Brandwood & Ors v Bakewell Management Ltd.

Newtown Common is an irregularly shaped ancient common extending to about 144 acres near Newbury, Berkshire. About 28 houses have been built on plots of land, varying quite significantly in size, abutting onto the common. For years the owners of these houses have driven their motorcars along tracks and roads, some tarmacked, some unmade, from their properties to the highway. Except for two properties that is the only means of access to the highway. It must, therefore, have come as a nasty shock when the owner of the common suddenly announced that this driving of motor vehicles over the common was unlawful. The owner was, however, willing to grant an easement for vehicular use in return for the payment of an appropriate fee. That offer was not universally acceptable and this litigation ensued. The owners sought a declaration that each of the 47 owners of those properties was not entitled to cross the common with motor vehicles and an injunction was sought forbidding them from entering and crossing the common with motor vehicles. Four of the defendants have taken no part in this litigation but Park J. granted the declaration against the remaining 43 defendants, but gave them permission to appeal. The outcome of the appeal may have far reaching consequences for very many others who live next to common land.

It seems that Newtown Common has been common land for centuries. For many years the fee simple vested in the Earl Carnarvon. The commoners had rights to use the common but it was not until 1925 that the common was opened up to the general public. The Law of Property Act 1925 so provided by section 193 in these terms, as since amended:-

“(1)

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 within the meaning of the Metropolitan Commons Act 1866 to 1898, 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 the manner hereinafter provided:

Provided that – (omitting what is immaterial)

(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; …”

Importantly for this case subsection 4 provides as follows:-

“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 the 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.”

Newtown Common was not an area to which subsection 1 originally applied. Subsection 2 of section 193 did, however, make this provision:-

“The Lord of the Manor or other person entitled to the soil of any land subject to rights of common made by deed, revocable or irrevocable, declare that this section shall apply to the land, and 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^st December 1927 the 6^th Earl of Carnarvon, the Lord of the Manor of Newtown, and the owner of the soil of the waste or common land of Newtown Common by deed duly declared that section 193 of the Law of Property Act 1925 should apply to the common. That deed was deposited with the Minister of Agriculture and Fisheries on 3^rd January 1928. It has not been revoked.

Some time in about 1986 the Earl sold the common and Bakewell Management Ltd. (“Bakewell”), the claimant in the action and the respondent to the appeal, are now the owners.

As I have said, houses have been built on adjoining properties. Accepting as accurate for present purposes the facts submitted in the witness statements, it appears that three of these houses were built over a hundred years ago and one over ninety years ago. These are the only three properties developed before 1908, a date which will become significant in a moment. Two more were built before 3^rd January 1928 and the others have been built since then. It is common ground that for many years the owners of and visitors to these properties have accessed them across the common by motorcars and other vehicles. The distance travelled varies from property to property. We were told, for example, that five of the properties cross a narrow strip of about 15 feet of the common between a public highway and the boundary of the first house. Another four need to use a track the outer half of which only is on the common so one wheel of the car will trespass, the other will not. In another case, on the other hand, the track must travel several hundred yards over the common. These are fascinating differences of no consequence in the appeal.

It is, moreover, common ground that the owners of these properties have never had permission from the Earl or his successor to drive on the common and so by their having driven day in and day out “without lawful authority” they have regularly committed an offence under section 193(4) of the Law of Property Act 1925. I cannot pretend it is the most heinous offence in the criminal calendar but offence it is.

Bakewell do not really wish to stop them 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.”

The occupiers’ predicament has been recognised by Parliament when enacting section 68 of the Countryside and Rights of Way Act 2000. Omitting that which may be immaterial, it provides:-

“(1)

This section applies to a way which the owner or occupier (from time to time) of any premises has used as a means of access for vehicles to the premises, if that use of the way –

(a)

was an offence under any enactment applying to the land crossed by the way, but

(b)

would otherwise have been sufficient to create on or after the prescribed date, and to keep in existence, an easement giving a right of way for vehicles.

(2)

Regulations may provide, as respects a way to which this section applies, for the creation in accordance with the regulations, on the application of the owner of the premises concerned and on compliance by him with prescribed requirements, of an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles over that way.

(3)

An easement granted in accordance with the regulations is subject to any enactment or rule of law which would apply to such an easement granted by the owner of the land.

(4)

The regulations may in particular – …

(d)

make provision as to the payment of an amount by the owner of the premises concerned to any person or into court …”

The Vehicular Access across Common and Other Land (England) Regulations 2002 were made on 3^rd July 2002 and are now in force. Among other things it provides for the calculation of the compensation sum as follows:-

“11.(1) Subject to paragraph (2), the compensation sum shall be 2% of the value of the premises.

