Bakewell Management Limited (Resondents) v. Brandwood and others (Appellants)
31. Horsell Common, the common with which the Hanning case was concerned, was a common to which section 193 applied. Vehicles belonging to the defendant, Top Deck Travel, had been using a track across the common for well over 20 years. No authority to do this had been given by any owner of the common. The trial judge, Mr John Lindsay QC (as he then was), had noted that this user was an offence under section 193(4) but that the illegality would have been cured "had a grant of the kind otherwise to be presumed been made". He held that, in view of the illegality of the use on which Top Deck Travel was relying, the court could refuse to recognise the fiction that there had been a lost grant but that the court was not obliged to do so. In the event he did not do so and, accordingly, upheld the right of Top Deck Travel to the easement. Dillon LJ, who gave the leading judgment in the Court of Appeal, disagreed. He cited a number of cases which, he considered, had established the rule that "an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute". Kennedy LJ gave a judgment to the same effect.
32. In my respectful opinion, the cases cited by Dillon LJ and Kennedy LJ do not establish that rule. What they establish is a rather different rule, namely, that an easement cannot be acquired to do something the doing of which is prohibited by a public statute. The first case cited by Dillon LJ was Neaverson v Peterborough Rural District Council  1 Ch 557. The first sentence of the headnote succinctly expresses what the case decides "A lost grant cannot be presumed where such a grant would be in contravention of a statute." Henn Collins MR explained at pages 563-564 that
and, at page 573 that
33. Neaverson v Peterborough Rural District Council was cited by Eve J in Hulley v Silversprings Bleaching and Dyeing Co Ltd  Ch 268 as authority for the proposition that
The lost grant that Top Deck Travel sought to establish, like those that the appellants now before the House seek to establish, could have had a legal origin. The grants could lawfully have been made and would not have been illegal.
34. Glamorgan County Council v Carter  1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947. The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12(5)(c) of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purpose for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was the context in which Salmon LJ made the statement cited by Dillon LJ, namely
Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of the 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ's statement out of context and treat the principle he expressed as applicable to prescriptive use.
35. The next case cited was George Legge & Son Ltd v Wenlock Corporation  AC 204. The question in this case was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. Throughout the period of the discharge of sewage into the stream the discharge had been an offence under section 3 of the Rivers Pollution Prevention Act 1876. Their Lordships applied the decision of the House in Airdrie Magistrates v Lanark County Council  AC 286 in which Lord Loreburn LC had commented:
In George Legge Lord Macmillan, with whose opinion Lord Atkin and Lord Roche agreed, said, at page 216
And Lord Maugham, at page 222, said
36. My Lords, Bakewell naturally attaches considerable importance to the last sentence from the passage of Lord Maugham's opinion that I have cited. I would respectfully suggest, however, that the George Legge case, and for that matter the Airdrie case, are no more than excellent examples of the proposition that a lawful grant to do an act or acts that if done would be illegal cannot be made. It would be the "legal impossibility" to which Lord Macmillan referred. To go further and say, as Lord Maugham did, that never in any circumstances can acts in breach of public law prohibitions lead to the acquisition of legal rights does not follow and was not necessary for the decision.
37. Kennedy LJ in Hanning referred to Cargill v Gotts  1 WLR 441. In Cargill v Gotts it was contended that a right to abstract water from a mill pond had been acquired by long use. Under section 23(1) of the Water Resources Act 1963 the abstraction of water from the mill pond as from 1 July 1965 required the grant of a licence from the water authority. The water authority was not the owner of the mill pond. The plaintiff, who had for some years prior to and after 30 June 1965 abstracted water from the pond for use on his neighbouring farm, contended that he had acquired by long use an easement to do so. He had never applied for or been granted a licence by the water authority. The Court of Appeal held that for the purpose of establishing his easement he was not entitled to rely on his illegal abstraction of water post 30 June 1965. Templeman LJ, with whom on this point Lawton LJ and Brandon LJ agreed, said, at page 446
38. The last sentence of the cited passage from Templeman LJ's judgment give Bakewell the same support as does the sentence from Lord Maugham's opinion in the George Legge case to which I have referred. But here, too, the sentence went further than was necessary. It was not open to the owner of the mill pond to grant the plaintiff, post 30 June 1965, the right to abstract water from the mill pond unless the plaintiff had the requisite licence from the water authority, which he did not. The grant would have been an unlawful grant, as would have been the comparable grant in the George Legge case. Templeman LJ did not have in mind what the situation would have been had a grant, if made by the mill owner, been a lawful grant.
