England and Wales Land Registry Adjudicator

 

REF/2009/1434

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

John Barry Sebastian Courtney

 

APPLICANT

 

and

 

(1) Warren Cobb

(2) Dianne Quinney

 

RESPONDENTS

 

 

Property Address: Land on the West Side of Brickendon Lane, Brickendon

Title Number: HD255040 and HD119047

 

 

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

 

 

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

On: Tuesday 26^th, Wednesday 27^th, Thursday 28^th October, and 18^th November 2010

 

 

Applicant Representation: Ms Stephanie Tozer, of Counsel, instructed by Messrs Browne Jacobson, Solicitors

Respondent Representation: Mr David Holland, of Counsel, instructed by Messrs Male & Wagland, Solicitors

 

 

DECISION

 

KEYWORDS: Right of way over roadside verge; Prescription Act 1832; doctrine of Lost Modern Grant; extent of right of way acquired by user; does right of way extend to vehicular use; is right of way limited to agricultural purposes only; whether use post January 1999 continued to be as of right.

 

 

Cases referred to: McAdams Homes Limited v Robinson [2005] 1 P & CR 30; Atwood v Bovis Homes [2001] Ch 379; Lutrell’s Case (1601) 4 Co. Rep. 86a; Watts v Kelson (1870-71) LR 6 Ch. App. 166; Harvey v Walton (1873) L.R. 8 C.P. 162; Williams v James (1867) LR 2 CP 577; Wimbledon and Putney Commons Conservators v Dixon (1875) 1 CH. D 362; Wood v Saunders (1875) 10 Ch. App. 582, 584-5; Smith v Brudenell-Bruce (2002) P&CR 51; Mills v Silver [1991] Ch 271; Loder v Gaden (1999) 78 P & CR 223; Smith v Patel [1987] 1 WLR 853; Betterment Properties (Weymouth) Ltd v Dorset County Council [2010] EWHC 3045 (Ch) (23/11/2010); Dewan v Lewis [2010] EWCA Civ 1382.

 

 

THE APPLICATION

1.                  Mr John Barry Sebastian Courtney (“the Applicant”) is the registered freehold proprietor of land on the west side of Brickendon Lane, Brickendon, Herts SG13 8NZ registered at HM Land Registry under title number HD255040. By an application made by the Applicant in Form AP1 to HM Land Registry (“the Application”) dated 1^st September 2009 the Applicant claims to have acquired a right of way on foot and with animals, and in vehicles, over part of the roadside verge lying between his land and the public highway, being a metalled road known as Brickendon Lane, in order to gain access to and egress from his land. The claim is based upon prescription and/or under the doctrine of Lost Modern Grant.

 

2.                  Title number HD255040 comprises two separate parcels and marked as inclosure numbers OS 4775 and OS 6275 on the title plan to HD255040. There is access between the two parcels at the north western corner of inclosure number 6275. However, for the purposes of this Decision the claimed dominant tenement is inclosure number OS 6275 to which I shall hereafter refer as “the Field”. This formerly formed part of a much larger field described on the earlier maps as inclosure number 97 (“Inclosure 97”).

 

3.                  That part of the roadside verge over which the right of way is sought (“the Verge”) forms part of a much larger area of roadside verges lying on both sides of Brickendon Lane owned by Mr Warren Cobb and his sister (Mrs Dianne Quinney – formerly Mrs Dianne Lee) and registered under title number HD119047. I should state that at an early stage of the hearing Mrs Dianne Quinney was joined into the proceedings as a Second Respondent with her consent. However, as she played little part in the proceedings I shall refer to Mr Cobb solely as “the Respondent”.

4.                  The Verge lies on the south east boundary of the Field. The point at which the right of way is claimed by the Applicant over the Verge is marked at point X on the title plan to title number HD255040 (“the Plan”) annexed to this Decision. Access to and from the Field is through an entrance in a hedge bounding the Field (“the Entrance”) which is marked at point Y on the Plan. I should state that at that point the width of the Verge between the metalled part of Brickendon Lane and the Entrance in the hedge to the Field is no more than about fifteen feet.

 

5.                  In paragraphs 9 and 10 of Form ST4 dated 28^th April 2009 the Applicant seeks to claim a right of way with or without vehicles for the benefit of his land over the Verge. He states that:-

 

“the [V]erge has been used regularly as an access with or without vehicles from 1968 until 1988 by Mr Todd during his employment, and following his redundancy by the various owners of Toad Cottage (formerly 2 Sewards Old Cottages).”

In support of this claim the Applicant attached a letter from Mr Todd. In paragraph 3 of his Statement of Case the Applicant seeks to claim a right of way “on foot with animals and in vehicles”. However, although it is not expressed as such it is clear that, in effect, the Applicant seeks to claim a right of way at all times and for all purposes over the Verge, and my findings in this Decision will be based on that claim. In this regard the Applicant accepts that the bulk (but not all) of the user across the Verge has been for agricultural purposes, but it is contended that, as a matter of law, access can be established for both residential and agricultural purposes. It is asserted that it is plain that access has been obtained, with vehicles, for the purpose (among other purposes) of emptying the cesspit which formerly served 6 cottages. This is said to be residential use. The cesspit was later superseded by a septic tank fitted with a Klargester biodisc system,

 

6.                  In that regard it is to be noted that the Respondent accepts that for many years there has been a gap in the hedge to the Field at point Y in the vicinity of the Applicant’s claimed right of way. The Respondent also does now accept that a right of way has arisen over the Verge through the Entrance for the benefit of the Field in order to gain access to and from Brickendon Lane, but it is contended that this right of way is no more extensive than a right on foot and with animals and is only of sufficient width for pedestrian and animal user. He further disputes that the alleged right of way is physically as wide as that contended for by the Applicant. Thus, according to the Respondent the right of way does not in effect extend to use by vehicles – agricultural or otherwise. He further takes issue with regard to some of the claimed activities as not falling with the definition of agricultural use in any event, such as emptying the cesspit. He also asserts that the more recent access since about 1999 to the manège and stables on the dominant tenement is merely “recreational use”. I shall refer to these aspects in more detail, below.

 

7.                  I should state that as the estimation of the time set for the hearing of the case in October 2010 proved to be insufficient I ordered that a further date be set for Counsel’s closing speeches and that written closing submissions be provided prior thereto. On 18^th November 2010 the hearing was concluded, but thereafter I sought clarification of one or two factual matters from the parties. These answers were provided by early January 2011. Since the conclusion of the hearing I have also been provided with a number of further authorities by Counsel for the Respondent.

 

THE BACKGROUND

8.                  At Brickendon, Herts, there are parcels of land and premises known as Sewards and Sewards Farm. It is probable that these properties were formerly in common ownership. The two sets of premises are not to be confused. Sewards is a dwelling house, and Sewards’ Farm was until 1986 principally a working dairy farm. Both properties are in close proximity. Opposite both properties lies the former Inclosure 97 which formed part of Sewards Farm. There is an access route from Sewards Farm to Brickendon Lane, and on the western side of Brickendon Lane opposite to the entrance to Sewards Farm there was and is an access to Inclosure 97. This is marked as point Z on the Plan. In order to facilitate access a concrete apron has been constructed at some stage at that point over the verge.

 

9.                  On 14^th November 1938 land and premises including Sewards’ Farm, the verges to Brickendon Lane (including the Verge) and Inclosure 97, were transferred to a Mr Henry Ernest Gocher. The plan annexed to the conveyance of 14th November 1938 indicates that the Field originally formed the southern portion of Inclosure 97. Inclosure OS 4775 was formerly described as inclosure number 89. The verges (including the Verge) were formerly referred to as inclosure numbers 96 and 77

10.              In April 1954 Mr Gocher transferred Sewards’ Farm to Dr Robert McNeil Love, who in turn in about 1967 transferred Sewards’ Farm together with Nos 1 and 2 New Sewards Farm Cottages to the Messrs Vigus, trading as Messrs FT and W Vigus. Included in the bundle of documentation (“the Bundle”) there is a plan dated 3rd August 1967. This is apparently the plan attached to the conveyance of the land sold to Messrs Vigus. This also indicates the extent of Inclosure 97 before the sale of the land to Mrs Christine Mercer in 1988 (see below).

 

11.              On 1^st October 1970 the roadside verges on either side of Brickendon Lane, including the Verge in question, were registered as common land, the entry of the registration in the Land Section of the Register occurring on 17th December 1970. In 1976 the Respondent’s parents purchased Sewards where the Respondent’s father has lived ever since. On 29^th May 1979 the roadside verges including the Verge were transferred by the personal representatives of Mr Gocher to the Respondent’s mother (formerly Mrs Marianne Cobb – now Clee). The verges including the Verge were subsequently registered under title number HD119047 on 12^th June 1979. The verges were then transferred to Mr Cobb, Senior, in 1994 following his divorce from his wife. The reason given for the original purchase was for the purpose of securing the countryside around Sewards and to retain the rural setting.

