Odey & Ors v Barber [2006] EWHC 3109 (Ch) (29 November 2006)

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England and Wales High Court (Chancery Division) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Odey & Ors v Barber [2006] EWHC 3109 (Ch) (29 November 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/3109.html
Cite as: [2006] EWHC 3109 (Ch), [2008] Ch 175, [2008] 2 WLR 618, [2007] 3 All ER 543

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		Neutral Citation Number: [2006] EWHC 3109 (Ch)
		Case No: 4BS50591

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

Winchester Combined Court Centre
The Law Courts
Winchester
S023 9LS

29 November 2006

B e f o r e :

THE HONOURABLE MR JUSTICE SILBER
____________________

Between:

	ROBIN CRISPIN WILLIAM ODEY (1) NICHOLA ODEY(2) TRUSTCORP LIMITED (3)	Claimants
	- and -
	SUSAN BARBER	Defendant

____________________

Marie-Claire Bleasdale (instructed by Wilsons of Salisbury, Wiltshire) for the claimants
Leslie Blohm QC (instructed by Jordans of Cheltenham) for the defendant
Hearing dates: 10-12 and 17 October 2006.
Further written submissions sent on 20 October 2006 and 3 and 6 November 2006
____________________

HTML VERSION OF JUDGMENT
____________________

The Honourable Mr Justice Silber :

I. Introduction

Mr. Robin Odey ("the first claimant") and Nicola Odey ("the second claimant") together with Trustcorp Limited ("the third claimants") seek a declaration as owners of Eastbach Court at English Bicknor in Gloucestershire that they have the benefit of a right of way for all purposes with or without vehicles and with or without animals over a track ("the Track"), which borders their land and which belongs to their neighbour Mrs Susan Barber ("the defendant"). They also seek injunctive and other relief while the defendant counterclaims for relief on the basis that the claimants have no rights over the Track

The Track is by the rear entrance of Eastbach Court and the claims to the right of way are different in respect of the left side of the Track as seen from the rear entrance of Eastbach Court from those concerning the right side from that rear entrance. The left-hand part of the track runs down from the rear entrance of Eastbach Court to a road while the right-hand part of the Track goes up from the rear entrance of Eastbach Court to Scramble Field, which belongs to the claimants. So the track runs continuously from the road alongside the rear entrance of Eastbach Court to Scramble Field. The submissions and the issues in respect of the right and of the left-hand sides of the Track are very different and I will have to consider them separately. Miss Marie-Claire Bleasdale, counsel for the claimants, contends that the right of way arises on the left-hand side of the track as there has been continuous user of the left part of it for a continuous period of twenty years by owners of Eastbach Court so that the owners of Eastbach Court acquired a right of way over that part by prescription under the doctrine of modern lost grant. Her submission in respect of the right part of this Track is that there has been an implied grant of a right of way to the claimants' predecessors and so on to them as owners of Eastbach Court.

Mr. Leslie Blohm QC, counsel for the defendant disputes that the claimant or any of them have ever had any right of way over the left part of the Track. He submits that the owners of Eastbach Court have never had a prescriptive or any right of way over the left-hand side of the track as such use as they had was with the consent of the person then owning Eastbach Court, namely Mr. Hubert Knight. Mr. Blohm further contends that any right of way of the claimants or their predecessors over the right part of the Track has been abandoned but that assertion is disputed by the claimants. If it is found that the claimants are entitled to a right of way over any part of the Track, there is then a further dispute to be resolved about the extent, purpose and nature of such a right. Additionally, if it is held that the claimants have a right of way over the right-hand part of the Track, there is then a dispute to be resolved as to whether the appropriate remedy for the claimants should be injunctive relief or damages.

II. The Land

The claimants own Eastbach Court and also the land surrounding it including a field to the north of it, which is known as Scramble Field and which, as its name suggests, has been used for motor-cycle scrambling. This field starts by the end of the right-hand side of the Track. Most of this land is owned by the first and second claimants jointly and part of the land at Eastbach Court is owned by the third defendants as trustees for an Odey family trust but no point is taken by the defendant concerning the right of any of the claimants to make the present claim. The Track is a footpath and so like everybody else the first and second claimants can use it on foot. The present claim relates to other rights as I will shortly explain.

The defendant owns a house adjoining Eastbach Court to the north and which is now known as Whitehall Cottage but which was previously known as Eastbach Lodge. The Track, which belongs to the defendant, is a public footpath running by the side of Eastbach Court and of Whitehall Cottage. As I will explain, if the claimants wish to use the rear entrance of Eastbach Court, they have to use the track with the left-hand part of it leading to the road and with the right-hand part going up the hill to Scramble Field and then to a field beyond it called Flying Field, which was used as its name suggests by aviators.

In order to make my explanation of the nature of the dispute more comprehensible, I append to this judgment two plans which counsel agree show the area with which this trial is concerned The position of the defendant's house and Eastbach Court are shown shaded respectively and marked 1 and 2 on the plan attached to this judgment, which is marked Plan 1 and which has a legend attached to it. It will be seen that the Track lies on the defendant's land by its boundary with the claimants' land and it extends from point B to point C. Counsel have agreed that the Track is about 100 yards in length but nothing turns on its precise length. The defendant has placed a fuel tank, a stone wall and a pedestrian gate at the end of the right-hand part of the Track furthest away from the road at point C and this separates the Track from Scramble Field. The Track continues beyond this gate but then the Track is then on Scramble Field, which is the claimants' land.

It will be seen from plan 1 that there is Gate A in the boundary wall of Eastbach Court which leads on to the middle part of the Track and that is the rear gate or entrance of Eastbach Court. The main entrance of Eastbach Court is at the front of it furthest away from the Track. The left part of the Track leads downhill to the road and it is common ground that there was a gate marked B close to where the Track meets the road. The right part of the Track ascends towards the fuel tank and the pedestrian gate at gate C, which has been placed by the defendant at the end of the Track furthest away from the road and which, as I have explained, separates the Track from the Scramble Field. So before impediments were placed on the Track by the defendant, the Track provided vehicular access from Eastbach Court at Gate A first by its left side down to the road at gate B and second by its right side up to Gate C to Scramble Field and to the land beyond it.

Before moving on to describe the path of the Track within Eastbach Court, it is necessary to explain that the after the defendant blocked vehicular access to the right side of the Track, the claimants' predecessors as owners of Eastbach Court, the Symonds brothers and various motor-cycle scramblers constructed with others a new track ("the new Track") and this leads from the road to Scramble Field and it is marked [] on the plan. The new Track goes behind Whitehall Cottage on the claimants' land and significantly it does not border Eastbach Court. So the new Track is of use to those going from the road to Scramble Field but unlike the Track, it does not provide direct access from the rear entrance or any part of Eastbach Court either to the road or to the Scramble Field.

I must now explain the vehicular arrangements within Eastbach Court when it was used as a working farm, which is what it was until 1989 which was the period during which it was contended that there had been continuous use of the Track for vehicles and for animals. Plan B shows that within Eastbach Court, there was a Track which ran from its main entrance around but just within its perimeter. This Track came out by Gate A just by the Track and can also be seen in Plan A marked []. When I consider the evidence, I will explain the various farming activities within Eastbach Court which showed the use which the claimants contend was made of the Track. At the start of the hearing, I together with counsel visited the area with which this case is concerned and we also heard the evidence of a very elderly witness at Eastbach Court.

III. The history of the ownership of Eastbach Court and Whitehall Cottage.

Until 1962, Eastbach Court and the surrounding land including the Track, Whitehall Cottage, Scramble Field and the Flying Field were owned by Mr H.A. I. Machen or by his personal representatives. This property was then sold in two separate lots after Mr. Machen's death in 1958. From 7 May 1962 until 3 May 1963 Eastbach Court was owned by James Smith (Bicknor) Ltd, which was the company run by Mr. Clifford Jones, who was the father-in-law of Mrs. Shirley Jones, who gave evidence in this case. This property was then conveyed to Mr. Peter Pope Davies on 3 May 1963 and he remained its owner until 3 February 1964 when he sold it to Mr. John Symonds and his brother Mr. David Symonds who is always known as "Sam" and that is how I shall refer to him. The Symonds brothers farmed together as partners and they both gave evidence in support of the claimants' case.

In 1989, Mr. David Rowe-Beddoe (who did not give evidence or make a witness statement) became the owner of Eastbach Court which he subsequently sold to the first and second claimants on 29 November 1996. The third claimants are trustees of an Odey family trust known as "The Felix Trust" and they have been the legal owners of a part of Eastbach Court since 15 April 2003.

Scramble Field belonged to Mr. Hubert Knight from 12 February 1962 until his death on 2 March 1977. On 30 June 1983, the personal representatives of Mr. Hubert Knight assented to the vesting of the field to Mrs. Agatha Knight, who then conveyed it to the Symonds brothers on 19 September 1983. They remained the owners of it until August 1998 when it was sold to the first and second claimants.

Turning to Whitehall Cottage, as I have explained, the personal representatives of Mr Machen sold this house on 12 February 1962 and the purchaser was Mr. Hubert Knight, who purchased land to the north of Eastbach Court including Whitehall Cottage, the Track, the Scramble Field and the Flying Field. Prior to this, he had been the occupier of Eastbach Court with his uncle Ernest Mount. Mr. Arthur Knight, who is the defendant's father, controlled Hubert Knight's estate from 1977 until 1982. He was the husband of Mrs. Agatha Knight who is the defendant's mother and who is herself a former owner of Whitehall Cottage, the Track, the Scramble Field and the Flying Field. She gave evidence at the trial on behalf of her daughter, who is the defendant.

Mr. and Mrs. Fred Simms were the tenants who occupied Whitehall Cottage from 1962 until 1992. Their daughter, Mrs. Shirley Jones, gave evidence at the trial as part of the claimants' case.

V. The Claim

The claimants accept that no rights of way over the Track have been expressly granted to them or their predecessors but Miss Bleasdale contends that the claimants have rights of way over both parts of the Track, which I will consider separately. She submits that those rights of way were:

(a) in respect of the left-hand side of the Track, a right of way from the rear entrance of Eastbach Court through Gate A to the road acquired by prescription under the doctrine of modern lost grant through user for a continuous period of 20 years from 12 February 1962 until 1996; and

(b) in respect of the right-hand side of the Track, a right of way to the Scramble Field from the rear entrance of Eastbach Court through Gate A to the Scramble Field created by implication by section 62 of the Law of Property Act 1925 or alternatively pursuant to the rule in Wheeldon v Burrows by the conveyance dated 19 September 1983 of Scramble Field with other land from (1) Agatha Knight to (2) J.O. and D.H. Symonds.

