HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

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

[2004] UKHL 14

LORD BINGHAM OF CORNHILL

My Lords,

    1. I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Hope of Craighead. I am in full agreement with them, and for the reasons they give would allow the appeal and make the order which Lord Scott proposes.

LORD HOPE OF CRAIGHEAD

My Lords,

    2. I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Scott of Foscote and Lord Walker of Gestingthorpe. I agree with them, for all the reasons that they have given, that Hanning v Top Deck Travel Group Limited (1993) 68 P & CR 14 was wrongly decided and must be overruled, and I too would allow the appeal.

    3. The result of this case will come as a welcome relief to many owners of dwellings whose only vehicular access to their properties is across common land. In Hanning the defendant was driving double-decker buses along a track through a wooded common from the public highway. The owners of the common could have granted the defendant a right of way for its commercial vehicles, but they did not do so. The claimant's reason for seeking the injunction was to preserve the amenity of the common. There is no doubt that this is the broad public purpose which section 193(4) of the Law of Property Act 1925 was designed to serve.

    4. The present action on the other hand has nothing to do with the preservation of the amenity of the common. As Ward LJ observed in the Court of Appeal [2003] 1 WLR 1429, 1432, para 8,

"Bakewell do not really wish to stop the defendants driving across the common. Their position is stated with admirable frankness in the skeleton argument submitted to the judge:

'The purpose of this action is to make money for the claimant by requiring the defendants to pay for what they have taken free and for granted for many years - vehicular access to their residential properties across Newtown Common.'"

    5. An unfortunate and, of course, unintended consequence of the decision in Hanning has been the encouragement that it gave to those who wish to make money out of the hitherto unobserved flaw which it appeared to have revealed in the system for obtaining easements of way through the presumption of a lost modern grant. The scale of the problem was highlighted during the debates on section 68 of the Countryside and Rights of Way Act 2000 in the House of Commons by Sir George Young and in your Lordships' House by Lord Selborne: Hansard HC Vol 351, cols 949-960; HL Vol 617, cols 428-431. It is well known that opportunist companies have been buying up the freehold of common land in England and Wales for the sole purpose of extracting money from local residents, who had assumed that they had an established right of vehicular access across the common to their homes as they had been obtaining access in this way without interruption since time immemorial. Public authorities too had been exacting these charges, under pressure from the Treasury: see Christopher McNall, Righting Wrongs? Prescriptive Easements and Illegality [2004] 68 Conv 67, 69. Many of the residents were retired and could not easily find the sums that were being demanded from them.

    6. Section 68 of the Act of 2000 was enacted in order to deal with this problem, but it did not provide a complete solution to it. An easement created in accordance with the regulations made under that section has to be paid for, albeit at lower rates than that demanded by the companies: see the Vehicular Access Across Common and Other Land (England) Regulations 2002 (SI 2002/1711). It is, as Stephen Tromans, Research Professor, Nottingham Law School, put it in his annotations to the section in Current Law Statutes, something of a compromise: see also Christopher McNall's criticism of the legislative response: [2004] 68 Conv 67, 69. The section recognised that some owners of commons such as the National Trust and parish councils were entitled to seek to obtain a financial benefit from the law as laid down in Hanning, and it was not its purpose to deprive them of it. In their case, it has to be admitted, the financial benefit was in the nature of an unforeseen windfall.

    7. While Kennedy LJ paid tribute in Hanning at p 23 to the long established and valuable principle of lost modern grant, he did not think that the fiction should be extended to enable the defendants to curtail public rights in the common by conduct which on each occasion when it was committed was criminal. But in my opinion, for the reasons Lord Scott has given, there is no need for the fiction of the lost modern grant to be extended to give the defendants the remedy they seek. All that is needed is to give to it the weight which it has always been given, despite the fact that the conduct relied on amounted on each occasion to a trespass which - assuming the use to be nec vi, nec clam, nec precario: not by force, by stealth or with permission - he could have objected to at any time.

    8. As Cockburn CJ explained in Bryant v Foot (1867) LR 2 QB 161, 180-181, it is to be presumed from a period of 20 years' user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. Section 193(4) of the 1925 Act recognises that it is open to the owner of the land to grant the authority that is needed for the use of it not to constitute an offence. So too does section 34 of the Road Traffic Act 1988. The owner may wish to consider questions of amenity when he is deciding whether or not to grant the authority which these statutes require, but he is not obliged to do so. He may, as has been demonstrated in this case, wish simply to make money for himself. The important point is that the right to use the land without committing an offence is entirely within his grant. His liberty to grant authority is not fettered by the statutes in any way. So it does not require any extension of the fiction for it to be assumed that a use which could have been objected to at any time during the 20 year period either because it was tortious or because it was criminal, being a use for which in either case it was within the power of the owner to grant authority, has become established as a prescriptive right.

