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England and Wales Land Registry Adjudicator
You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> (1) Anna Russo (2) Joseph Angelo Concadoro (3) John Concadoro v (1) Albert Edward Clarke (2) Michael David Clarke (Easements and profits a prendre) [2014] EWLandRA 2012_0600 (03 February 2014)
URL: http://www.bailii.org/ew/cases/EWLandRA/2014/2012_0600.html
Cite as: [2014] EWLandRA 2012_600, [2014] EWLandRA 2012_0600
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PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL
LAND Registration act 2002
IN the matter of a reference from hm land registry
BETWEEN:
(2) Joseph Angelo Concadoro
(3) John Concadoro
FIRST APPLICANTS
and
(2) Albert Edward Clarke
(3) Michael David Clarke
FIRST RESPONDENTS
And
(1) Paul William Gleaves
(2) June Stella Gleaves
SECOND APPLICANTS
And
(3) Linda Clarke
SECOND RESPONDENTS
Property Addresses: 2, 3 and 5 Lakenham Terrace Elm Low Road Wisbech PE14 0DE
Title Numbers: CB364769, CB364770 and CB364771
Before: Principal Judge Edward Cousins
Sitting at: Cambridge County Court
On: Tuesday 17 th, Wednesday 18 th, and Thursday 19 th September 2013
Applicant Representation: Mr Tim Williams, of Counsel, instructed on direct access
Respondent Representation: Mr Geraint Martyn Jones, of Counsel, instructed by Messrs Bowser Ollard & Bentley, Solicitors
DECISION
KEYWORDS: Easements of right of way and right to park; Doctrine of Lost Modern Grant, Prescription Act 1832 ss. 2, 4; requirement for a suit or action; deviation of a right of way; section 15(1) of the Limitation Act 1980; permissive use;
Cases referred to: Tremayne v English Clays Lovering Pochin & Co Ltd [1972] 2 All ER 234; Smith v Brudenell-Smith [2002] 2 P & CR 51; James v Hayward (1631) Sir W. Jones 222; Cro.Car.184; Andrews v Paradise (1724) 8 Mod 318; and Kidgill v Moor (1850) 9 CB 364; Petty v Parsons [1914] 2 Ch 662; Flynn v Harte [1913] 2 IR 327; Tickle v Brown (1836) 4 Ad & E 369; Gardner v Hodgson’s Brewery Co Ltd [1903] AC 229; White v Taylor (No 2) [1969] 1 Ch 160; Hollins v Verney [1884] 13 QBD 304; Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch.D. 362; Davis v Whitby [1973] 1 WLR 629, affirmed [1974] Ch 186; J. A. Pye v Graham [2000] Ch 676; Moncrieff v Jamieson [2007] UKHL 42; Wilkin & Sons Ltd REF/2011/0420 (10 th April 2012); Colls v Home and Colonial Stores [1906] AC 179 at 189; See Petty v Parsons [1914] 2 Ch 662; Johnstone v Holdway [1963] 1 QB 601; Dawes v Adela Estates (1970) 216 EG 1405; Mills v Silver [1991] Ch 271. R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335; Tehidy Minerals Ltd v Norman [1971] 2 QB 528.
THE APPLICATIONS
1. By an application made in form FR1 dated 28 th September 2011 (“the First Application”) Mrs Anna Russo, Mr Joseph Angelo Concadoro, and Mr John Concadoro seek to register on a first registration an easement being a right of way with or without vehicles (“the Easement”) over land included in two title numbers, namely CB301610 (part) and NK254813. These are collectively referred to by the Land Registry as “the Burdened Land”, and this definition is used for the purposes of this Decision. The Easement is identified on the Land Registry notice plan a copy of which appears at page 1 of Annex 1 attached to this Decision (“the Notice Plan”). The Notice Plan reveals that in relation to that part of the Easement lying over the land identified in title number CB301610 the Easement is tinted blue, and in relation to the land identified in title number NK254813 the Easement is tinted pink. For ease of reference I shall refer hereafter to first applicants as “the Concadoros”.
2. The Concadoros claim that they have the benefit of the Easement as the owners and occupiers of the following land and premises, namely (1) in the case of Mrs Anno Russo No 2 Lakenham Terrace, Low Road, Elm, Wisbech, (“2 Lakenham Terrace”) in respect of which HM Land Registry has allocated a pending title number CB364769; and in the case of Mr Joseph Angelo Concadoro, and (2) Mr John Concadoro No 5 Lakenham Terrace, Low Road, Elm, aforesaid, (“5 Lakenham Terrace”) in respect of which the Land Registry has allocated a pending title number CB364770. The Concadoros assert that they and their predecessors in title have exercised the Easement as of right since at least 1954. [1]
3. The Objectors to the First Application, and the named Respondents thereto, are Mr Albert Edward Clarke and Mr Michael David Clarke. Mr Michael David Clarke is the son of Mr Albert Edward Clarke. Mr Albert Edward Clarke and Mr Michael David Clarke are the registered proprietors of title number NK254813 which is land described in the title as land at the back of Holly House, [2] and lying immediately to the south of the land comprised in title number CB301610. The land comprised in title number CB301610 (part) remains registered in the name of Mrs Connie Green (who died on 15 th March 2011) whose executor is Mr John Edward Green. Mr Green was also made a Respondent to the First Application in that capacity, but was removed as a Respondent by the Order of the Adjudicator dated 18 th July 2012. Mr Michael David Clarke and his wife Mrs Linda Clarke were substituted as Respondents. The reason for this substitution is that by a transfer dated 24 th February 2012 Mr John Edward Green in his capacity as executor of the estate of Mrs Connie Green transferred part of the Burdened Land being land to the rear of Lakenham Terrace forming part of title number CB301610. [3] The Respondents therefore now own the whole of the Burdened Land.
4. The objection made to the First Application by the Respondents is that any rights that have been exercised over the Burdened Land to gain access to the benefiting land have been exercised with consent and not as of right.
5. By an application made in form FR1 dated 28 th September 2011 Mr Paul William Gleaves and June Stella Gleaves (“the Gleaves”) made a similar application (“the Second Application”) in respect of No 3 Lakenham Terrace, Elm, aforesaid (“3 Lakenham Terrace”) claiming the Easement over the same Burdened Land included in title numbers CB301610 (part), and NK254813. 3 Lakenham Terrace has been allocated pending title number CB364771. In this case the Gleaves claim that as owners and occupiers of 3 Lakenham Terrace they have exercised the Easement as of right since acquiring the benefiting land in June 1987. [4]
6. The Objectors to the Second Application, and the named Respondents thereto, are Mr Michael David Clarke and his wife Mrs Linda Clarke, together with Mr Albert Edward Clarke (the father of Mr Michael David Clarke). Again, the objection made to the Second Application is that any rights that have been exercised over the Burdened Land to gain access to the benefiting land have been exercised with consent and not as of right.
7. Reference should also be made to a claim by the Applicants to an easement to park vehicles on part of the Burdened Land (“the Parking Right”) as shown hatched red on the plan at page 2 of Annex 1 (“the Access and Parking Area Plan”). The claim to the Parking Right was not included as part of the First or Second Applications, and is not mentioned in the Case Summaries. However, reference is made to the Parking Right in the Applicants’ statements of case , and part of the evidence presented in the case has been directed to this issue. I should also state that Mr Williams, on behalf of the Applicants, stated in his Opening that for the avoidance of doubt the claim to the Easement over the Burdened Land also extended across the whole of the claimed parking area the subject of the Parking Right as long as there was no obstruction of the public footpath, to which I shall make reference below (“the Public Footpath”). Mr Williams also submitted on behalf of the Applicants that they did not claim the Parking Right over the rectangular concrete slab, or “hard standing” (“the Hard Standing”) as shown marked with stippled edging on the Access and Parking Area Plan, and that there had been a misunderstanding between the Applicants and the Respondents in this regard.
8. In these circumstances I have decided that in order to ensure that all matters of dispute between the parties are resolved I shall make findings on the issue as to the Parking Right in this Decision.
THE BACKGROUND
9. Lakenham Terrace comprises a terrace of five houses originally constructed in about 1906, each house having a rear garden over which in the case of 1, 2 and 3 Lakenham Terrace there appears to have formerly been a right of way in favour of 4 Lakenham Terrace. [5] Behind these gardens formerly lay the Wisbech Canal (“the Former Canal”). Along the western bank of the Former Canal and immediately abutting the rear boundary of Lakenham Terrace lay a canal towpath. This towpath now forms part of the Public Footpath. On the eastern side of the Former Canal lies Elm High Road. The Former Canal fell into disuse during the earlier part of the twentieth century and it is common ground that it was eventually abandoned in about 1926. It appears that the boundary between Norfolk County Council and Cambridgeshire County Council ran along the centre of the Former Canal. In 1961, probably as the result of a compulsory purchase order having been made, the Wisbech Canal Company apparently sold the site of the Former Canal to the former Rural District Council of Marshland for use as a landfill site for the tipping of rubbish. In the bundle of documentation prepared for the hearing (“the Bundle”) there is documentation, although incomplete, to the effect that on 3 rd January 1961 an application for planning permission was sought by the then Marshland Rural District Council from Norfolk County Council and the then Isle of Ely County Council for the proposed development of the Former Canal by means of infilling. There is also documentary evidence of the order being sought by Marshland Rural District Council at that time to purchase compulsorily the Former Canal.
The access route over the Former Canal
10. The essential feature which forms the basis of the Applicants’ claim to a prescriptive right of way for all purposes is that in about 1954 as a result of the collective community efforts of a number of the residents of Lakenham Terrace a “causeway” started to be constructed across part of the Former Canal. At that stage the Former Canal still continued to remain as an open but unused, and probably stagnant, channel. One witness described it as having been a “muddy mess” (Mrs June Clarke). This causeway has been referred to in the Applicants’ evidence as the “Cinder Track”. It was said to have been constructed over a period of time using cinders from domestic fires in Lakenham Terrace, and other waste material. This enabled a new access to be formed over part of the defunct area of the Former Canal by the residents of Lakenham Terrace, and for other persons such as their visitors and invitees, in order to access the rear of their houses (“the Accessway”) to and from Elm High Road. At that stage there was no connecting road to the north of Lakenham Terrace lying between Elm High Road and Elm Low Road, Lakenham Terrace being situated on the east side of the latter road. It was said during the course of the Applicants’ evidence that this rear access was thus particularly useful for the purpose of catching buses as the bus service on Elm High Road was more frequent than that serving Elm Low Road. Although there undoubtedly has been some deviation in the route of the Accessway (see below) it is an essential plank of the Applicants’ case that the route of the claimed Easement by prescription conforms with the route of the Accessway.
11. At that stage the use of the Accessway was pedestrian only as none of the residents of Lakenham Terrace owned motor cars. The evidence for the Applicants revealed that the first motor car arrived in about 1964 and from about that point in time it was possible to drive across the Cinder Track with vehicles, the surface being sufficiently hard and wide enough to facilitate this. The evidence also revealed that eventually garages were constructed subsequently on parts of the rear gardens of the houses comprising Lakenham Terrace. Three garages seem to have been constructed, namely by the Concadoros at some stage after 1997 , and by Mr and Mrs Lakey of 1 Lakenham Terrace after 1988. In the case of the Gleaves this seems to have occurred in about 1997. These structures have been described in the Respondents’ evidence as “sectional or removable” garages (Mr Mark Lakey). Mr Paul Green also constructed a garage serving his property at 4 Lakenham Terrace.
12. For their part the Respondents dispute this version of the facts as to the use of the Accessway and assert that as at about 1969 (the evidence of Mr Michael David Clarke) there was no way to cross the Former Canal, and that there was no question of any access being maintained from the east side of the Former Canal by foot or car prior to 1970. It is also asserted that the user of the Accessway by the residents of Lakenham Terrace only commenced in about 1976.
The “bridges”
13. However, it is contended by the Respondents that in about 1970 Mr Phillip Green of 4 Lakenham Terrace (the husband of Mrs Connie Green and father of Mr Paul Green – Mr Paul Green gave evidence for the Respondents) constructed what has been described as a “footbridge” immediately behind the bottom of his garden. The purpose of this footbridge was to enable them to access land forming part of the Former Canal which was subsequently licensed to them by the Council as the conditions were muddy and impassable in wet weather. It is said that this footbridge was constructed by in-filling a part of the Former Canal bed with soil and rubble. It is also said that Mr Green’s footbridge was not in the location where the current access enters the Burdened Land. It is also contended that in about 1979 Mr Phillip Green was the only person who owned a car, and so that it was only he and his wife who used this route to cross the Former Canal to Elm High Road.
