REF/2014/0799

 

PROPERTY CHAMBER, LAND REGISTRATION DIVISION

FIRST-TIER TRIBUNAL

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

(1) MELVIN ALLAN KNIGHT

and

(2)   YVONNE KNIGHT

 

APPLICANTS

 

and

 

CHALGROVE PARISH COUNCIL

 

RESPONDENT

 

 

Property Address: Land on the south side of High Street, Chalgrove, Oxfordshire

Title Number: ON172350

 

 

Before: Judge Michell

 

 

Sitting at: High Wycombe Magistrates Court

On: 7^th to 9th July 2015

 

 

Applicant Representation: Mr Thomas Talbot-Ponsonby, counsel, instructed by DWF LLP Solicitors

Respondent Representation: Mr Greville Healey, counsel, instructed by Wilmot & Co. Solicitors

 

___________________________________________________________________________­

DECISION

___________________________________________________________________________

 

CLAIM TO RIGHT OF WAY BY PRESCRIPTION- PRESCRIPTION AT COMMON LAW AND LOST MODERN GRANT-  

  

 

Cases referred to

Hollins v. Verney (1884) 13 QBD 304 at 315

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

Diment v. Foot [1974] 1 WLR 1427

Smith v. Brudenell-Bruce [2002] 2 P & CR 4

Barton v. The Church Commissioners [2008] EWHC 3091 (Ch)

Bennett v. Winterburn  2015 UKUT 0059 (TCC)

 

 

1.         The central issue in this case is whether the Applicants, Mr and Mrs Knight have a right of way to pass with vehicles and horses between High Street, Chalgrove and a field owned by them over an area of land to which I shall refer as “the Strip”.  The Strip is  for all practical purposes, part of the village recreation ground and the access to the recreation ground.  The matter comes before the Tribunal in this way.  The Applicants have the benefit of a caution against first registration over the Strip of land.  The Respondent, the Chalgrove Parish Council wishes to register title to the Strip and has applied to cancel the caution.  Mr and Mrs Knight object to the cancellation of the caution on the grounds that they have the benefit of a right of way, including a vehicular right of way and a right of way with horses, over the Strip.  The Parish Council accepts that Mr and Mrs Knight may walk over the Strip but asserts that Mr and Mrs Knight do not have a right of way with vehicles and horses.  HM Land Registry referred the matter to the Tribunal for determination.    

 

The Site

2.         I inspected the land over which the Applicants claim a right of way and adjoining land accompanied by the parties and their representatives.  High Street, Chalgrove runs in a north-east south-west direction.  The Crown is a public house on the south side of High Street.  A roadway runs from High Street along the south east side of The Crown.  On the other side of the roadway is a green on which stands the village war memorial.  Beyond the area of green with the war memorial, the roadway passes beside the garden of a cottage.  At a point near the northwest corner of the cottage garden, there is a gate across the roadway.  Beyond the gate, the roadway passes into a tarmaced area used as a car park.  The car park borders on its south east side the grounds of the village primary school.  On the east side of the car park and close to the southwest corner of the school grounds there is a gate providing vehicular access into the village recreation ground.  Concrete posts and bollards run along the remainder of the east side of the car park and along the south side.  Concrete kerb stones run along the eastern and southern edges of the car park.  Along part of the southern edge of the car park there is a dropped kerb of approximately the width of a vehicle.  In the south west corner of the car park there is a gate leading into a field called “Hardings Field”, which is now used as the school sports ground. The remainder of the west edge of the car park is bounded by a hedge.  The land to which I refer as “the Strip” comprises the roadway, the car park (or part of it, since the eastern side of the car park may not be included in the land the subject of the caution against first registration) and a strip running south from the car park to a bridge over a stream at the far southern end.  The latter strip borders on its west side a wide wooded ditch that runs beside the hedge on the eastern boundary of Harding’s Field. There is little or nothing on the ground to mark the eastern boundary of this strip.  It appears on inspection to be part of the recreation ground.  It is for the most part covered in grass and although my attention was drawn to a couple of areas where there are some stones in the ground, the strip does not appear to have the sort of hard surface to be expected of an area used regularly for the passage of vehicles.  On approximately the eastern edge of the strip of land there are 3 or 4 old willow trees.  The strip meets towards its southern end a lane which runs alongside the southern end of the recreation ground to a pedestrian gate into the churchyard of Chalgrove parish church.  The land alleged to have the benefit of the right of way is a field lying to the south of the lane to the church.  I shall refer to this field as “Knights’ Field”.  Beyond the point where the Strip meets this lane, the Strip continues southwards between Knights’ Field on the east and Harding’s Field on the west until it meets a bridge over a stream, beyond which lies a further recreation ground.  The area to the west of Knights’ Field is now higher than the land on either side.  This area does have a hard stone surface.  There is a gate in the fence along the west side of Knights’ Field. The ground on the immediate west side of the gate slopes up quite steeply away from the gate.  Knights’ Field is bounded to the south and east by a stream and, at the north east end, by what is now the garden of Mr and Mrs Knight’s home, 4 St. Mary’s Close.  Knights’ Field was formerly two enclosures but it is now one, although at the time of my inspection it had been divided into a number of different areas by wire and electric fences.  St. Mary’s Close is a modern development of four detached houses built in the early 1980s. Mr and Mrs Knight have recently added an extension to their house but their remains room at the side of the house to drive from St Mary’s Close, along the side of the house, into the garden and hence into Knights’ Field.     

