Published: Wed, 07 Mar 2018
Massey v Boulden  EWCA Civ 1634
Prescriptive rights over land, unlawful user
The case revolved around an open green space close to a public highway between Bilsington and Hythe, known as the Pinn, as well as adjacent land on which a school and appurtenant buildings had been constructed in the 19th century. Later, the school was closed and some of its buildings were converted into cottages. In 1977 one of the cottages was combined with other former school buildings to form The Old School House (which was a residence). The case concerned a track which connected the Old School House to the public highway. Crucially, the track passed over the Pinn. Successive owners of the former cottages and the Old School House (which was the dominant tenement) made use of this track. Importantly, both parts of the Pinn were registered as a village green. Eventually, the owners of the Pinn complained about this use (in 1997) and later proceeded to block the track. The claimants (respondents in the appeal) argued that they had acquired a prescriptive right over the track, while the defendants/appellants argued that their user had been illegal under s.34 of the Road Traffic Act 1988 c.52 and as such could not lead to claimants acquiring a prescriptive right over the track.
The issue in the case was the conditions under which it is possible to obtain a prescriptive right over land and specifically whether it is possible to do so if the use was illegal, notably under s.34 of the Road Traffic Act 1988.
The court held that the claimants could not be seen as having a prescriptive right over the land which was a village green, as their use of the land had been unlawful contrary to s.34(1)(a) of the Road Traffic Act 1988.
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