I will consider claim (a) which relates to the left-hand side of the track in paragraphs 11 to 88 below before considering claim (b) which relates to the right-hand side of the track in paragraphs 89 to 148 below. Before considering the issues, I must express my gratitude to both counsel and their solicitors for the excellent oral and written submissions which they have made and from which I have benefited greatly.

VI. The issues in respect of the claim for a right of way over the left-hand side of the Track from Gate A to the road

The claimants accept correctly that in the light of the requirements of section 62 of the Law of Property Act 1925 and of Wheeldon v Burrows, they cannot rely upon those provisions to establish a claim in respect of the left-hand part of the Track from the road to gate A. In my view, this concession was justified because at the time when Eastbach Court was sold to James Smith (Bicknor) Limited, the Track was owned by Mr. Hubert Knight and not by the executors of Mr. H.A.I. Machen, who were selling Eastbach Court. This is a crucial matter because section 62 only applies if the land sold and the lands over which rights are claimed were in common ownership.

So the claimants' case in respect of the part of the left-hand side of the Track from the road to gate A is based on the doctrine of prescription under the doctrine of modern lost grant which I will explain in paragraph 19 below. At the trial, there was a great deal of evidence relating to the use of the Track by owners of Eastbach Court and some contrary evidence was adduced on behalf of the defendant. By the time when he made his final submission, Mr. Blohm accepted correctly in my view in his final submissions that the owners of Eastbach Court had used the Track extensively for more than a period of 20 years.

For there to be a right of way arising by prescription, there needs to be more than extensive user for 20 years because there had to be user nec vi, nec clam, nec precario which means in Lord Hoffmann's words in the Sunningwell case ...supra at page 350) respectively "not by force, nor stealth, nor the licence of the owner". This present case is only concerned with the requirement that the use should have been "nec precario", namely without "the licence of the owner". The reasoning behind the requirement that the use of the easement must be without the owner's licence is that the doctrine of prescription by lost modern user is based on the notion that if a party uses an easement such as a right of way for 20 years, there is a rebuttable presumption that there was a lost grant of the easement. (See, for example Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 546). That presumption is rebutted if there is evidence of a specific grant of a licence. As Lord Hoffmann explained (with my emphasis added) in the R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335, 350 that :

"As Lord Cockburn C.J. observed, the jury were instructed that if there were no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant, they not merely could but should find the prescriptive right established".

So if the owner of the Track, Mr. Hubert Knight, actually granted a licence to the owner of Eastbach Court to use the Track, this would have meant that there was evidence inconsistent with immemorial user or a lost modern grant because the use would have been with "the licence of the owner" and so not "nec precario". In a passage described as "oft-quoted" by Dillon LJ in Mills and another v Silver and others [1991] Ch 277 at page 281, Lord Lindley explained in Gardner v. Hodgson's Kingston Brewery Co Ltd [1903] AC 229 at page 239 that:

"The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place"

It therefore is important to ascertain if the admitted use of the left-hand side of the Track by the owners of Eastbach Court was with the licence of the owner. Indeed, in his written skeleton argument for his final address, Mr. Blohm submits in relation to the left-hand side of the Track that:

"(i) The Claimant can establish user by his predecessors in title to Eastbach Court over this way between 1964 and 1989;

(ii) The user was not as of right as it was by the permission of the owner of the disputed Track, Hubert Knight;

(iii) Alternatively, the user was not as against the fee simple owner of the disputed Track, as the Track was let to Fred Simms as part of Whitehall Cottage ( then Eastbach Lodge );

(iv) If a right of way exists, it is (a) for agricultural purposes only and/or (b) appurtenant to the agricultural parts of Eastbach Court only".

The claims in sub-paragraphs (ii) and (iii) are alternative because they depend on whether Mr. Fred Simms was the tenant of the Track because if he was , then the defendant cannot rely on provision (iii); if Mr. Simms was in possession of the Track as tenant of the Track then according to Mr. Blohm, any use would not have been effective against the fee simple owner or the freeholder. . So it is necessary to ascertain the interest of Mr. Simms in the Track. Thus the issues to be resolved in respect of the claimant's assertions that they have a right of way in respect of the left part of the Track from Gate A to the road are:

A. Was Mr. Simms the tenant of the Track and, if so, was any user by the Symonds brothers effective against the fee simple owner of the Track? (see paragraphs 23-27);

B. Whether the Symonds brothers were given permission to use any of the Track by Mr. Hubert Knight and if so did that permission only apply to activities which were then carried on by the Symonds brother? (See paragraphs 28-42);

C. Whether any unsolicited and unrequested grant of permission granted by Mr. Hubert Knight to the Symonds brothers to use the track prevents an easement by prescription arising (see paragraphs 43-75); and

D. In the event that the claimants have a right of way over the left-hand side of the Track, was it limited in use and if so, in what way? (See paragraphs 76-88).

VII. Issue A. Was Mr. Simms the tenant of the Track and, if so was any user by the Symonds brothers effective against the fee simple owner of the Track?

23. As I have explained, to succeed in the defendant's submission that the user was not as against the fee simple owner of the disputed Track because the Track was let to Fred Simms as part of Whitehall Cottage, it has to be shown that Mr. Simms was the tenant of the Track because Mr. Blohm's submission is based on the argument that the claimants cannot prescribe against less than the fee simple and in support he relies on what is stated in Volume16 (2) Halsbury's Laws of England Para. 97; Bright v. Walker (1834) 1 Cr M & R 211 at 221 per Parke B.; Weaton v. Maple & Co. [1893] 3 Ch 48 at 63 per Lindley L.J.; at 68 per Lopes L.J.; and at 70-1 per A. L. Smith L.J. To get this argument off the ground, it must be shown that the Mr. Simms was a tenant of the Track. There is, however, a dispute as to whether Mr. Simms' interest as the occupier of Whitehall Cottage extended to the Track. Mr. Blohm contends that the Track was demised to Mr. Simms and the defendant said that Mr. Simms was given the use of Whitehall Cottage, its garden and the Track. Miss Bleasdale disagrees and she submits that Mr. Simms did not have that interest.

I have concluded that five factors individually and cumulatively led me to the conclusion that Mr. Simms did not have a tenancy of or any interest in the Track. First, Mr. Hubert Knight made such substantial use of the Track as to be inconsistent with possession and control of the Track having been given to the Mr. Simms. After all, Mr. Hubert Knight penned in sheep on the Track and he treated his sheep there according to the evidence from the defendant's witnesses such as Agatha Knight.

Second, such use as was made of the Track by Mr. Simms was insufficient to show that he had a tenancy of it. Insofar as cars belonging to visitors of the Simms family were parked on the Track, their presence was for access to Whitehall Cottage and that did not show or even suggest that the Track was let to Mr. Simms. Nor did the fact that Mr. Simms let his pigs and perhaps his geese on occasions roam on the track show that he had a tenancy of the Track. Third, the defendant agreed that there was no question of Mr. Simms telling Mr. Hubert Knight what he could do and what he could not do on the Track. Indeed if she had not accepted that, I would in any event have concluded that that was the case in the light especially of the relationship between the two men and also the way in which each of them used the Track, which was as I have just described. Fourth, Shirley Jones, who is Mr. Simms' daughter, said that she knew that nobody asked her father for permission to use the Track.

Finally and perhaps less significantly, the Track was divided off from the garden by a low and somewhat dilapidated wall. In reaching my conclusion that Mr. Simms did not have a tenancy of the Track, I have considered the evidence of Mr. Vivian Haynes, who was a very frail 92 year old man who gave his evidence at Eastbach Court about what happened 40 years or so ago. He stated that Mr. Simms gave visitors permission to use the Track but I found his evidence too vague to be satisfactory. He was unable in cross-examination to remember and explain matters set out in his witness statement even though he had read it aloud to the Court at the start of his evidence. Even if his evidence on that issue was accurate, which I doubt, then it would not mean that Mr. Simms was a tenant of the Track because it does not override the matters set out in paragraphs 24 to 25 above and in any event it does not show that Mr. Simms had any interest in the Track.

So I conclude that Mr. Simms did not have an interest in the Track. Consequently, I reject the defendant's submission that the user of the track was not as against the fee simple owner of the Track as it was not demised to Fred Simms as part of Whitehall Cottage.

VIII. Issue B. Were the Symonds brothers given permission to use any of the Track by Mr. Hubert Knight and if so did that permission only apply to activities which were then carried on by the Symonds brothers?

(i) Introduction

Mr. Blohm contends that the evidence shows that the Symonds brothers used the Track not as of right but instead they used it pursuant to permission given orally to Mr. John Symonds by Mr. Hubert Knight, which was to the effect that the Symonds brothers could use the Track for whatever purpose they wished. Indeed the evidence of Mr. John Symonds (who was called as a witness as part of the claimants' case) was clear in his recollection that he and his brother had been given permission by Mr. Hubert Knight to use the Track as they wished but there is a dispute about the interpretation and legal effect of what was said. I accept this evidence as being true. It is therefore necessary to consider:

(i) whether what was said by Mr. Hubert Knight to Mr. John Symonds amounted to giving the Symonds brothers permission to use the Track; and

(ii) if so, whether those words only related to the activities carried on by the Symonds brothers at the time rather than the extended use which they made of the Track after 1969.

(ii) Did what was said by Mr. Hubert Knight to Mr. John Symonds amount to giving the Symonds brothers permission to use the Track?

The evidence of Mr. John Symonds was first that everybody had told them that they could use the Track and second that Mr. Hubert Knight had told him that in relation to him and his brother that "we could use the Track" whenever they wanted it. He explained that they knew that Mr. Hubert Knight had bought the Track.

