Bakewell Management Ltd v Brandwood and others

Easement — Defendant householders asserting vehicular way over common — Common subject to section 193 of Law of Property Act 1925 — Householders’ claim based upon prescription — Whether possible to found prescriptive claim on criminal acts — Whether earlier Court of Appeal case decided per incuriam — Earlier case followed — Judgment for owner of commonThe fee simple owner of a 144 acre common in Newbury executed a deed that subjected the common to the provisions of section 193 of the Law of Property Act 1925. While the general public acquired certain recreational rights, it became an offence for any person “without lawful authority” to draw or drive any vehicle upon the common. The claimant company acquired the fee simple in 1986. The defendant householders were the owners of 29 residential properties located on, or near, the common. For over 20 years, they had enjoyed vehicular access to and from the common without objection from the fee simple owner. The claimant, with a view to making a charge for such use of the common, informed the householders that continued use would require its authorisation. This was rejected by the householders on the ground that they each had authority, derived from an easement of way acquired under the Prescription Act 1832 and/or by the doctrine of lost modern grant. The claimant contended that the court was bound to follow the Court of Appeal’s decision in Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14, where it was held, upon similar facts, that neither form of prescription could be based upon activity that was contrary to the criminal law. Counsel for the householders submitted that Hanning had been decided per incuriam, and that it would have been decided differently had it been argued that the alleged criminality of the use did not arise for consideration unless or until it had been found, as a matter of property law, that no easement subsisted. Held: Judgment for the claimant. Although the householders’ argument was not without merit, a High Court judge ought not to regard himself as able to depart from an applicable Court of Appeal decision upon the basis that a new argument, not presented to the Court of Appeal, had been presented to him. This was all the more so where, as in Hanning, the House of Lords had refused leave to take the appeal further. Subject to any further finding of fact, the above ruling did not apply to the three or four properties that had enjoyed the desired access for more than 20 years prior to the 1927 deed coming into force. Jonathan Ferris (instructed by Oury Clark, of Slough) appeared for the claimant; Paul Morgan QC and Janet Bignell (instructed by Berger Oliver) appeared for the defendants. Alan Cooklin, barrister