REF/2010/0239
ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
- GEORGE CHARLES ROBINSON
- DIANE CONSTANCE ROBINSON
APPLICANTS
and
ANNE-MARIE ARTHUR
RESPONDENT
Property Address: 1. Crawstone Mews, Syke House Lane, Greetland, Halifax HP4 8PB
2. 1 Syke House Cottages, Syke House Lane, Greetland, Halifax HP4 8PB
Title Number: LA813455 and LA451623
Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Leeds Employment Tribunal
On: 15 December 2010
Applicant Representation: First Applicant in person
Respondent Representation: Mr. Martin Ellwood (partner) ___________________________________________________________________________
DECISION
Right of way by prescription established on facts under the doctrine of lost modern grant. No absolute rule that non-user for over a year defeats a claim based on 20 years user.
Hollins v Verney (1884) 13 QBD 304, Tehidy Minerals v Norman, [1971] 2 QB 528 and Mills v Silver, [1991] 1 Ch 271 applied.
Question how the expression ‘next before some suit or action’ in s.4 of the Prescription Act 1832 applies in a dispute referred by the Chief Land Registrar to the Adjudicator.
- For the reasons set out below I shall direct the Chief Land Registrar to give effect to the application of the Applicants dated 29 September 2009.
- Until 1956 the properties with which this dispute is concerned were all in common ownership and included farm cottages, a barn and outbuildings in a farm and a hillside with fields above the buildings. By a conveyance dated 6 October 1956, the then owners conveyed to the Respondent’s predecessors in title the cottage now known as 1 Sykes House Cottages (“No.1”). The property conveyed was identified by reference to the land edged red on an annexed plan, a copy of which appears below. The Applicants have, since about October 1987, owned the barn and other buildings shown on the plan to the south west of No.1 together with two fields on the hillside to the north of those buildings. Although I expect that it only acquired that name after its conversion to provide a dwelling house, I shall refer to the Applicants’ property throughout as Crawstone Mews.
- It can be seen that the 1956 conveyance included part of Syke House Lane and part of an area coloured yellow, over which access rights were reserved by the conveyance. It also included a passageway between the cottage at No.1 and a retained building marked “Barn” on the plan, now part of Crawstone Mews. The passageway led to a path along the back of the barn and along the back of No.1 to the backs of the other three cottages shown in the plan.
- It was apparent from the site view which I held on 14 December 2010 that there is quite a steep hill behind the cottages and the barn, and that the path at the back of the cottages is quite narrow, well under 3 feet, and confined by a retaining wall at the bottom of the hill – the scale plan is plainly not to scale in this respect. The passageway itself is somewhat wider. At some point, although it cannot be seen on the plan, No.1 had been extended over the passageway. This may have been when No.1 was built or it may have been later but before 1956.
- In 1956, the passageway was covered but was open at each end. It must have been used for access as needed in the course of running the farm, but on its sale no rights of access were reserved over it.
- Despite this, the Applicants’ case is that the passageway continued to be used as a means of access to their property and also to what was then 2 and 3 Syke House Lane Cottages, which have since been combined into a single cottage, now known as 2 Syke House Lane Cottages. What used to be 4 Syke House Lane Cottages is now known as 3 Syke House Lane Cottages. They themselves, they contend, have used it in this way continuously since they moved to Crawstone Mews in 1987. In addition to the evidence of Mr. Robinson, they also relied on two other witnesses, Mr. Jeffrey Hayes and Mr. Alan Beecham, both of whom gave evidence. The Respondent, Ms Arthur, was represented by her partner, Mr Martin Ellwood, at the hearing although Wilkinson Woodward solicitors had acted for her previously and the solicitor in that firm who had had conduct of the case was present taking notes throughout. She and Mr. Ellwood both provided witness statements, although neither had any knowledge of what had happened before about May 2008 when they first viewed the property, and in relation to the dispute before me, there was little they could contribute beyond what Mr. Ellwood was able to elicit on cross-examination of Mr. Robinson and his witnesses.