 

Terminology

3.         The strip of land over which Mr and Mrs Knight claim a right of way is known (as regards that part to the south of the car park) as “Old Ford”.  The part of the strip running to where it joins the lane leading to the gate into the churchyard is together with the lane to the churchyard, known as “Frog Lane” or “Frogmore Lane”.  The area where the strip passes between Hardings Field on one side and Knights’ Field on the other was referred to by a number of witness as “the Baulk”.  One witness also used the term “the Baulk” to refer to a slight ridge of slightly higher ground running from the school over the recreation ground to meet the area between Harding’s Field and Knights’ Field.  Except where I expressly so state, I shall use the term “the Baulk” to refer to the area between the two fields only.        

 

Title to Knights’ Field

4.         Mr and Mrs Knight were registered as proprietors of 4 St Mary’s Close, including

Knight’s Field, under title number ON83812 on first registration on 14^th June 1983.  Entry number 2 in the property register states as follows

            “The land has the benefit of the rights granted by but is subject as mentioned in a Conveyance of the land in this title and other land dated 13 August 1957 made            between (1) Joynson Holland and Company Ltd. and (2) Edward Frederick Berkeley   Monck in the following terms:-

            “Together with and subject to all rights of way water light drainage other easements or      quasi-easements privileges and advantages (if any) as are now used and enjoyed or are    intended so to be by the property hereby conveyed or assigned in connection with     adjoining or neighbouring properties or by such adjoining or neighbouring properties in connection with the property hereby conveyed or assigned”.   

Mr and Mrs Knight purchased 4 St Mary’s Close and Knights’ Field from Walgray Limited.  That company had bought the land a short time earlier from Mr and Mrs Edward Monck.  Mr and Mrs Monck had acquired land at Church Farm, Chalgrove in 1957.  The land they acquired included the land that was to become the site of St Mary’s Close and also an adjoining farm cottage, Knights’ Field, Harding’s Field and other land.  They sold Harding’s Field to Oxfordshire County Council in 1973.

 

Registration of the Caution

5.         On 6^th December 1994 Mr and Mrs Knight registered a caution against first registration of the Strip.  They made a statutory declaration in support of the application for registration of the caution.  The statutory declaration was not in evidence but part of the statutory declaration is reproduced on the register of the caution title.  That part reads as follows

            “[4 St Mary’s Close] has the benefit of the rights set out in Entry Number 2 of the             Property Register of Title Number ON83812.  The rights include a right of way to    pass and repass over the track shown edged red on the plan attached to this Caution at      all times of the day and night with livestock, including horses, and on foot, for the             purpose of gaining access from the High Street and The Green, Chalgrove, to the        Property.  This right has been exercised by me and Yvonne Knight since we acquired             the Property in October 1983 and also by our predecessor in title who acquired the            land in 1957 and by his predecessors in title”.

The track referred to in the statutory declaration is the Strip.  It is noteworthy that Mr Knight did not declare that 4 St Mary’s Close had the benefit of a vehicular right of way over the Strip or make any mention of use with vehicles. 

