REF/2011/0056

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

NORMAN ALAN MATTHEWS

ELIZABETH ANNE MATTHEWS

APPLICANTS

and

 

HEREFORDSHIRE COUNCIL

RESPONDENT

 

 

Property Address: Foxhalls Barn, Bringsty Common, Bringsty WR6 5UN

 

Title Number: HE8170

 

Before: Mr Rhys Deputy Adjudicator to HM Land Registry

 

Sitting at: Victory House, 30-34 Kingsway, London WC2B 6EX

 

On: Monday 8^th August 2011

 

 

Applicant representation: Mr Matthews in person

 

Respondent representation: Mr Peter Crilly of Herefordshire Council Legal Services

 

 

 

___________________________________________________________________________­

 

D E C I S I O N

___________________________________________________________________________

 

KEYWORDS – Acquisition of prescriptive right of way – servient land a common – claim that servient owner consented to the user rejected – claim that the user was by force rejected

 

CASES REFERRED TO IN DECISION -

Eaton v Swansea Waterworks (1851) 17 Q.B 267

Dalton v Angus, (1881) 6 App Cas 740

Newnham v Willison (1987) 56 P & CR

Hanning v Top Deck Travel (1993) 68 P & CR 14

R v Oxfordshire CC, ex p. Sunningwell Parish Council [2000] 1 AC 335 at pp.350-351

Smith v Brudenell-Bruce [2002] 2 P & CR 51

R (Beresford) v Sunderland City Council [2003] 2 AC 889.

Bakewell Management Limited v Brandwood [2004] 2 AC 519

 

 

 

 

1. Mr and Mrs Matthews are the registered proprietors (under title number HE8170) and the occupiers of Foxhalls Barn, Bringsty Common, Bringsty, Worcestershire (“Foxhalls Barn”). Foxhalls Barn is situated just to the north of the farmhouse known (and hereinafter referred to) as “Foxhalls Farmhouse”. Mr Matthews originally acquired Foxhalls Barn by a Conveyance dated 4^th August 1988 from a Mr Brodie “TOGETHER WITH and so far as the Vendor can convey the same such rights of way over the track coloured brown on the said plan as have hitherto been exercised by the Vendor and his predecessors in title for the benefit of the said property”. The Conveyance was supported by a Statutory Declaration made by the Vendor, who declared that the track had been used since at least 1954 “as of right” for all purposes connected with the use of the barn. The track in question is part of a network of tracks running across Bringsty Common. The “track coloured brown” runs for some considerable distance more or less southwards from the A44 trunk road. Just to the north and west of Foxhalls Farmhouse it takes a sharp turn to the east for a short distance, running alongside the northern boundary of Foxhalls Barn and giving access to it. Where the track takes the sharp easterly turn it appears to enter a forecourt or drive immediately to the north of Foxhalls Farmhouse. The track continues southwards through this area and past Foxhalls Farmhouse on its east. The track also continues past the northern boundary of Foxhalls Barn and joins another track that runs east-west across Bringsty Common.

 

2. It appears, from research carried out by Mrs Phyllis Williams, a local historian, that Foxhalls Barn and Foxhalls Farmhouse were shown in the 1887 edition of the Ordnance Survey County map as comprised within a single property, numbered 424 on the map. I do not think that this has ever been challenged by the Respondent. Indeed, even in the absence of this evidence, I would have readily inferred that Foxhalls Barn and Foxhalls Farmhouse were part of a single unit, comprising the farmer’s residence, outbuildings and agricultural buildings such as the barn itself. Mr Matthews, who appeared before me, believed that the farmhouse had been hived off from the farmland in the 1970s. He estimated that the farmhouse and buildings (including Foxhalls Barn) were “anecdotally” of 17^th Century origin. Prior to 1988, Foxhalls Barn had not been used for residential purposes. It was Mr Matthews who converted the barn into a single private residence.

