In the absence of an express legal right of access people can obtain a legal easement through exercising a right for a long time (20 years at least). To do so, the use must have been without force, secrecy or permission. This is known as a prescriptive easement.
However, the law is more complex when it comes to acquiring rights over common land and town and village greens.
Generally, it is an offence to drive a mechanically propelled vehicle over a registered green without lawful authority. ‘Lawful authority’ includes the authority of the owner of the town or village green. Therefore you can grant an express easement over a town or village green but what about prescriptive rights?
If the prescriptive right was acquired before the green was registered then it is likely an easement will be acquired.
The position if the prescriptive right was acquired after the green was registered was considered in the case of Bakewell[1] which related to vehicular access over common land. It was decided that provided the owner of the green was allowed, under the governing statute, to grant permission to use the land for vehicular access, the person using the access could acquire a prescriptive right to do so.
When it comes to Town and Village Greens the above principle also applies but Section 12 of the Inclosure Act 1857 and section 29 of the Commons Act 1876 need to be considered. These make it an offence to injure a green, interrupt the recreational use of a green and to interfere with the green in a way which is not done with a view to the better enjoyment of the green.
So, will driving over a green contravene the above? There is currently no case law on this and it will depend on the circumstances of a particular case. Frequency of vehicular use, the size of the vehicles and whether damage is caused to the green