In the course of acting for our clients looking to purchase residential property, we have found numerous different issues can arise relating to accessing property where the access is via an unmade and unadopted accessway. Such issues can in particular arise where a client is purchasing a property in a rural area.
One particular problem, and the focus of this article, relates to where access is gained by way of an unmade and unadopted accesway that is also marked as being a public footpath
The legal right arising from a public footpath is to "pass and repass along the way". A user may, however, stop to rest or admire the view, providing they stay on the path and do not cause an obstruction. The user may take with them what is termed as a "natural accompaniment", for example a pram or pushchair, or a manual or powered wheelchair (mobility scooter) provided they follow the regulations for taking these vehicles on ordinary roads. It should be noted, however, that there is no guarantee and no requirement that the surface of the path will be suitable for prams, pushchairs, wheelchairs or mobility scooters.
The main problem that arises in these instances, however, is where, over time, the use of the accessway has expanded so that users are gaining vehicular access to properties along the route. Whilst public footpaths can be of any width as a result either through usage, by formal agreement, or by order if the path has been diverted, even though the accessway may be wide enough to allow vehicular access, and vehicles have been using it for some considerable time, this does not mean that there is a right for vehicles to use it.
Section 34(1) of the Road Traffic Act 1988 (RTA 1988) provides that anyone driving a mechanically propelled vehicle, for example a motor car, on a road that is a footpath, bridleway or restricted byway is guilty of an offence unless it can be shown that there is a private right in place for people to use the accessway to gain vehicular access to their property. The burden of proving that there is such a vehicular right of way in place rests with the defendant. The prosecution does not have to show that there are no vehicular rights, but rather the defendant has to show that there are such vehicular rights in place.
Therefore, whilst in many cases vehicular access over a footpath or bridleway may have been exercised for a considerable period of time, in some cases for many years, in the absence of any evidence of a private right of way, the use of the accessway could, potentially, be brought to a halt at any time, leaving the owner of a property served by the accessway with no vehicular access thereto, and as a result suffering both considerable inconvenience and an appreciable loss in value to their property.
As one final aside, under section 34(3) RTA 1988, it is not an offence under section 34(1) if a person drives a mechanically propelled vehicle on any land within fifteen yards of a road, being a road on which a motor vehicle may lawfully be driven, for the purpose only of parking the vehicle on that land.