Vehicles on the Common

Section 193 of the Law of Property Act 1925 makes it an offence for a person to drive on certain common land without lawful authority. It is open to the owner of the land to grant the authority that is needed for such driving not to constitute an offence. Section 34 of the Road Traffic Act 1988 (which reflects provisions first contained in section 14 of the Road Traffic Act 1930) also prohibits the driving of motor vehicles on common land without lawful authority. Again, it is for the owner of the land to grant the authority. The owner may wish to consider questions of amenity when he is deciding whether or not to grant the required authority but he is not obliged to do so.

Driving restrictions might be eased for property owners whose sole means of vehicular access is across common land (see Guidance). The House of Lords ruled in 2004 (see Bakewell Management Ltd v Brandwood and others ) that, provided the owner of common land could lawfully have granted permission for vehicular access, there was no bar on a property owner relying on their actual use of the land for access (even without the owner’s express permission) to establish a prescriptive right to do so (under the Prescription Act 1832). The Land Registry can register prescriptive rights but it will require evidence of the actual use of the land for access over a period of at least 20 years. This is not always a straightforward process (see High Court Judgment).

Easements can be negotiated between a property owner and the land owner even if a prescriptive right cannot be claimed. Section 68 of the Countryside and Rights of Way Act 2000 permits the grant of statutory easements for vehicular access over common land where it is currently an offence to drive a vehicle. Where the grant of an easement relates to the construction of a new access way (or where it is proposed to improve any existing access way), any works which involve the resurfacing of land on registered common land will require the consent of the Secretary of State under section 38 of the Commons Act 2006.

A vehicular right of way is not a right of parking. However, there is no general legislation prohibiting the parking of vehicles on common land. But it might be argued that the denial of access amounts to a prohibition on parking. Moreover, there might be local byelaws that make parking an offence.

Cambridge byelaws

There are byelaws in force that regulate vehicles on Cambridge Commons. Byelaws made under the Cambridge Corporation Act 1850 and dated 23rd October 1851 cover vehicular access and parking. Byelaw 9 states that:

"Every person not lawfully authorised or permitted so to do who shall go upon, over, or across any such Common Pasture, with any cart or other carriage"

have committee an offence and are liable for a fine of 20 shillings. Under byelaws 4 and 6:

"Every person not lawfully authorised or permitted so to do, who shall ... place any caravan or carriage upon any such Common Pasture"

and

"Every person lawfully authorised or permitted to place any caravan or carriage upon any such Common Pasture for a limited period, who shall not, at or before the expiration of such period, remove from such Common Pasture such caravan or carriage"

have also committed an offence and are liable to a fine of 40 shillings.

Cambridge City Council acknowledges the principle of these byelaws (if not the language) in posting a notice on one of the gated entrances to Midsummer Common. This states quite unequivocally that it is an offence to drive or park on the Common. It is interesting to ask how many such offences have been committed and how many offenders have been prosecuted.

These current byelaws are over 150 years old and would benefit from updating. Under section 20 of the Cambridge University and Corporation Act 1894, the Council may "... from time to time make byelaws for ... preventing or regulating riding and driving on the commons ...". Under section 3 of the Cambridge City Council Act 1985, the Council may "... set apart such parts of any public open space or common within the city as they think fit ..." and "... make byelaws with reference to the user of the parts so set apart ...". So there are legal powers to adopt new byelaws.