ROBERT BURNS OLIVE MAY BOLLANDS v MARGARET AND ERIC KIRBY REF/4/2003

UPPER TRIBUNAL
LANDS CHAMBER
REF/4/2003Case No REF/4/2003
Between
ROBERT BURNS OLIVE MAY BOLLANDSApplicantMARGARET AND ERIC KIRBYRespondent
Before
The PresidentTom Mitchell (instructed by Thorp Parker, solicitors of Stokesley) for ClaimantVenue Durham County Court, Halgarth Street, Durham, DH1 3RGDate 5 December 2003Hearing 9 July 2003Property: Track at Faceby, North Yorkshire leading between, Bank Lane and Perseverance BungalowCatchwords: EASEMENT – application for statutory easement for vehicular access to premises – Vehicular Access Across Common and Other Land (England) Regulation 2002 – use of bridleway for access by vehicles – evidence showing that prescriptive easement would have arisen if use not unlawful – held no statutory easement could be acquired where way is a bridleway
[1]This reference arises from an application made under the Vehicular Access Across Common and Other Land (England) Regulations 2002 for the creation of an easement across the land of the respondents giving vehicular access to the applicants’ premises, Perseverance Bungalow, Faceby, North Yorkshire. The Regulations were made under section 68 of the Countryside and Rights of Way Act 2000, which applies to a way which an owner or occupier of premises has used as a means of access for vehicles if that use was an offence under any enactment applying to the land crossed by the way but would otherwise have been sufficient to create an easement. Under the Regulations, an owner of any premises may, as respects a way to which section 68 applies, apply for the creation of an easement. Application for the easement is made by serving notice on the land owner; the land owner may serve a counter notice objecting to the application; and, where a counter-notice has been served, either party may make a reference to the Lands Tribunal of any matter in dispute (other than the value of the premises, on which the compensation sum is based: this matter must be referred to an arbitrator). The present case is the first reference to be made to the Tribunal under the Regulations.[2]The landowners, Mr and Mrs Kirby, the respondents in this case, served a counter notice objecting on two grounds to the application. The first ground stated that the applicant had not shown 20 years use without force or permission and therefore did not come within section 68. The second ground disputed the value of the premises. It is the first ground that gives rise to the reference. The Tribunal, as I have said, has no power to determine disputes as to value, even when it has to determine other matters in dispute. If, therefore, I were to decide the first ground in the applicants’ favour, holding that they are entitled to the easement claimed, the issue of value would have to be the subject of separate proceedings.[3]In a letter to the Registrar dated 27 June 2003 the applicants’ solicitors sought an adjournment of the hearing. The reason they advanced was that a cousin of the applicant Mr Burns, Alan Wallace Burns, who had worked in the highways department of the North Riding of Yorkshire and North Yorkshire County Councils from 1968 to 2000, and had detailed knowledge of highway issues and the council’s highway records, had prepared a statement in which he said that he suspected that evidence could be adduced, given more detailed research, to show that the way over which the easement was sought ought properly to be considered a byway open to all traffic. The matter had only come to his attention 3 days previously. An adjournment was sought to enable him to carry out the research, which, if it showed that the way was indeed a byway open to all traffic, would make it unnecessary to proceed with the application for an easement. I refused an adjournment on the papers. At the hearing Mr Tom Mitchell, who appeared for the applicants, renewed the application for an adjournment, but this was opposed by the objectors. It seemed to me that on balance it was appropriate to proceed with the hearing. Both parties had prepared the material they considered germane to the reference and were ready to proceed, while it could only be a matter of speculation whether Mr A W Burns’s researches would produce a result that made the application for an easement unnecessary. I therefore refused the adjournment sought. 3[4]At the hearing I heard evidence from two witnesses for the applicants and one for the respondent; there were statutory declarations from four other witnesses, and seven written statements from other individuals; and I was provided with documentary material. After the hearing I inspected the way and its surroundings. The land, the premises and their surroundings[5]Faceby is a village on the northern edge of the North York Moors National Park. It is about 11 miles south of the centre of Middlesbrough and about 7 miles from the urban edge. Stokesley, a small town, is about 4 miles to the north. The village consists principally of frontage residential development along the road that comes to the village from the A172 to the north-west and goes from it to Carlton in Cleveland to the north-east, and a road, Bank Lane, that runs south from the centre of the village. There is also a short cul-de-sac, Church Lane, running south-westwards to the parish church from Bank Lane. About 200 yards south of the junction of Bank Lane and Church Lane, a strip of land, bounded by hedges on both sides, runs north-westwards from Bank Lane to join Church Lane opposite the church. This strip, known locally as the green lane, OS 98, is 0.172 acre in area, about 160 yards long and varying in width from less than 10 feet to about 25 feet. There is a track along the strip and it is shown as a public bridleway on the definitive footpath map. I will refer to the strip as the green lane.[6]On its south-west side the green lane is bounded by the curtilages of Hill View, Perseverance Bungalow, Hillside and a field, OS 89. On its north-east side the green lane is bounded by two fields, OS 85 and OS 86, and the curtilage of Ridge Hill, which also fronts Church Lane and contains a house and the former Primitive Methodist Chapel, now converted into a garage. The hedges along the green lane are predominantly hawthorn. For about two-thirds of its length from Church Lane to the boundary between OS 85 and OS 86, the green lane is about 20 feet wide, although it varies somewhat in width, and along the frontage of Hillside a new hedge has been planted that narrows the strip at this point. For the one-third of its length along the frontage of Hill View and half the frontage of Perseverance Bungalow, and, on the opposite side, OS 85, the green lane is much narrower.[7]From Church Lane to the entrance to Hillside, a little less than half its length, the green lane is covered in dark grey tarmac fragments, which appear to have been put down relatively recently. Two posts have been erected in the green lane by Mr and Mrs Kirby opposite the boundary between Hillside and Perseverance Bungalow about five feet apart, and these prevent the passage of vehicles. There are gates at each end of the green lane which, at the time of my inspection were open. Along the narrow section of the green lane, from Bank Lane, vehicle tracks reveal what may be old metalling on the surface. Outside and between these tracks is grass. From the point where the green lane widens out to the turn-in to Perseverance Bungalow the vehicles have made the surface uneven and there is a substantial declivity at one point.