shall ... place any caravan or carriage upon any such Common Pasture"

and

"Every person lawfully authorised or permitted to place any caravan or carriage upon any such Common Pasture for a limited period, who shall not, at or before the expiration of such period, remove from such Common Pasture such caravan or carriage"

have also committed an offence and are liable for a £2 fine.

Midsummer Common regime

Complications arise in the case of Midsummer Common where there are three properties whose sole means of vehicular access is across the Common. Two were council houses, one of which (Ferry House) remains tenanted whilst the other was sold under the "right to buy" scheme in 1983 and now functions as the Midsummer House Restaurant. The sale contained an express right of way in the following terms:

"The right…at all times and for all purposes to go pass and repass over and along any roads and on foot only along any footpaths… which now serve the property …"

The third property is a listed building that started life as a mill on the adjacent river Cam but now functions as the Fort St George Public House. A notice at the gate giving access to these properties blocks entry except for authorised vehicles. The Council has given permission for delivery vehicles to service the two commercial properties and residents to drive and park on their own land. This arrangement is frequently abused.

Please contact us if you have anything to say about the issues raised on this page.

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