PROPERTY CHAMBER

FIRST –TIER TRIBUNAL

LAND REGISTRATION DIVISION

 

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

LAND REGISTRATION ACT 2002

 

REF/2012/536

REF/2014/0004

 

BETWEEN

STEVEN JOHN PIKE

SHIPRA BANNERJEE PIKE

Applicants

and

 

(1)    TRELALES LIMITED

(2)    UNIQUE PUB PROPERTIES

(3)    ST BRIDES LIMITED

 

 

Respondents

 

 

Property address: 47 & 49 High Street, Laleston, Bridgend CF32 0HL

Title numbers: WA620261 and WA43160

 

Before: Judge Hargreaves

 

3 ^rd and 4 ^th June 2014 Caradog House, Cardiff

5 ^th June 2014 Alfred Place

 

Applicants represented by Mark Wonnacott QC instructed by Hugh James, Cardiff

First and Third Respondents represented by Alex Troup instructed by Berry Smith LLP, Cardiff

The Second Respondent was not represented and did not appear

 

___________________________________________________________________________­

 

Key words – Applicants’ application to rectify a mistake – double registration of a very small area of land – First and Third Respondents’ subsequent application to note the benefit and burden of a prescriptive right of way over the Applicants’ property whether title rectified or not – burden of proof in respect of Applicants’ application discussed – effect of Barkas considered in relation to the prescriptive easement claim – main issue in relation to easement was the question of implied permission – decision proceeds on basis that some over act is required to indicate implied permission

 

Cases cited

United States Shipping Board v The Ship St Albans [1931] HL 632

Halsbury’s Law, vol 12, Evidence para 958

Pollock, Possession in the Common Law

Megarry & Wade, 8 ^th ed, Law of Real Property

Robinson v Arthur REF 2010/239 Judge Mark

R (ex p Barkas) v North Yorkshire CC [2014] UKSC 31

R v (ex p Beresford) v Sunderland CC [2004] 1 AC 889 [2003] UKHL 60

London Tara Hotel v Kensington Close Hotel [2012] 1 EGLR 33

M’Gregor v The Crieff Co-Operative Society Ltd [1915] SC (HL) 93

 

1.                   For the following reasons I direct the Chief Land Registrar (i) to give effect to the Applicants’ application in Form AP1 dated 26 ^th October 2011 and (ii) to give effect to the First and Third Respondents’ application dated 17 ^th September 2013 to register the benefit and note the burden of a prescriptive right of way over part of the Applicants’ property.

 

2.                   Save where otherwise indicated, all references are to the trial bundle eg 1/32 (file 1 p32).

 

3.                   A site visit was conducted on the afternoon of 2 ^nd June 2014, attended by the parties, their lawyers, and in the case of the Respondents [1], their expert. I had the opportunity of inspecting all the relevant physical factors as they stand now. There are photographs at File 1 tab E and F, and further photographs were taken at the site visit, to which reference can be made. In addition the site is well described in the parties’ expert reports at File 1 tab B and further attached documents at File 2. The disputed land falls between two historic listed buildings on the High Street, Laleston, Bridgend, a busy through road running east-west from Bridgend to Porthcawl. To the eye it forms part of a track or access lane running north/south from the High Street between the Respondents’ pub on the west side of the track (no. 47 High Street WA620621) and the Applicants’ house on the east side of the lane, (no.49 WA43160). The pub closed a few years ago and these particular disputes emerged after that when the Applicants realised that the Respondents want to convert the pub into residential accommodation and build a house in what was a substantial rear beer garden. They investigated their title. At that point they erected a fence marking an alleged boundary (1/486, 489, 490 [2]), marking out (roughly) the disputed “spur” in yellow paint. The spur is the overlap between the two title plans at 1/432 and 436.

 

4.                   There is an aerial view of the junction of the lane with the road in December 2003 at 1/471-2, for example, followed by other aerial photographs of varying quality. Some idea of the size of lorries (or delivery drays) which have accessed the rear of the pub, the subject of much evidence, can be gleaned from the 2009 aerial photograph at 1/483. The Applicants also drive up the lane to access their garage. As can be seen from, eg 1/489, the lane is tarmac at the junction with the High Street, before taking on a more rural appearance as it proceeds towards the north (1/485, 490, 492). As is often the case, the hearing was dominated by evidence about the line of a wall which no longer exists, running south from the end of a hedge/wall marked by a stone pillar with a notice on it, visible in the photograph at 1/487 for example. Beyond that pillar runs an old hedge running up the west side of the lane to the north. The southern end point of that original boundary feature was hotly disputed. The only relevant old photograph is at 1/469 [3], procured by the Applicants comparatively recently, and capable of various interpretations as became clear from the oral evidence.

 

Chronology

5.                   This is not a case which requires a lengthy chronology except as to various conveyances, and neither counsel provided a chronological account save as to title. The most significant fact is that probably between 1976 and 1981 (when the Applicants bought the Village Farmhouse) the wall was demolished as part of the main road widening scheme, to which I have to return. Otherwise evidence was given by the Applicants as to their user of the lane from 1981, and by various local residents called by the Respondents who used the pub, since the 70’s. Only one witness could recall the wall. The pub dates from about the 1500s with a later side extension (clearly visible in the photographs) and the Village Farmhouse (originally a farm building) is about 400 years old. In the course of dealing with the conveyancing documents on which the parties relied, it will be seen that the pub building comprised various parts of the terrace at 43-47 High Street over the years.

 

6.                   The relevant sequence of conveyances is as follows, starting with the pub. A chronological list appears at the index to File 4 where they are contained in chronological order (though without some of the plans which are in File 2).

 

7.                   On 1 ^st February 1869 Edward Thomas granted a 99 year building lease to Alex Thomas (4/tab1) of both the New Inn and adjoining cottage (see the plan at 2/tab 21). Mr Wonnacott suggests that the plan does not show the eastern extension to the pub, a matter to which I return, though he accepts that theory is contentious. The plan is drawn at a scale of 1 inch to 66 feet and does not show the spur. The same plan with the addition of the word “Mackworth” written along the lane was attached to the counterpart (4/tab 2 and 2/tab 22) which suggests that the land to the east of the pub was owned by the Mackworth estate by 1869 at the latest. The land demised was described as “fully delineated in the plan on the back of these presents”. The pub was leased for 14 years by Alexander Thomas to Samuel Evans on 13 ^th January 1877 (4/tab 4) but no plan was attached. It is arguable that the shape of the spur is evident on an estate map of the Laleston House estate in and by 1910 (4/tab 5) but the weight of that evidence is questionable. The next document at 4/6 is a 1922 abstract of title to the post office in Laleston, the root of title being the 1869 building lease of the pub and adjoining cottage. That predated the severance of the 1869 lease and the assignment of the post office part on 21 ^st February 1923: see 4/8 and the detailed plan with certain measurements of the post office at the end of the document. Note also the wall drawn running between the pub and the Village Farmhouse. The plan used for the assignment of the rest of the property (the pub and adjoining cottage) is at 2/23 but a better version is at the end of the relevant assignment dated 31 ^st March 1923 at 4/tab 8. This shows the pub with a frontage of 102 feet 9 inches but that 1923 frontage was changed at the latest by the mid-70’s road widening works and that line as measured no longer exists. The detail of the wall running between the pub and the Village Farmhouse is different as are various other features and measurements, no doubt to reflect the fact that the plan was used for a different purpose. The 1923 plan was probably prepared in 1922 but is referred to throughout as the 1923 plan. It emerges in various guises; eg one version is attached to a 1938 abstract of title, it being agreed that a trace was done from a 1923 plan. All the variations, probably hand drawn, mean that reliance on the plans for scaling measurements would be difficult. (Mr Wonnacott opened with a theory about what the 1938 plan at 1/367 showed but my difficulty in understanding and accepting the point he was making was removed by the fact that he later discarded the point, so I say no more about it.)

