REF/2007/0007

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

BETWEEN

(1) DAVID ALFRED LYONS

and

(2 JEAN LINDA LYONS

 

APPLICANTS

 

and

 

(1) LESLIE JAMES RICHARD ORME

and

(2) LYNN MARGARET ORME

 

RESPONDENTS

 

 

Property Address: Land adjoining Harley Cottage, Trewassa, Camelford, Cornwall

Title Number: CL139204

 

 

Before: Mr Michael Michell, Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Liskeard Magistrates Court and at Fuschia Cottage, Trewassa, Camelford, Cornwall

 

On: 1^st March 2011 and 15^th and 16^th August 2011

 

 

Applicant Representation: Mr Rawdon Crozier, counsel, instructed by Parnalls Solicitors

Respondent Representation: In person

 

 

 

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

RIGHT OF WAY – PRESCRIPTION- LOST MODERN GRANT

 

Cases referred to

Hollins v. Verney (1884) 13 QBD 304

White v. Taylor (No.2) [1969] 1 Ch. 160

Tehidy Minerals v. Norman [1971] 2 QB 528

Diment v. Foot [1974] 1 WLR 1427

Ironside & Crabb v. Cook & Barefoot

 

1. Mr and Mrs Lyons applied to HM Land Registry on 9^th December 2005 to register the benefit of a right of way on foot and with vehicles for the benefit of their property, Lowertown Farm over a strip of land adjoining Harley Cottage. I shall refer to the strip of land as “the Strip”. Mr and Mrs Orme, the registered proprietors of Harley Cottage which adjoins the Strip, objected to the application. The matter was then referred to the Adjudicator to HM Land Registry for determination.

 

The Hearing

2. This matter was listed to be heard at Liskeard Magistrates Court on 1^st and 2^nd March 2011. As the Applicants wished to rely on the evidence of Mrs Pauline Wakefield and Mrs Wakefield was too ill to give evidence in court, the Adjudicator made a direction that Mrs Wakefield’s evidence be taken at her home, Fuschsia Cottage, Trewassa. Mr and Mrs Orme applied to adjourn the hearing because Mrs Orme was too ill to attend court. In order to balance the need to avoid injustice to the Applicants by taking the evidence of Mrs Wakefield before she became too ill to give evidence and the need to give Mrs Orme a proper opportunity to attend the hearing and give evidence herself, I directed that the hearing should be opened briefly on 1^st March 2011, that Mrs Wakefield’s evidence should then be taken at her home and the hearing should then be adjourned to a date to be fixed. The re-fixing of the hearing was then delayed due to the continuing ill-health of Mrs Orme but it was subsequently re-fixed for 15^th and 16^th August 2011. Unfortunately, by that date Mrs Orme’s health had declined further and she was unable to attend the hearing.

 

 

The Site

3. I visited the site on 1^st March 2011 and carried out an inspection accompanied by the Applicants and their legal representatives and by Mr Orme. Trewassa is a small hamlet set amongst farmland close to the North Cornish coast. Trewassa can be accessed by only one public highway which runs in an easterly direction from the main Launceston to Camelford road. On entering the hamlet, the road appears to split with one branch running off to the left to run in a north easterly direction until it terminates at the entrance gates to Lowertown Farm and the other branch running in a south-easterly direction. Cornwall Council as highways authority has confirmed that the first branch is not a publicly adopted highway. The second branch is a publicly adopted highway. It runs alongside the south of Harley Cottage and then turns through almost a right-angle to run approximately due south, passing Fuchsia Cottage and another two cottages before the metalled road terminates at some gates into farmland. The Strip runs between a point close to the entrance gates to Lowertown Farm and the point at which the second branch of the road into the hamlet turns to run due south. Harley Cottage occupies a triangular-shaped island site bounded by the two branches of the road and along the east side by the Strip.

