REF/2011/0988

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

1. ROYSTON JAMES WILLIAMS

2. SUSAN MARGARET WILLIAMS

 

APPLICANTS

 

and

1.       MARGARET MARY MADDEN

2.       TERRY JAMES GOODSELL

3.       RAYMOND AUBREY HUBBARD

 

RESPONDENTS

 

Property Address: 1. 187 Bamford Road, Heywood

2. Land at Hooley Bridge Industrial Estate, Heywood

 

Title Numbers: 1. GM375068

2. MAN156692

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Manchester Crown Court

On: 2 May 2012

 

Applicant Representation: Sebastian Clegg, counsel

Respondent Representation: James Malam, counsel

___________________________________________________________________________­

 

 

Prescriptive right of way established by the Applicants for the benefit of their home over a strip of roadway belonging to the Respondents who were on notice of their use of that land. The use of the way with vehicles was to and from a parking place immediately outside the Applicant’s home on land that was not owned by either party. Held that that did not prevent a prescriptive right of way from being acquired.

 

 

Cases referred to:

Dalton v Angus (1880-1881) 6 App Cas 740

Hollins v Verney (1884) 13 QBD 304

Harris v Flower (1904) 74 LJ Ch 127

Pugh v Savage, [1970] 2 QB 373

Diment v NH Foot Ltd. [1974] 1 WLR

National Trust v White , [1987] 1 WLR 907

Das v Linden Mews Ltd , [2003] 2 P & CR 4

Williams v Sandy Lane (Chester) Ltd [2007] 1 P & CR 27

 

 

1. For the reasons given below, I shall direct the Chief Land Registrar to give effect to the application of the Applicants to register a right of way on foot and with vehicles over a one metre stretch of the Respondents’ land.

 

2. The Applicants, Mr. and Mrs. Williams, have been the registered proprietors of and have lived at 187 Bamford Road, Heywood, since 1985. Mrs. Williams was previously Susan Margaret Mudd, under which name she is still registered as proprietor of that property. The Respondents are the current registered proprietors of an adjoining industrial estate, having been registered as proprietors on 2 March 2010. They hold the property as trustees of a trust and it is not in dispute that they have owned the industrial estate since 1973. It has been managed for them since 1980 by Units to Let (Northern) Limited, and the director principally responsible for this estate has at all relevant times been Mr. William Keen. It is common ground that he visited the estate regularly. There is also evidence that his brother, another director, took some interest in the estate, having been seen there on more than one occasion. According to a witness statement of Mr. and Mrs. Williams, which was not challenged by the Respondents, the trust is the TL Keen No.2 discretionary trust of which Mr. William Keen is a beneficiary.

 

3. There are two access roads to the estate, both from Bamford Road. The access to the northern end of the estate is next to 187 Bamford Road (“187”). It is included in the Respondents’ title apart from a 6 feet wide strip of paved slightly raised footpath between the roadway and the side of 187. The local authority has confirmed that neither the roadway nor the footpath form part of the public highway. There is also a gate opening from the rear of 187 onto the paved area.

 

4. Parking is not permitted on Bamford Road outside 187, or for some distance on either side of it. There is an unadopted road nearby, where parking is possible, but I accept Mr. and Mrs. Williams’ evidence that that would involve possible disagreements with residents in that road, who have their own parking spaces there, and would also involve trespassing on that road. Mr. and Mrs. Williams state that when they bought 187 in 1985 they were told that the paved area at the side was where they should park their car and they have done so ever since. When, for relatively short periods, they have had two cars, they were able to squeeze both onto the paved area with some difficulty. They have always reversed onto the paved area from Bamford Road, and in order to do so safely they have had to cross a metre wide strip of the Respondents’ access way.

 

5. Mrs. Williams gave evidence, which I accept, that since moving to 187 she and her husband has always owned a car. Between about 1985 and 1995 she had worked as a bar manager in the evenings and her car had been parked on the paved area most of the time during the day. She would run her husband to work and then return home, although she would also go out during the day, for example, to shop and would then collect her husband when his work finished. Between about 1995 and 2005, when she retired, she was working as an insurance agent and her hours had been 4.30pm to 9pm. Again, the car was generally parked on the paved area. Occasionally she had found other cars parked there and about 5 years ago they had put up a sign on the wall of their house saying that the paved area was for their private parking. She had never seen Mr. William Keen parked there, as he stated he had done, and did not think the area was wide enough for the cars he drove. There had also been gates a little further down the access roadway and she thought that generally there was ample parking there and it was more convenient for him.

 

6. Mr. and Mrs. Williams gave evidence that they would see Mr. William Keen or his brother, David, at least once every three to four weeks when they were getting into or out of their cars and they would exchange greetings. The exchanges with Mr. William Keen stopped from December 2006 after a mill on the estate close to 187 collapsed, causing damage to 187, but Mr. and Mrs. Williams stated that they continued to exchange greetings with David Keen. Although this claim was made in a witness statement dated 30 December 2011, David Keen did not provide a witness statement or attend the hearing, and I have no reason to disbelieve what is said about him.