 

Title to the Recreation Ground and Strip

6.         By a Deed of Exchange made on 28^th December 1950 Mr Richmond Noel Richmond-Watson conveyed to Chalgrove Parish Council

“All that parcel of land …. [which] contains 5.357 acres or thereabouts and for the purpose of identification is delineated on the plan annexed hereto and thereon edged red”.         

The land conveyed by this deed is the land which is now used as the village recreation ground.  It does not include the Strip. 

 

7.         The recreation ground and the Old Ford were both registered under the Register of Town or Village Greens.  The Parish Council was registered as owner of the Old Ford under section 8(3) of the Commons Registration Act 1965 following a decision made by the Chief Commons Commissioner dated 21^st December 1973, the entry being made in the register on 28^th February 1974.  The registration does not include either the area called “the Baulk” lying beside the western boundary of Mr Knight’s field and the river to the south or the lane leading alongside the north-eastern boundary of Mr Knight’s field to the parish church.  The effect of registration was to vest title to the Strip in the Parish Council under section 8(4) of the 1965 Act.

 

Early History

8.         Mr and Mrs Knight called Mr Robin Darwall-Smith, the archivist of Magdalen College, Oxford to give evidence as to the contents of the archives of Magdalen College concerning the Old Ford.  They considered this to be relevant to the issue of whether a right of way had arisen by prescription at common law.  Magdalen College used to own land within the village of Chalgrove, including the manor of Chalgrove and consequently has in its archives various historical maps relating to the Chalgrove area. Mr Darwall-Smith produced a map held by the College and dated 1822.  The map showed an area of land leading from the highway south past The Crown, including the area referred to in these proceedings as the Old Ford and, including the lane leading to the church and also the Baulk.  The number “180” is written on the widest part of this area and that area numbered 180 is referred to in a book of reference in the College’s records as “Frog Lane”.  There was no evidence that the Old Ford/Frog Lane had ever been owned by the College.  Two enclosures are shown on the map, occupying the area now known as Knights’ Field.  The route of access to these fields is not shown on the map.           

 

Evidence as to Use

9.         The Applicants rely on evidence of user of the Strip as a means of access to and egress from Knights’ Field by their predecessor, Mr Monck and by themselves and others acting on their instructions.   

 

Use by Mr Monck

10.       Mr Monck did not give evidence.  I was told he was too ill to do so (though no medical evidence was produced).  No witness statement of Mr Monck was in evidence.  The Applicants seek to rely on the contents of a statutory declaration made by Mr Monck on 25^th January 1995. Mr Monck declared that in 1957 he and his wife purchased Church Farm, including the land now owned by Mr and Mrs Knight and the field on the west side of  Frogmore Lane. In 1973 they sold the field on the west side of Frogmore Lane (that is Harding’s Field) to Oxfordshire County Council but they continued to graze animals on it under a grazing licence until 1980.  Mr Monck said that he used Frogmore Lane as a means of access to Knights’ Field and the land sold to Oxfordshire County Council from 1957 to 1982 and that he did so without consent or interruption.  He said that in 1962 he replaced gates, one being in the position of the present gate from Knights’ Field onto the Baulk and the other being a gate into the field opposite and being positioned approximately opposite the gate from Knights’ Field.  He said that he used Frogmore Lane to pass between the public highway “on foot with or without animals of any kind including horses for all purposes connected with the use of [Knights’ Field] and Harding’s Field] for agriculture”.    He made no mention of use with vehicles.

 

11.       The statutory declaration was obtained by solicitors acting for Mr and Mrs Knight in the context of a dispute with the Parish Council concerning the use of the Strip.  In his witness statement, Mr Knight said that he felt it necessary to obtain the statutory declaration from Mr Monck “in light of the Respondent’s attempts to deny that we have had a right of way to use and access Frogmore Lane on foot, by horse or with vehicle”.  In re-examination, Mr Knight said that Mr Monck’s statutory declaration did not deal with vehicular use because there was at that time no issue about use with vehicles.  He also said that he did not drive over Old Ford in the period before 1994 and that for this reason there was no need for Mr Monck’s statutory declaration to refer to use with vehicles. 