 

3. By an application in Form AP1 dated 6^th August 2010, supported by a Statement of Truth (ST4), the Applicants applied to register in the Property Register relating to Foxhalls Barn the benefit of a right of way over “the access track-ways coloured blue” on the plan annexed to the ST4. The track-ways coloured blue are identical to the “track coloured brown” as shown on the 1988 Conveyance plan, to which I shall refer as “the Accessway”. The claim to an easement was based on alleged long user. The Accessway is part of Bringsty Common, which is an unregistered title owned by the Respondent Council. The Respondent objected to the application, claiming that the use of the Accessway was permissive. Specifically, that consent or permission had been given by the Chief Executive of the Council in the fifth paragraph of his letter to the Applicants dated 10^th October 2001. The Accessway represents the only means of vehicular access to Foxhall Barn and, for the greater part of its length, Foxhall Farmhouse. There is no dispute that the Applicants have used this Accessway, for all purposes in connection with the enjoyment of Foxhalls Barn as a private residence, since late 1988.

 

4. This whole sorry story starts in the year 2000. In June of that year the County Secretary and Solicitor prepared a report to “Cabinet” “to propose a policy to regulate vehicular access and parking by residents living on council owned common land.” The underlying reason was that after the Court of Appeal decision in Hanning v Top Deck Travel (1993) 68 P & CR 14 it seemed that prescriptive rights of way could not be acquired over common land. The general thrust of the County Secretary’s advice was that “no charges should be levied for continuing reasonable existing access by residents…..”. The Paper attached as Appendix A to the Report recommended that in cases where at least 20 years’ user could be established, the Council should grant formal easements at a nominal cost only, save where the value of the easement exceeded £10,000 and the Secretary of State would not consent to a grant at a undervalue. A number of different categories of user were established, including a category of “less than 20 years’ user prior to 1st April 2000”, in relation to which the Council would consider each case on its merits. It seems that there were public meetings in the area with regard to the issue. On 14^th December 2000 Mr George Thompson, the Council’s Land Agent, wrote to the Applicants with a plan “showing access to your property, as we believe it to be.” There is no other explanation, and no enclosure other than the plan itself. Correspondence then ensued, and on 8^th January 2001 Mr Thompson sent a revised plan, showing the stone track leading to Foxhalls Farmhouse and Foxhalls Barn. This followed the route of the Accessway.

 

5. On 24^th August 2001 the Applicants wrote to Mr Thompson, thanking him for the revised plan. They continued: “We think it sensible to purchase a formal easement, from the Council, concerning this access. Would you please set this in motion for us? We understand the charge for preparing the easement to be £295, and are holding this amount ready for payment on receipt.” Mr Thompson replied on 31^st August 2001 confirming that the cost of preparing the documents was £295. He continued, ominously: “Please could you confirm at what date planning permission was granted for the conversion of the barn to residential use, so that the category can be confirmed.” In a further letter dated 10^th September 2001 he added: “There is a problem in that your access was agricultural until 1988 and then became domestic, which does not give you the 20 years to bring you into the Council Policy on access, and every case viewed on it’s (sic) merits. I am in discussions with the County Solicitor concerning the matter but there will have to be a valuations (sic) of the access and agreement that the Councillors are happy for the access to continue to be used as a domestic access.” This was followed by a letter dated 10^th October 2001 from the Chief Executive of the Council to the Applicants – this is the letter specifically relied upon by the Council in its objection to the application, as constituting the grant of consent to the continued use of the Accessway. In this letter, the Chief Executive states that since the use of Foxhalls Barn for residential purposes commenced in 1988, a prescriptive easement could not have been acquired since 20 years had not elapsed. Accordingly, “any request to be granted an easement would have to be considered on its merits. If the Council does agree to enter into an agreement to grant an easement then it needs to consider what the payment should be. The Council has a duty….to get the best consideration…..” The fifth paragraph of this letter reads as follows: “It is important that I emphasise that the Council has at no stage sought to prevent you from obtaining access to your property. The Council has, however, given you notice that it does not believe you are entitled to exercise such easement.”