 

8.                   The next relevant document is at 4/10 by which part of the Mackworth estate including the Village Farmhouse was vested in David Mackworth as tenant for life by deed dated 19 ^th June 1951 (no plan). A few years later, by conveyance dated 14 ^th January 1954 (4/11) Catherine Giles conveyed the pub and the remaining cottages to the west of the pub on the High Street (ie excluding the post office at no.43 already conveyed) to H & G Simonds Limited: the plan is attached to the conveyance and is another version of the basic 1923 plan at 66 feet to 1 inch (also at 2/tab 25). The plan is “for the purpose of identification only”. Someone had added T marks to the boundary suggesting that the pub owned the hedge, the Village Farmhouse the (now demolished) wall but enthusiasm for relying on the T marks was muted in the context of what had to be decided (see below). Simonds in turn conveyed the property described in the schedule to a conveyance dated 29 ^th September 1962 to Courage (4/tab 13). The land is merely described as “FIRST ALL THAT piece of land situate in the village of Laleston …. On the north side of the road leading from Porthcawl to Bridgend TOGETHER with the fully licensed public house … and cottage adjoining and the yard and garden thereto belonging …”. Enclosed within the conveyance is a plan showing the spur quite clearly but that plan relates to the second memorandum endorsed on the back of the conveyance concerning the sale of the cottage (between the post office and the rest of the actual pub) outlined in red on the plan on 13 ^th December 1976. The source of the plan is not known but it does not appear to be an OS plan.

 

9.                   On 8 ^th January 1976 David Mackworth conveyed the Village Farmhouse to Mr and Mrs Edwards (4/tab 14)., described as “ALL THAT piece or parcel of land with the buildings thereon having an area of approximately 1100 square yards and shown on the plan attached hereto and thereon edged in red … part of the former agricultural holding known as Village Farm except and reserving a right of way to the existing width of eleven feet about with or without vehicles of every description and for all purposes over the existing access way coloured blue leading from the highway to the field … at the rear of the property hereby conveyed …”. Unfortunately the plan attached (signed by all parties) is an OS map to a small scale but does in my judgment show a spur as contended for by the Applicants as well as the right of way; although the colouring is shaky and appalling there is no good reason to conclude that someone was excluding the spur. Somewhat surprisingly the eleven foot right of way measurement played little or no part in the evidence. By January 1976 Mid-Glamorgan CC had served notice to treat on 18 ^th January 1974 in respect of “86 square meters (103 square yards) part of the rear access and front yard of Farm Buildings … adjacent to [the pub]” [4]. The site plan for the road widening scheme as served on the Mackworth estate is almost worse than useless for my purposes (1/373) and the Respondents were unable to produce any other relevant documents for the pub. As the other memorandum endorsed on the 1962 conveyance suggests, the road widening took place in 1976. The memorandum records Courage conveying two areas to Mid-Glamorgan CC for the purpose of road widening. According to Mr Wonnacott the road widening has no impact on the spur question but given the likely demolition of the wall in 1976 around the same time, that might well have been the point when as a visual marker (ie something drawn on a plan), it disappeared. However, Mr Troup did not challenge Mr Wonnacott’s assertion and neither party proceeded on the basis that the spur was conveyed to Mid-Glamorgan CC in 1976 so I proceed on that basis in the absence of any evidence to the contrary. Further detail is available in the schedules to that 1976 conveyance at 1/206. It appears that the brewery conveyed two areas fronting the High Street to the County Council so the historic frontage changed. Part of the works to plot 22 to be carried out by the County Council included “(iii) Regrade rear access to new level (iv) Eastern boundary wall to be cut back to face of barn and end made good”. That probably created the pillar at the end of the hedge visible in the photographs today but casts doubt on the theory that the wall belonged to the Village Farmhouse. On any view the removal of the wall left the parties with no hard physical evidence as to its shape or location at the south end. There is no photographic evidence.

 

10.               Mr and Mrs Edwards were registered as first proprietors of the Village Farmhouse on 9 ^th February 1976. The filed plan clearly shows the general boundaries as containing a spur: 1/419. That appears to be based on the 1974 OS plan possibly without taking into account the road widening. They sold the Village Farmhouse to Mr and Mrs Griffiths in June 1978 who transferred it to the Applicants in 1981, when they were registered as proprietors on 28 ^th September (1/417). The Respondents’ title was first registered in 1992: see the plan at 1/432.

 

The applications

11.               The Applicants made an application in Form AP1 dated 26 ^th October 2011 (p1). The application seeks to remove the “spur” from the Respondents’ title and include it in the Applicants’. The spur is coloured green on the plan at 1/6A which has been reproduced by HMLR in the notice plan forming part of the reference to the Tribunal, though that is not in the bundle. The application exhibited a report of John Jones, the Applicants’ expert, dated 23 ^rd October 2011, and documents attached to that report, and it has always been based on his work. The application was referred to the then Adjudicator to HM Land Registry in May 2012. In September 2013 the Respondents applied to register a right of way with or without vehicles over the Applicants’ property, based on an ST4 and various other statements at p9-44 and that application was referred to the Tribunal in early 2014. That application was made following a case management conference in Bristol in June 2013 when a Deputy Adjudicator held that without a separate application, the Respondents’ pleaded contentions as to the prescriptive rights claimed, could not properly be resolved. Both applications were consolidated. Written submissions for the parties prepared for the CMC are at pages 276-86. Mr Wonnacott maintained then as he does now that the only function of the Tribunal is to consider whether to “move” the spur from one title to another, not to determine the boundary (correct) or create a different general boundary (though that would be the effect of the application). That had little impact on the scope of the exercise which had to be conducted which Mr Wonnacott acknowledged included determining the paper title to the Village Farmhouse.

 

12.               The Applicants filed and served a statement of case in August 2012 (1/53), a further statement in January 2013 (1/225), and a Reply (settled by counsel, 1/319) to the Respondents’ amended pleadings incorporating the easement claim. The Respondents’ amended statement of case is at 1/250. Simply put, the Applicants argue that it was a mistake to include the spur in the Respondents’ title and that they are therefore entitled to rectify or alter the file plan accordingly. The Village Farmhouse was first registered on 9 ^th February 1976 with a plan that included the spur (1/419 or 436). When the pub was first registered on 21 ^st January 1992 the common boundary was drawn in a straight line which incorporated the spur into the pub’s plan (after the demolition of the wall). The Applicants’ basic case was put in Mr Wonnacott’s skeleton argument, as was the Respondents’ in theirs. Plan 5A to the Applicants’ expert report at 2/tab 7 demonstrates the mapped overlay based on the HMLR titles, see also 1/6A.

 

13.               In the autumn of 2011 the Applicants erected a fence on what they argued was the correct boundary line. It has since been removed. Mr Wonnacott does not ague that the fence was in the correct position: for reference, it is plotted on the Applicants’ expert’s Plan 2 at 2/tab 2.

 

The expert evidence

The Applicants’ expert: John Jones

14.               Mr Wonnacott says that Mr Jones’s evidence supports the Applicants’ case as to the spur, and that the Respondent’s expert fails to deal with it properly. Mr Jones submitted three reports dated October 2011, August 2012 and December 2012 (see 1/328, 1/346A, 1/385). In addition he provided a series of overlays at 2/tabs 17-19 prepared in December 2012. His second report deals with the impact of the 1869 lease plan which was brought to his attention by Mr Biddle, owner of no. 43 (after he wrote his first report), and his third report contains his comments on Mr Adams’ (the Respondents’ expert) report.

