Bakewell Management Ltd v Brandwood and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Ward
Judgment Date30 January 2003
Neutral Citation[2003] EWCA Civ 23
Docket NumberCase No: A3/2002/0687

[2003] EWCA Civ 23

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHANCERY DIVISION

(Mr Justice Park)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Ward

Lady Justice Arden and

Mr Justice Sullivan

Case No: A3/2002/0687

Between:
Roland Brandwood And Others
Defendant/Appellants
and
Bakewell Management Ltd.
Claimants/Respondent

Paul Morgan QC and Janet Bignell (instructed by Berger Oliver) for the Appellant

Hazel Williamson QC and Leslie Blohm (instructed by Darwin Gray) for the Respondent

Lord Justice Ward

Introduction.

1

Newtown Common is an irregularly shaped ancient common extending to about 144 acres near Newbury, Berkshire. About 28 houses have been built on plots of land, varying quite significantly in size, abutting onto the common. For years the owners of these houses have driven their motorcars along tracks and roads, some tarmacked, some unmade, from their properties to the highway. Except for two properties that is the only means of access to the highway. It must, therefore, have come as a nasty shock when the owner of the common suddenly announced that this driving of motor vehicles over the common was unlawful. The owner was, however, willing to grant an easement for vehicular use in return for the payment of an appropriate fee. That offer was not universally acceptable and this litigation ensued. The owners sought a declaration that each of the 47 owners of those properties was not entitled to cross the common with motor vehicles and an injunction was sought forbidding them from entering and crossing the common with motor vehicles. Four of the defendants have taken no part in this litigation but Park J. granted the declaration against the remaining 43 defendants, but gave them permission to appeal. The outcome of the appeal may have far reaching consequences for very many others who live next to common land.

A little more detail.

2

It seems that Newtown Common has been common land for centuries. For many years the fee simple vested in the Earl Carnarvon. The commoners had rights to use the common but it was not until 1925 that the common was opened up to the general public. The Law of Property Act 1925 so provided by section 193 in these terms, as since amended:-

"(1) 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 within the meaning of the Metropolitan Commons Act 1866 to 1898, 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 the manner hereinafter provided:

Provided that – (omitting what is immaterial)

(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; …"

3

Importantly for this case subsection 4 provides as follows:-

"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 the 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."

4

Newtown Common was not an area to which subsection 1 originally applied. Subsection 2 of section 193 did, however, make this provision:-

"The Lord of the Manor or other person entitled to the soil of any land subject to rights of common made by deed, revocable or irrevocable, declare that this section shall apply to the land, and 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 st December 1927 the 6 th Earl of Carnarvon, the Lord of the Manor of Newtown, and the owner of the soil of the waste or common land of Newtown Common by deed duly declared that section 193 of the Law of Property Act 1925 should apply to the common. That deed was deposited with the Minister of Agriculture and Fisheries on 3 rd January 1928. It has not been revoked.

5

Some time in about 1986 the Earl sold the common and Bakewell Management Ltd. ("Bakewell"), the claimant in the action and the respondent to the appeal, are now the owners.

6

As I have said, houses have been built on adjoining properties. Accepting as accurate for present purposes the facts submitted in the witness statements, it appears that three of these houses were built over a hundred years ago and one over ninety years ago. These are the only three properties developed before 1908, a date which will become significant in a moment. Two more were built before 3 rd January 1928 and the others have been built since then. It is common ground that for many years the owners of and visitors to these properties have accessed them across the common by motorcars and other vehicles. The distance travelled varies from property to property. We were told, for example, that five of the properties cross a narrow strip of about 15 feet of the common between a public highway and the boundary of the first house. Another four need to use a track the outer half of which only is on the common so one wheel of the car will trespass, the other will not. In another case, on the other hand, the track must travel several hundred yards over the common. These are fascinating differences of no consequence in the appeal.

7

It is, moreover, common ground that the owners of these properties have never had permission from the Earl or his successor to drive on the common and so by their having driven day in and day out "without lawful authority" they have regularly committed an offence under section 193(4) of the Law of Property Act 1925. I cannot pretend it is the most heinous offence in the criminal calendar but offence it is.

8

Bakewell do not really wish to stop them 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."

9

The occupiers' predicament has been recognised by Parliament when enacting section 68 of the Countryside and Rights of Way Act 2000. Omitting that which may be immaterial, it provides:-

"(1) This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way –

(a) was an offence under any enactment applying to the land crossed by the way, but

(b) would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.

(2) Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.

(3) An easement granted in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.

(4) The regulations may in particular –…

(d) make provision as to the payment of an amount by the owner of the premises concerned to any person or into court …"

The Vehicular Access across Common and Other Land (England) Regulations 2002 were made on 3 rd July 2002 and are now in force. Among other things it provides for the calculation of the compensation sum as follows:-

"11.(1) Subject to paragraph (2), the compensation sum shall be 2% of the value of the premises.

(2) Where the premises were in existence on –

(a) 31 st December 1905; or

(b) 30 th November 1930,

the compensation sum shall be 0.25 per cent. Or 0.5 per cent of the value of the premises respectively.

(4) For the purposes of these regulations, the value of the premises shall be calculated as at the valuation date on the basis of the open market value of the premises with the benefit of the easement."

10

The hearing below proceeded on assumptions that there was no specific evidence of the Carnarvon family or any other fee simple owner of the common granting either an easement or a licence authorising the owner of any adjoining property to have access to that property by vehicle across the common and in the absence of specific evidence it was assumed that there never has in fact been such an easement or licence.

The issues joined between the parties

11

Bakewell brought their claim against 47 defendants, the owners of the properties which abut the common and are accessible with vehicles over it. The claim asserted that the defendants have "unlawfully traversed the common with motor vehicles both to and from their respective properties and/or otherwise". The defence admitted driving across the common but claimed that the defendants "were entitled as of right at all material times to rights of way with motor vehicles over the common". They alleged that they had enjoyed continuous vehicular rights of way over the common for periods in excess of 20 years preceding the commencement of the claim as of right and without interruption. They...

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