[Buy ICLR report:  2 WLR 955]
[Buy ICLR report:  2 AC 519]
Bakewell Management Limited (Resondents) v. Brandwood and others (Appellants)
HOUSE OF LORDS
 UKHL 14
on appeal from:  EWCA Civ 23 (30 January 2003)
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Bakewell Management Limited (Respondents) v. Brandwood and others (Appellants)
 UKHL 14
LORD BINGHAM OF CORNHILL
- 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
- 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.
- 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.
- 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  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.'"
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  68 Conv 67, 69. Many of the residents were retired and could not easily find the sums that were being demanded from them.
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:  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.
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.
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.
In R v Oxfordshire County Council, ex p Sunningwell Parish Council  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
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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
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:
(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
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."
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.
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.
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.
In a recent case in the Court of Appeal, Massey v Boulden  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
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  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  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."
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."
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  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."
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
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.
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
"If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period."
and, at page 573 that
"such a grant as is here suggested would have been illegal, whoever is supposed to have made it."
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
"A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail." (page 282)
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.
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
"It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land." (see p 5)
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.
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:
"But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely asking leave to prove that they have
. committed in an aggravated degree the very offence with which they are charged."
In George Legge Lord Macmillan, with whose opinion Lord Atkin and Lord Roche agreed, said, at page 216
. it is sought to prove that what was in law a protected stream has become in law an unprotected sewer simply by reason of infringements of the law designed for its protection. Now that is what your Lordships' House in effect held in the Airdrie case to be a legal impossibility."
And Lord Maugham, at page 222, said
. there are certainly statutes imposing duties or prohibitions which can be waived
. There are also cases where by the doctrine of a lost grant or lost patent or by some similar presumption individuals have, notwithstanding the terms of a statute, acquired rights apparently in contradiction of it. There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable."
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.
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
. the plaintiff cannot rely on any abstraction of water carried out after June 30 1965, in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity."
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.
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
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.
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
"Public rights cannot be based on long use where the user is prohibited by statute."
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.
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.
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.
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.
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
. cannot succeed without proving that they drove without lawful authority of the owner. Their claim is, therefore, founded upon their criminal activity. And for that reason it founders. Secondly, they claim a lost modern grant. It brings them benefit but the benefit is gained by their illegal activity. Public policy does not permit this." (para 53)
Arden LJ said that
. no discretion exists in the present case to disregard the effect of section 193(4) of the Law of Property Act 1925."
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.
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
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.
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,
"The common law doctrine is that all prescription presupposes a grant."
Otherwise the fictional technique of presuming or inferring a lost modern grant would not meet the case.
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
"such quantities of water as shall be sufficient to supply the said engine or engines with cold water, for the sole purpose of condensing the steam used for working any such engines".
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),
"The foundation of the fourth plea is a supposed grant, the existence of which is to be shewn by acts of user. But, if the acts of user would not be legal, the grant cannot be inferred from them. The company here are not the owners of the water, but trustees for the public, under a very limited trust. They are bound to apply all the water that may be required to the purposes of the navigation; they are also bound to allow so much as is wanted for the particular use (specified in [the statute]), of the mill owners within a certain distance of the banks".
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:
"There is evidence, no doubt, in this case of a long-continued practice of letting the herbage on the road for the pasturage, not of sheep exclusively, but also of a limited number of horses and cattle. The question is whether that ought to be treated as evidence of a lost grant, which might have had a legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period".
The Master of the Rolls answered the question in a well-known passage (at p 573):
"Again, it is essential to consider who, if a grant is to be presumed, are to be the supposed grantors and grantee. The defendants' counsel found themselves in considerable difficulties in this respect. I agree that the Court is endowed with a great power of imagination for the purpose of supporting ancient user. But, in inferring a legal origin for such user, it cannot infer one which would involve illegality. That was laid down in Rochdale Canal Company v Radcliffe".
After discussing that case and difficulties as to the grantee he continued (also at p 573):
"But a much greater difficulty arises as to the supposed grantors. The learned judge appears to have been of opinion that the owners of the soil of the private roads might release the surveyor from the restriction as to the letting of the herbage. But, as I have already pointed out, the restriction not being intended merely for their benefit, they had no power to waive it, and, if they did so, they did what they had no power to do, and what the Legislature forbids".
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):
"The evidence on both sides satisfies me that the defendants have continually, and down to very recent dates in this year, been committing offences against the Actin other words, that the user on which they rely as establishing the easement is a user contrary to statute. A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail: Neaverson v Peterborough RDC".
