The facts

The appellants were owners of properties abutting Newtown Common near Newbury, Berkshire. For many years, they had driven their cars along tracks and roads, some tarmacked, some unmade, from their properties to the public highway. The owner of the common claimed that the exercise of these vehicular rights was unlawful but said that it was prepared to grant an easement in return for a suitable payment.

Section 193 of the Law of Property Act 1925 provides that public rights over common land do not include vehicular rights and, more importantly, subsection (4) provides that any person who, without lawful authority, drives any vehicle over land to which the section applies is liable on summary conviction to be fined. The common was originally owned by the Earl of Carnarvon who sold it to Bakewell Management Ltd around 1986, but neither the Earl nor Bakewell had given any permission to the property owners to drive their vehicles over the common. This use was, therefore, ‘without lawful authority’ and the property owners were committing a criminal offence every time they crossed the common in their vehicles.

Parliament has provided a solution to this particular problem in s68 of the Countryside and Rights of Way Act 2000, which enables owners, whose user is an offence, to acquire a lawful easement upon making a payment to the owner of the land. Regulations made pursuant to the Act provide for this payment to be between 0.25% and 2% of the value of the properties requiring the right, the exact amount depending on when they were erected.

Bakewell was quite open about its purpose in bringing the action which was to make money by requiring the property owners to pay for what they had taken free and for granted for many years.

The property owners admitted driving across the common but alleged that they had enjoyed continuous vehicular rights of way for periods in excess of 20 years, without interruption and openly, and without the licence or consent of the owner. They counterclaimed for declarations that they were, therefore, entitled to a legal easement by virtue of s2 of the Prescription Act 1832 or, alternatively, under the principle of lost modern grant.

The problem for the property owners was the earlier Court of Appeal decision in Hanning v Top Deck Travel Group Ltd, where the Court had held that vehicular easements could not be acquired either by prescription or lost modern grant where the user was essentially illegal under s193 of the Law of Property Act 1925. The property owners argued, however, that the decision in Hanning was inconsistent with earlier cases and demonstrably wrong.

The decision

Unfortunately for the property owners, the Court was not convinced by their arguments. They relied heavily on the 1880 Scottish case of the Lord Advocate v Lord Lovat, a case concerning fishing rights which held that adverse rights could be acquired even if there was some illegality in an aspect of the way in which the rights were exercised. The Court, however, considered that there was a distinction between this and a situation where the user was illegal from its inception. For example, if the property owners could have claimed adverse possession by lawfully driving across the common, they would not lose it by proof that every time they did so they exceeded the speed limit in breach of the criminal law.

The property owners also claimed that, in the Hanning case, the Court of Appeal had misunderstood the judgment in the 1902 case of Neaverson v Peterborough RDC which concerned grazing rights. The owner in this case was not entitled to grant grazing rights for cattle on the land concerned, but had done so, and those exercising the rights claimed easements under the principle of lost modern grant. They failed because the owner was simply not empowered to grant such grazing rights. It was argued by the property owners in Bakewell that, in their case, the owner of the common was perfectly entitled to give permission to drive across it so that the principle of lost modern grant could apply, but the Court was not persuaded by this either.

Comment

The outcome was obviously disappointing and costly for the property owners, but has potentially wider implications which could affect the acquisition of easements over any highways which are not public highways. The reason for this is the comments made by the Court of Appeal in Massey and another v Boulden, decided last year. This case concerned the acquisition of rights by prescription over a village green. Section 193 of the Law of Property Act 1925 does not apply to village greens, but the case identified a similar problem in s34 of the Road Traffic Act 1988 which makes it an offence to drive without authority over common land but, more importantly, extends the offence to include driving over land ‘of any other description’ which is not a road. A road in this context means essentially a public highway. No vehicular rights could be acquired by prescription over the village green because the user was illegal under s34, but the wider implication (which Bakewell appears to confirm) is that this illegality extends to all other private roads or tracks over which vehicular rights of way may have been exercised for many years in the false belief that rights to do so have been acquired by prescription. There could, therefore, be many instances where the only way out for the land owner is to pay for a right of way under the Countryside and Rights of Way Act 2000.

Unless the House of Lords were, at some stage, to take a dramatically different view of the cases, there seems little doubt that they are settled law. It is an odd situation that the exercise of illegal rights of way can be made legal simply by the land owner giving consent to the exercise of those rights, but, failing a new interpretation by the House of Lords, only parliament would be able to change the law in this respect. Until then, land owners who thought they had prescriptive rights could find themselves with a hefty bill to pay for the privilege of exercising those rights.

Case references

Rowland Brandwood and others v Bakewell Management Ltd [2003] EWCA Civ 23 Hanning v Top Deck (1993) 68 P&CR 14 Lord Advocate v Lord Lovat (1880) 5 App Cas 273 Neaverson v Peterborough RDC [1902] 1 Ch 557 Massey and another v Boulden (2002) 48 EG 139

Source: Mayer, Brown, Rowe and Maw May 2003

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