When he was questioned why the right of way was not mentioned in response to pre-contact inquiries from Mr. Rowe-Beddoe to whom the Symonds brothers had sold Eastbach Court in 1989, Mr. John Symonds said in evidence which I accept that it should have been mentioned but that it was explained to Mr. Rowe-Beddoe that they had Mr. Hubert Knight's permission to use the Track and that they had used the Track with his permission. Sam, the brother of Mr. John Symonds, said that he had not been told by his brother that Mr. Hubert Knight had given them oral permission to use the Track but he explained that they thought that they had right of way over the Track.

Mr. Blohm contends that as Mr. Hubert Knight gave permission to Mr. John Symonds to use this part of the Track, this means that the claimants cannot establish that they have a right of way over the Track. It is settled law that in order to establish a right of way by prescription, it must be shown that user for the period has been nec vi, nec clam, nec precario which means that the use has not been by force, nor by stealth nor with licence of the owner for the period of 20 years. Mr. Blohm's case is that the use of the track by the owners of Eastbach Court has been with the licence of the owner of the track, namely Mr. Hubert Knight. The correct legal approach is explained in Gale on Easements (17^th edition paragraph 4-82) which states with my emphasis and a footnote added that:

"The enjoyment must not be precarious. What is precarious? "That which depends not on right, but on the will of another person."[Per Farwell J in Burrows v Long [1901] 2 Ch 502,510]…

Enjoyment had under a licence or permission from the owner of the servient tenement confers no right to the easement. Each renewal of the licence rebuts the presumption which would otherwise arise, that such enjoyment was had under a claim of right to the easement. Permission granted by a tenant who is in occupation of the servient tenement is sufficient to defeat a claim under the doctrine of lost grant…"

Miss Bleasdale contends that what was said by Mr. Hubert Knight to Mr. John Symons did not amount to a grant of permission to use the Track but merely in the words of her final written skeleton argument, what was said by Mr. Hubert Knight amounted to "an acknowledgment of rights rather than the grant of a licence/permission". She attaches weight to the fact that if rights had been granted to the Symonds brothers, Mr. John Symonds would have reported this fact to his brother with whom he worked but that he did not do so. It was not suggested by Miss Bleasdale that Mr. John Symonds who she called as part of the claimants' case was anything other than an accurate witness and indeed I find that he was a reliable witness on the evidence to which I have referred. According to Miss Bleasdale again in the words of her final written skeleton argument:

"This was a polite and neighbourly conversation checking that Hubert agreed that they had the right to use the Track" ...paragraph 10) and

"Hubert Knight was acknowledging/acquiescing in the existence of a right as claimed by the Symondses to use the Track" (paragraph 25).

Miss Bleasdale contends that this conversation has to be considered in the light of the fact that the Symondses believed that they owned the right to use the Track so that they were again in the words of her final written skeleton argument:

"checking out of good neighbourliness and politeness that Hubert acknowledged/ accepted they could use that Track because of that right" ...paragraph 25.4).

She also seeks to obtain assistance from the fact that Mr. Hubert Knight did not tell Agatha Knight or the defendant of his conversation with John Symonds but that does not assist me as there is no particular reason why he would or should have informed them. I am not assisted either by the fact that the defendant's erstwhile solicitor believed in 1995 that there existed a right of way granted to the owners of Eastbach Court over the Track by gate A by prescription and so without permission. After all, this solicitor, like his client the defendant, would not have been told by Mr. Hubert Knight, who was not his client, that he that is Mr. Hubert Knight had told Mr. John Symonds that he and his brother could use the Track.

Having heard the evidence and having considered all the circumstances, I reject the submissions of Miss Bleasdale that Mr. Hubert Knight gave Mr. John Symonds anything other than a licence or permission to use the Track and I repeat that I was convinced that Mr. John Symonds was giving accurate and reliable evidence when he recounted that Mr. Hubert Knight had given him permission for him and his brother to use the Track whenever they wanted in his conversation to which I referred in paragraph 29 above. Mr. John Symonds was clear about this evidence and I am sure that it is correct. In my view, this was a clear licence given by the owner of the Track to the owner of Eastbach Court and it was intended by Mr. Hubert Knight in that way and it was accepted by Mr. John Symonds as such. That means that the use of the Track by the Symonds brothers was with the permission of the owner and this precludes time from running so as to enable a right of way to be acquired by the owners of Eastbach Court by reason of prescription; this conclusion is subject to Miss Bleasdale's points which I will have to consider on the extent of the licence and the consequence of it being unsolicited. In reaching that conclusion, I have not overlooked the fact that the Symonds brothers may also have used the track as a result of what the neighbours said but that does not matter because they used it with the permission of the owner of the Track, namely Mr. Hubert Knight: that is enough to preclude a right of way arising by prescription under the doctrine of a lost grant. For the purpose of completeness, I add that it is not disputed that if this permission was given and if it was effective so as to prevent a right of way arising, it would mean that 20 years of use of the Track nec precario by owners of Eastbach Court cannot be shown.

Even if that is wrong so that the use by Mr. John Symonds and his brother of the Track was equally consistent with first what the neighbours had told them about their right to use the Track and second with the permission granted by Mr. Hubert Knight, this would not alter my provisional conclusion. The reason for that is that if Mr. John Symonds believed that he and his brother were entitled to use the Track not only because of what their neighbours had told them but also because of what he had been told by Mr. Hubert Knight, this (subject to Miss Bleasdale's points which I will have to consider shortly on the extent of the licence and the consequence of it being unsolicited) would preclude the claimants from establishing a right arising by prescription because:

(a) as I have already explained in paragraph 19 above, Lord Hoffmann had quoted in the Sunningwell case (supra at page 350) from Lord Cockburn CJ who had explained that juries were told that they had to find the prescriptive right proved if "there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant". The fact that Mr. Hubert Knight had granted a licence means that the prescriptive right could not arise; and or

(b) in a passage from which I have already quoted a part in paragraph 20 above and which is described as "oft-quoted" by Dillon LJ in Mills and another v Silver and others [1991] Ch 277 at page 281, Lord Lindley explained (with my emphasis added) in Gardner v. Hodgson's Kingston Brewery Co Ltd [1903]AC 229 at page 239 that:

"The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place. A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established the enjoyment must be inconsistent with any other reasonable inference that it has been as of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established"

In this case, the granting of the permission to use the Track means that the enjoyment of the right of way along the left-hand side of the Track was consistent with permission having been granted and this would mean no prescriptive right can be established. Thus the position is that enjoyment as of right of the Track by the owners of Eastbach Court is not proved because the use by the Symonds brothers was with the permission of the owner of the Track, namely Mr. Hubert Knight. It follows that enjoyment as of right of the right of way along the left-hand side of the Track by the claimants' predecessors, the Symonds brothers, is not established subject to the two points raised by Miss Bleasdale, which I must now consider in paragraphs 38 to 41 and paragraphs 42 to 75 respectively.

(iii) Did the permission granted by Mr. Hubert Knight only relate to the activities carried on by the Symonds brothers at that time rather than the extended use which they made of the Track after 1969?

Miss Bleasdale contends that by 1969 the use of the Track made by the Symonds brothers had changed so radically from the use made of it when Mr. Hubert Knight gave them permission to use the Track that it went further than the terms of the permission granted by Mr. Hubert Knight. She points out that by June 1969, the Symonds brothers were then using the Track for taking calves to and from the market in addition to handling sheep. So it is said by Miss Bleasdale that the use by the Symonds brothers of the left-hand side of the Track after June 1969 was no longer in accordance with the permission granted by Mr. Hubert Knight with the consequence that this permission did not apply to those later activities

Mr. Blohm disagrees and he contends that the use made by the Symonds brothers of the Track was always consistent with the permission granted by Mr. Hubert Knight and that in any event that any change in use, which took place did not amount to a sufficiently radical change in use so that reliance could not be placed on the grant of permission. In my view the answer depends on two matters of which the first concerns the extent of the change of use. In my view, the changes in use of the track made by the Symonds brothers were minimal and they fell a long way short of what is required for a party no longer to be entitled to use the licence to exercise a right of way, which had been granted by Mr. Hubert Knight .

After I reached that conclusion, I read a passage in the judgment of Neuberger LJ in McAdams Homes Limited v Robinson and another [2004] EWCA Civ 214,which had been drawn to my attention by Miss Bleasdale on a different point as I will explain in paragraph 72 below . In his judgment (with which Peter Gibson LJ and Sir Martin Nourse had agreed), Neuberger LJ had considered when an easement could cease because of a change of circumstances. He concluded with his case references removed that:

"50. The authorities discussed above appear to me to indicate that that issue should have been determined by answering two questions. Those questions are:

i) whether the development of the dominant land, i.e. the site, represented a "radical change in the character" or a "change in the identity" of the site (as in Wimbledon, and indeed as in Milner's and RPC Holdings) as opposed to a mere change or intensification in the use of the site (as in Glass and Cargill, and indeed in Giles);

ii) whether the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land, i.e. the cottage (this test being that laid down in Harvey and in Wimbledon and applied in Milner's and RPC Holdings)".

I consider that the changes in use of the Track relied upon by Miss Bleasdale do not represent anything approaching what is described in Neuberger LJ's words as " a radical change in the character" or a "change in the identity" of the track or "a substantial increase or alteration in the burden on the servient land", which was Whitehall Cottage. After all, both the anticipated and the actual use of the right of way was not only for agricultural purposes but also for livestock. Even if that conclusion is wrong, the second reason why I cannot accept Miss Bleasdale's point is that the scope of the permission granted to Mr. John Symonds was to use the Track for all purposes as is clear from the terms of the grant by Mr. Hubert Knight and it was unlimited in form or in any other way: so it would apply to any agricultural use which embraces livestock. Indeed this is not a case in which Mr. Hubert Knight's permission to Mr. John Symonds contained an express or an implied condition that they may use the Track only in connection with their sheep or for any other stated specific purpose. So the use made by the Symonds brothers of the Track after 1969 was totally consistent with the unconditional and unrestricted permission granted by Mr. Hubert Knight.

So I conclude that the claimants and the Symonds brothers were entitled to use the track in the way which they did pursuant to the permission granted by Mr. Hubert Knight not merely because of the terms of the permission but also because, as I have explained, the changes in use of the Track relied upon by Miss Bleasdale do not represent anything approaching what is described in Neuberger LJ's words as " a radical change in the character" or a "change in the identity" of the track or "a substantial increase or alteration in the burden on the servient land". It is now necessary to consider if the fact that Mr. Hubert Knight granted the permission without any prior request from the Symonds brothers means that their use of the track was not as of right.