(2)

Where the premises were in existence on –

(a)

31^st December 1905; or

(b)

30^th November 1930,

the compensation sum shall be 0.25 per cent. Or 0.5 per cent of the value of the premises respectively. …

(4)

For the purposes of these regulations, the value of the premises shall be calculated as at the valuation date on the basis of the open market value of the premises with the benefit of the easement.”

The hearing below proceeded on assumptions that there was no specific evidence of the Carnarvon family or any other fee simple owner of the common granting either an easement or a licence authorising the owner of any adjoining property to have access to that property by vehicle across the common and in the absence of specific evidence it was assumed that there never has in fact been such an easement or licence.

Bakewell brought their claim against 47 defendants, the owners of the properties which abut the common and are accessible with vehicles over it. The claim asserted that the defendants have “unlawfully traversed the common with motor vehicles both to and from their respective properties and/or otherwise”. The defence admitted driving across the common but claimed that the defendants “were entitled as of right at all material times to rights of way with motor vehicles over the common”. They alleged that they had enjoyed continuous vehicular rights of way over the common for periods in excess of 20 years preceding the commencement of the claim as of right and without interruption. They asserted that they had crossed the common with motor vehicles “openly and without the licence or consent” of the claimant or its predecessors. Accordingly they counterclaimed for declarations that they were entitled “as a legal right under section 2 of the Prescription Act 1832” alternatively by virtue of their enjoyment “from time immemorial and by virtue of a grant by deed made by all necessary parties which has been accidentally lost or destroyed”.

Mr Paul Morgan Q.C., who appears for the appellants and for whose submissions I am indebted, submits that it is central to his case that the court appreciates how the rules of prescription and the doctrine of the lost modern grant operate. He referred us to Philipps v Halliday [1891] A.C. and to the opinion of Lord Herschell at p.231; to the careful analysis of Buckley L.J. giving the judgment of this court in Tehidy Minerals Ltd. v. Norman [1971] 528, 552; to the judgments of Lord Denning M.R. and Stamp L.J. in Davis v Whitby [1974] 1 Ch. 186, 192; and especially to the illuminating speech of Lord Hoffmann in Reg. v Oxfordshire C.C. Ex P. Sunningwell P.C. [2000] 1 A.C. 335, 349-351. Those authorities clearly establish the following principles:-

The appellants’ case proceeds as follows. First they have as a matter of undisputed fact used the tracks and roadways across the common openly and as of right. They did so without ever having permission from the owner to drive their motorcars across the common. Secondly each of them has so used the common continuously for at least 20 years. Therefore, thirdly, they have established the presumption of a modern grant, though it has been lost. Fourthly, it cannot be shown that it was impossible for such a grant to have been made. Consequently, fifthly, it is now conclusively presumed that there was at some time an express grant to each of them permitting them to drive across the common. Sixthly, that grant is conclusively presumed to have been in existence on the day before they first began to drive on the common and so their driving on the common was from first to last lawful. Thus no-one can now say that they were guilty of any criminal activity.

They do have a problem. It is Hanning v Top Deck Travel Group Ltd. (1993) 68 P & CR 14, a decision of this court. It is not suggested that it can be distinguished from the case before us. Applied to this case, the appellants lose.

Here the claimants owned Horsell Common on the outskirts of Woking. This was historically wasteland of the manor owned by the successive lords of the manor, the Lords Onslow, and as Dillon L.J. said:-

“It is common ground, if one may use such a well-worn phrase in this particular context, that Horsell Common is within the section [section 193 of the Law of Property Act 1925]. The [owners] could, if they had wished, have granted the defendant a right of way for its commercial vehicles, but they did not do so. The reference in subsection (iv) to “lawful authority” must mean the authority of the owner of the land, in relation to such land as the present case is concerned with.

The question then is, does this section prevent the defendant acquiring an easement by user of the track when the user was illegal under the section and, on each occasion, an offence was committed for which the person driving the vehicle was liable on conviction to a fine?”

In that case the defendant was driving its buses to the property adjacent to the common by a track from the public highway.

The judge held that he had a discretion because the appropriate test was whether the public conscience would be offended applying the decision of the Court of Appeal in Tinsley v Milligan. Dillon L.J. rejected that approach saying:-

“Such a public conscience test is contrary, in my judgment, to long and firmly established authority in the present field.”

The first decision he referred to was the decision of the Court of Appeal in Neaverson v Peterborough Rural District Council [1902] 1 Ch. 557. He cited among other passages this passage from the judgment of Sir Richard Henn Collins, the Master of the Rolls, where he said this at p.573:-

“Again, it is essential to consider who, if a grant is to be presumed, are to be the supposed grantors and grantees. 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.”

