Case No: A3 2010/0590
Neutral Citation Number: [2011] EWCA Civ 37
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
SWANSEA DISTRICT REGISTRY
HIS HONOUR JUDGE MILWYN JARMAN Q.C. 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3 February 2011
Before:

LORD JUSTICE THORPE
LORD JUSTICE LLOYD
and
LORD JUSTICE PATTEN
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Between:

	(1) THE ESTATE OF WILLIAM BRINLEY LLEWELLYN deceased
(2) SARAH ANN MARINA LLEWELLYN	Claimants
Respondents	
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	(1) HELEN SANDRA LOREY
(2) STEPHEN LOREY	Defendants
Appellants	
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(Transcript of the Handed Down Judgment of
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Vivian Chapman Q.C. and Edward Hewitt (instructed by Edward Harris) 
for the Appellants 
James Thom Q.C. and John Brookes (instructed by Watson Farley & Williams LLP) 
for the Respondents 

Hearing date: 19 January 2011
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Judgment
Lord Justice Lloyd: 
Introduction
1.	This appeal is brought against an order of His Honour Judge Milwyn Jarman Q.C. sitting as a Judge of the Chancery Division of the High Court at Swansea, made on 19 February 2010.  The litigation is about the nature of a right of way over land of the Defendants in favour of land of the Claimants.  It is agreed that the Claimants’ land has the benefit of a right of way over a route which passes through land of the Defendants, exercisable for agricultural purposes and for associated or ancillary residential purposes.  The dispute is whether the right is also exercisable for commercial purposes.  The judge held that it was, though only for the benefit of a limited area, part of the Claimants’ property.  The Defendants challenge that conclusion.  There is also a separate point on a counterclaim by the Defendants. 
2.	I gave permission to appeal to the Defendants, though only on some of the grounds advanced, refusing it on others.  The Claimants served a Respondent’s Notice seeking to uphold the judge’s order on other grounds, but the points taken in it were (rightly) not pressed at the hearing.  As before the judge, the Defendants were represented before us by Mr Vivian Chapman Q.C. and Mr Edward Hewitt.  The Claimants were represented by Mr John Brooks, who had appeared below, led by Mr James Thom Q.C. who had not.  We were much assisted by the written submissions and by economical and clear oral arguments on both sides.
3.	I will first describe the lie of the relevant land and its history, before identifying the issues as they stand before us.
4.	When proceedings were first brought the Claimants were Mr William Brinley Llewellyn and his wife Mrs Sarah Ann Marina Llewellyn.  Mr Llewellyn had died before the trial.  His wife (we are told) is his executor.  His place as Claimant and Respondent has been taken by his estate.  When I refer to the Claimants, I mean, as the case may be, either Mr and Mrs Llewellyn, or Mrs Llewellyn both in her personal capacity and as personal representative of her husband’s estate.
The relevant land
5.	The area of land the history of whose use we have to consider lies north of Swansea, with the village of Felindre to the northwest and the village of Llangyfelach to the south.  A road which is a public highway runs between these two villages, close to exit 46 of the M4 at the southern end near Llangyfelach.  From there another road goes south to Swansea.
6.	The Claimants own land known as Abergelli Farm to the east of the road from Llangyfelach to Felindre.  During some fifty years of the last century part of this land was used as a colliery, as I will describe in more detail later.
7.	If you go up the road from Llangyfelach northwards towards Felindre, you come to a point near Coed-cae-Croes where a lane turns off to the east which leads eventually to Abergelli Farm.  This is the southern access, but not the only access, to Abergelli Farm.  This lane is the subject of the dispute.  I will call it the southern route.  On the way to Abergelli Farm it passes another farm property called Llety’r Morfil, and goes through the farmyard there, with a sharp bend at that point.  Llety’r Morfil belongs to the Defendants.  There is a public right of way (on foot) over this lane, at least as far as Abergelli Farm.
8.	If, instead of turning off to the east along the southern route, you continue northwards on the public road towards Felindre, shortly before reaching Felindre you find a junction with a road coming in from the east which is also a public highway.  Eastwards this leads to Salem Chapel and to Rhyd-y-Pandy.  From there you can either go on to Craig-Cefn-Parc, well to the east and the north of the area with which we are concerned, or southwest to Llangyfelach.  Some little way to the east of Felindre, at a bend in the highway, there is another turning off this road, to the south.  This leads to Abergelli Farm, and is referred to as the northern route.  This was the main access to the colliery at Abergelli Farm.