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,
"I conclude that every abstraction of water by the plaintiff from the mill pond after June 30, 1965, was illegal. It follows, in my judgment, that the plaintiff cannot rely on any abstraction of water carried out after June 30, 1965, in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity".
The last sentence of this quotation has often been cited, and it was referred to by Dillon LJ in Hanning's case. After discussing the authorities Dillon LJ drew this conclusion (at p 20):
"I take all these cases to recognise what has always been the rule of the law; that an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute".
Kennedy LJ (at p 23) also referred to Cargill v Gotts and reached a similar conclusion. These formulations of the principle will in almost every case produce the same result as is obtained by asking the question: Could the right claimed have been lawfully granted by deed? The canal company in Rochdale, the highway surveyor in Neaverson and the lower riparian owner (and his predecessors) in Hulley were not in a position to make a lawful grant because they had no power to authorise acts which affected not only their own private interests, but also wider public interests.
The present case is exceptional because of the unusual nature of the offence created by section 193(4) of the Law of Property Act 1925. It creates a criminal offence but it is, most unusually, an offence in respect of which the owner of the soil of the common has a dispensing power. It is common ground that that is the effect of the words "without lawful authority" in subsection (4). Moreover the landowner does not hold his dispensing power in any sort of fiduciary capacity. He is not bound to exercise it in the public interest. He can if he thinks fit exercise his dispensing power in his own private interest, by levying a charge for the grant of his authority. Miss Williamson QC (for the respondent) candidly agreed that from her client's point of view the appeal is ultimately about money.
That extraordinary feature of the criminal liability created by section 193(4) was noted by the Court of Appeal in Hanning, since it was the ground on which the case had been decided (in favour of prescription) at first instance. But Dillon LJ equated the judge's approach with that of the Court of Appeal (the so-called "public conscience" test) in Tinsley v Milligan  Ch 310. Dillon LJ (who was giving judgment after this House had reserved judgment, but before it gave judgment in Tinsley v Milligan  1 AC 340) correctly anticipated the House's disapproval of the "public conscience" test. He said at p 18:
"Parliament does not only enact statutory provisions in the public interest where the public conscience would be affronted if the provision were not made; there are very many more statutory provisions made for the public benefit where the public conscience is not stirred, but any restrictions or prohibitions in those provisions have to be observed."
He then analysed some of the authorities which I have mentioned and reached the general conclusion set out above. Kennedy LJ (at p 23) did not regard this as an area in which the Court had any discretion. Sir Roger Parker agreed with both judgments.
Dillon LJ (at p 20) also cited a general statement by Lord Maugham in George Legge & Son Ltd v Wenlock Corporation  AC 204, 222,
"There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable."
I do not consider that that wide proposition has any application here, since a statutory prohibition in respect of which a private citizen has an unfettered dispensing power, exercisable if he thinks fit for his own private purposes, cannot easily be described as enacted in the public interest.
My Lords, in my view this House should not readily conclude that the decision of the Court of Appeal in Hanning was mistaken, especially as it has been followed, not only by the Court of Appeal in this case, but also on other occasions. Nevertheless I am satisfied that the wide formulations of the principle by Templeman LJ in Cargill v Gotts and by the Court of Appeal in Hanning, although producing the right result in the generality of cases, are too wide in a case like the present. That is not to say that the residents of houses near Newtown Common did not commit a criminal offence (of a fairly venial nature) when they drove across the common to and from their houses. The principle of legal certainty requires the criminality or lawfulness of an act to be determined at the time when it takes place, and not with the advantage (or disadvantage) of hindsight. Nevertheless the prior authority of the owner of the common would have provided a complete defence to any criminal charge. In the ordinary case of prescription of a private right of way, the prior authority of the landowner (in the solemn form of a grant by deed) is presumed or inferred from long user, even though every act of user during the prescription period takes place without his actual prior authority and is a tortious (though not a criminal) act. I cannot see that any public interest would be served by holding that the absence of the landowner's actual prior authority should produce a completely different result in cases where section 193(4) is in play.
I do not see this as reintroducing the "public conscience" test which this House disapproved in Tinsley v Milligan. It is merely a recognition that the maxim ex turpi causa must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest (see for instance National Coal Board v England  AC 403, 419). In my opinion it is the landowner's unfettered power of dispensing from criminal liability, exercisable at his own discretion and if he thinks fit for his own private profit, which is the key to the disposal of this appeal. Since a dispensing power of that sort is very unusual, it is unlikely to apply to many other cases of criminal illegality.
I would therefore allow this appeal.
BARONESS HALE OF RICHMOND
I agree that this appeal should be allowed for the reasons given by my noble and learned friend Lord Scott of Foscote, with which I understand that my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Walker of Gestingthorpe also agree.
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