 

6. On 18^th December 2001, the County Secretary and Solicitor wrote to the Applicants, against the background of their complaint about the Council’s conduct. The letter contains the following passages: “…I must re-emphasise that the Council has taken no action, nor does it plan to take any action, to prevent you from obtaining access to your property. If you wish to regularise the position, it will be necessary for the Council to grant you a new easement for residential access….. However, if it assists, I can confirm that the Council will provide a licence for you to continue using the residential access pending negotiations for the easement.” The Applicants responded to this letter on 4^th January 2002, in the following terms: “We sought, by letter on 24^th August 2001, to purchase a deed of easement from the Council, according to published Policy for existing residents, for the administrative cost alone of £295. We have no interest in your offer of a licence to continue using the access here pending negotiations for the easement, as you put it. We believe that we have access as of right. You deny that we have that right; your denial creates major, adverse financial implications for us; has put us under acute strain; and distracts us from our family and working lives. We have asked what authority you are relying upon for your apparent assertion that we have obtained no easement through prescription because the access was agricultural prior to 1988.” The Applicants then quote extensively from the Statutory Declaration of Mr Brodie referred to above, and go on to say: “We are further advised that, given the existence of Mr Brodie’s Declaration and conveyance of rights of way as above, the Council, in denying that we have right of access, can only be thinking of claiming excessive user (which is not admitted)…..We are advised, further, that an increase in the frequency of use of a right of way, or its use by more persons, neither of which is admitted, will normally amount to excessive user…..”

 

7. This letter was answered by the County Secretary and Solicitor on 21^st January 2002. She rejected the argument that the Statutory Declaration establishes a right of way for residential purposes, and stated that she was not alleging excessive user. She stated that “The Council is not seeking to prevent access to your property and has offered to confirm this by way of a Licence.” She invited the Applicants to provide “any evidence of residential use of the property before 1930”. After further correspondence, the Applicants wrote on 17^th June 2002, rejecting the Council’s offer of an easement over the Accessway for a consideration of £5,500, stating that “….the Council is not entitled to such a sum. We remain at an impasse.” They also enclosed a copy of a 1904 Ordnance Survey map, showing Foxhalls Farmhouse and Foxhalls Barn as included in a single hereditament. At that time, it seems that the track over the common entered the fenced curtilage at one point, just to the west of the farmhouse, thus serving both house and barn. This issue was picked up in the Council’s letter dated 16^th July 2002, the writer (Mr Crilly) denying that the Applicants had been “sent on a wild goose chase”. He continued: “The evidence you have provided relates to ownership but not access. As I explained in my letter of 8^th July the point was to try to find evidence that the access to the barn and the house was the same, so that you could argue that the barn took the benefit of the residential access user. However, the County Land Agent has sent me photographs which appear to show the house and barn with separate accesses.” In this letter, the writer accepts that the electoral roll evidence provided by the Applicant established that “Foxhalls” was in the ownership of Mr Burraston prior to 1930. Mr Burraston was Mr Brodie’s predecessor in title as owner of Foxhalls Barn (see the Statutory Declaration). Between 1954 and 1976 at least, therefore, it can be demonstrated that Foxhalls Farmhouse and Foxhalls Barn were in common ownership. On 22^nd August 2002 the Applicants wrote to the County Secretary. The following passage is included: “Should there be nothing conclusive in our hands by 30^th August 2002 at the latest, however, we will suppose that the Council and we remain deadlocked on the question of the basis of our access to our home.”

 

8. There was further correspondence between the Applicants and the Council in late 2003 and early 2004. It seems that an inconclusive meeting had taken place in October 2003, on a without prejudice basis. In his letter dated 15^th January 2004, Mr Crilly, the Principal Lawyer who seems to have been handling the dialogue with the Applicants, introduced a new element to the debate. He reiterated the view that the only prescriptive right of way that could have been acquired in relation to Foxhalls Barn would have been limited to agricultural use. However, since the barn had been converted to residential use in 1988 “I also consider that any agricultural access rights would be held to have been abandoned when the barn was converted to a dwelling.” Accordingly, the Council’s view would appear to be that Foxhalls Barn enjoyed no rights of access whatsoever, and was legally landlocked. On 9^th March 2004 there was a further letter from the County Secretary and Solicitor. The final paragraph of her letter reads as follows: “Against that background, I am afraid that I am unable to enter into any further correspondence in relation to this matter unless it raises new matters of fact or law we have not already considered.” On 5^th April 2004 solicitors instructed by the Applicants sent Mr Crilly a copy of the House of Lords decision in Bakewell Management Limited v Brandwood [2004] 2 AC 519, as reported in the Times newspaper. This decision, of course, overturned Hanning v Top Deck Travel and made it clear that it was possible to prescribe for vehicular rights of way over a common. In his reply, the writer stated that he might need to take further advice from Counsel to discuss the implications of the decision, but “…I am not sure if the decision changes anything in relation to your clients’ request for the grant of a Deed of Easement. However, I do think that the Policy Statement should be reviewed in the light of the decision and in the meantime would welcome your view as to how your clients may have established rights by prescription and/or lost modern grant.”