    9. In R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349, Lord Hoffmann said that any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment. There is no doubt that, on the facts that Park J assumed to be true when he made the declaration that the various defendants referred to in his order had no private rights of way for vehicles across the common, there had been a de facto enjoyment of the common for this purpose and that in each case it was open, continuous and long established. It could have been the subject of an express grant by the owner of the common at any time. The law would have been shown to be defective if it were to have allowed that enjoyment to be disturbed, with the result that it now had to be paid for. It is satisfactory that it has been possible to arrive at a conclusion in this case which is consistent with the value which has always been attached to a user of land which is open, continuous and long-established in the law relating to property rights.

LORD SCOTT OF FOSCOTE

My Lords,

    10. A residence with a garden bordering upon an ancient common on which commoners pasture their sheep and to which members of the public can resort for exercise, dog walking, picnics, kite flying and the like, sounds like an enviable possession affording amenities of view and tranquillity that would be highly prized by most people. The absence of any direct access to the house from a public road might give rise to a momentary doubt about its attractions and suitability in a modern motorized age; but information that ever since the house was built, well over 20 years ago, its successive owners, and their visitors, have enjoyed vehicular access to the house over a track across the common linking the house with a public road would have quieted most doubts. And all doubts would, I expect, have been quieted if the inquirer, on consulting a lawyer, had been told about section 2 of the Prescription Act 1832. He would have been told that twenty years open and uninterrupted user of the track as of right and without interruption would have entitled the householder to a right of way over the track.

    11. I am referring, however, to the time before 5 May 1993 when the decision of the Court of Appeal in Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 was given. The Court of Appeal held that because it had been made an offence by section 193(4) of the Law of Property Act 1925 to drive without lawful authority on a common to which the section applied, and it applied to the Hanning common, and since no lawful authority for the defendant company to drive on the common had ever been given, a right of way could not have been acquired by the twenty or more years of uninterrupted use that the defendant company had enjoyed. An easement could not, it was held, be acquired by conduct which, at the time the conduct took place, was prohibited by statute.

    12. The Hanning decision was followed by the trial judge, Park J, and by the Court of Appeal in the present case. They were bound by it but, in the Court of Appeal, the Lord Justices expressed the view that they would anyway have come to the same conclusion.

    13. Each of the appellants in the present case is an owner of a house bordering on a 144 acre common, Newtown Common, near Newbury. Vehicular access to each of the houses from the nearest public road has, since each house was built, been obtained via one or other of a number of tracks over the common. The owner of the common, whether past or present, has given no permission authorising this use of the tracks. The present owner of the common, Bakewell Management Ltd ('Bakewell'), the respondent company, has commenced proceedings to establish that the appellants have no vehicular rights over these tracks. Bakewell relies on the Hanning decision. The question for your Lordships is whether Hanning was rightly decided.

The Facts

    14. The basic facts are not in dispute. Newtown Common is registered as a common under the Commons Registration Act 1965. It was owned by successive Earls of Carnarvon from early in the 19th century until 1986. Bakewell became the owner on 3 July 1997. Some of the tracks and roads across the common which connect appellants' properties to local public roads have tarmac surfaces. Some do not but all are usable by vehicles. Save for two of the properties, the tracks and roads across the common are the only means of vehicular access to public roads.

    15. The owners of twenty-eight properties, forty-seven defendants in all, were sued by Bakewell. Four of these did not file a defence. Against all the other defendants Bakewell made an application for summary judgment on the issue of liability. Seven of the defendants, the owners of four of the properties, were given leave to defend by Park J. Against all the others Park J made a declaration that they had no private rights of way for vehicles across Newtown Common.

    16. The distinction between the seven and the others was based on the length of the period of vehicular access to their respective properties before 3 January 1928 (after which date section 193 of the 1925 Act applied to the common) that they could claim. Each of the seven could claim over 20 years vehicular access before 3 January 1928. So it was accepted that each had an arguable claim to have acquired an easement by prescription, or under the fiction of lost modern grant, that predated the application of the section 193(4) prohibition to Newtown Common. As to the others, three of them, the owners of two properties, could claim use that commenced before 1928 but was of less than twenty years duration before 1928. All of the defendants bar six, the owners of four properties, could claim use of more than forty years before the commencement of the proceedings. The six could claim twenty years' use but not forty.