He went on at p.20:-

“Then we have a clear statement of principle in the case of Glamorgan County Council v Carter [1963] 1 W.L.R. 1, 5. In the leading judgment of Salmon J., as he then was, he said:-

“It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal user to which she was putting the land.”

Again, there is a general statement by Lord Maugham in the case of George Legge & Son Ltd. v Wenlock Corporation [1938] A.C. 204, 222 where he said:-

“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”.

Finally there is a passage in the judgment of Templeman L.J. in Cargill v Gotts [1981] 1 W.L.R. 441, 446 where he said: “The Court will not recognise an easement established by illegal activity”. That was a case which involved the Water Resources Act 1963, which prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence.

The earlier case I have mentioned of George Legge & Sons v Wenlock Corporation concerned the River Pollution Prevention Act 1876 and an assertion that a right could be acquired despite that Act to continue pollution [of] a river. 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.”

It seems to me an [un]answerable difficulty in the defendants’ way if, for the four or five years from the defendants’ first acquisition of Young Stroat Farm, the user by the buses was illegal and a criminal offence each time the track was used by a bus, yet suddenly overnight, at the end of 20 years from the commencement of someone else’s user in 1965, it all becomes illegitimate.

Accordingly, in my judgment, the defendant in this case had not acquired any prescriptive right to drive their buses over the track across Horsall Common.”

Kennedy L.J. agreed and said at p.23:-

“The concept of lost modern grant is long established and valuable. But, as Mr Templeman pointed out, it is a fiction and in the absence of authority, there is no reason why that fiction should be extended to enable a claimant to assert that he has established a right to obtaining public rights by conduct which on each occasion constituted a criminal offence.”

Sir Roger Parker agreed with both judgments.

Mr Morgan did not flinch from submitting that we are not bound to follow and should not follow the decision in Hanning. It is to that question that I now turn.

We were referred to three other cases from which it is possible to extract the principles which are material to the decision we have to make. The cases were Young v Bristol Aeroplane Co. Ltd. [1944] K.B. 718, Morrelle Ltd. v Wakeling [1955] 2 Q.B. 379 and Rickards v Rickards [1990] Fam. 194. The principles are these:-

Mr Morgan relies on The Lord Advocate v Lord Lovat (1880) 5 App. Cas. 273 as a decision with which Hanning is inconsistent. There Lord Lovat disputed the right of the Crown to the salmon-fishings in certain Scottish rivers maintaining an adverse right either by express grant or by continuous possession for a sufficient period in connection with his barony title. It was not disputed that Lord Lovat and his ancestors had a perfect title to the salmon-fisheries from the Falls of Kilmorack to the sea. It was disputed very strenuously that the title which was good for the salmon-fishings below the falls was, as Lord Lovat contended, equally good for the salmon-fishings above the falls. Lord Lovat’s case was that as the owner of the fishing rights above and below the falls he in the open and continuous exercise of an undisputed and apparently indisputable right, arranged to take all the fish in the river in the way he deemed best for his own interest. He and his predecessors placed salmon cruives (nets) below the falls and so constructed them as to prevent the fish from ascending with the result that they took virtually the whole “crop” of the river at a position most convenient for themselves, with the greatest gain and the least expense. Lord O’Hagan said at p.291:-

“It seems to me difficult to imagine an exercise of dominion more complete, and an assertion of right more unequivocal. All the Lovats could have done, if they had pursued the salmon to the upper waters and appropriated them there, they did by stopping their passage and taking the fish below.

And what they did, they did openly. The cruives were permanent and the fishing was exclusive; and it does not appear that resistance or remonstrance from any person, at any time, raised a single question as to their perfect right to do it.”

Nonetheless it appears that the formation and the working of the cruives may have been illegal, though it is far from clear to me quite how or why that illegality arose. Lord Blackburn at p.315 adopted part of Lord Gifford’s opinion in which he said:-

“… besides using cruives, which was quite within his right, the Lord Lovat of these times seems to have narrowed the yairs and the meshes of the net to an extent greater than the law allowed. It is said that this was illegal, and so it was; but its illegality does not make it the less an important element in showing what the position was. Practically the result was that Lord Lovat, by means of these cruives and the additional assistance of the illegal meshes, could take all the salmon he wanted below the falls instead of going up above them; as expressed in argument, he took his crop of salmon at that point, but the crop he took was that of the whole river. That, whether legal or not, is perfect possession of the whole river …”

Lord Blackburn was of the view that “the illegality of this mode of fishing would not go for much” but then he added, intriguingly, “…The law, said the old proverb, did not come further than Inverness.”