- Mr. Hayes, who was born in 1946, gave evidence which I accept that his grandmother had purchased No.1 in the late 1950’s from the ladies who had purchased it in 1956, and that he had visited it regularly while his grandmother was living there. He lived in it from the late 1960’s until he went to work abroad in 1972. From that time on it was let by his father, who lived in one of the other cottages, and who looked after it, but Mr. Hayes would return every 2 years and stay for about 3 months a time in No.1 between lettings until about 1990. In the following years until 1994 he would return twice a year and stay three months each time. In 1994, he returned to live there permanently until 10 March 2008, when the cottage, which by that time he owned, was repossessed by his mortgagees, who subsequently sold it to Ms Arthur.
- Part of the problem which has arisen is because Ms Arthur bought No.1 from the mortgagees, who had no knowledge of the property. The conveyancing file, and in particular the answers to the standard enquiries as to boundaries were not in evidence, but I accept that Ms Arthur was advised that there was no right of way in the deeds, as is indeed the case. I make no findings as to whether she was given any advice as to any possible prescriptive right of way, which cannot be relevant to this case, although it, and much of the other evidence as to conduct may be relevant to any subsequent attempt in court by the Applicants to enforce their right of way bearing in mind the circumstances in which Ms Arthur and Mr. Ellwood renovated No.1 by incorporating the passageway into the body of the property, walling it off and placing a staircase where it had been.
- Much of the evidence and argument which both parties sought to adduce was directed to those circumstances and to the question whether either or both parties could have done more to ensure that the other had proper notice of their position. It is clear, and I find, that at that time Mr. Robinson, understandably, believed that he had an express right of way through the passageway, and that is what he claimed when he met Ms Arthur and Mr Ellwood in May 2009 when he found that the passageway had been permanently blocked. Equally understandably, as long as he thought he had an express right of way, he made no claim to a prescriptive one. Also his main concern as to the effect of the work done by Ms Arthur and Mr Ellwood was as to the effect of their plastering his wall on the electro-osmosis damp proof course that ran through it, and his ability to repair or replace it if it broke down. He was also concerned as to the right of Ms Arthur to install 3 new lintels in his wall in place of the one lintel over the old door at the back of the passageway.
- As I pointed out at the hearing, these issues and related ones as to the parties’ conduct at that time, between the autumn of 2008 and May 2009, while potentially relevant to the question of the extent to which, and the manner in which, any right of way can be enforced at this stage, and possibly as to the Robinsons’ rights in respect of any trespass to their wall, is not relevant to the question whether there has been sufficient user of the right quality to give rise to a prescriptive right of way by the autumn of 2008.
- The evidence of Mr. Hayes, which was not challenged on this point, and which I accept, was that he regarded the passageway as a communal thoroughfare for the old farm buildings and houses. He believed that everybody in those buildings had the right to use the way and nobody ever asked him, or to his knowledge his grandmother or father, or anybody else, for permission to use it. Initially the passageway had been open at both ends but it had been a wind trap and, at some point before the Applicants arrived on the scene, he had placed a gate at the front of the passageway and a door at the back to stop the wind howling through it. Neither of these was locked, but the door kept banging and eventually, still before the arrival of the Applicants, Mr. Hayes fixed a sliding bolt to it, on the passageway side. This was then generally, but not always, kept locked, although anybody using the passageway could get in from the other end to unlock it.
- I further accept the evidence of Mr. Hayes that, following the sale of No.1 to his grandmother, the neighbouring farmer, Mr. Keith Lumb, who owned or occupied what is now Crawstone Mews, would pen in his cattle in the area between the outbuildings shown on the plan, and would then get access to and from the property via the passageway. I also accept Mr. Hayes evidence that and that took place on a daily basis.
- The following history is also taken from the evidence of Mr. Hayes which I accept. At some point in the late 1960s, the then owner of what is now Crawstone Mews sold it to a Mr. and Mrs. Standing or Standring. They proceeded over several years to convert the barn into a dwelling house. When they first acquired it, the entrance to the barn was in the middle of the passageway. They used the passageway regularly for several years while converting the barn until they closed off the entrance from the passageway into the barn, and created a new door in the wall of the barn between the lane and the passageway. I am satisfied that they would have used the whole length of the passageway during the construction works both to access the door to the barn and to go around the barn to other parts of their property.