 

12.              In August 1988 Mrs Christine Mercer purchased that part of Inclosure 97 which now forms the Field, together with Inclosure OS 4775, from Messrs Vigus as a sale of part. As a result the land comprising Sewards’ Farm and the Field ceased to be in common ownership. Both the Field and Inclosure 4775 were then registered as a first registration on 4^th January 1989 under title number HD255040. Thereafter in 1989 Mrs Mercer purchased Number 2 Sewards Old Cottages. Mrs Mercer then in 1995 constructed a hay barn on the Field.

13.              Although there is some discrepancy as to the dates, apparently in 1998 the Applicant purchased Number 2 Sewards Old Cottages from Mrs Mercer and renamed it Toad Cottage. At about the same time (it is said to be 1999) he also purchased the Field from Mrs Mercer, together with inclosure number OS 4775 comprising title number HD255040, and he and his wife have remained in possession ever since. He was registered as the proprietor of title number HD255040 on 16th July 2002. In January 1999 the Applicant laid hard core across the Verge at the Entrance, and subsequently agreed to remove it on being requested so to do. This removal occurred in May 2000.

 

14.              In 1999 the Applicant was granted planning permission for the construction of an outdoor riding area known as a “manège” on the Field, and the conversion of a hay barn previously constructed by Mrs Mercer on the Field into stables. Of considerable importance in this case is that a condition was imposed by the Local Planning Authority (Condition 5) as follows:-

 

“The existing field access shall only be used for agricultural purposes, and shall not be used for access or egress to the manege, stables or hay barn.

Reason

In the interests of public safety.”

 

15.              On 4^th December 2003 the Respondent and his sister Mrs Diane Quinney were registered as the freehold proprietors of the roadside verges, including the Verge, following a transfer by the Respondent’s father, Mr Allan Cobb, to them.

 

16.              I should state that one of the factual issues in the case is whether there was and is a physical division in the form of a post and wire fence, or some other form of continuous barrier between the land retained (being the bulk of the former Inclosure 97) and the Field, and if so when this was erected. There are also factual issues as to (1) whether the northern half of Inclosure 97 was generally used for crops, whilst the southern part was used for grazing animals, and (2) the ownership of the hedge surrounding parts of the field particularly on its south eastern side in the vicinity of the Entrance.

 

17.              It is the Respondent’s case that prior to the fields being sold separately by Messrs Vigus in 1988 there was no fence or barrier across Inclosure 97. It is said that at the very least a tractor could be driven between one part of the field and the other, so that access to what became the Field could be maintained through the gate immediately opposite the entrance to Sewards Farm at point Z on the Plan without any difficulty. This access is some 40 metres or so north of point Y. It is asserted by the Respondent that this access is a proper gated farm entrance with a concrete apron, and with better visibility for road users. Thus it is said that there was therefore no need for vehicles to access the Field over the Verge and through the Entrance at point Y, and it was more logical to use this northern entrance into Inclosure 97 at point Z.

 

18.              For his part the Applicant maintains that there has always been an access point over the Verge and through the Entrance. Further he contends there was some form of barrier such as a post and wire fence prior to the sale of part of Inclosure 97 to Mrs Mercer. This is demonstrated in both oral evidence to that effect, and from photographs included in the Bundle, to which I shall refer again below.

 

THE ISSUES

19.              As to the claim to a right of way there are essentially three issues to be determined in this case. These are the following:-

 

(1)               The physical extent of the right of way;

(2)               The type of way – whether it extends to vehicular use;

(3)               The purpose for which the way may be used – is it limited to agricultural purposes only?

 

I should also state that there are also two discrete further issues to be determined. First, the question arises as to whether use post January 1999 continued to be as of right as contended for by the Applicant as the Respondent’s father had protested about certain aspects of the user. Secondly, the question also arises as to the effect of an offer made by the Applicant to the Respondent in 2008 to pay for the privilege of crossing the Verge.

 

THE EVIDENCE

20.              I now turn to the evidence adduced in the case, both documentary and from the live witnesses. It is necessary to have some regard to the detail of the factual evidence given in order to determine the issues and make the appropriate findings of fact based upon the legal principles.

 

21.              The oral evidence in the case was given over the period of two days and there was a considerable degree of factual evidence from a number of lay witnesses. Somewhat unusually three witnesses gave evidence by telephone and one witness (Mr Todd), who had given live evidence, was recalled to give further evidence by telephone. One witness (Mrs Christine Mercer) who had provided a two letters was not called to give evidence as she in effect refused to appear. I shall give such weight to that evidence as I consider appropriate in the circumstances.

 

The Applicant’s Evidence

22.              The evidence given on behalf of the Applicant was provided by the following live witnesses: the Applicant; Miss Sue Vigus; Mr Ray Peters; and Mr Martin Todd. Mrs Christine Mercer (the daughter in law of Mrs Eileen Mercer) did not appear to give evidence but provided a letter dated 13^th November 2009. She subsequently provided a further letter dated 14^th November 2010 during the course of the hearing. As I have said, Mrs Christine Mercer in effect refused to appear as she stated that she was not prepared to travel to London for the case. I will give whatever weight I consider appropriate to such evidence in the circumstances.

 

The Applicant

23.              The Applicant made two statutory declarations, the first being dated 12^th November 2009 and the second being dated 9^th July 2010, the latter being made in response to the Respondent’s witness statements. I also refer to his statement of case. I have to say at the outset that the evidence of the Applicant has only limited value in that he moved into Toad Cottage in May 1998 and apparently during the following year he purchased the Field from Mrs Mercer. His direct knowledge, therefore, of the area in question only derives from that point in time.

 

24.              The Applicant during the course of his evidence contended that he and his predecessors in title have used the Verge and the Entrance since at least 1967 in order to gain access to the Field. In his case he asserted that he has for about 12 years used the Verge “primarily with agricultural vehicles to maintain the Field” and also with animals. He specified the vehicles used as being tractors, trailers, balers and other agricultural machinery. He stated that in 1998 he changed the five bar gate to a close boarded gate in order to deter gypsies and to protect his children. As to the size of the gap at the Entrance, he said that the gap is the same as when he bought the property and that he has not increased it in width since his purchase. He also asserts that the hedge bounding the Field belongs to him.

 

25.              In 1999, or thereabouts, the Applicant constructed the manège having obtained planning permission for that purpose on 16^th April 1999 from East Hertfordshire District Council.

 

26.              The Applicant in his evidence further asserted that his use of the Verge was in order to gain access to the Field, and was for recreational activities for himself, his wife and children, which included the use of the manège, but this access was not used for commercial purposes. He denied that access could be more easily achievable through the entrance to his house as he would have to drive over parts of his garden, and it could be unsafe. However, he said that he had no plans for the Field, but he did not want to be fettered. Thus he did not want to be restricted as to the access to his land and property and that his use of the Verge was for any reason that he so chose. He said the Respondent had consistently tried to interfere and stop him from using his land to his advantage.

 

27.              As to the issue of the laying of the hardcore – this was to facilitate the construction of the manège as there was an increase in the use of vehicles crossing the Verge, and it was subsequently removed. He said that he made it clear that it would be removed, and that he not compromised his claim over the Verge once having been asked to do so by Mr Allan Cobb: nor has his claim been compromised by other protests being made as to his user of the Verge. Similarly, he denied that his offer of £5000 made in 2008 to pay for a full right of way had also somehow limited his position.

 

Mrs Sue Vigus

28.              The first witness to be called on behalf of the Applicant was Mrs Sue Vigus who made a statutory declaration dated 26^th November 2009, and who gave evidence by telephone. In her statutory declaration she referred to the evidence of Mr Martin Todd (see below) and confirmed the accuracy of what he stated in his witness statement. She confirmed that there had always been an access way at point Y and that there had been a gate in place since 1967 at that point in order to allow access. She further stated that the Verge was regularly used in order to allow cattle to graze on the field beyond, and that the gap was sufficiently wide to allow for the passage of agricultural machinery such as tractors and combine harvesters to have access. She said that they made hay and grew crops on this land. Mrs Vigus confirmed that Sewards Farm was a working dairy farm with a hundred or so cows, and that the cattle would be turned out in late March/early April and remain on the field until October in each year. She also stated that milking would take place twice per day.