 

9. There was no further contact between the Applicants and the Council until February 2010. In the meantime the Applicants continued to use the Accessway as before, for all purposes connected with their occupation of Foxhalls Barn. On 26^th February 2010, Mr Matthews notified the Assistant Chief Executive of the Council that it was his intention to apply to the Land Registry to register an easement over the Accessway for the benefit of Foxhalls Barn. He stated that the easement had been acquired by virtue of 20 years’ user commencing in 1989. He asked the Council to confirm that there would be no objection. On 22^nd March 2010 a lawyer in the Chief Executive’s office replied, stating that “Any use of the access has been with the Council’s consent or permission.” On being asked for particulars of the consent or permission, the same lawyer, in his reply dated 9^th April 2010, referred Mr Mathews to the letter dated 10^th October 2010, quoted above. The Council’s position – that the use of the Accessway was permissive – was reiterated in a letter dated 15^th April 2010. Reference was made to the letter dated 18^th December 2001, in which “the former County Secretary and Solicitor informed you….that the Council did not plan to prevent you using the access and that it would provide you with a licence to continue using it pending negotiations for the requested easement.” Further inconclusive correspondence ensued, until eventually on 6^th August 2010 the instant application was made to the Land Registry. The reference to the Adjudicator was made on 18^th January 2011.

 

10. The Applicants’ Statement of Case puts forward a conventional claim to a prescriptive easement based on 20 years’ user since 1989. The Respondent’s Statement of Case raises three issues. First, alleged permission. Secondly, the allegation that the Applicants requested the Respondent to grant a right of way, which defeats a claim to a prescriptive right. Thirdly “User of the track for the purpose of establishing a right for the benefit of the property would have been contrary to the Respondent’s objection and such user would, in terms of the legal test, have been by force.” Neither the second nor the third point was raised in the original letter of objection, or at any stage prior to the service of the Statement of Case, but I do not think this precludes the Respondent from relying on them. The Applicants have sought to meet these points by way of a Reply to the Statement of Case. By the same token, the fact that the basis of the application in AP1 was a prescriptive easement acquired after 1989 does not, in my view, preclude me from considering whether a prescriptive easement may have been acquired at some earlier stage.

 

11. The Council asked for the reference to be disposed of without an oral hearing, but this was refused, and the hearing took place before me. Mr Crilly, familiar from the earlier correspondence, appeared for the Respondent. Mr Matthews represented himself. He is not a lawyer. There was no evidence beyond the documentation disclosed by the parties.

 

12. The principal issue is, of course this: can the Applicants establish a prescriptive right of way for all purposes over the Accessway? They have made the application based on 20 years’ user since 1989. As I have said, however, I do not think I am bound to limit the enquiry to that precise period of time. It is possible that they may be able to establish a different period of 20 years’ user. If they are limited to the 20-year period commencing in 1989, two sub-issues present themselves. First, was the user permissive? Secondly, was the user by force? There is no dispute between the parties that, in order to establish a prescriptive right of way, the alleged dominant owner must show 20 years’ uninterrupted use as of right. The expression “as of right” arises only in relation to prescription under the Prescription Act 1832 and not in relation to the doctrine of lost modern grant, but has been held to have the same meaning as the expression “nec vi, nec clam, nec precario” – that is not by force, stealth or permission from the owner of the servient tenement (see R v Oxfordshire CC, ex p. Sunningwell Parish Council, [2000] 1 AC 335, at pp.350-351; R (Beresford) v Sunderland City Council [2003] 2 AC 889.

