Since s193 LPA 1925 makes it an offence to drive a vehicle over common land, it was held that it was not possible to acquire an easement through long usage to drive a vehicle across common land to get to one’s house.

The result, of course, was that many property owners were then asked for ransom payments by owners of the common land. In an effort to counter that problem a scheme was set up under s68 Countryside and Rights of Way Act 2000, which gave vehicular rights of access, subject to payment of relatively small sums to the common’s owner.

However, we are pleased to say that the HL has finally intervened and that this piece of nonsense has been consigned to the judicial dustbin. In the view of the HL, it is indeed correct that an easement cannot arise through criminal use, but one has to distinguish between two categories of cases. On the one hand, there are situations (eg with driving a vehicle on common land) where, if the landowner gave his permission, then that would remove the criminality of the use, whilst on the other hand there are cases where such granting of permission would still not prevent it being a criminal offence. With the former, the HL has decided that an easement can be created; with the latter, it still cannot be created (and thus Hanning [1993] remains good law to that extent).

In summary, the problems with vehicular access over common land have now been removed. No doubt some householders who have previously paid money for a vehicular right of access will wonder whether they can recover the money; in theory that should be possible (in Kleinwort Benson [1998], the HL held that it is possible to recover money paid under a mistake of law) but we suspect that might prove to be an uphill struggle. Bakewell Management v Brandwood [2004] UK HL 14; practicallaw.com. © Practical Lawyer