|
Background:
Usually, a person can acquire an easement (such as a right of way) by prescription in three ways:
(i) at common law, when the right has been enjoyed since time immemorial (which will be presumed if the right has been used for at least 20 years); (ii) under the doctrine of lost modern grant, i.e. a presumption after 20 years’ user that an easement has been expressly granted but that the deed of grant has been lost; and (iii) under section 2 of the Prescription Act 1832 if the right has been enjoyed for 20 years before the commencement of legal proceedings.
There are three basic rules which apply to all three methods: (i) the use must be as of right, i.e. consistent with the fiction that the right was granted at some time in the past and that the claimant has been acting in reliance on this, and the use must not be by force (nec vi), secretly (nec clam) or by permission (nec precario); (ii) the right must be acquired by a fee simple owner against a fee simple owner; and (iii) the use must be continuous.
In Hanning v Topdeck Travel Group Limited [1993] 68 P&CR 14, the Court of Appeal held that an easement by prescription could not be acquired by conduct which was prohibited by statute. Since section 193 of the Law of Property Act 1925 made it a criminal offence to drive on common land without lawful authority, the effect of the Hanning case was that a person could not obtain a vehicular right of way by prescription across common land.
The case caused considerable concern because the residents of many houses adjoining common land were using the common for vehicular access on the assumption that they had acquired an easement by prescription after 20 years’ user. Opportunist companies began buying freehold common land in order to extract money from local residents for the formal grant of a right of way.
To address these concerns, section 68 of the Countryside and Rights of Way Act 2000 contains provisions to enable a person to acquire a statutory easement where he would have acquired one by prescription but has been prevented from doing so because the user is a statutory offence. However, the Act does not provide a complete solution to the problem because the statutory easement has to be paid for.
The issue of acquiring an easement for a vehicular right of way over common land has just been considered by the House of Lords in Bakewell Management Limited v Brandwood [2004] UKHL 14.
Facts:
The residents of houses surrounding the edges of a common had, for more than 20 years, used roads or tracks crossing the common to access their properties. The freehold title to the common was transferred to the claimant who then sought to negotiate payments from the residents for granting vehicular access rights to them. Some of the residents argued that they already had enforceable rights of vehicular access across the common.
In the High Court, Counsel for the residents argued that the use by the residents of the vehicular access across the common to their houses was not contrary to criminal law. Section 193 of the Law of Property Act 1925 makes it an offence to drive a vehicle across common land "without lawful authority". However, the residents had acquired an easement by prescription under the doctrine of lost modern grant which meant that the owner of the common was presumed to have granted a right of way to the residents. As a result, the residents had lawful authority to drive their vehicles across the common. Counsel submitted that the Court of Appeal in the Hanning case had not considered this argument and that the decision did not apply to easements obtained pursuant to the doctrine of lost modern grant.
However, the High Court judge considered that he was bound by the decision of the Court of Appeal in the Hanning case and rejected the claim by the residents to a vehicular right of way over the common. The residents appealed but the Court of Appeal also felt bound to follow the Hanning case and dismissed the appeal. The residents then appealed to the House of Lords.
Decision:
The House of Lords allowed the appeal. The decision in Hanning was wrong and should not be followed.
It was held that if an easement over land can lawfully be granted by the landowner, the easement can be acquired by prescription, even if the use relied on is not lawful, whether in the criminal or the tortious sense.
The House of Lords emphasised the importance of upholding easements acquired by long interrupted user as a matter of public policy. As Lord Hoffmann said in R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335, "Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment".
A distinction had to be drawn between cases where a landowner grants (or is presumed to grant) a right to use land in a way that is prohibited by statute and cases where a landowner grants a right to use land when the statute prohibiting that use is expressed in terms that allows the landowner to authorise the prohibited use and exempt the use from criminality. The former is an unlawful grant and incapable of vesting any right in the grantee and long and uninterrupted user should not be capable of supporting a presumed grant. In the case of the latter, there is no reason why long and uninterrupted user should not give rise to the presumed grant of an easement.
The House of Lords referred to a number of cases in the former category, for example rights to discharge sewage into a natural stream when the discharge was an offence under section 3 of the Rivers Pollution Prevention Act 1876 (George Legge & Son Ltd v Wenlock Corporation [1938] AC 204) and rights to abstract water from a mill pond when this required a licence from the water authority under section 23(1) of the Water Resources Act 1963 and no licence has been obtained (Cargill v Gotts [1981] 1 WLR 441). In these cases, no rights were presumed to have been granted because the exercise of the rights was prohibited by the relevant statute.
These cases had to be distinguished from the Hanning case and the case before the court which fell into the latter category because section 193 of the Law of Property Act 1925 expressly permitted the landowner to make a lawful grant of the easement. There were sound reasons of public policy why a grant should be presumed in such cases so that long de facto enjoyment should not be disturbed.
The decision is not limited to the acquisition of an easement under the doctrine of lost modern grant and also applies to an easement acquired by prescription under section 2 of the Prescription Act 1832.
Comment:
The Hanning case concerned vehicular rights of way over common land. However, subsequent cases applied the principle in Hanning to rights over land that was not common land.
In Robinson v Adair [1995] Times, March 1995, the issue was whether a road had, by presumed dedication, become a public highway. Since the use relied on constituted an offence under statute, there was held to be no presumed dedication.
In Massey v Boulden [2003] 2 All ER 87, a houseowner claimed a right of way by prescription over a track on a village green. The court said that a prescriptive right of way could not be acquired by a user in breach of a criminal statute. Under section 34 of the Road Traffic Act 1988, it is an offence to drive without lawful authority on common land, moorland or land of any other description, if the land is not part of a road. "Road" is defined as a "road to which the public has access". The central issue in the case was whether the track on the village green was "land of any other description..[that was]..not part of a road".
The Court of Appeal held that "land of any other description" did not mean land similar to common land or moorland but meant any land, regardless of whether it had any connection to common land or moorland. For the use of any land for vehicular access not to be an offence under section 34 of the Road Traffic Act 1988, the land must be a road and accessible by the public for use as a road.
The decision meant that vehicular rights of way could not be acquired by 20 years’ user over tracks or neighbours’ drives because they are not roads accessible by the public as such.
The House of Lords in Bakewell v Brandwood referred to both these cases in its judgment. In relation to Robinson v Adair, the court said that because it was open to the owner of the road to have dedicated it as a public highway, there was no reason why public policy would prevent a presumption of dedication arising from long use. In relation to Massey v Boulden, the court said that if Hanning was wrongly decided in treating user in breach of section 193(4) of the Law of Property Act 1925 as a bar to the acquisition of a right of way by prescription then Massey v Boulden was wrongly decided in treating user in breach of section 34(1) of the Road Traffic Act 1988 as a similar bar.
The House of Lords decision will no doubt cause many houseowners whose legal rights of vehicular access depend on easements having been acquired by prescription to breathe a sigh of relief. Less pleased will be the people who bought up common land in the hope of extracting money from local people using the land for vehicular access. Also less pleased will be those houseowners who, considering themselves in a precarious legal position after Hanning and Massey v Boulden, paid out unnecessarily for a statutory easement under section 68 of the Countryside and Rights of Way Act 2000.
|