9.	Abergelli Farm covers some 266 acres, with a farmhouse near the southern boundary.  It is agreed that the whole of the farm has the benefit of a full right of way over the southern route for agricultural purposes and for associated or ancillary residential purposes.  No doubt people getting to and from Abergelli Farm have passed over the southern route for decades or centuries in connection with either the use of the farm for agricultural purposes or the residential use of the farmhouse.
10.	A smaller area within Abergelli Farm, of about 8 acres, was used as the colliery, as I will describe.  I will call this Abergelli Colliery, as it used to be called.  It can be reached by the northern route and by the southern route.  There is no problem about its use by the northern route, except that, as we were told, the Claimants wish to use the land for new commercial purposes, namely tipping, and the planning authorities will not permit access by the northern route for that purpose.  Accordingly, the viability of such a use of the land at Abergelli Farm depends on establishing a right of way with vehicles for commercial purposes over the southern route.  We can therefore see both why it is so important to the Claimants to prove that they have the right of way which the judge held that they do have, and for the Defendants to resist it, facing the potentially increased and disturbing traffic that might result from such a use.
11.	That said, the issue before us turns on whether the relevant history, as proved in the evidence, justifies the Claimants’ contention and the judge’s conclusion, not on any view as to the merits or otherwise of the use to which the Claimants wish to put the land and the southern route, if they have such a right.
The title to Abergelli Farm and to Llety’r Morfil
12.	Abergelli Farm was conveyed by William Edmond to John Roberts in 1886.  In 1901 Mr Roberts settled the land by a declaration of trust.  In 1957 Mr John and Mr Richard Sutton (the Suttons) became the trustees of this settlement.  They conveyed the land to the Claimants in 1983.  In the meantime two mining leases were granted, but I will come to those after describing the title to Llety’r Morfil.
13.	Llety’r Morfil was conveyed in 1900 by Lord Swansea to Richard Jenkins.  Mr Jenkins created a settlement dated 9 April 1906 under which his wife had a life interest in the property.  She died on 12 January 1954.  On her death her personal representatives assented to the vesting of the property in Dr J R E Jenkins, whose address was given as being in Putney, on 17 September 1954.  In 1988 Dr Jenkins (still with an address in Putney) conveyed the property to his daughter Mrs Smith, whose address was given as in Wrexham.  In 2002 she conveyed the property into the joint names of herself and her husband, their address being stated as in Chirk, in North Wales.  Later that year they transferred the relevant part of the property (that with which we are concerned) to Mrs Lorey, the First Defendant, and her mother.  Since 2005 it has been registered in the sole name of Mrs Lorey.
14.	During the ownership of Dr Jenkins and of Mrs Smith Llety’r Morfil was tenanted for at least some time.  It is sufficient for present purposes to refer to a letting in favour of Mr Herbert Griffiths senior, by an agreement dated 1 March 1957, of which an incomplete copy is in evidence, then to a letting to Mr Roy Griffiths from 1965 until after his death in 1992, and a further letting to Mrs Griffiths, his widow, from 1993 until it was surrendered by her personal representatives in 2002, after she had died in 2000.
Abergelli Colliery: up to about 1980
15.	Returning to Abergelli Farm, I can now describe the mining operations.  Three seams of coal lie under the surface here.  Two are quite close to the surface: the Swansea 4 feet seam and the Brynwhilach 2 feet seam.  The third is some 250 yards deeper, called the Graigola seam.  The latter outcrops well to the east in the Craig-Cefn-Parc valley.  Since the 19th century this seam had been worked from that valley by the Clydach Merthyr Colliery (known as Nixons).  Coal so extracted was brought to the surface at Clydach Merthyr Colliery and taken away down the valley from there.  It would never have been on the surface at Abergelli.  