[8]Perseverance Bungalow faces the track, and there is a derelict wooden shed abutting the strip on the boundary of Hillside. There is a gate and vehicular entrance next to this shed, and there is a pedestrian gate opposite the front of the bungalow. The vehicular entrance is 4 about 60 yards and the pedestrian entrance over 30 yards from Bank Lane. The only possible vehicular access is from Bank Lane because of the posts that have been erected. History[9]The following matters are not in substance in dispute and explain the background to the application. The curtilage of Perseverance Bungalow, together with the curtilages of what are now Hill View and Pheasant Rise, previously formed an enclosure known as Fenneys Garth that was purchased by the applicants’ father Charles William Burns under a conveyance dated 24 May 1924. The area was 1.128 acre. The land was described as being bounded by the public highway on the east. There was access to it from Bank Lane. Charles Burns lived in Middlesbrough, and during the depression and the years that followed it, when he was unemployed, he built, facing the green lane frontage and about 30 feet back from it a pair of semi-detached bungalows. According to Mr Burns he travelled out to the site on his motorcycle and sidecar, taking materials with him. Construction evidently took a number of years, but, certainly by 1939, Perseverance Bungalow was completed and Charles Burns and his family moved there for security in November after the start of the war. The southerly of the two bungalows had been occupied by Charles Burns’s brother Matthew since 1937 or earlier, and this, together with half the land, was transferred to Matthew under a conveyance dated 1 January 1942. Also conveyed was the right to use a sewer connecting to a cesspool on the land retained. It appears that no access was reserved to Perseverance Bungalow across the land that was transferred, and there is no evidence that any such access was used. In about 1988 the southerly semi-detached bungalow was demolished and a detached house, Hill View was erected in roughly the same location; and the rear part of the site was sold off and the house known as Pheasant Rise was built.[10]Shortly after Mr Burns’s family had moved into Perseverance Bungalow, Mr Burns’s mother died. He continued to live there with his father until 1961, when he moved out. His father died in 1968 and the bungalow then passed to Mr Burns, his sister Annie Burns and his half-sister Olive May Bollands. Annie and Olive then lived there until Annie died on 1 November 1993. The ownership passed to Mr Burns and Olive, and Olive continued to live in the bungalow until she moved out in September 2001. From time to time after 1968, in circumstances that I will consider later, there appear to have been disagreements between the Burnses and the owners of the green lane about vehicular access to the bungalow. Following action taken by Faceby Parish Council in 1953 the green lane has been shown as a bridleway on the definitive footpath map. In about 1993 Mr Burns replaced an old white gate on the northern end of the property, which had provided vehicular access and which had become overgrown, with a new gate. From about March 2002 and he began to drive his car along the green lane from Bank Lane, causing muddy ruts to develop. It was in consequence of this that Mr and Mrs Kirby objected, and this led to the present application being made when the 2002 Regulations came into force. Section 68[11]In Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 the Court of Appeal held that vehicular use of a track across a common from 1965 onwards could not give rise to a prescriptive easement because the use was unlawful under section 193 of the Law of Property 5 Act 1925. In the light of this decision some owners of common land sought to extract payments from the owners of houses who had for many years enjoyed, as the only means of access to their property, the vehicular use of tracks across the common. It was to deal with this problem that section 68 was included in the Countryside and Rights of Way Act 2000. Subsections (1), (2) and (3) provide:
“ 68 – (1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way – (a) was an offence under an enactment applying to the land crossed by the way, but (b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles. (2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way. (3) An easement created in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.”
Subsection (4), to which I will refer later, sets out what the regulations may in particular provide.[12]In Hanning it was section 193 of the Law of Property Act 1925 that made the use of the way unlawful. That section applies to common land. It confers public rights of access to such land; but subsection (4) makes it a summary offence for a person without lawful authority to draw or drive on such land any carriage, cart, caravan, truck or other vehicle. There is another provision that makes it a criminal offence to drive a motor vehicle without lawful authority along a way that is not a public vehicular right of way. This is section 34 of the Road Traffic Act 1988, a provision that first appeared as section 14 of the Road Traffic Act 1930 and later in the Road traffic Acts 1960 and 1972. The precise terms have changed in certain respects over the years (and in its present form it is the product of section 67 of and paragraph 5 of Schedule 7 to the 2000 Act) but not in any respect that requires consideration for present purposes. Subsections (1) and (2) of section 34 provide:
“ 34 – (1) Subject to the provisions of this section, if without lawful authority a person drives a mechanically propelled vehicle – (a) on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or (b) on any road being a footpath, bridleway or restricted byway, he is guilty of an offence. 6 (2) For the purposes of subsection (1)(b) above, a way shown in a definitive map and statement as a footpath, bridleway or restricted byway is, without prejudice to section 56(1) of the Wildlife and Countryside Act 1981, to be taken to be a way of the kind shown, unless (subject to section 34A of this Act) the contrary is proved.”
[13]In the present case driving a vehicle along the track would constitute an offence under section 34(1)(b) since the track is a bridleway. The claimants’ case is that, although their use of the way was an offence under this provision, it would otherwise have been sufficient to give rise to a prescriptive easement, and thus that they fall within section 68(1). The respondents draw my attention to an extract from a document published by the Department for Environment Food and Rural Affairs, which apparently records the result of DEFRA’s consultation on the draft Regulations. The extract, on which they rely, is this:
“ 12. Concern was expressed that applications will be received in respect of accesses over footpaths and bridleways not on common land, on the grounds that such land meets the criteria in regulation 4(1)(a). Section 68 states that it must be an offence to drive on the land crossed by the way. This would exclude an easement arising on a footpath or bridleway crossing land on which it is not an offence to drive.”