IX Issue C. Insofar as the permission granted by Mr. Hubert Knight was unsolicited, does it follow that this permission means that the user was not "as of right"?

(i) Introduction

Miss Bleasdale contends that as the permission to use the left-hand part of the Track was given gratuitously by Mr. Hubert Knight and not pursuant to a request, this means that the permission is not granted "as of right". Her case is that the authorities establish that the only type of permission, which disproves user as of right is one that is asked for and then granted.

In response, Mr. Blohm correctly in my opinion does not dispute that the permission granted by Mr. Hubert Knight was unsolicited. He contends that Miss Bleasdale's submission runs contrary to the approach followed in Rafique v Trustees of the Walton Estate [1992] 65 P&R 356 in which on an interim application for injunctive relief, the issue was whether a notice giving permission to a group of residents to use private property would amount to the giving of consent so as to defeat a claim "as of right". Warner J stated at page 357 that:

"Another, and simpler, possibility suggested by Mr Lawrence would be for the Trustees to put up a notice on the road stating unequivocally that anybody using the road was using it only by permission of the Trustees and that that permission might be withdrawn at any time.

Mr Lawrence submitted that that would mean that any use of the road thereafter was use by permission of the Trustees and therefore not use as of right capable of founding a claim to a right of way by prescription whether under the Prescription Act, or through the doctrine of lost modern grant.

Mr Lawrence was unable to point to an authority showing directly that such a notice would be sufficient to make the user of the road precario. On the other hand, Mr Evans, was unable to give any reason why it should not. I am bound to say that it seems to me that the logic of the matter is in Mr Lawrence's favour. It is difficult to see what the answer would be to a claim by the Trustees that their notice rendered the use of the road by anyone while it was there a use with their permission. It would not be use, as it seems to me, with their acquiescence, because the notice would unequivocally state otherwise."

In answer, Miss Bleasdale submits correctly that no authority was cited for this statement but Mr. Blohm disagrees with her further submission that the statement of Warner J is contrary to principle and authority.

Thus it becomes necessary to ascertain what the authorities decide but I should explain that this decision has been criticised by Professor Wallace in an article in [1994] The Conveyancer 196 while Megarry and Wade's The Law of Real Property states in the 6^th edition (2000) at paragraph 18-126 footnotes 19-20 that Rafique "seems wrong in principle and on authority" citing in support of that proposition only Professor Wallace's article.

Gray and Gray in Elements of English Land Law (3^rd edition (2001)) explain at page 520 the law differently by stating that "the element of permission whether sought by a direct request or granted in unilateral and unsolicited form, is inconsistent with any claim of user 'as of right'" for which Rafique and two cases to which I will refer in paragraphs 70 and 73 below are cited as authority. I will now have to consider if an unsolicited grant of permission is inconsistent with any claim as of right so as to prevent a right of way or an easement arising by prescription under the doctrine of modern lost grant.

(ii) The claimants' authorities

Miss Bleasdale relied on a number of cases but they will only be of value in supporting her case if they actually considered and determined the issue of whether an unsolicited granting of permission in itself precludes or does not preclude a right of way being claimed.

The first authority relied upon by Miss Bleasdale is Bright v Walker (1834) 1 Cr M & R 211 in which Parke B refers at page 219 to the user not being as of right where the claimant "shall have occasionally asked the permission of the occupier of the land" .It is significant that Parke B was not commenting on or even considering the effect of an unsolicited grant of permission and so it is questionable if his comments have any value in respect of the issue with which I am concerned concerning an unsolicited grant of permission. In any event, Mr. Blohm contends correctly in my view that this comment has to be considered in the light of the context in which the comment was made and in particular that Parke B then explains (with my emphasis added) on the same page (page 231) as the comment on which Miss Bleasdale relies that:

"and, therefore, [the claim that a right has arisen by prescription] may be answered by proof of a grant, or of a licence, written or parol, for a limited period, comprising the whole or part of the twenty years..."

In my view, this passage refers to any form of "licence" and this indicates that Parke B considered that there was no material difference between an unsolicited licence or grant of permission and one granted pursuant to a request. So this passage supports the defendant's submission

Miss Bleasdale also submits that her submissions are supported by the case of Monmouthshire Canal Co v Harford (1834)1 Cr M 614 where the comments of Parke B and Lyndhurst CB during the course of counsel's submissions at page 631 according to Miss Bleasdale show their view of the requirement of user "as of right". Parke B. said that:

"In the present case, the permission asked for and given shews that the occupiers of the closes did not enjoy the way "as of right" and also that they did not enjoy it uninterruptedly."

Lord Lyndhurst C.B. stated that:

"…The simple issue is, whether there has been a continued enjoyment of the way for twenty years and any evidence negativing the continuance is admissible. Every time that the occupiers asked for leave, they admitted that the former licence had expired, and that the continuance of the enjoyment was broken"

It has to be borne in mind that this case was concerned with a right to maintain a railway based on prescription and the fact that each time when permission was given, it was preceded by a request. Thus in that case, the court was not considering the situation with which I am concerned which is the effect and consequences of an unsolicited permission. So these comments are not relevant to the issue now under consideration and so they do not assist the claimants' case; that means that I do not have to consider what weight to attach to the fact that these comments were not contained in a judgment but were comments made during submissions.

The third case relied upon by Miss Bleasdale is Tickle v Brown (1836) 4 Ad & E 369 where Lord Denman CJ explained at page 382 that the term "as of right" under the Prescription Act meant that:

"an enjoyment had, not secretly or by stealth or by tacit sufferance, or by permission asked from time to time, on each occasion or even on many occasions of using it; but an enjoyment had openly, notoriously, without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser, as a matter of right……"

The issue in that case was whether evidence of payment for a right was admissible evidence and so this quote cannot assist in answering the question with which I am concerned, which is whether an unsolicited granting of permission precludes time from running; that issue was not being considered in Tickle's case.

What is interesting about this quote is that Lord Denman used the words in relation to permission "without particular leave" rather than referring to permission "without leave being asked for". It would follow that to him, it was the giving of permission which was relevant rather than whether it was asked for; so that supports the contention of Mr. Blohm,

Miss Bleasdale also relies on the case of Mills v Mayor & Citizens of Colchester [1871] LR 2 C P 476 in which Montague Smith J at page 486 stated that user must not be "by leave asked from time to time" if it is to be as of right. The context in which that comment was made was that the licence to fish had been granted in return for a reasonable fee and it was held that there had been no enjoyment of right. The court was obliged to consider the effect of the fee and the comments relied upon by Miss Bleasdale were not concerned with an unsolicited granting of permission. Thus the comment on which she relies does not assist me or the claimants.

Miss Bleasdale also contends that her submission is supported by statements in Earl De la Warr v. Miles (1881) 17 Ch D 535 by Brett LJ, who at page 591 stated (with my emphasis added) that:

"The true interpretation of those words "as of right" seems to me to be that he has done so upon a claim to do it, as having a right to do it without the lord's permission, and that he has so done it without that permission. If he shews that he has claimed to do it, not as a thing permitted to him year by year by the lord, but as a thing that he had a right to do, whether the lord said "You may do it" or not; he has proved all that it is necessary for him to prove"

Cotton LJ at page 596 also stated (again with my emphasis added) that:

"You must see whether the acts which the Defendant claims a right to do in the suit are such as could be supported as lawful by custom, prescription, or grant; and then you must see whether the acts have been done as of right, that is to say, not secretly, not as acts of violence, not under permission from time to time given by the person on whose soil the acts were done. I say "from time to time given," not that it should necessarily be yearly, but from time to time during the period the exercise during which is said to establish the right; because if there has been permission before that time, if the time is sixty years, that is not sufficient to prevent the Defendant from establishing his claim unless it has been by consent or by agreement in writing.

In my opinion, the words, which I have emphasised, shows that if permission is granted, this precluded time from running irrespective of whether the permission given was unsolicited or was given pursuant to a request. To that extent, these statements support the defendant's claim that by giving a general permission albeit an unsolicited one, Mr. Hubert Knight precluded the claimants from now claiming a right of way.

I also do not consider that the claimants can obtain any assistance from another authority relied upon by Miss Bleasdale, which is the decision in Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229 because the regular payments of 15s was held to be consistent with a licence regularly sought and obtained. This decision does not throw any light on the problem raised by the present case of whether or not an unsolicited and gratuitous grant of permission precludes an easement from arising by prescription.

The next passage relied upon by Miss Bleasdale is from the speech of Lord Hoffmann in the Sunningwell case (supra at page 350) citing Mills v Mayor & Citizens of Colchester (supra) where having set out the history of the law on the acquisition of easements by prescription, he explained (with my emphasis added) that:

"As Cockburn C.J. observed [in Bryant v Foot(1867) LR 2 QB 161, 181], the jury were instructed that if there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant, they not merely could but should find the prescriptive right established."

The House of Lords was considering the meaning of the words "as of right" in section 22(1) of the Commons Registration Act 1965 and Lord Hoffmann explained at page 349 that those words were:

"…plainly derived from judicial pronouncements and earlier legislation on the acquisition of rights by prescription. It is necessary to say something about the historical background"

He then set out that some aspects of the law of prescription in general terms stating at pages 350-351 (with my emphasis added) that:

"It became established that such user had to be, in the Latin phrase, nec vi, nec clam, nec precario: not by force, nor stealth, nor the license of the owner. (For this requirement in the case of custom, see Mills v Colchester Corporation (1867) L.R. 2 C.P. 476, 486.) The unifying element in these three vitiating circumstances was that each constituted a reason why it would not have been reasonable to expect the owner to resist the exercise of the right- in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period"

These comments do not assist the claimants' case as they were not addressing the issue of whether an unsolicited grant of permission would preclude an easement being granted by prescription, which is the issue with which this case is concerned. It is not permissible to infer from Lord Hoffmann's comments any support for Miss Bleasdale's submissions.

