Summary

Law of Property Act 1925 s.193(4), which made it an offence to drive without lawful authority on a common to which the section applied, did not prevent a person who had contravened it from acquiring an easement by prescription or the doctrine of lost modern grant because there was no requirement of public policy that would prevent the presumption of a grant that it would have been lawful for the landowner to have made.

Facts

The appellant (B) appealed against a decision that he was not entitled by reason of more than 20 years uninterrupted use to a right of way for vehicles across a common owned by the respondent (BM) that bordered on his home. BM issued proceedings against B and owners of other properties adjoining the common seeking a declaration that they had no rights of way for vehicles across the common. B, who needed to use the common to gain access to the nearest public road, accepted that neither BM nor its predecessors in title had given permission for the common to be used for vehicular access. The judge granted the declaration sought by BM, and his decision was upheld by the Court of Appeal, on the basis that because it was an offence under the Law of Property Act 1925 s.193(4) to drive without lawful authority on the common and since no lawful authority had ever been given to drive on the common a right of way could not have been acquired by the use that B had enjoyed, applying (1) The Right Honourable David Lord Trefgarne PC Philip David Robbins (2) John Guy Hanning (3) Charles Stuart Shackerley-Bennet v Top Deck Travel Ltd (1994) P & CR 14.

Held

The case of Hanning and cases based on it were wrong and ought not to be followed. The true rule was that a lawful grant could not be made to do an act which if done would be illegal (George Legge & Son Ltd v Wenlock Corp [1938] AC 204 considered), but it did not follow that acts in breach of public law prohibitions could never lead to the acquisition of legal rights by prescription. It was possible in the instant case, by the very terms of s.193(4), for the landower to make a lawful grant of the easement. Where the landowner could not make a lawful grant long and uninterrupted use contrary to a statutory prohibition could not give rise to the presumed grant of an easement, but such long and uninterrupted use was capable of supporting a presumed grant by the landowner of an easement which if granted would have been lawful and effective. There was no requirement of public policy that would prevent the presumption of a grant which it would have been lawful to have made. It was accepted that a prescriptive right, or a right under the lost modern grant fiction, could be obtained by long use that throughout was illegal in the sense of being tortious. Public policy did not prevent conduct that was illegal in that sense from leading to the acquisition of property rights. Hanning could only be justified on the footing that conduct illegal in a criminal sense was, for public policy purposes, different in kind from conduct illegal in a tortious sense. There was no reason why that should be so where the conduct in question was use of land that was not a criminal use of land against which the public law set its face in all cases but was criminal only because it was a user of land for which the owner had given no "lawful authority". In that respect, the use of land made criminal by the Law of Property Act 1925 s.193(4) had much more in common with use of land that was illegal because it was tortious than with use of land that was illegal because it was criminal. If an easement over land could be lawfully granted by the landowner, the easement could be acquired either by prescription under the Prescription Act 1832 s.2 or by the fiction of lost modern grant, whether the use relied on was illegal in the criminal sense or illegal merely in the tortious sense. There was no valid reason of public policy to bar that acquisition. Hanning overruled.

Appeal allowed.