Final judgment in long-running right of way dispute – Price v Nunn  EWHC 3200 (Ch)
Judgment was handed down today in the High Court in Bristol at the end of another chapter in what must be one of the longest running legal disputes currently before the courts. The dispute concerns public and private rights of way and the ownership of roads.
The first solicitor’s letter was written in October 1960 at about the time that the owners of Woodside House in Slad, Gloucestershire took steps to sell off the former gardener’s bungalow, which had recently been occupied by Laurie Lee, author of “Cider with Rosie”. The dispute centres around whether the bungalow could obtain vehicular access over the neighbouring farm, as no right of way had been reserved over the grounds of Woodside House. The first proceedings brought in 1976 failed to establish such a right and were concluded, after an appeal to the Court of Appeal in 1979, with the grant of an injunction against the then owner of the bungalow preventing him from using part of the track that led through the farm’s farmyard. A second set of proceedings brought in 1980 were struck out as an abuse of process, affirmed on appeal.
These proceedings were commenced in 2011 by the owners of the farm seeking to prevent use of a different part of the track. Guy Adams has acted for them throughout the proceedings and, following the merger of solicitors’ practices, is now instructed by Julian Wintle of Red Kite Law LLP.
There was an initial attempt to strike out parts of the defence and counterclaim, which was partially successful. The proceedings reached the Court of Appeal on appeal from Morgan J ( EWHC 1251 (Ch)) in relation to issues of res judicata and Henderson v Henderson type abuse of process: Price v Nunn  EWCA Civ 160. The remaining issues concerned the ownership of the farm track that ran along the boundary between the farm and Woodside House and Woodside Bungalow and whether the owner of Woodside Bungalow could claim the benefit of a public vehicular right of way (there being no dispute about access on foot) over the farm track. Various issues were abandoned by the Defendant before trial and the primary issue at trial was whether the Defendant could prove that the track had formed part of an old road and as to the effect of sections 67(5) and 65 (7), Natural Environment and Rural Communities Act 2006 (“NERCA”). Such a road was known to have existed in 1800 because it was specifically identified in a Turnpike Act, but only for the purposes of giving the Turnpike Trustees powers to discontinue it and to stop it up after the construction of a new road. It was claimed that the effect of sections 67(5) and 65 (7), NERCA was that any such right had become, by operation of law, a private right of way for mechanically propelled vehicles.
It was therefore necessary for the judge to consider, among the many issues which arose, the nature of common highways (or high roads) in 1800; issues of construction of the 1800 Act; issues as to where the burden lay of proving whether or not any public rights of way had been discontinued at law and the road stopped up, and in particular whether the maxim omnia praesumuntur rite et solemniter acta applied at this remove (the records of the Turnpike Trustees having been lost); factual issues as to the route of the old road having regard to historic mapping evidence as interpreted by the parties’ experts; the proper construction of section 67 NERCA; and issues of conveyancing and the application of appropriate presumptions as to the ownership of the road in question.
In a mammoth and detailed judgment running to 88 pages and 400 paragraphs, HHJ Russen KC has covered many topics of interest in this field. He ultimately concluded that the farm owned the road up to its centre line, applying the ad medium filium presumption, and that, even though the relevant part of the track had formed part of the road in 1800 and it could not be presumed that it had been stopped up, the owner of the bungalow could not establish that any private right of way had arisen under section 67, NERCA.