A house with garden bordering upon, and with views over, a common on which horses, ponies, donkeys, pigs and the occasional guinea fowl roam, sounds idyllic and would be highly prized by most people. However, the absence of direct access from a public road, or access over a graveled area which does not belong to the house might, to some, cast doubt about its attractions and suitability.
In order to access the house the owner of the house (the dominant land) needs a right of way or an easement over the land in question (the servient land). Easements can be created in a number of different ways such as by an express grant or licence from the owner (often in return for the payment of a fee) or by an implied grant, such as easements of necessity, or by ‘prescription.’
Prescription is the acquisition of a right through long use or enjoyment There are 3 methods of acquiring such an easement: at common law, by lost modern grant or under the Prescription Act 1832.
An easement may be acquired by prescription where:
The use must be “as of right” and “without force” and so where a servient landowner has erected notices stating that the land was private, any use of the land by the owner of the dominant land could not be said to be “as of right” (Winterburn v Bennett [2016]). Whether a notice would be sufficient to avoid the acquisition of a prescriptive easement will depend upon the size and wording of the notice and how it would objectively be understood by users of the land (Nicholson v Hale [2024])
In Hanning v Top Deck Travel [1993] the Court of Appeal held that an easement could not be acquired by prescription where the use was illegal. The issue in that case was that section 193 of the Law of Property Act 1925 and section 34 of the Road Traffic Act 1988 made it an offence to drive over land that is not a public road, save in certain circumstances, without lawful authority. That decision caused havoc for landowners who assumed, incorrectly, that they had rights of way. It resulted in the owners of various common lands holding homeowners ransom by demanding very high fees either for the grant of an easement or a licence over the servient land. Parliament intervened with section 68 of the Countryside and Rights of Way Act 2000 which provided for a statutory easement where a prescriptive easement failed and the Vehicular Access Across Common and Other Land (England) Regulations 2002 which set limits on compensation payable for a statutory easement.
In 2004 the House of Lords (as it then was) overturned the Hanning decision in Bakewell Management Limited v Brandwood [2004]. In that case the sole access to 28 properties was over tracks over land on Newton Common which was owned by Bakewell. Bakewell pursued a claim against the owners of the 28 properties for declarations that they did not have rights of way for vehicles over Newton Common. Its objective was not to prevent access but to make the householders pay for the access. The House of Lords held that although generally a prescriptive right cannot be acquired to do something which is prohibited by statute, where the prohibition is due to a lack of authority rather than strict liability (Bakewell could have granted authority for vehicular access), then an easement can be acquired by prescription assuming all other conditions are satisfied. This decision made section 68 of the Countryside and Rights of Way Act 2000 redundant and led to its repeal.
Although the burden is upon the party claiming the easement to prove that the use is without permission and without force, there is an evidential presumption that if the alleged easement has been used openly for the requisite period, the easement has been enjoyed as of right. The burden then shifts to the owner of the servient tenement to rebut the presumption (Welford and others v Graham and another [2017]).
Key Contacts
John Turner is a Partner with the firm with over 25 years’ experience dealing with disputes mainly in relation to property matters. He also deals with professional negligence claims and contentious trust and probate disputes.
For more information about how we can help you in relation to property disputes or for advice on easements please contact John Turner on 020 7462 6029 or by email jdt@cbglaw.co.uk.