[14]I have great difficulty in understanding the last sentence. Before I consider it (and the proper construction of section 68(1)), however, I should note the decision of the Court of Appeal in Massey v Boulden [2003] 1 WLR 1792. That case concerned a claim to a prescriptive easement to the claimants’ house, The Old School House, over a track crossing a village green. The principal question that arose was whether a village green fell within the words “ land of any other description ” so that use of the track across it was an offence under section 34(1)(a). The claimants contended that “ land of any other description ” had to be construed ejusdem generis with “ common land ” and “ moorland ” and that, so construed, it did not include a village green. The owner of the village green argued that the words unambiguously meant what they said, so that the ejusdem generis principle did not apply. Simon Brown LJ, with whom Sedley LJ agreed, accepted this argument (see paras 17, 64 and 65). (The court also held that, even if the words were to be construed ejusdem generis, any genus would include a village green.) Thus the prohibition in section 34(1)(a) is against driving a motor vehicle on any land other than a road.[15]There is clearly a significant argument that when section 68(1)(a) refers to “an offence under an enactment applying to the land crossed by the way” it includes an offence under section 34(1)(a) (which relates to the driving of a motor vehicle on any land other than a road) and excludes an offence under section 34(1)(b) (which relates to driving on any road being a footpath, bridleway or restricted byway). There is, in the wording of section 68, a clear distinction between the land crossed by the way and the way itself. There appears to be a similar distinction in section 34 between driving on any land and driving on any road, so that when one finds in section 68 (which immediately follows the section that inserts section 34 in its current form in the 1988 Act) the reference to land crossed by the way but not to road, the conclusion could well be that section 68(1) applies only to an offence under section 34(1)(a). Mr Mitchell for the applicants said that he acknowledged that this point was a powerful one but, while he did not accept it, he advanced no argument as to why it might not be right. 7[16]The difficulty that I see with the DEFRA statement on which the respondents rely is this. It says that section 68 would exclude an easement arising on a footpath or bridleway crossing land on which it is not an offence to drive, and thus implies that an easement could arise under the section on a footpath or bridleway crossing land on which it is an offence to drive. A way which the owner of premises has used for vehicular access to his premises, and which would arise for consideration under section 68, would fall into one of the following four categories:(i) A way, not being a road, crossing common land. The use here would be an offence under section 193 of the 1925 Act and section 34(1)(a) of the 1988 Act.(ii) A way, not being a road, crossing land that is not common land. The use here would be an offence under section 34(1)(a) only.(iii) A way that is a footpath or bridleway and crosses common land. The use here would be an offence under section 193 and under section 34(1)(b).(iv) A way that is a footpath or bridleway and crosses land that is not common land. The use here would be an offence under section 34(1)(b) only.[17]If section 68(1)(a) is to be construed so as not to apply to offences relating to the use of a road, it would apply to category(i) (offence under section 193 and section 34(1)(a)), category(ii) (offence under section 34(1)(a)) and category(iii) (offence under section 193). It would not apply to category (iv). In order for section 68(1) to apply to the way in question, however, under section 68(1)(b) the use must otherwise (ie were it not for the fact that it was an offence within (a)) have been sufficient to create an easement. Categories (i) and (ii) satisfy this further test, but (iii) would not do so because the use was an offence under section 34(1)(b) and so could not have given rise to a prescriptive easement. Thus it does not seem to me that section 68 could ever apply to a way that was a footpath or a bridleway, whether or not that footpath or bridleway was across common land.[18]The question remains, however, whether it is right to construe section 68(1)(a) so as to exclude a way the use of which was an offence under section 34(1)(b). It is to be noted that in two recent cases the Court of Appeal has expressly assumed that an easement could be acquired under section 68 where the way is a footpath or bridleway. In Massey v Boulden the way in dispute crossed a footpath, and the court held that use of the way where it crossed the footpath constituted an offence under section 34(1)(b) (see paras 26 to 29 in the judgment of Simon Brown LJ). The use of the way was thus an offence under both limbs of section 34(1). At para 32 the lord justice went on to say: “ 32. When these proceedings were brought, the conclusion expressed above with regard to section 34 would have defeated, apparently for all time, the claimants’ claim to a prescriptive right of way over the track. That, however, is no longer the case. By virtue of section 68 of the 2000 Act and the Vehicular Access Across Common and Other Land (England) Regulations 2002 (SI 2002/1711), which came into force on 4 July 2002, the claimants are now able to purchase from the defendants an easement identical to that which the judge found they had acquired for 0.25% of the current market value of The Old School House.” 8[19]In Hayling v Harper [2003] EWCA Civ 1147 (2 April 2003) the claimant claimed a prescriptive vehicular easement over a footpath to her cottage. The Court of Appeal concluded on the facts that such an easement had been acquired before 1930 (ie before the statutory forebear of section 34 made it an offence to drive along the footpath). In the course of his judgment Ward LJ, with whom Carnwath LJ agreed, said this:
“ 29. The problem is made even more acute by the fact that the Countryside and Rights of Way Act 2000 enables the owner or occupier of any premises who has used a way as a means of access for vehicles to the premises to avail of the remedy given by that Act where use of the way was an offence under any enactment applying to the land crossed by the way and which was insufficient, therefore, to give rise to an easement for vehicular access. That Act was in force at the time that the case was before the judge and even, I think, at the time the claim was launched, but the regulations under the Act had not been promulgated. They were put into effect on 3rd July 2002, weeks after the judge's judgment, by the Vehicular Access across Common and Other Land (England) Regulations 2002. They provide for the acquisition of a right of way, which would have been blocked by Hanning v Top Deck, at a price fixed as a percentage of the value of the property. By regulation 11(2), ‘Where premises were in existence on (a) 31st December 1905 ..., the compensation sum shall be 0.25 per cent ... of the value of the premises’. We asked what the value of the premises was likely to be. There were no figures firmly put before the court, but it was thought that it was worth in the region of £100,000 or not much more. At 0.25 per cent, Mrs Hayling could acquire this right of way for £250. That, however, is an aside…”
[20]Clearly, in both cases the question whether an easement could be obtained under section 68 did not arise for decision, and the expression of view that it could be obtained was made apparently without consideration of the argument that I have set out above. It seems to me that the nearest one can get to a construction of section 68 that would lead to this result is by treating “land” in section 68(1)(a) as including “road”. Section 34(1)(a) makes reference to land “not being land forming part of a road”. The part referred to is, it would seem, part of the length of the road, so that it is in terms treating the road itself as land. But even if one seeks to read “land” in section 68(1)(a) as including “road”, there is the difficulty that the provision refers to “the land crossed by the way”. Where the way is along a road, the normal use of language would not permit it to be said that the road was crossed by the way. Thus to reach the result that an easement could be acquired under section 68 where the way is a footpath or bridleway would require a construction that overrode the actual wording of the provision. If there were a clearly discernible purpose in the legislation that section 68 should apply as much where the way lies along a footpath or bridleway as where it does not, there could be a case for loosing the bonds that are tied by the wording of the provision. However, I cannot see that there is such a clearly discernible purpose. Section 68 is the product of a policy decision that provision should be made for the creation of statutory easements, and it is not necessarily the case that the same policy considerations would apply both in the case of a way along a footpath or bridleway and in the case of a way crossing land that was not a footpath or bridleway. In my judgment, therefore, an easement cannot be acquired under section 68 where the way is along a footpath or bridleway. 9 The Regulations[21]Subsection (4) of section 68 provides:
“ (4) The regulations may in particular – (a) require that, where an application is made after the relevant use of the way has ceased, it is to be made within a specified time, (b) specify grounds on which objections may be made and the procedure to apply to the making of objections, (c) require any matter to be referred to and determined by the Lands Tribunal, and make provision as to procedure and costs, (d) make provision as to the payment of any amount by the owner of the premises concerned to any person or into court and as to the time when any payment is to be made, (e) provide for the determination of any such amount, (f) make provision as to the date on which any easement is created, (g) specify any limitation to which the easement is subject, (h) provide for the easement to include any specified right incidental to the right of way, (i) make different provision for different circumstances.”
