Factual and Procedural Background
Newtown Common is an ancient common land of approximately 144 acres near The City. About 28 houses have been built on plots abutting the common, and their owners have historically driven motor vehicles across the common to access the highway. The owner of the common, Company A, declared that such vehicular use was unlawful but offered to grant easements for a fee. This offer was not universally accepted, leading to litigation. Company A sought a declaration that the 47 property owners (Defendants) were not entitled to cross the common with motor vehicles and sought an injunction to prevent such use. Four Defendants did not participate in the litigation. The trial judge granted the declaration against the remaining 43 Defendants but allowed them permission to appeal. The appeal's outcome could have significant implications for others living adjacent to common land.
Legal Issues Presented
- Whether the Defendants have acquired a prescriptive easement or a right of way for vehicular access across Newtown Common by virtue of long usage without permission.
- Whether such an easement or right of way can be established despite the illegality of the vehicular use under section 193(4) of the Law of Property Act 1925.
- Whether the Court of Appeal should depart from the precedent set by Hanning v Top Deck Travel Group Ltd. which held that an easement cannot be acquired by illegal user contrary to a public statute.
Arguments of the Parties
Appellants' Arguments
- The appellants have openly used the tracks and roadways across the common without permission but as of right for at least 20 years.
- They assert the presumption of a lost modern grant, which means the right of way had a lawful origin even if no express grant can be found.
- It cannot be shown that it was impossible for such a grant to have been made, so the legal fiction of a lost grant applies.
- Therefore, their use was lawful from the outset, and they were never guilty of criminal activity under section 193(4).
- They challenge the binding nature of Hanning v Top Deck Travel Group Ltd., arguing it was wrongly decided and should be overruled.
- They rely on authorities such as The Lord Advocate v Lord Lovat to argue that rights can be acquired despite some illegality.
Respondent's Arguments
- The respondent (Company A) acknowledges the long usage but contends that the vehicular use was unlawful under section 193(4) of the Law of Property Act 1925.
- The respondent relies on the principle established in Hanning v Top Deck Travel Group Ltd. that an easement cannot be acquired by illegal user prohibited by statute.
- The respondent submits that the appellants’ claim is founded upon criminal conduct and public policy bars relief.
- They emphasize that the statutory provisions were enacted for public benefit and cannot be overridden by prescription.
- They note the existence of statutory schemes (section 68 Countryside and Rights of Way Act 2000 and associated regulations) providing a lawful mechanism for obtaining easements with compensation.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Hanning v Top Deck Travel Group Ltd. (1993) 68 P & CR 14 |
An easement cannot be acquired by user that is illegal under a public statute; illegal use cannot confer rights. |
The court held this precedent binding and dispositive, applying it to reject the appellants' claim for prescriptive easements founded on illegal use. |
| Neaverson v Peterborough Rural District Council [1902] 1 Ch. 557 |
Presumption of lost grant cannot be made if the grant would be impossible due to statutory prohibition. |
Supported the principle that rights cannot be acquired contrary to statutory provisions; cited as authority for rejecting illegal user claims. |
| Glamorgan County Council v Carter [1963] 1 WLR 1 |
Illegal user cannot confer legal rights; public policy bars acquisition of easements through illegal acts. |
Reinforced the principle that illegal use cannot establish easements, applied to affirm the illegality bar. |
| George Legge & Son Ltd. v Wenlock Corporation [1938] AC 204 |
Repeated violation of modern statute cannot confer rights; no easement arises from illegal activity. |
Supported the conclusion that statutory prohibitions prevent acquisition of rights by illegal user. |
| Cargill v Gotts [1981] 1 WLR 441 |
The court will not recognise an easement established by illegal activity. |
Applied to confirm that illegal activity negates prescriptive easement claims. |
| Tinsley v Milligan [1994] 1 AC 340 |
Illegality in contract and trusts; established limits on relying on own illegal acts. |
Referenced regarding illegality principles; noted that public conscience test is discredited. |
