Bakewell Management Ltd v Brandwood and Others

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL
Judgment Date01 Apr 2004
Neutral Citation[2004] UKHL 14

[2004] UKHL 14

HOUSE OF LORDS

Bakewell Management Limited
(Respondents)
and
Brandwood

and others

(Appellants)
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...

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