16.	In 1916 the owners of Abergelli Farm granted to the Graigola Merthyr Company Ltd a lease of the coal in the Graigola seam for 60 years from 29 September 1907, with limited rights over the surface.  Surface rights were never exercised in respect of the mining of the Graigola seam.  However, in 1930 the owners of Abergelli Farm granted a lease to the same tenant of the two seams closer to the surface, for the remainder of the term of the 1916 lease, on similar terms.
17.	In about 1931, with the benefit of this further lease, the tenant drove a steep cross measure drift or slant up from the Graigola seam to reach the coal in the upper seams and from there up to the surface at Abergelli Farm.  The upper seams were worked in this way.  Coal hewn from the seams was loaded on to drams which were lowered down the cross-measure drift to the Graigola seam, using an engine haulage system operated from the Abergelli Colliery, and then transported underground to the Clydach Merthyr Colliery and brought to the surface there.  So the coal taken from these seams did not come to the surface at Abergelli, but it was handled by the engines at the surface at Abergelli.  Colliery waste from the upper seams was drawn to the surface at Abergelli and was tipped on the surface there.  At the material time there were three tips, one of them called a McLane tip (after a Mr McLane who devised the technique for making such tips).  This was a relatively large and high conical tip.  The two other tips were smaller, flatter and lower.  There was some machinery at the colliery, and there were also some buildings, and a number of colliery workers came there to work.  The company provided a bus to take workers to and from the colliery.  This used the northern route to get to and from the colliery, never the southern route.  
18.	There was, however, some evidence of use of the southern route in connection with the colliery, both by individual workers, on foot, by bicycle or by car, going to and from the colliery, and by lorries.  The latter were either bringing pit props up to the colliery from Swansea docks to the south (for which the southern route was much shorter than the northern route) or coming away from the colliery empty, having delivered a load of some kind, if the next destination of the lorry was to the south.  This evidence was in dispute at the trial but it is sufficient to say that the judge accepted that there had been “substantial vehicular access” from 1930 to the closure of the colliery, “both in terms of workers and supplies, regularly and when it was convenient to do so”: see paragraph 44 of his judgment.
19.	The colliery was nationalised in 1947 and was closed in 1960.  Before it closed the McLane tip caught fire.  It burned for a considerable time.  In April 1964 officials of the NCB examined the tips at Abergelli and found the McLane tip “now well alight”.  Eventually, it was said, all combustible matter would be burned, though only negligible quantities were detected in that or in the other tips.  In the end all of the McLane tip burned and became what is called red ash.  It is clear from the text of the report that access for the examination was obtained by the northern route.
20.	In 1966 the NCB surrendered the leases insofar as they related to part of the surface of Abergelli Colliery to the south and east of the tips, which had included the buildings and machinery.  The leases expired in the following year.  I find it impossible on the material before the court to draw any inference as to why part of the area, and only that part, was surrendered a year in advance.
21.	In 1973 the Suttons entered into an agreement with Morris Bros of Swansea Ltd (“Morris”) under which Morris bought all the red ash at Abergelli Colliery for £3,000, and had a licence for 5 years to take the red ash away, with a right of way for this purpose which the judge interpreted (correctly, I have no doubt) as being over the northern route.
22.	Aerial photographs taken in 1967, 1968 and 1970 show the McLane tip clearly, with a small amount of material having been removed from the south-eastern side.  The earlier photographs also show what may be pipes or poles or both lying on the ground.  This is consistent with evidence from two witnesses who had lived at Abergelli Farm from 1968, who said that the Water Board and the Electricity Board had used the area to store such materials for a time about then.  The Water Board did so in connection with works which they were undertaking near the junction of the northern route with the public highway.  An aerial photograph taken in 1983 shows that the tips no longer existed.
23.	There was some evidence before the judge as to the use of the southern route in connection with the removal of the red ash.  This was quite slight, but the judge accepted, at paragraph 76, that, although most of the excavations were taken north, “it is likely that, whenever a load was destined for the south, it was taken through the southern access, for the same reasons of convenience”.  It is not open to the appellants to challenge that finding.  
24.	What the appellants do challenge, as they are entitled to under the grant of permission to appeal, is what the judge said at paragraph 75:
“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.”
25.	The issue is whether the judge’s finding of continuous exploitation from 1960 is justifiable.  Mr Chapman submitted that there is no evidence on which he could base such a finding as regards any part of the 1960’s or, indeed, until some way into the 1970’s.
