Bakewell Management Ltd v Brandwood and others

Common land — Easement — Vehicular access — Whether appellants entitled to right of way over common acquired by prescription — Whether possible to found prescriptive claim on criminal acts — Section 193 of Law of Property Act 1925 — Whether earlier case wrongly decided — Appeal allowed Each of the appellants owned a house bordering on a common near Newbury. The respondent owned the common, which, by virtue of a deed executed by its predecessor, was subject to section 193 of the Law of Property Act 1925. Under this section, the general public acquired certain recreational rights over the common and, pursuant to section 193(4), it became an offence for any person “without lawful authority” to draw or drive any vehicle upon it. Vehicular access to the appellants’ houses from the nearest public road had, since their construction, been across the common, although its owners had never authorised such use. The respondent sought to establish that the appellants had no vehicular rights over the land, and that such use was unlawful. The appellants maintained that they had acquired an easement by prescription under section 2 of the Prescription Act 1832, or under the fiction of lost modern grant. The courts below ruled in favour of the respondent. They considered that they were bound to do so by the authority of Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14, an analogous case in which it had been decided that: (i) in the absence of any permission for vehicular access, no “lawful authority” for such use existed, thus making it an offence under section 193(4); and (ii) a rule, established by case law, meant that an easement could not be acquired by conduct that was, at the time it took place, prohibited by a public statute. The appellants appealed, arguing that Hanning should be overruled. Held: The appeal was allowed. The decision in Hanning, and subsequent rulings made in reliance upon it, were wrong and ought not to be followed. The cases cited in Hanning did not establish the rule stated in that case. On the contrary, they established a different rule, namely that it was not possible to acquire an easement to do something that was prohibited by a public statute. The rule stipulated that a lost grant could not be presumed where such a grant would contravene a statute: see Neaverson v Peterborough Rural District Council [1902] 1 Ch 557; Glamorgan County Council v Carter [1963] 1 WLR 1 and George Legge & Son Ltd v Wenlock Corporation [1938] AC 204 also considered. The lost grant claimed in Hanning, and which the appellants sought to establish in the present case, could have been lawfully made. If an easement over land could lawfully be granted by the landowner, it could be acquired either by prescription under section 2 of the 1832 Act, or by the fiction of lost modern grant, regardless of whether the use relied upon was illegal in either the criminal or tortious sense. There was no valid reason in terms of public policy to bar that acquisition. For public policy purposes, conduct that was illegal in a criminal sense was not necessarily different in kind from illegal conduct in a tortious sense, and it was accepted that a prescriptive right, or a right under the fiction of lost modern grant, could be obtained by long use that was, throughout, illegal in the latter sense. Moreover, the criminal use of the common was not one against which the public law set its face in all cases; it was criminal only because the landowner had given no “lawful authority”. Paul Morgan QC and Janet Bignell (instructed by Berger Oliver & Co) appeared for the appellants; Hazel Williamson QC and Leslie Blohm (instructed by Oury Clark) appeared for the respondent. Sally Dobson, barrister