 

15.               The thrust of his first report is that taking into account discrepancies on the OS plans as against the accuracy of his own survey, and overlaying various plans, it is clear that the spur is within the Applicants’ title because the eastern boundary of the Respondents’ land is along the edge of the eastern extension of the pub. The OS plan was revised at the end of 2011 after Mr Jones noted the discrepancies. As is clear from his second report, the OS version produced in December 2011 corresponds to his own survey (Plan 2 2/tab2, see HS/21 at 2/tab 15). For the purposes of that second report, he took the 1869 lease plan, changed the scale to match the OS scale, and produced at HS/22 (2/tab 16) an overlay at 1:500 of the 1869 lease plan on a correct and current OS plan. The Respondents do not have legal title to the spur if he is right and their legal boundary runs along the edge of the extension, but I do not have to find that to be the case to give effect to the application. There are two main features to the exercise at HS/22: (i) Mr Jones observes that the footprint of the extension in 1869 is smaller than the existing extension [5]; and (ii) the overlay exercise is precise where both plans delineate the front face of the terrace including the pub though not in other respects. He says, with some justification in my judgment, that whereas much can be said by way of questioning the accuracy of old plans, there is (on the basis of HS/22) a good correlation along this line which suggests that whoever plotted the 1869 plan, correctly measured the distance along the front wall of the terrace buildings. He contends that the 1923 plan is inaccurate in comparison, and purported to assign more land than was demised by the 1869 lease: this is demonstrated by overlaying the 1869 and 1923 plans (2/tab 17). This conclusion is arrived at by noting that the gap between the eastern edge of the pub and the boundary of the plot was the same on both the 1869 and 1923 plans when on Mr Jones’ analysis, there were changes to the footprint of the eastern extension. Mr Jones had compared the 1923 plan to the pre-December OS plan in his first report: see plan 3 at 2/tab 4. He concluded that there were major discrepancies but I note that again there is correlation along the front wall of the terrace except for the length, which is the issue between the experts on this point.

 

16.               Mr Jones accepted in cross examination that the scale used in the 1869 plan was broadly similar to a scale of 1:1250 and that there were likely to be inaccuracies compared with a plan created by modern methods. But as he said (correctly), the common factor in all plans for the purpose of comparison would be the buildings, eg the pub, the Village Farmhouse and the chapel opposite. I think he was prepared to accept that his criticism of the precise measurements recorded on the 1923 plans might be excessive, but rightly asserted that the frontage measurements shown no longer exist and cannot be checked (as opposed to the front of the buildings which on Mr Jones’ analysis have not changed except for the extension). He was generally attacked on his overlay work but had good explanations for what he had done and why. He had not carried out an overlay exercise involving the 2011 OS map and the 1923 plan, as Mr Adams had (2/tab 36) but was prepared to accept that that exercise produced a “good fit”; Mr Jones’ plan 3 however shows that the 1923 plan overlaid onto a current survey produces discrepancies. With certain qualifications, he accepted that Mr Adams’ other overlay exercises at 2/tabs 33-35 produced a relatively good fit with one important exception, which marks a difference between the experts. Mr Jones stood by his position on the eastern boundary because he had carried out certain measurements on the west side, taking into account the gap between number 41 and 43 High Street. Mr Troup was justified in pointing out that this had not been referred to in Mr Jones’ evidence but I am prepared to accept his oral evidence that he had done the measurements. In other words Mr Jones took into account not only the frontage of the terrace but also the gap between fixed points on the buildings comprising number 41 and 43 as shown on the 1923 plan, and subsequent OS plans. Mr Adams did not take this into account in championing the superiority of the 1923 plan over the 1869 plan. Mr Jones therefore defended his analysis by stressing reliance on the position of the western edge of the terrace. Comparing Mr Jones’ overlays with the overlays of Mr Adams at 2/tabs it is possible to see that whereas Mr Jones fixes the front of the terrace by reference to the south western corner of no. 43, Mr Adams does not. Although cross examined by Mr Troup to the effect that the post office at no 43 had been extended to the west (in order to justify the Adams overlays), the Respondents have no evidence to support that allegation at all. Based on Mr Jones’ analysis, it is far more likely that the terrace was extended to the east, and more than once. Reviewing Mr Jones’ evidence as a whole especially in the light of his explanations as to how he took into account measurements on the western side between numbers 41-43 his evidence as to the eastern boundary of the pub gains weight.

 

17.               The significance of his evidence in cross examination is that it underlines the differences between the two experts. Mr Jones is very careful in his overlay exercises to line up the front face of the terrace, and the western edge of the terrace ie using a particular point on the west wall of no 43 as a given, non-changing, feature. He justifies this is by taking into account the gap between no. 41 and no. 43 as stated above. This is one of the biggest differences between the approach of the witnesses and given that Mr Jones had actually carried out the measurements between two points (which he showed me), which Mr Adams had not, it undermines the exercises carried out by Mr Adams, to which I now turn.

 

 

 

The Respondents’ expert: Owen Adams

18.               Mr Adams, whose reports are at 1/347 and 1/391, suffered a fairly hostile cross examination as to his credentials as an expert witness. He admitted this was the first time he had given expert evidence and he was not entirely clear about the nature of his duty to the court as well as his client. He had never read any professional guidance on giving expert evidence. His honesty and professionalism in his particular field, I should emphasise, emerged unscathed, but it was clear that he had prepared his report without fully understanding what an expert witness’ remit is and though his consolation may be that he is unlikely to put himself in the same position again and make the same mistakes, his evidence lacks the independence and authority of Mr Jones’ [6]. What he essentially did was to consider the evidence in the best light possible for the Respondents, and it lacked critical objectivity. His overlay exercise only stands up if he can establish that no.43 was extended to the west after the 1869 plan was produced, and he could not do so, relying instead on the northern extension to no. 43 to infer a western extension as well. That does not work on the basis of Mr Jones’ approach which I prefer as based on a more rigorous approach to the hard evidence of the buildings. He did not pin his exercise down by using the two fixed points of numbers 41-43 and therefore when it comes to the overlay exercise, I prefer Mr Jones’ analysis as to the starting position on the western end of no.43. That impacts on the spur in favour of the Applicants.

 

19.               Mr Adams’ main conclusion is that the boundary line runs from point F on his plan at 2/tab 38; see 1/358. On this plan, the end of the wall is the edge of the carriageway as he considers it would have been before 1976, but in cross examination he was pushed to accept it was in a more northerly position. Ultimately he agreed that point B (as he called the south point of the original wall) could not be plotted accurately, which is arguably inconsistent with his reliance on the 1923 plan as being accurate. He also relies on his overlays to support this conclusion and his exercise plots the site too far to the east for the reasons given above. Further, as to the overlays, he explains at paragraphs 4.4-4.5 (1/394) that he gives priority to boundary features rather than the building outline; the problem with that approach being that the terrace frontage has changed, unlike the front of the original buildings taken from the west end. Further, his approach to the eastern boundary is based on supposition rather than fact, eg “It is my opinion that the boundary to the east of [the pub] is the same on both plans and is hence outside of the line of the existing eastern annexe to [the pub]. I can confidently draw the conclusion that [the pub] has not been extended to the boundary line as it is extremely unlikely that the eastern boundary hedgerow has been moved at any point between 1869 and today. … each assignment/title plan [shows] a clear gap between the end of the easternmost corner of [the pub] and the mature hedgerow boundary to the east. This is verified by [the overlays]” which I have found to be flawed.

