The decision in the House of Lords earlier this year in Bakewell Management Ltd v Brandwood and ors has brought rationality to the vexed subject of the acquisition of vehicular rights by prescription, by overruling Hanning v Topdeck Travel Group Ltd [1994] and Massey v Boulden [2003].

Background

In Hanning the Court of Appeal had declared that it was not possible to acquire an easement by prescription through conduct that amounted to a criminal offence. The Court had been asked to consider the effect of s193(4) of the Law of Property Act 1925 (LPA1925) on a claim by the defendant to have acquired a vehicular right of way over common land. Section 193(4) states:

… any person who without lawful authority draws or drives upon any land to which this section applies any carriage cart caravan truck or other vehicle or camps or lights any fire thereon or fails to observe any limitation or condition imposed by the minister under the section in respect of any such land should be liable on summary conviction to a fine not exceeding level 1 on standard scale for each offence.

The section applies to:

… any land which is a metropolitan common within the meaning of the Metropolitan Commons Acts 1866 to 1898 or manorial waste or a common which is wholly or partly situated within an area which immediately before 1st April 1974 was a borough or urban district and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in the manner hereinafter provided…

The facts

The defendant was the operator of a fleet of double-decker buses. The only access to its premises from the public highway was along a track which crossed a wooded common. The common was of the kind that fell within s193(4) and the defendant did not have the consent of the owner of the common to drive across it. Therefore it did not have ‘lawful authority’ for the purposes of the section. Accordingly, it was committing a criminal offence in driving across the land. The Court held that, as one could not acquire an easement by prescription through conduct that was a criminal offence, the defendant was trespassing on the claimant’s land.

Massey concerned s34 of the Road Traffic Act 1988. The wording of s34 first appeared in the Road Traffic Act 1930. It provides:

34(1) Subject to the provisions of this section if without lawful authority a person drives a motor vehicle

(a) on to or upon any common land moorland or land of any other description not being land forming part of a road or

(b) on any road being a footpath or bridalway,

he is guilty of an offence.

Prior to Massey it was generally thought that the phrase ‘land of any other description’ in s34(1)(a) referred to land within the same category as common land or moorland – for example a village green. Commentators had not considered that the phrase meant simply ‘any land’.

The Court of Appeal by a majority decided that it did, and the principle in Hanning applied. This finding had to be considered in conjunction with the restricted meaning of ‘road’ in s34(1)(a). It meant:

… any highway and any other road to which the public has access and includes bridges over which a road passes.

The decision had serious ramifications for people whose properties abutted private roads. Unless a person had the benefit of an express right of way, driving a vehicle along such a road to get to their property could amount to a criminal offence. If they were to do so, they would be in the same position as a person whose vehicular access to their property lay across a common. They could not acquire a vehicular right of way by prescription.

Bakewell v Brandwood

Hanning was challenged by the defendants in Bakewell in the House of Lords. The case concerned a 144-acre common near Newbury, Berkshire. Some 28 houses abutted on to the common. For many years the owners of these houses had driven cars along made-up and unmade-up tracks and roads that crisscrossed the common in order to reach the public highway. For all but two of the properties it was their only means of access to the highway. Despite the long user, the new owner of the common abruptly decided that the use was unlawful and declared that all such use was to cease until formal easements had been granted in return for a payment.

Lost modern grant extinguishes a criminal offence?

It was clear that, but for s193(4) LPA 1925, the defendants had established all the elements required by both s2 of the Prescription Act 1832 and under the doctrine of lost modern grant to prove they had acquired a vehicular right of way: namely, that they or their predecessors had driven vehicles along the tracks or roads for upwards of 20 years ‘as of right’ (ie without consent, force or stealth). The doctrine of lost modern grant is the easier to establish because it can be relied upon where the user has ceased before the proceedings are issued, whereas s2 cannot.

In Bakewell the defendants believed that the doctrine also served to avoid the consequences of s193(4). For where the elements of long user are established, the doctrine gives rise to a legal fiction. The fiction is that a past owner of the servient land had granted an easement to permit the user but the grant has since been lost. Moreover, the only way to rebut the assumption – by proving such a grant was impossible – did not apply. So, counsel for the defendants argued, the user was being exercised with lawful authority and could not therefore be contrary to s193(4). The use was not a criminal offence and the rule in Hanning did not apply.