39. The feature of the Hanning case, and the present case, that distinguishes them from such cases as the George Legge case and Cargill v Gotts is that the servient owner was able, notwithstanding the statutory prohibition, indeed by the very terms of section 193(4), to make a lawful grant of the easement. A statutory prohibition forbidding some particular use of land that is expressed in terms that allows the landowner to authorise the prohibited use and exempts from criminality use of the land with that authority is an unusual type of prohibition. It allows a clear distinction to be drawn between cases where a grant by the landowner of the right to use the land in the prohibited way would be a lawful grant that would remove the criminality of the user and cases where a grant by the landowner of the right to use the land in the prohibited way would be an unlawful grant and incapable of vesting any right in the grantee. It is easy to see why, in the latter class of case, long and uninterrupted use of the land contrary to a statutory prohibition cannot give rise to the presumed grant of an easement that it would have been unlawful for the landowner to grant. It is difficult to see why, in the former class of case, the long and uninterrupted user should not be capable of supporting the presumed grant by the land owner of an easement that if granted would have been lawful and effective notwithstanding that the user was contrary to a statutory prohibition. I can see no requirement of public policy that would prevent the presumption of a grant that it would have been lawful to grant. On the contrary, the remarks of Lord Denning MR and Stamp LJ in Davis v Whitby and of Lord Hoffmann in the Sunningwell Parish Council case to which I have referred provide sound public policy reasons why, if a grant of the right could have been lawfully made, the grant should be presumed so that long de facto enjoyment should not be disturbed.
The post Hanning cases
40. I should refer also to some of the several cases post Hanning in which the principle on which that case was decided was applied. It is convenient to take them in chronological order. Robinson v Adair was reported in The Times of 2 March 1995. The case was not about private rights of way but raised the issue whether a particular road had become by presumed dedication a public highway. The Truro Crown Court had allowed Mr Adair's appeal against his conviction for obstructing a highway (see s 137 of the Highways Act 1980). Mr Adair, presumably the owner of the road in question, denied that it was a public highway. Mr Robinson contended that dedication of the road as a public highway was to be presumed after twenty years uninterrupted use as of right by the public (s 31(1) of the 1980 Act). But the use relied on constituted an offence under section 34(1) of the Road Traffic Act 1988. Dyson J (as he then was), giving the judgment of the Divisional Court, referred to Hanning and said, according to The Times report, that he could see no rational distinction between acquisition of a private easement by presumed grant after long illegal user and the presumed dedication of a highway after long illegal user. However, it was, so I assume for there is nothing to suggest the contrary, open to Mr Adair or his predecessors in title to have dedicated the road as a public highway. Such a dedication would have constituted "lawful authority" for section 34(1) purposes. The dedication would have been effective. That being so, I can see no reason why public policy would prevent a presumption of dedication arising from long use.41.
Hereford and Worcester County Council v Pick (1995) 71 P & CR 231 was another case in which the issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. As in Robinson v Adair a Queen's Bench Divisional Court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed. Stuart-Smith LJ, after referring to Hanning and to Robinson v Adair said at page 239 that
He said, also, that the user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and that, for that reason also, the user could not lead to a presumed dedication.