   

 12.      Mr Knight gave evidence as to use of the Strip by Mr Monck.  Mr Knight moved to the village in 1973, living at 28 Church Lane, a house opposite Church Farm where Mr Monck was then living.  He had no prior knowledge of the land before 1973.  He said that in 1973 there was a gate from Knights’ Field onto Old Ford.  Mr Monck erected that gate.  He did not.  Mr Knight said that Mr Monck ran a horse livery business and that Mr Knight helped Mr Monck move the horses about 6 or 8 times a year.  He said that he rode in a vehicle with Mr Monck down Old Ford to gain access to Knights’ Field.  He said that Old Ford was accessible and there was no bog, reed, brambles or barbed wire to prevent access.  Mr Knight did not himself give evidence of his having seen horses on the Strip when Mr Monck owned Church Farm.  When it was put to him in cross-examination that the Parish Council was during Mr Monck’s time at Church Farm, complaining of horses being ridden on Old Ford, he said that the Parish Council did not complain about horses being ridden on Old Ford.  He said that the Parish Council’s complaints were about horses on the area of the recreation ground not including Old Ford.

 

13.       Mr Knight produced a copy from a published book of an aerial photograph said to have been taken in 1970 and which he said showed “no sign of flooding or anything else which would make Frogmore Lane impassable”.  In fact the copy produced in evidence is too unclear for any such conclusions as to the state of Old Ford at the time of the photograph to be drawn.  

 

14.       Mrs Knight gave evidence.  Mrs Knight said that Mr Monck kept horses in both Knights’ Field and Harding’’ Field but she did not see him take horses between the two fields over Old Ford.  She did see Mr Monck walk horses down Old Ford.  Mrs Knight said that there had been a gate from Knights’ Field onto Old Ford since at least 1973.  Mrs Knight said that in 1983 when she and her husband bought the field and the site of their house, there were no bollards to prevent driving up Old Ford.  Bollards preventing driving straight up Old Ford were erected in the late 1980s or early 1990s when the car park was resurfaced.

 

Use by Mr Knight

15.       Mr and Mrs Knight bought the site of their house and Knights’ Field in 1983 from Walgray Ltd., a company which had purchased the land from Mr Monck. Mr Knight confirmed the truth of the contents of his witness statement.  Mr Knight exhibited to his witness statement a copy of a statutory declaration he made on 16^th January 2014.  In the statutory declaration, he said that he and his wife had used the Strip for the benefit of Knights’ Field since October 1983; and that they used the Strip for access on foot and with vehicles.  He gave examples of use with vehicles, being use by an articulated lorry bringing storage containers onto Knights’ Field, by horse boxes, by vets vehicles treating horses; by trucks bringing hay and straw for the horses “about once a month”; and by the farrier about once every eight weeks.  He said that they used the Strip regularly and to pass and re-pass at all times of day and night.    In his witness statement, Mr Knight said that from 1986 the Knights had always allowed residents of the village to use the Field to keep horses and that since 1986 a total of 9 residents had used the field to keep horses in or to ride horses belonging to the Knights. In cross-examination Mr Knight said that the first time horses were kept in Knights’ Field was in 1988 when Sarah Bloster had a horse on the field.  The horse was a pony called Florry.  In 1990 Mr Knight and his wife bought Florry. He said that from 1990 to 2010 Florry was ridden out along the Old Ford “on a daily basis” and that since then, Florry has been led out over the Old Ford for exercise about once a month.   From 1994 to 2000 Miss Carly Fillis would ride  Florry every weekend and often on a daily basis during the summer holidays. Florry was taken out to horse shows in a horsebox which was towed by a vehicle along Old Ford.  He said that all who kept horses in Knights’ Field or rode the Knights’ horses would ride the horses over the Old Ford to access the field and that this was the only way they used to access Knights’ Field.  They never rode through the Knights’ garden and over St Mary’s Close.

 

16.       Mr Knight also said that from around 1987 until 1993 he used the Field to rear cattle, keeping around 8 to 10 cattle in the Field at any one time and making about 5 trips a year to market to buy calves, which were then brought into the Field in a trailer towed down Old Ford.  Once a year, the calves, having gained weight, would be taken out of the Field in a trailer driven down Old Ford.   The access gate to the recreation ground was often unlocked but when it was locked, Mr Knight said he would get a key from The Crown pub.

 

17.       Mr Knight also said that he allowed his brother-in-law, Mr David Munro to use Knights’ Field for “storing” livestock, about 2 to 4 times a year between 1986 and 1989 and that Mr Munroe accessed Knights’ Field with his Land Rover and cattle trailer by driving along the Strip.