 

7. Mr. William Keen stated in evidence at the hearing that he had never met Mr. Williams before and that he had only met Mrs. Williams after the mill collapsed. In his witness statement he had stated that he and the Applicants had had a difficult relationship as a result of their objecting when the Respondents had claimed a possessory title to the paved area and alleged that it was “quite clear that the land in question was part of the Mill” and that there was no real basis for the objection. Plainly the Land Registry had taken a different view as the application had failed.

 

8. Mr. William Keen also referred to other incidents that had occurred in the past few years, and there is no doubt that relationships were strained as a result, in particular, of the damage caused by the Mill collapsing and the way in which the Respondents through their agents sought to prevent them from parking on the paved area. In evidence at the hearing, Mr. William Keen accepted that in order to park on the paved area it was reasonably necessary to cross a small portion of the Respondents’ access roadway, which left me wondering why he had seen fit to suggest in his witness statement that the claim for a right of way over that portion was only to cause further difficulty to the Respondent. Although he rightly withdrew that suggestion at the hearing, the expression of that belief, supported by a statement of truth, did cause me some concern as to the reliability of his evidence.

 

9. Despite Mr. William Keen’s evidence that he never saw either of Mr. and Mrs. Williams before December 2006 and never saw Mr. Williams until the hearing, I have no hesitation in accepting their evidence that they regularly parked on the paved area and that they recognised and greeted both Mr. William Keen and Mr. David Keen. The latter did not even give evidence denying it. I reject Mr. William Keen’s evidence on this point. It may be that he rarely saw Mr. Williams, and did not recognise or remember him, as it would normally be Mrs. Williams driving the car, but I am satisfied that both before and after December 2006 he would have seen Mrs. Williams getting in and out of her car, and occasionally also Mr. Williams and that until December 2006 he would have returned their greetings.

 

10. I am also satisfied that the car was regularly parked as described on a daily basis. It was where they were told they could park when they bought 187 and there was nowhere else convenient, although, as they accepted, on occasions when they found somebody else parked there they would have to park elsewhere, sometimes trespassing on the adjoining part of the estate.

 

11. I also accept the evidence of Mr. and Mrs. Williams that they would go in and out of their back door regularly. It is unnecessary to determine an exact number of times. On these occasions, while they would often walk along the paved area to the road, it was frequently blocked by parked cars (usually their own) and they would then walk along the strip over which the right of way is claimed instead. It would have been obvious to anybody at the scene that when cars were parked on the paved area, as was the case for most of the day most of the time, this would be necessary to get between the back door and the highway.

 

12. Further, I accept Mr. and Mrs. Williams’ evidence that they rarely changed their car. For most of the time, whether or not Mr. William Keen did notice what car they drove, the number of times he saw them getting in and out of it, and saw it parked, was sufficient to put him on notice that it was their car regularly on the paved area. In that he accepted that it would have had to cross the relevant strip of the access road to be parked there, he plainly had adequate notice that that strip was being used for access. In my judgment, Mr. David Keen would also have had such notice and in the absence of any denial from him, I find that he knew Mr. and Mrs. Williams and was aware both of how they parked and how they accessed the parking over the whole period since 1985.

 

13. I accept the evidence of Mr. Frank Jefferson, who until 2006 was a tenant of the Respondents in a building that once stood on the other side of the access roadway that he knew Mr. and Mrs. Williams and knew their car and that it was parked on the paved area. I also accept the evidence of Christine Sneddon as to the times when she saw Mr. and Mrs. Williams’ car parked in the area. I note the witness statements of the other witnesses who did not attend to give evidence and which support Mr. and Mrs. Williams. While, in the circumstances, I accept their evidence as corresponding with the other evidence I have accepted, I would not have given those statements any real weight otherwise, couched as they were in standard terms plainly drafted by solicitors and not in the witnesses’ own words or reflecting those words rather than some standard form.

 

Was there acquiescence by the trustees?

14. Fry J in Dalton v Angus (1880-1881) 6 App Cas 740 at 773-4 (as cited by Pennycuick VC in Diment v NH Foot Ltd. [1974] 1 WLR at 1433B-D) explained the law as to prescriptive easements as follows:

 

“The whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rests upon acquiescence…I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done…”

 

15.   In Williams v Sandy Lane (Chester) Ltd [2007] 1 P & CR 27, CA, Chadwick LJ with whom the other members of the court agreed) stated that “knowledge, in this context includes imputed knowledge: that is to say, knowledge of such facts as an ordinary owner of the servient land, diligent in the protection of his interests, would have become aware.”

 

16.   In order that there may be the necessary acquiescence the owner of the servient tenement must have knowledge or the means of knowledge that the act is done – the act here being user of the access roadway for passage. Pennycuick VC in Diment cited Pugh v Savage, [1970] 2 QB 373 where it was held that one ought to presume knowledge in the absence of evidence that the owner did not have such knowledge – see at p.1434G.

