A recent ruling from the House of Lords has overturned the previous consensus on vehicular rights of way over common land. The decision has potentially worrying implications for owners of common land, as it suggests that those who have paid for access to it might have grounds for claiming repayment.
The previous landmark case had been Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14, in which the Court of Appeal held that vehicular rights of way over common land could not be acquired through long-term use alone, because section 193(1) of the Law of Property Act 1925 made driving on a common “without lawful authority” a criminal offence. Illegal use could not form the basis of a claim for an easement, on the basis that a crime does not cease to be a crime just because it is carried out or repeated over a long period.
The Court of Appeal’s decision in Massey v Boulden [2002] EWCA Civ 1634; (2003) 100(3) LSG 34 took things further. The court pointed out that driving “without lawful authority” on any land that is not a road has also been an offence under the Road Traffic Acts since 1930 – and, according to the court’s interpretation, the definition of “road” excluded any private track to which the public did not have a right of access.
On 1 April, the House of Lords gave its long-awaited ruling in Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] PLSCS 82. The result was a unanimous overruling of Hanning and the decisions following it. Since under both the Law of Property Act and the Road Traffic Acts the landowner could have given lawful authority meaning that access would not have constituted an offence, the law now adopts the fiction that he/she did just that. This leaves in place the underlying principle that illegal use cannot give rise to a prescriptive easement, such that an offence that could not have been prevented by the grant of lawful authority will still preclude the acquisition of rights.
Judgments are declaratory of the law. Consequently, the law is treated as having always been as it was understood before Hanning. This means that anyone who paid for rights under the statutory scheme will have done so under the mistaken belief that they were liable to do so.
Before November 1998, that would have been the end of the story, as for the previous 200 years it had been believed that money paid under a mistake of law was irrecoverable. However, in another declaratory ruling (Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095), the House of Lords said that the “mistake of law” rule had never been a valid part of the laws of England and Wales. Consequently, it may now be possible for those who paid for rights to seek repayment, depending upon the sums involved and the financial means of the landowner. For landowners who have enjoyed windfall payments where rights previously thought to have existed were displaced by Hanning, this could be a worrying prospect.
Malcolm Dowden, property support lawyer at Charles Russell
Related items:
Start your free trial today
Your trusted daily source of commercial real estate news and analysis. Register now for unlimited digital access throughout April.
Including:
- Breaking news, interviews and market updates
- Expert legal commentary, market trends and case law
- In-depth reports and expert analysis
A recent ruling from the House of Lords has overturned the previous consensus on vehicular rights of way over common land. The decision has potentially worrying implications for owners of common land, as it suggests that those who have paid for access to it might have grounds for claiming repayment.
The previous landmark case had been Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14, in which the Court of Appeal held that vehicular rights of way over common land could not be acquired through long-term use alone, because section 193(1) of the Law of Property Act 1925 made driving on a common “without lawful authority” a criminal offence. Illegal use could not form the basis of a claim for an easement, on the basis that a crime does not cease to be a crime just because it is carried out or repeated over a long period.
The Court of Appeal’s decision in Massey v Boulden [2002] EWCA Civ 1634; (2003) 100(3) LSG 34 took things further. The court pointed out that driving “without lawful authority” on any land that is not a road has also been an offence under the Road Traffic Acts since 1930 – and, according to the court’s interpretation, the definition of “road” excluded any private track to which the public did not have a right of access.
On 1 April, the House of Lords gave its long-awaited ruling in Bakewell Management Ltd v Brandwood [2004] UKHL 14; [2004] PLSCS 82. The result was a unanimous overruling of Hanning and the decisions following it. Since under both the Law of Property Act and the Road Traffic Acts the landowner could have given lawful authority meaning that access would not have constituted an offence, the law now adopts the fiction that he/she did just that. This leaves in place the underlying principle that illegal use cannot give rise to a prescriptive easement, such that an offence that could not have been prevented by the grant of lawful authority will still preclude the acquisition of rights.
Judgments are declaratory of the law. Consequently, the law is treated as having always been as it was understood before Hanning. This means that anyone who paid for rights under the statutory scheme will have done so under the mistaken belief that they were liable to do so.
Before November 1998, that would have been the end of the story, as for the previous 200 years it had been believed that money paid under a mistake of law was irrecoverable. However, in another declaratory ruling (Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095), the House of Lords said that the “mistake of law” rule had never been a valid part of the laws of England and Wales. Consequently, it may now be possible for those who paid for rights to seek repayment, depending upon the sums involved and the financial means of the landowner. For landowners who have enjoyed windfall payments where rights previously thought to have existed were displaced by Hanning, this could be a worrying prospect.
Malcolm Dowden, property support lawyer at Charles Russell
Related items:
No through road, EGi Legal 20 March 2004