 

29.              Insofar as cutting hay and silage were concerned, Mrs Vigus confirmed that the grass would have been cut two to three times per year in June and August and that for this purpose an agricultural mower hitched to a tractor would have been taken through the Entrance at point Y, together with trailers, the mower itself being 8 to 10 feet in width. Silaging would occur in June. She stated that the fields were used as often as they could be. She agreed that the agricultural machinery would not have been driven across the Verge into the Entrance every day, but she thought sometimes it may be as much as 4 to 5 times per day and then not for another week or two. She also confirmed that a slurry lorry would also use the Entrance in order to deal with slurry about every 6 months. Originally the gate at the Entrance was a dilapidated iron gate but it was later replaced with a standard wooden five bar gate. Insofar as silage was concerned there could well be 15 to 20 loads of silage moved in one day.

 

30.              Mrs Vigus also described the type of agricultural machinery which was used on Inclosure 97, these included tractors pulling mowers and hay turners, baling machines and trailers which could be 9 to 10 feet in width, a forage harvester which was between 10 and 12 feet in width, a tractor and trailer for spreading slurry during winter when the ground was firm, and a slurry truck for emptying the cesspit The agricultural mower itself would be 8 to 10 feet in width.

 

Mr Ray Peters

31.              Mr Peters made a statutory declaration dated 30^th March 2010 and gave evidence at the hearing. Mr Peters originally started to give evidence on the first day of the trial, but it transpired that the Applicant’s Counsel was seeking to rely upon factual circumstances which were more extensive than encompassed in his declaration - which was clearly inadequate. In such circumstances, and after some debate with Counsel, I decided that it was necessary for Mr Peters to provide a full witness statement, and that he would be subsequently recalled during the trial. Thus, on the third day of the trial Mr Peters gave evidence based upon his more comprehensive witness statement.

 

32.              Mr Peters said that there were 3 fields. The first of these had the copse in it and lay immediately opposite the main farm entrance to Sewards Farm (at point Z); the second (the Field) lay to the south and had a separate entrance into it from Brickendon Lane (i.e. at point Y); and the third was accessed from the second. He stated that there was always a hedge and barbed wire fence across Inclosure 97, and there was never a gap in the fence line. He also stated that the Field was unsuitable for growing crops as it had three manhole covers in it leading to cess-pits, but it was used for cattle and hay, whereas the larger northern part was arable.

 

33.              Mr Peters has farmed at a neighbouring farm called Edwards Green Farm since 1958 which he purchased in 1962. He has lived there since 1978 being the date when he built a dwelling house. He has known the Applicant and his wife since they moved into Toad Cottage in 1998/1999. From an early stage Mr Peters has helped the Applicant by cutting the fields now comprising title number HD255040 at least three times per year - in June and at the end of August. He stated during the course of his evidence that he charges no money for this work done for the Applicant, but he and the Applicant have some form of “barter” arrangement whereby they each helped out the other. He would take the cut hay to feed his beef cattle. The machine he has used since 1999 is at least 10 feet wide, and the trailer is 33 feet long and these are his own vehicles. These vehicles are taken through the Entrance which he thinks is about the same size as it was when Dr Robert McNeil Love owned the property. The gate itself is also much the same size.

 

34.              Before that Mr Peters used to work for Dr Robert McNeil Love by ploughing and cutting hay on the fields, and helping in the harvesting using tractors, ploughs and corn-sowing machines. In order to undertake this work he gained access into the Field via the Entrance through a wooden gate about 12 feet wide, and over the Verge. When Messrs Vigus purchased the farm there was then an intensification of user and the Field was used for hay, silage and forage, as well as grazing, the Entrance being in constant use for mixed farming. Mr Peters was involved in these activities, and he recalled using tractor with attached mowers, a bailer, and tractors and trailer. He stated that these vehicles were about 8 feet in width, although the baler was probably a bit wider, about 11 feet. Foraging occurred about twice a year, and artificial fertiliser was also spread in the spring. Forage involved mowing one day, letting it wilt the next day for silage. Insofar as hay was concerned it would take a week to a fortnight depending on the weather. The Field was not suitable for growing crops because it had the man holes leading to the cesspit, and it was used for grazing cattle and hay.

 

35.              After Messrs Vigus sold Sewards Farm he did not work on the Field until the Applicant purchased Toad Cottage. Thereafter he and the Applicant agreed that he would take the hay from the fields to feed his beef animals. In order to do this he would go on to the Field at the end of June and at the end of August in order to cut the hay, dry it out and bale it. Since 1999 the machine that he has been using for this activity is at least 10 feet wide, and also this involved agricultural machinery and trailers approximately 33 feet long on a daily basis for anything between a week and a fortnight at any one time. He stated that he brought all the equipment from his farm down Brickendon Lane in a southerly direction and then would turn right into the Field.

 

Mr Martin Todd

36.              Mr Todd made a statutory declaration is dated 24^th August 2009. He was subject to a lengthy cross examination by the Respondent’s Counsel. Mr Todd worked for Messrs F T & W Vigus as a tractor driver and stock man from October 1966 to January 1969 and then again from January 1973 to April 1989 as a herdsman. He was made redundant in April 1989 when the “animals went to Devon”. In January 1973 he and his family moved into number 2 Sewards New Farm Cottages, now known as 2 Sewards Farm Cottages, and he took charge of a new hundred cow dairy herd for the Vigus family.

 

37.              Mr Todd confirmed that F T & W Vigus purchased Sewards Farm and numbers 1 and 2 New Sewards Farm Cottages in September 1967. Since then whilst he was employed by the company he said that he regularly exercised a right of way with or without vehicles over the Verge through the Entrance at point Y into Inclosure 97. He said that the Verge was regularly used by tractors, trailers, mowers, harrows, and a Land Rover with a horse box. He had various jobs as part of his duties as a tractor driver and stockman (he would go and do a job when needed). This included harrowing the field in question and spreading slurry with a slurry tanker over it, and also emptying the cesspit which served 6 or so dwelling houses. This used to occur about once or twice per week in winter. Although it was difficult to say he thought that he drove vehicles through the entrance “fairly regularly”, and probably about twice per month. Mr Todd confirmed that there was always a gate at the Entrance at point Y, but could not recall the type.

 

38.              As to Inclosure 97, he recalled that there was always a division across it between the larger northern half, which was always arable, and a smaller grass field to the south for the grazing of cattle. He said that there was never any ditch, and was insistent in cross examination that there was a dividing line between the arable and grazing parts of Inclosure 97 which were divided into two fields in 1973 with a barbed wire fence.

 

39.              He confirmed that the cows did not graze every day, he thought probably about 5 to 6 days, and that he would go into the Field with the Land Rover and a livestock trailer. He also stated that there was no motor cycling around Inclosure 97 that he could remember - as asserted by Mrs Dianne Quinney to support the case that there was no fence dividing that field. His recollection was that Mr Vigus put in a five bar gate, and that originally there was a stock proof iron gate at the Entrance. He thought that it could have even been a wire gate originally.

 

40.              Mr Todd was later recalled to give further evidence – this was by telephone. His memory had been triggered by hearing the evidence of Mrs Christine Mercer in relation to the gate to the entrance at point Y. He produced a copy invoice dated 6^th January 1989 for the supply, fitting and hanging of two hardwood gates – one being a gate 11 foot in width, and the other being a pedestrian gate 4 foot in width, for the sum of £220. These replaced the previous gate at the Entrance and the labour expended was about 4 hours. He agreed that the gap at that point possibly could by then have been wider than before as these two gates had a total width of 15 feet. Mr Todd was adamant that he used these gates at the Entrance and that they were not used at the front of Toad Cottage.

 

Mrs Christine Mercer

41.              As I have indicated above, the position with regard to Mrs Christine Mercer was somewhat unsatisfactory, and I have been invited to give whatever weight I consider appropriate to her evidence. Mrs Mercer provided two letters, the first being dated 13^th November 2009, and the second being dated 14^th November 2010. She in effect refused to appear at the hearing. Mrs Mercer was the vendor of Toad Cottage which she sold to the Applicant. She stated that during her period of ownership she accessed the Field on numerous occasions and this included use by farm vehicles for the maintenance of the land. There was a traditional five bar gate at the Entrance. She did state that on one occasion about the time that she constructed the barn on her land that builders and material suppliers were using the Entrance daily. In her second letter, she referred to the evidence of Mr Todd, and stated that she could recall that the only gate fitted at the Entrance was a single five bar gate with new side posts. Prior to that she stated that the original gate was in a dilapidated state.

 

The Respondent’s Evidence

The Respondent

42.              Insofar as the evidence given on behalf of the Respondent is concerned, besides the Respondent himself the following witnesses were also called:- Mr Frank Harrison, who provided a witness statement dated 5^th April 2010; Ms Marianne Clee who provided a letter dated 13^th April 2010; Mr Allan John Cobb, the Respondent’s father, and Ms Carolyn Gee who provided a statement dated 5^th April 2010. As I have said, Mrs Dianne Quinney was added as a Second Respondent to the Application, and she herself gave evidence. Finally, Mrs Eileen Mercer gave evidence by telephone, she being the mother in law of Ms Christine Mercer.