 

13. My conclusions are as follows. It is very likely that Foxhalls Farmhouse, together with Foxhalls Barn and the surrounding buildings, was enjoyed as a single holding or hereditament probably for several hundred years. By 1887 at the latest they were shown as one single unit on the Ordnance Survey map. This is confirmed by the 1904 Ordnance Survey map. It is apparent from the Statutory Declaration of Mr Brodie, and the electoral register, that at least between 1954 and 1976 Mr Burraston owned the combined unit – house and barn – and used the track for vehicular access. In my judgment, the dominant tenement consisted of the house, the barn and associated outbuildings. The sole means of access to this combined unit was over the Accessway, which served all the buildings including the farmhouse and barn. It may be that close to the buildings there was more than one entrance from the Accessway, but I do not see that this makes any material difference. The evidence contained in Mr Brodie’s Statutory Declaration refers to vehicular use since the 1950s – it is very probable that vehicular use to the combined unit would have existed for many years prior to that. The access was for a variety of purposes – residential and agricultural. In my judgment, a prescriptive vehicular easement will have been acquired for at least those purposes, probably long before the legal title to the farmhouse and barn was divided, but in any event by 1976. Accordingly, the entire unit is to be treated as the dominant tenement, and the benefit of the right of way for all these purposes (including residential purposes) will have been acquired by each and every part of that dominant tenement. It follows that when title to Foxhalls Barn was severed from the farmhouse, each part of the unit retained the full benefit of that right of way. Accordingly, even though Foxhalls Barn had not separately been used as a residence prior to 1988 or 1989, it had an established prescriptive right of way for residential purposes as part and parcel of the larger dominant tenement. It seems to me that the Council’s response to the Applicant’s claim, as stated in the letter dated 10^th September 2001, was based upon a fundamental misconception, in that it failed to recognise that Foxhalls Barn had the benefit of the right of way acquired by the combined residential and agricultural hereditament. If this analysis is correct, the right had been acquired long before the correspondence with the Council which commenced in December 2000, and therefore issues as to vi and precario are irrelevant.

 

14. If I am wrong in this conclusion, and no established right had been acquired before 2000, it is necessary to consider whether the Applicants have acquired a right of way based on their user since 1989. Since it is not disputed that they have in fact enjoyed 20 years’ user, with and without vehicles, in connection with their enjoyment of Foxhalls Barn as a dwelling, the only question is whether that user has been enjoyed “as of right”. This requires me to consider the specific issues raised by the Respondent as objections in its Statement of Case. I shall consider the points in turn.

 

15. The Council’s first objection is this: “The Respondent permitted the Applicants to use the track on the basis that the permission was personal to them”. The Council’s argument is spelled out as follows: “This is not the case of the Respondent having tolerated the creation of a prescriptive right. The Respondent made it clear that, without a payment, it would not grant the Applicants a permanent right for the benefit of the property but that it would grant the Applicants a personal licence pending negotiation of a permanent property right. The fact that the Applicants considered they did not need permission to use the track did not mean that permission was not given.” The Respondent relies on two specific instances of permission. First, a sentence in the fifth paragraph of the letter dated 18^th December 2001: “However, if it assists, I can confirm that the Council will provide a licence for you to continue using the residential access pending negotiations for the easement”. Secondly, in the letter of 21^st January 2002, as follows: “The Council is not seeking to prevent access to your property and has offered to confirm this by way of a Licence.”

 