 

18.       As to bollards around the car park preventing vehicles from being driven in a straight line from Old Ford onto the car park and vice versa,  Mr Knight said that the bollards were not erected until the late 1980s or the early 1990s.  He accepted that once the bollards had been erected, he had to deviate off the line of Old Ford onto the recreation ground.  He was able to pass through the gate by the school boundary because the gate was often left open though he said that in about 1993 the Parish Council began to lock the gate with a padlock more regularly. Mr Knight said he would ask for a key from The Crown whenever he needed vehicular access and the gate was locked.  Mr Knight said that when the gate at the north end of the car park was installed, the gate into the recreation ground was not always locked and that the gate at the north of the car park was open from 7 am to 7pm so vehicular access could be gained during this period.  Mr Knight did not say when the access gate to the car park was erected.

 

19.       Mr Knight said that in 1996, following the destruction by fire of 5 stables, he instructed Warwick Builders to supply and erect pre-fabricated stables in Knights’ Field.  The stables were delivered on a large lorry, which was driven down Frogmore Lane.  Mr Knight did not know if the gate into the recreation ground was locked when the stables were delivered but he said that if it had been, he would have obtained a key from The Crown.  The stables were erected at the end of Knights’ Field furthest from the Baulk.

 

20.       Mr Knight also gave evidence of an occasion in 1996 when a slaughterman drove down the Strip to put down and remove an injured horse in Knights’ Field.  He said Mrs Knight obtained a key from The Crown to open the gate on this occasion.

 

21.       Further, Mr Knight gave evidence that in 2007 he  hired a lorry to transport two storage containers to Knights’ Field.  It is common ground that the lorry came down the Strip and one container was subsequently removed by the same route.     

 

22.       Mrs Knight said that she and her husband were driving vehicles over Old Ford at the time the statutory declaration was obtained from Mr Monck. Later in her evidence she said that she had not herself ever driven a vehicle over Old Ford.  Mrs Knight in 1996 asked someone in the Crown public house for a key to the gate onto the recreation ground so that the horse slaughterer could access Knights’ Field.  She took the key, unlocked the gate and took the key back.

 

23.       Mr Matthew Knight is the Applicants’ son.  He gave evidence.  By his witness statement, he confirmed the contents of his father’s witness statement so far as the facts were within his own knowledge.  He gave further oral evidence.  He was born in 1980 and lived at 4 St Mary’s Close from 1984 to 2003.  He believed he could recall when he was young being driven in a vehicle by his grandfather along Old Ford, going straight down.  He gave evidence that a Mr Guard used Knight’s Field from 1994 to 2000, keeping a horse and a pony there.  The horse and pony were cared for and ridden by Mr Guard’s daughter and her friend, Carly Fillis.  The horse and pony was taken to a lot of horse shows in a Ford Transit horsebox owned by Mr Guard.  Mr Guard drove the horsebox down Old Ford.  Mr Matthew Knight did not know if Mr Guard had asked the Parish Council for permission to drive over Old Ford.    

 

24.       Mr David Munro is married to Mr Knight’s sister.  He gave evidence that between 1986 and 1989 he grazed sheep on Mr Knight’s field.  The sheep were on the field for periods of two months between May and September.  This would involve him going to the field to either take or remove the sheep about 4 times per year during the period.  His clear evidence was that he drove down Old Ford and that there was an access gate into Knights’ field from Old Ford.  The gateway into the field was more or less level with the Old Ford.  The bridge at the end of Old Ford had not then been constructed.  There were no gates or bollards across Old Ford where the car park is now.   

 

25.       Mrs Penelope Burnham-Packham gave evidence.  She brought her horses to graze in Kinghts’ Field in February 2013.  She said that Mr Knight then told her that he had a right of way with horses over Old Ford, though he did not mention a right of way with vehicles. However, in cross-examination, Mrs Burnham-Packham said that Mr Knight had told her “from the beginning” that he had always driven vehicles down the Strip.   Prior to 2013 she had seen people with vehicles driving over the Strip and had assumed there was a right of way to Knight’s Field.  In cross-examination, she said the vehicles she had seen were recreation ground maintenance vehicles, vehicles being used in connection with the construction of a children’s playground on the recreation ground and vehicles being used to carry minature cars onto the recreation ground, where they were raced.  She said that until the late 1990s there was a rusty red gate beside the school grounds, giving access to the recreation ground.  She said that the gate was not always locked or shut and had been in various states of disrepair.  Her evidence was not clear as to when the bollards first appeared.  She said at first that it was towards the end of the 1990s but when it was put to her that the bollards were there before 1988, she said she could not recall the date.  Her evidence was also unclear as to the location of a gate from the car park onto the Strip or the recreation ground.  She said both that there was a rusty red gate straight ahead at the end of the car park when looking from the vehicular entrance into the car park and that the gate was on the side of the car park by the school, though it was clear that she did not intend to say there were gates in both places either at the same time or different times.  She just could not really recall where the gate was.