 

4. The surface of the Strip was at the time of my inspection largely covered with grass and other vegetation except at the bell mouth at the southern end where it was covered with chippings. Moving north from the southern end of the Strip, the Strip is bounded on the east side by a Cornish hedge, then an entrance into a farm building (believed to have been used as a tractor shed) and the wall of another farm building and then a further section of hedge. On the west side of the Strip running from south to north there are two timber fence panels, then a section of trellis fencing and further section of hedge. The northern section of the Strip slopes downhill from south to north, running in what looks like a cutting, with banks on both sides. The Strip gives every appearance of being a country lane; it is open at each end; it is of a width typical of a country lane; it is separated from the land on each side by hedges, fences and banks.

 

Plans

5. Historic and current Ordnance Survey maps of the Trewassa area were put in evidence. The Ordnance Survey Second Edition 1906 map shows the strip bounded to the east by a sold line drawn between it and the adjacent enclosure 393. At the north end on the east side a rectangular building is shown with its narrow western end adjoining the strip. The boundary of enclosure 393 to the north of the building is shown by a solid line running north from the eastern end of the building. That line continues, marking the western boundary of the enclosure to the north, enclosure 394. A broken line is marked running from the north west corner of the building northwards before curving to meet the solid line marking the western boundary of enclosure 394. The eastern side of the strip is marked for most of its length from the north running south by a broken line. This broken line meets a solid line which runs on a north-north-east to south-south-west line from a point near to the road to Lowertown Farm to a point towards the eastern boundary of the strip where it turns to run due west to meet the south east corner of Harley Cottage. The detail shown on the 1978 Ordnance Survey map is similar. Enclosure number 393 is re-numbered 7980 and an additional building is shown in that enclosure, a little to the south of the building shown on the 1906 map. The solid line running NNW to SSE to the west of the strip turns at a point a little further west than is shown on the 1906 map and this line terminates at the north east corner of a building not shown on the 1906 map but which is known to be the garage of Harley Cottage. The outline of Harley Cottage has changed, it having been extended northwards at the eastern end. On the 2009 Ordnance Survey map sold lines are shown on both sides of the strip. An additional building attached to the north side of the building shown to the east of the strip on the 1906 plan is marked. Greenvalley Bungalow is shown to the east of the strip on what had been part of enclosure 7980. The solid line running NNW to SSE no longer appears. A broken or pecked line is used by the Ordnance Survey for features which are not obstructions to pedestrians.

 

Photographs

6. A number of aerial photographs were produced in evidence. A photograph taken on 16^th September 1979 shows the strip with a central grass strip between two wheel tracks, which are grey in colour suggesting that the surface is made up of stone and gravel. There was an aerial photograph taken on 15^th May 1983. That photograph shows the Strip clearly. From the area in front of the tractor shed to the southern end of the Strip, the surface of the Strip appears grey in colour, suggesting that it is covered in stone chippings or similar material. Going north from the tractor shed, the strip appears to be covered in grass except where two brown strips indicate where the grass has been worn away by vehicle wheels or tyres. The northern end of the Strip appears grey as if covered in chippings or gravel or something similar. There is a photograph taken in 2001. The Strip does not appear so close up as it does in the other photographs but it is possible to make out the Strip quite distinctly. Nothing is shown in this photograph blocking the strip. There does not appear to be any car parked on the Strip when this photograph was taken.

 