14. It is further asserted by the Respondents that in about 1970 Mr Albert Edward Clarke of “Holly House” constructed a second bridge over the Former Canal and described by him as a “vehicular bridge”. He suggests that he built his “bridge” as he was prevented from using the Green’s “bridge”.
15. It is therefore contended by the Respondents that there were in fact two methods of access across the Former Canal namely the “footbridge” built by Phillip and Connie Green in about 1970, and the “vehicular bridge” subsequently constructed by Albert Edward Clarke and June Clarke, the latter in order to maintain access to their property by car to and from Elm High Road. Exhibited to Mr Albert Edward Clarke’s witness statement are two drawings identifying the location of the two bridges (see exhibits “AC1” and “AC2”). He says that there were no other bridges across the Former Canal. Neither Albert Edward Clarke nor Mrs June Clarke gave evidence in the case.
16. This evidence is contested by the Applicants who state that there is no evidential basis for the assertions that the Greens and/or the Clarkes “bridged” the Former Canal in about 1970, or indeed that there were in effect two/three bridges in existence then. In short, it is the Applicants’ case that the only “bridge” ever in existence was the Cinder Track originally started in about 1954, the route of which may have been the subject of some deviation over the decades. These are issues which will be addressed later in this Decision.
17. Having regard to the mapping evidence in the case it seems clear on the evidence that by March 1968 the Accessway followed an apparently defined and well-established single route by reference to the documentary mapping information set out in Annex 3, and relied upon by the Applicants.
The acquisition of ownership of the relevant parts of the Former Canal
18. Following the compulsory purchase by Marshland RDC in 1961 of the relevant parts of the Former Canal lying behind Lakenham Terrace the historical circumstances as to the ownership of the Former Canal then become somewhat obscure. Mr Grant Brewer (of NPS Property Consultants Ltd) - a witness for the Respondents - stated that the Former Canal originally was jointly owned by Norfolk County Council and Cambridgshire County Council. Subsequently agreements were reached with adjoining owners whereby identified plots were the subject of licences or tenancies by the Council in favour of adjoining owners. These were apparently initially co-ordinated by Cambridgshire County Council and then later taken over by Norfolk County Council. The nature of these agreements is one of the issues which require resolution in the case. In 1985, ownership of the relevant part of the Former Canal seems to have been transferred to Norfolk County Council, and then eventually the decision was made for the disposal of the relevant plots at some stage prior to 2000. [6] An alternative interpretation is that Norfolk County Council acted as agents for both authorities in the subsequent sales of various plots of land comprising the Former Canal.
19. Whatever be the position these circumstances may not be of any real importance for the purpose of this Decision, other than as to the identifying the nature of the agreements reached by whichever authority owning the land at the time with the respective adjoining owners of Lakenham Terrace prior to sale in 2000.
The in-filling of the Former Canal
20. In the early 1970s, and probably in about 1972, the Council started to infill the relevant section of the Former Canal. It apparently took some years to complete this exercise and was probably completed in about 1976. It is suggested in the witness statement of Mr Albert Edward Clarke that for some time during and after the land-filling of the Former Canal it was used by the local council to store materials for sewage works in the area. It was asserted by him that no use could be made of the area as a means of access to or egress from the rear of Lakenham Terrace as it was impeded. However, as I have stated, Mr Albert Edward Clarke did not give evidence for the Respondents during the hearing, and although this statement was reproduced in other statements relied upon by the Respondents, there is no direct documentary or oral evidence in support of this assertion.
21. Also this would seem to be at variance with the contentions made by the witnesses for the Respondents that two bridges had been constructed in about 1970 to enable access to their properties to be maintained over the Former Canal.
22. What seems to have happened after the Former Canal was filled in is that the residents of Lakenham Terrace, and other users, thereafter took a diagonal route across the Former Canal rather than the perpendicular route of the original Cinder Track. I shall refer to the legal implications of a deviation or deviations to rights of way, below.
The subsequent grant of tenancies/licences
23. Once the relevant parts of the defunct Former Canal had been in-filled, there was then the grant of tenancies or licences of various plots. Two councils were involved in this process over some 20 years or so, namely Cambridgeshire County Council and Norfolk County Council. For the purposes of this Decision the relevant plots for the present purposes the parcels the subject of the licences granted to Mr J Stubbings, Mr Phillip Harry Green and Mr Albert Edward Clarke, respectively, as identified as Plots 1, 2 and 3 on the 1989 Licence.
The disposal of three plots of land by Norfolk County Council
24. The 2000 Sale Plan (Annex 1, page 4) prepared by Norfolk County Council in 2000 identifies the three plots of land, namely plots A, B and C, the subject matter of the prospective sale. Plots A and B were subsequently sold by Norfolk County Council in 2000 to Mr Phillip Harry Green and Mrs Connie Green, and Mr Albert Edward Clarke and Mr Michael David Clarke, respectively (see below) and registered at HM Land Registry. Title number CB301610 is coterminous with Plot A, and title number NK254813 (part) is conterminous with Plot B. However, it has already been noted [7] that these three Plots are not coterminous with those three plots previously licensed as Plots 1, 2, and 3 (see the 1989 Licence Plan- Annex 1, page 3).
The introduction of gates and post/bollards
25. In about 2001/2002 Mr Albert Edward Clarke and his son Mr Michael David Clarke erected gates on Plot B “for security purposes”. The position of the gate is indicated on the plan at exhibit “MC1” coloured brown and marked A and B . It is said that Mr Phillip Green also asked them to put a bollard on the boundary between Plots B and A at around the same time. It is asserted by the Respondents that the bollard was erected by Mr Green in 2002 to prevent anyone not having permission entering into Plot A. It is also said that the gates and the bollard were locked and required keys to be able to get through those areas outside business hours. Mr Michael David Clarke stated in his evidence that he himself did not need a key to the bollard. Keys were also cut for Mr Phillip Green and his wife Mrs Connie Green, and it is contended that the Gleaves also had keys provided to them so that they and their visitors could cross Plot B. It is asserted by the Respondents that no one else asked for a key and no one else complained about the gates or the bollard. These are all issues which need to be addressed in due course in this Decision, but the evidence for the Applicants rejects any notion of being prevented from using the Accessway in order to walk or drive across the Former Canal in order to go to the rear of Lakenham Terrace until July 2011. The Respondents also adduced evidence that on occasions thereafter the keys to the gate were lost and the locks had to be replaced and new keys issued to the Gleaves, amongst other persons.
26. Thus from about 2001 to 20012 there was an apparent restriction on access created by the First Respondents in respect of Plot B, and by Mr Paul Green and Mrs Connie Green in respect of Plot A. One of the issues which arise for consideration is the effect, if any, that this new manifestation of apparent control had on a previously acquired right of way by prescription – if it had been so acquired by that stage. Issues of permission and acquiescence also arise.
27. On 15 th March 2011 Mrs Connie Green died. On 13 th July 2013 Mr John Green barred vehicular access completely. However, the lock was subsequently broken and then replaced by contractors at the instigation of advice provided by John Green’s solicitors. It is said by the Respondents that it was at this point in time “permission” to use the Accessway was withdrawn by Mr John Green (and his brother Mr Anthony Green). Thus it was from that point in time that those residents of Lakenham Terrace who had been using vehicles to traverse the Accessway for the purposes of access to and egress from their houses were thereafter barred from doing so. It is also from then that the Gleaves were unable to use their garage.
THE ISSUES
28. In their statement of case the Respondents make a number of assertions which form the basis of the issues in dispute. These are, namely, whether –
(1) There has been continuous use of the Accessway over the Burdened Land by the occupiers of 2, 3 and 5 Lakenham Terrace for the requisite minimum period of 20 years;
(2) valid tenancy agreements of Plots 2 and 3 were created in 1979 in favour of Mr Phillip Green, and Mr Albert Edward Clarke, respectively, and for what length of time they were in existence. If so, what effect, if any, such tenancies might have had on the claim by the Applicants to prescriptive rights over the Accessway; or whether the arrangement made were in the nature of licences;
(3) The use of the Accessway over the Burdened Land by the occupiers for time being of 2, 3 and 5 Lakenham Terrace was permissive;
(4) A grant of the Easement could not arise as a matter of law because the route of the Public Footpath traverses part of the Burdened Land;
(5) Any use of the Accessway over the Burdened Land by 2 and 5 Lakenham Terrace ceased in 2002 when a locked gate and post were introduced, and whether such use made by 3 Lakenham Terrace after 2002 was by means of a key;
(6) There is a valid claim to the Parking Right over part of the Burdened Land.
THE PRINCIPLES OF LAW
29. The case for the Applicants is placed on alternative grounds, namely under the doctrine of Lost Modern Grant or by dint of prescription under the Prescription Act 1832 (“the 1832 Act”).
The doctrine of Lost Modern Grant
30. If the Applicants can demonstrate user as of right which has continued throughout a period in excess of 20 years, then they have satisfied the requisite test for the acquisition of a prescriptive right. The grant is judge-made fiction and it is not necessary to provide particulars of the fictitious grant, although it must be pleaded whether the grant is alleged to have been made before or after a particular date. [8] It is based upon the acquiescence of the owner of the land over a long period of time. [9]
31. If the user becomes contentious and/or is interrupted during the 20 year period then it is not continuous and user as of right ends. [10] It is the Applicants’ case that user was sufficiently continuous and only ceased in 2011 when they were prevented from using the Accessway by a locked bollard and gate instigated by the Respondents apparently on the advice of their solicitors.
An easement acquired by prescription under the 1832 Act
32. To establish a claim under the 1832 Act it is necessary for the Applicants to demonstrate that for the requisite period of twenty years there must have been continuous enjoyment of the right of way based upon the same quality and character as is necessary to demonstrate at common law. [11] In the case of prescription under the 1832 Act it must not only be as of right, without force, without secrecy and without permission ( nec vi, nec clam, nec precario) as at common law, but also such user must be by or on behalf of one fee simple owner against another.
33. A further requirement under the 1832 Act is that by the provisions of section 4 -
“(i) All periods of enjoyment under the Act are those periods next before some suit or action in which the claim is brought into question.
(ii) No act is to be deemed an interruption until it has been submitted to or acquiesced in for one year after the party interrupted had notice both of the interruption and of the person making it.”
“Suit or action”
34. As to the requirement for there to be a “suit or action” for the purposes of section 4 of the 1832 Act, the question arises as to whether the application for registration is to be taken as a “suit or action” within the meaning of the 1832 Act. It is clear that the relevant period of 20 years is the period before the application is made pursuant to Rule 73(A) of the Land Registration Rules 2003. In the present case the Applications were dated 28 th September 2011.
35. As Gale on Easements states, [12] the words mean that “… until the claim or matter is brought into question in some action, the right under the Act remains inchoate, but the commencement of such an action fixes the period and enables the right to be established.” Reference should also be made to dicta of Neuberger J in the case of J. A. Pye v Graham, [13] (at first instance) as to the meaning of the word “action” for the purposes of section 15(1) of the Limitation Act 1980 in the context of adverse possession. He specifically states that the natural meaning of the sub-section (as seen in the context of the definition of “court” in section 38 of that Act) does not extend to an application to the Land Registry which, as the learned judge states, is “not a ‘court’”. However, I consider that the dicta in this case can be distinguished as it specifically relates to limitation not prescription, and the legal position appertaining prior to the judicial process created by the provisions of the 2002 Act.
36. In the case of Wilkin & Sons Ltd [14] I stated that there would seem to be four possible interpretations, namely that:
(a) the making of an application to the Land Registry for the registration of a right of way is not “some suit or action”, and it refers only to court proceedings as properly constituted;
(b) the “suit or action” is the making of the application and its acceptance by the Land Registry;
(c) the “suit or action” is the making of an objection;
(d) the decision of the Land Registry to refer the matter for adjudication.
