Right of way despite unlawful use

Bakewell Management Ltd v Brandwood and others HL TLR 2 April

The House of Lords in allowing this appeal overturned the previous decisions in Hanning v Top Deck Travel Group Ltd (1993) 68 P&CR 14 and Massey v Boulden (22/ LL p10) that prescriptive rights to vehicular access could never be acquired save over a public highway or over a road to which the public already had de facto access, because such use was unlawful. A distinction is to be drawn between cases where a grant by the landowner of the right to use the land in a prohibited way would be a lawful grant that would remove the criminality of the user, and cases where such a grant 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 interrupted use of the land contrary to a statutory prohibition could not give rise to the presumed grant of an easement. It is difficult to see why, in the former class of case, the user should not be capable of supporting the presumed grant by the landowner of an easement, that if granted, would have been lawful and effective notwithstanding that the user was contrary to a statutory prohibition. There is no requirement of public policy that would prevent the presumption of such a grant. On the contrary, there were sound public policy reasons why it should be presumed, so that long de facto enjoyment should not be disturbed. If an easement over land could be lawfully granted by the landowner, the easement could be acquired either by prescription under s2 of the Prescription Act 1832 or by the fiction of lost modern grant whether the use relied on was illegal in the criminal sense or merely in the tortuous sense. Accordingly, the appellant defendants, who own houses bordering on a common owned by the claimant, had acquired rights of vehicular access to each of their houses from the nearest public road along one or other of a number of tracks over the common as the result of at least 20 years of use before the commencement of the proceedings. The claimant had made it clear that its purpose in instituting and pursuing the proceedings was not to prevent the householders from using the tracks but to make them pay for the right to do so. Its motive was irrelevant to the issue on appeal.