42. I agree with Stuart-Smith LJ's remarks about nuisance. It would not, in my opinion, have been open to the land owner to have dedicated the footpath as a public vehicular highway if use by vehicles would have constituted a public nuisance to pedestrians using the footpath. But I respectfully disagree with the proposition derived from Hanning and Robinson v Adair. If it would have been lawful for the landowner to make the dedication in question I can see no reason why the dedication should not have been presumed from long use. Indeed, if Robinson v Adair and, on this point, the Pick case are correct, there could never be a presumed dedication under section 31(1) of the Highways Act 1980 after 20 years of public use. Whatever the intention behind section 34(1) of the Road Traffic Act 1988 may have been, the intention could hardly have been to repeal section 31(1) of the 1980 Act.
43. I have already referred briefly to Massey v Boulden  2 AER 87. The defendants were the owners of a village green crossed by a track which gave vehicular access from a public road to the claimants' house. The successive occupiers of the house had used the track for vehicular access for over forty years. The defendants resisted the claimants' entitlement to a prescriptive right of way on the ground that the user relied on had constituted an offence under section 34(1) of the 1988 Act. Hanning was relied on. The Court of Appeal agreed with the defendants and Simon Brown LJ made the remark that I have cited in paragraph 26 above and need not repeat. Sedley LJ agreed with Simon Brown LJ. Mansell LJ dissented on a point not material to the illegality issue. None of the members of the court addressed what to my mind is the critical question, namely, why public policy should preclude the obtaining by prescription, or by presumed grant, of an easement or right over land that it would have been lawful for the landowner to grant notwithstanding that the user was, absent the grant, unlawful and criminal.
44. Finally, I should refer to Hayling v Harper  39 EG 117. This case, too, raised the question whether vehicular user of a public footpath in breach of section 34(1) of the 1988 Act could lead to the acquisition by prescription of a public right of way. Ward LJ, who had a few months earlier given the leading judgment in the Court of Appeal in the case now before the House, was bound to follow Hanning and did so. The Hanning principle barred, he held, a claim to the easement under section 2 of the 1832 Act. The user relied on had been illegal since 1930 (see paragraph 25 above) and the claimants could not, therefore, rely on the user between 1930 and the commencement of the proceedings. But he held that the evidence of user pre 1930 enabled the claimants to establish the acquisition of an easement by lost modern grant before the advent of section 14 of the Road Traffic Act 1930. So the claimants won in the end.
45. In the present case both Ward LJ and Arden LJ, besides holding themselves bound by Hanning, as indeed they were, indicated that they thought the Hanning decision was correct. Ward LJ cited well known cases relating to the relevance of illegality in the general law. He cited such classics as Holman v Johnson (1775) 1 Cowp 341, Bowmakers Ltd v Barnet Instruments Ltd  KB 65 and Tinsley v Milligan  1 AC 340. These authorities, he said, established the principle that the Newtown Common householders
Arden LJ said that
46. My Lords, in my opinion, the decision in Hanning and the subsequent justifications of that decision are wrong and ought not to be followed. I accept that, at the end of the day, the issue is one of public policy. It is accepted, however, that a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of bring tortious. That is how prescription operates. Public policy does not prevent conduct illegal in that sense from leading to the acquisition of property rights. The Hanning decision can only be justified on the footing that conduct illegal in a criminal sense is, for public policy purposes, different in kind from conduct illegal in a tortious sense. Why should that necessarily be so? Why, in particular, should it be so where the conduct in question is use of land that is not a criminal use of land against which the public law sets its face in all cases? It is criminal only because it is a user of land for which the landowner has given no "lawful authority". In that respect, the use of land made criminal by section 193(4) of the 1925 Act, or by section 34(1) of the 1988 Act, has much more in common with use of land that is illegal because it is tortious than with use of land that is illegal because it is criminal.