 

20.               Not only is his overlay exercise flawed, therefore, but as Mr Wonnacott emphasised several times, Mr Adams did not grapple with the thorny issue of where the disputed spur actually is on his boundary plan at 2/tab 38. In fact his report tended to ignore it altogether. His conclusion is that the boundary between the two properties can be drawn in a straight line because there was a wall in a straight line. He was cross examined in detail about the extent to which his theory and conclusions matched or fitted the only historic photograph available (1/469), which Mr Adams had only seen for the first time the day before the hearing. This photograph is – even given the better copy we used during the hearing – arguably difficult to interpret as to the location of historic boundary features between the two properties. For a start it is undated though the date on the tombstones in the chapel graveyard opposite show it was taken after the 1890’s and there is an obvious line of telegraph poles which raised some discussion but no firm conclusions. I can understand why it is capable of both the interpretation drawn by Mr Adams, and the interpretation drawn by Mr Wonnacott on the two hand drawn plans each submitted in the course of Mr Adams’ cross examination. In Mr Adams’ interpretation the photograph shows the pub having an access to the rear between a curved (though query [7]) wall to the west side, and the plotted straight wall on the east side, with a gate set back from the street frontage. Mr Wonnacott’s version (obviously) allows for the spur.

 

21.               I have concluded that it would be going too far to reach any firm conclusions either way on whether the photograph supports Mr Adams’ conclusions or not. It is simply too unsatisfactory to bear that weight of interpretation. I can conclude that on the basis of noting the various interpretations which emerged (and I do not think that Mr Troup had to go to the extent of emphasising his distrust of the photograph by drawing my attention to United States Shipping Board v The Ship St Albans or Halsbury’s Laws of England on the probative value of photographic evidence). For example, Mr Wonnacott suggests that the photograph shows a gate across the access to the Village Farmhouse. Without independent corroboration, this is not an obvious conclusion to draw as Mr Adams pointed out (though see below as to the evidence of Mrs Ward). Whether or not he was expert in this field (neither is Mr Wonnacott) is besides the point: he had not seen the photograph previously and was doing his best to deal with the questions about it. On the other hand I agree with Mr Wonnacott that Mr Adams’ attempt to replicate the 1923 frontage measurements from the 1923 plan in order to support his contentions as to where the south end of the wall between the properties would terminate, relies too far on recreating those measurements along a line which no longer exists.

 

22.               As to the plans showing a spur, Mr Adams said they were in a pack of documents of which he was aware but that he had decided not to comment on them because he had not seen any originals. Accordingly he expressed no opinion of any assistance and omitted to take these into account or consider why the spur had been plotted. Again that highlights the problems with his overall approach, as this demonstrates an unnecessarily one sided approach to the evidence. But most unhelpful of all was the Respondents’ failure, whether by Mr Adams or otherwise, to plot the spur by reference to the line adopted by Mr Adams as the correct boundary line. If Mr Adams’ boundary line is correct then the current general boundary line is wrong. However his conclusion as to the boundary line relies on matters of which he has no actual knowledge or solid evidence ie the line and end point of the wall.

 

23.               Another difference between the experts worth noting is that Mr Jones observed that the proper measurement of the gap between the Village Farmhouse and the pub is in fact narrower than that demonstrated by the OS maps prior to the December 2011 revision. That is another reason for querying the measurements on the east side and possibly supports the theory that the extension was more recently extended.

 

Dr Pike’s [8] evidence

24.               The Applicants submitted three signed statements which read more like pleadings than witness statements; see 1/4/8/10. This was disadvantageous in that it prevented them from expanding factual allegations they made but did not particularise eg as to the periods when they alleged that the pub did not use the land for access to the rear. Those details were contained in a separate note which had not been produced. I accept Dr Pike’s evidence that this was not deliberate, and that he had followed advice. There was not much that the Applicants could say about the boundary issue in any event and there was not much of a conflict about the facts relating to the easement.

 

25.               When the Applicants bought the Village Farmhouse in 1981 the southern part of the wall had been removed and the surface of the access area was gravel, being tarmacced after 1981. Danny Morgan, the publican in about 1985 started to tarmac the whole of the land but stopped when asked to do so by the Applicants after he had covered part of their land. By 2011 the surface of the lane was in disrepair and the Applicants engaged contractors to lay more tarmac (partly to assist the elderly neighbour with a right of way), producing the rather patchwork result shown at 1/487 for example. Dr Pike described the process as fairly unscientific in terms of boundaries; it is certainly the case that they did not consider the boundary at that point and I accept his evidence that they laid tarmac according to the quantity available, but would not in any event have laid it on the pub’s land. Since the Applicants only engaged with the boundary issue after the pub was marketed for sale, Dr Pike had no personal evidence on investigate previous boundary features, though clearly he had gone to great lengths to discover what he could (hence the 1869 plan and the photograph). But roughly, to the eye, the obvious inference is that the land has been maintained as though the wall was in existence. It is the Applicants’ case of course that this is not determinative as the spur was to the south of the end of the wall. There are two possibilities which really emerged as the hearing went on: (i) the south end of the wall was curved (ii) the wall was straight but terminated so as to allow for the spur. (ii) is more likely than (i) given the evidence overall, particularly that of one of the Respondents’ witnesses, Mrs Ward.

 

26.               As to the easement issue, I accept his evidence that the Applicants did not grant any express permissions to the pub landlord or users, to drive over any part of the Village Farmhouse. As he said, when he drove over the pub’s land or parked on it, there were no complaints. It was “live and let live”, a phrase very much to the fore of Mr Wonnacott’s submissions for reasons outlined below. Neither party took any point about where the other was driving. It was/is easier to use the whole of the width of the access, particularly to improve sight lines when driving left onto the High Street. He accepted that the practice of the brewery drays was to reverse up the land round the back of the pub, to make it easier to unload the casks, and that deliveries would be weekly, at least once the drays became larger. Prior to that the deliveries would be more frequent. The current “cellar” was built in 2001 but I did not get the impression from Dr Pike that that made much of a difference to the delivery pattern. There were deliveries to the front of the property, but Dr Pike accepted it was more common for the drays to pull in round the back of the pub. His evidence proceeded on the basis that the width of the access lane at the south end was traversed as required.

 

27.               Dr Pike was I find unbothered by who was driving over what until the boundary became an issue in 2011. It is clear from his evidence and the recent aerial photographs that there would have been occasions when the brewery vehicles would have blocked the entire lane, if only for minutes. I found Dr Pike’s account, which evidenced a reasonable approach to any inconvenience he might have experienced while driving in or out of his property (which suggests that when it happened it did not cause too much of a problem), hard to reconcile with the fact that his wife had raised the issue of deliveries via to the lane to the rear of the pub, as a nuisance when they were objecting to the licensing application in November 2005 (see 1/453). This complaint was not particularised during the hearing. Although submissions were made in closing on the effect of these complaints as the equivalent of a termination of a licence to use the Applicants’ land for access (so that time would start to run again for the purposes of a prescriptive claim) the relevant facts were not fleshed out in any way in the evidence so that I cannot come to any firm conclusions one way or the other. However I find the concept of any licence not made out on the facts in any event (see below). It was clear that the many issues which the Applicants had raised with the licensing sub-committee in 2005/2007 (see 1/455) really concerned noise, racial abuse, smoking and privacy: their complaints were detailed and presented by lawyers and do not appear to address the access issue at all (save for the fleeting reference in 2005 which was undeveloped in evidence). Those problems were enough to make the Applicants move out of the Village Farmhouse at the end of 2006 for six or seven months. Reading those reports I think it unlikely that the Applicants would have failed to instruct solicitors to deal with the access issues if they considered they were affecting their daily lives to any extent.