- Mr. Hayes went to work abroad in 1972 and he believes that the conversion of the barn had not been completed when he left. I find that on the balance of probabilities that is correct as I consider that he would have recalled had the work being completed by that time. From that time, Mr. Hayes’ personal knowledge is confined to what he saw during the periods of 3 months or so when he was back in the cottage on leave every 2 years, although, as he pointed out, his father was living in one of the other cottages and looking after No.1. He confirmed that once the new door to the barn had been constructed, the Standings use the passageway much less. Mr. Hayes recalled the children of the Standings using the passageway, as did the brother of one of the Standings, who was there on a regular basis. Nobody ever asked permission to use the passageway, and so far as Mr. Hayes was concerned, as he repeated, it was not a passageway which would ask for permission to use. It was like a thoroughfare for the farm buildings and cottages.
- It would appear that in about 1983 or 1984, the Standings sold Crawstone Mews to a Mr. and Mrs. Woodhead, who carried out more work to it. They appear to have closed up the access in front of the passageway which had been created by the Standings to what had been the barn, and to have done other work. In particular, they installed the electro-osmotic damp proof course, to which I have already referred, around the outside of the former barn. A survey report in relation to this is at B56 to B57 in the trial bundle. This gives an enquiry date of 21 June 1984 and a survey date of 25 June 1987. There is plainly an error here with one of those dates. Sketch plan for the damp proof course at B57 also gives the June 1987 date, and as the sale to the Applicants was in October 1987, it appears to me more likely that this work was done to put the property in order for the purpose of selling it shortly before it was marketed by the Woodheads than that it was done in 1984.
- Mr. Hayes had no recollection of the Woodheads. However, it is plain that they must have used the passageway to install the damp proof course, and probably to do other work as well. I also accept the evidence of Mr. Robinson that when he inspected the property with a view to purchasing it he was told by Mrs. Woodhead that she believed that there was a right of way through the passageway.
- Mr. Hayes also gave evidence that he had had no objections to the use of a sliding bolt on the door at the back of the passageway, and that although the door was usually locked, quite often people would go through the passageway and leave the bolt unlocked. Mr. Hayes stated that he did nothing about this. Once again, I accept his evidence.
- Finally, Mr. Hayes gave evidence of user by both Applicants and by Mrs. Robinson’s father since they purchased Crawstone Mews in 1987. He estimated the user at about once every 3 to 4 weeks while he was at No.1. I accept that, whether accurate or not, that was Mr. Hayes impression of the regularity with which the Applicants and their guests were using the passageway and that all three of those mentioned did use the passageway.
- After returning from Africa, Mr. Hayes used the passageway to keep a large trunk in which he kept gardening equipment, and over the years kept other items there as well. Having seen the photograph of the passageway as it was when the Respondents first saw it (B97), I am satisfied that these did not prevent anybody from going through it on foot, and that at least if the more recently accumulated other than the trunk were moved (and probably in any event) it would not be a serious problem to get through with a ladder or other equipment. If anything larger did need to be brought through, it may have been necessary to move the trunk, but in recent years there has been no call for this, and a right of way is not obstructed if the land is used so as prevent passage at a time when it is not required by the dominant owner.
- There was an issue as to the state of the bolt in April or May 2008, with the Respondent and Mr. Ellwood claiming that it was so rusted that it could not be moved without considerable force. As to this I accept the evidence of all three witnesses for the Applicants that it had stiffened over the years, and was rusty, but that they had each been able to unlock it and re-lock it when they had needed it right up to the autumn of 2008.
- Further evidence as to use of the passageway before the Applicants appeared on the scene was given by Mr. Alan Beecham, who until recently lived at 2 Syke House Lane Cottages. He was born in 1947 and in 1957 his parents bought what was then 2 and 3 Syke House Lane Cottages, which they converted into a single dwelling. They had previously lived at 3 Syke House Lane Cottages as tenants. Mr. Beecham had inherited the converted cottages in 1979 following the death of his father. He had lived there all his life until September 2010 when he had sold the property and moved on. His property had no back door, and he had relied on access either through the passageway or via the rear of 3 (formerly 4) Syke House Lane Cottages to get to the back of his cottage to clean the windows or to maintain the property.