    17. The appellants before the House include not only those against whom the declaration of no entitlement of a right of way was made but also the seven who were given leave to defend. The reason, no doubt, is that the seven have a common interest with their co-defendants in hoping to persuade your Lordships that Hanning was wrongly decided.

    18. The appellants contend that their vehicular use of the tracks, and that of their respective predecessors in title, has been enjoyed openly and without any permission from the owner for the time being of the common. Bakewell accepts that that is so.

    19. The status of the common as a common to which section 193 applies derives from subsection (2) which enabled the owner of a common to declare by deed that the section should apply to his common and enacted that "upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies". On 31 December 1927 the then owner of the common, the 6th Earl of Carnarvon, declared by deed that section 193 should apply to Newtown Common. The deed was duly deposited with the Minister on 3 January 1928 and has not been revoked. It is accepted by the appellants that on 3 January 1928 Newtown Common became a common to which section 193 applied.

    20. Bakewell made it clear in the course of the hearing before Park J, and its counsel, Miss Williamson QC, has made clear to your Lordships, that Bakewell's purpose in instituting and pursuing the proceedings was not and is not to prevent the householders from using the tracks across the common for access to their respective properties but was and is to make the householders pay for the right to do so. It is agreed, rightly, that Bakewell's motive is irrelevant to the issues before the House.

    21. In any event, prompted by the Court of Appeal decision in Hanning, Parliament enacted section 68 of the Countryside and Rights of Way Act 2000 which instituted a statutory scheme under which an owner of property deprived of a prescriptive right of way over a common, or other land, by the unlawful conduct principle underlying the Hanning decision can require the right to be granted to him by the owner of the common in return for payment of an appropriate sum of money. But, of course, if the appellants can satisfy your Lordships that Hanning is wrong, they can establish their respective rights of access over the common without having to rely on section 68 or to pay Bakewell anything.

The statutory prohibition

    22. The terms of the section 193(4) prohibition and its statutory context are important. The section is headed "Rights of the public over commons and waste lands". Subsection (1) provides that

"Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common …., or manorial waste, or a common, which is wholly or partly situated within an area which immediately before 1st April 1974 was a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:

Provided that—

(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and

(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, for conserving flora, fauna or geological or physiographical features of the land, or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and

(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and

(d) …."

Subsection (2) enabled "the lord of the manor or other person entitled to the soil of any land subject to rights of common" to apply section 193 to the land. I have described in paragraph 19 above how this is done. The only other subsection to which I need refer is subsection (4) which creates the statutory prohibition:

"(4)  Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale for each offence."

    23. Subsection (1), combined with subsection (2), identified three categories of land to which section 193 was to apply, first, metropolitan commons (as defined), second, manorial waste or common land within the area of a pre 1 April 1974 borough or urban district, and, third, commons the owners of which had applied the section to the land. The rights of access for air and exercise over land falling into one or other of these three categories that subsection (1) conferred on the public were subject to important provisos. Proviso (b) allowed the Minister, on the application either of the owner of the land or of any person with rights of common, to impose limitations or conditions on the rights conferred on the public. The Minister could do so for one or other of the purposes specified in the proviso. The first of the specified purposes would enable the Minister to prevent the exercise of the newly conferred public rights from unreasonably interfering with the commoners' rights of common or with the legitimate interests of the owner of the land. Proviso (c) was plainly directed to the same purpose. It imposed specific limitations on and conditions as to the exercise of the newly conferred public rights. The purpose of subsection (4) was, plainly, to enable the observance by members of the public of limitations and conditions imposed under proviso (b) or proviso (c) to be enforced by a criminal sanction.

    24. The words in subsection (4) "without lawful authority" deserve careful attention. They have been taken, in cases like the present and like Hanning, to refer to an authority given by the owner of the common. They might also, if proviso (a) is applicable, refer to an authority given by some public official or public body pursuant to the Act, scheme, byelaw or regulation in question. But the ability of the owner of the common in question to give someone a "lawful authority" to do one or other of the things prohibited by subsection (4), or, indeed, to do one or other of those things himself, is subject, in my opinion, to an important qualification. The owner of a common cannot lawfully do anything on the common that would constitute an unreasonable interference with the rights of the commoners (see s. 30, Commons Act 1876). To do so would be a nuisance (see Clerk & Lindsell 18th Ed. para 31-27). Nor could the owner of a common lawfully authorize things to be done by others on the common that, if done, would constitute a nuisance. The reference to "lawful authority" in subsection (4) does not, therefore, mean that the owner of a common can authorize to be done whatever he pleases. Authority given to too many people to camp on the common and light too many fires could damage the sufficiency of grass on the common for the commoners' grazing rights. If that were so, the authority would not, in my opinion, be a lawful one. Similarly, authority to too many people to drive too many cars or other vehicles over the tracks on the common might not be lawful. It would depend on the facts. But, subject to that qualification, subsection (4) allows the owner of a common to which section 193 applies to authorize the doing of an act that if done without that authority would be an offence under the subsection.