 

43.              The Respondent relied upon his statement of case as his witness statement. It is a somewhat lengthy document containing a number of exhibits. The Respondent also relied upon what is referred to as a second witness statement dated 15^th October 2010 which itself contains some 15 or so exhibits. In paragraph 20 of his second witness statement the Respondent refers to a number of aerial photographs taken by him of the area in question which are marked as R1 to R4. He took these photographs in his capacity as a qualified private pilot. On these photographs he has made a comparison of the access with earlier photographs by using certain benchmarks. Those photographs are exhibited as “D” and “E” to his statement of case, and exhibit “N” to the second witness statement. Exhibit “N” is the original copy of “D” and “E” before they were separated into two photographs. He also produced a report as exhibit “S” which he refers to as the “methodology of calculation”. The Respondent contends that these photographs demonstrate that the Applicant has considerably widened the Entrance at point Y. There are also a number of other photographs taken on the ground.

 

44.              The Respondent’s memory of the area is from 1976 when his parents, together with him and his sister, moved into Sewards when he was aged 10. He was not aware of the area before then. His early recollection is using motorbikes, which he and his sister were given as presents, and he recalls driving around Inclosure 97 “only when convenient”. He remembers a gap in the hedge, and cows, but could not be more specific. He cannot recall any physical division in that field until possibly in 1988 when that Inclosure was physically split on the sale of the Field to Mrs Mercer. From that point in time he contended that the only access into the Field was across the Verge through the Entrance. In 1990 the Respondent then left the area to live in Bedfordshire, but more recently in 2002 he and his family have moved to Hatfield Peverel, which is nearby. As to the use of the Entrance the Respondent accepts that there has been some use with and without vehicles, but for agricultural use only. The Respondent also accepts that there was a gap in the hedge at point Y where there had been a five bar gate approximately 3 metres in length. He could not recall a separate pedestrian gate.

 

Allan Cobb

45.              The principal evidence was from the Respondent’s father who relied upon his witness statement dated 30^th March 2010. He has owned and lived in Sewards for 34 years. He stated that the verges (including the Verge) were purchased for the purpose of securing the countryside around Sewards and to retain the rural setting. Between 1979 and 1994 they were held in his former wife’s name (Marianne Cobb, now Clee) before being transferred to him during the divorce proceedings. In 2003 he transferred some of the land and verges surrounding Sewards to his son and daughter, Warren and Dianne.

 

46.              Mr Cobb, senior, said that prior to 1986 Sewards Farm was a dairy farm, and the principal access point from the farmyard into Inclosure 97 was directly opposite the farm entrance at point Z on the Plan. He accepted, however, that there was some form of separate access further south along Brickendon Lane at the Entrance at point Y, but it was a pedestrian type of entrance the gate being not a standard type gate. It was some form of “bodged up gate”. He could not recall ever having seen a pedestrian gate as such. The Entrance was small and formed in order to accommodate the dairy herd crossing Brickendon Lane, but the visibility splays poor. It was never designed other than for the use of livestock crossing the road and was never used by vehicles. He stated that no machinery came through the Entrance at point Y.

 

47.              Thus farm vehicles would use the main entrance at point Z directly opposite the farmyard which encompassed a hard standing. The entrance at point Z was considerably wider and had better visibility splays in both directions along Brickendon Lane. At point Z he described the wooden gate structure as being in the nature of a “hurdle”. There was also a structure to the right hand side of this entrance which he described as being a table for milk churns which was taken away in 1976. According to him these features appear in the photograph taken in 1967 at page 139 of the Bundle.

 

48.              He then went on to state that after Sewards Farm was sold in 1988 Inclosure 97 was divided into smaller plots and sold to several different people, including Mrs Mercer. He further stated that at this time the access to the Field was via her own property at number 2 Sewards Old Cottages, and in 1995 Mrs Mercer built a hay barn next to what became Toad Cottage which was conveniently accessed from her own driveway. He went on to state that he could not recall Mrs Mercer ever using the Entrance at point Y across the Verge for agricultural purposes i.e. for the grazing of cattle. However he did recall that on one occasion it was used for the delivery of building materials.

 

49.              Mr Cobb further stated that since the Applicant has owned Toad Cottage and the Field he has enlarged the Entrance so as to allow larger vehicular movements. He went on to state that in order to create a larger entrance the Applicant removed part of the hedge belonging to Mr Cobb and made a larger gateway which is “camouflaged” by close-boarded fencing. He says that the use of the Field by the Applicant is predominantly for equestrian and leisure pursuits only and therefore has no longer any agricultural use. Reference is made in his evidence to the Applicant laying hardcore over the Verge in 1999, and that in 2006 a rugby match was held in the Field where some 60 cars or so drove across the Verge. He also said that in 2008 he saw another large vehicle attempting to exit from the Entrance over the Verge and several of the posts on the neighbouring verges opposite were demolished and the Verge damaged.

 

50.              An issue was also raised to the effect that Mr Cobb, senior, had protested about certain aspects of the user of the Verge post 1999 with the Applicant. In evidence he referred to having challenged Mr Courtney on several occasions, such as the laying of the hardcore and its eventual removal, and the holding of a rugby match on Inclosure OS 6775. Mr Cobb referred to letters dated 29^th January 1999, 5^th May 2000, and 25^th August 2000 (at pages 117 to 119 of the Bundle) to the effect that the Verge had been damaged and/or that the access over it through the Entrance was being used for non-agricultural purposes. The question then arises as a matter of law as to whether any user was thereafter as of right.

 

51.              As to the question of there being a form of physical division across the former Inclosure 97, Mr Cobb stated that he was “pretty sure” that there was no fence across it and he had never noticed one. If there is one it has only been there for a short time. He thought that there may have been a ditch or culvert. He did, however, accept that a division was created across Inclosure 97 later. He also said that in Inclosure 97 the area to the north was principally for the growing of wheat and corn, and possibly sugar beet, and the area to the south was for grass and hay, and it was where cows grazed.

 

52.              Mr Cobb also stated that in 2008 as a result of an exchange of letters the Applicant made a verbal offer of £5,000 in order to try and secure an access across the Verge. This he refused. The Applicant does not dispute that this event occurred, but he challenges the perceived effect of it. Again a question of law then arises as to whether the Applicant had compromised his asserted position.

 

Mr Frank Harrison

53.              Mr Harrison gave his evidence by telephone based upon a statement dated 5^th April 2010. He lives at 1 Owls Hatch Cottages, Brickendon Lane, which is about 300 yards from Sewards. He has lived there since 1961 when he was in his early twenties. He said that he passes the Verge on a daily basis and that he is familiar with the local area. He said that he makes two return journeys every day, now and previously, and often he also walks. He also stated that he can see the Field from his garden, and that he can also see Toad Cottage and the gates at point Y, but this was dependent on the time of year and vegetation. As to the Entrance, he stated that there had been a small gap in the hedge which had not been formalised with a gate, that being a later addition. It was only a post with a frame which was moved across from the 1960s onwards. He stated that he had never seen the Entrance being used by agricultural vehicles during the time that Messrs Vigus owned the farm, but it was a convenient cut through for cattle and reduced the mud on the main farm drive, especially during the wet winter.

 

54.              Mr Harrison also confirmed that it was probably in 1988 that Inclosure 97 was divided at the date of purchase by Mrs Mercer from Messrs Vigus. He went on to say that since Sewards Farm was sold he has never noticed that the access at point Y through the Entrance ever being used. It became more overgrown until he noticed a close boarded fence had been installed which he now understands to be gates “in disguise”. He has never noticed vehicles or ever knew that vehicles went in and out of the Entrance. On one occasion he did notice a lorry and the hard core having been laid. He also stated that he was aware that the Entrance was now much wider than before, and originally it had been much narrower. He also stated that the northern half of Inclosure 97 was used for crops whereas the other half was used for animals.

Mrs Marianne Clee

55.              Mrs Clee (formerly Mrs Cobb) provided a letter dated 13^th April 2010. She confirmed in this that she lived at Sewards from 1976 to 1991, with a short break from 1986 to 1988. She also stated that the main entrance to Inclosure 97 was opposite Sewards Farm Drive, and that there was a secondary smaller entrance into the Field at point Y. This was more a gap in the hedge closed off by a gate. She stated that she could only remember this access being used to transfer cows. Ms Clee was shown a photograph at page 142 of the Bundle and she stated that it was never as wide as that as she recalled. She could not recall any physical barrier across Inclosure 97.

 

Mrs Carolyn Gee

56.              Mrs Carolyn Gee also gave evidence and relied upon her undated witness statement made in these proceedings. She has been living with Mr Allan Cobb at Sewards since 2001, but has known him since 1986 and during this time had been a regular guest at Sewards. She said that she passes the Verge several times a day. Since living at Sewards she has been aware of a double gateway concealed behind a close boarded fence, but stated that she has never seen this being used for vehicles in connection with agricultural activities.