Bell Commercials: from 1984
26.	After the Claimants bought Abergelli Farm in 1983 their son Bryan Emyr Llewellyn, who lived on the farm, started to operate a business called Bell Commercials at Abergelli Farm.  This included buying, selling and repairing lorries and tractor units.  He used the southern route from 1984 onwards for the purposes of this business.  After the Defendants acquired Llety’r Morfil in 2002 this gave rise to difficulties.  However, although from time to time from 2005 they tried to stop him using the southern route, they did not succeed.  It is therefore established that he used the southern route for 20 years or more, from 1984.
27.	There is one further factual complication, namely that in the 1990’s a by-pass was constructed to avoid traffic along the southern route having to go through the farmyard at Llety’r Morfil.  The Claimants used that by-pass for a time, and their use of it gives rise to the counterclaim.  I need not deal further with the by-pass at present.  The judge rejected an argument that Mr Bryn Llewellyn used the bypass by agreement in place of the original southern route.
The use of the southern route relied on by the Claimants
28.	Thus, the use of the southern route which the Claimants rely on consists of the following:
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.
29.	The first and third of those are established by the judge’s findings.  As for the second, use for the removal of red ash is established, but it is in dispute when that started, and whether there was any other relevant use after 1960 until 1984.
30.	The Claimants need to show 20 years’ use of the southern route of a kind which satisfies the tests for prescriptive acquisition of a right of way.  As is well established, the principle that lies behind prescription is that if for many years there has been use of land of a kind which could constitute an easement, but no express grant of such an easement exists or can be proved, then the law will, under certain circumstances, presume that there was such a grant, in order to ascribe a lawful basis to the lengthy use.  An essential element, to make such a presumption possible, is that the freehold owner of the land both knows, or is taken to know, of the use, and is in a position to prevent it if he wishes to do so.  Only in those circumstances can he be regarded as having acquiesced in the use, so that it is proper to attribute it to a presumed grant.
31.	The same principles apply whether one is considering prescription under the Prescription Act 1832 or by way of lost modern grant.  The only difference, for present purposes, is whether the use is continuous up to the start of the proceedings, in which case the Act can be used, or is not, in which case lost modern grant is the available principle.  If the Claimant could have shown 20 years’ use which satisfied the relevant tests up to 1960, it would have made no difference if no use had been made of the southern route thereafter.  Mere failure to use an easement once established is not an adequate basis for treating the easement as lost.
32.	The issue as to the freeholder’s knowledge of, and ability to stop, the use of the southern route at a time when prescription has not yet been established is relevant to this case in two ways.  First, although the colliery use of the southern route may have lasted for getting on for 30 years (from 1931 to 1960), Llety’r Morfil was subject to the settlement which I have mentioned from 1906 until Mrs Jenkins died in 1954.  Secondly, although the Bell Commercials use lasted for over 20 years, Llety’r Morfil was the subject of a tenancy from before it started until at any rate 1992 or 1993.
33.	We were shown two cases relevant to this point: Pugh v Savage [1970] 2 QB 373 and Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738, [2007] 1 EGLR 10.  It is sufficient to refer to the latter case for present purposes.  Chadwick LJ, at paragraphs 21 and 22 of his judgment in that case, dealt with the principle of acquiescence.  At paragraph 24 he stated principles which he derived from Pugh v Savage, of which those relevant to the present case are as follows:
“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.”
34.	The same applies in principle where the servient land is the subject of a life tenancy.
35.	Applying those principles to the present case, the colliery use of the southern route started in 1931.  At that time Llety’r Morfil was the subject of a settlement under which Mrs Jenkins had a life interest.  That came to an end in 1954.  Accordingly, the period until 1954 is one in which the first of those propositions applied.  The judge proceeded on that basis.  He held at paragraph 129 that the freehold owner acquiesced from 1954 onwards.  He wondered at paragraph 130 whether he should take an earlier date, but he did not do so.  Accordingly 1954 is the earliest relevant date for prescriptive use.