 

28.               It is clear that the Applicants must accept that as a matter of fact the Respondents’ predecessors used the lane including land in their title for access. Their factual defence at the beginning is that the periods of user were interrupted to such an extent that the Respondents cannot establish prescriptive rights. Dr Pike’s own evidence on this point did not provide sufficient detail to establish the grounds of a useful defence on the balance of probability, and the answer lies in the evidence of the witnesses called by the Respondents. However, despite a detailed cross examination, that defence was not made out, contrary to Mr Wonnacott’s submissions though it is fair to acknowledge that by the end of the hearing, he backtracked from relying on the point.

 

 

 

 

The Respondents’ evidence

Estelle Ward

29.               Her statement is at 3/tab 10. She was one of the most important witnesses in the case because, born in 1960, her grandfather owned the pub and her father owned or leased the Village Farmhouse when it was used (in disrepair) as a hay barn until the early 70’s. She would climb the wall between the two properties frequently as a child, keeping ponies on the Village Farmhouse side, and feed/hay behind the pub in one of the outbuildings. She was an entirely straightforward witness who gave useful and credible evidence and I have no hesitation in accepting what she said. She was born in Laleston and has been the postwoman since 1994. Her recollection is that the pub extension has been the same size for as long as she can remember. As to the boundary/access issues, she described a gate on the Village Farmhouse side of the end of the wall, which was set back from the High Street because she described the area between the bottom of the lane as a “shared access”. This is evidence to support Mr Wonnacott’s thesis as to the location of the gate in the old photograph but it arguably supports the sort of user relied upon by the Respondents in their application. The brewery drays could reverse up the lane on the pub side of the wall. Her reference to “land at the bottom of the lane” is consistent with the Applicants’ case. It also fits her written evidence in paragraph 7 that “The boundary of the [pub] has always been along the line of the large hedge and small wall at the bottom of the hedge.” What her evidence overall demonstrates is the fact that the wall, which was straight, stopped short of meeting the High Street. It may well be that one of the issues between the parties, as to whether the wall was straight or curved at the bottom of the lane, has been asking the wrong question: the wall could be straight but (depending on where it terminated) the gap between it and the High Street produces the spur. As she emphasised in cross examination, “the wall did not go all the way to the road”. That matches the old photograph. Asked to comment on Mr Adams’ red line on the plan at 2/tab 38 she said “I can’t recall [the wall] going all the way down to the road” (as he had drawn it). She was certain that the wall did not follow the line of the fence erected by the Applicants in 2011 and I have concluded that she is right about that. She provides strong evidence in support of the Applicants’ case on the spur.

 

Stephen Fisher

30.               Mr Fisher was the second of two former landlords called by the Respondents, but in chronological sequence I will take his evidence first. His written evidence is at 3/tab 6. He was landlord for a short period of time in 2004 having taken over from his predecessor’s wife after she was evicted when her husband went to prison. I accept his account of what he observed and did factually but put to one side his views as to who owned the access lane as being purely speculative and based on user by the users of the pub or delivery vehicles, particularly as he candidly admitted in chief that “I never thought about where the boundary was” or discuss it with his landlord. He never saw the Applicants drive over the lane and only saw Dr (Stephen) Pike once to speak to about cutting over hanging trees. His evidence supports the Respondents’ case on factual user of the access to the rear.

 

Wyndham Wright

31.               He took over after Mr Fisher terminated his contract with the landlords in November 2004, in March 2005, so the pub had been shut for at least three months, though he appears to have put that down to rebuilding works on the gable end which was suffering severe structural damage (in which case there would have been some relevant activity in relation to the easement). He never noticed the Applicants driving over the drive, and regarded it as open access for both properties. He had plenty of problems with the Applicants between 2005-2010 (when he finished at the pub) but none concerned the boundary. He thought about 90% of deliveries were made to the rear. Nothing he said in his written statement (3/tab 9) was seriously challenged. Again, I discount his views as to the actual location of the boundary; what is more relevant is his account of the facts.

 

John Bryant

32.               John Bryant (3/tab 8) is the father of Matthew Bryant, one of the directors of the First Respondent. Nevertheless I have no reason to think that his evidence on the facts was anything but credible. His son had asked him about his recollections after the First Respondent received a letter dated 16 ^th August 2011 from Hugh James alleging (contrary to everyone’s oral and written evidence) that there had never been deliveries via the rear of the pub. He has lived in Laleston for around 30 of the last 38 years (1976-1988, 1990-1999, 2006 to date) but his arrival in about 1976 did not trigger memories of the wall and gate arrangement pre-road widening save to recall that it was an improvement from a driving point of view. He knew the pub had not closed between 1976-1988 because he knew the landlord, and was pretty sure, if not 100%, that it did not close between 1990-1999 because he used to eat there and lived only 200 yards away. He did not recall deliveries from the front of the pub, or rather, had no recollection of seeing drays parked on the High Street. He was aware that the pub hit hard times more recently, and obviously, due to family connections, the current state of affairs. Generally speaking he had no recollection of the pub being closed for any period at all, though there is solid evidence that it was shut, at least for trading, between the Fisher and Wright tenancies.

 

Matthew Bryant

33.               Matthew Bryant had no independent evidence to provide and the case he made in the AP1 at 1/13 was based on the evidence of the previous witnesses (apart from his father, to whom he spoke later) and Byrom Stokes (whose evidence was not relied upon by the Respondents in the end). The land coloured brown and blue on the application plan was based on a swept path analysis carried out by transport consultants whose evidence I excluded earlier on the grounds that what counts in a prescriptive claim is fact not analysis. As it is, the Applicants do not take issue with the area claimed to be the subject of the easement in a physical sense and Dr Pike’s oral evidence is clearly based on an acceptance that lorries drive over part of their land to get to the rear of the pub.

 

34.               Matthew Bryant went back into the witness box on the last day to deal with an issue which arose as to the date of the pub’s eastern extension, dated as early twentieth century in a justification statement prepared by the First Respondents’ planning consultants in support of the planning application to redevelop the pub (which is Grade II listed). He wanted to answer an allegation by the Applicants that the company had suggested to the local planning authority that the extension was twentieth century. Mr Bryant could not confirm whether the author of the justification statement had seen either the 1923 or 1869 plans. It transpired that the Applicants had complained to the authority that the company had failed to be definitive about the date of the extension. My position on this evidence is that in the form it was presented, it made no positive contribution one way or the other to the issues I have to decide. It is clear that Mr Jones’ evidence is that the footprint of the extension increased between 1869 and 1923 but beyond that no positive evidence was produced by either side as to when. Further skirmishing round planning issues is off point and unhelpful.

 

Marcus Thompson

35.               Marcus Thompson first came across the access lane when he met Lesley Stokes about 35 years ago, and walked up to meet her at home, which is to the north of the Village Farmhouse. This was plainly after the wall was demolished by his account. He has lived in the village since 1986. Again, there is no reason to reject his account of vehicular deliveries to the rear of the pub, which he frequented until it closed, though he acknowledged that they would deliver in the daytime, whereas he used the pub in the evenings. He regularly parked his car at the side of the pub, recalled most of the names of the landlords from the 80’s (though the first, Danny Morgan, might have predated the 80’s), and considered that the user of the lane by both parties benefitted both sides. To his knowledge the pub had only ever been empty for a matter of weeks rather than months between landlords.