 

57.              During the overnight adjournment of the hearing Mrs Gee took a number of photographs as she stated that something which had been said the day before had triggered her memory. The essence of this part of her evidence was that she was convinced that there was an access from what she described as the “spinney field” (i.e. the retained part of Inclosure 97) to what she also described as the “rugby field” (i.e. inclosure number OS 4775). She walked across from the spinney field to the rugby field. In short, Mrs Gee was asserting that there was direct access from the land to the north directly into inclosure number OS 4775. She accepted, however, that she had never walked there before. She also stated that she could not remember a pedestrian gate in the Entrance, and as far as she could recall there was only one gate. She denied that the gap itself was some 15 feet in width, and said that it was only between 8 and 9 feet.

 

Mrs Eileen Mercer

58.                Mrs Eileen Mercer is the mother in law of Mrs Christine Mercer. Her evidence appears in the form of a letter dated 13^th April 2010, and she gave oral evidence by telephone. She confirmed that she lived at number 2 Sewards Cottages from 1980 to 1989. She recalled that the entrance or gap at point Y was only ever used for transferring cows from Sewards Farm into the field adjacent to what became Toad Cottage. She stated that she was never aware of this gap ever being used by vehicles, nor could she recall any gate or barrier there. However, she said that the entrance opposite Sewards Farm drive at point Z was the one that was used to transfer cows and tractors across Brickendon Lane and into Inclosure 97. She stated that this entrance was wider and more appropriate for the use of farm vehicles. She only saw occasional tractors using the fields, and not very often. She however did see occasional vehicles emptying the cesspit before the Klargester was put in. She had no recollection of any physical barrier between the two fields.

 

Mrs Dianne Quinney

59.              Mrs Quinney is the sister of the Respondent and made a statement on 27^th October 2010. She said that she had lived at Sewards Farm from 1976 until approximately 1992. She stated that with the permission of Mr Vigus she used to drive a Honda 50cc moped around the perimeter of the Inclosure 97, and that her recollection was there was no division in the form of a hedge or fence between the two parts of Inclosure 97 when she lived in Sewards from 1976 until leaving in 1992.

 

Photographic evidence

60.              I have also made reference to the fact that there are a number of photographs taken on the ground and included in the Bundle which were referred to during the course of the evidence. It is said by the Applicant that these clearly demonstrate some form of physical barrier from an early stage at least since 1971 separating the two parts of Inclosure 97. I particularly refer to the following photographs:–

 

(1)               At pages 126 and 163 taken in October 1971;

(2)               At page 125 apparently taken in 1980. There is a further reproduction of this photograph at page 165 which is said to have been taken on 15^th May 1990, but this must be incorrect;

(3)               At page 124 apparently taken in 1990. There is further reproduction of this photograph at page 164 said to have been taken on 15^th May 1990;

 

At page 157 being an undated but recent photograph referred to as “Exhibit L” to the Respondent’s second witness statement dated 15^th October 2010. This appears to show a mature physical barrier of trees and hedges between the two parcels.

 

THE LEGAL POSITION AND SUBMISSIONS ON LAW

61.              As I have said, the case for the Applicant is placed on alternative grounds, namely, under the Prescription Act 1832, or under the doctrine of Lost Modern Grant. In this regard reference should be made to Gale on Easements (18^th Edition), and in particular to paragraphs 9-02 to 9-16 for a detailed exposition on the extent of rights of way acquired by user. In paragraph 9-02 Gale provides a helpful series of questions some of which are relevant to the circumstances of this case. There is some dispute between Counsel as to which of those questions are in point insofar as the present circumstances are concerned. It is submitted by Counsel for the Applicant that the issues to be addressed are those set out in questions 1, 2 and 4 of the list. The Respondent’s Counsel for his part submits that there are two additional questions to be addressed, namely questions 3 and 5. For the sake of completeness I will set out the following questions:-

 

                                                         (1)      What is the physical extent of the way?

                                                         (2)      What mode of use (i.e., on foot, vehicular) is permitted?

                                                         (3)      Is the way being used to gain access to land other than the dominant tenement?

                                                         (4)      Is use limited to any particular purpose?

                                                         (5)      Are there any other limitations on the manner of use, such as frequency, times, size or weight of vehicles?

                                                         (6)      ……

 

62.              It is said that these various questions are important in order to be able to understand what is meant by the term “excessive” i.e. user which goes beyond the boundaries of the right acquired. These questions are equally applicable in the case of easements acquired by prescription and those acquired by grant, but the approach to answering such questions and the applicable rules to be applied are very different in each case. Therefore, in the case of a right acquired by user its extent is measured by the extent and purpose of the user upon which the acquisition of the right is based. Since the hearing my attention has been drawn to a case on excessive user, namely the extent of a prescriptive right of way restricted to agricultural purposes with or without animal, and whether this included the driving of stock. The Court of Appeal held that the right of way in the circumstances did not include the driving of stock, (see Dewan v Lewis [2010] EWCA Civ 1382).

 

63.              Thus it is said that the extent of a right acquired by implied grant is governed by considerations similar to those governing a right acquired by user (see McAdams Homes Limited v Robinson [2005] 1 P & CR 30).

“Where a right of way is acquired by user, since user is not continuous and may vary, there may be difficulty in determining the scope of the rights acquired. The general rule is that, where a right of way is acquired by user, the extent of the right must be measured by the extent of the user.” (See Gale, paragraph 9-03)

 

64.              Thus, as Counsel for the Respondent submits, in order to answer the relevant questions set out above, it is necessary to look at the use of the Verge as the servient land for the entire period of 20 years. The nature of the right of way acquired by prescription depends upon the use that was made of it throughout the prescriptive period, and not just snapshots of such use at or towards the end of that period. The extent of the right of way must be measured by the extent of the user. Reliance is placed upon dicta in Wimbledon and Putney Conservators v Dixon (1875) 1 Ch 362, and Loder v Gaden (1999) 78 P & CR 223. The oral evidence given in support of and in opposition to the claimed right of way is therefore crucial in the context of the dominant and servient tenements.

 

65.              I now turn to the issues arising from these questions.

 

The physical extent of the way

66.              The Applicant submits that as an essential prerequisite it is necessary to determine who owns the hedge, and that it falls within his ownership. The conveyance dated 14^th November 1938 by which the land and premises including Sewards’ Farm, the verges to Brickendon Lane (including the Verge) and Inclosure 97, were conveyed into the separate ownership of Mr Gocher is not available, but the Applicant contends that it is plain from the physical layout of the site that the hedge was planted to surround the Field, that is by the owner of the Field rather than the owner of the roadside verges. Thus an inference can be drawn as to the ownership of the hedge from the physical circumstances. Insofar as it is necessary the Applicant seeks to rely upon the hedge and ditch presumption.

 

67.              Thus, it is asserted by the Applicant that he can cut down the hedge wherever and whenever he so desires, and that the width of the Entrance at any given time cannot be a factor which would limit the extent of the right of way. The physical extent of the right of way will be determined not by the way that it was actually used from time to time, but rather by looking at how the fictional grant would be construed bearing in mind the circumstances on the ground at the time of the grant. Thus, since there was no reason to limit the physical extent of the way, the right of way will have been of such width as would be reasonably necessary to access the dominant land for the relevant purposes. In this regard the Applicant therefore submits that a right of way having a width of the existing gate at the Entrance and splaying out towards the highway to form a rhomboid shape would satisfy that requirement. The width of the existing gate being 4.6 metres (or 15 foot 4 inches) at the Entrance and splaying out towards the highway with a length at that point of about 6 metres would satisfy that requirement.

 

68.              Accordingly, the Applicant contends that the factual dispute about whether the width of the Entrance was altered when he replaced the five bar gate with a close boarded gate is of minor relevance as a matter of law.

 

69.              For his part the Respondent submits that the hedge remains within the ownership and any right of way through the Entrance over the Verge is limited by the physical extent of the gap in the hedge which was actually used. . This he asserts was at most 3 metres in width (or 9.84 feet). However, in about 2008 it is contended that the Applicant had considerably widened the width of the Entrance to create a much wider access. This can be seen, so it is said, by making a comparison of photographs at pages 139, 140 and 156 with those at page 142 of the Bundle. The Respondent submits that the Applicant cannot widen the access beyond that which was actually used over the period of prescriptive acquisition.

 

Mode of use

70.              An essential aspect of this case is whether any vehicular use of the Verge and Entrance has occurred during the relevant period i.e. any 20 year period since 1967 in order to ground the claim made by the Applicant that the right of way was both with and without vehicles. In the event that I am satisfied that there has been vehicular access for the relevant period there then arises the further question as to whether such access was limited to agricultural vehicles only or extended to non-agricultural use.

