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Illegality



This page deals with the decision of the House of Lords in Bakewell Management v Brandwood and its effect on the regulations made under s68 of the Countryside and Rights of Way Act 2002.


Right of way by vehicles

In Hanning v Top Deck Travel Group Ltd (1994) 68 P&CR 14 the owners of residential property failed to acquire a prescriptive right to drive over a common because s193 of the Law of Property Act 1925 makes it an offence for any person to do so without lawful authority. The CA held that it was not possible to obtain an easement by prescription or by the doctrine of lost modern grant based upon an activity that is contrary to the criminal law. That case was followed in Massey v Bouldon in relation to s34 of the Road Traffic Act. However, both these authorities and other cases that followed them have now been overruled by the HL.

It is possible after all to acquire an easement by prescription or lost modern grant even though the act of driving over the land constitutes a criminal offence under 193 of the Law of Property Act 1925 or s34 of the Road Traffic Act 1988:
    ".. 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."(Lord Scott, paras 46 and 47).
As a result of this decision home owners adjacent to commons will no longer need to apply under the scheme set up under section 68 of the Countryside and Rights of Way Act 2000 - see below.

Bakewell Management Ltd v Brandwood [2004] UKHL 14.

Article: "Law lords ease the burden of access" by Paul McCartney (Estates Gazette, 26 June 2004, p185)


Section 68 of the Countryside and Rights of Way Act 2000

Regulations made under s68 of CROW dealing with the procedures to be followed and the sums to be paid by homeowners wishing to obtain the right to drive over common land to their properties. Owners of properties in existence on or before 31 December 1905 must pay .25% of the site value. Those with properties built between 1 January 1906 and 30 November 1930 must pay 0.5%. Owners of properties built since must pay 2%. The English regulations came into force on 4 July 2002; the Welsh on 9 February 2004. However, they are now made redundant by the decision in Bakewell - see above.

The Vehicular Access Across Common and Other Land (England) Regulations 2002 (SI 1711)

The Vehicular Access Across Common and Other Land (Wales) Regulations 2004 (No.248 W25)

Article: U-turn on rights of way by Stephen Bickford-Smith and Camilla Lamont, Landmark Chambers Discusses the HL decision in Bakewell and considers the cost benefit considerations to be taken into account in deciding whether or not to continue with existing applications under s68 of CROW. It also considers whether or not those who have already paid compensation under the provisions of CROW can now get their money back! (Solicitors Journal 23 April 2004, p455).


Consultation on repeal of s68

The Department for Environment, Food and Rural Affairs consulted on repealing section 68 of the Countryside and Rights of Way Act and associated vehicular access regulations in the light of the House of Lords of decision in Bakewell Management Ltd v Brandwood where it was held that owners of properties bordering on commons could acquire rights of way by prescription even though technically the act of driving over the common was unlawful. The deadline for responses was 15 November 2005.

Consultation on Section 68 of the Countryside and Rights of Way Act 2000: vehicular access over common and other land



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