The law: acquiring a right of way by prescription

Easements, covenants and other rights which benefit a property can often be as important as the property itself. If a property ('the dominant tenement') does not adjoin the public highway, it will need to have a right of way to cross the adjoining land ('the servient tenement'). That land could be private or common land. Ideally, an express grant from the owner of the land will allow the right of way.

In practice, this is often not the case and the property owner has to rely upon other means of establishing a right of way. One possibility is the doctrine of prescription. The owner of the dominant tenement must show that he, or previous owners and occupiers, have crossed the servient tenement for a continuous period of at least 20 years. It must have been open, free from force and without the permission of the landowner. If this can be proven, a right of way will be presumed to have been granted.

The property owner might produce evidence of such usage, perhaps backed up by indemnity insurance to give comfort to prospective purchasers. It is possible for the claim to be defeated however, if the landowner can show that such a grant would have been legally impossible, for example because the servient owner lacked the legal capacity to make such a grant, as in Tehidy Minerals v Norman.

The problem

Difficulties have arisen in recent years where the right of way is claimed over common land, including town and village greens. Section 193 of the Law of Property Act 1925 made it possible for the owner of common land to make it a criminal offence for any person to drive across that land 'without lawful authority'.

Similar provisions were included in the Road Traffic Act 1930 and appear in the most recent version, the Road Traffic Act 1988. These provisions also make it an offence to drive 'without lawful authority' on land, other than a road, to which the public has access.

It effectively meant that unless the dominant owner could show that the owner of the common land had expressly and validly granted a right of way or permission to drive across the land, doing so would be illegal. By the same token, it prevented the owner of the property from acquiring a right of way by prescription. Unless the 20-year period cited was from before the legislation came into force, any prior usage would be regarded as having been illegal. Whether a right of prescription could be acquired through illegal usage was unclear.

The issue came to a head in Hanning v Top Deck Travel Group Ltd. In that case, the Court of Appeal declared that Top Deck Travel could not acquire a right of way by prescription where the use was 'illegal'; this led to a number of instances of private companies buying common land and seeking payments from neighbouring property owners in return for right of way.

Indeed, in the Bakewell Management case, Bakewell Management, the owner of the common, openly acknowledged that its aim was to make residents pay for access across the land, rather than deny them access.

Most practitioners were aware of the difficulties concerning rights of way over common land, but the Court of Appeal decision in Massey v Boulden last year came as a shock to many. The Court declared that by virtue of the Road Traffic Act 1988, it had not been possible since the start of the 1930 Act to acquire a right of way by prescription across any private land (ie any land which was not a road) and not just common land. It meant many property owners faced the prospect of purchasing an express right of way for properties they had bought on the assumption that a prescriptive right of way existed.

Section 68 of the Countryside and Rights of Way Act 2000

In order to mitigate the effects of Hanning, Parliament passed legislation. The legislation enables the property owner to acquire a right of way that the decision in Hanning would otherwise have prevented.

Section 68 also limits the amount of compensation that the property owner must pay the owner of the land over which the right of way runs.

The compensation is based upon the age and value of the property. It is lower than might otherwise have been charged by the owner of the land as a 'ransom' (though compensation could still amount to 2% of value). Many property owners chose to use this procedure in light of Massey v Boulden.

The House of Lords decision

Fortunately for many, the House of Lords overturned Hanning. It drew a distinction between situations where an activity could never be lawful and those where a landowner's permission could make it lawful.

The decision was justified on the grounds of public policy in that Hanning took the law in the wrong direction. Hanning could only be justified by drawing a distinction between conduct illegal in a criminal sense and conduct illegal in a tortious sense (ie civil trespass). Their Lordships saw no reason for doing so. If the owner of common land could lawfully grant a right of way, then that right was capable of being acquired by prescription. Furthermore, because the Court of Appeal in Massey had placed such reliance on Hanning, Massey v Boulden can no longer be regarded as good law.

The decision means that owners of common land may lose a potential source of revenue. Hopefully, it should also be easier and cheaper to obtain indemnity insurance. Those pursuing claims under s68 may decide not to proceed further. If they do withdraw however, they will have to pick up the costs. It also remains to be seen whether any attempts will be made to recover payments made on the basis of Hanning and Massey v Boulden. Such claims are theoretically possible following the decision in Kleinwort Benson v Lincoln City Council.

Comment

The long term consequences of Bakewell Management remain to be seen in both civil and criminal law. Their Lordships acknowledged that the Law of Property Act 1925 and the Road Traffic Act 1988 contained an unusual type of prohibition, as they allowed the landowner to authorise the prohibited use and exempt that use from criminality.

But there are other statutes which prohibit certain activities without the consent of the landowner or statutory undertaker. An obvious case is in the area of environmental law. Are we going to see the Bakewell Management judgment used to create easements for activities for which statutory consents have not been obtained and which would otherwise constitute criminal offences?

Case references

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

Tehidy Minerals v Norman [1971] 2 QB 528

Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14

Massey v Boulden [2003] 2 All ER 87

Kleinwort Benson v Lincoln City Council [1999] 2 AC 349

Source: TLT Solicitors July 2004

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