- As pointed out by the Respondents, he has been involved in two disputes with them, both over access to the passageway, and also in relation to the positioning of a porch which they constructed at the front of their cottage. Further, as the Respondents pointed out, his evidence as to the extent to which the Applicants had used the passageway was that they had used it to a significantly greater extent then they themselves claimed. I must therefore treat his evidence with considerable caution. On the other hand, it was never put to him that he was deliberately lying, and while he may have exaggerated the extent of the use to which the Applicants and their predecessors in title used the passageway, the evidence of Mr. Hayes as to how the passageway was treated, and the absence of any evidence to the contrary, leads me to conclude that Mr. Beecham was an honest witness, if not wholly reliable and I should not disregard his evidence.
- Mr. Beecham confirmed the evidence of Mr. Hayes as to the user of the passageway by Mr. Lumb, and also gave evidence that the Standings kept a pony, which spent part of the time in the field above the buildings on Crawstone Mews. When it was there, he stated, they used to take food for it through the passageway twice a day. When they left, and the Woodheads moved in, the son of the family would go target shooting with an air rifle in the fields behind the converted barn and would use the passageway to access those fields. Mr. Beecham stated that he used to see him doing this 2 to 3 times a week, although I consider that it is more likely that he would have seen him that many times target shooting in the field rather than going through the passageway. I do find, however, that Mr. Beecham did see him from time to time using the passageway and that it is more likely than not that he will also have used it on occasions when Mr. Beecham did not see him.
- Mr. Beecham also stated that Mr. Robinson used to keep sheep on the field on the hill behind the houses, and would bring feed for them on occasions through the passageway. Mr. Robinson used the passageway regularly and he would be out in the area in front of the passageway chatting to somebody as Mr. Robinson came through.
- Mr. Robinson’s evidence was that he thought that he and his wife walked right around Crawstone Mews when they viewed it, including along the passageway. He was aware that the electro-osmosis damp proof course ran right around the building, and the whole system had been checked in 1987 for the benefit of their mortgage lenders. Subsequently, he would walk through the passageway once or twice a year to check the damp proof course, just in walking round his property, sometimes after coming back from walks, occasionally when checking the drains in case of problems resulting from the run off of rainwater from the fields above, and occasionally for other reasons. He never found the bolt a problem. He would go more often between spring and autumn and rarely in winter. In 2008-9 he had been around in September 2008. He also noticed after Christmas 2008 that the door at the back of the passageway had been padlocked, but assumed that was for security purposes and he had no wish at that point to use the passageway. He had not gone again until the beginning of May 2009 when he became concerned about the Respondent’s development plans on viewing the passageway, where development had started, as the Respondent and Mr. Ellwood explained, in April. Within a few days of that visit, the passageway was permanently closed off and in due course sealed off, the wall separating it from the rest of No.1 was demolished and a staircase installed.
Conclusions
- I am satisfied that despite the absence of anything in the 1956 conveyance reserving a right of way over the passageway in favour of any part of the retained land, everybody occupying the cottages and what is now Crawstone Mews at the time continued to treat the passageway as a general means of access for everybody to the different parts of what had been the farm buildings and cottages. Mr. Hayes, and so far as I am able to tell his father and grandmother all regarded it as a thoroughfare through which any of their neighbours could pass on foot to get access to and from their properties. Indeed, so far as the barn on Crawstone Mews was concerned, there was a door which provided access at the time, and until the late 1960’s or early 1970’s opening onto the passageway.