Indeed, on the contrary, the approach of Lord Hoffmann is supportive of Mr. Blohm 's approach because a claim for an easement was defeated by a "licence of the owner" or if the owner "had consented to user, but for a limited period". Furthermore, the present case, in which there has been an unsolicited grant of permission, is not one in which, in Lord Hoffmann's words on page 350, quoted more fully in paragraph 19 above (with my emphasis added) that:

"…there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant"

In other words, the grant of any form of permission must mean that reliance cannot be placed on "lost modern grant". In this case the unsolicited oral permission of Mr. Hubert Knight will be enough to preclude the claimants establishing a right of way by prescription under the doctrine of "lost modern grant" as this will not be a case in Lord Hoffmann's words of "no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant".

Pausing at this juncture, I do not consider that there is any decision which states that a permission granted without a request does not mean that subsequent user is "nec precario" as it is with the consent of the owner. Indeed the authorities relied upon by Miss Bleasdale appear to me to support Mr. Blohm's submission that an unsolicited grant of permission precludes time from running for the purpose of prescription. I must now consider the authorities on which Mr. Blohm relies in support of his contention that an unsolicited grant of permission prevents an easement arising by prescription.

(iii) The defendant's authorities

Mr. Blohm relies on the approach in Rafique to which I have already referred in paragraph 44 above and also on the statement of Parker J in Hyman v Van den Bergh [1907] 2 Ch 516 at page 530 that in so far as the enjoyment of had to be as of right, then (with my emphasis added):

"..if the enjoyment was due to an agreement or consent, it was held to negative enjoyment as of right at the moment when the agreement was made, or the consent given for the making of the agreement, or the asking for or accepting of a consent or licence acted as an admission that at that moment there was no right. The continuity of the enjoyment as of right ,for the purpose of prescription at common law , was thus destroyed; and the continuity of the enjoyment for the purpose of a presumed grant was similarly destroyed if the agreement or licence had been made or given within the twenty year period relied on".

In my view, the use of the words which I have emphasised show that the granting of an unsolicited consent is sufficient to prevent time running for the purpose of prescription. In addition, Mr. Blohm relied on the decision and the reasoning in the later decision of the Supreme Court of New South Wales in O' Mara v Gascoigne (1996) 9BPR 16,349 in which it was held that an unsolicited grant of permission of a right of way was sufficient to prevent an easement for a right of way arising in that case. Hume J explained his decision in this way at 16,355-16,356 (with my emphasis added) that:

"And if the justification for the doctrine of the modern lost grant is that the state of affairs which is shown to exist is otherwise unexplained- Hamilton v Joyce (1984) 3 NSWLR 279 at 287, or that in the case of long continuous user the court will make every possible presumption necessary to give that long enjoyment, a legal origin- Dobbie v Davidson (above) at 670, or if it is merely one of the various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised- per Fry J in Dalton v Henry Angus & Co (1881) LR 6 AC 740 at 743- there seems to me no reason at all why the leave must be asked for, and from time to time. Acting on leave volunteered is as much acceptance of it as if it had been asked for in the first place- Hyman v Van den Bergh [1907] 2 Ch 516 at 530. So far as the latter requirement is concerned, one may rhetorically ask how often must the leave be requested; must it have a defined limit; if so, what and why? In an era when oral statements are increasingly being relied on as the foundation for rights… I see no ground for the limitation suggested. …".

The judge then proceeded to consider a submission similar to that made by Miss Bleasdale in the present case that an unsolicited grant of permission does not prevent the presumption of lost modern grant arising. Hume J explained at 16,355-6 (again with my emphasis added) that:

"That there is a distinction between a request for, and the grant of, permission or a license is drawn in Bright v Walker (1834) 1 Cr M & R 211 at 219 wherein it was pointed out that any request for permission to use the relevant land is inconsistent with the concept of use as of right- see also Tickle v Brown (1836) 4 Ad & EI 369 at 382-4. A request for permission or other action inconsistent with the existence of the right, such as an agreement for use commencing within the period could be raised under the general issue. An agreement or licence made or given before the commencement of the 20 year period relied on did not negative the enjoyment as of right during the period but by explaining the enjoyment, equally precluded the presumption of a grant- see Hyman v Van Den Bergh (above). Under s 5 of the 1832 Prescription Act a grant or a licence given or made prior to the was [sic] required to be specially pleaded, being regarded as a "Matter of Fact or of Law not inconsistent with the simple Fact of Enjoyment……

And in the traditional formulation of the essential qualities of the use necessary to establish an easement by lost modern grant, viz, that it shall be "nec vi, nec clam, nec precario", "precario" has been traditionally interpreted as "permission"- see Megarry and Wade, The Law of Real Property, 5^th ed, Stevens, London, 1984, p 870, Gale on Easements, 15^th ed, Sweet and Maxwell, London, 1986, p 194, Sturges v Bridgman (1879) 11 Ch D 852 at 863, Eaton v Swansea Waterworks Company (1851) 17 QB 267 at 275- or that which depends on the will of another person- Burrows v Lang [1901] 2 Ch 502 at 510, rather than by reference to the Latin adverb meaning "on request": of Oxford Latin Dictionary, Clarendon Press Oxford, 1968-82 which defines the term as "permissively". Nor is there anything in the concept of permission or the expressions of grant or licence referred to in the preceding paragraph which necessarily implies a request."

The judge justified his conclusion by saying at page 16,356 that:

"Support for the conclusion that unilateral permission is sufficient to prevent an easement arising is to be found also in BP Properties v Buckler (1988) 55 P & CR 337 and in Rafique and Others v The Trustees of the Walton Estates (1993) 65 P & CR 356. Those decisions have been criticised by Professor Wallace in an article at the Conveyancer of 1994 but most of his criticisms, relying on the United Kingdom Prescription and Limitation Acts have no application here. To the extent the second decision is said to be inconsistent with Tickle v Brown, I disagree with the criticism because Professor Wallace seems to me not to have recognised the distinction made in that case between matters required to be specially pleaded and those which could be raised under the general issue as going to the topic of user as of right.

And "once permission has been given the user must remain permissive and not be capable of ripening into a right save where the permission is oral and the user has continued for forty or sixty years, unless and until, having been given for a limited period only, it expires or, being general; it is revoked, or there is a change in circumstances from which revocation may fairly be implied": Healey v Hawkins [1968] 1 WLR 1967 at 1973; [1968] 3 All ER 836 at 841. The exception of use for forty or sixty years arose under the United Kingdom Prescription Act and has no application here.[ or in the case before me]"

As I explained in paragraph 47 above, both Hume J in O'Mara and Gray and Gray state that they derive support for their conclusion that an unsolicited grant of permission prevents an easement arising from the decision of the Court of Appeal in BP Properties Limited v Buckler [1988] 55 P& CR 337 in which it was decided that a unilateral communication from an owner of property to a squatter giving him permission to continue his occupation of a disputed property prevents his subsequent possession from being adverse for the purposes of the Limitation Act even if that permission was neither sought, acknowledged nor accepted.

:

(iv) Conclusion

I find the reasoning in O' Mara compelling and I consider that the law is that an unsolicited permission to use the Track prevents a right of way arising under the doctrine of lost modern grant because:

(a). in the words of Lord Lindley in Gardner's case (supra at page 239) "if the grant is proved….prescription has no place";

(b) as Lord Hoffmann explained in the Sunningwell case (supra at page 350 ) that juries were instructed that "if there was no evidence absolutely inconsistent with there having been immemorial user or a lost modern grant, they not merely could but should find the prescriptive right established." An unsolicited grant of permission would preclude such a permission being granted;

(c) no authority has been put forward to show that any court has decided a case on the basis that there is a crucial difference between an unsolicited grant of permission and a solicited grant of permission. In other words, there is no decision which runs contrary to the decision in O'Mara's case (supra) and states that an unsolicited grant of permission prevents an easement arising;

(d) in none of the authorities relied on by the claimant in this case is there a statement that unsolicited grants of permission should be treated differently from solicited grants of permission; and

(e) there is no logical reason for deciding that unsolicited grants of permission should be disregarded in the way contended for by Miss Bleasdale because as Lord Hoffmann reminded us in Sunningwell (supra at page 350) that user for the 20 year period has to be without "the licence of the owner". So an unsolicited grant of permission is a licence of the owner.

Therefore I conclude that by granting the Symonds brothers permission to use the Track even though the permission had not been sought, Mr. Hubert Knight prevented time from running so as to create a right of way by prescription arising in favour of the owners of Eastbach Court As the claimants have no right of way over the left-side of the Track, that part of their claim must be dismissed.

X Issue D: In the event that the claimants have a right of way over the left-hand side of the Track, was it limited in use and if so, in what way?

(i)Introduction

As this issue is academic in the light of my finding that the claimants as owners of Eastbach Court do not have an easement over the left-hand side of the Track, I will deal with this issue more briefly than I would have done if this was still a live issue. There are fundamental disagreements between counsel as to:

(i) the nature of the right of way. Miss Bleasdale relies on the statement of the Court of Appeal in McAdams Homes Limited v Robinson [2004] EWCA Civ 214 in which it was said that the extent of a right of way would be determined "according to the ordinary and reasonable use to which the [servient property] might be applied at the time of the implied or supposed grant" per Sir Martin Nourse paragraph [79 (iii)] with whom Peter Gibson LJ agreed. Mr Blohm disagrees and contends that those principles do not apply to the present case. This dispute centres on whether what was said in McAdams applies to easements obtained by prescription under the doctrine of modern lost grant;

(ii) how could any right of way over the left-hand side of the track be exercised. Miss Bleasdale contends that such use would be on foot, by vehicles and with animals. Mr Blohm disagrees and he contends that the user could not and should not extend to use with animals; and

(iii) the purposes for which the right of way could be used. Mr. Blohm contends that it can only be used for agricultural purposes while Miss Bleasdale submits that it can not only be used for that purpose but also for residential purposes.

(ii) Is it correct to apply the principle set out in McAdams that the extent of a right of way would be determined "according to the ordinary and reasonable use to which the [servient property] might be applied at the time of the implied or supposed grant"?

While Miss Bleasdale submits that this principle applies, Mr Blohm contends that what was said in McAdams first was obiter, second was per incuriam and third in so far as it purports to lay down a general rule as to the extent of easements obtained by prescription, it is wrong. McAdams was an appeal in which the issue concerned the nature of the terms of easements, which had arisen not by prescription but instead by reason of the well-known principle established in Wheeldon v Burrows (1879) 12 Ch D 31 at 49. The issue to be determined on that appeal was in the words of Neuberger LJ (with whom Sir Martin Nourse and Peter Gibson LJ agreed):

"whether the drainage easement, impliedly granted in 1982 when the dominant land was used as a bakery, could continue to be enjoyed following the redevelopment of the dominant land for the purpose of two residential houses" [49].