    25. Section 193(4) is not the only statutory provision that creates an offence if motor vehicles are driven off-road "without lawful authority". Section 14(1) of the Road Traffic Act 1930 said that

"If without lawful authority any person drives a motor vehicle on to or upon any common land, moorland or other land of whatsoever description (not being land forming part of a road), or on any road being a bridleway or footway, he shall be guilty of an offence …."

There then followed two provisos one of which allowed parking on land within fifteen yards of a road and the other allowed a defence if the vehicle had been driven "for the purpose of saving life or extinguishing fire or meeting any other like emergency". Section 14(1) of the 1930 Act was repealed by the Road Traffic Act 1960 and replaced by section 18(1) of that Act which was in the same terms. Section 18(1) of the 1960 Act was repealed by the Road Traffic Act 1972 and replaced by section 36(1) of that Act, also in the same terms. Section 36(1) has been repealed by the Road Traffic Act 1988 and replaced by section 34(1) of that Act which has slightly different wording but is to exactly the same effect as its statutory predecessors. My comments on "without lawful authority" in section 193(4) of the 1925 Act are equally applicable to those words in section 34(1) of the 1988 Act and its predecessors.

    26. In a recent case in the Court of Appeal, Massey v Boulden [2003] 2 AER 87, the same point arose in relation to section 34(1) of the 1988 Act as had arisen in Hanning and in the present case in relation to section 193(4). Simon Brown LJ (as he then was), in a reference to Hanning and to Robinson v Adair, a Queen's Bench Divisional Court case unreported save in the Times of 2 March 1995, said—

"That a prescriptive right of way cannot be acquired by a user in breach of a criminal statute is well established and …. not in dispute before us."

If Hanning was wrongly decided in treating user in breach of section 193(4) as a bar to the acquisition of a right of way by prescription so too was Massey v Boulden wrongly decided in treating user in breach of section 34(1) as a similar bar.

Acquisition of easements by prescription

    27. The acquisition of easements by long uninterrupted user that has been open, free from force and not dependent upon any precatory permission from the servient owner serves a well recognised public policy. In Davis v Whitby [1974] 1 Ch 186 Lord Denning MR said, at page 192, that

"…. the long user as of right should by our law be given a lawful origin if that can be done."

and Stamp LJ, agreeing with Lord Denning, commented

"…. if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin."

More recently Lord Hoffmann in R v Oxfordshire County Council Ex parte Sunningwell Parish Council [2000] 1 AC 335 said at page 349 that

"Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment."

    28. The rules of prescription developed by English law for the acquisition of easements by long de facto enjoyment were based on the establishing of a fiction, namely, that the long de facto enjoyment was attributable to the grant of the easement by a past owner of the servient land but that the grant had been lost. The opinion given by Lord Hoffmann in the Sunningwell Parish Council case contains a valuable exposition of the way in which this fiction developed and led to the enactment of the Prescription Act 1832 (see pages 349G to 351F). The terms of section 2 of the 1832 Act are important

"(2)  No claim which may lawfully be made at the common law, by custom, prescription, or grant, to any way or other easement …. when such way or other matter …. shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing."

    29. Section 4 of the 1832 Act said that the periods of 20 years and 40 years had to be periods

"…. next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question…."

Section 4 is the reason why lost modern grant as a means of claiming an easement by long use continued to exist alongside section 2 of the 1832 Act. In a case where the use relied on had ceased before the commencement of the action challenging the claim to the easement section 2 of the 1832 Act might not be applicable but the claimant might still get home by relying on lost modern grant. In Tehidy Minerals v Norman [1971] 2 QB 528 Buckley LJ explained, at p 552, that the great case of Angus v Dalton (1881) 6 App Cas 740 had decided that

"…. where there has been upwards of 20 years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless , for some reason … the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made."

    30. In the present case the appellants claim their respective rights of way over the tracks across the common both under section 2 of the 1832 Act and, alternatively, under the lost modern grant fiction. No reason has been advanced, other than the illegality point on which Hanning was based and which was approved in the present case, why these claims should not succeed on either of these two bases.

Hanning v Top Deck Travel Group Ltd