Evidence

7. Mr Harry Hayne lives at Manor Place, Trewassa. He has lived in Trewassa since he was a child. He described the Strip as a lane. He lived at Lowertown Farm from 1971 until he sold the farmhouse and buildings with some land to Mr and Mrs Lyons in 1989. Mr Hayne used to farm Lowertown Farm for cattle for dairy and beef, using all the fields around the hamlet except for OS enclosure number 7980 which is the field to the immediate east of the strip. He used to walk down the Strip to visit people in the hamlet. He used to drive down the Strip on a tractor and in his Land Rover. He would take a tractor and trailer down the Strip to take dung from the Lowertown farm buildings to spread on the fields. He used to chain harrow, roll and weed the fields, taking his trailer from Lowertown farm down the Strip to access the fields. He had both a Massey Ferguson tractor and a larger Ford tractor. He could and did take both down the Strip He used to drive cattle from the fields up the Strip to the Lowertown farm yard where he would load them to take them to market. He might do this 10, 12 or 20 times a year. He moved out of Lowertown farm house in 1984 and went to live at Manor Park but he continued to use the Lowertown Farm yard as the hub for his farming activities until 1988 when he bought additional land and created holding pens for cattle on the new land. He had two daughters, who, up until the time they left school at the age of 16, had a pony which they would ride along the Strip.

8. Mr Hayne’s sister-in-law, Mrs Ann Hayne also gave evidence. She has lived in Trewassa since she was three years old. She said she had seen Mr Hayne going up and down the strip in a Land Rover. She described it as a “normal thing” for him to drive his Land Rover along the Strip; it was a normal route for him to take.

 

9. Mr Moore purchased Greenvalley Bungalow in about March 2006 and has lived there since. He gave little useful evidence. He had never seen Mr or Mrs Lyons drive along the Strip.

 

10. Mr Lyons has lived at Lowertown Farm since March 1989. At the time he purchased, he walked down the Strip and he recalled seeing both car and tractor tracks on the Strip. After he and Mrs Lyons purchased Lowertown Farm, they began major building works. They started work by repairing two single storey barns and extending one of them and then they built an extension onto the side of the farm house. The original three bedroom farmhouse was extended to become a six bedroom, three reception room, three bathroom house. On 17 January 1990 Mr and Mrs Lyons obtained planning permission to convert three barns into holiday accommodation. They obtained a variation of the conditions of the planning permission in respect of the two storey barn on 19^th June 1991 so as to permit its use as an annexe or for holiday purposes. They then made enquiries of the planning authority as to lifting the condition that prevented the two storey barn from being sold, let or leased separately from Lowertown Farmhouse. They were advised by a planning officer at a meeting on site on 16^th June 1992 that it was unlikely that the condition would be lifted. Mr Lyons said that he had been working on the barn “ever since”, suggesting that work on this barn did not begin until after June 1992. The building works included converting the two storey barn and also a single storey barn into holiday accommodation. Building materials were delivered to the farm for the works, often on large articulated lorries which could not get into the farmyard. The lorries and other delivery vans would remain on the lane and to get their car out, Mr and Mrs Lyons would drive along the Strip. In his witness statement, Mr Lyons said that he had to use the Strip to exit Lowertown Farm and the village “sometimes”. In cross-examination, he said that he drove over the Strip on “numerous” times from April 1989 up to the late 1990s. He said that the lane was blocked by delivery lorries “quite often” and that sometimes the lane was blocked twice a week.

 

11. Mr Lyons said that Mr and Mrs Orme obstructed the Strip after they moved into Harley Cottage in 2002 by parking vehicles and that in 2003 a vehicle covered with a blue tarpaulin was left obstructing the Strip adjacent to the hedge beside Greenvalley Bungalow. The obstruction prevented vehicular use but did not prevent pedestrian use.

 

12. Mrs Lyons gave evidence. Mrs Lyons said that when she and Mr Lyons went to view Lowertown Farm before deciding to but it, they walked down the Strip to its southernmost point to see how close the treatment works for the nearby Dairy crest creamery were. She recalled visiting Lowertown Farm after buying it and before moving in, and that the access road looked well used as the grass had been worn away at the northern end and there were tyre tracks visible in the exposed soil. Her evidence was that she had sometimes driven domestic vehicles over the Strip when the road to Lowertown Farm was blocked with delivery vehicles. She also said that she had walked over the Strip and that her three sons used to use it on foot and by bicycle in order to reach the other side of the village where their friends lived. In cross-examination she said that she had driven over the Strip on “numerous” times.