As I explained in paragraph 40 above, he concluded with the agreement of Sir Martin Nourse and Peter Gibson LJ that this issue had to be determined by answering two questions, which were, with the references of the cases cited removed that:

"50. The authorities discussed above appear to me to indicate that that issue should have been determined by answering two questions. Those questions are:

i) whether the development of the dominant land, i.e. the site, represented a "radical change in the character" or a "change in the identity" of the site (as in Wimbledon, and indeed as in Milner's and RPC Holdings) as opposed to a mere change or intensification in the use of the site (as in Glass and Cargill, and indeed in Giles);

ii) whether the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land, i.e. the cottage (this test being that laid down in Harvey and in Wimbledon and applied in Milner's and RPC Holdings)".

Neuberger LJ continued by stating in a passage (with which both Sir Martin Nourse and Peter Gibson LJ agreed) that:

"51.In my opinion, the effect of the authorities in relation to the present case is that it would only be if the redevelopment of the site represented a radical change in its character and it would lead to a substantial increase in the burden, that the dominant owner's right to enjoy the easement of passage of water through the Pipe would be suspended or lost."

Mr. Blohm contends that these comments on the extent of easements do not apply to easements arising by prescription but the views of the judges in the McAdams case do not support this approach. As I have explained, Sir Martin Nourse considered that:

"in general, authorities on prescriptive easements apply equally to implied easements and vice-versa" [79(i)].

A similar approach was adopted by Neuberger LJ who explained that:

"22. I should also mention that many of the cases to which we have been referred were concerned with easements arising by prescription, as opposed to easements arising by implication, as in this case. In my judgment, at least in the great majority of cases, there should be little difference in the principles applicable to the two types of case. An easement arising by prescription involves a fictional lost grant as pointed out by Harman LJ in British Railways Board v Glass [1965] Ch 538, 562, whereas an easement arising under the rule in Wheeldon v Burrows arises by implied grant. In each type of case, the easement does not come into existence by an express agreement, whose effect can then be construed by the court. It arises out of a set of facts, which pursuant to principles developed by judges…result in a deemed grant of an easement. In each case the existence, nature and extent of the grant must depend on the circumstances existing at the date of the grant".

Irrespective of whether the ratio of the McAdams case actually applies to easements arising by prescription, I must state with respect that I find this reasoning of Sir Martin Nourse with which Peter Gibson LJ agreed compelling insofar as it explains why the approach to construing the nature and extent of easements arising by prescription should be the same as the approach to easements arising by implication. Indeed it is noteworthy that in reaching their conclusions that similar criteria have to be set for determining the extent of an easement arsing by prescription under the doctrine of lost modern grant and one arising under the rule in Wheeldon v Burrows, both Neuberger LJ and Sir Martin Nourse relied on decided cases concerning easements arising by prescription. I will not consider further Mr. Blohm's contention that the comments in the McAdams case were obiter bearing in mind that this issue is academic because of my conclusion that the claimants do not have a right of way over the left-hand side of the track. In any event, as I will explain on the facts of this case, it is likely that the extent and nature of any right of way would be the same irrespective of whether the test applied was that in McAdams or as is set out in Halsbury's Laws ( see paragraph 86 below)

It is difficult, if not impossible, to determine if the decision in McAdams was per incuriam without ascertaining which cases were actually cited to the Court of Appeal and that is not apparent from the transcript. Mr. Blohm did not provide a list of cases cited. I ought to add that it must not be forgotten that for the McAdams case, the members of the court were all very experienced Chancery judges, who had collectively an almost unrivalled experience and knowledge of land law. This would suggest that it is unlikely that there were important and relevant cases, which had not been considered by them especially as it would seem from the judgments in that case that there had been extensive citation of authority on easements arising by prescription.

In those circumstances, I propose to apply the test that that the extent of a right of way in the words of Sir Martin Nourse falls to be determined:

"…according to the ordinary and reasonable use to which the [servient property] might be applied at the time of the implied or supposed grant".

(iii) What is the extent and nature of any right of way which the claimants might have in respect of the left-hand side of the Track?

Of course, at his stage I am continuing to assume that contrary to my earlier finding that the claimants had an easement on the left-hand side of the Track. In order to ascertain what was "the ordinary and reasonable use to which [the left-hand side of the Track] might be applied when the right of way arose", it is necessary to bear in mind that the dominant property was Eastbach Court because at the time when the use of the left-hand side of the Track started, the Symonds brothers owned it. Indeed they were exercising their right over the Track as owners of Eastbach Court. Indeed I am unable to ascertain any cogent reason for concluding that anything other than that the whole of Eastbach Court was the dominant tenement.

At the time when the right of way over the left-hand part of the Track arose, Eastbach Court was both a home and a working farm and so agricultural and residential purposes of this part of the Track were in the words of Sir Martin Nourse purposes "according to the ordinary and reasonable use to which the [servient property] might be applied at the time of the implied or supposed grant". I appreciate that Mr. Blohm considers that the right of way should exclude residential purposes but it is at least strongly arguable that it should extend to such purposes even on the application of his criterion for ascertaining the extent of an easement, which is the one stated for rights of way claimed by prescription in Halsbury's Laws of England (4^th edition Reissue) at paragraph 169 and that is

"..the only mode of measuring the nature and extent of the right is by having regard to the mode of enjoyment, and the way is therefore defined and limited by the evidence of user and by the character of the dominant tenement. If a way has been used for several purposes there may be a ground for inferring that there is a right of way for all purposes; but evidence of user for one purpose or for particular purposes only, will not give rise to such an inference"

In this case, the family of Mr. Pope Davies used this part of the Track for residential purposes and that might well be sufficient to satisfy the criterion relied on by Mr. Blohm to prove sufficient residential use and also "the character of the dominant tenement" was partly agricultural and partly residential. Eastbach Court was not only a working farm but also there was evidence that Eastbach Court was occupied for residential purposes. Indeed prior to 1962 there were four different family units there while from 1964 until 1989, Eastbach Court was used for residential purposes . This fact together with the residential character of the actual building in Eastbach Court would suggest that applying the defendant's test, the user of the left- hand side of the track was both residential and agricultural Nevertheless, in the light of my conclusion that the claimants have no right of way over this part of the Track, it is unnecessary for me to reach a final decision on this point although my preliminary view is that whichever test is applied if I am wrong and the claimants were entitled to a right of way along the left-hand side of the Track, it would extend to agricultural and domestic uses.

The next area of dispute is who and what could use the right of way. Miss Bleasdale contends that the use would be on foot, by vehicles and with animals. Mr Blohm disagrees and contends that the user should not extend to use with animals. Applying the MacAdams' criterion, I would agree with Miss Bleasdale that use with animals was permitted bearing in mind that Eastbach Court was used as a working farm. Even on Mr. Blohm's approach, it seems that animals might have used the left-hand side of the Track especially as the character of the dominant tenement was partly agricultural. But in the light of my conclusion that the claimants have no right of way over this part of the Track, it is unnecessary for me to reach a definite decision on this point either.

XI. The issues in respect of the claim for the right-hand side of the track from the rear entrance of Eastbach Court (Gate A) and the road to the Scramble Field

The defendant accepts that the claimant had an implied right to use the right-hand side of the Track from the road and from Gate A to the Scramble Field ("the right hand side of the track"). Both Mr John Symonds and his brother gave evidence of the use of the Track both from the road and from Gate A to get into the Scramble Field. The Scramble Field and the disputed Track were in separate occupation before the 1983 conveyance from Mrs Agatha Knight to the Symonds brothers. The Track was visible and was being used.

It is common ground that rights of way were created by operation of section 62 (1) of the Law of Property Act 1925, which provides that a conveyance of land is deemed to include and it operates to convey:

"all liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied or enjoyed with, or reputed or known as part and parcel of or appurtenant to the land or any part thereof".

Section 62 (4) provides that:

"This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance, and to the provisions therein contained"

Mr Blohm contends that (a) those rights of way have were limited to agricultural and motor scrambling purposes; (b) in any event, the implied rights of way of the claimants in respect of the right-hand side of the Track had been abandoned; and (c) even if the claimants retain those rights of way, the appropriate remedy for the claimants is not an injunction but the payment by the defendant to the claimants of damages. Each of these claims is disputed by Miss Bleasdale, who submits first that the right of way was not so limited; second that the right has not been abandoned and third that the claimants are entitled to injunctive relief and not merely damages.

Thus the issues to be considered in respect of the right-hand side of the Track are:

(i) the extent and nature of the claimants' implied rights of way in respect of the Track;

(ii) whether such rights of way have been abandoned; and

(iii) if the claimants still retained the rights of way in respect of the Track, whether the appropriate remedy for the claimants is injunctive relief or damages.

XII. Issue (i). What is the extent of the claimants' implied rights to the right-hand side of the Track?

Mr Blohm contends that the implied rights of way were for the benefit of Scramble Field and so were limited to its use which was for agricultural and recreational use because they were the only uses to which the Scramble Field might be put or was put while Miss Bleasdale says it should be widened so as to include not only those uses but also sporting use.

It is common ground that the scope of implied right of way was to be determined in accordance with the approach of the Court of Appeal in McAdams case in which Sir Martin Nourse explained in a passage with which Peter Gibson LJ agreed (with my emphasis added) that:

"84... the right of drainage impliedly granted... was a right of drainage was granted... was a right of drainage for all purposes according to the ordinary and reasonable use to which the [relevant premises] might be applied at that time".

The dispute between counsel relates to the application of this test and that is determined by the evidence. There was little evidence given about the "ordinary and reasonable use to which [the Scramble Field] might be applied" as at the date of the creation of the right in 1983. It is common ground that that it would have been used for agricultural purposes and it seems from the 1960s or the 1970s, it has been used for motorbike scrambling, which took place about twice a year. This would support a conclusion that agricultural and recreational purposes should be included. Miss Bleasdale submits that the right should also include sporting activities such as shooting but that is strongly opposed. Nevertheless, she submits that one of the formulations which would be acceptable to describe the right of way to the right-hand side part of the Track would be "a right of way for all purposes according to the ordinary and reasonable use to which Scramble Field might have applied in 1983".