[22]The Vehicular Access Across Common and Other Land (England) Regulations 2002 are the regulations provided for by section 68. Regulation 3 provides the entitlement for an owner of premises to apply for the creation of an easement in relation to a way to which section 68 applies. Under regulation 4 the prescribed date is 5 May 1993, the date of the Court of Appeal judgment in Hamming. There the use of the way must have been such as would, in the absence of its illegality, have given rise to an easement existing on that date or coming into existence after then and in either case continuing in existence. Regulation 5 provides that an easement created under the Regulation is to be subject to any limitation, and is to include any right incidental to the right of way, agreed by the parties or determined by the Lands Tribunal. Under regulation 6(1) an application for an easement is to be made by the services of notice on the land owners and under regulation 6(3) the application must contain the information specified in paragraph 1, and be accompanied by the information specified in paragraph 2, of the Schedule to the Regulations. The information specified in paragraph 1 includes details of the use of the premises, the nature of the use of the access, the width of the way, and the proposed compensation sum. In the information specified in paragraph 2 include “evidence … that the way is a way to which section 68 applies.”[23]Under regulation 8(1) the land owner may within 3 months serve a counter notice objecting to the application, and under regulation 8(2) objections to the application may be made on the following grounds:
“ (2) Objections to the application may be made on the following grounds – 10 (a) the applicant has served the application after the expiry of the period for service; (b) the applicant has not provided the information required by regulation 6 (3); (c) information provided by the applicant is not correct; (d) the easement should be subject to limitations other than those (if any) described in the application; (e) any rights incidental to the right of way, which are described in the application as being rights which should be included in the easement, are not agreed; (f) the value of the premises is not agreed.”
[24]The counter notice must contain the objection to the proposals and any alternative proposals (regulation 8(3), and it must be accompanied by any evidence relevant to the objections and alternative proposals (regulation 8(4)). Regulation 9 enables an applicant to serve an amended application in the light of the counter notice.[25]Regulation 10(1) provides:
“ (1) Where a counter notice has been served, either party may, where there is a dispute relating to any matter other than the value of the premises, request the Lands Tribunal to determine the matter in dispute by sending a notice of reference to the Lands Tribunal in accordance with the Lands Tribunal Rules 1996.”
[26]The way this operates appears to me to be this. What is a “matter in dispute” must be determined by reference to the objections in the counter notice (or any amended counter notice served under regulation 9). Thus a land owner who contends that the applicant’s use of the way has not been such as to create an entitlement to an easement will object on the ground that the applicant has not provided evidence that the way is a way to which section 68 applies (see regulation 8(2)(b) and Schedule 1, paragraph 2(b)(i)), or that evidence which, if correct, would serve to establish that the way was one to which section 68 applied, is not correct (see regulation 8(2)(c) and Schedule 1, paragraph 2(b)(i)).[27]Regulations 11 and 12 provide for the calculation and determination of the compensation sum. It is to be 2% of the value of the premises (or 0.25% if the premises were in existence on 31 December 1905; or 0.5% if they were in existence on 30 November 1930): see regulation 11(1), (2). If agreement cannot be reached on the value of the premises, either party may require the amount to be determined by a chartered surveyor (regulation 12(1)). Under regulation 13, if the terms of the easement are agreed or if all matters in dispute have been determined in accordance with regulation 10 or 12 (and by implication this means determined in the applicant’s favour if the dispute is as to his entitlement to an easement), the applicant must pay the compensation sum to the land owner; and, under regulation 15 on payment of the compensation sum, the easement is created. The function of the Lands 11 Tribunal is therefore(a) to determine whether there is entitlement to an easement (if this is in dispute), and, if it concludes that there is entitlement to an easement,(b) to ensure that the terms of the easement (other than compensation) are established. The case for the applicants[28]For the applicants Mr Mitchell contended that, on the evidence, a prescriptive easement for vehicular access to the property would have arisen had it not been for the fact that the use constituted an offence under section 34 of the 1988 Act and its predecessor provision. He put the case both on the basis of lost modern grant and the Prescription Act 1832. He submitted that the description of the green lane as a highway in the deeds suggested that any use of it would have been seen by those concerned as a use by right, and it was used as a vehicular access probably before 1942 and certainly after 1941, when the southern bungalow became separately occupied. The use had continued for more than 20 years. If the inclusion of the green lane on the definitive map in 1953 meant that any use after that date could not be used to found a claim under section 68, there was sufficient evidence of 20 years use prior to that date to establish the claim. He called two witnesses.[29]The applicant Robert Burns had made a statutory declaration on 15 August 2002 and he gave evidence at the hearing. He said that the land on which Perseverance Bungalow stood had been purchased by his father Charles William Burns under a conveyance dated 24 May 1924 from William Clarke. It was described as “all that garth or parcel of land called “Fenneys Garth continuing by estimation one acre and two roods or thereabouts situate in the Township of Faceby aforesaid bounded by the public highway on the East…” His father lived in Middlesbrough at the time he purchased the land and he built the bungalow himself over a period of years. Mr Burns said that he was born on 9 April 1932 and he recalled his father coming up to Faceby to do the building work, driving a motorcycle with sidecar. He used to drive it straight up to the building plot. When the bungalow was finished his father moved in there with his mother. He continued to use his motorcycle and sidecar. His mother died very shortly after they moved in. Mr Burns lived at the property until about 1961, when he left to get married. He himself drove a motorcycle and then a car, a Morris Eight, which he bought when he was 17. His father died intestate in 1968 and his estate passed to Mr Burns, his sister Annie Burns and his half-sister Olive May Bollands. Annie Burns then lived in the property until her death on 1 November 1993. The property then passed to Mr Burns and Olive and they now held it as tenants in common. After Annie died Olive, who had lived at the property with her, continued to live there until she moved out in September 2001. Throughout the time that his father and his sisters lived there Mr Burns visited the property. He drove up the lane to take his father and sisters out and to take shopping to them.