Lord O’Hagan said at p.292:-

“… if illegality there was, it appears to me, on this question of possession, to tell in favour of the respondent. … But no-one interfered; the detention of the salmon went on without complaint, and the inference, that it was allowed because it was rightful, was strengthened if it was really illegal. Therefore, I conceive that the argument tells rather the other way. The title of the respondent is not rested on illegality; and though his acts in asserting it may not have been authorised by law, they could not derogate from the title, even if they did not, as I think they do, tend to demonstrate a complete possession under it.” [My emphasis is added].

I am not persuaded that that decision is binding on this court so as to show that Hanning was demonstrably wrongly decided. First, it is a decision on Scots law, whether or not it extended further than Inverness. Secondly Lord Lovat’s possession as such was not unlawful even if there was some illegality in an aspect of the way in which he exercised his right of possession. In other words, if the claimants here could have claimed adverse possession by lawfully driving across the common, they would not lose it by proof that on each and every occasion they did so they exceeded the speed limit in breach of the criminal law. Thirdly, and arising out of the words I emphasised in the speech of Lord O’Hagan, Lord Lovat’s possession was not founded upon illegality.

Mr Morgan also relied on Bethnal Green Vestry v London School Board [1898] A.C. 190. There in 1866 the owner of a block of houses laid down a pipe in the yards at the rear of the houses to carry off their drainage and connected the pipe with a sewer belonging to the Vestry in a neighbouring street. There was no evidence of any notice having been given to the Vestry or of any order having been made by them as would have been required under section 74 of the Metropolis Local Management Act 1855 nor was there evidence of approval having been obtained of the Metropolitan Board of Works under section 69 of the Act. The block was acquired by the school and when the pipe was found to be defective the school called upon the Vestry to repair it. The Vestry declined to do so on the ground that the pipe was not a sewer vested in or repairable by them. The issue was whether the pipe came within the definition of “sewer” in section 250 of the Act of 1855. The House of Lords accepted that no appropriate order had been made. Lord Halsbury L.C. was satisfied that the work was done with the sanction and authority both of the Vestry and of the Metropolitan Board of Works. Lord Herschell said at p.197:-

“It is not disputed that if vested in the Vestry this is repairable by the Vestry. Therefore the only question is whether it is so vested in the Vestry. Now, my Lords, the words absolutely wide and unlimited, “all sewers” thereafter to be made, and it is only sought to cut down those words by suggesting it must mean all sewers lawfully made.”

He held at p.198:-

“Therefore, I think there is in this case good ground for presuming that the connection of this sewer for draining the houses in Tyrell Street with the sewer in Turin Street received the sanction of the Vestry, and, in the absence of any distinct proof to the contrary, received the sanction of the Metropolitan Board of Works.

But, my Lords, even if this could not be made out, I do not think it would follow, if the sanction of the Vestry was given, that the sewer could be held not to be a sewer within the meaning of s.68 merely because the Vestry had failed to perform their statutory duty of first submitting the plans to the Metropolitan Board of Works and obtaining their sanction. … But it does not follow that because the requisite sanctions have not been obtained the thing constructed is not a sewer. … … in the language of this legislation I think it is nonetheless a sewer within the meaning of the Act even though that sewer may have come into existence without an assent or approval which, as between public bodies, the statute requires.”

I can find no principle to be extracted from that case which has the slightest relevance to the issues before us. That was a case about statutory construction. It is not a case about illegality. On the facts the House of Lords found that the necessary sanctions had been given. I commend the breadth of the research conducted by counsel, their attention being drawn to this case by a reference to it in George Legge & Sons Ltd. v Wenlock Corporation [1938] A.C. 204. I agree with the comment of Lord MacMillan at p.204 where he said:-

“But these cases are in an entirely different region of the law. There was no question in these cases of the conversion of a natural stream into a sewer but only a question whether what would otherwise answer the legal definition of a sewer was not in law a sewer because of the disregard of certain statutory formalities in procedure.”

I emphatically reject the submission that the failure of the Court of Appeal in Hanning to refer to the Bethnall Green Vestry case meant that the decision in Hanning was made per incuriam. There is nothing in that House of Lords authority which bore even remotely on the question before the Court of Appeal.