 

Facts

36.               Prior to the demolition of the wall, probably in 1976 in connection with the road widening scheme, the wall continued south from the hedge, splitting the lane in two parts. It was probably in a straight line but ended short of the highway/High Street (as it was) to provide an access area or an area which was used for accessing both properties. That was the spur. It is impossible to determine with any precision where the southern point of the wall was, but it did not extend to the highway as drawn by Mr Adams. On the Village Farmhouse side there was a metal gate across the bottom of the lane. There does not appear to have been a gate across the pub access but it was wide enough to reverse drays to the rear. Once the wall was demolished the area fronting the High Street lacked defining boundary characteristics. As I indicated above, these findings basically derive from Mrs Ward’s evidence in the context of all the other paper evidence.

 

37.               As to user of the lane including the Applicants’ land for the purpose of driving or reversing drays to the rear of the pub the overwhelming effect of the evidence (contrary to Mr Wonnacott’s submissions) is that regular deliveries were made over the lane before but in any event throughout the Applicants’ ownership of the Village Farmhouse ie by 1981 at the latest, continuing to date. No-one really knows when vehicular use commenced but I can rely on Mrs Ward’s evidence as to what she recalled when she was a child. Apart from some limited evidence that one or two licensees would park at the side of the pub (not on delivery days) there was no evidence that any of the licensees or employees would themselves drive round the back though the aerial photographs show cars to the side and rear. This is understandable: the pub has a large car park on the other side of the road and such other parking or driving would conflict, in the comparatively small space to the rear, with access for brewery drays. The only direct evidence from the witnesses related to brewery drays. On the basis of the witness evidence, there were no relevant conversations between neighbours as to the user of the lane, nor is there any question of express permission being granted by the Applicants.

 

38.               With these facts in mind, I turn to the parties’ submissions.

 

The spur: the application to alter the register

39.               The Village Farmhouse was registered with the spur included in its title WA43160 in February 1976: see 1/417 and 1/435. The spur is also part of the Respondents’ title WA620621 (1/432), first registration occurring in January 1992 (1/429). The overlap is marginal: see 1/6A, and given the general boundaries rule, arguably requires the expertise of a surveyor to identify. Whether it matters in any practical or legal sense is not to the point on the Applicants’ case. The Applicants say it is a straightforward case of mistake: the mistake occurred when the plans department of HMLR drew a straight line in 1992 which incorporated the spur into the Respondents’ title. Mr Wonnacott emphasises that this is not a determined boundary application or an application to move the general boundary line to a more accurate position, but an application to cure double registration. It involves the concept of rectification under Schedule 4 paragraph 1 because it prejudices the title of the Respondents by removing land included in their title. He submits that the only point of investigating the legal boundary/paper title is to determine which of the parties is in possession of the spur because unless the Respondents can show they are in possession of it, in which case the provisions of paragraph 6(2)(a)(b) apply, I must give effect to the application because that is the only course I can take unless there are “exceptional circumstances”. Mr Troup has not asserted that there are any exceptional circumstances, but has chosen to rely on the counter application if necessary. Mr Wonnacott says there are no exceptional circumstances because if successful, all the application achieves is resolution of a double registration mistake. If he is right, then it seems a long way to go for so little, but his technical analysis expressly discounts the achievement of anything else, though I consider it would create new (as in changed) general boundaries.

 

40.               So who is in possession of the spur? This is not a question which can be answered by reference to fences or gates etc. It is answered on the Applicants’ case by the application of the legal presumption that the owner is in possession unless he abandons possession or is ousted. Mr Wonnacott cites Pollock on Possession in the Common Law (p24 rule 7): “Where possession in fact is undetermined, possession in law follows the right to possess …… possession follows title.” So wherever the true boundary is, the party which establishes the location of the spur within its legal boundary, determines the outcome of the application, according to the Applicants. Neither counsel made any reference to s131 LRA 2002 which provides that “(1) For the purposes of this Act, land is in the possession of the proprietor of a registered estate in land if it is physically in his possession, or in that of a person who is entitled to be registered as the proprietor of the registered estate.”

 

41.               Mr Wonnacott made the following attractively simple submission. The Respondents bear the burden of proof in establishing that they are in possession of the spur, but cannot discharge the burden because Mr Adams has drawn a boundary line without considering whether the spur is on the Respondents’ side of it. Furthermore, Mr Jones’ evidence draws the boundary along the wall of the eastern extension, thereby placing the spur within the Applicants’ title. I say that this is a simple proposition but was troubled by the analysis that the Respondents bear the burden of proof both as to the line of the true boundary and possession, all because this is an application to cure double registration, based on the point that the Applicants were registered with the spur within their title first. Mr Wonnacott says the point is academic because the Respondents cannot show that the spur is within their true paper title. Given the line for which Mr Adams contends, that is arguably a superficial contention.

 

42.               Mr Troup contends that the alleged mistake is only relevant if the Applicants can show there was a spur which should have formed part of their title ie the issue is not simply double registration, but title in the first place. He says therefore that it is of crucial, not of secondary importance, to locate the true boundary. He says the answer to this is reached by considering whether the true boundary was straight or a spur. He relies on Megarry & Wade at 7-133: “It is suggested … that there will be a mistake whenever the registrar would have done something different had he known the true facts at the time at which he made … the relevant entry.” An example is given: “Where a person has been registered as the proprietor of land that in fact belonged to another person because the plan annexed to a conveyance was inaccurate and incorporated neighbouring land” (though the precise cause of the mistake here was not really canvassed). In his final submissions Mr Wonnacott was prepared to accept this approach. If the boundary was straight, then the first registration was a mistake, as it was on the Respondents’ case. His problem with that submission is that he cannot show where the end of the wall was and Mrs Ward’s evidence on that point is important: the question given her evidence is not so much whether the wall was straight, but where it ended.

 

43.               Mr Troup submits that (i) the conveyancing documents (ii) the overlays and (iii) Mrs Ward’s evidence demonstrate that the mistake was on first registration of the Applicants’ title and that the Respondents’ general boundary is correct. In my judgment my findings on (ii) and (iii) support the Applicants’ case. As far as category (i) is concerned, he submits that the 1869 and 1923 plans expose the weakness of the spur claim because it does not exist. He submits that the detail on these plans (and the 1954 plan) contrast well with the 1976 plan used for the transfer to the Applicants’ predecessors: a large scale, sloppy line drawing, based on an OS plan (but showing the spur). He contended in closing that by 1869 the spur had disappeared but that submission is contradicted by later evidence including the 1970 OS plan (1/237), the 1940 OS plan (1/239), the Mackworth plan (1/82), the 1921 OS plan (1/240), the Laleston Estates plan 1910 (1/79), and the 1899 OS plan (1/238). It is inconceivable that all these later plans were incorrect, at least not without some better evidence to support Mr Troup’s submission. For reasons already explained I prefer Mr Jones’ analysis over Mr Adams. The plan at 4/tab 7 is different to that at 2/tab 23. On the basis of the documents in his category (i) overall, I am far from satisfied that the spur had disappeared by 1869.

 

44.               The question of which party bears the burden of proof is arguably decided in this case by the point that the Applicants have made an application and they have to show they are entitled to succeed. Either way, I have concluded in this case that it makes little difference. On the basis of my analysis above, the first registration of the Village Farmhouse showed in the filed plan general boundaries which on balance reflected the title of that property. The Respondents cannot show that it was so inaccurate as to be mistaken. They cannot show that the wall continued in a straight line so as to include the spur in their title. It follows that there being no other good reason on the facts or the evidence to support the Respondents’ analysis, the inclusion of the spur within their title was a mistake. As the Respondents cannot show (either within s131 or otherwise) that they are in possession of the spur then the protective provisions of Schedule 4 paragraph 6 do not apply. I must therefore give effect to the application as in my judgment there are no exceptional circumstances justifying a refusal to do so.