[30]Mr Burns said that because Faceby is a very small village and has virtually no public transport services the large majority of visitors to the bungalow came by car. When they did so they would drive up Green Lane from the nearest public road and park the car either parallel to the boundary or in or at the side of the garage. The garage was built, he said, about 50 years ago. The visitors included not only social callers but also district nurses, postal deliveries, coal men, parcel deliveries, census returns, electricity meter readers and all the usual type of regular callers. The majority of these would come right up to the house by car unless the track was too muddy. From time to time the Burnses put hardcore down on the track to keep it passable in bad weather and they would cut the grass down from time to time. 12 There was never any objection to this from anyone. The access along the track was the only access to the property and it was the only access that they ever used.[31]Mr Burns denied that access to the property had earlier been from Bank Lane and across the land at the back of the adjoining bungalow occupied by his uncle Matthew. It was always Green Lane that was used, and there was a fence between the two properties, so that it would not have been possible to gain access along the rear. He said that there were never any gates at the end of the track until 1968. When someone called Tommy Dale tried to erect them, they were removed by Matthew. Mr Burns denied that he had ever asked permission to use the track. He had not asked permission in the 1970s to use the track in order to put a caravan in the garden of the bungalow. It had been necessary to go onto the Kirbys land in order to manoeuvre the caravan, and it was for this that he had sought permission. He transported stock onto the land without permission. He had never been given permission to use the track and he was not aware of Mr and Mrs Kirby having given permission to his sister to do so in the case of an emergency. They said that he must not park beyond the wicket gate. Mr Kirby had erected posts blocking the vehicular entrance, but Mr Burns had removed these.[32]Alan Wallace Burns, called by Mr Mitchell, said that he had been born in Middlesbrough in April 1938. He is the cousin of the applicant Robert Burns. His earliest memory of Perseverance Bungalow was in about 1943. His parents had bought a gypsy style caravan which they had placed within the curtilage of the bungalow. Access to it was along the adjoining green lane. It was the only means of access. There was no pedestrian or other access between Perseverance Bungalow and the semi-detached bungalow to the south, which was occupied by his uncle Matthew. Each had its separate access. His uncle Charles Burns had a motorcycle, a water-cooled Scott, and he commuted from Faceby to work at Dorman Long in Middlesbrough. He garaged the motorcycle in a garage at the western end of the property and used the green lane for access. Mr A W Burns produced a copy of a letter from North Yorkshire County Council dated 8 November 1982 which said that a public bridleway running through OS field 98 had been registered by Faceby Parish Council in 1953 under the National Parks and Access to the Countryside Act 1949. He said that he recalled the lane as being metalled. He produced a copy of the walking schedule for the lane. The date of survey was April 1953. It said that the lane was metalled along its whole length. Its width was said to be 7-10 feet, and its condition was described as good. The answer to the question on the survey form, “Have persons been prevented from using the highway?” was “No”; and the response to “Give particulars of any obstructions” was “None”. Mr A W Burns said that he was a chartered engineer and had worked for the North Riding of Yorkshire and North Yorkshire County Councils in the highways department from 1968 until his retirement in June 2000. His duties had included answering land charges searches and public rights of way issues. He expressed the view, in the light of his experience as an officer of the county council responsible for highways, that the lane was more probably a byway open to all traffic than a bridleway. Metalling would in practice only have been carried out by the highway authority, and they would not have metalled a road that was only a bridleway.[33]There were three further statutory declarations. Elizabeth Ann Simpson said in a statutory declaration dated 17 June 2003 that she lived at the property Hill View next to Perseverance Bungalow from 1954 until 1968. In 1968 she moved to the new house that had been built behind Hill View and which was called Pheasant Rise, and she lived there until 1996. When she lived at Hill View she could see straight out onto the green lane and she 13 therefore had a good view of vehicular traffic coming and going. She confirmed that throughout that time she had seen Mr Burns consistently driving along the lane on a very regular basis in order to gain access to Perseverance Bungalow. When Annie Burns was ill friends and nurses would come to the property by car and drove up the green lane, and she was also aware of tradespeople doing so.[34]Elaine Margaret May Wilson of 1 Birch Drive, Faceby, said in a statutory declaration dated 18 June 2003 that she had lived at her present address since 1971 and she was familiar with Perseverance Bungalow. She said that Mr Burns visited his sister very regularly when she was the only occupant of the property, often as regularly as daily. At times there were three cars kept at the bungalow, and she was aware that Mr Burns had kept a car in the garage. She was aware that other cars also used the green lane to drive to the bungalow, but she could not say to whom those cars belonged. She was not aware of any person having objected to use of the lane by vehicles up to recent times.[35]John William Peacock in a statutory declaration dated 3 July 2003 said that he was a retired postman and that for a period of years in the mid-1980s he was the postman for the round that included Faceby. Perseverance Bungalow was one of the properties on his round. Whenever it was necessary to deliver mail there, and it was necessary on most days, he would drive the van up the green lane to the boundary of the bungalow. There was never any objection to this and there was never a gate at the bottom barring entry to the green lane. It was completely free and unobstructed. For the time that he did the round the bungalow was occupied by two elderly ladies, Mr Burns’s sisters, and he often saw Mr Burns visiting them. Mr Burns would drive up the green lane to the bungalow. He would also take them out in the car, and would have to drive close to the house because they could not walk very far. Mr Peacock also saw Mr Burns driving up to the house to deliver groceries. The case for the respondents[36]For herself and her husband Mrs Kirby relied on the evidence of her husband and the documents that he produced to show that no prescriptive right to use the green lane for vehicular access to Perseverance Bungalow would have been acquired in circumstances that would satisfy section 68. She said that they had not got a solicitor involved in the dispute as they had received advice from the Country Landowners Association that any claim that a right of way for vehicular traffic based on use after the 1930 Act was bound to fail. Recent case law substantiated that advice, and she referred to Stevens v Secretary of State for the Environment Transport and the Regions (1998) 76 P & CR 503, in which Sullivan J had held that post-1930 vehicular use of a bridleway could not be relied on to establish a right of highway for vehicular purposes. She drew particular attention to the fact that access to Fenneys Garth was directly from Bank Lane and that Mr Burns’s father had done away with this as the access to his bungalow by transferring half of the land to his brother Matthew. She suggested, however, that there would have been an implied easement of necessity across the land conveyed.