47. In my opinion, if an easement over land can be lawfully granted by the landowner the easement can be acquired either by prescription under section 2 of the 1832 Act or by the fiction of lost modern grant whether the use relied on is illegal in the criminal sense or merely in the tortious sense. I can see no valid reason of public policy to bar that acquisition. We have been referred to no case, pre Hanning, that decided the contrary. The decision in Hanning took the law, in my opinion, in a wrong direction. It follows that, in my opinion, your Lordships should hold Hanning to have been wrongly decided and should overrule the various rulings in reliance on Hanning that have been made in the subsequent cases. I would allow this appeal and set aside the order of the Court of Appeal dated 30 January 2003 and the order of Park J dated 21 March 2002. The parties must apply to the High Court for any necessary directions as to the disposal or the further conduct of the action. Bakewell must pay the costs of the appellants here and below.
LORD WALKER OF GESTINGTHORPE
48. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. I gratefully adopt his summary of the facts and I agree that, for the reasons which he gives, this appeal should be allowed. But because we are differing from the courts below on a point of some general interest, I add some observations of my own.
49. The development of the law of prescription of easements has been considered by your Lordships' House in two recent cases (both concerned with analogous public rights), R v Oxfordshire County Council ex parte Sunningwell Parish Council  1 AC 335 and R (Beresford) v Sunderland City Council  3 WLR 1306. As the discussion in those cases shows, the basis of the law of prescription of easements and profits is that long-continued open and peaceful enjoyment of an apparent right should if possible be ascribed to a lawful origin. One of the requirements, if the presumption or inference of a lawful origin is to be made, is that the apparent right should lie in grant (that is, should be capable of being created by an express grant made by deed): see for instance the classic statement by Cockburn CJ in Bryant v Foot (1867) LR 2 QB 161, 179. Similarly Lord Lindley said in Gardner v Hodgson's Kingston Brewery Company Ltd  AC 229, 239,
Otherwise the fictional technique of presuming or inferring a lost modern grant would not meet the case.
50. In my opinion it is the requirement that there should have been a competent grantor, rather than any wider principle based on criminality, which best explains the well-known cases on which the respondent relied. The first was Rochdale Canal Proprietors v Radcliffe (1852) 18 QB 287. Riparian owners who operated steam engines had a statutory power (under the Act of Parliament incorporating the canal company and authorising and regulating the construction and use of the canal) to extract from the canal
Radcliffe, a riparian mill owner, had for upwards of 20 years extracted water and used it, not merely for condensing steam but for a variety of other purposes. His claim to a prescriptive right failed because the canal company could not lawfully have granted him larger rights. To do so would have been beyond its powers and (to the extent that it might interfere with public rights of navigation) against the public interest. Coleridge J put the point very clearly (at p 314),
51. The same point is clearly made in the judgment of Collins MR in Neaverson v Peterborough RDC  1 Ch 557. The Newborough Inclosure Act 1812 provided for draining, enclosing and improving a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of "sound and healthy sheep" but with an express prohibition of other animals. Nevertheless the land was in the event used, for over sixty years, for the pasturage of horses and cattle, despite the fact (see at pp 570-1) that this involved a danger of damage to the drainage system. Collins MR stated the issue at pp 563-4:
52. The Master of the Rolls answered the question in a well-known passage (at p 573):
After discussing that case and difficulties as to the grantee he continued (also at p 573):
Hulley v Silversprings Bleaching and Dyeing Co Ltd  2 Ch 268 was concerned with a statutory prohibition on the pollution of rivers and watercourses, the Rivers Pollution Prevention Act 1876, which created criminal offences. A lower riparian owner sued the Silversprings company for nuisance. The fact that the plaintiff's predecessors had acquiesced in pollution for twenty years was held to be no defence, because the plaintiff was not the only person affected by the pollution. There was a wider public interest. But Eve J saw the significance of the criminality of the pollution as being that it excluded the possibility of a lawful grant (p 282):
54. Apart from Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14, the last case relied on by the respondent was Cargill v Gotts  1 WLR 441. In that case a farmer had acquired an easement to take water from a mill pond on his neighbour's land. He had acquired this right by prescription before the relevant provisions of the Water Resources Act 1963 came into force on 1 July 1965, with the effect that it would be a criminal offence for the farmer to continue to take water without an official licence. Templeman LJ said at p 446,