37. In the Wilkin case I found as a matter of law and construction that the making of an application by a party seeking to pursue a claim which is later opposed by the objector, the result of which the matter is then referred to the Tribunal (previously the Adjudicator), falls within the statutory requirement. In other words I find that option (b) is the correct position and that the making of the application constitutes a “suit or action”. This is the day upon which the application is entered on the Day List at the Land Registry being the day when the applicant takes the formal step which may initiate a judicial determination if the application is disputed and the matter is then referred to the Adjudicator. If the application is successful, either because it remains undisputed, or if disputed the applicant eventually succeeds, then the easement will be registered from the date of entry on the Day List. In the present case this date is 30 th September 2011. Thus in so far as the 1832 Act is concerned the period of 20 years runs from that date.
Acquisition by prescription – the principles
38. As to the substantive claim to the acquisition of a right of way by prescription on either or both grounds (i.e. under the Doctrine of Lost Modern Grant and/or under the 1832 Act) the following legal principles are relevant –
(1) The user as of right must be demonstrated to have been exercised for a period of 20 years or more;
(2) It is necessary to show that the enjoyment has been as of right;
(3) As of right means that the use must be such as to convey the impression to the owner of the would be servient tenement that use as of right is asserted;
(4) A continuous right must be asserted. The use of a right of way is by its nature discontinuous, and the enjoyment need not be incessant to give rise to such prescriptive right. Nonetheless, the use must be of such nature and at such intervals as to indicate to the owner that a continuous right is claimed. [15]
“To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time, or for 24 hours of the day, or very possibly on every day of the week or all round the year. But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right and of a right of the measure of the right claimed.” [16]
(5) Such use as of right must be demonstrated to have been exercised throughout the 20 year period. Thus occasional use or casual use is unlikely to amount to a claim as of right – such use does not put the servient owner on notice that a right is being asserted.
“no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right of enjoyment is being asserted, and ought to be resisted if such right is not recognized, and that resistance to it is intended.” [17]
(6) Use that is by permission of the owner of the land of the way is not use as of right, and each occasion upon such use is enjoyed under a permission amounts to an admission that the user had no right, and breaks the continuity of any use as of right that has been exercised;
(7) The burden of proving that there has been the requisite use as of right rests upon the Applicant, including proving that use has not been by permission;
(8) The fiction of a lost modern grant should be applied only when no other explanation is forthcoming. Such other possible explanations may be permission granted from time to time or neighbourly tolerance. [18]
“A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established that the enjoyment must be inconsistent with any other reasonable inference than that it has been a of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established…”
(9) If a prescriptive right is established, then the purpose for which it may be exercised is to be gathered from the evidence of the past use, in all the circumstances. The court is to make a supposition as to what, in all the circumstances, must have been the contents of the fictional lost grant on which prescription rests.
39. Thus there are a number of aspects of importance as to user as of right which require consideration. These are the following: the question of the discontinuity in the exercise of the right; the subsequent erection of a gate over the Accessway with a lock/padlock, and a bollard which previously did not exist; and whether the use of the access thereafter became permissive, if not before. Thus a point which can provide some difficulty is when the owner of the servient tenement asserts that he has given permission to the owner of the dominant tenement, or his visitors or tenants, to continue to use a way which previously had been exercised as of right. If the owner of the dominant tenement seeks and obtains permission then it is difficult thereafter to contend that such user is as of right. Permission may be given even though it had not been requested. The owner of the servient tenement, however, cannot simply render user permissible by giving permission to someone who is claiming to exercise the easement as of right.
40. Further, even if the nature of the user of the right is of free passage, it does not necessarily follow that the way itself must be unobstructed. In earlier cases erecting a gate across the way was considered to be an interference. [19] In more modern cases it can be seen that the fact that the way is obstructed does not necessarily mean that this is necessarily an interference with a private right of way. To be actionable the interference must be substantial. [20] The head note and the reference in the statement of facts of Upjohn LJ in the case of Johnstone v Holdway [21] suggests that placing a chain across an entrance with a combination of locks would not be a substantial interference if the combination number was supplied to the owner of the dominant tenement In Dawes v Adela Estates [22] it was held that an automatic lock placed on the outer door of a block of flats was not to be construed as an obstruction provided that the postman could gain access. In an Irish case it was held that whether a gate is or is not an interference with the right is a matter of fact. [23] In both the Petty case and the Flynn case the erection of a gate across a private right of way was held to be no interference with the right provided that proper facilities had been given to the owner of the dominant tenement. Thus the more modern approach is to look at the degree of the obstruction and interference which will be acceptable dependent upon the nature and the purpose of the right of way in question.
Deviation of a right of way
41. It is submitted by the Respondents that there have been deviations of the Accessway of such a nature and extent so as to defeat the claim to a prescriptive right of way. The Applicants although accepting as a matter of law that in appropriate circumstances a right of way may not be acquired by prescription if its path is sufficiently uncertain, reject the contention that the evidence reveals such uncertainly. They submit that any such deviation in the route of the way as may have occurred was insignificant and cannot defeat the claim based on prescription.
A right of way should, generally speaking, have a terminus a quo and a terminus ad quem, so as to be bounded and circumscribed to a place certain, but in Wimbledon and Putney Commons Conservators v Dixon [24], the Court of Appeal was of the opinion that the fact that the occupiers of a tenement to which a way by user was claimed had used, not a definite road marked out between the termini, but a number of tracks indifferently, did not prevent the right from being acquired. [25]
“…the dominant tenement enjoyed for 15 years a way by a path across the middle of the garden of the adjoining servient tenement. The route was then altered to a path across the bottom of the garden, and enjoyed for a further period of 18 years. It was held by the Court of Appeal… that long user as of right should if possible be presumed to be of legal origin, and, both periods of user being as of right, they should be added together, thus giving a full period of 20 years; and accordingly the right of way was established by prescription.” [26]
THE EVIDENCE IN THE CASE
42. As the witnesses were the subject of some lengthy cross-examination it is necessary to set out the evidence given in the case in some detail.
43. The evidence given on behalf of the Applicants was provided by the following witnesses: Mrs Jane Ward; Mrs Maureen Scowen; Mrs Carole Wright; Mrs Marion Chambers (née Cooper); Mr David Michael Edwards; Miss Tamara Martin; and Mrs Sheila Atherton. As to the Applicants themselves, Mrs Anna Russo, Mrs June Gleaves and Mr Paul Gleaves gave evidence. A number of witness statements were also provided, but those persons did not attend the hearing to give evidence on behalf of the Applicants. Their evidence was therefore unchallenged. They are Ms Samantha Markillie; Mr Don Freeman; Mr Robert Knott and his wife, Mrs Michele Knott. Mr Colin Clarke was to be called on behalf of the Applicants did not attend because he was on holiday. I shall give such weight to such evidence as I consider that it merits in these circumstances.
44. The Respondents called the following witnesses Mrs Carol Dack; Mrs Sally Shephard, Mr David Shephard; Mr Grant Brewer; Mr Mark Lakey; Mr Paul Green; Mr Paul Brenchley. The Second Respondents, Mr Michael David Clarke and his wife, Mrs Linda Clarke also gave evidence. Mr Albert Edward Clarke although providing a witness statement and was a named First Respondent did not appear to give evidence. Other witness statements provided on behalf of the Respondents were the following: Mr Albert Clarke and his wife, Mrs June Clarke. Again I shall give such weight to such evidence as I consider that it merits in these circumstances.
Analysis of the evidence as to user of the Accessway by reference to 2, 3 and 5 Lakenham Terrace
2 and 5 Lakenham Terrace
Mrs Anna Russo
45. Mrs Russo gave evidence in respect of both 2 and 5 Lakenham Terrace. She relied upon her Statement of Case and upon which she was cross-examined. She stated that she first visited Lakenham Terrace in 1976 when her father Mr Joseph Concadoro, Senior, purchased 4 out of the 5 houses in the Terrace. The date of the conveyance is 24 th December 1976. Before the purchase Mrs Russo together with her father and her mother (she died a year later) went to 5 Lakenham Terrace At that stage it was tenanted by Mr Neville Jones who lived there with his wife, Mrs Margaret Jones. They went into the rear garden and were shown the access gate in the rear fence onto the Former Canal. It was explained to them by Mr Jones that the houses enjoyed access across the land to Elm High Road. The area was open and undeveloped at that stage. Ms Shirley Jones also apparently occupied and/or visited this property during this period. The Jones family had been there from about 1969 and remained there until the death of Mr Jones in 1998.
46. The current tenant is Mr Freeman. In July 2011 Mr Freeman advised Mrs Russo that Mr John Green at that stage had blocked vehicular access through the metal gate. As to the erection of garages in about 1996 in respect to both 1 Lakenham Terrace and 3 Lakenham Terrace, Mrs Russo said this demonstrated that vehicular access was considered to be as a right rather than by permission.
47. In so far as 2 Lakenham Terrace is concerned, this property was tenanted by Mrs Nellie Tilley from 1945 until November 2005 when she went into a residential home. She had two daughters Maureen Tilley (Mrs Maureen Scowen), born in 1945, and Carole Tilley (Mrs Carole Wright) born in 1947. They both gave evidence for the Applicants.
Mrs Scowen
48. Mrs Scowen was born in 2 Lakenham Terrace. She stated that when she was growing up they always had open access to the back of the garden. Anyone could walk along the path at the side of 1 Lakenham Terrace onto the “bank” of the Former Canal. She stated that in 1953/1954 all the residents around Lakenham Terrace helped to make a pathway (the Cinder Track) across the Former Canal. This took a few months. You could drive across it by the early 1960s. This made life a lot easier for everyone because people could have easy access to Elm High Road or Elm Low Road in order to catch the buses. Her sister (Mrs Carole Wright) used to drive across from about 1964 once she had passed her test, and after she had become married. Mrs Scowen moved away in 1968.
49. In the 1970s they filled in the Former Canal so then it was better for everyone, and when they (she and her husband) visited Mrs Tilley they could park the cars at the rear of the garden of 2 Lakenham Terrace by gaining access from the High Road (i.e. over the Accessway). They did this on a weekly basis when they visited her mother after they had moved out. Mrs Scowen also stated that the residents of Lakenham Terrace drove to the rear of their gardens. They were aware they could do this as there was a post with a sign saying public right of way that had been there for many years just outside the back gate of 2 Lakenham Terrace. 1 Lakenham Terrace had had a garage there for about 20 years. Mrs Scowen also stated that in the 1980s a family friend came and put stones and gravel at the rear of the gardens of Lakenham Terrace because when it was wet it became very muddy. They could always park cars at the rear until Mrs Tilley left in 2005. They always believed that the rear of the gardens was a public thoroughfare and no one could stop this. Mrs Scowen also stated that none of her family had to seek permission from anyone in order to access the back of their house and they could always walk or drive in from Elm High Road and come straight in and park at the back of the garden.
“From 1990 until my mum moved out of Lakenham Terrace in 2005 I visited my mum with my husband Ron and he drove the car. No one ever stopped us driving in or parking at the back.”
50. Mrs Scowen agreed that the “track” was more or less in the same place although its direction changed, and the access shifted in that in about 1977 the access went right across. The track “did a bit of a turn” but was more or less in the same place throughout. Until 2005 there was no barrier or post across the Accessway. Mrs Scowen stated that she did not have a car with her first husband and until 1985 she would visit her mother on foot. She stated that for in a time in 1985 she and her second husband they lived with her mother, and he would park his firm’s van at the back of Lakenham Terrace. There was no problem in him doing this. After they moved out in 1985 Mrs Scowen said that she went to the house on average about once per week to the property to visit her mother, and this went on until 2005. Mrs Scowen said she knew nothing about Mrs Tilley having to speak to Mr Green if she wanted to park at the back, as asserted by Mr Shephard.
Mrs Carole Wright
51. Mrs Wright was born in 1945 and moved into 2 Lakenham Terrace with her parents in 1945. Mrs Wright stated that when she was a school girl she crossed the “bridge” over the Former Canal to catch the bus on Elm High Road. Everyone had joined in making the bridge and the surface was as hard as anything. Once she started to live in Murrow and had passed her driving test at the age of 19 in 1964, Mrs Tilley used to look after her son, Gary, while she was at work. She stated that she used to drive her own car from Elm High Road over the now filled in Former Canal and park at the back of the property. There were no gates or posts to prevent driving in. She stated that she used the back access from 1964 to 2005 every week and sometimes two or three times a week, and sometimes she stayed the weekend. She also did her mum’s decorating and tended her garden, and she also took her shopping. It was easier to unload and park at the back of the property. No one ever stopped her from driving across the back. When her son Gary passed his test in 1982 he visited Mrs Tilley all the time and also parked at the back of the property. Mrs Wright stated that she never asked for permission to do this and no one ever stated that she needed permission. She also stated that ever since she could remember lots of people had used the back access without any problems. You could not stop anyone going across as it was a right of way. When the Council did the sewage works this did not interfere with parking. Mrs Wright also confirmed that the owners of 1 Lakenham Terrace erected a garage in the 1970s.