It is also submitted on the appellant’s behalf that Dillon L.J. overlooked the really important part of George Legge & Son Ltd. The facts there were that for upwards of 25 years houses in a local township discharged sewage into a water course above the mouth of a culvert on the plaintiff’s land. The contents of the culvert overflowed and caused considerable damage. The plaintiffs claimed that the watercourse had become a sewer for which the defendant local authority was responsible. There was a trial of a preliminary issue to determine whether the change of status from a natural stream to a sewer within the Public Health Act 1875 was in law possible. The statutory background is that when the Public Health Act 1875 was passed the channel in question was admittedly not a sewer within the meaning of that Act and therefore did not vest in the local authority. Equally, when the Rivers Pollution Prevention Act 1876 was passed, the channel was the channel of a “stream” within the meaning of that Act and the stream became entitled to the protection of the Act which made it a statutory offence for any person to cause to fall or flow into the stream any solid or liquid sewage matter. The change of legal status (if such there could be) from natural stream to sewer was alleged to have been the result of the discharge of sewage into the stream since 1876. The question of law was more explicitly and precisely reformulated by the parties in the joint case which they presented to the House of Lords to be whether it was in law possible for the status of a natural stream to be changed to that of a sewer by the discharge of sewage into it after coming into operation of the Rivers Pollution Prevention Act 1876.

Lord MacMillan observed at p.214:-

“Prima facie it would seem remarkable if it were possible to legalise the pollution of streams by contravening an Act designed to prevent their pollution.”

I must quote the whole of a paragraph in Lord Maugham’s speech at p.222:-

“My Lords, there are certainly statutes imposing duties or prohibitions which can be waived. As Lord Selborne pointed out in Great Eastern Ry Co. v Goldsmid (Spittlefields Market case) (1884) 9 App. Cas. 927, 936, “Unusquisque potest renunciare juri pro se introducto”. 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. The present appeal, in my judgment, and, I think, in that of all your Lordships, would therefore be bound to fail quite apart from the authority of this House in the case of Airdrie Magistrates v Lanark C.C. in reliance on which the Court of Appeal decided the case.”

I highlight those two sentences because they were relied upon by Dillon L.J. in Hanning. Mr Morgan submits that the really important sentence is the preceding sentence recognising that by the doctrine of a lost grant rights can be acquired apparently in contradiction to the terms of a statute. That, he submits, is the case here. Section 193 of the Law of Property Act 1925 was passed to give the public rights of access for air and exercise to common land. It did not apply to this common as originally enacted and only became applicable by the Earl of Carnarvon’s declaration. From then on driving over the common was an offence but it was an offence only if it was done without lawful authority. The owner’s power to authorise driving equally conferred power in the owner to grant an easement over the common and that easement is conclusively to be presumed by virtue of the operation of the lost modern grant doctrine. Sullivan J. pointed out in the course of argument that section 193 might be a hybrid section in that it does give power to the person for whose benefit it is introduced, the owner of the common, to waive its requirements, but, absent such waiver, it remains binding on members of the public who wish to enjoy access to the common. Be that as it may, I am totally unpersuaded by the submission that Dillon L.J. was unaware of Lord Maugham’s opinion. Dillon L.J. was dealing with the case before him in the context of the operation of the lost modern grant doctrine. He was satisfied it did not operate here. I cannot accept in those circumstances that his judgment was made per incuriam in ignorance or forgetfulness of some part of George Legge & Sons, binding on him, which is demonstrably contrary to his conclusion. On the contrary, he properly applied that case.

Mr Morgan submits that the court misunderstood the judgment of the Court of Appeal in Neaverson v Peterborough R.D.C. [1902] 1 Ch. 557. The Newborough Enclosure Act 1812 was an Act for draining, enclosing and improving Fen land. The Act provided that the herbage on the road, i.e. the right to pasture, should belong to whomsoever the Inclosure Commissioners should allot and award the same. The Commissioners appointed the Surveyor of Highways of the local parish which now falls within the respondent council. The terms of the award permitted the annual letting for depasturing of sheep, but not of cattle or other stock. Notwithstanding that provision the Surveyors of Highways had since 1846 annually let the herbage for the pasturage, not merely of sheep, but also of a limited number of cattle and horses. The appellant sought an injunction to restrain that grazing.

The question for the court was posed by Sir Richard Henn Collins M.R. at p.563:-

“The question is whether, having regard to the provisions of the Act and the award, it would have been legally possible for any person or persons to grant to the Surveyor of Highways the right to do what by those provisions is forbidden, namely, to let the herbage on the road in question for the purpose of depasturing, not only sheep, but also horses and cattle. There is evidence, no doubt, in this case of a long-continued practice of letting 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 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.”

