Commons Bill [HL]

My Lords, not only are we at the end of the Bill, but I do not think I am in a position to query the judgment of the Judicial Committee of your Lordships' House and neither is any other court, as far as I am aware. However, I have some further comments that I hope will clarify the situation. Until 1993, the legal assumption was that where people had driven to their homes over such areas as commons or greens for at least 20 years as of right, they had established by prescription a legal right to continue doing so. In 1993 the judgment of the Court of Appeal in Hanning v Top Deck Travel held that this was not so. It ruled that national statutory bans on driving across such areas without lawful authority, which were introduced in 1925 and 1930, meant that thereafter no such rights could be acquired by prescription. Suddenly, therefore, householders around the country were asked to pay large sums to continue to drive to their own property, as they had always done. Faced with this completely unacceptable situation, Parliament enacted Section 68 very late in the passage of the Countryside and Rights of Way Bill, as it was then, to allow regulations to cap the payments that had to be made in this situation. However, what the courts can take away they can sometimes give back. As the noble Baroness said, the Judicial Committee of your Lordships' House came to the rescue of homeowners in 2004, when it overruled the Hanning judgment in the Bakewell Management case. This confirmed that in circumstances where it would have been lawful for the owner of land to grant permission for the vehicle access, there is no bar on householders relying on their actual use without such permission to show that a prescriptive right of access has been earned. That has removed the need for Section 68, which we would never have enacted in the first place but for the decision in Hanning. The noble Baroness spoke about people who have paid fees to get access to their home. It is unfortunate that the error in case law has caused this to happen. The biggest losers were those who paid out before Section 68 imposed the ceiling on the payment that could be sought in return for the right. Those who paid out under Section 68 would have had to pay very much more to secure the same easement by non-statutory means. There is no proposal for a refund in this legislation. The noble Baroness referred to my noble friend Lord McIntosh. What he said was based on the presumption, correct at that time, that no right to drive over a common could be acquired in common law. In the light of the Bakewell Management judgment, that presumption was mistaken and the noble Lord’s statement was therefore inoperative.