Ms Samantha Markillie
52. Samantha Markillie is the granddaughter of Mrs Tilley and was born in 1968. She provided a written statement for the Applicants, but did not give evidence at the hearing. It is therefore a question of what weight I attach to such evidence having regard to the fact that it was untested in cross examination. She stated that she used to spend more time with her Nan than her mother did, especially in the school holidays. In her statement Mrs Markillie stated that she moved into 2 Lakenham Terrace in 1985, and her fiancé moved in subsequently. In 1987 they moved out. She refers to parking at the back of the property once or twice a week from 1987 to 2005 when visiting her grandmother. She also makes reference to her previous boyfriends parking at the back of the property when visiting her when she lived there. She stated that when she and her husband, Eddie, lived in the property he parked his car at the back because it was safer to do so than on the Low Road at the front. She stated that they drove in and out of the rear access to Elm High Road (i.e the Accessway). There was never any barrier or gate or post to prevent them from doing so. She also confirmed that no one ever stated that they needed permission to drive in or to park at the rear of the property.
“People used to walk or bike across the land at the back at any time or to take a short cut from Elm High Road to Low Road before the new road was built….”
Mr Robert Knott and Mrs Michele Knott
53. Mr Robert Knott is the grandson of Mrs Tilley, and in his written statement (neither he or his wife gave oral evidence during the hearing) he stated that once he passed his driving test in 1988 and got his first car he visited his grandmother usually once or twice a week and used to drive in from Elm High Road and park behind her back gate. It was easier and safer to do this as there was plenty of space. When he got married in 1993 he and his wife continued to visit his grandmother, and she used to also go there in his car on most days of the week when he was at work as his grandmother used to look after their son Ashley during the holidays. He also confirms that he does not recall any barriers or gates or posts or anything to prevent them from driving in or parking, and no one told them that they could not drive in or park at the rear of the property. No one told them that they needed permission to drive in or park, and his grandmother never said they needed permission either. Mr Knott stated that they continued to visit in this way up until the time when his grandmother moved out in 2005.
54. It is contended by the Applicants that all the above evidence suggests a “close-knit family” centred on Mrs Tilley. Her children and grandchildren visited her regularly and often used the access at the back of the property for several decades. Historically there was no impediment in being to able to visit Mrs Tilley by using the Accessway either on foot or (later) by car.
Ms Tamara Martin
55. Ms Martin gave evidence for Applicants. She is the current tenant of 2 Lakenham Terrace and has lived there since about 2008. She does not own a car. In her oral and written evidence she stated that she got on well with Connie Green and there were no problems with her. They used to sit on the “green” behind the houses and “.. have tea, cake and a natter.”. On one occasion Ms Martin was given permission by Connie Green to have a “bouncy castle” there for her daughter’s birthday. She thought that the land behind belonged to Mrs Green. Ms Martin said that she was very lucky having the Gleaves as good neighbours, and when she and June Gleaves go to the shops they go through the back gate as the car is parked in the garage there. She said that from 2008 there was an old post inserted in the Accessway, sometimes it was not locked, and you could just lift it up out of the hole. June Gleaves had a key to it.
Mr Mark Lakey
56. Mr Lakey gave evidence for the Respondents, such evidence principally being concerned with 2 Lakenham Terrace. He owned 1 Lakenham Terrace for 15 years from 1988 to 2003. In about 1996/7 he erected what he referred to as a sectional or removable garage at the rear of his property to house his car. Mr Paul Gleaves and Mr Phillip Green also erected similar garages at rear of 3 and 4 Lakenham Terrace, respectively. He had been parking his car at the rear before he built the garage. He asked Mr Green if he could erect the garage as his car had been broken into in the street. It was a lot safer at the back. He said that Mr Green “controlled” the land to the rear, and the garage he erected was intended to be used as a shed if Mr Green withdrew his permission to use the Accessway. Mr Green made it clear that this permission could be revoked at any time. He said that when he asked permission for the erection of the garage Mr Green had stated to him “you are fine whilst I am still alive but after I’ve gone – who knows”. He also stated that Mrs Tilley and her visitors were given permission by Mr Green to use the Accessway, and she told him this. Mrs Tilley had said to him that he could also get permission if he asked Mr Green for it. Mr Lakey also said that the Gleaves were also given permission by Mr Green. Mr Lakey therefore parked his car at the rear of 1 Lakenham Terrace until he left in 2002. He said that he was unaware of anyone parking their cars at the rear, and that he had no idea if Mr Green owned or rented the land to the rear.
3 Lakenham Terrace
57. Mr and Mrs Shephard both provided witness statements and gave oral evidence for the Respondents. On 21 st April 1980 Mr David Shephard and his then fiancée Sally Smalley purchased 3 Lakenham Terrace from Mr Joseph Concadoro, Senior. After renovating the property, they then lived at the property from January 1981 to 1987 when they sold it to the Gleaves. Mr and Mrs Emmerson had occupied the property as tenants from the 1960s to 1980. There is some dispute as to whether they ever owned a motor-car.
Mrs Sally Shephard
58. Mrs Shephard stated that some two years after they moved into 3 Lakenham Terrace in January 1981 they asked permission of Mr Phillip Green to use the Burdened Land for parking their vehicle as it was not easy to park on the main road. They parked on a daily basis at the back. They did not have a garage and so they parked on the tarmac. They knew Mr Green rented the land and looked after it. They had purchased the property from Mr and Mrs Emerson who (it was said by her) never owned a motor car.
Mr David Shephard
59. Mr Shephard stated that he had a verbal agreement with Mr Phillip Green to park at the back and it was more convenient to do so. In cross examination he said that he was led to believe that he had to get permission to use the Burdened Land and that Mrs Tilley had told them this. Mr Shephard stated that they used the access but on the assumption that Mr Green could say “no” at any time – “he told us he could revoke it at any time”. Mr Shephard also stated that he told the Gleaves that they had to have permission if they wanted to park their vehicle at the back, and that he remembered the conversation which had stuck in his mind - he had thought about many times. Mr Clarke had also talked with him about parking.
Mrs Carole Dack
60. Mrs Dack’s evidence for the Respondents was principally directed to her previous knowledge of the area with which she had been familiar when she and her mother lived nearby in Elm Low Road. 3 Lakenham Terrace was visible from her mother’s house. She knew Mr and Mrs Emmerson, and that they did not have a car. She left home in about 1968 when she was 19 – the dates are not entirely clear. She remembered the Cinder Track or “footbridge” which she said had been created by Mr Green, and that it was not widely used. Once leaving home she has been visiting her mother at least twice per week. Mrs Dack said that Mr Green extended the “footbridge” so that he could access his car. She said that she only ever saw him drive his car along the Accessway. She did see a vehicle on one occasion parked to the rear of the property, but she believed that this person had permission from Mr Green. She said that she was also aware that Mr and Mrs Clarke erected a gate post at Mr Green’s request to prevent people using his land. There was also a gate erected by Mr Green about 10 years ago which was always locked and only Mr Green had a key.
Mr Paul Gleaves
61. Mr and Mrs Gleaves purchased 3 Lakenham Terrace on 1 st June 1987 from Mr and Mrs Shephard. In Mr Gleaves’ Statement of Case he states that on inspection prior to purchase, and after having had conversations with the estate agent and the vendors, it became evident that pedestrian and vehicular access and parking was freely available and regularly used on Elm High Road along a defined route across the Former Canal at the rear of Lakenham Terrace (i.e. the Accessway). He states that as the purchase was completed over 25 years ago he could not recall the details or the circumstances, but what he is clear about is that he never had any conversation or indication at the time of purchase, or subsequently (until about 2011), which challenged or called into question his belief that neither he or his neighbours had anything other than a right of access along the Accessway. As he stated, all five houses have gates allowing rear access. He said both in his Statement of Case and during the course of his evidence that Mr Shephard had said nothing to him or through his solicitors during the course of the conveyancing transaction which suggested that the use of the Accessway required permission. Mr Gleaves also stated that when he went to view the house at the time of purchase he saw a car parked there at the rear. He could not recall any conversation with Mr Shephard on the question of getting permission from Mr Phillip Green at 4 Lakenham Terrace, and he was not aware that Mr Green was renting part of the Burdened Land.
62. In 1996/7 he erected the garage at the rear of the garden of number 3 Lakenham Terrace believing he had an unrestricted right of access to it along the Accessway and across the Former Canal. He said that Mr Green had already erected a garage at that time, and also a similar garage was erected in the garden of 1 Lakenham Terrace some time after 1996. Mr Gleaves stated that at that time both his wife and he had cars and one would one park in the garage, and the other at the rear of the house.
63. Following the sale of Plot A Mr Green then erected a fence along the northern and eastern boundary, and Mr And Mrs Clarke who purchased Plot B continued the fence along the eastern boundary leaving the Accessway open to the public highway at Elm High Road. Mr Green also installed a hinge metal post in the middle of the Accessway and on the boundary of Plots A and B, but Mr Gleaves specifically stated there was no discussion or mention by Mr Green of any permission being required to use the Accessway. In any event, as he states, the post could be lowered and raised, and it was not locked until 2006. The Respondents also installed a gate on the Accessway where it crossed Plot B but this was left open during the day. Pedestrian and vehicular access continued thereafter “without let or hindrance” after the installation of the metal post and gate until July 2011 when access was thereafter denied and Mr John Green installed a lock and new bollard. Mr Gleaves stated that such usage as had been made by himself and his wife had throughout been open and no permission, or at least no valid permission, had ever been granted in respect of this usage.
64. In cross examination Mr Gleaves was adamant that Mr Phillip Green did not give a permission to park on the Burdened Land. He said that he did speak to Mr Shephard to ask him to give support in so far as the first registration application of 3 Lakenham Terrace was concerned, and Mr Gleaves stated that he was not told that he needed to get permission from Mr Green. He also said that he did not know that the land belonged to the Council and stated that he did not know who owned it. The gate and the post were not placed at the same time, the gate came first, and the post came afterwards. Mr Clarke put up the gate in 2002 at the start of the business and it was open most of the time e.g. at weekends, and when Mr Clarke was there.
Mrs June Gleaves
65. Mrs Gleaves stated that they have parked their vehicles at the front of 3 Lakenham Terrace since 1 st July 2011 when the Accessway was blocked and they were prevented from using it, and they were not given the key to the lock. Mrs Greaves stated there was never any discussion between them and Phillip and Connie Green about the use of the Accessway. She knew Phillip Green as he was a charge-hand at the Metal Box Company in Wisbech where she had worked. She stated that they always parked at the back of Lakenham Terrace, and had never sought or got permission to do so. Mrs Gleaves also confirmed that there was never any discussion between them and Mr and Mrs Shephard, and that she did not know why this had been made up. She stated that Mr John Green did not want them to park there and this occurred between March and May 2011. There had been no denial of access before this event. She also confirmed that no one told them that they did not have any access rights when their garage was erected in 1997.
Mrs Marion Chambers
66. Mrs Marion Chambers gave evidence on behalf of her brother Mr Paul Gleaves. She stated that since the Gleaves had lived at 3 Lakenham Terrace from 1987 she has used the back of the property for car access purposes when visiting them. She has never known anything different, and would never put her car at the front of the house. She did not raise any points about there being any difficulties as to gaining access via the Accessway.
Mrs Jane Ward
67. Mrs Jane Ward gave evidence on behalf of the Gleaves. Her witness statement is dated in July 2011. She stated that she had known Mr and Mrs Gleaves for the last 20 years, and visited them 5 or 6 times each year on birthdays and other such events. Every time she came from York to visit the Gleaves she parked at the rear of 3 Lakenham Terrace, and she was never told that she could not do this. She said that she had known Mr Phillip Green even longer from about 1972/3 and that she knew him well – they had shared back gardens together. Mr Green did not raise any objection to her parking her car, provided that she parked in straight so that others could get in and she did not park on the grass.
