Brandwood and others v Bakewell Management Ltd

Common land — Easement — Vehicular access — Appellants asserting vehicular right of way by prescription over common — Common subject to section 193 of Law of Property Act 1925 — Whether possible to found prescriptive claim on criminal acts — Whether earlier Court of Appeal case decided per incuriam — Appeal dismissed The respondent was the fee simple owner of a 144 acre common in Newbury, which, by virtue of a deed executed by the respondent’s predecessor, was subject to the provisions of section 193 of the Law of Property Act 1925. Under those provisions, the general public acquired certain recreational rights over the common, but it was an offence for any person “without lawful authority” to draw or drive any vehicle upon it. The appellants were the owners of properties located on, or near, the common. For more than 20 years, they had enjoyed vehicular access to their properties over the common without objection from the fee simple owner. The respondent, which wished to charge the appellants for such use of the common, brought proceedings contending that the vehicular access was unlawful. The appellants maintained that they each had the requisite authority, derived from an easement of way acquired under the Prescription Act 1832 and/or by the doctrine of lost modern grant. The judge held that neither form of prescription could be founded upon activity that was, like that of the appellants, contrary to the criminal law, and he therefore gave judgment for the respondent. On appeal, the appellants contended, inter alia, that, under the doctrine of lost modern grant, the law presumed a lawful grant preceding the relevant use unless such a grant was impossible. Thus, the use should be deemed to have been lawful from the outset. In support of the judge’s decision, the respondent relied upon Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14, which, the appellants argued, was distinguishable or decided per incuriam. Held: The appeal was dismissed. The court was bound by the decision in Hanning to find for the respondent. That case had not been decided per incuriam, it contained no manifest error and it was not distinguishable from the facts of the present case. In order to establish a lost modern grant, the appellants had to show that they had used the common for the necessary period as of right and without the owner’s permission. In the present case, showing that they had acted without the licence of the owner meant establishing that they had acted illegally, in breach of a criminal statute. From the beginning of the use upon which the appellants relied, right up to the end of the 20th year, their use had been illegal, and they could not rely upon such unlawful activity to found the claimed easement: Holman v Johnson (1775) 1 Cowp 341 and Tinsley v Milligan [1994] 1 AC 340 applied. If they could so rely, it would offend against the principle that prevented them from benefiting from their criminal conduct: Beresford v Royal Insurance Co Ltd [1938] AC 586 applied. The appellants could not show 20 years’ continuous lawful use, and their claim to an easement therefore failed. Paul Morgan QC and Janet Bignell (instructed by Berger Oliver & Co) appeared for the appellants; Hazel Williamson QC and Leslie Blohm (instructed by Darwin Gray, of Cardiff) appeared for the respondent. Sally Dobson, barrister