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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 i ... THIS IS AN EXTRACT OF THE FULL TEXT. TO GET THE FULL TEXT, SEE BELOW

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