Mr David Michael Edwards
68. Mr David Michael Edwards was called on behalf of the Gleaves, and made similar observations to Mrs Jane Ward. He and his wife have been friends with the Gleaves for 10 to 12 years and visited them on average about once per month. His wife used to work with Mrs Gleaves. He said that there was a ”locking” post on the Accessway, but that Mr Gleaves had a key to it. He thought that the post had been there for 10 to 12 years.
Mrs Sheila Atherton
69. Mrs Atherton also gave evidence on behalf of the Gleaves. She is the sister of Mrs June Gleaves and was born in May 1953. She said that she travelled to visit them from Cumbria 3 or 4 time a year since Mr and Mrs Gleaves moved there in 1987. She stated that she has always parked her car at the back of Lakenham Terrace, and has never been denied access over the Accessway On many occasions she has arrived and there when Mr and Mrs Green have been present, and she has met them often, and no objection has ever been raised to Mrs Atherton parking there. On the contrary Mr and Mrs Green have always been very pleasant and welcoming.
70. In summary, the Applicants rely upon two periods of use insofar as 3 Lakenham Terrace is concerned, namely use by Mr and Mrs Shephard from about April 1983 to June 1987 when they sold the property to Mr and Mrs Gleaves; and then use by Mr and Mrs Gleaves, and their visitors, from June 1987 until July 2011. The Respondents do not dispute that such use of the Burdened Land for access and parking was made by Mr and Mrs Gleaves, and prior to that by Mr and Mrs Shephard. However, it is contended by the Respondents in their evidence that such user was by permission of Mr Phillip Green until he died in 2005, and thereafter by permission of his son Mr John Green until 2011. The evidence from the Respondents is that permission was also needed from the Clarke family which was given until July 2011, when both permissions were withdrawn.
5 Lakenham Terrace
71. The essential feature of the case for the Concadoros insofar as use of the Accessway in relation to 5 Lakenham Terrace is concerned is that given the nature and extent of the use by other residents of Lakenham Terrace, and the convenience of the route provided by the Accessway, it is submitted that it is more likely than not that the residents and visitors of this property used the Accessway to and from Elm High Road. However, it is accepted by the Concadoros that there is limited direct evidence of the use of the Accessway by the tenants and owners of this property. The evidence that is available, and upon which they rely, is as follows:-
(1) Mrs Anna Russo in her evidence stated that Mr Neville Jones referred to the access from the rear of Lakenham Terrace to Elm High Road at the time when Mr Joseph Concadoro purchased the property in December 1976.
(2) Mr Michael David Clarke in his evidence conceded that the stepson of Shirley Jones used to park his motorbike at the rear of this property, and that he would probably not have asked for permission from Mr Paul Green to do so.
(3) In his witness statement Mr Don Freeman stated that he moved into the property in April 2009 until July 2011 when the barrier was erected by Mr John Green across the Accessway. Mr Freeman had a campervan and continues to live in the property as tenant until the present day. In her evidence Mrs Anna Russo stated that Mr Freeman put in double gates at the rear of the property to enable access for his campervan.
Further analysis of the Respondents’ evidence as to user
Mr Paul Brenchley
72. Mr Paul Brenchley gave evidence for the Respondents. He was not a particularly impressive witness. He stated that he is a customer and friend of Mr Michael David Clarke and Mrs Linda Clarke, and that he has occasionally visited to their property by car. As far as he was aware there has always been a gate and post between the Clarke’s land and the land to the rear of Lakenham Terrace, and the post has always been locked, as has the gate out of business hours. He did, however, agree in cross-examination that a photograph of a post (Bundle, Tab I, page 19) did not appear to be locked, and he did agree that he did not inspect the posts. He said that he was a frequent traveller along Elm High Road and he has never seen vehicles parked at the rear of Lakenham Terrace, and despite the fact that the view across to the rear of Lakenham Terrace might have been obstructed by foliage and trees (as seen in the photographs in the Bundle) his vision was not impeded in any way.
Mr Paul Green
73. Mr Paul Green also gave evidence of behalf of the Respondents. He is the grandson of the late Mr Phillip Green and the late Mrs Connie Green of 4 Lakenham Terrace, and lives at Emneth, Wisbech. Mr Green confirmed that Plot A which had been purchased by his grandfather and grandmother on 10 th October 2000 part of which was then transferred on 24 th February 2012 to Mr Michael David Clarke and his wife, Mrs Linda Clarke. He asserted that his grandfather rented part of the Former Canal, as did Albert Clarke who subsequently purchased Plot B. His evidence was somewhat confusing in that he (and so did other witnesses for the Respondents) referred to the “Top Plot” and the “Middle Plot” which are apparent references to Plots 2 and 3, respectively, as shown on the 1989 Licence Plan (Annex 1, page 3). He confirmed that the land rented/licensed by his grandfather, and by Mr Albert Edward Clarke, were Plots 2 and 3, respectively. He confirmed that between 1979 and 2000 anyone who crossed the “Middle Plot” could access the rear of any of the properties at Lakenham Terrace licensed by Mr Phillip Harry Green, but such persons would not need cross the land licensed by Mr Albert Edward Clarke from the Council.
74. Mr Green further stated that he was a regular visitor to Lakenham Terrace and knew that his grandfather gave permission to various residents there to cross the land that he rented. He further stated that he knew his grandfather gave permission to Mrs Tilley of 2 Lakenham Terrace “she was a very close friend and neighbour so that if she had visitors that wanted to park at the rear they could.” Mr Green asserted that he knew for a fact that this happened less than a few times for the whole time that Mrs Tilley lived there. Mr Green also stated that he knew his grandfather had also given permission to the Gleaves, together with various other residents of Lakenham Terrace, such as Mr Hurst who lived at 1 Lakenham Terrace from 1995 to 1998, and Mr Shephard who lived at 3 Lakenham Terrace from 1980 to 1987. In this context it has to be said that all this evidence is hearsay.
75. In the year 2000 his grandparents purchased Plot A and Mr Michael David Clarke and Mr Albert Clarke purchased Plot B. This meant that from that year anyone who wanted to cross the Burdened Land by means of the Accessway had to access Lakenham Terrace via Plot B before they entered Plot A. It was about this time that Mr Michael David Clarke and Mr Albert Edward Clarke erected gates on their land and that they were also asked by Mr Phillip Harry Green to put a bollard on the boundary between the Plots A and B. He stated that both the gates and the bollard were locked and required keys. He went onto say that he knew that the Gleaves were given keys to the gate by Mr John Green and his uncle Mr Tony Green until withdrew permission for the use of the Accessway, and that it was up to them to seek permission from the new owners after the property was sold. He stated that the Gleaves agreed to this but then continued to go through the locked gate and post as a consequence of which a new post with a different lock was inserted.
76. Mr Green accepted that Mrs Scowen and Mrs Wright “occasionally” crossed Plot 2, but this would have been before the locked gates and bollards were put in place, and such visits were definitely less than once a year. He stated in cross examination that if people were there at the rear of Lakenham Terrace that they were there with permission, although he accepted that this was an assumption on his part. He also accepted that there was nothing to stop anybody from using the access way until about 2002 at the earliest when the gate went in. He said than anybody who had permission to use the Accessway got a key and confirmed he never got the key himself as there was what he would describe as “too much aggravation”. He only used the Accessway once or twice.
Mr Albert Clarke
77. Albert Clarke lives at “Holly House” and provided a witness statement, but was not called to give evidence. In his witness statement he confirmed the contents of the witness statement made by Mr Michael David Clarke as being true. He said that prior to approximately 1970 there was no question of anyone accessing any property in Lakenham Terrace from the other side of the Former Canal either by foot or car. In his witness statement he made reference to two footbridges one of which was his – a “vehicular” bridge - and the one constructed by Phillip Green. He identified these two bridges by reference to Exhibit “AC2”. Between 1976 and 1979 he stated that the occupants of Lakenham Terrace would only use the rear access of their properties on foot to go to the Post Office or the village stores. He was confident that the persons who used the land owned/licensed by Phillip Green did so with his permission and he cited some incidents of Phillip’s behaviour and the way in which he tried to control the land by granting permission to some of the residents to cross what he describe as “ Middle Plot”. Mr Green also stated that when Phillip Green died in 2005 Mr Gleaves approached him and told him that he had been to see Connie Green’s solicitor “…to get it noted that she would continue to allow him and his visitors permission to cross Phillip and Connie’s land.” He further stated that he could not recall ever seen anyone cross the “Middle Plot” by foot. He could not see why anyone would need to. He said that there were only two bridges across the Former Canal, namely the one constructed by Phillip Green and the one constructed by him.
Mrs Linda Clarke
78. Mrs Linda Clarke is the wife of Mr Michael David Clarke. She also confirmed the contents of her husband’s statement as being true. Again, her evidence is largely hearsay in that she was informed by the Clarke family, and Mr Neville Jones and Mrs Margaret Jones of 5 Lakenham Terrace, that Phillip Green used to allow some of the other residents of Lakenham Terrace used “his land” for access and parking. He was very particular about who he would allow to cross his land. If anyone tried to cross his land without his permission he would not allow it, and she cited an event when this had happened. She said that Mr Michael Edward Green and Mr Albert Edward Green subsequently agreed to permit people to cross the “Middle Plot”, but only those people who already had permission, such as two of the Concadoro family, Mr and Mrs Gleaves and Mr and Mrs Lakey. Mrs Clarke stated that it was made clear this permission would not continue to apply after the land had been sold to successors in title. She also stated that during the time that they have lived at “Holly Cottage” she had only ever seen Mrs Scowen and Mrs Wright crossing the “middle plot” very occasionally. She also said that in about 2009 Mrs Anna Russo contacted her by telephone asking for permission to allow a new tenant of 5 Lakenham Terrace to use the Middle Plot as a right of way. Mrs Clarke said that she explained that the Clarkes would not allow this to happen. She said that Mrs Russo then became threatening.
79. Mrs Clarke stated in cross examination that she believed that anyone who crossed the land had to ask Mr Green’s permission and that the “road” traversing Albert’s land was “Albert’s road”. She also stated that when the keys were handed over to the Gleaves they were also informed that there were certain rules about the use of the key. These rules were that they had to lock the gate and mind the children. The purpose of the gate was for security and the Burdened Land was used as a safe play area. Mrs Clarke also stated that she only saw people crossing the land “very occasionally”. With regard to those people she did not know she said she was not aware whether or not these people had permission. In this regard it should be noted that Mrs Clarke only moved into Holly House in about 1985 and had no knowledge prior to this date. The business operated by the Clarkes only started from the rear of Holly House in about 1999, and for the period between 2004 and 2009 it operated elsewhere.
Mr Michael David Clarke
80. Since 1997 Mr Clarke has lived at “Holly Cottage” with his wife Mrs Linda Clarke and his family. Before then he lived at “Holly House”. He stated that he moved into Holly House in 1969 when he was 6 years old. He stated that when they first moved into Holly House in 1969 there was no way to cross it, and in 1970 there was no question of anyone accessing any property in Lakenham Terrace from the other side of the Former Canal by foot or car. And then he went on to describe the footbridge constructed by Phillip and Connie Green. Once the Council had completed the works of in-filling the canal between 1972 and 1976 he stated that his father Albert Clarke then was granted a licence of Plot 3. It is to be noted that the land identified by Mr Clarke as having been the subject of a licence to his father as shown in Exhibit “MC6” tinted green is in fact a much larger parcel of land than that which was apparently licensed to him. Mr Clarke then stated that his father used the licensed land as an additional garden. At that time Mr Phillip Green was the only person who owned a car, and as a consequence it was only he and his wife who would cross the Former Canal by car.
81. Importantly, Mr Clarke stated that when Plot B was purchased by Mr Albert Edward Clarke in 2000, any person wishing to access the rear of Lakenham Terrace over the Former Canal by use of the Accessway would not have crossed the land “rented” to his father as the boundaries of the land of the subject of the licence agreements (namely Plots 1, 2 and 3) did not conform with the land subsequently sold as Plots A and B. However, after 2000 anyone who wished to access the rear of Lakenham Terrace by the Accessway would have to cross Plot B in order to go to Plot A.
82. Mr Clarke then went on to say that to his knowledge Mr Phillip Green was very particular about who he gave permission to cross “his land”. He knew that such permission was given to the Concadoros as was to Mrs Tilley at 2 Lakenham Terrace, and her visitors. He also stated that Mr Hurst who lived at 1 Lakenham Terrace between 1995 and 1998 was given permission, as were Mr and Mrs Shephard who lived at 3 Lakenham Terrace between 1980 and 1987.