He held at p.571:-

“I do not think that, in the face of that provision in the award [the restriction to sheep] it would be competent for the owner of the soil of this road or any other persons to grant the right of depasturing cattle and horses on it, because that would be distinctly contrary to the purpose of the Act. It appears to me that the test, by which to determine whether the court ought to presume a lost grant in this case, is to consider whether, immediately after the making of the award, the owners of the allotments, or any other persons, could legally have met together and agreed to grant to the Surveyor of Highways the right to depasture cattle and horses on the road. I think that such a grant would have been directly contrary to the statutory provisions, which made it unlawful to depasture stock other than sheep on the road, because it might interfere with the drainage of the district, and make it more difficult for the Drainage Commissioners, who, after the making of the award, were charged with the duty of maintaining the drainage of the district, to keep the drains open.”

Romer L.J. held at p.575:-

“I think, therefore, that all the provisions as to which it can be gathered from the Act and award that they were intended to be of a permanent character, for the preservation of the drainage system of the area, are provisions which it is not competent either for the owners of the allotments, or the inhabitants of the parish constituted under the Act, to release or do away with by any grant made by them.”

Mathew L.J. held at p.578:-

“It is argued that a provision made by the Inclosure Commissioners in their award, in pursuance of the objects of the Act, can somehow or other be got rid of through the action of allottees under the Act, the suggestion that this can be done through the presumption of a lost grant seems to me really to amount to saying that statutory provisions can be repealed by the allottees, although they were not made solely in the interest of individuals, but also that of the public. … I do not think they had any part to repeal the provisions of this statute to that extent.”

Mr Morgan argues very persuasively that this case, properly understood, is an example of the exception to the legal fiction of a lawful grant based upon the fact that the existence of such a grant would be impossible. The surveyors were simply not empowered lawfully to do what they had been doing. I agree with that analysis. I am, however, not persuaded that Dillon L.J. did not also so understand the case. He saw Hanning as a case where restrictions or prohibitions in statutory provisions made for the public benefit have to be observed. He recognised at p.19 that in Neaverson:-

“… it was not competent for the allottees or anyone to make a grant so as to extend the right of pasturage to stock other than sheep and so a legal origin could not be presumed to support the continuation of that practice.”

Mr Morgan contends that the court in Hanning failed to appreciate the crucial difference between that case and the Neaverson case which lies in the fact that in the latter the owner was not allowed to let horses and cattle graze on the land, whereas, in the former the owner of the common was perfectly entitled to give permission to drive across it so that if he had granted an express easement conferring that right of way it would have been both possible and lawful. I am not sure that is a fair criticism of the court. I note at p.22 in the judgment of Kennedy L.J. that he recited the argument put before them in these terms:-

“For the respondents Mr Chapman focuses our attention on the appellants’ express power to authorise use of the track. He contends that the “illegality” rule does not preclude the acquisition of an easement by prescription where the illegality lies in an activity to which the servient landowner can lawfully give his consent.”

As Mr Morgan conceded to me, that encapsulates his case.

Neaverson was applied in Hulley v Silver Springs Bleaching and Dyeing Co. Ltd. [1922] 2 Ch. 268. There the plaintiff, a riparian owner of a mill and premises on the banks of a natural stream commenced an action against the owners of the bleaching and dyeing works higher up the stream for an injunction to restrain the defendants from a continued pollution of the waters of the stream. The main defence was a plea of a prescriptive right to pollute, enjoyed as of right for twenty years, alternatively, a right by virtue of a lost grant. Eve J. held that the prescriptive easement claim was contrary to the provisions of the Rivers Pollution Prevention Act 1876. Each time the defendants caused or knowingly permitted to fall or flow into the brook any poisonous, noxious, or polluting liquid proceeding from their own works they were committing an offence under section 4 of that Act. He held at p.282:-

“… 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.”

That case was referred to in Hanning. Kennedy L.J. certainly appears to have accepted at p.22 that:-

“… The servient landowner had no power to grant relief, so that when the servient landowner tolerated the adverse user it could not be implied that he had made any grant or waived any right.”

There were, however, other dicta upon which the court relied. In Glamorgan C.C. v Carter [1963] 1 W.L.R. 1, 5 Salmon J. stated:-

“It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal user to which she was putting the land.”

The case raised an issue of statutory construction of the Town and Country Planning Act 1947. Salmon J. held at p.6:-

“The construction which I favour, therefore, does not involve rewriting the proviso. It does not involve rewriting any part of the Act. It only involves applying the well-known principle that it is impossible to acquire a right by committing a quasi-criminal offence.”

It is not suggested that there is no such principle. Its application in Hanning does not, therefore, seem to me to be manifestly erroneous.

Finally the court in Hanning referred to the judgment of Templeman L.J. in Cargill v Gotts [1981] 1 W.L.R. 441, 446 where he said:-

“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 illegality arose from the failure of the plaintiff to obtain a licence from the River Authority with the result that he was abstracting more water from the mill pond than he was lawfully entitled to take.

