Bakewell Management Limited v Brandwood and others: HL 1 Apr 2004

Houses were built next to a common. Over many years the owners had driven over the common. The landowners appealed a decision that they could not acquire a right of way by prescription over the common because such use had been unlawful as a criminal offence under section 193 of the Law of Property Act 1925.
Held: The landowner’s appeal was allowed. The case of Hanning was to be overruled. The issue of lawful authority had been equated with the rights of the landowners to permit access, but the land was already subject to the commoners rights under the 1836 Act. ‘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.’ While lost modern grant could not be presumed where an actual grant by the land owner would have been unlawful, that principle did not apply where it would have been lawful for the land owner to make such a grant and where such grant would have removed the criminality of the user.


Baroness Hale of Richmond, Lord Bingham Of Cornhill, Lord Hope Of Craighead, Lord Scott Of Foscote, Lord Walker Of Gestingthorpe


[2004] UKHL 14, Times 02-Apr-2004, [2004] 2 WLR 955, [2004] 2 P and CR DG6, [2004] 15 EGCS 104, [2004] 2 All ER 305, [2004] RTR 26, [2004] 20 EG 168, [2004] 2 AC 519, [2004] NPC 53


House of Lords, Bailii


Law of Property Act 1925 193(4), Prescription Act 1832 2, Commons Act 1876 30


England and Wales


OverruledHanning and Others v Top Deck Travel Group Ltd CA 9-Jun-1993
The owner of a common appealed a finding that the neighbouring land owner had acquired by prescription a right of way across the common to use a track for commercial vehicles (buses) to get to the property (the bus depot).
Held: An easement . .
Reversed on AppealRoland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
CitedRegina v Oxfordshire County Council and Another, Ex Parte Sunningwell Parish Council HL 25-Jun-1999
When setting out to establish that a piece of land has become a village green with rights of common, the tests are similar to those used in the law of prescription and adverse possession. Accordingly, there is no need to establish a belief in those . .
CitedMassey and Another v Boulden and Another CA 14-Nov-2002
The claimants said they had acquired a right of way by vehicle over land, a village green, having driven over it for more than forty years. It was responded that the act of driving over the land other than on a track had been an unlawful act, and as . .
CitedBryant v Foot 1867
It is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. The apparent right should lie in . .
CitedDavis v Whitby CA 1974
The court discussed the need for some system of acquisition of right by user.
Lord Denning MR said: ‘the long user as of right should by our law be given a lawful origin if that can be done.’
Stamp LJ said: ‘if long enjoyment of a right . .
CitedTehidy Minerals Ltd v Norman CA 1971
The fact that land had been requisitioned by the Ministry of Agriculture between 1941 and 1960 and the 20-odd years’ user relied on as having created the rights had preceded 1941 was a bar to a prescriptive claim to grazing rights under the . .
CitedNeaverson v Peterborough Rural District Council ChD 1902
The 1812 Act provided for the draining, enclosing and improving of a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of ‘sound and . .
CitedHulley v Silversprings Bleaching and Dyeing Co Ltd ChD 1992
A lower riparian owner sued the Silversprings company for nuisance.
Held: The fact that the plaintiff’s predecessors had acquiesced in pollution for twenty years was no defence, because the plaintiff was not the only person affected by the . .
CitedGeorge Legge and Son Ltd v Wenlock Corporation HL 1938
The question was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. The claimant asserted that a right by way of an easement could be acquired despite the . .
CitedAirdrie Magistrates v Lanark County Council 1910
Lord Loreburn LC said: ‘But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely . .
CitedGlamorgan County Council v Carter QBD 1962
A caravan owner appealed against an enforcement notice on the basis that no planning permission was required because the parking of caravans was the purpose for which the land had been last used.
Held: Factually that was correct. Prima facie . .
CitedCargill v Gotts CA 1981
The Act prohibited abstraction of water from a river without a licence from the Water Authority. The defendant had no such licence, but asserted that having extracted water over many years from the mill pond, he had acquired the right to do so: ‘The . .
CitedRobinson v Adair QBD 2-Mar-1995
The Truro Crown Court had allowed Mr Adair’s appeal against his conviction for obstructing a highway. The prosecutor appealed.
Held: It had to be decided whether a particular road had become by presumed dedication a public highway. The use . .
Doubted in partHereford and Worcester County Council v Pick 1-Apr-1995
The issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. The court was considering whether a footpath, alleged to have . .
CitedHayling v Harper and Another CA 2-Apr-2003
The case asked whether vehicular user of a public footpath in breach of section 34(1) of the 1988 Act could lead to the acquisition by prescription of a public right of way.
Held: Hanning barred a claim to the easement under section 2 of the . .
CitedDalton v Henry Angus and Co HL 14-Jun-1881
The court explained the doctrine of lost modern grant. Where there has been more than 20 years’ uninterrupted enjoyment of an easement, and that enjoyment has the necessary qualities to fulfil the requirements of prescription, then unless, for some . .
CitedRegina v City of Sunderland ex parte Beresford HL 13-Nov-2003
Land had been used as a park for many years. The council land owner refused to register it as a common, saying that by maintaining the park it had indicated that the use was by consent and licence, and that prescription did not apply.
Held: . .
CitedGardner v Hodgson’s Kingston Brewery Co HL 1903
The party claiming a right of way through the yard of a neighbouring inn, and her predecessors in title, had for well over 40 years used the inn yard (the only means of access with carts and horses to her premises) and had paid the annual sum of 15 . .
CitedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedRochdale Canal Proprietors v Radcliffe 1852
Riparian owners who operated steam engines had a statutory power, under the Act which created the canal company to extract from the canal ‘such quantities of water as shall be sufficient to supply the said engine or engines with cold water, for the . .

Cited by:

CitedWhitmey, Regina (on the Application of) v the Commons Commissioners CA 21-Jul-2004
The applicant sought to leave to appeal against refusal of his challenge to the registration of land as a green.
Held: The 1965 Act did not limit the registration of greens to those which were registered by 3 January 1970. The Commons . .
CitedSommer and Another v Sweet and Another CA 10-Mar-2005
The claimants had sought entry into theirs and their neighbour’s registered land titles of entries to acknowledge their rights of way. The neighbours appealed the finding of a right of way of necessity and by proprietary estoppel, and an order for . .
CitedSmith, Regina (on the Application of) v The Land Registry (Peterborough Office) Admn 13-Feb-2009
The applicant sought judicial review of the cancellation of his application for first registration of land by adverse possession. The application had been rejected because a public right of way existed through it, and the claimant had not shown the . .
MentionedSmith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA 10-Mar-2010
The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .
CitedLittlejohns and Another v Devon County Council and Another CA 6-May-2016
Appeal against rejection of request for registration of land as a common: ‘At the heart of the appeal lies the question of law whether it is possible to acquire a right of common by virtue of an express grant or (as in the present case) user after 2 . .
CitedPatel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 29 April 2022; Ref: scu.195052