36.	In turn, the Bell Commercials use started in 1984, and at that time Llety’r Morfil was subject to the tenancy in favour of Mr Roy Griffiths, which lasted until 1992 or 1993.  The judge did not deal with this aspect of the case, since he had already found 20 years’ use from 1954 to be proved.  However, the first proposition in the passage quoted above must again apply in this instance.  Unless the freeholder (a) could have intervened, despite the tenancy and (b) knew or is to be taken to have known of the use, then he cannot be taken to have acquiesced, and the use does not qualify.  Because the judge did not address this point, I will need to deal with the detail of the evidence, such as it is.
37.	However, to summarise so far, the colliery use only qualifies as from 1954.  If the Claimants have to rely on the colliery use (as opposed to the Bell Commercials use) they have to show a sufficiently continuous use for 20 years from 1954.  Whether they can do so or not depends on the Defendants’ challenge to the judge’s factual finding in paragraph 75.  If they rely on the Bell Commercials use, they need to show that despite the tenancy in favour of Mr Roy Griffiths, the freeholder (a) knew or is to be taken to have known of the use and (b) could have taken action to stop the use, during the tenancy.
Was there continuous use in connection with the colliery from 1954 for 20 years?
38.	Mr Chapman attacked the judge’s finding of continuous use, in paragraph 75 of his judgment, on two bases: first, that the use before 1960 was so different from the use in connection with the red ash that the two could not properly be regarded as continuous, but rather the red ash operations were new, distinct and quite different; secondly that there was in any event a gap of up to 12 years after 1960 during which there was no evidence on the basis of which the judge could properly find that there was any relevant use of the southern route.  I will deal with the second of these points first.
39.	There is no evidence of the removal of red ash from the site at all, let alone by the southern route, until the 1970’s.  It is unlikely, though not impossible, that any red ash was removed before 1964 or 1965, since the McLane tip was alight throughout that period.  It is clear that in the 1960’s a small amount of the contents of the McLane tip was removed.  That appears from the 1967, 1968 and 1970 photographs.  However there is also evidence that material from the tip was used much earlier to make up or improve the northern route, as the judge said at paragraph 25.  So if red ash was taken from the tip it may have been used on the site.  If it was taken off the site, it may have been by the northern route.  No witness spoke of the removal of red ash from the site before the 1970’s by either route.
40.	Materials were stored on site in the late 1960’s at least by the Water Board and the Electricity Board, but there is no evidence that they were brought to or taken away from the site by the southern route.  It is very much more likely that the northern route was used.
41.	Officials of the NCB visited the site at least once, in 1964, but they came and went by the northern route.
42.	In 1977 agents on behalf of Morris wrote to the Director of Planning for the Borough of Lliw Valley about an application for planning permission for the removal of colliery shale from Abergelli.  The letter referred to the agreement in 1973 between the Suttons and Morris, and the removal of shale under that agreement which, it was said, was being used in relation to refuse tips of Swansea City Council.  More to the point, the letter said that the agents had informed Morris that shale had been removed by other companies previously, during the years preceding the agreement with Morris.  This was used as the basis of an assertion that removal of shale had already been underway for more than 4 years.  No further details of this could be given, nor any more firm evidence than this rather generalised hearsay statement made 34 years ago.  Even accepting it at face value, it does not provide a basis for supposing that removal of the shale (or red ash) started much before 1973, and none for supposing that the southern route was used before then.
43.	Mr Thom argued that the likelihood was that use of the southern route in connection with the colliery which had taken place up to 1960 would have continued, to some extent, after that.  He submitted that even if the judge’s finding of continuous use was partly based on inference, an appellate court should not lightly override inferences drawn by the judge who had heard the evidence and who, no doubt, knew the area and local conditions, and was therefore in a better position than the Court of Appeal to assess what inferences were apposite.
44.	If there were a basis in the evidence for such an inference, I might well agree with Mr Thom and defer to the judge, whatever doubts I might have.  But it seems to me that this is not the position in the present case.  The colliery closed in 1960.  It was an unusual colliery, in that its machinery was used for coal which was not brought to the surface at the colliery itself, but miles away at Clydach Merthyr Colliery.  All that was left when the colliery closed was some machinery, some buildings and three tips of colliery waste.  There was no need for continuing operations of any kind, except in relation to the waste.  There is no evidence of anything being done with that waste until, at the earliest, 1967, and there is good reason to suppose that nothing was done with it for at least 5 years.  Moreover, there is no evidence that anything done with it involved the use of the southern route before the 1970’s.  The judge’s reference at paragraph 75 to photographs showing excavations in 1960 is puzzling.  No such photograph earlier than 1967 was shown to us.  It seems to me that the date must be a mistake for either 1967 or the 1960’s.