I am troubled by this formulation because it does not answer the question of what use may be made of this right. So as the parties now disagree as to what is covered by this formulation, if this formulation were adopted, there probably would have to be further litigation to determine what was "the ordinary and reasonable use to which Scramble Field might have applied in 1983". In other words, by adopting this formula, I would probably be only postponing the determination of what activities are covered by this right of way. There is no material that "the ordinary and reasonable use to which the [the Scramble Field] might be applied at that time" extends beyond agricultural and recreational purposes, which would include motor bike scrambling. The claimants have not adduced any evidence or made any cogent submissions that the use should be any wider. In addition, I am not sure what activities would fall outside Mr. Blohm's formulation of agricultural and recreational purposes but be covered by Miss Bleasdale's additional requirement of sporting purposes. I therefore limit the use of the right of way to the right-hand part of the Track to agricultural and recreational purposes but I wish to make it clear that such use would cover use by motor vehicles and by animals for those purposes. Scramble Field is sloping field, which would be ideal for grazing animals and hay. Those purposes would entail vehicles going to and from Eastbach Court along the right-hand side of the Track to Scramble Field and beyond to check on stock and to bring hay back to the farm while the grazing animals would be moving to and from Eastbach Court along the right-hand side of the Track to Scramble Field and beyond.

XIII. Issue (ii) Has there been an abandonment by the owners of Eastbach Court of their right of way over the right-hand side of the Track?

Mr Blohm contends that the claimants and their predecessors as owners of Eastbach Court by a combination of their conduct, their delay and their failure to act have indicated that they have abandoned their right of way to the right-hand side of the Track. Miss Bleasdale submits that the claimants and their predecessors have not abandoned these rights.

Mr Blohm put his submissions under three main heads. First, he points out that the Symonds brothers together with various scramblers and other enthusiasts constructed the new Track, which was an alternative route on the land belonging to Eastbach Court and not belonging to Whitehall Cottage up from the road through the Scramble Field to the Flying Field. The owners of Eastbach Court knew all about this work and assisted in its construction. So according to Mr. Blohm, this construction of a new Track constituted evidence of abandonment of the right of way to the right-hand side of the Track

The second matter relied upon by Mr Blohm was that the user of the right-hand side of the Track stopped in 1997. For many years, this part of the Track was obstructed by builders' machinery during the refurbishment of Whitehall Cottage. Additionally, as part of the works carried out for the defendant, there was constructed by the defendant's agents at the top end of the Track where it reached the Scramble Field. a wall and a wicket gate as well as a concrete plinth on which there was placed a large oil supply tank. These obstructions would have prevented access along the right-hand side of the Track by motor vehicles and probably by animals.

The third series of matters relied upon by Mr Blohm relate to the failure by the claimants and the previous owners of Eastbach Court to complain consistently about the obstructions placed by the defendant and her husband at the top end of the right side of the Track so as to make it impassable by vehicles and animals. I will have to return to consider whether this is so and what the consequences of it are.

When considering the factors relied upon by Mr Blohm, it is necessary to bear in mind the high threshold that has to be reached before a court would hold that a right of way has been abandoned by implication. Megarry and Wade (The Law of Real Property (6^th Edition-2000) paragraph 18-186) explain with my emphasis added that;

"Abandonment of an easement for profit will not be lightly inferred. An owner of property does not normally wish to divest himself of it even though he may have no present use for it. Mere non-user will not in itself suffice therefore, even if accompanied by a mistaken belief that the right has been extinguished. It is now clear that non-user for a period of twenty years will not raise a presumption of abandonment, despite earlier authority which suggested otherwise. It must be proved that a person having a right intends to abandon it, that is, that neither he nor any of his successors in title intends thereafter to exercise it"

The approach of the courts to a claim that an easement such as a right of way has been abandoned can be summarised by the following principles set out in Gale (supra) as follows:

(a) whether a person intends an abandonment is not a subjective question "It is always a question of fact, to be ascertained by a jury, or by the Court, from the surrounding circumstance, whether the act amounts to an abandonment, or was intended as such" (per Malins V.-C .in Cook v. Mayor and Corporation of Bath (1868) L.R.6 Eq.177 at 179);

(b) abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement "To establish abandonment of an easement the conduct of the dominant owner must, in our judgment, have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement." per Buckley LJ in Gotobed v.Pridmore (1971) EG 759, 760 quoted with approval by Cumming-Bruce L.J. in Williams v. Usherwood (1983) 45 P.& C.R. 235 at 256 with my emphasis added;

(c) it is a question of fact whether an act is intended as abandonment;

(d) "Abandonment is not to be lightly inferred. Owners of property did not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it." per Buckley LJ in Gotobed v. Pridmore (1971) EG 759, 760 quoted with approval by Cumming-Bruce L.J. in Williams v. Usherwood (1983) 45 P. & C.R. 235 at 256 again with my emphasis added; and

(e) "Non user is not by itself conclusive evidence that a private right of easement is abandoned. The non-user must be considered with, and may be explained by, the surrounding circumstances" per Sir Ernest Pollock MR. in Swan v Sinclair [1924] 1 Ch 254, 266 quoted by per Buckley LJ in Gotobed v. Pridmore (1971) EG 759, 760 and quoted with approval by Cumming-Bruce L.J. in Williams v. Usherwood (1983) 45 P. & C.R. 235 at 256.

Pausing at this stage, it therefore is clear that the failure by the claimants and their predecessors as owners of Eastbach Court to use the right-hand side of the Track since it was obstructed by builder's machinery during the refurbishment of Whitehall Cottage at the start of the 1990's without any more does not in itself raise a presumption of abandonment. There are many authorities which show in the words of Megarry and Wade quoted in paragraph 102 above that in the case of easements, "it is now clear that non-user for a period of twenty years will not raise a presumption of abandonment". Indeed according to Gale on Easements (supra paragraph 12.55) in R. v Chorley (1848)12 QB 515 at 518, Lord Denman CJ explained that if a jury had been told that:

" it would be prudent in them not to rely on such mere cesser or acquiescence unless shewn for twenty years, we think such a remark…would have been no misdirection"

In so far as Mr. Blohm relies on the creation of a new Track, I agree with Miss Bleasdale that this work is fully explained by the fact that access was required to the Scramble Field and that the defendant and her husband made it plain they intended to block access. The owners of Eastbach Court had at the time when the new Track was built, a valid and enforceable right of way along the right-hand side of the Track to the Scramble Field for vehicles and animals so as to use it for agricultural and recreational purposes. So the blocking of the Track was clearly an unlawful act. As I will explain in paragraphs 107 to 120 below, the solicitors for the Symonds were complaining about the loss of their right of way along the right-hand side of the track, which they were continuing to assert existed in correspondence. This must show that there was no intention on the part of the Symonds brothers to abandon the right of way along the right-hand side of the Track. It was clear from the evidence of the Symonds brothers that they only felt compelled to create the new Track because access had been blocked while their solicitors were continuing to assert their right of way over the right–hand side of the Track. It follows that the decision to create the new Track when coupled with the letters of complaint from the solicitors for the owners of Eastbach Court did not constitute an abandonment as it did not show on the part of the Symonds brothers an abandonment, which only arises in the words of Buckley LJ quoted in paragraph 103 above and with my emphasis added that:

"it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement."

Thus neither the blocking of the Track nor the construction of the new Track nor the combination of these factors would show abandonment. Indeed if it did, it would mean that a person whose property was subject to a right of way could ensure that it was to be regarded as "abandoned" by the owner of the right of way simply by preventing the owner of the right of way from using it irrespective of the intention or aspirations of the beneficiary. This conclusion cannot be correct because the issue on abandonment has to focus on what can be inferred from the behaviour of the owners of Eastbach Court and their reaction to the impediments to access along the right-hand side of the track and the construction of the New Track.

So it now becomes necessary to look at the steps that were taken by the claimants and their predecessors to complain about the blocking of the Track by the defendant and her workman. There was some contentious correspondence starting in May 1994 and continuing until February 1995 in which the solicitor for the owners of Eastbach Court and the defendant's solicitors disagreed on whether the owners of Eastbach Court had a right of way over the Track. Eventually in a letter dated 18 April 1995, the solicitors for the Symonds brothers complained to the defendant and her husband as well as to the solicitor then acting for the defendant and her husband that their clients had deliberately blocked their access with an excavator. The defendant and her husband were told that unless the defendant and her husband moved the excavator blocking the right of way along the Track, injunctive relief would be sought.

It appears from a letter from the solicitors acting for the owners of Eastbach Court of 25 April 1995 first that the excavator was removed but that it was then replaced by a JCB, which blocked the entrance from Eastbach Court to the Track, second that the JCB was removed by agreement to allow a motor cycle scramble to take place but third that the defendant and her husband used the JCB and building material so as to block the access from Eastbach Court to the Track. The letter not merely complained of the actions of the defendant and her husband but warned that unless the obstructions were moved, applications would be made for injunctive relief. This letter and the previous correspondence to which I have referred clearly show on an objective basis an intention to rely on the right of way in respect of the Track and not an intention to abandon it

The solicitors then acting for the defendant replied on 28April 1995 explaining that the obstruction to access to the Track would be removed pending a meeting between the parties and their solicitors which was fixed for 1 May 1995.

This meeting duly took place and the note of it shows that that the defendant's solicitor accepted that the owner of Eastbach Court had a prescriptive right of way to the back entrance of Eastbach Court but that the:

"main problem his clients [namely the defendant ] had was with the scramblers and the fliers having access, especially as the fliers tended to leave the gate open, thus causing inconvenience and irritation to his clients".

It was also agreed at that meeting that a further meeting should take place and this occurred on 5 May 1995 when it was explained that scrambling would cease the next year. It was made very clear that it was highly unlikely that the owners of Eastbach Court would not give up their right of access to the fields which entailed using the right-hand side of the Track. So the claimants were then asserting, and certainly not abandoning, their right of way on the right-hand side of the track.