As a statement of principle that appears to me to be binding upon this court in Hanning as it is upon us. It does not seem to me to avail the appellants to denigrate that statement of principle by submitting that it was stated without reference to authority and stated without reasoned explanation for it.

In my judgment that case is not shown to have been decided per incuriam nor was the court guilty of such an egregious error in its understanding and application of the authorities to justify our extending Young v Bristol Aeroplane Co. Ltd. Regarding myself bound by Hanning which is on all fours with the case before us, I would dismiss the appeal.

I accept as trite law that IF, for me a big “if”, the doctrine of lost modern grant does operate, then by reason of the fiction which is invoked it is conclusively presumed that from the very beginning the appellants drove upon the common exercising the right which the lost grant was deemed to have given them. Their driving is, therefore, deemed to have been lawful. That presupposes that the doctrine of lost modern grant does operate. The crucial question for me is whether it has come into operation.

One must start at the beginning. The appellants have to establish that they used the common as of right, that is to say without force, openly, and without the owner’s permission. Proving that they acted nec precario is a necessary averment. They do have to rely on proving that they acted without the licence of the owner. They do, accordingly, have to establish that they acted illegally.

How does illegality fit into the law relating to the acquisition of incorporeal hereditaments like this easement? The place of illegality in the general law is far from clear. Although it is stated in the context of the law of contract, the basic principle enunciated long ago by Lord Mansfield C.J. in Holman v Johnson (1775) 1 Coup. 341, 343 seems to me to be equally apposite in other fields of law. He said:-

“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground that the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.”

The Law Commission has recently issued two consultation papers, No. 154 on Illegal Transactions: The Effect of Illegality on Contracts and Trusts and the other No. 160 on The Illegality Defence in Tort. The law of illegality in contract is probably more settled. The law of illegality on trusts was to some considerable extent clarified by Tinsley v Milligan [1994] 1 A.C. 340. The test of an affront to the public conscience relied upon by the Court of Appeal and applied by the judge at first instance in Hanning found disfavour with their Lordships and is now discredited. The majority found that Miss Milligan established a resulting trust in the home she had shared with Miss Tinsley by showing that she had contributed to the purchase price of the house and that there was a common understanding between her and Miss Tinsley that they owned the house equally. She had no need to allege or prove why the house was conveyed into the name of Miss Tinsley alone, since that fact was irrelevant to her claim: it was enough to show that the house was in fact vested in Miss Tinsley alone. The illegality only emerged at all because Miss Tinsley sought to raise it. Having proved these facts, Miss Milligan had raised a presumption of resulting trust. There was no evidence to rebut that presumption. Therefore Miss Milligan succeeded. Thus the ratio of the case is that a party cannot rely on his own illegality in order to prove his equitable right.

That rule, the so-called Bowmakers rule, (Bowmakers Ltd. v Barnet Instruments Ltd.[1945] K.B. 65) is applied to defeat a claim in tort: see, for example, Clunis v Camden & Islington Health Authority [1998] Q.B. 978.

Another fundamental bar to success is where the grant of relief to the claimant would enable him to benefit from his criminal conduct, best shown in the leading case of Beresford v Royal Insurance Co. Ltd. [1938] A.C. 586.

I see no reason why those principles should not apply here. They seem to me to inform this branch of the law as capably as they do these other areas. Both are fatal to the appellant. First, they 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. I see no escape for the appellants from the consequences of those two rules. I may have a sneaking sympathy for them. I can readily accept that other tests to establish whether the illegality offends public policy might be found in their favour. Thus I do not regard the offences as so heinous by themselves that the dignity of the court will in some way be offended by granting them relief. Any disproportion between their conduct and the seriousness of the loss each will incur if his or her claim is disallowed is mitigated by the enactment of section 68 of the Countryside and Rights of Way Act 2000 and the implementation of the Vehicular Access across Commons and other Land (England) Regulations 2002. I do not find it necessary to speculate whether it was in Parliament’s mind when enacting those provisions to approve the decision in Hanning. It is sufficient to recognise that there is now due proportion between the conduct and the loss.

What seems to me to be crucial is that on the first day of the user upon which each of the appellants had to rely as well as on every day of that user up to the end of the 20^th year, on each of those days the user was illegal. There was in Lord Mansfield’s words “the transgression of a positive law of this country”, and “there the court says he has no right to be assisted”. On none of those days can the claimants rely on his or her illegal act. In the result, not having anything to rely on, they fail to establish 20 years continuous lawful user. It is the end of their case.