83. Mr Clarke did not dispute that Mrs Scowen and Mrs Wright and other family members and visitors did occasionally cross Mr Phillip Green’s land when they came to visit Mrs Tilley, but he said that this only occurred a few times. He also accepted that there was occasional vehicular access to the property from Elm High Road, and some parking of vehicles. However, he asserted that visitors to the property only used the rear access a few times over the course of more than 40 years. Thus it is the Respondents’ case that such user associated with the property was not as extensive as is claimed, and by no means could be described as being regular. In any event it is asserted that such user was by permission.
84. In about 2001/2002 Mr Clarke and his father erected the gate as marked in exhibit “MC1” at Plot A and B for security purposes. Apparently Mr Phillip Green also asked them to place a bollard in the boundary between Plots B and A in order to prevent anyone not having permission from entering Plot A. Mr Clarke stated that both the gates and the bollard were locked and required keys to be able to get through the Accessway outside business hours. He himself did not need a key to the bollard. These were apparently cut for Phillip and Connie Green, and also the Gleaves so that they and their visitors could cross Plot B. He stated no one else asked for a key and no one complained to them about the gates or the bollard. In particular he stated that Mrs Tilley’s daughters did not ask for access after this date. Mr Clarke also stated that after Mr Don Freeman had moved into 5 Lakenham Terrace in 2009 he then made a request in 2010 to have access across the Former Canal to carry out some repairs to his camper van. This was apparently allowed, so Mr Clarke stated. When Mrs Connie Green died in 2011 her son Mr John Green thereafter banned access along the Accessway completely.
85. It was put to Mr Clarke that nowhere did he state that he had any conversation with Paul Gleaves nor did he state anywhere in his evidence that there were rules and regulations as regards to use of the Accessway, and nor was the word “permission” ever used. He stated that it was really not of any concern of his as to who was parked at the rear of Lakenham Terrace as until 2000 he had no interest in Plots 1 and 2.
THE DECISION
86. Having regard to the evidence and the principles of law to which I have referred above, it is necessary to draw the various strands together. In my judgment the Applicants have clearly made out their claim to the Easement under the Doctrine of Lost Modern Grant, namely a prescriptive right of way for all purposes along the route of the Accessway over the Burdened Land as marked on the Notice Plan. I am also satisfied that the Applicants have acquired the Parking Right over the area of land hatched red on the Access and Parking Area Plan (Annex 1, page 2).
87. I find that the route of the Accessway has been in use from about the mid 1950s, and that its origins lie in the Cinder Track which was constructed over the Former Canal as the result of the collective effort of the residents form about 1954. Initially it was used for the purposes of pedestrian access only, but later and probably from about the mid 1960s is use also included vehicular access. I also find that no bridge or bridges were constructed in 1970 or thereabouts by either by the Greens or the Clarkes. This would in any event seem to be at variance with the contentions made by the witnesses for the Respondents (in particular Mr Paul Green) that two bridges had been constructed in about 1970 to enable access to their properties to be maintained over the Former Canal. I also reject any suggestion that in some way the storage of any materials impeded open access over the Site.
88. I further find that the Easement along the route of the Accessway over the Burdened Land has remained substantially the same since at least the time when the original Cinder Path was created in the mid 1950s, and when it started to be used by cars. There is some evidence of historical deviations in the route over the decades such as when the Former Canal was filled-in, but, in my judgment, these are minor and in any event do not affect the status of the Easement.
89. I also find that the historic user of the right of way has been open and continuous until 2011 when the gate and bollard were locked and entry barred to the Applicants and their visitors. In my judgment such user would have been apparent over the decades to members of the public, and to adjourning landowners. The catalyst for the imposition of the restriction of the use of the Accessway upon the Applicants by the Respondents seems to have been generated from an apparent misguided interpretation of their rights of ownership when the Respondents acquired the Burdened Land in 2000.
90. The fundamental difficulty with the Respondents’ case is that their direct evidence of the circumstances of the user of the Accessway over the Burdened Land is far more limited than that provided by the Applicants and their witnesses, the latter evidence being more extensive and deriving from a much earlier time. I find that the most reliable direct evidence is that provided by Mrs Scowen and Mrs Wright. It was clear from the way they conducted themselves in the witness box that they had no personal interest in the outcome of the proceedings.
91. I am therefore satisfied that based upon the documentary and oral evidence in the case that the Applicants have established the following:-
2 Lakenham Terrace and 5 Lakenham Terrace
(1) In the case of the Concadoros I find that the period of user was of right for all purposes along the Accessway over Burdened Land in excess of 40 years for the benefit of 2 Lakenham Terrace, the period being from at least between 1964 and 2011. The evidence in the case of 3 Lakenham Terrace does not support this interpretation, but clearly, in my judgment there is sufficient evidence in support of 20 years user (see below).
(2) I further find that there is no evidence of written or oral permission on the part of the Respondents or their predecessors in title, and any reference to any such previous permission having been granted by the owners of the Burdened Land is nebulous, and almost entirely based upon oral hearsay evidence. In any event the grantors of the alleged permission had no authority to do as they had no interest right or entitlement in land (i.e. Plots A and B) until 2000. A personal right only existed with no exclusivity of occupation. As a consequence the claim based on prescription must succeed.
(3) Alternatively, I find that the Concadoros have established a period of user for all purposes in excess of 20 years as of right along the Accessway over Burdened Land for the benefit of 2 and 5 Lakenham Terrace. The evidence demonstrates that for the period from 1982 to 2011 there is clear and incontrovertible evidence to that effect. I also make the same point as to there being no authority to grant any permission in any event, and it would have been obvious to the owners of the land and their tenants, and to adjoining owners, that used was being made of the Accessway by all the inhabitants of Lakenham Terrace, and their invitees.
(4) I therefore do not consider that it is necessary to rely upon the provisions of the 1832 Act as there is ample evidence of prescription at common law under the Doctrine of Lost Modern Grant. However, any claim based upon the 1832 Act must succeed as there is clear evidence of user as of right for the period of 20 years prior to 28 th September 2011, the period having interrupted in July 2011.
3 Lakenham Terrace
(5) I appreciate that the evidence in support of the claim by the Gleaves to the Easement along the Accessway over the Burdened Land in favour of 3 Lakenham Terrace is a little less strong. However, I am satisfied on the balance of probabilities and based upon the documentary and oral evidence in the case that the Gleaves have established a period of user in excess of 20 years as of right for all purposes for the benefit of their property. Again, the evidence demonstrates, and I so find, that the user of the Accessway by Mr and Mrs Gleaves, and their licensees and invitees, was in excess of the period of 20 years for the period from 1987 to 2011. Further, I find that there is sufficient evidence in support of the submissions made by the Applicants as to unauthorised permission. As a consequence, in my judgment, the Applicants can also rely upon the user of the right of way by Mr and Mrs Shephard between 1983 and 1987.
92. Thus in so far as Issue 1 is concerned the answer is in the affirmative.
93. In so far as it is necessary to refer to Issues 2 to 6, I make the following findings:-
Issue 2 – The tenancy/licence position
(1) Summary – I find that the arrangements made between the Council/s and Mr Phillip Green and Mr Albert Edward Clarke, in respect of Plots 2 and 3 were in the nature of personal licences, and no relationship of landlord and tenant was created in either case.
(2) In this regard I refer to the various documents set out in Annex 4. I appreciate that in the letter dated 20 th April 1979 to Mr Albert Edward Clarke, and in the letter dated 16 th April 1980 to Mr Phillip Green there are references to the grant of a tenancy as opposed to the grant of a licence. However, there is no evidence of any subsequent grant of a tenancy to Mr Phillip Green or to Mr Albert Edward Clarke at that stage. All that happened is that Mr Clarke signified his acceptance of certain terms on 30 th April 1979 that the tenancy would be granted under the provisions of the Allotments Act 1950. In the case of Mr Phillip Green the only evidence that is available is contained in the letter of 16 th April 1980.
(3) The 1989 Licence Plan (Annex 1, page 3) clearly identified various plots the subject of the grant of licences, Plots 2 and 3 being granted to Mr Phillip Green and Mr Albert Edward Clarke respectively. Thereafter, as can be seen in Annex 4 there were subsequent references to licences granted to Mr Phillip Green and to Mr Albert Edward Clarke, together with invoices providing evidence of payment of sums in respect of the grant of such licences.
(4) In such circumstances I find that no tenancy agreements were ever entered into between the then Council/s and Mr Phillip Green and/or Mr Albert Edward Clarke, and at the highest they were granted licences of Plots 2 and 3 respectively. Further, as Counsel for the Applicants contends, the Council had in fact no power to let the Burdened Land as an allotment garden under the provisions of the Allotments Act 1922 as such land had not been previously acquired by them for the use of smallholdings.
(5) This being so, in my judgment the claim to rights having been acquired by prescription along the Accessway over the Burdened Land cannot be restricted in any way by the creation of any tenancy agreement between 1977 and October 2000.
Issue 3 – Permissive use
(1) Summary – There is no evidence of any permission having been granted by the freehold owner of the Former Canal for the use of the Accessway over the Burdened Land prior to 10 th October 2000. Mr Phillip Green and/or Mr Albert Edward Clarke as licensees of Plots 2 and 3 had no interest, right or entitlement to grant any such permission. In any event in the case of Mr Clarke the route of the Accessway did not in any event cross Plot 3. It was after Plot B was sold to him and Mrs June Clarke on 10 th October 2000 that they became owners of part of the Burdened Land by which time the Easement had already been acquired under the Doctrine of Lost Modern Grant.
(2) I find that prior to the sales on 10 th October 2000 of Plot A to Mr Phillip Harry Green and Mrs Connie Green, and of Plot B to Mr Albert Edward Clarke and Michael David Clarke there was no evidence to suggest that the residents of or visitors to 2, 3 and 5 Lakenham Terrace were granted permission by the then freehold owners to use the Accessway over the Burdened Land.
(3) Insofar as the Respondents rely upon the contention that the use of Plot 2 was subject to the permission of Mr Phillip Green, he had no right to grant or withhold permission as he had no legal interest in the land, as his interest was only that of a licensee (see above). As a matter of law, therefore, any permission that might have been given by Mr Phillip Green can have no bearing on the issue of the acquisition of the Easement by the owners for the time being of the benefiting land.
(4) In any event, I find that the evidence of permission relied upon by the Respondents is based upon assertions that some form of oral permission was granted by Mr Green and any such evidence that has been given during the course of the case is hearsay, unsatisfactory and unreliable. There has been no direct evidence given during the course of the case except that given by Mr and Mrs Shephard (which I reject) that any permission was granted by Mr Phillip Green to Mrs Tilley and her family, or to Mr and Mrs Gleaves. There is no documentary evidence in support of these assertions whatsoever. I also reject the suggestion made by Mr and Mrs Shephard that they stated to Mr and Mrs Gleaves that it was in some way necessary to seek and obtain the permission of Mr Green to use the Accessway. I accept the evidence of Mr Gleaves in this regard.
(5) As to the position of Mr and Mrs Clarke, the case presented by the Respondents is even weaker. There is no evidence whatsoever of any permission having been granted by Mr Albert Edward Clarke prior to 10 th October 2000 in respect of the then configured Plot 3, and in any event and as admitted by Mr Michael David Clarke during the course of his evidence, the route of the Easement did not traverse Plot 3. He stated that it was no real concern of his as to who parked at the rear of Lakenham Terrace as he did not own Plot B until 2000.
(6) I therefore find that there is no evidence of any permission having been granted by Mr Phillip Green or by Mr Albert Edward Clarke prior to October 2000. Such oral evidence that has been adduced in the case is hearsay, and unreliable. There is no documentary evidence in support. On the contrary the evidence provided by the Applicant and in particular by Mrs Carole Wright and Mrs Maureen Scowen is direct evidence of the circumstances that occurred in relation to the use of the Accessway as constructed in the mid-1950s both for use by pedestrians and later by motor cars.
(7) It is clear from the evidence that in the years following 2000 Mr Paul Green and the Respondents continued to acquiesce in the user by the Applicants, and their invitees. I find that the barriers that were subsequently erected in about 2002 were not in fact intended to exclude residents of Lakenham Terrace, and the fact that keys were made available to some of the residents of Lakenham Terrace supports this interpretation, and such exclusion did not actually occur until 2011 when the gates and bollard were locked.