 

26.       Mrs Heather Selwood gave evidence.  She had no knowledge of Old Ford before February 2013.  She went with Mrs Burnham-Packham to view Knight’s field in January 2013, getting there by walking over the Strip.  Her evidence was that since February 2013 she had ridden horses with Mrs Burnham-Packham along the Strip to and from Knights’ Field.  

 

Evidence for the Parish Council

27.       Mr Steel-Clark gave evidence for the Parish Council.  He has lived in Chalgrove since 1956 when he was 5 years old.  His recollection was that the Old Ford was substantially overgrown with parts always under water from 1956 until some time in the mid to late 1960s when it was drained.  From 1976 to 1979 there was an archaeological dig in Harding’s field, at which Mr Steel-Clark assisted from time to time.  During 1977, he spent most of the summer at the dig. By this time, the Old Ford had been filled in and the ground levelled and the car park was in existence.  Mr Steel-Clark believed that the bollards were erected in the 1980s.  He did not recall seeing any vehicular use or passage of animals along the Old Ford in connection with Knights’ Field while Mr Monck owned Knights’ Field.  He often used the car park and went to the village hall, which is on the recreation ground but he had never seen any vehicles on the Strip or the recreation ground apart from on some special occasions.  He was not aware of any use of the Strip for vehicular access by Mr Knight. 

 

28.       Mrs Gillian Lester was clerk to the Parish Council between May 1982 and June 2009.  She has lived in Chalgrove since 1973.  Mrs Lester recalled that there had been a problem with horses being ridden from Chibnall Close (which is on the southeast side of the recreation ground) over the recreation ground and she had written to Mr Knight on 16^th October 1985 on behalf of the Parish Council to ask him to stop using the recreation ground with horses. She recalled that there had been some bollards around the car park ever since she moved to the village.  There were two occasions when additional bollards were added.  Bollards were replaced in 1981 and more bollards, in the form of concrete posts were installed in 1985.  Wire was threaded though holes in the posts to form a fence.  The kerb stones around the car park were added when the car park was resurfaced.  She believed there were some small bollards in the area where the dropped kerb is. Mrs Lester said that it was in 1993 that Mr Knight removed a section of fence on the boundary between Knights’ Field and the Baulk. That is the date on which the removal of a section of fence is mentioned in the Parish Council minutes. On 4^th October 1983 Mrs Lester wrote to Mr and Mrs Ireland and to Sally Higgins who were believed to be the owners of horses kept in Kinghts’ Field telling them that horses were not allowed on the recreation ground; that there was no legal access from Knights’ Field onto the recreation ground; and that horses should use the access to field via the Knights’ house in St Mary’s Close.  Mrs Lester wrote to Mr Knight on 25^th August 1994 on behalf of the Parish Council to inform him that a fence would be erected across the gateway from Knights’ Field onto the Baulk. She said that the Parish Council later agreed to remove the fence and gave temporary permission for the horses to be removed from Knights’ Field through the gateway and over the Baulk.  Permission was given because the field was flooded and there was concern the horses might develop foot rot.  The Parish Council then took advice from the Head of Legal Services for Oxfordshire County Council.  He wrote on 30^th September 1996 advising that the Parish Council could not grant and Mr Knight could not acquire by prescription a right of way with horses over the recreation ground because taking animals over the recreation ground would be an offence.  Solicitors for the Parish Council wrote to Mr and Mrs Knights’ solicitors on 4^th December 1996 stating that the County Council had “decided” that no right of way with animals existed and complaining of horses from Knight’s Field being taken over the recreation ground, most recently on 21^st November 1996 when

“horses had been walked along the church path and over the corner of the recreation ground to Chibnall Close”.