 

71.              It is asserted by the Applicant that having regard to the evidence of the various witnesses, and in particular Mrs Vigus, Mr Todd and Mr Peters, that there was extensive use of the Verge and the Entrance by a variety of vehicles for a considerable period of time which has established beyond peradventure that there was such use made by a variety of agricultural vehicles. This use was more than merely occasional. For his part, the Respondent now accepts that there has been some use of the Verge for agricultural purposes, but this is limited to on foot and with animals. I have referred above to the evidence in this regard insofar as there has been alleged agricultural and non-agricultural vehicular access.

 

Purpose

72.                Further as a matter of law, it is contended by the Applicant (and rejected by the Respondent) that user for any purpose for the relevant period will result in a prescriptive easement for all purposes to which the dominant tenement might have been applied at the time of the supposed grant (i.e. at the beginning of the 20 year period). The case of McAdams Homes Limited v Robinson is cited in support of this proposition at paragraphs 29, 31 to 34, 50, 51, and 79, together with the case of Atwood v Bovis Homes [2001] Ch 379.

 

73.              The head note in the McAdams Homes Limited case reads as follows:-

 

“…it was well established that

(1) where the dominant land is used for a particular purpose at the time an easement is created, an increase, even if substantial, in the intensity of that use resulting in a concomitant increase in the use of the easement, cannot of itself be objected to by the servient owner.

(2) excessive use of an easement by the dominant land will render the dominant owner liable in nuisance.

(3) where there is a change in the use of, or the erection of new buildings on, the dominant land, without having any effect on the nature or extent of the use of the easement, the change, however, radical, will not affect the right of the dominant owner to use the easement. The question in issue had to be determined by asking two questions:-

(i) whether the development of the dominant land i.e. the bakery site, represented a “radical change in the character” or a “change in the identity” of the site, as opposed to a mere change or intensification of the use of the site; and

(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. When considering that question, the court was entitled to take into account possible alterations or intensifications of the use to which the dominant land was put at the time of the creation of the easement, and was not limited to considering the actual extent of the enjoyment of the easement by the dominant land at the time of the creation or grant of the easement. Only if the redevelopment of the site represented a radical change in its character and would lead to a substantial increase in the burden, would the dominant owner’s right to enjoy the easement of passage of water through the pipe be suspended or lost….”

 

74.              Turning to parts of the judgment in the case, as to the third point Neuberger LJ states, as follows:-

“….where there is a change in the use of, or the erection of new buildings on, the dominant land, without having any effect on the nature or extent of the use of the easement, the change, however, radical, will not affect the right of the dominant owner to use the easement.…..(para 29) [Reference is then made to dicta in Lutrell’s case (1601) 4 Co. Rep. 86a, and the case of Watts v Kelson (1870-71) LR 6 Ch. App. 166].

In those two cases, the nature of the easement was such that it was very unlikely that an alteration in the dominant land could substantially alter or increase the enjoyment of the easement or cause any prejudice to the servient owner. Atwood v Bovis Homes Ltd [2001] Ch. 371 involved rather different facts, although it can fairly be said to be to the same effect. In that case, the dominant land, which had at all times been used for agricultural purposes, had a prescriptive right to drain surface water over neighbouring land. Notwithstanding that the proposed change in the dominant land, namely a development to a housing estate, would be very substantial, I held that the right could still be enjoyed and would not be lost. This was because the dominant owner, through the medium of a water drainage scheme, was going to ensure that the quantum of surface water passing over the neighbouring land would remain wholly unaffected by this radical development. (para 31)

 

The decision and reasoning of the Court of Common Pleas in Harvey v Walton (1873) L.R. 8 C.P. 162 appears to have endorsed the same approach. A right of eavesdropping was not lost when the dominant owner demolished the building on his land and replaced it with another, taller, building. Giving the judgment of the Court, Grove J. said:

 

“We are of the opinion that the question here … is whether there has been a substantial variance in the mode of or extent of user or enjoyment of the easement, so as to throw a greater burden on the servient tenement … [T]here must be an additional or different servitude and the change must be material either in the nature or in the quantum of the servitude imposed.” (para 32)

 

These cases appear to me to rest on the proposition that the servient owner is ultimately more concerned with an alteration in the nature or extent of the enjoyment of the easement over his land, rather than with a change in the nature or extent of the use of the dominant land. The use of the dominant land will determine the character and extent of the enjoyment of the easement, and a change in the use may obviously lead to an alteration in that enjoyment. However where the change in the use of the dominant land does not lead to such an alteration, there is no basis for concluding that the easement cannot continue to be enjoyed in connection with the dominant land. [My italics] (para 33)

 

Fourthly, there a number of cases which bear on the converse question, namely the effect of a change in the use of the dominant land which results, or may result, in an alteration in the manner or extent of the use of the easement. In Williams v James (1867) LR 2 CP 577, Bovill CJ said at 580 that a right of way obtained by prescription for the purpose of carting hay to field “cannot be increased so as to affect the servient tenement by imposing upon it any additional bruthen”. This approach was adopted in Wimbledon and Putney Commons Conservators v Dixon (1875) 1 CH. D 362 where a prescriptive right of way had been enjoyed in connection with the use of the dominant land for agricultural purposes, which had included enlarging the farmhouse and rebuilding a cottage. (para 34)

 

The authorities discussed above appear to me to indicate that that issue should 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 laid down in Harvey and in Wimbledon and applied in Milner’s and RPC Holdings). (para 50)

 

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. (para 51) [My italics]

 

The following observations may be made about the relevant authorities:

 

(i)            In general, authorities on prescriptive easements apply equally to implied easements and vice-versa.

(ii)          In general, authorities on rights of way apply equally to rights of drainage: see Wood v Saunders (1875) 10 Ch. App. 582, 584-5, per Hall V-V (where Williams v James (infra) was expressly applied); and Atwood v Bovis Homes Ltd [2001] Ch. 379, 388H, per Neuberger J.

(iii)        The authorities on rights of way, from the leading case of Williams v James (1867) LR 2 CP 577 onwards, establish that the right impliedly granted or prescriptively acquired is a right for all purposes according to the ordinary and reasonable use to which the dominant tenement might be applied at the time of the implied or supposed grant.

(iv)        The authorities on rights of way subsequent to Williams v James fall into two broad categories: first, those where there has been a change in the character of the dominant tenement leading to a substantial increase in the burden of the easement, in which cases use of the right has been restrained; second, those in which there has been no such change but a considerable increase in the use of the right, in which cases the use has been allowed to continue. [para 79]

 

75.                Thus, the Applicant submits that as a matter of law the purpose for which user has in past been made of the Verge as the servient land is irrelevant. It is contended that user for any purpose for the relevant period will result in a prescriptive easement for all purposes to which the dominant tenement might have applied at the time of the supposed grant. Thus, according to the Applicant it would be wrong in law to impose a limitation on the purposes for which the easement can be used. In short, it must be an easement for all purposes. It is acknowledged by the Applicant that if the user of the Field as the dominant tenement results in an excessive user of the easement, then that would be actionable by the Respondent or his successor in title. However, it is submitted that this is not the case. The Applicant contends that he is entitled to an easement having arisen by prescription for all purposes.

 

76.                For his part the Respondent takes issues with this interpretation of the McAdam case and contends that it is not authority for the proposition that user for any purpose for the relevant period will result in an easement for all purposes. Further, the Respondent submits that agricultural use does not permit the Applicant to use the Verge for access to the manège or stables. It is contended that such user is recreational and is an adjunct to the residential use of Toad Cottage. Such use is not agricultural use.

 

User post January 1999

77.                A discrete issue arises insofar as user of the Verge post 1999. This is whether such use continued to be as of right as contended for by the Respondent on the basis that his father had protested about certain aspects of the user. At paragraph 50, above, I have referred to the evidence of Mr Allan Cobb in this regard. Since the hearing the Applicant’s counsel has referred me to a recent case on the issue of contentious user, namely the decision of Morgan J in the case of Betterment Properties (Weymouth) Ltd v Dorset County Council [2010] EWHC 3045 (Ch) (23/11/2010).

 

78.                The Applicant raises three points in this regard:-

 

(1)               It is not necessary for him to rely upon the period post 1999 in order to establish 20 years as he can found his claim on the doctrine of Lost Modern Grant at any completed period of 20 years instead of relying upon the provisions of the Prescription Act 1832. It is submitted by him that the easement over the Verge had already been established well before 1999.

 

(2)               The complaint raised in the letters dated 29^th January 1999, 5^th May 2000, and 25^th August 2000 (at pages 117 to 119 of the Bundle) was that the Verge had been damaged and/or that the access over it through the Entrance was being used for non-agricultural purposes. It is said that there is no evidence that any complaint was made about the continued agricultural user after the year 2000. Thus as a matter of fact there has been no clear indication to the Applicant that his user of the Verge was in the face of the servient owner’s protests. In short, the letters do not indicate that user of any description of the Verge post 1999 was against the will of the Respondent’s father.

