Bakewell Management Ltd v. Brandwood & Ors

The House of Lords held that long open and uninterrupted user of a track across common land can give rise to a prescriptive easement under section 2 of the Prescription Act 1832 or by the fiction of a lost modern grant even where that user was, in the absence of the servient owner's authority, an offence under section 193(4) of the Law of Property Act 1925. The court overruled the decision in Hanning v Top Deck Travel Group Ltd which had held that user in breach of such a statutory criminal prohibition could not give rise to prescription. The critical question is whether the servient owner could have lawfully granted authority for the user; if a lawful grant was possible, public policy does not bar the presumption of a grant from long user.

The claim concerned vehicular access across Newtown Common. Bakewell Management Limited, the owner of the common, sought declarations that a number of householders had no private rights of way for vehicles across tracks on the common and pursued summary judgment against many defendants. The defendants relied on long uninterrupted vehicular user to establish easements either under section 2 of the Prescription Act 1832 or by the fiction of a lost modern grant.

The principal issue was whether user in breach of the criminal prohibition in section 193(4) of the Law of Property Act 1925 (making driving on certain commons without lawful authority a summary offence) could be relied on to acquire prescriptive or lost-grant rights. The trial judge and the Court of Appeal, following Hanning v Top Deck Travel Group Ltd, held that such criminal illegality prevented acquisition of easements by prescription or lost modern grant. The appellants appealed to the House of Lords.

The House of Lords concluded that Hanning was wrongly decided. The court explained that established rules of prescription aim to avoid disturbance of long-established de facto enjoyment by presuming a lawful origin for the use. Where the servient owner could lawfully have granted authority (that is, the grant would not have been illegal or incompetent), long user may be regarded as evidence of such a grant even if each act of user, absent authority, was criminal under a statute which nevertheless permits the owner to dispense with liability. The Lords distinguished cases where a grant would have been impossible or unlawful (for example because of wider public or statutory constraints). The court therefore allowed the appeal, set aside the orders below and remitted the parties to the High Court for directions.

Nature of relief sought: declaration that defendants had no vehicular rights of way and summary judgment on liability.

Issues framed by the court: (i) whether statutory criminal prohibition under section 193(4) prevents acquisition of prescriptive easements or rights by lost modern grant; (ii) whether Hanning was correctly decided; (iii) the proper application of public policy where the landowner has power to confer "lawful authority".

Concise reasoning: where a statutory prohibition permits the servient owner to confer lawful authority, the possibility of a lawful grant means long de facto enjoyment can be ascribed to such a grant and thus give rise to a prescriptive easement or lost modern grant; public policy does not require a different result merely because the use was criminal in the absence of authority.

Appeal allowed. The House of Lords held that Hanning v Top Deck Travel Group Ltd was wrongly decided and should be overruled. Where the servient owner could have lawfully granted authority for the use (so that a grant would not have been illegal or impossible), long open and uninterrupted user may give rise to a prescriptive easement under section 2 of the Prescription Act 1832 or by the fiction of a lost modern grant even if each episode of user was, absent that authority, an offence under section 193(4) of the Law of Property Act 1925. The Court set aside the orders below and directed the parties to apply to the High Court for further directions; costs were awarded to the appellants.

Appeal from the Court of Appeal (Civil Division) [2003] EWCA Civ 23 (30 January 2003); first instance decision by Park J (High Court) (order dated 21 March 2002) granting declarations for the respondent against many defendants and leave to defend given to a subset of defendants.