Bakewell Management Limited (Respondents) v. Brandwood and others (Appellants)

A prescriptive easement may arise from long, open and uninterrupted user even though the unauthorised user constituted a criminal offence. The decisive question is whether the servient owner could lawfully have granted the claimed right.

No right can be presumed where the grant itself would contravene a statute, exceed the grantor’s powers, create a nuisance or unlawfully prejudice public or commoners’ rights. Where conduct is criminal only because it occurs “without lawful authority”, and the owner can supply that authority, criminality does not prevent prescription under section 2 of the Prescription Act 1832 or the doctrine of lost modern grant.

Bakewell Management Limited owned Newtown Common. It sought declarations against 47 owners of neighbouring houses that they had no private vehicular rights of way across the common. The householders and their predecessors had used tracks across the common openly and without permission, generally for more than 40 years.

Park J granted summary judgment against most defendants, although seven defendants who could show 20 years’ use before the common became subject to section 193 of the Law of Property Act 1925 were given leave to defend. The Court of Appeal, [2003] EWCA Civ 23, followed Hanning v Top Deck Travel Group Ltd, which held that criminally unlawful user could not found a prescriptive easement.

The issue was whether Hanning was correctly decided where the landowner could lawfully have authorised the vehicular use and thereby removed its criminality.

1. Appeal allowed unanimously. Lord Scott of Foscote delivered the leading speech, with which Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed. The orders of the Court of Appeal and Park J were set aside.

2. Per Lord Scott, the governing inquiry was whether the easement claimed could lawfully have been granted by the servient owner. Prescription and the fiction of lost modern grant attribute a lawful origin to long, open and uninterrupted user as of right. They cannot operate where the supposed grant would itself have been unlawful or beyond the grantor’s power. The authorities concerning pollution, statutory trustees and licensed abstraction were explicable on that basis.

3. Per Lord Scott, section 193(4) of the Law of Property Act 1925 made vehicular use criminal only when undertaken “without lawful authority”. Subject to the owner’s inability to authorise conduct which unreasonably interfered with commoners’ rights or constituted a nuisance, the owner could lawfully authorise that use. The same analysis applied to section 34(1) of the Road Traffic Act 1988. The presumed grant would therefore be lawful and would supply the authority whose absence otherwise made each act criminal.

4. Per Lord Scott, an easement which the landowner could lawfully grant may be acquired under section 2 of the Prescription Act 1832 or by lost modern grant, whether the user was criminally unlawful or merely tortious. Public policy supplied no categorical bar. Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 was wrongly decided and overruled. Its proposition confused user which was unlawful without the owner’s authority with a right which no owner could lawfully grant. The rulings based on Hanning in Robinson v Adair, Hereford and Worcester County Council v Pick, Massey v Boulden and Hayling v Harper were overruled to that extent.

5. Lord Walker, in reasoning also agreed by Lord Bingham and Lord Hope, emphasised the exceptional nature of the offence. The owner possessed an unfettered dispensing power which could be exercised for private profit. The decision did not revive the discretionary “public conscience” approach disapproved in Tinsley v Milligan. It applied illegality as an instrument of public policy and was unlikely to affect offences lacking such a dispensing power.

6. The parties were directed to apply to the High Court for directions concerning the disposal or further conduct of the action. Bakewell was ordered to pay the appellants’ costs in the House and below.

1. House of Lords: The appeal was allowed unanimously. The orders of the Court of Appeal and Park J were set aside, with any necessary directions to be sought from the High Court.

2. Court of Appeal: In Bakewell Management Limited v Brandwood and others [2003] EWCA Civ 23, reported at [2003] 1 WLR 1429, the court treated itself as bound by Hanning v Top Deck Travel Group Ltd and upheld the conclusion that the relevant defendants had no prescriptive vehicular rights.

3. High Court: On 21 March 2002 Park J granted summary judgment declaring that most defendants had no private vehicular rights over Newtown Common. Seven defendants who could claim more than 20 years’ use before section 193 of the Law of Property Act 1925 became applicable were given leave to defend.