45.	In my judgment the judge was wrong to hold that use of the southern route continued in connection with colliery waste from 1960 through until the late 1970’s.  I hold that the evidence does not justify a finding that there was any such use before 1970, at the earliest, and probably not before 1973.  If that were the position, Mr Thom accepted that the colliery use would not be sufficient to make out a prescriptive right of way.  Even if the red ash use were sufficiently similar to the pre-closure colliery use, the gap of ten years would be fatal.  The relevant principles are set out in Hollins v Verney (1884) 13 QBD 304, at 315.  
46.	I am by no means sure that I would have accepted Mr Chapman’s arguments about the difference between the pre-closure use and the red ash use, but it is not necessary to go into that.  The Claimants cannot succeed on the basis of the colliery use or the red ash use of the southern route.
Could the freeholder of Llety’r Morfil have prevented the use of the southern route by Bell Commercials during Mr Roy Griffiths’ tenancy?
47.	Mr Chapman’s argument on this aspect of the case is that, first, Dr Jenkins (up to 1988) and Mrs Smith (thereafter), as freeholder of Llety’r Morfil while it was let to Mr Roy Griffiths, should not be taken to have known of the use of the southern route in connection with the Bell Commercials business from 1984 onwards and, secondly, even if they did know of it, they could not have stopped it, because of the tenancy.  
48.	Dr Jenkins lived in London, so far as we know, and Mrs Smith in Wrexham.  Even if either of them visited the property from time to time (and the evidence does not disclose that either did) they would not necessarily have seen a Bell Commercials vehicle using the southern route.  There is no evidence of their being told of this use by their tenant or by anyone else.  
49.	Mr Thom submitted that there are pointers in the evidence to their having had an active interest in the property and in what was going on there.  He relied on several different points.
50.	One of the witnesses was John Brian Thomas, who had a farm near Felindre.  He said that he had farmed Llety’r Morfil for about eight years while Mr Roy Griffiths was the tenant.  He had done this because Mr Griffiths got into difficulties.  His answer is a little unclear from the transcript, but he said that Mr Griffiths had got himself into some trouble, and was unable to farm, and he indicated to Mr Thomas that he felt threatened with eviction by the landlord.  He had stock on the farm and he asked Mr Thomas to farm it for him so that he would not be put out of his home.  That shows, according to Mr Thom, that the landlord took an active interest to the extent of threatening Mr Griffiths with eviction, and that he must therefore have had a fair idea of what was going on.  But such a threat by the landlord might be fully explained by the tenant having got into arrear with his rent, as he might very well if he was unable to farm.  That would have come to the attention of the landlord, whether living in London or in North Wales.  I cannot take this as showing that Dr Jenkins or Mrs Smith knew anything about the use of the southern route.
51.	Mr Thom also showed us that in 1994 solicitors acting for Mrs Smith wrote to those acting for Mr Bryn Llewellyn about a proposed agreement for a grant of a temporary right of way, and referred to the payment of fees of a Land Surveyor acting for Mrs Smith.  He argued that this indicated that the freeholder had a retained agent through whom he or she would gain information as to what was going on.  However, the letter itself shows that this is not so.  Earlier in the letter reference is made to the proposition that Mrs Smith “will engage a Land Surveyor” for the purposes of the agreement.  This is not an indication that Mrs Smith already had a land agent; to me it suggests the opposite.
52.	His third point was that the tenancy to Mr Herbert Griffiths, which we have, albeit in an incomplete version, contains a number of reservations in favour of the landlord which suggest that the landlord was at least preserving the ability to take an active interest in, and to exploit, aspects of the land that might be of value.  If so, it might be inferred that he had and kept up such an interest, and knew what was going on.  That seems to me to be altogether speculative.  However, since one of the reservations is what Mr Thom relies on to show that the landlord could have stopped the Bell Commercials use if he or she had wanted to do so, I will next describe the tenancy and deal with this point.