I am, of course, fortified in my conclusions by noting how consistently that approach has been adopted. It explains Robinson v Adair The Times, 2 March 1995, in which Dyson J. applied Hanning and said:-

“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.”

This was in turn followed by my Lord, Sullivan J., in Stevens v Secretary of State for the Environment (1998) 76 P & CR 503. On 14^th November 2002 Simon Brown L.J. held in Massey & Drew v Boulden Neutral Citation No. [2002] EWCA Civ 1634, paragraph 9:-

“That a prescriptive right of way cannot be acquired by a user in breach of a criminal statute is well established and (subject to paragraph 30 below) not in dispute before us – see particularly Hanning … and Robinson v Adair …”

The illegality arose there from a breach of section 34 of the Road Traffic Act, 1988 which prohibits driving a motor vehicle without lawful authority onto or upon any common land, moor land or land of any other description not being land forming part of the road. I see the force of Mr Morgan’s submission that it may come as a surprise to many to learn that, as “road” for this purpose is one to which the public has access, then the logical consequence of Hanning as applied in Massey v Drew is to prevent a right of way for vehicles being acquired by prescription over private ways when the text books and law reports are full of cases where such prescriptive rights have been acknowledged. Yet we have not been shown any authority where the court has granted the easement in the face of the illegality of the user. If Massey does have wide implications, they do not directly fall for our consideration. As it is, our judgment affecting common lands will cause wide enough anxiety to those who live adjacent to them.

I am satisfied that we cannot depart from Hanning. I would have decided the case the same way in any event. If the ramifications of that judgment and this are widespread, then it is for Parliament to change the law or for the House of Lords to correct us. It is not for us to do so. I consider I am obliged to dismiss the appeal.

I agree that, for the reasons explained by Ward LJ, this court is bound by Hanning v Top Deck Travel Group Limited (1993) 68 P&CR 14 and that decision was not per incuriam. The appellants’ principal submission, though forcefully advanced by Mr Paul Morgan QC, amounts to a syllogism. The appellants in effect say:-

“We have driven across Newtown common without permission, and therefore unlawfully, for twenty years. At the end of twenty years, we are deemed to have had permission all along. Therefore, our acts were never illegal.”

As Miss Hazel Williamson QC, for the respondent, submits, an easement cannot be acquired by conduct which, at the time it took place, was prohibited by a statute passed for public benefit: see, for example, Cargill v Gotts [1981] 1 WLR 441, C.A., cited in the Hanning case.

The question whether section 68 of the Countryside and Rights of Way Act 2000 provides a proportionate solution has not been argued before us, and accordingly I express no view on that question, or on the appropriate solution if the question had had to be decided entirely free of prior authority such as the Hanning case. However, the Law Commission’s valuable work on illegality, to which Ward LJ has referred, demonstrates that there is a need to reform the law of illegality.

The core provisional recommendation of the Law Commission is that the present rules as to the effect of illegality on, for instance, a claim in contract should be replaced by a structured discretion enabling the courts to grant relief notwithstanding the commission of an unlawful act if it considered relief appropriate, having taken into account specified factors including the seriousness of the illegality in question. The Law Commission considered that its provisional recommendations would make the law simpler and fairer. Its provisional views were submitted for public consultation: see Illegal Transactions: the Effect of Illegality on Contracts and Trusts, (1999) (Law Commission consultation paper No.154) and The Illegality Defence in Tort (2001) (Law Commission consultation paper No.160). The two consultation papers dealt with the law of contract, trusts and torts. Neither paper addressed in any detail a case such as the present, but the first consultation paper recognised that a case such as the present might exist and might call for similar reform:

“4.

ILLEGAL TRANSACTIONS THAT ARE NEITHER CONTRACTS NOR TRUSTS

So far, we have concentrated solely on how illegality affects contracts or trusts. However, there is a range of other transactions that may also be tainted in some way by illegality. One example is a ‘gift’ (other than under a trust) … It seems to us that it would be sensible if the discretionary approach which we have provisionally proposed should govern the effect of illegality on contracts and trusts, should also apply to this type of transaction. However, we would be very grateful to receive the views of consultees as to whether this is a practical approach to take and as to what is the range of illegal transactions that are neither contracts nor trusts.”

The final recommendations of the Law Commission will not be known until the final report is published, which is expected to be in 2003. As I see it, this whole area of the law is well-suited to a comprehensive scheme of law reform of the kind which the Law Commission is accustomed and able to make.

However, no discretion exists in the present case to disregard the effect of section 193(4) of the Law of the Property Act 1925. In the circumstances, in my judgment, the judge’s decision was correct and the appeal must be dismissed.

I agree that this appeal must be dismissed for the reasons given in the judgment of Ward L.J.