- I am also satisfied that the passageway was regularly used by Mr. Lumb for agricultural purposes as described by Mr. Hayes and Mr. Beecham until about 1966 and that it continued to be used by the Standings while Crawstone Mews was being developed and converted both to access the doorway in the passageway and to get round between the front and back of their property in connection with the development and generally. It was used less once the door had been moved, as there was no need to go up it to reach the door, but it continued to be used for access between the front and the back of their property in connection with feeding their pony on the field, and I have no doubt that the Standings would have used it for other purposes as well on occasions although there was no specific evidence of this, as there is no reason to suppose that they considered their use of it was in any way restricted, and indeed their children used to play there without objection. I also accept Mr. Hayes’ evidence that a brother of one of the Standings used it for access as well. The Standings’ successors, the Woodheads, used it for their son to access the rear of the property to go target shooting, even if the access may not have been as frequent as Mr. Beecham indicated. The Woodheads also plainly used it for access in connection with the improvements they effected to Crawstone Mews, including the installation of the damp proof course.
- The Appellants, and Mrs. Robinson’s father continued to use the passageway as required, as I have described, although not with great frequency. Mr. Robinson frankly admitted to the possibility that there may have been a time when a little more that a year may have elapsed when he personally did not go on the passageway, although Mrs. Robinson or her father may have used it during that time. Mr. Robinson was not asked if he ever used the passageway to take feed to his sheep in the field, but he did say that the passageway was used for other purposes on occasions, and I am satisfied that Mr. Beecham did see him taking feed there on at least one occasion.
- There is not a hint of any evidence of any user having been permissive. I am satisfied that all the owners acquiesced happily in this use of the passageway, regarding it as a common thoroughfare. I have come to the clear conclusion that there has been sufficient user over the whole period between 1956 and 2008 to give rise to the presumption of a lost modern grant of a right of way to use the passageway for all purposes in connection with the use of Crawstone Mews both for agricultural purposes and for purposes connected with the improvement, maintenance and repair of the buildings and from about 1972 in connection with their use as a dwelling house and garden, as well as in connection with the use of the adjoining fields.
- In Tehidy Minerals v Norman, [1971] 2 QB 528, at p.532, the Court of Appeal held that where there had been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then, unless for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the 20 year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct or circumstantial evidence that no such grant was in fact made.
- It is said by the Respondent that if the passageway was not used by the Applicants for over a year during any period of 20 years, they cannot rely on that period as establishing a prescriptive easement. Mr. Robinson very honestly stated that he could not be sure that there was never a period of over 12 months when he did not personally use the passageway. On the other hand, he was not the only person who may have used it. His wife also used it from time to time as did his father in law. Also, I have to decide the issues here on the balance of probabilities and not as a matter of certainties. I conclude that on the balance of probabilities, sparse though the evidence is, the passageway was used to gain access to Crawstone Mews at least once a year throughout the whole of the period from 1956 to 2008.
- Even if that were wrong, the occasional non-use of the passageway for a period of over a year in the relevant period of prescription is not necessarily fatal to a claim. A contention that non-use for over a year was fatal to a prescription claim was advanced by Mr. Ellwood for the Respondent without citing any authority, despite having legal assistance and despite the Respondent’s solicitor attending the hearing and sitting next to him. He based his contention on a passage which he stated that he had found in a Land Registry pamphlet which was not produced to me. While I made it plain that I did not accept that wide proposition, no authorities were available at the hearing and none were cited by either party. The law is, however, clear from the cases to which I refer below.
- In relation to a claim under the Prescription Act 1832, In Hollins v Verney (1884) 13 QBD 304, at p.314, Lindley LJ, giving the judgment of the Court of Appeal stated that “a non-user for more than a year within twenty or thirty years from the commencement of the action may be so explained as to warrant a jury in finding an actual enjoyment for the statutory period… the total absence of user for any year of the statutory period will be fatal unless explained in such a way as to warrant the inference of continued actual enjoyment notwithstanding such temporary non-user (italics provided).” At p.315 he went on “No use can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover as the enjoyment which is pointed out by the statute, is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term … the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, that fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such right is not recognised, and if resistance is intended.”