[37]There was a statutory declaration dated 8 November 2002 by Mr Kirby, and he gave evidence. He said that in 1976 he and his wife purchased the freehold of fields OS 88 and 98 and on 14 June 1982 they also purchased OS 85. The previous owner, Mr Clark, purchased 14 the land from the Faceby and Carlton Estate in 1942, when it was described as three grass fields totalling 0.863 acre subject to a tenancy. Mr Kirby said that he understood that Mr Clark gave Charles Burns permission to use the bridleway and he said that he had evidence showing how, when Mrs Clark inherited the land after her husband died, she withdrew her permission and reiterated this again in 1968 by erecting gates. He said that Mrs Clark and Robert Burns told him that a gate erected at the entrance to the lane, was knocked down with a sledgehammer by Matthew Burns, the brother of Charles Burns. That must, he said, have been before 1953 as Matthew Burns died in that year. In 1961, Mr Kirby said, Mrs Clark rented the three fields to Colin and Mrs Ann Teasdale, who grazed them until 1981. The gates were tied frequently as there were 70 cows going down the lane daily.[38]The residents of Perseverance Bungalow did not drive a vehicle after 1960 until June 2002 when Robert Burns moved back into the house after an absence of 40 years. In October 1968 the new gates were erected by Mr Teasdale for Mrs Clark on her land to stop vehicle access on the bridleway. Her solicitor had written to the parish council on 17 May 1968, and Mr Kirby produced a copy of the letter. It was principally concerned to rebut assertions that field 85 was common land, but it went on to say that there was no right of way over field 98 except a specific right to the owner of field 89. The letter continued; “Our client now finds that this field is being used as a roadway for tractors and the like and it is her intention to stop any further trespass on her land.” In 1969 there was a dispute over an application for registration of common land. Annie Burns had applied to get the land registered as common land under the Commons Registration Act 1965. In 1977 the Chief Commons Commissioner rejected the application and awarded costs against Miss Burns. He said that Miss Burns had made it quite clear that her object in applying for the registration was to secure access from her land to the main road across the land she sought to have registered. She was, said the commissioner, entirely mistaken in thinking that the registration would achieve that end but she had by her action put Mrs Clark to unnecessary expense.[39]In 1979 Miss Burns complained to Mr and Mrs Kirby about the gate being tied and the reply, dated 7 August 1979 from Mrs Kirby, was in these terms:
“There is no vehicle access allowed even to you, as our permission will be needed to do so. If you need further proof you can get in touch with Mr Salway [the Kirbys’ solicitor]. We know nothing of the gates being tied. We have no wish to get caught up in personal arguments within the village.”
In 1982 wooden posts were erected in the middle of the bridleway to stop any wheeled traffic. This was done, said Mr Kirby, in order to protect the drains and services that they had laid across the track at a shallow depth. In 1982 after the posts were put in Mr and Mrs Kirby gave Annie Burns verbal permission, for emergency vehicles only, to park on the bridleway outside the hand gate. They had assured Hambleton District Council in 1982 that there would be no vehicles going across the area under which the drains and services ran. There were definitely no vehicles going on the bridleway at that time, said Mr Kirby, because if there had been wheeled traffic they would have had to put the drain much deeper and to protect them with concrete.[40]In 1988 the main gate at the Church Lane end was locked, and a bridle gate was erected next to it. Mr Kirby said that they could not do the same at the Bank Lane end as it was not wide enough to accommodate a bridle gate as well. They therefore left the Bank Lane end gate unlocked as it was a bridleway and also in case emergency vehicles might be needed at Perseverance Bungalow due to health of the occupants. They were not aware that the 15 permission that they gave to the Burnses to park on the bridleway was causing any problems as visitors only stayed a minimal amount of time, parking only at the hand gate. After a second complaint in 2002, from the same person, a horse rider, they had had to inform Mr Burns that they no longer had their permission to park on the bridle way, as it was an offence to block it. After his sister died in 1993 Mr Burns replaced a white fencing gate with a farm gate and tidied up the garden. Mr Burns also put roof tiles on the shed alongside it that he called a garage. The door height of the shed was only 4ft 10ins, and it was already falling down and props inside were needed to keep it up.[41]Mr Kirby said that the upper part of the bridleway was unsuitable for vehicles as it was impassable in the winter months due to a natural spring and water coming off Whorl Hill to the west. He said that he had told Mr Burns that in November 2001. Mr Burns asked if he could put some gravel down as he wanted to gain access for his car onto his property. That permission was refused. Mr Kirby denied that Mr Burns ever to his knowledge repaired the lane. He understood however, that the Council in the early 1970s put surplus road materials up to the first gate when it was very muddy. If it were true, as Mr Burns asserted, that he had always used the large gate entrance for vehicles there would be a more substantial surface and a hard standing for his car.[42]In June 2002, after his sister went into residential care, Mr Burns moved into Perseverance Bungalow and began to cause damage to the surface of the lane where it ran over the services to Mr and Mrs Kirby’s land. Before that neither Robert Burns nor his family when visiting ever drove a car or any vehicle in front, into or at the side of the shed. Mr Kirby said that since he had owned his land there had never been any parking beyond the hand gate. He said that, when Mr Burns had told them that he was coming back to look after his sister after 40 years absence, they took advice. Because their relations with the Burns sisters were good, they generously offered to swap part of field 98 enabling him to have access so that he would not have to drive over their drains. The offer included a right of way in exchange for the same area of his land, which would run along the Kirbys’ boundary. But Mr Burns refused that offer. When they were still sympathetic to his situation the Kirbys were asked by Mr Burns’s son John, how much they wanted for a vehicular right of way, and they offered to sell him a right of way through his solicitors and asked him to get a valuation of his property with and without vehicle access. Mr Burns did not take up the offer.[43]Mr Burns produced copies of a number of documents, including letters, photographs and certain extracts taken from deeds. The Stokesley RDC rate books from 1937 onwards showed M Burns being rated in respect of his bungalow in the year ending March 1937 and in subsequent years and C Burns being rated in respect of his bungalow from 3 November 1939. The sale particulars of the Faceby and Carlton Estate sale on 21 October 1942 showed as Lot 24 three grass field, numbers 85, 88 and 98, and the requisition, in answer to the question, “Will vacant possession of the property be given on completion?” stated, “No. Copy tenancy agreement herewith.” In answer to the question whether there were any rights of way, public or private, it said, “Only a right of way over the strip of land Nod 98 on the plan to lot 6a.” A letter dated 8 November 1982 from the County Surveyor of North Yorkshire County Council said that there was “a public bridleway running through OS Field 98 which was registered by the Faceby Parish Council in 1953 under the National Parks and Access to the Countryside Act 1949.” Photographs taken before the white gates were 16 replaced show two (and in one photograph, three) old cars immediately inside the gates. The photograph with the three cars shows the gate with vegetation growing in front of it.