16. I am afraid that I cannot agree that these letters constitute sufficient permission in the accepted sense. The context was that the Applicants were openly using the Accessway, claiming that they were entitled to do so by virtue of a prescriptive easement. The letters dated 18^th December 2001 and 21^st January 2002 merely offer to provide a personal licence. They do not purport to grant an immediate licence, or give permission. The language is executory: “…..the Council will provide a licence….”, “The Council …….. has offered to confirm this by way of a Licence.” The Applicants’ response was unequivocal – “We have no interest in your offer of a licence to continue using the access here pending negotiations for the easement, as you put it. We believe that we have access as of right”. As a matter of construing the actual words relied upon by the Council, therefore, I cannot see that they amounted to permission, merely the offer of permission. In any event, it strikes me as a somewhat absurd argument that “The fact that the Applicants considered they did not need permission to use the track did not mean that permission was not given.” I cannot see that the Respondent is able unilaterally to convert the Applicants’ open user of the Accessway, on the express basis that they had an established right to do so as owners of Foxhall Barn, into permissive use merely by offering to grant them a personal licence “pending negotiations”. In a sense, this discussion is more relevant in respect of the “force” argument dealt with below. A landowner in the Respondent’s position, faced with an unequivocal claim to a legal easement, and a refusal by the dominant owner to accept the offer of a licence, cannot in my view prevent the continuing user from being “as of right” merely by offering to grant a personal licence. Indeed, even if a purported personal licence had been granted, and sent to the Applicants, I cannot see that this could be regarded as permission in the face of the Applicants’ refusal to accept the need for permission.

 

17. The second ground for the Respondent’s objection is this: “The Applicants requested the Respondent to grant a right of way for the benefit of the property and this defeats a claim to the same right by prescription.” This is presumably a reference to the Applicants’ letter dated 24^th August 2001 and the following passage in it: “We think it sensible to purchase a formal easement, from the Council, concerning this access. Would you please set this in motion for us? We understand the charge for preparing the easement to be £295, and are holding this amount ready for payment on receipt.” The context in which this request was made has been explained earlier in this Decision. The Council’s Policy Statement dated 1^st June 2000 expressly recognised that full legal easements had been acquired over the common by long user. Category 5(a), for instance, refers to rights acquired prior to 1926 or 1930, and 5(b)(i) refers to rights acquired prior to 1^st April 2000. In this event, “……the Council will accept Prescriptive Rights have been established and formally authorise use if requested, by the grant of an access easement at no charge other than to cover its administrative costs.” When the Applicants applied for a “formal easement” at a cost of £295, it was manifest that they considered themselves to have the benefit of an established prescriptive easement, and merely wished to avail themselves of the offer of a formal document recording the easement. It is apparent from the Council’s letter dated 9^th March 2004 that the owners of some 27 properties had proved the acquisition of prescriptive rights of way prior to 1926/1930, and a further 29 for the period expiring on 1^st April 2000. Formal easements have been granted to all of these owners. The execution by the Council of formal documentation did not effect the grant of new rights – the purpose was to record the existence of established rights. I do not therefore accept that the request in the letter of 24^th August 2001 makes any difference to the validity of the Applicants’ claim. In any event, I do not consider that such a letter would prevent the Applicants’ user from continuing “as of right”. Unless there is some estoppel alleged (there is not), or the continued user is said to be by stealth (it is not), I question the relevance of the Applicants’ request for a formal easement. The Council could have been in no doubt that the Applicants were claiming an established right of way. There may of course be cases where the request for an easement could lull the servient owner into a state of acquiescence, but this is obviously not one of them. This ground of objection fails.

 

18. That leaves the issue of force. “User of the track for the purpose of establishing a right for the benefit of the property would have been contrary to the Respondent’s objection and such user would, in terms of the legal test, have been by force.” This contention appears to be flatly inconsistent with the first ground of objection – indeed, the only objection notified to the Land Registry – namely the allegation that permission was given to the Applicants to use the Accessway. The Respondent has tried, I think, to evade the charge of inconsistency by introducing a subtle distinction between user of the track “on the basis that the permission was personal to them” and “User of the track for the purpose of establishing a right for the benefit of the property….”. This seems to me to be an unrealistic distinction – either the use of the track was permissive, or it was not. Nevertheless, I can read the grounds of objection as alternatives, and propose to do so. Having found that permission was not given, was the user by force?