- In Mills v Silver, [1991] 1 Ch 271, the Court of Appeal was considering the law in relation to a case where the judge had found that from 1922 to 1981 the owner of a farm had used a track to access the farm on foot on pony and by horse and cart, that a tractor had occasionally been seen travelling along the track and that from 1950 onwards occasional vehicles had passed along the track in dry weather. The judge had found that this user was not sufficiently continuous to establish any prescriptive right to use the disputed track with vehicles (see at p.273). The Court of Appeal allowed the appeal of the farmer’s successors in title and found that there was a prescriptive right of way with vehicles.
- At p.285G, Dillon LJ considered the extent and continuity of the sue that would be required to establish a vehicular right of way, and he applied the test set out by Lindley LJ in Hollins v Verney at p.315 which I have cited in the previous paragraph. He concluded that there had been open use of the disputed track with vehicles whenever occasion arose and the surface of the track was dry enough to be passable. The amount of use, Dillon LJ found was sufficient on Lindley LJ’s test to carry to the mind of any reasonable occupier of the servient tenement that a continuous right to enjoyment was being asserted, and it did not matter that the owner of the servient tenement would not always know whose vehicle it was that was using the track or what its destination was – he acquiesced in user by anyone (p.286C-F). Parker LJ agreed with Dillon LJ. He also cited the same passage from Lindley LJ’s judgment and stated, at p.288C-E that the crucial matter for consideration was whether for the necessary period the use was such as to bring home to the mind of a reasonable person that a continuous right of enjoyment was being asserted. If it was sufficient, and the owner of the tenement knew or had to be taken to know of it and did nothing about it, the right was established. Stocker LJ agreed with Dillon LJ that the finding of the judge that extent and continuity of the user was insufficient to establish a prescriptive right by lost modern grant was an inference from facts and not a finding of primary fact itself and that that inference was open to review by the Court of Appeal, and he also agreed that the only appropriate conclusion on the evidence was that there was to be presumed a lost modern grant for the right of way as defined by Dillon LJ.
- In the present case, Mr. Hayes was clearly aware of the user throughout both by the occupiers of Crawstone Mews and by Mr. Beecham, and clearly acquiesced in such user on the basis that the passageway was for all the local occupiers to use as needed. He considered, and I agree on the evidence, that his father would also have been aware of such user, living in one of the other cottages, and I consider that in all probability the reason that the various owners of No.1 took no action was that they all regarded the passageway in the same way that Mr. Hayes regarded it. If, contrary to my findings, there was a gap, or even more than one gap, of a little over a year when the passageway was not used, I find that the reason was because there was no need to use it in that time but that, looked at over a period of about 50 years the owners of No.1 would have been well aware that the right to use the passageway was still being asserted.
- I have dealt with this case as one of lost modern grant because any claim under the Prescription Act 1832 must be based on user for the period of 20 years next before some suit or action, although for this purpose nothing is to be deemed an interruption to the user until it has been submitted to or acquiesced in for a year after the Applicants had notice of it (see s.4 of that Act). There is a difficult outstanding question as to what constitutes a suit or action in the context of a dispute referred by the Chief Land Registrar to the Adjudicator. In this case the way was padlocked in late 2008, it was discovered shortly after Christmas, although the Applicants do not appear to have wanted to use the passageway at that time, and the passageway was finally closed off in April or May 2009. The application to the Land Registry to register notice of the claimed right of way was on 29 September 2009, the objection was on 28 October 2009 and the matter was referred to the Adjudicator on 25 February 2010. It is unclear in those circumstances whether the suit or action was the application to the Land Registry or the reference to the Adjudicator, or possibly the objection of the Respondent at the Land Registry to the Applicants’ application. At least if the suit or action only began with the reference to the Adjudicator, the interruption would appear to have been more than a year earlier. It is unnecessary for me to say more about that problem in the present case.
- It is also not for me to determine the consequences of the passageway being blocked up by the Respondent, and the Applicants’ wall plastered and lintels inserted into it. Whether the Applicants can now compel the restoration of the passageway or whether a court would only award them compensation by way of damages for the loss of the right (the normal measure, so far as the right of way is concerned, being I believe a reasonable price as between willing vendor and willing purchaser for the surrender of the right) is something that must be determined in court proceedings if the parties cannot agree.
By Order of The Adjudicator to HM Land Registry
dated the 5th day of January 2011