[44]Mr Kirby produced a signed statement by Anne Teasdale of Verdun House, Faceby. She said that her husband, on taking over Verdun House Farm from his mother in 1959/1960 immediately entered into an agreement with Mrs Clark, then the owner of fields 98, 88 and 85, so that the grazing on them could continue. The land was rented and the use continued until Verdun House Farm was sold in 1981. She still retained the grazing and supervision of field 85. Verdun Farm house was directly opposite Perseverance Cottage, separated from it by the track, field 85 and Bank Lane. Mrs Teasdale said that she had never seen Annie Burns or Olive Bollands driving a vehicle in the 40 years that they were there. Bob Burns, their brother, lived at Cherry Tree Cottage at Low Farm, next door to Verdun Farm, from the early 1960s to about 1990, and he parked his car in the farmyard there. She had not seen him take a vehicle on or off the land until March 2002, when she saw him pushing a vehicle with great difficulty on to his land. Mrs Teasdale said that in 1968 her husband erected gates on field 98 as requested by Mrs Clark to stop any vehicles trespassing on her land.[45]In a statutory declaration dated 3 October 2002 Christopher Gratwick of Ridge Hill, Church Lane, Faceby, said that he had lived at his address since May 1995. He was the successor in title to Michael and Jean Bollands who, under a deed dated 7 February 1990, had been granted by Mr and Mrs Kirby a right of way for agricultural purposes (including the use of vehicles) along the track from Church Lane to a paddock. Since May 1995, Mr Gratwick said, he had frequently walked along the bridle path. For several years Robert Burns visited Olive Bollands, who lived in Perseverance Bungalow. When visiting he usually parked his car on the bridle path outside the gate immediately in front of the bungalow. Before early 2002 Mr Burns had never attempted to enter by the large gate or to use the shed or garage beside it. Indeed for several years after 1995 it would not have been possible to enter this way because of the presence of a derelict car that had been dumped just inside the gate. Since the earlier part of 2002 Mr Burns had periodically driven his car along the bridle path to the large gate, and this had caused considerable rutting.[46]In a letter to Mr and Mrs Kirby of 15 November 2002, G A and J M Linfoot said that they had lived in Faceby since September 1969, firstly at Ash Hill and then, from March 1988 at of Hill View, the house next Perseverance Bungalow facing the green lane. Mrs Linfoot senior had lived at Hill View from April 1984 until September 1986, during which time Mr and Mrs Linfoot were almost daily visitors. From their observation the green lane had been just that – a grassy lane used by horses and pedestrians and very occasionally closed to graze sheep. The only vehicles to drive on the lane were those visiting or delivering to Perseverance Bungalow. The sisters lived a quiet life and did not have a large number of car borne visitors until failing health resulted in frequent visits from doctors, nurses and carers. Many of those chose to leave their cars on the main highway in view of the narrow and unsurfaced nature of the lane. There were two or three old cars near the wooden shed in the north-western corner on the Burnses’ land, but these were certainly not in use. They had never seen any evidence that the shed was used as a garage.[47]In a signed statement dated 20 October 2002 J Howard Gaskin said that he had lived at Woodside, Faceby, from 1982 to 2000. The property adjoined Green Lane, which he used to 17 walk frequently with his dog. He had never seen the timber building at the corner of the garden of Perseverance Bungalow used as a garage. The gates in front opening onto the bridleway were always overgrown and could not possibly have been used for vehicle access over the years he had walked past. A signed statement from Pat Gaskin said that she could not recall anyone using the garage in the 18 years she lived at Woodside.[48]In a signed statement dated 11 November 2002 Peter Wallis, now of Verdun House and formerly of Little Cottage, Faceby, said that he had lived and worked opposite Perseverance Cottage for than 34 years. During the whole of that time until March 2000 Mr Burns had never to his knowledge driven a vehicle on or off the land at Perseverance Cottage. In a signed statement dated 24 November 2002 W G Tinkler of Village Farm, Faceby, said that he and his sister had lived in Faceby all their lives and farmed opposite Perseverance Bungalow. He said they could confirm that neither Mr Burns nor anyone else to their knowledge had used the wooden shed with vehicles for more than 40 years or parked in front of it. The gate was overgrown for many years and no vehicles went on or off the land or used the upper part of the green lane until Mr Burns started to do so in the early part of 2002. Finally in a signed statement dated 26 November 2002 Andrew Smeaton of May Cottage, Church Lane, Faceby, said that he had lived at Faceby for 15 years. He used it regularly to walk his dogs and he had never seen the wooden shed or the gate next to it used for cars. Conclusions[49]The two semi-detached bungalows were built facing the green lane and I have no doubt that there was in each case, from the time of their construction, pedestrian access to the front door from the green lane. I find that for many years vehicles called at Perseverance Bungalow for a variety of purposes, being driven up the green lane to the small gate leading up to the front door. I accept in this respect the evidence of Mr Burns, which is confirmed by the three statutory declarations relied on by the applicants and the statements of Mr Gratwick and Mr and Mrs Linfoot. The evidence of this use is clear during the occupation of Annie Burns and Olive Bollands (from 1968 to 2002) but it can, in my judgment, reasonably be inferred that such use was continuous at least from the time in November 1939 when the occupancy of Charles Burns and his family began and has continued since then.[50]The evidence of Mr A W Burns, which I accept, was that there was in 1943 an access for vehicles in about the position now occupied by the farm gate at the northern end of the property. That farm gate, on the evidence of Mr Kirby, was erected in 1993 to replace the old white gates that had stood there for many years. There has been, I find, the physical means of vehicular access along the green lane and into this northern part of the application premises from at least 1943. The shed immediately beyond it, which has a large door opening onto the green lane was, I accept, used to garage Charles Burns’s motorcycle in the years after he had entered into occupation, and I accept that Mr Burns took his motorcycle and his car along the lane to this entrance. It was and remains the only vehicular access to the premises. In the years after 1961, when Mr Burns moved out, the use of this access was only occasional, and there was probably a period of years when the white gates were not opened at all. But the gates and the doors remained and were not blocked off. I accept Mr Burns’s evidence that he transported livestock onto the land and in 1970 a caravan. He evidently took there the three cars that are shown in the photographs and removed them. I am satisfied that this, the only 18 vehicular access, has been used over the years to provide all such access as has been required by the owners.[51]It is harder to determine, as a matter of probability, when the use of the lane for vehicular access to the premises began. It is the case, as the respondents emphasise, that there was access to Fenneys Garth directly off Bank Lane to the back of the bungalows, and I think it likely that this was used to gain access to the site as a whole from the date of Charles Burns’s purchase of the site in 1924. It would have been the obvious means of access for the purpose of carrying out the building works. It appears to me to be unlikely that was any significant vehicular use of the green lane before Charles Burns and his family went into occupation in November 1939, but it is in my judgment probable that the vehicular access at the northern end of the site and its use dates from then. I find it unlikely that, after the conveyance to Matthew Burns in 1942 of the southerly bungalow and its curtilage, any access across that curtilage to the application premises was used. No right of way across the land conveyed was retained by Charles Burns, although the sewerage easement that was granted suggests that such a matter would have been considered if it had been thought to have been necessary. In the conveyance the lane was described as public highway, and this is good evidence, in my judgment, that it was seen by the parties to the conveyance as providing the lawful access to the premises.