ON APPEAL FROM THE HIGH COURT OF JUSTICE
SWANSEA DISTRICT REGISTRY
HIS HONOUR JUDGE MILWYN JARMAN Q.C.
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE PATTEN
| (1) THE ESTATE OF WILLIAM BRINLEY LLEWELLYN deceased
(2) SARAH ANN MARINA LLEWELLYN
|- and -
|(1) HELEN SANDRA LOREY
(2) STEPHEN LOREY
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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for the Appellants
James Thom Q.C. and John Brookes (instructed by Watson Farley & Williams LLP)
for the Respondents
Hearing date: 19 January 2011
Crown Copyright ©
Lord Justice Lloyd:
The relevant land
The title to Abergelli Farm and to Llety'r Morfil
Abergelli Colliery: up to about 1980
"It is likely, in my judgment, that colliery waste was steadily commercially exploited from the closure of the colliery until the end of the 1970s, although the Morris Brothers contract was entered into in 1973. That shows the commercial value of the mineral waste. Photographs show excavations in 1960 and Mr Arwel Jones was using such waste to surface the lane in 1983."
Bell Commercials: from 1984
The use of the southern route relied on by the Claimants
i) Use in connection with the colliery operations from 1931 until 1960 when the colliery closed;
ii) Use after that in connection with colliery waste until the late 1970's;
iii) Use by Bell Commercials for more than 20 years from 1984.
"In my view it is possible to derive from the decision of this Court in Pugh v Savage the following principles applicable to cases where the servient land is, or has been, subject to a tenancy. First, in a case where the grant of the tenancy of the servient land predates the user by or on behalf of the owner of the dominant land, it is necessary to ask whether, notwithstanding the tenancy, the freehold owner of the servient land could take steps to prevent user during the tenancy. The answer to that question is likely to turn on the terms of the tenancy. Second, if (notwithstanding the tenancy) the owner of the servient land could take steps to prevent the user, then it is necessary to ask whether (and, if so, when) the freehold owner had knowledge (actual or imputed) of that user by the owner of the dominant land. The fact that the freehold owner of the servient land was out of possession when the user began and throughout the term of the tenancy may well lead to the conclusion that knowledge of that user should not be imputed. But if, on the facts, the owner of the servient land does have knowledge of the user and could (notwithstanding the tenancy) take steps to prevent that user, but does not do so, then (prima facie) acquiescence will be established."
Was there continuous use in connection with the colliery from 1954 for 20 years?
Could the freeholder of Llety'r Morfil have prevented the use of the southern route by Bell Commercials during Mr Roy Griffiths' tenancy?
"(vi) the right to resume possession of any portion of the farm not exceeding in the whole one twentieth part in any one year for building road making mining or any industrial purpose or for any purpose mentioned in section 31 of the Agricultural holdings Act 1948 on giving three months notice in writing terminating on any quarter day and allowing the tenant fair and reasonable compensation either by the substitution of other land or by reduction of rent and also by payment for damage to crops and for tillages."
Lord Justice Patten
Lord Justice Thorpe