On 22 May 1995, the solicitors for the owner of Eastbach Court wrote to the solicitor for the defendant placing on record their clients' claim to a right of way over the whole of the Track and requesting the defendants to remove the large earth moving machine which was frequently parked in or near to the rear entrance to Eastbach Court.

On the following day, those solicitors asked the solicitor for the defendant and her husband to confirm that the owner of Eastbach Court had a right of way over the Track. The solicitor for the defendant and her husband responded in a letter dated 7 July 1995 in which they explained that they did not accept that the owner of Eastbach Court had a right of way over the Track to the Scramble Field.

On 12 July 1995, the solicitors for the owners of Eastbach Court asked the solicitors for the defendant and her husband to confirm that the owners of Eastbach Court had a right of way over the Track. No reply was received to that letter and follow-up letters threatening legal proceedings were sent on 8 August 1995 and on 23 October 1995, the second of these letters enclosed an opinion from counsel in Bristol who concluded that there was a right of way in favour of the owners of Eastbach Court across the Track.

None of these letters provoked any response from the solicitor acting for the defendant and her husband and so follow-up letters were sent to those solicitors on 6 November 1995 and 1 December 1995 with the second letter containing a threat of proceedings.

Eventually on 11 December 1995, the solicitors for the defendant and her husband replied disagreeing with the contention that the owners of Eastbach Court had a right of way over the Track. By a letter dated 21 December 1995, the solicitor for the owners of Eastbach Court reiterated the claim to the right of way but this led to a request for clarification by the solicitor for the defendant and her husband in a letter dated 3 January 1996.

On 24 January 1996, different solicitors were acting for the owner of Eastbach Court and they wrote to the solicitors for the defendant and her husband explaining that the owners of Eastbach Court were concerned that their "rights of way…onto the field which they own" were being impeded by building works carried out by the defendant and her husband. The solicitor for the defendant and her husband responded on 2 February 1996 explaining that the work was progressing but explaining that the letter was not to be taken as an admission of the right of way through to the field. Thus at the end of 1996, the position was that the owners of Eastbach Court were continuing to assert their right of way down the right-hand part of the Track.

On 10 November 1997, the solicitors for the defendant and her husband wrote to the solicitors for the first and second claimant who by then owned Eastbach Court asking for their clients' instructions on diverting access to Scramble Field from the road along the Track to a new Track. The first claimant replied on 1 December 1997 explaining that:

"the right of way has been there forever and for us it does represent another entrance to our garages at the back. Why should we voluntarily agree to a useful road being changed into a garden for your client? Therefore I am afraid that the answer is 'no'".

On 4 January 2000, the first claimant wrote to the defendant and her husband explaining that it had been noticed the defendant and her husband had placed a fuel tank "where historically there has been a right of way into one of our fields. This is making us very nervous that you are trying to steal our bottom drive into Eastbach. Could you just assure us that this is not your intention?" The defendant wrote on 25 January 2000 suggesting a meeting. As at this point in time, the claimant was continuing to assert as his predecessors as owners of Eastbach Court had done that he was and remained entitled to a right of way down the right-hand side of the Track.

The next development was a letter from the defendant's solicitors dated 14 April 2004 denying the existence of a right of way over the Track. The claimants' former solicitors then wrote a letter dated 21 April 2004 to the defendant's solicitors explaining that the claimants and their predecessors had enjoyed "a long established right over the Trackway". It is true that there had been a gap of 4 years in the correspondence but the claimants had not said or done anything from which it could be inferred that they intended to abandon their right of way. As I have explained, the threshold that has to be reached before an easement can be considered abandoned is proof of what Buckley LJ described in Gotobed (supra) as "a firm intention that neither [the claimants] nor any successor in title of [theirs] should thereafter make use of the easement". This firm intention cannot be shown especially in the light of the correspondence and the insistence of the owners of Eastbach Court that they retained the right of way on the right-hand side of the Track.

The defendant's solicitor did not agree and after correspondence in which the claimants' present solicitors reiterated the existence of the right of way over the Track including over the right side of it, the present claim was commenced. This later correspondence fortifies my conclusion that this right of way had not been abandoned.

In conclusion, an analysis of this correspondence shows that the owners of Eastbach Court were claiming rights over the right-side of the Track from the time when it was obstructed right until 2004 and they never either expressly or impliedly dropped that claim. It is true first that there was a long interval between the letters from the solicitors acting for the owners of Eastbach Court for over four years before 2004 and second that the owners of Eastbach Court did not commence proceeding as speedily as they could have done. This fact even when coupled with the blocking of the right-hand side of the Track and the construction of the new Track fails to establish in the words of Buckley LJ quoted in paragraph 103 (b) above and with my emphasis added that the owners of Eastbach Court did not make:

"…it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement."

Therefore I reject the submission of Mr. Blohm that the owners of Eastbach Court had abandoned their claim to a right of way down the right-hand side of the Track and I have concluded that this right of way still remains in force.

XIV Issue (iii).If the claimants still retained the rights of way to the right-hand side of the Track, is the appropriate remedy for the claimants injunctive relief or damages.

(i) Introduction

Miss Bleasdale contends that the claimants are entitled to an injunction restraining the defendants from interfering with their right of way over the right-hand side of the Track because the claimant have succeeded in establishing their right of way to the right-hand side of the Track.

Mr Blohm submits that the appropriate remedy on the facts of this particular case is an order for the payment of a small sum by way of damages in lieu of an injunction. He stresses that when he was giving his evidence, the first claimant was asked about how important it was to have access to the right-hand side of the Track. The first claimant seemed from his evidence to be uninterested in using this part of the Track and when I asked him about it, he accepted with impressive frankness that access to the right-hand side of the Track "is of no importance to me". None of the other claimants gave evidence and so I conclude that the first claimant was speaking for the other claimants when he made that concession which sharply contrasts with his wish to use the left-hand side of the Track.

(ii) The problem

At the start of the hearing last month, I indicated that it would not be possible for me in the absence of any evidence before me to determine what level of damages should be awarded if I concluded that damages in lieu of an injunction were appropriate. At no time did I understand Ms Bleasdale to argue to the contrary or to request an adjournment or seek to adduce evidence in relation to the damages in lieu issue.

At the hearing last month, my understanding was that it was always envisaged that I would hear arguments on whether damages should be awarded in lieu of an injunction. There was very limited argument about the damages in lieu issue as the submissions of counsel were focussed on other issues. Indeed in the claimants' detailed closing submissions at the end of the trial , there was a brief mention of the issue of whether damages should be awarded in lieu of an injunction but it was pointed out helpfully by Miss Bleasdale that an important judgment of the Court of Appeal was awaited in Regan v Paul Properties DPF Limited which dealt with the damages in lieu issue.

So I deferred hearing full submissions on whether damages should be awarded in lieu of an injunction until that judgment was delivered After the judgment in Regan was handed down ([2006] EWCA Civ 1319), I was no longer sitting in Bristol where the trial of this action had taken place and I invited further written submissions from counsel to deal with the issues of whether damages should be awarded in lieu of an injunction in the light of the Regan judgment.

Counsel then helpfully put in further written submissions on that issue but at no time did I understand that the claimants wished to put in any further or additional evidence on the damages in lieu issue whether the light of that decision or for any other reason. Indeed I could not discern any application to that effect in the very full written submissions of the claimants. I duly sent out the draft judgment and then received an application for permission to appeal from the claimants' counsel in which it was contended that I had prevented or precluded the claimants' counsel from adducing evidence on the damages in lieu issue.

(iii) The next hearing

I must state that I was very surprised by these assertions as I did not believe that I had made any order or that I had in any other way prevented or precluded the claimants' counsel from adducing evidence on the damages in lieu issue. I then suggested to counsel when judgment was handed down that the appropriate course would not be to carry out an investigation to determine whether the claims of the claimants' counsel were justified but instead to hold a further hearing at which the claimants would be permitted to call the evidence which they contend that they would have called if they had not considered themselves prevented or precluded from doing so. The basis of this approach was that it was in accordance with first the overriding principles of the CPR and second the reasoning of the Court of Appeal in the well known cases reported under the title of English v Emery Reimbold & Stirk Limited [2002] 1 WLR 2409 at paragraph 24.

Both counsel agreed that this course should be adopted and orders were then made for the service of further evidence so that at the next hearing evidence can be adduced on whether damages should be awarded in lieu of an injunction and also (if damages are to be awarded) the appropriate level of such damages. It was also agreed that in consequence I should not now deal with the costs of the hearing. I also made directions for the next hearing.

XV. A suggestion for the future.

It is sad that the first claimant and the defendant, who are neighbours and who both seem to be sensible and impressive people have been compelled to spend time and money fighting this matter in court and seem poised to spend more in the future. I feel obliged to invite both of them now to stand back and to consider as a matter of urgency if this matter could now be resolved amicably without a further hearing, which might well entail instructing experts and incurring further substantial costs. With that in mind, I now put repeat a suggestion, which I made when the draft judgment was circulated which was that I hope that they will both consider with care.

I am very conscious that established legal principles might at the next hearing possibly compel me to reach a decision by which the claimants would be receiving compensation for a right which is in the words of the first claimant of "no importance to me", while the claimants are unable to exercise a right to use the left-hand side of the Track which the claimants desire for what I believe to be fairly limited purposes. The parties might well wish to consider it would be sensible for the claimants not to pursue their claim in respect of the right-hand side of the Track and in return the defendant would agree to allow the claimants to have a right of way to the left-hand side of the Track, say for residential purposes and for agricultural purposes as I cannot believe that the exercise of this right would inconvenience the defendant or at lease seriously.

XVI. Conclusions.

For the reasons which I have sought to explain, the claimants' claim to a right of way in respect of the left-hand side of the Track down to the road must be dismissed but the claimants are entitled to a right of way in respect of the right-hand side of the Track of the kind that I have indicated. As I have already explained, all individuals have a right to use the Track on foot because the Track is a public footpath. There will have to be a further hearing to determine if the claimants are entitled to an injunction or damages in lieu in respect of their right to use the right-hand side of the Track

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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Odey & Ors v Barber [2006] EWHC 3109 (Ch) (29 November 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/3109.html Cite as: [2006] EWHC 3109 (Ch), [2008] Ch 175, [2008] 2 WLR 618, [2007] 3 All ER 543

		Winchester Combined Court Centre The Law Courts Winchester S023 9LS
		29 November 2006