[52]Interference with the use of the green lane for vehicular access has been limited. There was the incident, which I find to have occurred in 1953, when Matthew Burns removed gates that were being erected at the end of the track. It appears to me likely that this occurred shortly after the survey of the track prior to its inclusion on the definitive map as a bridleway. In 1968 Mrs Clark had gates erected at each end of the lane. It appears to me likely that the death of her husband in that year led to a consideration on the part of those advising her of the status of the use being made of the lane. Her principal concern appears to have been the use of the lane by tractors. That there was a disagreement about whether there was a right of way along the track is borne out by Annie Burns’s misconceived application in 1969 to have the track registered as common land. In the event it does not appear that the gates at the Bank Lane end were closed other than for the limited purpose of enclosing livestock. They were evidently closed and tied in 1979, when Miss Burns complained about this to Mrs Kirby. This had not been done on Mr and Mrs Kirby’s instructions, although in her letter Mrs Kirby said that Miss Burns was not entitled to use the track. When in 1982 Mr Kirby erected posts blocking the entrance to the vehicular entrance, they were removed by Mr Burns and were not afterwards replaced.[53]In my judgment these isolated acts of interference with the use of the lane for vehicular access to Perseverance Bungalow would have been insufficient to prevent an easement by prescription from arising. Similarly I do not think that there was ever anything in the nature of a licence granted by the owners of the lane to the occupants of the bungalow. It was suggested that Mr Clark had given Mr Burns express permission to use the lane, but Mr Burns denied this. I accept his evidence on this. It seems to me likely that Mr Clark simply raised no objection to the use. I find that, after the posts were erected in 1982, Mr and Mrs Kirby told Annie Burns that emergency vehicles only could use the track and park outside the wicket gate but I find that there was no agreement to this effect, and in any event the use that was in fact made of the lane was not confined to emergency vehicles. 19[54]It appears that for much of the period that requires to be considered OS 98 was the subject of a tenancy. The requisition of title in 1942 stated that the land was subject to a tenancy, and Mr Teasdale’s statement suggests that she and, before her, her husband, and, before him, his mother had a tenancy that included this land. The existence of a tenancy could be sufficient to prevent a prescriptive easement from arising if it suggested either that the servient owner was not aware of the use or that he was powerless to do anything to prevent its continuance (see Pugh v Savage [1970] 2 QB 373). Here, however, such evidence as there is shows that Mr Clark, Mrs Clark and then Mr and Mrs Kirby during their periods of ownership were aware of the use that was being made of the lane and also erected or arranged for the erection of gates and posts.[55]I am satisfied, therefore, that there has been such use of the track by the owners of the premises since 1939 as would have been sufficient to give rise to a prescriptive easement were it not for the fact that the use was unlawful under section 34 and its predecessor provisions.[56]I have said above, however, that section 68 has no application where the way in question is along a bridleway. Although there is no direct evidence of when the bridleway was first shown on the definitive map, I find that this was probably in 1953 or shortly afterwards. It is section 34 of the Road Traffic Act 1988 that makes it an offence to drive a motor vehicle on a bridleway. “Bridleway” is defined in section 192(1) of the Act (and was so defined in the 1960 and 1972 Acts, though not in the 1930 Act) to mean a way over which the public have the following, but no other, rights of way: a right of way on foot and a right of way on horseback or leading a horse, with or without a right to drive animals of any description along the way. Under section 56(1) of the Wildlife and Countryside Act 1981 (and under its predecessor provision, section 32(4) of the National Parks and Access to the Countryside Act 1949) where the definitive map shows a bridleway it is conclusive evidence that at the relevant date there was a highway over which the public had a right of way on foot and a right of way on horseback or leading a horse, but without prejudice to whether the public had any other right of way. It is possible, therefore, that a way shown as a bridleway on the definitive map may be a right of way for all purposes. Mr A W Burns expressed the view that there was probably a right of way for all purposes over the track. If so, section 68 could undoubtedly have no application because the vehicular use would have been lawful. But there is insufficient evidence for me to conclude that there was such a general right of highway. From the time in or soon after 1953, therefore, when the green lane was first shown as a bridleway on the definitive map, it must be treated for the purposes of section 34 as being a bridleway only, so that any use for vehicles from that time would have been unlawful. Accordingly, on the view of section 68 that I have reached, any use after that date could not found a claim to a statutory easement. As for the period before 1953, it is, in my judgment, probable that the way was a bridleway, but, whether it was or not, there was less then 20 years’ use of the track by the owners of the premises between 1939 and that date, so that on any view no prescriptive easement could have arisen.[57]There is accordingly no entitlement on the part of the applicants to an easement under the Regulations. The parties are now invited to make submissions on costs, and a letter relating to this accompanies this decision. The decision will take effect when the question of costs has been determined. 20 Dated 31 October 2003 George Bartlett QC, President ADDENDUM ON COSTS[58]The respondents ask for their costs. They say that the proceedings should never have arisen as they had tried to negotiate a settlement by offering to swap land and to sell the applicants a right of way, but these offers had been refused. The applicants resist the application. They say that the offers were immaterial; that the respondents will not have incurred any professional costs; that it was a reasonable case to bring, as the first case under the 2000 Act; that it was a very complex area of law; and that the basis on which the application failed, that the provisions did not enable an easement to be acquired over a bridleway, had not been raised in the respondents’ counter-notice. The fact is, however, that this was an application for the creation of a right of way across the respondents’ land and they have been put to expense in resisting it. Since there is no suggestion that they have acted in any way unreasonably, it is in my view only proper that they should have their costs. The applicants must pay the respondents costs of the reference, such costs in the absence of agreement to be assessed by the Registrar on the standard basis. Dated 5 December 2003 George Bartlett QC, President 21