Brandwood & Ors v Bakewell Management Ltd.

This appeal concerns whether owners of properties abutting Newtown Common could acquire prescriptive vehicular rights or a lost modern grant where each act of driving on the common was, at the time, an offence under section 193(4) of the Law of Property Act 1925. The Court of Appeal held that longstanding authority, notably Hanning v Top Deck Travel Group Ltd., prevents acquisition of an easement by user that was prohibited by statute. The court found the appellants could not rely on the fiction of a lost modern grant because their user was illegal on each occasion and public policy bars a claimant from founding relief on criminal conduct. The court also noted the later statutory regime (section 68 of the Countryside and Rights of Way Act 2000 and the 2002 Regulations) provides a statutory remedy but does not alter the legal principle applied to historic illegal user.

Background and facts. Newtown Common is ancient common land. Bakewell Management Ltd. acquired the common and sought declarations and injunctions to restrain vehicular crossing by owners of adjoining properties. Many occupiers had driven across the common for decades without permission. Section 193 of the Law of Property Act 1925, as applied to the common, prohibited driving on the common without lawful authority and made each offence punishable on summary conviction.

Procedural posture. Park J in the Chancery Division granted the declaration against 43 defendants but gave them permission to appeal. This is an appeal to the Court of Appeal.

Nature of the claim. The defendants relied on long user for at least twenty years, asserting rights by prescription under section 2 of the Prescription Act 1832 or by the doctrine of lost modern grant, seeking declarations of a vehicular easement.

Issues framed.

• Whether long user that was illegal under section 193(4) LPA 1925 can give rise to a prescriptive easement or a lost modern grant.
• Whether the Court of Appeal should depart from Hanning v Top Deck Travel Group Ltd. and, if so, on what basis.

Court’s reasoning and decision. The court reviewed the law of prescription and the lost modern grant and examined authorities including Neaverson, George Legge, Cargill and Hanning. It applied the Young v Bristol Aeroplane principles on when the Court of Appeal may depart from its own decisions and concluded Hanning was not per incuriam and did not contain a manifest error of law. The court concluded that where each occasion of user was a statutory offence the doctrine cannot be invoked to create an easement: the claimant cannot base a successful claim on conduct that transgresses a positive statute. The court acknowledged Parliament has provided a statutory route (section 68 CROW Act 2000 and the Vehicular Access Regulations 2002) to obtain vehicular access by payment of compensation but held that statutory reform is the correct route for any change. The appeal was dismissed.

Appeal dismissed. The Court of Appeal held that established authority (notably Hanning v Top Deck Travel) prevents acquisition of an easement by conduct that, at the time it occurred, was prohibited by statute; the appellants’ continuous vehicular user was illegal on each occasion under section 193(4) Law of Property Act 1925 and public policy bars enabling a claimant to benefit from criminal conduct. The court therefore upheld the lower court’s decision and dismissed the appeal, noting Parliament’s subsequent statutory remedy under section 68 of the Countryside and Rights of Way Act 2000 and the 2002 Regulations.

On appeal from the Chancery Division (Park J). Park J granted the declaration against 43 defendants and gave permission to appeal. The present appeal was heard in the Court of Appeal (Civil Division) and determined under neutral citation [2003] EWCA Civ 23.