Issue 4 – Public footpath
(1) Summary - The issue of the public footpath has no bearing on the case.
(2) As to the public footpath it is apparent that for some considerable period of time there has been a public footpath lying to the rear of 1 to 5 Lakenham Terrace. This public footpath appears to be of some antiquity in that it was the former towpath of the Former Canal.
(3) As to the Respondents’ contention that there has been a wilful obstruction of the free passage along this public footpath in breach of the provisions of section 137 of the Highways Act 1980, I find that the provisions of section 137 of the Act do not apply. In my judgment parking along the Accessway by the residents of Lakenham Terrace does not constitute a wilful obstruction of the free passage, and that such parking by vehicles is not without lawful authority or excuse, but is as of right.
(4) Further, I find that as a matter of fact there is sufficient space to park vehicles without obstructing the public passage. In this regard I adopt the reasoning put forward by the Applicants’ Counsel in paragraph 77 of his final written submissions.
(5) Thus, I find that the issue with regard to the Public Footpath is irrelevant to the circumstances.
Issue 5 – Gates and posts
(1) Summary - There was no issue as to Gates and posts until July 2011 when access over the Accessway was finally obstructed.
(2) It is the Respondents’ case that a locked gate and a locked metal post were first installed in about 2002. For their part the Applicants submit that there was no substantial obstruction of the Accessway until about July 2011 when a new bollard was installed at the instigation of the Respondents.
(3) I find that in about 2002 Mr and Mrs Gleaves were provided with a key to the metal post which enabled it to be raised and lowered as and when required. I also find that the gate was left open during business hours. The lock became broken at some stage and was replaced with the new bollard in 2011. However, I do not accept the Respondents’ submission that Mr Phillip Green installed the locked bollard in order to “exercise control over the land to the exclusion of his neighbours”. I also find that the gate and metal post first installed in about 2002 and the latter being replaced with a bollard in about July 2011 did not present an effective barrier until such stage as the Respondents decided to prevent any further access by the residents of Lakenham Terrace along the Accessway over the Burdened Land. This did not occur until July 2011. I also have found (above) that issuing a key to Mr and Mrs Gleaves did not constitute a permission to use the Accessway.
Issue 6 – The Parking Right
(1) Summary – The Applicants have acquired the Parking Right as a necessary addition to the Easement over the Accessway .
(2) As a matter of law the right to park is capable of existing as an easement (see Moncrieff v Jamieson [27]) I find that there had not been very extensive parking over the decades since the first car arrived on the scene in about 1964. The Parking Right has been exercised only for domestic purposes, and is an additional aspect to the fact that one or two of the residents in Lakenham Terrace have garages, such as Mr and Mrs Gleaves who have a garage to the rear of 4 Lakenham Terrace in which they park one car.
(3) In my judgment the Parking Right has been acquired by the Applicants as a necessary addition to the Easement, which enables them to park over the area hatched red on the Access and Parking Area Plan (Annex 1, page 2), provided that such parking is maintained in a reasonable manner, and is restricted to one vehicle per household.
(4) Thus I find that there is sufficient evidence in support of the Parking Right over the decades and that such Parking Right has been exercised by the residents of Lakenham Terrace and their visitors. I also find that any use of that part of the Accessway for parking purposes does not amount to excessive user and/or any substantial interference with the Easement. I also find that this does not restrict the right of, or cause any obstruction to, the public to pass and re-pass over that part of the Burdened Land over which lies the Public Footpath (see above).
94. I therefore direct the Chief Land Registrar to give effect to the Applications in the terms provided in the Order herewith. Costs should follow the event, and I so order that the Respondents do pay to the Applicants the costs of and occasioned by the Applications.
BY ORDER OF THE TRIBUNAL
Dated the 3 rd day of February 2014
ANNEX 1
Plans
Notice Plan (page1)
Access and Parking Area Plan (page 2)
1989 Licence Plan (page 3)
2000 Sale Plan (page 4)
ANNEX 2
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Applicants’ Properties |
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2 Lakenham Terrace |
Anna Russo |
Title No CB364769 Pending first registration |
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3 Lakenham Terrace |
Paul William Gleaves June Stella Gleaves |
Title No CB364771 Pending first registration |
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5 Lakenham Terrace |
Joseph Angelo Concadoro John Concadoro |
Title No CB364770 Pending first registration |
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Respondents’ Properties and Other Relevant Properties |
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Holly House
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Albert Edward Clarke |
Unregistered land |
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Holly Cottage |
June Clarke |
Unregistered land |
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The Cottage |
Registered proprietor - Linda Jane Clarke |
Title No CB366709 registered on 21 st December 2011 |
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Part of the Burdened Land as shown edged with red on the Land Registry title plan at the “back of Holly House”
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Registered proprietors are Albert Edward Clarke and Michael David Clarke |
Title no NK254813 registered on 12 th October 2000 No pending applications against this title other than the disputed Easement. There is a form A restriction on the Property Register, but otherwise the equitable title is unknown.
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4 Lakenham Terrace
The land shown edged red and tinted pink and blue on the title plan. |
Connie Green – registered proprietor. |
Title No CB301610 No date of registration provided on the register, although registration must have been prior to 15th March 2011 (date of Connie Green’s death). [28]
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On 24 th February 2012 there was a transfer of the part of CB301610 edged red and tinted red to the rear of Lakenham Terrace by John Edward Green as executor of the estate of Connie Green to Michael David Clarke and Linda Clarke. [29]
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This transfer of part remains unregistered, and therefore equitable. [30] |
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1 Lakenham Terrace |
Jenny Yit Foong Apps and Christopher Shuan-Peng Apps |
Title No CB116986 registered on 15 th February 1990 |
ANNEX 3
When reference is made to the documentary evidence contained in the Bundle this reveals that the Accessway has been in existence for many decades, albeit that it probably has been the subject of some historical deviation.
(1) The Ordnance Survey map dated March 1968 indicates the Accessway as lying in a perpendicular direction from Elm High Road and “fanning out” towards the rear of Lakenham Terrace (at page 116). A similar position is revealed when regard is had to the Bundle at Divider F to the following copy maps:
(a) – mark information group map dated “1969 Post WW11” – showing access across the Former Canal to the rear of Lakenham Terrace (page 27).
(b) Ordnance Survey map 1945 – 1970 enlargement of Elm Section.
(c) Ordnance Survey map 1945 – 1970 400% enlargement showing access from Elm High Road to rear of Lakenham Terrace with garage marked at 4 Lakenham Terrace (at page 30).
(2) The enlargement at (c), above, indicates the Cinder Track as lying along the same route as that shown in the March 1968 Ordnance Survey map, to which reference has been made above. This was before the Former Canal was filled in between about 1972 and 1976. It is apparent that the access to and from Elm High Road is in the same position then as it is now (behind “Holly Cottage”), and that the route of the Cinder Track before it “fanned out” lay at a point in about the same position as the later constructed the Hard Standing.
ANNEX 4
The root of title and occupiers of the properties [31]
(1) 1 Lakenham Terrace
In 1969 the occupant of this property was Mr John Holland. On 20 th December 1971 it was conveyed by Mr Smith to Mr Reeves and others resulting in all five properties being in common ownership at that stage. In December 1976 Mr Joseph Concadoro, Senior, purchased 1, 2, 3 and 5, but not 4. In 1985 Mr and Mrs Hurst became the tenants of 1 Lakenham Terrace and they vacated the property in 1988. In that same year this property was purchased by Mr Michael Lakey and Mrs Lisa Lakey from Mr Concadoro who then sold it in 2002/3. The current registered proprietors are Jenny Jenny Yit Foong Apps and Christopher Shuan-Peng Apps registered on 15 th February 1990. They do not play any part in these proceedings.
(2) 2 Lakenham Terrace
In 1945 Mrs Nellie Tilley was granted a tenancy of the property, and lived there with her two daughters, Mrs Maureen Scowen (née Tilley) born in 1943, and Mrs Carole Wright (née Tilley) who was born in 1947. Mrs Tilley remained in the property until 30 th November 2005. By a conveyance dated 10 th November 1971 between Marshall and Reeves and others 2, 3 and 5 Lakenham Terrace were conveyed to Reeves and others. In December 1976 Mr Joseph Concadoro, Senior, purchased 1, 2, 3 and 5 Lakenham Terrace. On 20 th October 2005 Mr Joseph Concadoro, Senior, died leaving 2 and 5 to his children, namely the Concadoros. In 2006 Miss Michelle Bruce was the tenant of the property, followed by Miss Tamara Martin in 2007. This property is currently owned by Mrs Anno Russo. The Schedule reveals that there were a number of residents and visitors to the property between the 1960s to 2005 many of who owned or used motor vehicles. Mr Joseph Concadoro, Senior, died on 20 th October 2009 leaving this property (and 5 Lakenham Terrace) to his children.
(3) 3 Lakenham Terrace
Mr Jack Emerson was the tenant of the property from the 1960s and he remained there together with his wife, Lilian, until 1980. This property was purchased by Mr Joseph Concadoro, Senior, in December 1976 (see above). On 21 st April 1980 Mr David Shephard and Miss Sally Smalley (later Mrs Shephard) purchased the property from Mr Joseph Concadoro, Senior. On 1 st June 1987 the Gleaves purchased this property from Mr and Mrs Shephard. This property is currently owned and occupied by the Gleaves. The Schedule reveals that Mr Emerson, Mr and Mrs Shephard had motor cars, and the Gleaves currently have a motor car.
(4) 4 Lakenham Terrace
Prior to 1969 Mr Phillip Harry Green purchased this property. He remained there together with his wife Connie until his death on XXX. Mrs Connie Green died on 15 th March 2011.. Mr John Edward Green is her executor. The property still remains registered in her name
(5) 5 Lakenham Terrace
Between 1969/1970 and 1998 this property was tenanted by Mr Neville Jones and Mrs Margaret Jones. Ms Shirley Jones was also a resident and visitor there between the same dates. On 10 th November 1971 it was conveyed by Mr Marshall to Mr Reeves and others, as above. In December 1976 Mr Joseph Concadoro, Senior, purchased the property, and Mr Neville Jones remained the tenant. In 1998 Mr Jones died and his tenancy of the property determined. After his death Ms Helen Smith moved into this property and left in 2002 to be followed by Mr George Longmore and Mrs Elica Longmore who entered into occupation and remained there until 2007. In April 2009 Mr Don Freeman became the tenant of the property, and he and his wife remain there. Mr John Concadoro is the current owner of this property following the death of his father on 20 th October 2009. The Schedule reveals that there were a number of residents and visitors to the property between the 1970 and 2011 many of who owned motor vehicles.
(6) Holly House, Holly Cottage and The Cottage
In 1969 Mr Albert Clarke, Mrs June Clarke and their son Michael David Clarke (then aged 6) moved into the property referred to in the evidence as “Holly House”. In 1985 Mrs Linda Clarke (the wife of Mr Michael David Clarke) also took up occupation in this property. The position as to Holly House and Holly Cottage is somewhat confusing in that exhibit “MC1” to the witness statement of Mr Michael David Clarke identifies “Holly House” as shown coloured orange, and “Holly Cottage” shown coloured yellow. It would therefore appear that this parcel of land has at some stage been sub-divided. Neither property is registered at HM Land Registry, but the area within the boundary of these properties is referred to collectively on the Land Registry plans as “Holly Cottage”. Holly Cottage lies immediately north of a property known as “The Cottage” which is currently registered in the name of Mrs Linda Clarke under title number CB366709. Apparently according to the evidence the parents of Mrs June Clarke moved in The Cottage in 1967.
ANNEX 5
The tenancy/licence position
Letter dated 3 rd March 1977
(1) In a letter dated 3 rd March 1977 from Norfolk County Council to Mr [PH] Green the following statement appears:-
“I understand that you use the bed of former Wisbech Former Canal for vehicular access purposes from your property to the A1101 road at Emneth. I am writing to inform you that while the County Council as owners of the Former Canal bed have no objection to this use continuing until such time as the bed is required by them for some purpose your use does not constitute a right. In other words, the use is by leave and licence and not as of right and would have to cease when the County Council so requested.”
