The administration of justice is all about striking a balance between public and private rights and a nonsensical situation exists whereby a private individual cannot legally challenge certain public rights. Current UK law in respect of adverse possession against the highway is more akin to the judicial systems of the eastern European countries after WW2. The falling out of use and changes in law that precluded private individuals from applying to the courts for writ of “Ad Quod Damnum” to stop up the highway means that the scales of justice have been quite wrongly and permanently tipped in favour of public rights to the exclusion of all and any private rights.

Possession is possession and there is no tangible difference between securing real property illegally via adverse possession or via legal prescription. The only difference is that transfer of the former is without a contractual arrangement. It cannot be in the public interest for a person applying for first registration of land to face eviction and given an alternative housing provision at public expense. Just because a person’s home is sitting on highway waste, not a past or present traveller’s route to cause an obstruction, why should their caravan, albeit not subject to planning and to which no complaint has been made, be destroyed. The Human Rights Act issues here probably direct that another ludicrous legal cost burden exists for the taxpayer.

There is no reason why an application for adverse possession cannot consider a land transfer mechanism that extinguishes highway rights and enacts a new title if encroachment from an existing title is not taking place. The notion that the highway estate automatically assumes the greatest title and that it is not possible to create a new lower class of title out of it is bonkers.