53.	The tenancy is of the whole area of Llety’r Morfil from the highway eastwards, excluding the curtilage of some cottages called Pen-y-Waun Fach.  The area let is of about 79 acres.  (The Defendants’ property is a good deal less extensive than this.)  The letting is subject to six reservations: (i) timber; (ii) mines and minerals; (iii) game; (iv) a right of entry to which the judge referred at paragraph 128 of his judgment; (v) rights of way; and then the following:
“(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.”
54.	Nothing else in the tenancy agreement has any bearing on the point, though I note that there is a normal express covenant for quiet enjoyment.  Although some pages are missing from the copy before the court, so that we cannot see the full range of the tenant’s covenants, it seems most unlikely that anything on the missing pages would have been relevant.
55.	Mr Thom’s ingenious argument is this.  The freeholder could retake possession of some part of the southern route under this reservation for the purpose of “road making”, so that this part would then not form part of the land let under the tenancy.  He would then make up the road to a proper standard, allowing the tenant and others so entitled (including the public for their right of way on foot) a temporary alternative route so that they could continue to get access as they were entitled or, in the case of the tenant, needed while the work continued.  Then having made the road up, he would grant the tenant express rights over this area, ancillary to the tenancy.  As owner of the land, however, he could then object to the use of it by anyone not already so entitled, including Bell Commercials.
56.	Mr Chapman’s response to this proposition seems to me to be correct.  The course of action suggested would not be a legitimate use of the reservation for the purpose for which it was reserved.  It would be colourable.  The land would not have been taken back “for the purpose of road making”, but for the purpose of interfering with what was going on in the tenanted land.  It would be a breach of the covenant for quiet enjoyment.
57.	I cannot therefore accept that, even if Mr Roy Griffiths’ tenancy was on the same terms as that to Mr Herbert Griffiths (which may well be a reasonable inference) the landlord could have stepped in and prevented the Bell Commercials vehicles from using the southern route while the tenancy continued.
58.	It follows that the existence of the tenancy at the time when the Bell Commercials use started in 1984, and until 1992 or 1993, is fatal to the claim that this use satisfied the test for prescriptive use at that time.  The period after that is too short for the acquisition of a prescriptive right of way.
59.	I would therefore hold that neither on this ground nor by relying on the colliery-related use can the Claimants establish a vehicular right of way over the southern route for commercial purposes.
The counterclaim
60.	The very sharp bend on the southern route as it went through the farmyard of Llety’r Morfil, between buildings, was inconvenient for larger vehicles.  It seems that an alternative route was constructed in the 1990’s which allowed vehicles to by-pass the farmyard and to use a more practical course.  Mrs Smith is said to have granted to the Claimants a right to use such a route in 1995 for 5 years.
61.	When the First Defendant bought Llety’r Morfil, the Claimants had a contract with Swansea City Waste Disposal Co Ltd for the removal of inert material from Abergelli Farm to be taken to a landfill site in Swansea.  Lorries were being used to take this material away from Abergelli Farm along the southern route, whether along the by-pass or through the farmyard.  This led to difficulties, and one instance of the obstruction of the by-pass by the Defendants in January 2004 is alleged in the Particulars of Claim, along with some others when the southern route is said to have been obstructed.
62.	In September 2004 a meeting took place between Bryn Llewellyn and the Second Defendant and others at which it was agreed that the right to use the by-pass would be granted for the purposes of taking landfill away from Abergelli Farm under this contract, for a consideration of £5,000 per annum.  This was confirmed by letter dated 20 September 2004.  As promised in that letter, Mr Llewellyn made an immediate payment of £2,500 under the contract, but he refused to make any other payments.  The by-pass had been used since 2002 for this purpose, and it continued to be used until October 2008 when the Defendants, by their solicitors, prohibited further such use, and the Claimants then issued these proceedings.