Letter dated 20 th April 1979
(2) In a letter dated 20 th April 1979 from the County of Cambridgeshire to Mr A E Clarke of Holly House bearing a reference to the former Wisbech Former Canal – New Common Bridge to Elm Bridge, it is stated that the future use of the above property was still being considered and it was unlikely that a firm decision would be made and possession required for some years. In the meantime, therefore, the County Council was prepared to recommend the grant of a tenancy [32] to Mr A E Clarke shown by red colour on the plan attached (no colour copy of the plan being available) at a rent of £3 per annum, to be reviewed. Clause 5 of the letter specifies that the tenancy would be granted under the Allotments Act 1950 which would enable the County Council as landlords to serve a 12 month’s notice to terminate the agreement between 29 th September and 6 th April of the following year. It is specified that this tenancy would commence on 1 st April 1979 and would be subject to any existing rights of way and easements. On 30 th April 1979 Mr Clarke signified his acceptance of these terms and this was acknowledged by the Council on 4 th May 1979.
Letter dated 16 th April 1980
(3) The correspondence also reveals a letter from Cambridgeshire County Council dated 16 th April 1980 relating to the grant of the tenancy to Mr P H Green, and reporting that the Elm Parish Council was concerned that the public footpath along the former towpath to the Former Canal should be left clear of obstructions such as fences and that nothing should be done on the line of the path which might inhibit the public from using it. As Mr Green had not at that stage enclosed “the site” a request was made that he should continue to leave the route of the footpath clear.
Letter dated 11 th June 1982
(4) In a letter dated 11 th June 1982 from Cambridgeshire County Council to Mr A E Clarke, it was noted that Mr Clarke wished to continue with the present agreement and the assumption was made that he would reach an agreement with Mr Green on “mowing the grassed areas”. It was also stated that the areas of the Former Canal not required for highway purposes would in due course be sold.
The 1989 Licence Plan
(5) A copy of the plan prepared in 1989 by the Department of Planning and Property of Norfolk County Council has been produced by the Applicants and marked Exhibit 1. This plan identified the various plots the subject of the grant of licences and bears the plan number 2/2716/1/2/3/4/5. The relevant plots for the present purposes are plots 2 and 3 granted to Mr P H Green and Mr A E Clarke, respectively.
Letter dated 4 th April 1991
(6) In a letter dated 4 th April 1991 from Mr Fernihough of Norfolk County Council to Mr A E Clarke, bearing the reference Allotment: Plot Numbers 34/3, it is stated that the land which formerly belonged to Cambridge County Council passed to Norfolk County Council, and that
“the existing agreement is an annual licence. For simplicity I would now propose a five year licence, as follows commencing on 1 st April 1991 and that the fee would be £6 per annum for each plot namely a total of £12 per annum.”
The payment of £60 per annum was sought for five years from Mr Clarke by Norfolk County Council. Reference is also made to the plot being in accordance with the attached plan 2/2716/3. In paragraph 4(d) it is specified that Mr Clarke would vacate the land at the end of the licence, however determined. Unfortunately the subsequent page or pages of this letter are missing.
Letter dated 1 st May 1991
(7) In a letter dated 1 st May 1991 sent to Mr P H Green of 4 Lakenham Terrace Mr Fernihough wrote in similar terms to that sent to Mr AE Clarke on 4 th April 1991, this time referring to “Elm Land: Car Parking etc” and stating that the current agreement was an annual licence, and proposing a five year licence commencing on 1 st April 1991 at a cost of £6 per annum, and seeking the payment in advance of a total of £30. This was signed and dated 3 rd May 1991 by Mr Green. Page 2 of this letter makes reference in clause 6 to the fact that the licence could be determined by either party giving the other one month’s clear notice in writing at any time.
Letter dated 9 th April 1997
(8) In a letter dated 9 th April 1997 from Norfolk County Council (by this date the Property Department of Norfolk County Council had became NPS Property Consultants) to Mr P H Green, and further to the letter dated 1 st May 1991 granting him a licence of the land for five years from 1 st April 1991, it was stated that the position as to the prospective sale of the plot had not quite arisen. In the meantime it was therefore proposed that Mr Green remained in occupation on a year to year basis, and an invoice was to be rendered for £12 covering the period from 1 st April 1996 to 31 st March 1998.
Invoices
(9) Also enclosed in the Bundle are a number of invoices from Norfolk County Council to Mr P H Green dated 1 st April 1996 to 1 st April 2000 for payment of the sum of £6 per annum all bearing the description “car parking”. There are also two invoices rendered by Norfolk County Council to Mr A E Clarke for the years 1 st April 1997 and 1 st April 1998 each for the sum of £12. Reference is made in the invoices sent to Mr A E Clarke to “licence plots 34/3 as garden extensions”.
(10) In an email from Mr Grant Brewer (a witness called by the Respondents) to Mrs Linda Clarke dated 14 th March 2012 it is stated that the Former Canal was jointly owned by the Norfolk and Cambridgeshire County Councils and the process of sale of the plots was coordinated by Norfolk County Council through its property department (NPS Property Consultants). Mr Brewer personally dealt with the sales to Mr Albert Edward Clarke and Mr Michael David Clarke and Mr Phillip Harry Green and Mrs Connie Green in the year 2000.
The grant of the vehicular right of way over Plot B in favour of Plot A.
(11) Reference should also be made to the Official Copies of title numbers CB301610 and NK254813 which refer to the transfers of Plots A and B by Norfolk County Council to M Phillip Harry Green and Mrs Connie Green, and Mr Albert Edward Clarke and Mr David Clarke, respectively. More particularly note 3 in the Property Register of the former title states that the transferors granted to the transferees and their successors in title a vehicular right of way over the access way coloured brown on the title plan, the burden of which is noted in note 2 of the Charges Register. These two plots as sold did not conform to the original configuration of plots 2 and 3 as shown on Exhibit 1 (Annex 1, page 2) as the boundaries between the two plots were re-drawn prior to sale. This access way over Plot B to Plot A follows the same route as the prescriptive right of way, being the subject matter of the First and Second Applications. It is to be noted that there was no reservation of any prescriptive rights in the transfers of plot B and A in favour of 2, 3 and 5 Lakenham Terrace.
[1] The Land Registry Case Summary states that the benefit of the Easement was referred to in a conveyance dated 24 th December 1976 by virtue of which the Applicants’ father Mr Joseph Concadoro, Senior, acquired the benefiting land. However, this reference is to a right of way in favour of 4 Lakenham Terrace which provided that property with the benefit of the right to pass and re-pass over a strip of land coloured yellow lying over the rear gardens of 1, 2, and 3 Lakenham Terrace (see the plan attached to the copy conveyance). It therefore appears to be irrelevant to the present case, and in any event the right apparently is no longer extant.
[2] There appears to be some confusion in the nomenclature. For the purposes of this Decision the designations given to these properties are those provided in the HM Land Registry plans, namely, Holly Cottage which remains unregistered. 5 Lakenham Terrace abuts Holly Cottage to its north. To the south of Holly Cottage lies The Cottage which is registered under title number CB366709 in the name of Mrs Linda Clarke. Holly Cottage as described in the Land Registry plans appears to have been subdivided into two properties referred to in the evidence as “Holly House” and” Holly Cottage”. Annexed to this Decision as Annex 2 is a schedule identifying by reference to title numbers the registered proprietors of the respective properties, and in the case of unregistered land – the owners. See also Annex 4 for an analysis of the roots of title and conveyancing history of the respective relevant properties including the designations of Holly House, Holly Cottage and The Cottage.
[3] This transfer of part has not been the subject of registration, and therefore remains equitable.
[4] In this case the Case Summary states that the benefit of the Easement had also been exercised by their predecessors in title as referred to in a conveyance dated 21 st April 1980 by which 3 Lakenham Terrace was conveyed by Mr Joseph Concadoro, Senior, to Mr Shephard and his then fiancé. However, again this reference may be to a right of way then existing in favour of 3 Lakenham Terrace. This provided that property with the benefit of the right to pass and re-pass over a strip of land coloured yellow over the rear gardens of 1, 2, and 3 Lakenham Terrace, although the copy deed appears to be incomplete.. It therefore appears to be irrelevant to the present case.
[5] See footnotes 2 and 3 above.
[6] Reference should be made to the plan Annex 1, page 3 (probably drawn in about 1979) where four plots are identified and numbered 1 to 4. (“the 1989 Licence Plan”). These plots were the subject of the licence/tenancy agreements with adjoining owners. However, the relevant two plots as identified for sale, and subsequently sold, by Norfolk County Council in 2000 have been described as plots A and B on the sale plan prepared in 2000 (“the 2000 Sale Plan”). The Sale Plan appears at Annex 1, page 4. The areas identified as Plots A and B did not conform with the original configuration of plots 2 and 3 as the boundaries between the two plots were re-drawn prior to sale. This has some significance in the case particularly in relation to the evidence of Mr Michael David Clarke (see below). Also see Annex 5 for an analysis of the licence/tenancy position.
[7] See footnote 6, above.
[8] See Tremayne v English Clays Lovering Pochin & Co Ltd [1972] 2 All ER 234; and see Tehidy Minerals Ltd v Norman [1971] 2 QB 528.
[9] See R v Oxfordshire County Council, ex parte Sunningwell Parish Council [2000] 1 AC 335.
[10] See Smith v Brudenell-Smith (2002) 2 P & CR 51, at pages 62/63) ..
[11] See Tickle v Brown (1836) 4 Ad & E 369 at p 382, and Gardner v Hodgson’s Brewery Co Ltd [1903] AC 229 at pp 238, 239).
[12] 19 th Edition (2013), at para. 4.53; and see Colls v Home and Colonial Stores [1906] AC 179 at 189.
[13] See J. A. Pye v Graham [2000] Ch 676, at pp 699 – 703.
[14] REF/2011/0420, a decision of the Adjudicator handed down on 10 th April 2012.
[15] See Gale on Easements, (19 th Ed, 2013) para. 4-143.
[16] See White v Taylor (No 2) [1969] 1 Ch 160, at page 192, and see Mills v Silver [1991] Ch 271.
[17] See Hollins v Verney [1884] 13 QBD 304, at page 315).
[18] As stated in Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 at 239.
[19] See James v Hayward (1631) Sir W. Jones 222; Cro.Car.184; Andrews v Paradise (1724) 8 Mod 318; and Kidgill v Moor (1850) 9 CB 364.
[20] See Petty v Parsons [1914] 2 Ch 662 at p 666.
[21] See Johnstone v Holdway [1963] 1 QB 601, and see p.613.
[22] See Dawes v Adela Estates (1970) 216 EG 1405.
[23] See Flynn v Harte [1913] 2 IR 327.
[24] See Wimbledon and Putney Commons Conservators v Dixon (1875) 1 Ch.D. 362
[25] See Gale on Easements 19 th Edition, (2013) at paragraph 9-97.
[26] Ibid at paragraph 9-98, citing the case of Davis v Whitby [1973] 1 WLR 629, affirmed [1974] Ch 186.
[27] See Moncrieff v Jamieson [2007] UKHL 42.
[28] There are pending applications against CB301610 dated 28 February 2012 and 29 February 2012 on the Land Registry Day List. The abbreviated property descriptions there suggest that the former is the land to the rear and the latter the house, but are not conclusive in that respect.
[29] The background is that by a TP1 dated 10 th October 2000 part of the land comprised in the title and lying to the rear of the house and garden at 4 Lakenham Terrace was transferred by Norfolk County Council to Mr Phillip Harry Green and his wife Connie Green for the sum of £70,000, and was registered under title number NK254946. Thereafter by a subsequent TP1 dated 24 th February 2012 Mr John Edward Green in his capacity as the Executor of the estate of the late Mrs Connie Green transferred Mr Michael David Clarke and his wife, Mrs Linda Clarke, apparently for the sum of £7000. This parcel of land is identified as Plot A and edged in blue on the Sale Plan prepared by Norfolk County Council in 2000 for the sale of certain plots of land formerly comprising parts of the Former Canal, now defunct. The Sale Plan is at Annex 1, page 4.
[30] As at 23 rd January 2014 Mrs Connie Green still remains the registered proprietor of the whole of the land comprised in the whole of the land comprised in the title
[31] At page 13 of the Bundle the Applicants have produced a schedule by owners and visitors using the Accessway to the rear of Lakenham Terrace (“the Schedule”).
[32] In fact his son, Mr Michael David Clarke stated in his evidence that it was a licence granted to his father – not a tenancy. The evidence given by Mr Grant Brewer for the Respondents also refers to licences granted to Mr Albert Edward Clarke.