 

(3)               It is contended that even if these letters had clearly spelt out that the servient owner objected to any user of the Verge this in any event would not be sufficient to render subsequent user vi.

 

“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.” – see Smith v Brudenell-Bruce (2002) P&CR 51 at p.59.

 

(4)               In the Smith case letters containing strong wording were sufficient to render subsequent user vi. It is submitted that the reason for this was because it was not practical for any physical steps to be taken to prevent the user because other members of the public had to use the roads in question. However, in the present case if the Respondent as the servient owner had wanted to prevent all further use of the Verge he could have simply erected a post or posts across it in order to achieve this. Had this action been taken then this might well have rendered subsequent user vi, but this did not occur.

 

 

The effect of the 2008 offer to pay

79.              The facts reveal that an offer was made by the Applicant to the Respondent apparently seeking to settle the dispute concerning the extent of his present and future enjoyment of the claimed rights. For his part the Applicant submits that this offer is completely irrelevant insofar as the substantive issues are concerned as there is no evidence to the effect that he has admitted that he had no present right. There was no formal position setting out an offer and no assertion could be made as to any possible estoppel. In short, it is submitted that nothing can be drawn from any such approach.

 

80.              For his part the Respondent submits that this was an offer made by the Applicant to pay for the full right of way over the Verge. This, in effect, compromised the Applicant’s position and was completely inconsistent with his claim that there was an existing vehicular right of way for all purposes. Dicta in the cases of Mills v Silver [1991] Ch 271 and Smith v Patel [1987] 1 WLR 853 are prayed in aid in support of the Respondent’s case in this regard.

 

THE FINDINGS

81.              Thus, as I have stated in paragraph 19 above, essentially there are three issues to be determined in this case. Before turning to each of these issues it is necessary to draw together the various strands and make appropriate findings based upon such evidence. These finding are of fact, law, and mixed fact and law, and are as follows:-

 

(1)               The Applicant purchased Toad Cottage in May 1998 and the Field apparently in 1999 from Mrs Christine Mercer. Based upon the evidence before me I find that from at least 1967, and for many years prior to the purchase of the Field by the Applicant, it had been used regularly for agricultural purposes and for such purposes only. From at least 1967 the Field had formed the southern portion of Inclosure 97, but in 1988 this was formally segmented and the southern parcel (i.e. the Field) was formed on the sale of part to Mrs Mercer.

(2)               Agricultural activities - the agricultural activities carried out on Inclosure 97 since 1967 were twofold. The larger northern parcel of this Inclosure was always arable and principally used for the growing of wheat and corn and possibly sugar beet, and the smaller southern parcel was used for the grazing of cattle and for grass and hay. In this regard I accept the evidence of Mrs Vigus, Mr Peters, Mr Todd, Mr Harrison, and Mr Allan Cobb. Further, although in 1988 Sewards Farm ceased to be a working dairy farm I find that after that date agricultural use of the Field continued in that hay making and silage were activities that were still carried on there during the period of ownership of Mrs Mercer and the more recent ownership of the Applicant. In particular, I find that the Field continued to be regularly used for hay making and silage after the Applicant purchased the Field in 1999. I also accept the evidence of the Applicant and Mr Peters that an arrangement was entered into between them for Mr Peters to take the hay from the Field to feed his beef animals, in return for other favours.

(3)               Thus, in short I find that there has throughout been clear and uninterrupted agricultural use of the area of land which became the Field since at least 1967 principally for the growing of hay and silage, and also until 1986 for the grazing of cattle.

(4)               Access to the Field - insofar as access to the Field is concerned, based upon the evidence of Mrs Vigus, Mr Peters, Mr Todd, Mrs Christine Mercer, Mr Allan Cobb, Mr Harrison, Mrs Clee, and Mrs Eileen Mercer, (who confirmed such access by reference to various stages of their historical knowledge), I find that there have been since 1967 always been two access points into Inclosure 97 at points Y and Z. I further find from this evidence that the Verge was regularly used from 1967 until 1988 in that cattle would be moved down Brickendon Lane into that part of Inclosure 97 which became the Field in order to enable cattle to graze thereon. Cattle would cross over the Verge at point X and through the Entrance at point Y. I also find that the Entrance was also utilised so as to enable access to be gained from Brickendon Lane into the Field over the Verge for the various other agricultural activities such as hay making and silage, and that this access point was a convenient point of entry. In short access was gained in this way by persons on foot, with animals (until 1988), and with agricultural vehicles (see (5) below).

(5)               Vehicular use - as to the question of vehicular use of the Field, I find that in order to pursue such agricultural activities on the Field since at least 1967 there has been use by a number of different types of vehicles associated with such agricultural purposes. It is clear from the evidence of Mrs Vigus, Mr Peters and Mr Todd that vehicles such as combine harvesters, hay turners, balers, tractors and trailers, tractors with attached mowers, forage harvesters, Land Rovers, together with a slurry truck for the emptying of the cesspit, and a tractor and trailer for spreading slurry (sometimes 20 loads per day), were all used on the Field for the purposes of hay making, silage and forage. In so far as silage was concerned some 15 to 20 trailers would be used to remove the silage. Some of these vehicles were clearly of some considerable width and length as described by Mr Peters. He referred to one machine as being 10 feet wide and with a trailer was approximately 33 feet in length. I find that all such use by agricultural machinery was discontinuous but regular, sometimes on a daily basis, sometimes several times a day, but other times more infrequently, depending on the time of year/season, and the type of activities which were carried on the Field at any particular time. I should also mention that at one stage during the evidence there was mention of a trailer attached to a Land Rover going into the Field to pick up new born calves.

(6)               Width of the Entrance – there was some contention between the witnesses for the respective parties as to the width of the Entrance at point Y. I find (having regard particularly to the evidence of Mrs Vigus, Mr Peters and Mr Todd), that from an early stage and probably since about 1967 the gap at the Entrance was sufficiently wide not only to allow the passage of pedestrians but also with agricultural vehicles. It was clear from the evidence of Mrs Vigus that during the ownership of Seward’s Farm by Messrs Vigus agricultural machinery could access the Field through the Entrance such as tractors and combine harvesters, and other types of vehicles, to which I have referred above. I therefore find based upon this evidence that the Entrance throughout the decades has been much the same width. Thus I reject the evidence of Mr Allan Cobb, and Mr Harrison, that this gap was much smaller in the early years and was used only to accommodate occasional use by the dairy herd, and was never used by vehicles.

(7)               Ownership of the hedge – As to this issue as I have found that the width of the gap at the Entrance has probably remained more or less the same for many decades, I do not consider that the ownership of the hedges on each side of the gap is particularly relevant to the issues in hand. However, in the absence of any documentary evidence as to ownership, I consider that it is more likely that the hedges were sold by the vendor to Mrs Mercer as part of the estate sold, and then in turn sold to the Applicant. It would be unusual in my view for fields to be sold without hedges. Further, where land abuts common land, a principle of arises which is known as “fencing against the common”. This is an obligation on the part of adjoining landowners to maintain hedges in order to protect their land adjoining common land from straying animals. This does not itself mean that the hedges therefore fall within the ownership of the adjoining landlord. However, it would seem inconceivable that once land has been inclosed, but some neighbouring parts remain as common land, the hedges erected fall within the ownership of the owners of the land of the common when the maintenance of such is a duty of the adjoining landowner.

(8)               Gateway system - as to the type of closure at the Entrance, I also consider that it is probable that there has been a form of stock proof gate in place at the Entrance since 1967 of similar approximate size since then. This, in my judgment, would have been necessary to prevent straying cattle. In the earlier years this was some form of iron gate which became old and dilapidated. I therefore accept the evidence of Mrs Vigus, Mr Peters, Mrs Christine Mercer, and Mr Todd in this regard. I also accept the evidence of Mr Todd that he supplied fitted and hung two hardwood gates at the Entrance at point Y in January 1989, the larger gate being 11 foot in width and the other being a pedestrian gate 4 foot in width. I therefore reject the contention that this hardwood gateway system was fitted to the entrance of what became Toad Cottage.

(9)               I therefore do not accept the evidence of Mr Allan Cobb (and other witnesses) that the Entrance was small, or that it was never used by vehicles, and in particular that no machinery went through the Entrance, or that the close boarded fence was a gate “in disguise” (see Mr Harrison).

(10)           A summary - I find that the area which became the Field has throughout since 1967 been used for agricultural purposes, and that the Entrance at point Y and the Verge have enabled access to be utilised for those agricultural purposes both by pedestrians, by animals and by farm vehicles. I also find that the gap at the Entrance has always been large enough to accommodate such use and that there has throughout always been a gateway system of similar width across the Entrance.