63.	It is not alleged by the Claimants that the Defendants obstructed the use of the by-pass other than on one occasion, or at most a few occasions, or that any obstruction made the southern route, with or without the by-pass, impossible to use (see the Claimants’ reply to a Request for Further Information as to paragraph 12 of the Particulars of Claim, served on 20 January 2009).  The judge said at paragraph 142 that the Second Defendant accepted that “he did place obstructions from time to time on the by-pass and in the farmyard to prevent lorries using the way”.  Notwithstanding whatever obstructions there were, the Claimants’ use of the southern route and the by-pass continued until October 2008.
64.	On that basis, the Defendants claimed damages for trespass as regards the southern route in general and the by-pass in particular, since the use of the by-pass had no legitimate basis once the agreement had been repudiated by non-payment.  Their case was that the agreed licence fee of £5,000 per year showed the value to the Claimants of this use, and that it should be the measure of the damages for this trespass, though giving credit of course for the £2,500 that was paid.
65.	The judge accepted this in principle, but held at paragraph 147 of his judgment that the damages should only cover the period up to the second part of 2005, because of the Defendants’ attempts to prevent the use of the by-pass at that stage.  He therefore ordered the Claimants to pay the Defendants £15,000 on this account. 
66.	With respect to him, I do not see that this is the correct approach.  I agree that the Defendants could not claim payment on the basis of contract, having (in effect) treated the Claimants’ refusal to pay as a repudiation of the contract, and having accepted it as such.  However, that leaves the Claimants’ use of the by-pass and the southern route from 2002 until 2008 without a lawful basis.  It was therefore a trespass.  Damages for a trespass of this kind may properly be assessed by reference to the value to the trespasser of the use made, for which a licence fee is a proper comparison.  A licence fee in fact agreed between the parties for this very use is as good a comparison as one could find.
67.	Mr Thom’s submissions did not identify any basis to support the judge’s approach, of awarding damages up to the latter part of 2005 but not thereafter, unless he regarded the use after that as being of no value to the Claimants.  But that was not his approach, nor could Mr Thom argue that it would have been justified if it had been.  His best argument was that £5,000 per year was agreed as an appropriate licence fee for clear and unobstructed use of the by-pass, and that the same rate should not be payable for the use of, as he called it, an obstacle course.  He also pointed out that there was no expert evidence as to the appropriate rate: the Defendants relied on the agreed rate, so they should have that rate, but only if they proved that it was fully justified.  Otherwise they should have nothing because no other rate could be justified by the evidence.
68.	As to the principle, it seems to me that the Claimants are liable for the use of the by-pass and the southern route for the whole period from April 2002 until October 2008, giving credit for the £2,500 already paid.  It is wrong to regard them as not liable after the latter part of 2005.  As regards that period, I consider that the Claimants were liable in damages for trespass for the continued use of the by-pass and the southern route until October 2008.  I disagree with the judge in his refusal to award compensation for that period of use.
69.	As to the rate properly payable for that period of use, I regard the agreed rate of £5,000 per year as a proper starting point.  If the Claimants had wished to argue that they should only be liable at a lower rate because the use of an occasionally obstructed by-pass was worth materially less than £5,000 to them, then it seems to me that there was at least an evidential burden of proof on them.  Given that there seems to have been, at most, only one occasion of complete obstruction of the by-pass, over one week-end, that otherwise drivers of vehicles had sometimes to negotiate round obstructions, but could and did do so, and that the Claimants were never prevented from gaining access to or from Abergelli Farm, I see no good reason to discount the rate of damages below the agreed rate.
70.	I would therefore hold that, on the counterclaim, the Claimants are liable by way of damages for trespass, at the rate of £5,000 per year, for the whole period from 2002 until October 2008 when this use came to an end, less £2,500 paid, in effect, on account.
Disposition
71.	For the reasons given above, I would allow the appeal against paragraph 1 of the judge’s order declaring that the Claimants are entitled to a right of way for commercial purposes over the southern route, and I would set aside that part of the order.  I would also vary paragraph 2 of the judge’s order as regards damages, so as to give judgment against the Claimants on the counterclaim for damages at the rate of £5,000 per year (and pro rata) until October 2008.  The correct amount is agreed between the parties to be £29,583, instead of the judge’s figure of £15,000, together with £5,491.90 by way of interest.  Paragraph 3 of the order dealt with costs, as to which we will receive submissions.
Lord Justice Patten
72.	I agree.
Lord Justice Thorpe
73.	I also agree.