 

13. Mr Orme called three witnesses in addition to himself. Mrs Dawson has owned Rose Cottage, Trewassa with her husband since 1986. Rose Cottage is on the south side of the road into Trewassa, opposite Harley Cottage. Mrs Dawson and her husband use Rose Cottage as a holiday home, visiting it every other weekend, at the May Bank holiday and for two weeks over the Christmas and New Year holidays. Mrs Dawson used to park on the Strip sometimes. It was possible to drive from the south end of the Strip up to about half way. She recalled Mr Raspa driving a tractor down from the north end of the Strip where he had his tractor shed but she did not drive herself down from the north end. She was nervous of driving over the Strip because it was in poor condition. In winter, she believed a four wheel drive vehicle could be driven over it but she said walking over the Strip in winter was difficult because it was very muddy.

 

14. Mr Bell lived at Harley Cottage from October 2000 to August 2002. His only recollection of the Strip being used for vehicular access was that on one or two occasions, a local farmer drive along the Strip on a quad bike. The Strip was occasionally blocked by his visitors parking their cars at the southern end of the Strip. His wife used to park her car on the Strip but she would tuck it in beside the Harley Cottage garage, so not entirely blocking the Strip.

 

15. Mr Cooper lived at Melrose Cottage Trewassa from June 2000 to April 2004. He described the southern end of the Strip as a regular parking spot. Mr and Mrs Flowers, who lived at Harley Cottage before Mr and Mrs Bell, “daily” parked his car and visitors’ cars there. Mr and Mrs Bell kept at various times their two cars there. Mr and Mrs Orme parked their cars there. Mr Flowers had a large pile of chippings dropped beside his garage and this meant he could not park his car right beside the garage. The only vehicle Mr Cooper ever saw driving on the Strip was a small tractor belonging to Mr Michael Raspa. He never saw Mr and Mrs Lyons appear in Trewassa and had never met or spoken to them.

 

16. Mr Orme could give evidence of use of the Strip only from 2002 when he moved with his wife to live at Harley Cottage. His evidence was that he had never seen a vehicle pass along the Strip since taking up occupation in 2002. Mr Raspa, who lived at Green Valley Bungalow used the Strip for access when driving his tractor along it to fee stock. The Strip was regularly blocked with cars belonging to people visiting Mr Raspa. From January 2003 when Mr Raspa was admitted to hospital until May 2004 when Mr and Mrs Springall purchased Green Valley Bungalow, a pipe was strung across the Strip from Mr and Mrs Orme’s garden to a field beside Green Valley Bungalow, to provide water for cattle. The pipe was at a height of four feet with pieces of rage hanging from it so that it could be seen. No-one complained about the presence of the pipe or asked Mr Orme to move it. Mr Orme did not block the Strip with a car under a tarpaulin from 2003 to 2005, as suggested by Mr Lyons. The car in question did not come into Mr Orme’s possession until October 2004 and it was kept in Mr Orme’s garage until April 2005

 

17. Mr Orme accepted that historically there had been user of the Strip with vehicles and on foot but he would not accept that it could be called a “lane” or “road”. He accepted that the Strip was wide enough historically for a small tractor and a Land Rover to pass through it. He accepted that if people wanted to go from Lowertown Farm to visit someone in the hamlet they would have walked down the Strip. He accepted that Mr Haynes may have gone down the Strip to get to his fields.

 

18. Mr Orme’s motivation for opposing the claim to a right of way became apparent during his evidence. He believes that Mr and Mrs Lyons want to further develop Lowertown Farm and that in order to get planning permission to do so, they need to establish a second access route to Lowertown Farm, namely over the Strip. This, at least in part, a view which was enforced by a note of a meeting between Mr and Mrs Lyons and a planning officer from North Cornwall District Council on 16^th June 1992. Mr and Mrs Lyons were enquiring about the possibility of having the planning condition on a two storey barn which restricted its use to use as an annexe or for holiday accommodation lifted. The council officer noted

“Told them that in my opinion unlikely due to the close relationship of the barn to main house – and conflicts would arise through proximity and access”.