| Robinson v Adair (1995) |
Confirmed that easements cannot be acquired by conduct prohibited by statute. |
Followed Hanning to uphold the illegality bar. |
| Stevens v Secretary of State for the Environment (1998) 76 P & CR 503 |
Supported the principle that illegal user cannot create prescriptive rights. |
Applied the illegality rule consistent with Hanning. |
| Massey & Drew v Boulden [2002] EWCA Civ 1634 |
Confirmed that prescriptive rights cannot be acquired by user in breach of a criminal statute. |
Applied to reinforce the illegality principle in the context of common land. |
| The Lord Advocate v Lord Lovat (1880) 5 App. Cas. 273 |
Discussed adverse possession and possession notwithstanding some illegality under Scots law. |
Considered but distinguished as not binding and different in nature from the present case. |
| Bethnal Green Vestry v London School Board [1898] AC 190 |
Statutory construction regarding sanction and approval of works; not directly relevant to illegality principle. |
Rejected as irrelevant to the issues of illegality and prescriptive rights in this case. |
| Hulley v Silver Springs Bleaching and Dyeing Co. Ltd. [1922] 2 Ch. 268 |
Illegal user contrary to statute cannot establish easements or lost grants. |
Supported rejection of prescriptive rights founded on illegal use. |
| Young v Bristol Aeroplane Co. Ltd. [1944] KB 718 |
Sets out when Court of Appeal can depart from its own precedent. |
Applied to determine that the court was bound by Hanning absent exceptional circumstances. |
| Bowmakers Ltd. v Barnet Instruments Ltd. [1945] KB 65 |
Illegality bars claims in contract and tort; no court assistance if claim founded on illegal act. |
Used to illustrate public policy principle barring claims founded on criminal conduct. |
| Beresford v Royal Insurance Co. Ltd. [1938] AC 586 |
Grant of relief cannot enable claimant to benefit from criminal conduct. |
Supported the public policy bar against claims based on illegal acts. |
Court's Reasoning and Analysis
The court began by acknowledging the factual basis that the appellants had driven vehicles across the common openly and continuously for over 20 years without permission, thus committing an offence under section 193(4) of the Law of Property Act 1925. The appellants relied on the doctrine of lost modern grant and prescription to assert a lawful easement, arguing that their long use should be presumed lawful despite the statutory prohibition.
However, the court found the binding precedent of Hanning v Top Deck Travel Group Ltd. directly on point, which held that easements cannot be acquired by user that is illegal under a public statute. The court carefully reviewed authorities including Neaverson v Peterborough R.D.C., Glamorgan C.C. v Carter, and Cargill v Gotts, all reinforcing the principle that illegal use cannot confer legal rights. The court rejected the appellants' submission that Hanning was wrongly decided or per incuriam, finding no manifest error or overlooked binding authority.
The court examined the role of illegality in law, referencing the principle from Holman v Johnson that courts will not assist claimants whose cause of action arises from illegal acts. It noted that the appellants’ claim was founded on illegal vehicular use without lawful authority, which public policy bars from creating rights by prescription or lost grant.
The court also considered statutory reforms such as section 68 of the Countryside and Rights of Way Act 2000 and the Vehicular Access across Commons and Other Land (England) Regulations 2002, which provide mechanisms for lawful acquisition of easements with compensation, thus mitigating the appellants' hardship but not altering the illegality principle.
In sum, the court concluded that the illegality of the vehicular use during the entire relevant period prevented the acquisition of any prescriptive easement or lost modern grant. The appellants’ continuous use was unlawful, and no legal right arose from it.
Holding and Implications
The court DISMISSED THE APPEAL, affirming that the appellants did not acquire any prescriptive easement or right of way over Newtown Common by virtue of their unlawful vehicular use.
The direct effect is that the appellants must cease unauthorized vehicular access unless they obtain lawful easements, for which statutory provisions exist. The decision underscores the principle that rights cannot be acquired through illegal acts, particularly when statutory prohibitions exist for public benefit. No new precedent was established; rather, the court reaffirmed existing law, leaving any change to Parliament or the House of Lords.