Mrs Lester had no recollection of having given Mr Guard permission to drive over Old Ford.  Permission would only have been given if a written application had been made and considered by the Parish Council.  There were notices on the right hand side when entering the car park from the north in the same style as the notice by the pavilion, stating “no horses”.  Mrs Lester ordered the notices and had them put up.  She believed they were put up in the 1990s.  There had previously been displayed on a notice board a copy of the recreation ground byelaws.  Mrs Lester confirmed that a set of keys for the gate into the recreation ground was kept at The Crown for emergency use.

 

29.       Mr Kenneth Batley gave evidence.  He is 89 years old.  He was born and grew up in Chalgrove and has spent all but 9 years of his life, living in Chalgrove.  He grew up in a house that backed onto a playing field, which is now part of the recreation ground.  He has been a member of the Parish Council since 1957, having been Chairman and Vice-Chairman for various periods.  He recalled that when he was a boy the was a barbed wire fence across the northern end of Old Ford.  The fence was just to the south of two gates, one on the west which led into Hardings Field and the other on the east which gave access into the recreation ground.  As a boy, Mr Batley delivered newspapers to two cottages which lay on the north side of the lane leading from Old Ford to the church.  There was only access on foot to these cottages, that access being over a footpath which ran over higher ground over the recreation ground crossing onto the point where the Old Ford and the lane met by a stile.  Mr Batley recalled that the Old Ford was covered with water all year round except for the southern end and the southern end was itself often flooded. 

 

30.       Mr Batley said the Old Ford was drained in or around 1969 to 1970 when the education authority agreed to help with the drainage as part of an arrangement whereby the education authority acquired some land at the north of the recreation ground to extend the school.  He could not recall exactly when the bollards around the car park were installed but he believed it was shortly after the Old Ford was drained.  Later taller concrete posts were erected around the car park with wire running between the posts. The gate on the east side of the car park was erected at the same time in order to give access into the recreation ground.  The gate remained in position until it was replaced with a moveable chain-link fence.  Both the gate and the fence were secured by padlocks but there were constant problems with the locks being vandalised.  A key for the gate was left at The Crown for use in emergencies.  The gate at the north of the car park leading into the car park from the lane beside The Crown was erected a few years ago and is kept locked during the night.  He did not recall when or why the dropped kerb was installed. He said there were notices saying “no horses” by the car park.  

 

31.       Mr Batley said that in 1973 Mr Monck was given permission orally by the Parish Council to cross the Baulk to get between Harding’s Field and Knights’ field and that Mr Monck then cut down sections of the hedges of both fields to enable him to get onto the Baulk and from there into the other field. 

 

32.       He said that the car park was initially a grassy area used for parking and was tarmaced at a later date.  The second smaller car-park in the north east corner of the recreation ground was not put in until approximately 1990 to 1991.                                        

 

33.       The Parish Council put up a wire fence across the opening from the Baulk into Knights’ Field in 1994 but subsequently took it down for humanitarian reasons to allow the horses out of the field.  Mr Bartley thought the horses might not have been able to have been taken out of Knights’ Field via the entrance to Mr Knight’s house because the field may have been flooded except for the higher ground nearest the Baulk. 

 

34.       Mr Bartley commented on a letter written by Jo Donoghue, the Parish Clerk to Mr Knight on 17^th September 2013.  In that letter, Jo Donoghue had written that that the Parish Council had been corresponding with Mrs Burnham-Packham about her request for a key to the gate into the recreation ground.  She went on to say

“Whilst the Parish Council recognise your Right of Access, they have been contacted by their solicitor who wishes to be involved in any agreement made with regard to the gate key due to the ongoing Land Registry application. 

Mr Bartley said Jo Donoghue had made a mistake in that letter. The Parish Council had never recognised that the Knights had any right of access over the Old Ford.

 

35.       Mr Michael Relph was the landlord of The Crown from 1987 to 1996.  He could not recall having had a key to the gate into the recreation ground.  He used to erect a beer tent for the annual village May Day festival on the southern part of the car park.  Vehicles needing access to the recreation ground for the May Day festival entered through the gate in the northeast side of the car park.