Mr Orme read the reference to “access” as being a reference to access to the Lowertown Farm yard and not the access within the yard to the buildings.

 

Expert Evidence

19. Expert evidence was given in the form of a written report by the jointly instructed expert, Mr Brian Fletcher FRICS, FAAV. Mr Fletcher reported on the historical extent of the Strip and on the surface, width and steepness of the Strip and on the suitability of the Strip for vehicular traffic. A wooden fence panel erected by Mr Orme at the southern end of the Strip restricted the width of the track to 1.7 metres( 5’7”) at the narrowest point. The second narrowest point was in the vicinity of the tractor shed where a wire fence erected on the west side of the track restricted the width of the Strip at one point to 2.60 metres. The wire fencing and the panel fence were not visible in the 1983 aerial photograph. The narrowest point between the existing older features was 3.05 metres. Prior to the erection of the wooden fence panel, the narrowest point would have been between the hedge that formerly stood in the area of the fence panel and the hedge on the opposite side of the Strip. Mr Fletcher estimated the width of the Strip at the narrowest point between these two hedges to be 2.20 metres (7’3”). Mr Fletcher’s opinion was that prior to the erection of the timber panel fencing there would have been adequate width on the Strip to easily allow the passage of (for example) a Ferguson 35-type tractor and/or a Landrover type vehicle (the Massey Ferguson 35 tractor which was produced from 1958 measured 1.63m (5’4”) wide at the wheelbase and the modern Land Rover Discovery measures 1.80m (5’11”) wide.

 

20. Mr Fletcher took measurements of soil depth using a soil auger approximately 1 cm in diameter at random throughout the width and length of the Strip. He reported that in the approximate position of the former wheel marks to the sides of the track, the soil covering was shallow at around 1 to 2 inches and compacted with stone beneath. Towards the centre of the track the soil depth was around 4 to 6 inches. His opinion was that these measurements were consistent with the track having been surfaced with harder stone or similar material or with there being a natural stone or shall beneath. He considered the soil present on the shallower sections to be due to accumulated vegetation that has settled on the hard surface and that this is not to any significant depth.

 

21. Mr Orme disputed Mr Fletcher’s evidence as to soil depth. He gave evidence that he opened two inspection holes measuring 12 inches wide by 12 inches long by 12 inches deep and that he found 12 inches of soil and no evidence of compact stones. He produced several photographs of the inspection holes.

 

Law

22. Counsel for the Applicants based his case on the doctrine of lost modern grant. For an easement to arise by longer user under the Prescription Act 1832 user for a period of 20 years “next before some suit or action” in which the claim to an easement is brought into question must be shown. It has yet to be definitively established what date is to be taken as the date of the “suit or action” for the purpose of the Prescription Act 1832 in the case of an application to HM Land Registry to register the benefit of a prescriptive easement, which is then referred to the Adjudicator. However, the earliest possible date is the date of the application to HM Land Registry. Here, even on the Applicants’ evidence, they ceased to use the way with vehicles when it was obstructed in 2003 and there was no evidence that they used it with vehicles after that date. As 2003 was more than a year before the application to HM Land Registry to register the benefit of the right of way, the Applicants cannot succeed under the Prescription Act 1832 on the claim for a vehicular right of way.

 

23. Under the doctrine of lost modern grant, the grant of an easement will be presumed from long user “as of right”. The user need not have continued up to the “action or suit” in which the claim to the easement is brought into question. A period of 20 years user is usually sufficient to give rise to the presumption of a lost modern grant. In Tehidy Minerals v. Norman [1971] 2 QB 528 at 546 the Court of Appeal said

“in the case of an easement it has long been recognised as the law that 20 years enjoyment is or may be sufficient to give rise to the presumption of a lost grant”.