 

45.               In reaching this conclusion I have preferred and applied the approach adopted by Mr Troup ie that the mere fact of double registration is enough to enable the Applicants to succeed. I am not persuaded by Mr Wonnacott’s argument that the location of the true or general boundary is rather off the point [9]: if Mr Troup had shown that the spur was within the Respondents’ title then I consider that there would have been strong arguments against giving effect to the application; if the Applicants had no title to it, then that would have been an exceptional circumstance mitigating against making the order unless the spur was an area of land in real use by the Applicants. It would be pointless to give effect to an application on such mechanical grounds without considering the reality of the legal background. Mr Wonnacott’ s analysis of the meaning of “mistake” is very dry if I can use that expression as he relies purely on the fact of double rectification and a presumption in favour of the first registered proprietor, an approach which I do not think is supported by principle or practice.

 

46.               Two further points have to be dealt with in relation to the spur. The first point is the Respondents’ alternative submission (Amended Statement of Case paragraph 2.11 and skeleton argument) that they acquired title to the spur by adverse possession, as the result of the erection of the wall, and its use as part of the driveway together with maintenance of the area comprising the spur. This claim would, if made out, provide a good defence to the Applicants’ claim. However since it proceeds on the basis that the wall enclosed the spur, it must fail. There is nothing to establish that on the balance of probabilities, and the reverse is far more likely. Further, driving over the spur, and tarmaccing it does not in my judgment amount to factual possession and certainly not to the extent to which I would be able to infer an intention to possess as to which (apart from the wall suggestion) there is no sufficient evidence. In closing, Mr Troup made no particular submissions on adverse possession and he was right not to. He never particularised the dates on which the Respondents would rely, and the theory begs more questions than the Respondents decided to attempt to answer.

 

47.               The second theory advanced by Mr Troup in his skeleton argument (paragraphs 8-9) and Amended Statement of Case (paragraphs 2.9-10) but not pursued in closing, again rightly, was the theory that the erection of the wall by the Respondents’ predecessors in title together with the acquiescence of the Applicants for a period of at least 31 years (1923-1954), justifies the inference of a boundary agreement fixing the boundary along the line of the wall. Again this bald statement raises questions which the facts and evidence left unanswered, not least the important point in my judgment about the location of the southern end of the wall. Whilst a plausible assertion, there has to be something more to convert the assertion into reality, and nothing in my findings suggests that the idea has any application as a solution to the facts of this application.

 

The Respondents’ easement application

48.               Before turning to the facts and the law, I should make it clear that I disagree with Mr Wonnacott’s submission that the application is pointless. As a prescriptive easement the application will result in an entry containing the phrase “The extent of this right, having been acquired by prescription, may be limited by the nature of the user from which it has arisen.” Whether or not that leaves the parties to litigate “round two” (what precisely is the nature of the easement in terms of any residential development) might be unfortunate but could hardly be described as pointless, particularly when considered in the light of the practical significance of access as to opposed to the relatively (arguably) insignificant question of title in the rectification claim. It was plainly sensible to have both claims heard at the same time. Furthermore, the land over which the claim is made extends beyond the spur. The Applicants did not defend the application on the basis that the claim, as made in relation to land coloured brown on the application plan, was too extensive or inaccurate in relation to the defined area.

 

49.               On the facts Mr Wonnacott contends that the evidence introduced by the Respondents was simply too “thin” to succeed both in terms of evidence as to duration and on behalf of owners or occupiers of the pub to support the acquisition of a prescriptive easement. That submission overlooks the evidence of all the witnesses on both sides, taken together, including Dr Pike’s. As far as 20 years user is concerned, I am satisfied on the balance of probabilities that there has been continuous user for the purposes of deliveries by brewery lorries or drays since 1981 at the latest, and that the periods of interruption have in the context of the overall pattern, been too small to count as a defence. In particular as to periods of non-user I adopt the approach of Deputy Adjudicator (now Judge) Michael Mark in Robinson v Arthur where with his usual insight he considers the impact of relatively short periods of non-user over a lengthy period: see in particular his consideration of the relevant authorities in paragraphs 30-37. To the extent to which there were gaps when the pub was closed, therefore, I discount them as insufficient to provide any defence to the claim. The facts of this case come within the principles set out in Megarry & Wade, 28-058 on which Mr Troup relied.

 

50.               There was insufficient evidence as to user by residential occupiers of the upstairs accommodation and nothing on which I could properly base relevant conclusions as to such user. Further, although it is clear that there might have been occasional use by vehicles other than drays, eg by cars belonging to landlords, that evidence was insufficient to support a prescriptive claim so far as relating to that category of user. As the pub benefits from substantial car parking across the road, it would require direct evidence to deal with more varieties of user, particularly since any vehicles crossing the rear yard would be in conflict with customers accessing the rear beer garden and would therefore be limited in any event.

 

51.               The Respondents have therefore made out the basic requirement of twenty years’ continuous user for delivery vehicles. As Mr Troup submitted, the reality is that the vast majority of regular deliveries have taken place at the rear from 1981 (he submits 1976 but it is easier to pin the date to the period when the Applicants arrived [10]). I should add that I reject Mr Wonnacott’s submission that when the wall was demolished in 1976 the presumption is that it was demolished with the consent of the owner of the Village Farmhouse to make access to both properties easier so that the Respondents cannot rely on user between 1976-1981. As neat as that argument is, the evidence before me is that the owners of the Village Farmhouse had little to do with what appears to be a decision under statutory powers by Mid-Glamorgan CC to cut back the wall under the road widening scheme, and the evidence suggests that the scheme proceeded on the basis that the wall belonged to the pub.

 

52.               What really divided counsel at the end of the hearing was their competing submissions on the requirement for prescriptive user to be “as of right”. The standard tripartite test applies: see London Tara. The user was never secret. There is no evidence that it was ever forcible or that the Applicants tried to prevent it. In fact, forcible user would as Mr Troup submitted, be inconsistent with Mr Wonnacott’s submission (based on what he himself extracted from Dr Pike) the “live and let live” method of operation. There was no express permission from the Applicants, and no implied permission, according to Mr Troup. Mr Wonnacott submits to the contrary that the “live and let live” scenario is fatal to the Respondents’ claim. It is not the label but the facts which count.

 

53.               Mr Troup’s submissions in his skeleton argument on the “as of right” point were brief and to the point: there were no acts (by or on behalf of the Applicants) which were intended to be understood or were understood as amounting to permission to do something which otherwise would be a trespass: Beresford, London Tara. The written submission was made in answer to Mr Wonnacott’s point about the demolition of the wall amounting to an implied licence, but at the time he settled his skeleton argument he did not have the opportunity to develop his response to the submission made by Mr Wonnacott in his skeleton argument that as the result of Barkas “user is not as of right unless it is an actionable trespass. If it is not a trespass, it cannot create a prescriptive right.” Ie a claimant acquires a prescriptive easement by trespassing unless the owner of the servient land demonstrates in some way that although you are trespassing, you can do so. In this case there were repeated acts of trespass which neither side sanctioned in any way, expressly or impliedly in my judgment. To the extent that Mr Wonnacott submits that the analysis depends post Barkas purely on whether there was a trespass or not, I disagree.