The difficulty with this argument was the decision in Hanning itself. The facts were not distinguishable. Counsel for the defendants sought to get around this difficulty by persuading the Court of Appeal to depart from its own previous decision on the ground that it was made per incuriam. To succeed, he had to show that the decision in Hanning was given in ignorance or forgetfulness of some statutory provision or some inconsistent authority binding on the court, or that it was made through some manifest slip or error. Ward LJ, giving the judgment of the Court, held that Hanning could not be said to have been decided per incuriam and therefore there was no justification for departing from it. He then went on to consider whether, had he not been bound by Hanning, he would have come to a different conclusion. He decided not. The defendants appealed.

The House of Lords overrules

The House of Lords unanimously allowed the appeal and overruled Hanning. Lord Scott, who gave the leading judgment, noted that Dylan LJ, who had given the leading judgment in Hanning, had cited a number of cases which the Lord Justice had considered established the rule that ‘an easement cannot be acquired by conduct which at the time the conduct takes place is prohibited by a public statute’. Kennedy LJ had given a judgment to the same effect. Lord Scott considered those cases anew and concluded that they had actually established a slightly different rule, namely:

An easement cannot be acquired to do something the doing of which is prohibited by a public statute.

Neaverson v Peterborough Royal District Council [1902] was one of those cases. There, Henn Collins MR had stated:

If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin then we ought to presume the existence of such a grant, where there is evidence of use for such a long period.

He then went on to say that: ‘Such a grant as is here suggested would have been illegal, whoever is supposed to have made it.’

Neaverson had been cited by Eve J in Hulley v Silver Springs Bleaching and Dying Co Ltd [1922] as authority for the proposition that:

A lost grant cannot be presumed where such a grant would have been in contravention of a statute and as title to prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise and the claim must fail.

The principle that the cases had established was not that criminal conduct could not be relied on to acquire an easement by prescription. The principle was that if a grant by an owner of the land could not have been lawfully made, for example because it was in contravention of a statute, one could not use the legal fiction of a presumed grant to acquire an easement.

A good practical example is given in the case Cargill v Gotts [1981]. Here the claimant contended that he had acquired, by long user, the right to abstract water from a millpond on the servient land for use on his neighbouring farm. However, under s23(1) of the Water Resources Act 1963, any abstraction of water from the millpond after 30 June 1965 was unlawful without a licence from the water authority. The law applied to the landowner as much as to the claimant and the claimant had never applied for a licence. The Court of Appeal held that, for the purpose of establishing the easement, the claimant was not entitled to rely on his illegal abstraction of water post-30 June 1965 because after that date the landowner could not have granted a right to abstract the water.

Lord Walker summed up the position neatly. The pre-Hanning cases would have had the same result if one had simply asked the question: ‘Could the right claimed have been lawfully granted by deed?’

The Hanning case was exceptional because the defendant’s use was only criminal if done without ‘lawful authority’ and the consent of the landowner would have amounted to lawful authority. That consent could be freely given and was not subject to issues of public interest. Lord Walker stated:

In the ordinary case of prescription of a private right of way, the prior authority of the landowner (in the solemn form of a grant by deed) is presumed or inferred from long user even though every act of user during the prescription period takes place without his actual prior authority and is a tortious (though not a criminal) act. I cannot see that any public interest would be served by holding that the absence of the landowner’s actual prior authority should produce a completely different result in cases where s193(4) is in play.

Lord Scott concluded his speech by stating:

In my opinion, if an easement over land can be lawfully granted by the landowner, the easement can be acquired either by prescription under s2 of the 1832 [Prescription] Act or by the fiction of lost modern grant, whether the use relied on is illegal in the criminal sense or merely in the tortious sense. I can see no valid reason of public policy to bar that acquisition. We have been referred to no case, pre Hanning, that decided the contrary. The decision in Hanning took the law, in my opinion, in the wrong direction. It follows that, in my opinion, your Lordships should hold Hanning to have been wrongly decided and should overrule the various rulings in reliance on Hanning that have been made in the subsequent cases.

‘Subsequent cases’ includes Massey v Boulden, thus enabling vehicular rights of way to be acquired by prescription over private roads and other land.

The decision in Bakewell is a breath of fresh air, to be welcomed by practitioners and homeowners alike in bringing clarity to an issue which affects so many properties.

Case references

Bakewell Management Ltd v Brandwood and ors [2004] UKHL 14

Cargill v Gotts [1981] 1WLR 441

Hanning v Topdeck Travel Group Ltd (1994) 68 P & CR 14, CA

Hulley v Silver Springs Bleaching and Dying Co Ltd [1922] Ch 268

Massey v Boulden [2003] 2 All ER 87

Neaverson v Peterborough Royal District Council [1902] 1 CH 557

Antonia Brandes is a partner and Claire Barker a professional support lawyer in the property department at Fladgate Fielder.  © Property Law Journal