 

24. The amount or regularity of use that must be shown to give rise to a prescriptive claim to an easement is a question of fact. Guidance as to the amount or regularity of use that must be shown can be found in Hollins v. Verney (1884) 13 QBD 304 at 315 in which it was said that the user must be user which 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 to enjoyment is being asserted and ought to be resisted if such right is not recognised and if resistance to it is intended. In White v. Taylor (No.2) [1969] 1 Ch. 160 at 192-195, Buckley J., dealing with a prescriptive claim to a profit a prendre for grazing, said

“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”.

This statement was approved by the Court of Appeal in Ironside & Crabb v. Cook & Barefoot

If long user of sufficient character, degree and frequency is shown then the burden is on the owner of the servient tenement to prove that he did not in fact know of the user – Diment v. Foot [1974] 1 WLR 1427 at 1434, 1435.

 

Findings of Fact

25. In considering the evidence of the use of the Strip, it is important to have in mind the evidence of the historic appearance of the Strip. The aerial photographs taken in 1979 and in 1983 show the Strip as having the appearance of a lane or track. Both photographs indicate that the Strip was suitable for use with wheeled vehicles, provided only that they were not too wide. The 1979 photograph appears to show rough but coarsely metalled wheel tracks. The evidence of the jointly-instructed expert indicates that the Strip has had in the past a rough metalled surface; he found evidence of compacted stone. I do not accept that this evidence should be rejected because Mr Orme was able to find two places where there was no or little evidence of stones. It seems to me that the evidence of an independent professional surveyor who took samples at various places along the track is to be preferred.

 

26. I am satisfied that the Strip was in a suitable condition between 1971 and 1988 for Mr Hayne to drive over and I find that he did drive along the Strip between 1971 and 1988 on a tractor, sometimes pulling a trailer and in a Landrover. I take into account the fact that there would only have been about 8 inches clearance on each side of the Landrover at the narrowest point of the Strip but I do not consider that this prevented Mr Hayne from driving his Landrover down the Strip. I have in mind that Mr Hayne is a farmer who has lived all his life in the area. He would have been used to driving along narrow country lanes. He would not have been put off driving along the Strip by its width. I also have in mind the evidence of Mrs Dawson about the poor condition of the surface of the Strip but Mrs Dawson accepted in her evidence that even in winter a four wheel drive vehicle could be driven over the Strip. Having inspected the Strip on 1^st March and been able to see what the state of the surface of the Strip was then on a winter’s day, I am satisfied that the Strip was passable by Mr Hayne in his Landrover throughout the year. I accept Mr Hayne’s evidence that it was convenient for him to use the Strip to get between his farmyard and a group of fields which could be accessed through a gate onto the road some distance to the south of the southern end of the Strip. I do not accept that it was more likely that Mr Hayne would have accessed these fields by driving though a number of other fields. This would have involved him driving in an arc through a number of fields, having to stop to open and then close gates between each field and risk disturbing animals in those fields. I do not consider that he would have done this.

 

27. I consider that Mr Hayne drove along the Strip on average at least once a month over the whole period from 1971 to 1988. His evidence was that he moved cattle up the Strip to load them into vehicles in the farmyard at least 10 times a year and it could have been 20 times a year or more. I accept this evidence. That Mr Hayne drove cattle from the fields over the Strip to the farmyard at least 10 times a year means that he had cattle in the fields which he said he accessed via the Strip at least 10 times a year. He would have had to go to those fields at least 10 times a year and most probably more often, to check on the cattle, and on occasion to feed them and check they had water. In addition, Mr Hayne worked on the fields when there were no cattle on them. He said that he spread dung on the fields, chain-harrowed, rolled and weeded them. This would have added to the number of times Mr Hayne drove along the Strip to get to or from the fields. On the evidence, it seems to me that 12 times a year is the minimum that Mr Hayne drove over the Strip.

 

28. I also accept that Mr Hayne’s daughter rode horses over the Strip. While Mr Hayne’s daughters were living at Lowertown Farm, it is reasonable to conclude that they saddled their horses in the farmyard and returned to the yard on horseback at the end of their rides.