 

19. The law on this issue was explored to some extent by the Applicants in their Reply to the Respondent’s Statement of Case, and in their Skeleton Argument. In Newnham v Willison (1987) 56 P & CR 8, Kerr LJ, with whom Eastham J agreed, approved a statement in Megarry & Wade, Law of Real Property, 5^th ed., at p.870, that forcible user extended to user which is contentious or allowed only under protest. The claim in that case was, for reasons which are unclear, brought only under the Prescription Act 1832, and not for a lost modern grant, although the facts as found would appear to have supported the latter claim. The question which arose was whether the user of a ‘swept curve’ was contentious before June 27, 1983, a year before the action was begun. The Court of Appeal concluded that it was contentious because on 23 June 1983 solicitors for the Plaintiff’s predecessor in title had written to one of the Defendants that they and the Plaintiff were becoming somewhat concerned with various obstructions that were being placed at the relevant bend which restricted access by large vehicles which needed the ‘swept curve’, and asked for their removal. The court concluded that the letter created a contentious situation which meant that user from that time would have been by force and that the claim under the Prescription Act had to have been brought within a year of that letter. It might have been thought that the deliberate obstruction of the ‘swept curve’ by the Defendants was a relevant obstruction and that any user after that time in the face of that obstruction was by force, so that the year in question would have run from the date either of that obstruction or of its presenting a problem to the Plaintiff or his predecessor in title. However the judge at first instance had concluded that they were no more than fluctuating interruptions and did not have the degree of continuity to bring it home to the owner of he dominant tenement that the right was being seriously challenged.

 

20.  At p.19, after reviewing various authorities, Kerr LJ concluded that “what these authorities show is that there may be “vi” – a forceful exercise of the user – in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word “vi” or “force”, such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner.”

 

21.  Kerr LJ goes on to say that the letter of 23 June 1983 “clearly shows that there was then an increase in a state of already existing contentiousness. From about March 1983 or thereabouts, and then increasingly so thereafter, the [Defendants] were making it perfectly clear, first to [the Plaintiff’s predecessor in title] and then to [the Plaintiff], that they were objecting to the way in which the turn from the drive to the track was being used.” In effect therefore, Kerr LJ was saying that the judge at first instance was wrong in concluding that the Defendants’ obstructions did not have the degree of continuity to bring it home to the owner of the dominant tenement that the right was being seriously challenged.

 

22. Newnham v Willison, and the authorities referred to in it, were considered by Pumfrey J in Smith v Brudenell-Bruce, [2002] 2 P & CR 51. He concluded in paragraph 12 of his judgment, at p.59, that Newnham v Willison was an example of an application to particular facts of the principles stated in Dalton v Angus (see below) and Eaton v Swansea Waterworks (1851) 17 Q.B 267, and continued:

“It seems to me a user ceases to be ‘as of right’ if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner’s knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.”

Mr Crilly, for the Respondent, relied heavily on this passage in the judgment.

 

23. Although Pumfrey J expressed himself as having felt considerable doubt about this question, he concluded that the user in the case before him was contentious, as from the date of a letter in which the owner of the land had written to the person claiming the right of way, informing him that the property was now closed to him and to all his household, that the ‘Private Road’ sign applied to him and the private road was ‘closed to ALL members of your household, permanently. All those who are found walking or driving along it will be turned round, with minimal ceremony. And permanently.’ This was the second letter to have been written. The first, a few weeks earlier, was in almost as strong language.

 

24.  The judge also referred to Fry J’s “classic exposition of the principles uniting the methods of acquisition of an easement other than by express grant” in Dalton v Angus (1881) 6 App Cas 740, a case concerned with a claim to a prescriptive easement of support for a building. Fry J had opined at p.773 that the “ …. whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to 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, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest. It becomes then of the highest importance to consider of what ingredients acquiescence consists. In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1^st, the doing of some act by one man upon the land of another; 2ndly the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done…. I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain, both from reason, from maxim, and from the cases. As regards the reason of the case, it is plain good sense to hold that a man who can stop an asserted right, or a continued user, and does not do so for a long time, may be told that he has lost his right by his delay and his negligence, and every presumption should therefore be made to quiet a possession thus acquire and enjoyed by the tacit consent of the sufferer. But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb.

Qui non prohibit quod prohibere potest, assentire videtur [1] (Co.Inst 2^nd part Vol 1 page 305…..Contra non valentem agere, nulla currit praescriptio [2] (Pothier, Traite des Obligations, Part iii, chap.viii, art 2,2…) are two maxims which shew that prescription and assent are only raised where there is a power of prohibition.