 

17.   In Hollins v Verney (1884) 13 QBD 304, CA, it was stated at p.315 that for the user to be sufficient during the whole period of 20 years (whether acts of user be proved in each year or not) the user must be sufficient to carry to 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.

 

18.   There is no evidence as to what any of the trustees personally saw, but having delegated management of the estate to their agents, they are bound by the knowledge of the agents acquired in the course of such management. For the reasons given, I have no doubt that both Mr. William Keen and Mr. David Keen had the means of knowledge that Mr. and Mrs. Williams were using the access roadway as they did both with their car and on foot.

 

The nature and extent of the dominant tenement

19.   At the start of the hearing on 2 May, counsel for the Respondents applied that the Applicants’ case should be struck out on the basis that there was no case to answer in light of the decision of the Court of Appeal in Das v Linden Mews Ltd, [2003] 2 P & CR 4. I was unimpressed both with the point and with the late timing of the application and refused the application. It appeared to me then, and still appears to me after further argument that the point made is misconceived.

 

20.   Das v Linden Mews was a case in which the LM Ltd was the owner of the road through a small mews with seven mews houses. The owner of house 4 also owned an area of garden ground at the end of the mews. There was an express right of way for the benefit of each of the mews houses to pass and repass over the road between the highway and their respective properties and a right to stop a single vehicle beside their respective properties for the purpose of loading and unloading. The owner of house 4 made an entrance from the mews into the garden ground in about 1988 and used that area to park cars. The right to do so was challenged by LM Ltd. on the grounds that the right of way was not being used simply for the benefit of house 4 but also for the benefit of the garden ground. The Court of Appeal reviewed the line of authorities commencing with Harris v Flower (1904) 74 LJ Ch 127, and concluded that the use involved an enlargement of the dominant tenement which was impermissible, distinguishing in the process National Trust v White, [1987] 1 WLR 907, where there was a right of way to National Trust premises and the National Trust had acquired adjoining land for use as a car park for those visiting the premises.

 

21.   The issue in Das was as to the extent of an express right of way. No question of the acquisition of a prescriptive easement arose. Had LM Ltd deferred bringing its claim until access to the garden ground had been obtained across the road for more than 20 years, then I can see no reason why a prescriptive right of way should not have been acquired to access the garden ground. I note that there was no appeal from the decision of the judge in relation to house 1, which was held to have acquired a prescriptive right to park by his property, with necessarily a right to drive over the road to get to the parking space. It is that decision in relation to house 1 that is on a par with this case and not that relating to house 4. The right of way in the present case is for the benefit of 187, as is any parking easement over the paved area. I reject the argument that the dominant tenement is the paved area. The rights over the paved area and the right to access it are all for the benefit of 187, which is the dominant tenement.

 

22.   Further, even if Mr. and Mrs. Williams had taken full possession of the paved area, as it is arguable that they have since erecting their sign in 2007, I cannot see that this would involve any excessive user of the right of way. As it was put by Warner J in the National Trust case at p.913G (cited in paragraph 18 of Buxton LJ’s judgment in Das):

 

“It is not as if the National Trust claimed a right to authorise people to use the track for access to the car park for the purpose of enjoying the car park itself, e.g. by picnicking there. Indeed, one way of describing the right claimed by the National Trust is as a right to authorise people to use the track to get to Figsbury Ring, in their vehicles as far as the car park and on their feet from there on.”

 

23.   In Das Buxton LJ, with whom the other members of the court agreed, distinguished the National Trust case, stating at [2003] 2 P. & C.R at p.65, para.20:

 

“the general structure of [Warner J’s] judgment, and not least his references to the analysis of this court in Harris v Flower, makes it plain that what he had in mind was use of the car park as ancillary to, or in Mr. Denehan’s phrase, part and parcel of, the use of the right of way for the purpose of the original grant, of getting to and from the Ring. That that is so is strongly supported by Warner J’s statement of the practical effect of the provision of the car park that is to be found in the last sentence of the passage cited in para.[18] above [ and set out in paragraph 23 above]. … Because the car park abutted on to the way, and was used for access to the way rather than separately for access to the Ring, it was possible for Warner J to analyse the mechanics of its use as he did; and not possible for it to be said, as it can be said in the present case, that the principal or real use of the way that is asserted is a right to use the way to access land that is not part of the dominant tenement.”

 

24.   In the present case, it is clear that the parking is simply to access on foot the dominant tenement, 187. Any other activity on the paved area, such as the leaving out of rubbish bins is unrelated to the access. In any event, as I have indicated, this is not a case of using the right of way for land not included in the dominant tenement. The dominant tenement is to be ascertained by examining for the benefit of what land the route was being exercised while the right was in the process of being acquired, and that never changed.

 

25.   Finally, the arguments addressed to me on this point would not in any event be relevant to the right of access on foot to and from the back door.

 

By Order of The Adjudicator to HM Land Registry

 

dated the 17 ^th day of May 2012