Bakewell Management Limited (Resondents) v. Brandwood and others (Appellants)
HOUSE OF LORDS
LORD BINGHAM OF CORNHILL
LORD HOPE OF CRAIGHEAD
LORD SCOTT OF FOSCOTE
The statutory prohibition
Subsection (2) enabled "the lord of the manor or other person entitled to the soil of any land subject to rights of common" to apply section 193 to the land. I have described in paragraph 19 above how this is done. The only other subsection to which I need refer is subsection (4) which creates the statutory prohibition:
There then followed two provisos one of which allowed parking on land within fifteen yards of a road and the other allowed a defence if the vehicle had been driven "for the purpose of saving life or extinguishing fire or meeting any other like emergency". Section 14(1) of the 1930 Act was repealed by the Road Traffic Act 1960 and replaced by section 18(1) of that Act which was in the same terms. Section 18(1) of the 1960 Act was repealed by the Road Traffic Act 1972 and replaced by section 36(1) of that Act, also in the same terms. Section 36(1) has been repealed by the Road Traffic Act 1988 and replaced by section 34(1) of that Act which has slightly different wording but is to exactly the same effect as its statutory predecessors. My comments on "without lawful authority" in section 193(4) of the 1925 Act are equally applicable to those words in section 34(1) of the 1988 Act and its predecessors.
If Hanning was wrongly decided in treating user in breach of section 193(4) as a bar to the acquisition of a right of way by prescription so too was Massey v Boulden wrongly decided in treating user in breach of section 34(1) as a similar bar.
Acquisition of easements by prescription
and Stamp LJ, agreeing with Lord Denning, commented
More recently Lord Hoffmann in R v Oxfordshire County Council Ex parte Sunningwell Parish Council  1 AC 335 said at page 349 that
Section 4 is the reason why lost modern grant as a means of claiming an easement by long use continued to exist alongside section 2 of the 1832 Act. In a case where the use relied on had ceased before the commencement of the action challenging the claim to the easement section 2 of the 1832 Act might not be applicable but the claimant might still get home by relying on lost modern grant. In Tehidy Minerals v Norman  2 QB 528 Buckley LJ explained, at p 552, that the great case of Angus v Dalton (1881) 6 App Cas 740 had decided that
Hanning v Top Deck Travel Group Ltd
and, at page 573 that
Neaverson v Peterborough Rural District Council was cited by Eve J in Hulley v Silversprings Bleaching and Dyeing Co Ltd  Ch 268 as authority for the proposition that
The lost grant that Top Deck Travel sought to establish, like those that the appellants now before the House seek to establish, could have had a legal origin. The grants could lawfully have been made and would not have been illegal.34.
Glamorgan County Council v Carter  1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947. The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12(5)(c) of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purpose for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was the context in which Salmon LJ made the statement cited by Dillon LJ, namely
Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of the 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ's statement out of context and treat the principle he expressed as applicable to prescriptive use.
In George Legge Lord Macmillan, with whose opinion Lord Atkin and Lord Roche agreed, said, at page 216
And Lord Maugham, at page 222, said
The post Hanning cases
Hereford and Worcester County Council v Pick (1995) 71 P & CR 231 was another case in which 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. As in Robinson v Adair a Queen's Bench Divisional Court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed. Stuart-Smith LJ, after referring to Hanning and to Robinson v Adair said at page 239 that
He said, also, that the user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and that, for that reason also, the user could not lead to a presumed dedication.
Arden LJ said that
LORD WALKER OF GESTINGTHORPE
Otherwise the fictional technique of presuming or inferring a lost modern grant would not meet the case.
Radcliffe, a riparian mill owner, had for upwards of 20 years extracted water and used it, not merely for condensing steam but for a variety of other purposes. His claim to a prescriptive right failed because the canal company could not lawfully have granted him larger rights. To do so would have been beyond its powers and (to the extent that it might interfere with public rights of navigation) against the public interest. Coleridge J put the point very clearly (at p 314),
After discussing that case and difficulties as to the grantee he continued (also at p 573):
Hulley v Silversprings Bleaching and Dyeing Co Ltd  2 Ch 268 was concerned with a statutory prohibition on the pollution of rivers and watercourses, the Rivers Pollution Prevention Act 1876, which created criminal offences. A lower riparian owner sued the Silversprings company for nuisance. The fact that the plaintiff's predecessors had acquiesced in pollution for twenty years was held to be no defence, because the plaintiff was not the only person affected by the pollution. There was a wider public interest. But Eve J saw the significance of the criminality of the pollution as being that it excluded the possibility of a lawful grant (p 282):
Kennedy LJ (at p 23) also referred to Cargill v Gotts and reached a similar conclusion. These formulations of the principle will in almost every case produce the same result as is obtained by asking the question: Could the right claimed have been lawfully granted by deed? The canal company in Rochdale, the highway surveyor in Neaverson and the lower riparian owner (and his predecessors) in Hulley were not in a position to make a lawful grant because they had no power to authorise acts which affected not only their own private interests, but also wider public interests.
He then analysed some of the authorities which I have mentioned and reached the general conclusion set out above. Kennedy LJ (at p 23) did not regard this as an area in which the Court had any discretion. Sir Roger Parker agreed with both judgments.
I do not consider that that wide proposition has any application here, since a statutory prohibition in respect of which a private citizen has an unfettered dispensing power, exercisable if he thinks fit for his own private purposes, cannot easily be described as enacted in the public interest.
BARONESS HALE OF RICHMOND