(11)           I therefore find that on the basis of the doctrine of Lost Modern Grant that the Applicant is entitled to a prescriptive right of way over the Verge, but limited to agricultural purposes only.

 

82.              Further findings are as follows:-

 

(1)   Physical delineation across Inclosure 97 - In this regard although there was a marked conflict of evidence as to the possibility of there having been an earlier physical differentiation between the two parts of Inclosure 97, and in particular as the issue of the existence of a hedge or fence at a stage prior to the sale of the Field and Inclosure OS 4775 to Mrs Mercer, I find that it is likely that there had been such an earlier physical separation. I appreciate that the plans annexed to the conveyances of 14^th November 1938 and 3^rd August 1967 do not mark such a physical differentiation. However, the evidence of Mr Peters and Mr Todd was clear on this point. Mr Todd insisted that there has always been a dividing line between the arable and grazing parts, which had been divided in 1973 into two parts with a barbed wire fence.

(2)   The evidence to the contrary was from the Respondent and his witnesses. In particular this evidence came from his sister, Mrs Diane Quinney – who said that she and her brother occasionally drove round the whole of Inclosure 97 on the Honda 50cc motorcycle - and also from the Respondent’s father, Mr Allan Cobb. It was the Respondent’s case that it was not until 1988 on the sale of the Field and Inclosure OS 4775 that any physical boundary was created. I do not accept the Respondent’s case in this regard. This barrier undoubtedly reflected the different uses to which Inclosure 97 was put between what became later defined as the Field and the remainder of the retained land. In my judgment there would have to have been a physical separation to prevent cattle from trespassing on the arable parts of the field.

(3)   In this interpretation I am also supported by photographs. In the photograph at page 126 of the Bundle (the same photo appears at pages 126) apparently taken in October 1971 there is a clear straight line across Inclosure 97 at the point where the later differentiation was made between the Field on sale of part in 1988. The same line appears on the photograph at page 125, apparently taken in 1980. There is a further reproduction of this photograph at page 165 which is said to have been taken on 15^th May 1990, but this must be incorrect. Again in the photo at page 124, apparently taken 15^th May 1990, a similar line is shown. There is further reproduction of this photograph at page 164. All these demonstrate, in my judgment, that there was a physical separation of the two parts of Inclosure 97, which were later reified into separate parcels in 1988. All this supports the interpretation that although there were two entrances into Inclosure 97 at points X and Y, the Entrance at point Y was an essential access into the Field for animals and vehicles from at least 1971 or earlier, and the Verge was utilised for this purpose.

(4)   I further find that there was, and continues to be, access between the Field and Inclosure 4775 at the northern point of the boundary between the two fields where there is situated a brick culvert. The evidence revealed that some years ago a horse belonging to the Applicant sadly died there. I further find that from the date of purchase of the land comprising HD255040 in 1988 there has been no access between the land comprised in title number HD255040 (i.e. Inclosure OS 4775 and the Field) and the land retained at any point along its northern boundary, and in particular where there is situated a culvert - as was asserted by Mrs Gee.

(5)   Residential and/or recreational use – assertions were also made by the Respondent that agricultural use of the Field does not encompass either residential or recreational use. It was contended that the use of the Verge for the emptying of the cesspit until the septic tank with the Klargester had been installed in about 1988/9 was an instance of residential and not agricultural use. I reject this assertion. It is clear, in my judgment, that for several decades there was a duality of purpose in that the emptying of the cesspit meant that the various cottages and houses served by it benefited and therefore there was a limited residential use made of the Verge for this purpose. However, the slurry was itself used for agricultural purposes in that it was spread over the fields.

(6)   As to the use of the Field, and in particular the manège or the stables, for riding purposes, such use is clearly lawful. However, I find that such use cannot fall within the definition of agricultural use. Such use was, and remains recreational, and not agricultural. This is of importance for the reason that any use of the Verge for access to or egress from the manège in the Field is not only in breach of Condition 5 of the Planning Permission granted by the Local Planning Authority, but also it does not fall within the definition of agricultural user. Thus use of the Verge for those purposes would be unlawful both in terms of the planning use of land and rights over land which is limited to agricultural use.

(7)   I also find that it is unrealistic to expect access to be made on a regular basis to the Field for agricultural purposes from Toad Cottage, and it never seems to have been used for such purposes.

(8)   If I am wrong in this interpretation, as a matter of fact any such user of the Verge for the purposes of the riding school has not occurred for the requisite period of 20 years in any event.

(9)   Whether use post 1999 is as of right - In view of my findings I consider that I do not need to address the issue raised by the Respondent that any vehicular use of the Verge for non-agricultural purposes since January 1999 has been under protest, and therefore not as of right. I have found that as the Applicant can demonstrate that a prescriptive right of way was well established over the Verge in accordance with the doctrine of Lost Modern Grant prior to 1999. Indeed I have found that agricultural user has been made of the Verge since at least 1967. Thus the requisite period of 20 years for the acquisition of the easement had been fulfilled at a much earlier stage. In any event I find that the complaint made by the Respondent’s father was directed to damage having been caused to the Verge and that the access was being used for non-agricultural purposes – not seemingly a complaint about any agricultural use.

(10)           The effect of the 2008 offer to pay – I agree with the Applicant’s submission that no evidence has been given on behalf of the Respondent to the effect that the Applicant has somehow compromised or surrendered his right over the Verge, or this action is an admission that he had no present right. As I have found, the right of way over the Verge, albeit it for agricultural purposes only, has been in existence for many decades. In my judgment, this was an undoubted gesture made by the Applicant in the spirit of good neighbourliness to try and find a way to deal with the issue in hand of his perceived rights to use the Verge. There was no formal position setting out an offer and it is impossible for the Respondent to rely upon some form of estoppel. In short, I agree that nothing can be drawn from any such approach.

(11)           For his part the Respondent submits that this was an offer made by the Applicant to pay for the full right of way over the Verge. This, in effect, compromised the Applicant’s position and was completely inconsistent with his claim that there was an existing vehicular right of way for all purposes.

 

83.              Finally, I do not agree with Counsel for the Applicant that the fact that I have found that the use of the Verge and the Entrance is for agricultural purposes only for the relevant period, in some way reifies the use into a prescriptive easement for all purposes to which the dominant tenement might have been applied at the time of the supposed grant. In this regard I do not accept that the paragraphs to which I have made reference above in the case of McAdams Homes Limited v Robinson are authority for that proposition. I consider that such an interpretation from the dicta of Lord Justice Neuberger is an unjustified extension of the meaning of his judgment having regard to the factual circumstances of this case and in the context of my findings. Further, the fundamental nature of the user (i.e. agricultural purposes) cannot in my judgment be transmogrified into a user for all purposes just because there have isolated examples of residential use during the period, such as emptying the cesspit. If the Verge were to be used for the riding school this would not only be in breach of the planning requirements, but also be a radical change in the nature and extent of the user since 1999 leading to an alteration in the enjoyment. In short, the fact that I have found that the easement is for agricultural purposes cannot then form the basis of a finding that it must be therefore an easement for all purposes, agricultural or otherwise.

 

84.              I therefore come to the following conclusions by reference to the questions set out in paragraph 84, above:-

 

(1)               The physical extent of the right of way over the Verge has a rhomboid shape, and is approximately 15 feet in width and lies between Brickendon Lane and the Entrance to the Field.

(2)               The mode of use permitted is on foot, with cattle, and vehicular in the form of agricultural vehicles such as slurry trucks, balers, hay turners, tractors and trailers, Land Rovers, combine harvesters, and the like, as set out in paragraph 81(5), above.

(3)               The exercise of the right of way over the Verge also enables access to be gained to Inclosure OS 4775 to the west of the Field.

(4)               Such use of the Verge and Entrance is limited to agricultural purposes only.

(5)               There are limitations as to the manner of use in that such use that has been made hitherto by pedestrians, animals, and vehicles, has been discontinuous but regular. This has meant that on occasions there have been bursts of considerable activity at certain times of the year. such as during hay making or making silage.

 

THE DECISION

85.              Accordingly, I shall direct the Chief Land Registrar to give effect to the original application that the Applicant is entitled to a right of way on foot, with animals and agricultural vehicles (as defined in paragraph 81(5), above), over the Verge as marked at point X on the Plan annexed hereto for the purpose of access to and egress from the Entrance (marked at point Y on the Plan) to the Field which forms that part of title number HD255040 referred to as OS 6275.

 

86.              I shall deal with the question of costs in due course. These normally follow the event in this jurisdiction. I shall order that submissions on costs should be filed within 28 days.

 

Dated this 8^th day of February 2011

 

 

 

By Order of The Adjudicator to HM Land Registry