 

54.               Mr Wonnacott’s starting point is that where a dividing wall is removed to make access to two adjoining properties easier, the situation is not that each owner is trespassing on the other’s land every time they cross over, but that they are using the land with each other’s tacit permission until one withdraws permission. The difficulty with this starting point is that apart from the fact that the only relevant evidence I have is that the wall was removed at the behest of Mid-Glamorgan CC so that it is extremely difficult to infer a tacit agreement between neighbours, I have clear evidence from Dr Pike and others as to the situation from 1981. The fact that more wall might have been removed than was required (the facts are unclear and I can make no relevant finding) does not add anything to the submission because the facts are just not available and it would be wrong to infer tacit agreements on that basis alone. However, even if it were open to Mr Wonnacott to argue that there was an implied licence in 1976 when the wall was removed, he accepted at the end of the hearing that the question whether there was a renewal of an implied licence would raise its head again in 1981 when the Applicants moved to the Village Farmhouse (compare London Tara). There were no conversations alluded to by either side and there is nothing in writing. Whereas the Applicants might have had an idea where their boundary was (in part due to the 11 foot right of way in favour of their neighbour to the north), I have discounted the evidence of the publicans on their views as to the boundary as in reality it seemed to me that they had no idea whether the brewery drays were (technically) trespassing on the Applicants’ land or not. In any event, what each side thought the position might be is irrelevant: it is not a subjective understanding which counts, the test is the objective/reasonable man approach: London Tara. Similarly the publicans had no apparent concerns about whether the Applicants were driving over the Respondents’ land or not, which they did, and certainly without express permission.

 

55.               Mr Troup’s closing submissions on the question whether the Respondents’ user was “as of right” were as follows. On the facts he contends that the removal of the wall does not support the finding of an implied licence on its own from 1981 (and in this case I agree) and there was no “live and let live” policy, and if there was, the court could not and should not imply a licence for the use of the access road from such a state of affairs. I find that “live and let” live is a fairly useful if general description of what was going on: the neighbourly version of shrugging shoulders, moving away from confrontation – letting things be, using a piece of land openly for mutual benefit, without making an issue of it. On the facts of this case that amounts to acquiescence, not the basis for implying a licence. I agree with Mr Troup’s analysis. He submitted that the correct test for ascertaining the existence of an implied licence remains to be found in Beresford, as per Lord Walker at paragraph 75: “In each instance [of implied consent] there is a communication by some overt act which is intended to be understood, and is understood, as permission to do something which would otherwise be an act of trespass.” Mr Wonnacott in reply urged me to be careful about applying that test in this case post Barkas, but I do not see why. There was, on Dr Pike’s own evidence, nothing to amount to such a communication, and certainly nothing that Mr Wonnacott relied upon in closing. It is a perfectly sound expression of the basis on which many authorities have been decided: see eg London Tara, a benchmark decision which I follow. Mr Troup also relied on paragraphs 75-79 of London Tara. He stressed the difference between “passive inactivity/acquiescence” on the one hand and “permission communicated” on the other hand. Lord Walker emphasised the well recognised principle that “A landowner who wishes to stop the acquisition of prescriptive rights must not acquiescence and suffer in silence.” In my judgment this analysis favours the Respondents. I cannot see the difference between acquiescence and the “live and let live” approach admitted to by Dr Pike. As Mr Troup pointed out, Lord Walker’s analysis was supported by Lord Neuberger MR in Tara, paragraphs 27, 38-43, and Lewison LJ at paragraphs 86-87. He therefore argued that implied permission requires some overt factual basis: “live and let live”, he argued, is not a fact but an attitude (which might be going further than he needs to), and one can see that it does not indicate to the neighbour that user is being permitted. As he said (correctly), there is no evidence in this case of anyone doing anything other than driving over each other’s land. By the same token, Mr Troup had to accept that on his analysis the Applicants had acquired a similar easement over the Respondent’s land.

 

56.               Turning to Barkas, Mr Troup submits that Lord Neuberger in paragraph 35 approves the passage of Lord Walker’s judgement in Beresford paragraph 79. He disagrees with Lord Scott’s decision (see paragraphs 36-38), not Lord Walker’s, and by implication on Mr Troup’s analysis, Lord Walker’s decision in Beresford survives Lord Carnwath’s decision at paragraphs 70-86 of Barkas (see eg paragraphs 70-71). In distinguishing between “as of right” and “by right” Lord Neuberger is emphasising the permissive nature of the user in Beresford, the reason why the UKSC took such a strong view of it in Barkas. In short, Mr Troup’s submission is that Barkas, in overturning Beresford and concluding that the decision was wrong, does not overturn the well established principles as to acquiescence/implied permission. On Mr Troup’s analysis, this is a simple acquiescence case, and I agree.

 

57.               Barkas concerned on appeal the issue whether a playing field should be registered as a village green under s15 Commons Act 2006. So: was the relevant user “as of right” rather than “of right” or “by right”? So far as the land was a field maintained for recreational purposes under the Housing Act, with the power for the local authority to appropriate land for public use, the background to the case is very different to this, and it is important to bear in mind that the outcome of Barkas had much to do with being distinguishable on the facts from Beresford, as well as the fact that the UKSC decided that Beresford was wrongly decided on the facts. But nothing else was overturned or overruled. There is nothing in Barkas to suggest that the Supreme Court decided to throw the baby out with the bathwater, and overrule the line of authority of which London Tara provides a good recent example. I particularly bear in mind that leading judgments in both cases were given by Lord Neuberger.

 

58.               Mr Wonnacott of necessity, on the facts, takes a more extreme view of Barkas and submits that it provides support for his submission that a “live and let live” state of affairs means that I must find (by implication) that the Applicants granted the Respondents permission to drive over the brown land. In my judgment he is taking Barkas and attempting to use it to support a change in law and principle which is not justified: the correct analysis for a case such as this remains London Tara. His starting point is that as there is therefore no evidence of trespass ( “live and let live”), the user could not be as of right: where there is implied or express permission, there is no user as of right. But he cannot show there was any implied permission. The difference boils down to this: Mr Wonnacott says there is no trespass where the owner of the servient tenement quietly gets on with life. Mr Troup says there is trespass unless the servient owner can establish some over act, including non-verbal acts, which can be understood as permission to do something which would otherwise be a trespass. Mr Wonnacott asserts that the McGregor case (p103-4, 107) helps on circumstances which go to implied permission, while accepting that it was not cited in Barkas or Beresford (or London Tara either). He relies on Lord Sumner at p107 to support his submission that the Respondents were not trespassing – the use of the driveway was no more than “friendly commerce.” I would be reluctant to rely on McGrigor which has all the appearance of an authority introduced to bolster a point: if it is such a useful case then I am surprised it is not cited in the more relevant cases I have to rely upon. Neither do I find the passages cited particularly helpful in content, dealing as they do with an arguably semantic analysis of what another judge said. For my purposes, this case can and should be decided without McGregor. It does not assist the Applicants.

 

59.               Mr Wonnacott also submits that the fact that the behaviour was mutual makes a difference: this point derives from arguments in London Tara about the effect of licences. I reject the submission that the mutuality of neighbouring behaviour removes the requirement to demonstrate permission by some overt act. In this case I find the effect of mutuality to produce mutual acts of acquiescence with the usual outcome, though I am far from concluding that would always be the case. What matters in this case is the evidence that I heard, and the fact that the relevant user has been going on over each party’s land for many years without a single act that I can see which comes into the category of “overt”.

 

60.               In the circumstances the Respondent succeed on their counter-application.

 

 

 

Costs

61.               As both parties have succeeded on their applications I direct that both file and serve submissions on the principle of any costs award they seek by 4pm 31 ^st July 2014. Unless either side wishes to demonstrate any particular point, those submissions need not be accompanied by costs schedules.

 

BY ORDER OF THE TRIBUNAL

 

 

8 ^TH JULY 2014