 

29. Mr and Mrs Lyons, in my judgment, drove over the Strip only on odd occasions from April 1989 until the late 1990s. I accept that there were some occasions when the lane to Lowertown Farm was blocked by delivery vehicles and Mr or Mrs Lyons wanted to go out in their car. Having seen the lane into Lowertown Farm, it is obvious to me that if a lorry delivering building materials to Lowertown Farm stopped in the lane, it would block entrance to and exit from Lowertown Farm. I also accept that on some of the occasions when the lane was blocked, Mr and Mrs Lyons drove down the Strip to go out from Lowertown Farm. However, I do not accept that this occurred as often as twice or even once a week. It is highly unlikely that as often as once or twice a week the lane was blocked by a delivery lorry at the very time that Mr or Mrs Lyon wanted to go out in a car. On some of the occasions when a delivery was being made and Mr or Mrs Lyons wanted to go out, they would have waited until the delivery had been made. On other occasions, they no doubt could have asked the delivery vehicle driver to move his vehicle to allow them to get past. Mr and Mrs Lyons did not have a four wheel drive car. I accept the evidence of Mrs Dawson that she was nervous of driving down the Strip but having seen the Strip myself in winter (the view being on 1^st March) I do not accept that it was not possible to drive a car down the Strip. Although I consider that driving down the Strip in an ordinary car was possible, it would have required care and would have taken up time. Mr and Mrs Lyons would have had to balance the extra time and trouble involved in driving down the Strip against the time they would have had to wait for the delivery lorry to leave or be moved. I do accept that building works were going on at Lowertown Farm from April 1989 until the late 1990s and that deliveries of building materials would have been made over the whole of this period. The building works on the farmhouse began in 1989 and on the two storey barn began after May 1992. However, the fact that deliveries were made of building materials would not have required Mr and Mrs Lyons to drive over the Strip as often as once a week over this period. I consider that what Mr Lyons put in his witness statement, namely that he had to use the Strip to exit Lowertown Farm “sometimes” was more accurate than his statement in cross-examination that he drove over the Strip on “numerous” times.

 

30. I accept that Mr and Mrs Lyons and their children have walked down the Strip on occasions. The children have walked down the Strip and ridden bicycles over it to visit friends in the hamlet.

 

31. The question then arises whether the use by Mr and Mrs Lyons was of such a character degree and frequency as to carry to the mind of a reasonable person in possession of the Strip that a continuous right to enjoyment of the Strip was being asserted and ought to be resisted. It is relevant to the consideration of whether the user would have carried to the mind of a reasonable person in possession of the Strip that the Strip has every appearance of being a lane. It is open at both ends. It is of a width typical of country lanes. It is bordered on both sides by hedges or buildings except where the tractor shed stands. It has and had, as the aerial photographs show, wheel tracks or ruts along its length. Given the appearance of the Strip, I consider that the use by Mr and Mrs Lyons with vehicles was sufficient in regularity or amount to indicate an assertion by them of a continuous right to drive over the Strip and to indicate to a reasonable person in possession of the Strip that the assertion should be resisted if he did not wish them to acquire a right.

 

Conclusions

32. The Applicants, Mr and Mrs Lyons have established that they have acquired a right of way with vehicles and on foot over the Strip under the doctrine of lost modern grant. I shall direct the Chief Land Registrar go give effect to the application as if the objection of Mr and Mrs Orme thereto had not been made.

Costs

33. My preliminary view is that Mr Orme should pay Mr and Mrs Lyons’s costs of the proceedings. There appears to be no reason why the usual order that costs should follow the event should not be made in this case. Any party who wishes to submit that some different order should be made as to costs should send their submissions in writing to the Adjudicator and to the other party by 5pm on 14^th November 2011.

 

 

 

 

 

 

DATED this 28^th day of October 2011