[2004] EWLands CRO_143_2003 (22 October 2004)
	CRO/143/2003

LANDS TRIBUNAL ACT 1949

COSTS – dispute under Vehicular Access Across Common and Other Land (England) Regulations 2002 – Regulations providing for statutory easements rendered unnecessary by subsequent House of Lords decision – reference to Lands Tribunal dismissed at request of parties – no order for costs

IN THE MATTER OF A NOTICE OF REFERENCE

BETWEEN
JOHN ROWLAND WILLCOX
Applicant

and

FREDERICK GEORGE TUCKER	Respondent

DECISION ON COSTS

Representations made in writing

	DECISION ON COSTS
1.	Notice of reference in this case was given by the applicant under regulation 10 of the Vehicular Access Across Common and Other Land (England) Regulations 2002, which provides for the Lands Tribunal to resolve a dispute arising from a counter notice served in respect of an application for a statutory easement under the Regulations.  On 11 June 2004, following requests from both parties that these proceedings be dismissed, I ordered that they should be.  Submissions have been made on behalf of the respondent that the applicant should pay the respondent’s costs.  I have considered these and the submissions of the applicant.  My conclusion is that there should be no order as to costs.
2.	The parties are, and were at all material times, in dispute about the applicant’s entitlement to vehicular access from the public highway, the B3151, to his premises, Chestnut Farm, Mudgley Hill, Wedmore, Somerset, across land owned by the respondent, Mudgley Hill Farm, Mudgley Hill.  
3.	The Regulations were enacted under section 68 of the Countryside and Rights of Way Act 2000 to provide a solution to the problem faced by the owners of dwellings whose only vehicular access to their premises is across common land or land other than a road, in the light of the decision of the Court of Appeal in Hanning v Top Deck Travel Group Limited (1993) 68 P & CR 14, which was followed by the Court of Appeal in Massey v Boulden [2003] 1 WLR 1792 and in Bakewell Management Limited v Brandwood [2003] 1 WLR 1429.  In all three cases the court held that the dwelling owners could not acquire an easement to drive across the landowners’ land by prescription, because the driving had been a criminal offence pursuant to section 193(4) of the Law of Property Act 1925, in the case of Hanning and Bakewell, and section 34(1) of the Road Traffic Act 1988, in the case of Massey.
4.	The Regulations enabled such dwelling owners to acquire an easement but at a price related to the value of their dwelling to be paid to the landowner.  Regulation 3(1) provides that:
“An owner of any premises may, as respects a way to which section 68 of the Act applies, apply for the creation of an easement in accordance with these Regulations.”
Section 68(1) provides that:
“This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way – (a) was an offence under an enactment applying to the land crossed by the way but (b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.”
5.	The applicant made an application under the Regulations by serving on the respondent notice under regulation 6(1) dated 4 July 2003.  The respondent opposed the application and served a counter notice under regulation 8(1) dated 26 September 2003.  Pursuant to regulation 10(1) the applicant made reference to this Tribunal to determine the matters in dispute.  By notice of the Tribunal dated 8 March 2004, a hearing was fixed for 3 days from 6 to 8 July 2004.
6.	On 1 April 2004 the House of Lords gave judgment in the appeal from the decision of the Court of Appeal in Bakewell [2004] 2 WLR 955.  They allowed the appeal and overruled Hanning and the cases that had followed it.  Lord Scott, with whom the other law lords agreed, said at paragraph 47:
“In my opinion, if an easement over land can be lawfully granted by the landowner the easement can be acquired either by prescription under section 2 of the 1832 Act or by the fiction of lost modern grant whether the use relied on is illegal in the criminal sense or merely in the tortious sense.  I can see no valid reason of public policy to bar that acquisition.  We have been referred to no case, pre-Hanning, that decided the contrary.  The decision in Hanning took the law, in my opinion, in a wrong direction.  It follows that, in my opinion, your Lordships should hold Hanning’s case to have been wrongly decided and should overrule the various rulings in reliance on Hanning’s case that have been made in the subsequent cases.”
7.	In the light of the House of Lords’ decision in Bakewell, not only was there no need for the applicant to secure an easement under the Regulations but also he no longer had the right to do so because he could no longer satisfy the requirement of section 68(1)(b) of the Act, that the use of the way should otherwise have been sufficient to create an easement.  More generally the statutory provisions themselves had been rendered unnecessary by the decision.
8.	In these unusual circumstances the just result in my judgment is that each party should bear his own costs.  The proceedings were rendered unnecessary by the House of Lords’ clarification of the law.  Apart from this it was not inevitable that the applicant should fail in the dispute.  The respondent points out that the way over which the applicant claims a right of way is a footpath and that this Tribunal in Burns and Bollands v Kirby (REF/4/2003) had held that a right of way could not be acquired under the Regulations along a way that was a footpath or bridleway.  However, the Court of Appeal had granted permission to the applicants in that case to appeal, so that the applicant in the present case could have succeeded despite that decision of the Tribunal.  The applicant is thus not properly to be treated as one whose application has, or would have, failed.
9.	The respondent contends that the Tribunal should exercise its discretion as to costs in accordance with regulation 17 of the Regulations, which provides that: 
“Where an applicant withdraws or otherwise fails to continue with the application at any stage, he shall be liable for the reasonable costs incurred by the land owner.”
This provision does not, in my judgment, have any relevance to the present circumstances.  The Tribunal’s power to award costs derives from rule 52 of the Lands Tribunal Rules 1996 and is exercisable only in relation to the costs of and incidental to the proceedings.  It is the reference to the Tribunal of the dispute arising from the respondent’s counter-notice that constitutes the proceedings in a case like the present.  It is those proceedings before the Tribunal that under rule 45 may, by consent, be withdrawn or may be dismissed.  Whether the application itself is then withdrawn or not continued with is another matter, with which the Tribunal is not concerned.
10.	It does not seem to me that regulation 17 should in any event influence the exercise of my discretion as to costs.  It is one element in the statutory scheme that, as I have said, has been rendered unnecessary by the House of Lords’ clarification of the law.
11.	The respondent says that, although he wrote to the applicant on 23 April 2004 pointing out the effect of the decisions in Bakewell and Burns and Bollands, it was not until 10 June 2004 that the applicant sought to withdraw the reference.  During the intervening period the respondent had continued to prepare for the hearing, which had been fixed for three days starting on 6 July 2004.  I do not think that this is a matter that should affect my decision on costs.  It was open to the respondent, following the decision in Bakewell on 1 April 2004, to apply for the proceedings to be dismissed, but he did not do so until 2 June 2004, only 8 days before the applicant’s application for dismissal.
12.	The applicant seeks the costs of the respondent’s application for costs.  I do not order this.  In the unusual circumstances of this case I consider that the just result, on this matter as in relation to the dismissal itself, is that each party should bear his own costs.
					Dated 22 October 2004

					George Bartlett QC, President