And again, the cases ….have established a principle which was stated by Willes J “In general a man cannot establish a right by lapse of time and acquiescence against his neighbour, unless he shews that the party against whom the right is acquired might have brought an action or done some act to put a stop to the claim without an unreasonable waste of labour or expense.”

 

25. The question that I must answer, therefore, is whether the Applicants’ user became contentious, within the meaning of the above authorities, at any point during the post-1989 period of prescription relied upon. I must apply to the facts of this case the words of Pumfrey J relied on by the Respondent, namely: “A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.”. What did the Respondent do in order to “contest and to endeavour to interrupt the user”? Certainly, the correspondence from the Council between 2001 and 2004 does challenge the Applicants’ claim to an established easement. Indeed, it denies the existence of any easement – whether for residential or agricultural purposes (see the letter of 15^th January 2004). It also makes clear that no easement will be granted without a payment from the Applicants, varying in amount from time to time during the course of the correspondence, but always more than nominal. At the same time, the Applicants unequivocally stated that (a) they had an established easement for all purposes, (b) the Accessway represented their only means of access to their home, (c) they refused to pay anything more than a nominal sum for the grant of a formal deed, (d) they were not prepared to accept a personal licence, even on a temporary basis, since they had an existing right. In the absence of some positive prohibition on the part of the Council, or total capitulation, the Respondent must have been aware that the Applicants would continue to use the Accessway. Indeed, on more than one occasion the Council stated, in terms, that nothing would be done to interfere with the Applicants’ use of the Accessway.

 

26. Was it enough, in these circumstances, simply to object to the user, but otherwise to take no steps to bring that user to an end? In my judgment, it was not. I can well understand that the Council might have been reluctant to take active steps to prevent the Applicants’ use of the Accessway. Such a course of action would doubtless attract considerable local odium. Given that some 56 local householders had been granted formal easements over Bringsty Common, it might appear that the Applicants were being singled out for unfair treatment. It thus found itself in an unenviable position. However, the logic of the Council’s stated position, vis a vis the Applicants, demanded that it should take some active step to prevent use of the Accessway. If the Council was correct in its view, the Applicants were trespassers on the Accessway every time they used it, certainly with vehicles. I can understand that it could be regarded as disproportionate to prevent the Applicants from using the Accessway at all, whether on foot or with vehicles, thus preventing the ability to access their home. However, I fail to see how it could be regarded as disproportionate to prevent vehicular use of the Accessway. The Council had ample resources at its disposal to bring injunction proceedings, for example, or perhaps install a locked gate or gates so as to prevent the Applicants from obtaining vehicular access to Foxhalls Barn. They could have demanded a fee for the use of the Accessway or otherwise enforced their alleged rights. Obviously the Council had both the ability and the means to prevent further use of the Accessway. What it lacked, however, was the will to do so. It did not, at any stage, even request the Applicants to stop their use of the Accessway with vehicles: quite the opposite. Given the tenor of the authorities cited above, I have no hesitation in holding that the Respondent failed to render the continued use of the Accessway contentious. The situation here may be contrasted with the facts in Smith v Brudenell-Bruce itself, where the servient owner wrote two extremely robust letters, describing the dominant owner as “persona non grata” and threatening to physically remove him and his invitees from the private road if seen there. Even on the basis of this unequivocal demand that use of the private road should cease, Pumfrey J “felt considerable doubt about the question” whether the subsequent user was contentious. To my mind, that highlights the complete failure on the part of the Council to “endeavour to interrupt” the Applicants’ user in any way, even if it did formally “contest” it. Accordingly, this ground of objection also fails.

 

27. I therefore conclude that the Respondent has failed to make out its objections to the Applicants’ application, and I shall direct the Chief Land Registrar to give effect to the application, by noting on the register the existence of a right of way over the Accessway for the benefit of Foxhalls Barn, with or without vehicles, and for all purposes. Costs should follow the event, in my view. As litigants in person, the Applicants are restricted to reimbursement for out-of-pocket expenses incurred since the date of the reference. If they wish to pursue such a claim, they must lodge a statement of these costs, with supporting vouchers (if any) within 7 days of the date of this decision, and serve copies on the Respondent.

 

Dated this 11^th day of August 2011

 

 

 

 

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY