DEFRA launched a guide in December 2002 to help explain how property owners can obtain the legal right to drive across common land to reach their properties.
The problem was created in 1925 and under subsequent Road Traffic Acts when it became a criminal offence to drive on common land without "lawful authority". This furthered a legitimate aim of protecting commons but it criminalised people who owned properties next to commons or to town or village greens and could not reach them except by driving over unadopted roads or tracks. These people could not argue that they had acquired access rights by long use as it is not possible to argue long use where that use is illegal.
A further practice which created problems in rural areas was the practice of Lords of the Manor registering roadside verges in the 1960's as "waste" of the Lordship. These registrations were included in the Register of Commons, and if they were not already part of the public highway their registration could sterilise development potential for land fronting these verges.
We experienced just such a problem when acting for a would-be developer purchasing a piece of land in a village and it took some four years to get to a position where our client's purchase could proceed.
The Countryside & Rights of Way Act 2000 provided a statutory framework for property owners to get an easement for access to their properties. Regulations introduced in 2002 have set out the conditions needing to be satisfied in order to get this right of access and the scale of "compensation" which the common land owner has to be paid in return for this right. The DEFRA guide is a guide to the interpretation of those Regulations.
Commons are a complex area of the Law, and the qualification conditions and application process for obtaining rights of way over them are likely only to be fully understood by property specialists. Landowners needing to legitimise access to their properties are strongly advised to seek legal advice at the beginning.
The case for legitimising access is very compelling - property will be worth more with legal rights of access, and without them you may be unable to sell or mortgage it.
