Bakewell Managements Ltd v Brandwood [2004] UKHL 14

Property Law – Easement – Right of way – Grant – Access to Properties

Facts:

In 1927 under a s193(2) Law of Property Act 1925 (the Act) deed, public access to common law was allowed. The owners of surrounding land opening gained access to their land by driving vehicles over the land where the access deed had been granted. This was done without the consent of the owner and were regularly committing offences contrary to s 193(4) of the Act. When the common law was sold to Bakewell, an injunction and declaration was granted against the surrounding land owners to prevent them from using the land. Brandwood and other surrounding landowners appealed.

Issues:

Whether the illegal use of the land (crossing the land with vehicles) prevented the acquisition of a right of way. Whether there was a presumption of a lost modern grant.

Held:

Appeal allowed. It was found that a lost modern grant could not be presumed where an actual grant by a landowner would have been unlawful, as permission for access over the land with vehicles had never been consented to. However, it was determined that there was no requirement of public policy that prevented an easement from being established by long and uninterrupted user to make such a grant, where the grant would have removed the criminality of trespass by creating a right to access. The case of Hanning v Top Deck Travel Group Ltd was held to be wrong in law and no longer applied as the conduct in Hannings case was illegal in the criminal sense and not in the tortious sense. Where tortious trespass occurs, it does not prevent the prescription of an easement, but criminal trespass does.