 

36.       Mr David Turner has been a member of Chalgrove Parish Council since 1981.  He  moved to Chalgrove in 1980.  He recalled that there were bollards around the car park then and that later, the Parish Council installed more bollards and put up signs saying “no cars, bikes, horses”.  He did not know when or why the dropped kerb had been installed.  He understood that a key to the gate into the recreation ground had been left with the landlord of The Crown so that vehicles could have access in an emergency. He said that the fence erected in 1994 across the opening from Knights’ Field onto the Baulk was removed for humanitarian reasons and that the Parish Council had never accepted that the Knights had a right of way over the Old Ford.  Jo Donoghue had made a mistake in her letter of September 2013 in stating that the Council accepted the Knights’ “right of access”.   

 

37.       The Parish Council obtained and served a witness statement from Mr Guard.  In that statement, Mr Guard said that he kept a pony on Knights’ Field from 1994 to 2000; that he on one occasion brought hay to the field by vehicle passing down the side of Mr Knight’s house; and that on other occasions he drove down to Knights’ Field over the recreation ground having obtained the permission of the Parish Council and with the gate being unlocked for him and locked when he left.

 

Parish Council Minutes

38.       Many pages of minutes of meetings of the Parish Council together with copies of letters written on behalf of the Parish Council, were in evidence.  The minutes contain entries relevant to the condition of the Old Ford in the 1960s and 1970s; use during the time of Mr and Mrs Monck’s ownership of Church Farm; use during Mr and Mrs Knight’s ownership of Knights’ Field, including evidence as to use with horses; the erection of bollards; and the maintenance and locking of the gate from the car park into the recreation ground.  I set out below evidence from the relevant minutes as they relate to the various factual issues.  

 

39.       A minute of the meeting of the Parish Council in August 1966 records the County Horticultural Officer informing the Parish Council that the Council was going to begin to “clear the old trees and rubbish, leaving the young trees, surrounding the “old ford” and to fill in the swamp”. The Parish Council clerk in his report for the year 1966/1967 recorded “It was also hoped that during the coming year the area known as the “Old Ford” will be reclaimed making a substantial area”. In a letter dated 15^th April 1968 to the clerk to Oxfordshire County Council the Parish Council clerk, Mr Penny wrote that the Old Ford was an area “not claimed” by the previous owner of the recreation ground and that the Parish Council had been filling in and reclaiming “this swampy area”.  On 1st April 1969 Mr Penny wrote on behalf of the Parish Council to C Warmington & Sons, stating

            “The area you refer to which you say is being used as tip is what is known as The Old       Ford which was a roadway to the Church.

            This is being reclaimed as part of an overall improvement to the recreation ground.             Water has been allowed to enter this part through neglect over the years and has not   been able to get away because the ditch on Mr Monk’s land has been blocked for          years, especially the ditch that runs along the north of the field”. 

 

40.       There are a number of entries in the minutes of Parish Council meetings relevant to the issue of use by Mr Monck of the Strip.

(i) The minutes of the Parish Council meeting on 3^rd February 1972 record a resolution to send a letter of complaint to the owner of land adjoining the footpath to the Baulk reminding him that this area was parish property and “must not be used as a thoroughfare for horses”.  (ii) There is a further reference to this in the minutes of the meeting of 6^th April 1972 which record as follows

            “Footpath. Entrance to the Baulk Area: Further to the Council’s complaint of horses          using this area as a means of crossing from one field to the other the person concerned           has phoned the Clerk denying that this was happening.  It was reported that this   practice had now ceased”.   

(iii) The minutes of 4^th July 1974 record as follows

            “Mr Monk categorically denied ever having used the Chibnall/Recreation Ground footpath for his horses or the Recreation Ground”.

(iv) There continued to be concern expressed in the minutes about the use of the recreation ground and the Baulk by horses.  On 7^th November 1974 the Parish Council minutes record

            “Footpath. Recreation Ground/Baulk: The Council would be requested to prevent the       use of this right of way by horses by sealing off the gap in their fence on their land”.

The reference to “the Council” is a reference to Oxfordshire County Council.  The County Council at this time owned Harding’s Field and the reference to the County Council’s land appears to be a reference to Harding’s Field.

(v) On 10^th April 1975 the Parish Council minutes record

            “Land SW Recreation Ground: The Council’s complaint concerning the ditch and the       footpath being used by horses was being investigated.  Regarding the erection of a   barbed wire fence in the area of the baulk by the stream it was agreed to ascertain the     cost”.  

(vi) The minutes of the meeting of 1^st December 1977 record a complaint having been made of ponies being ridden on the recreation ground and what is called “the baulk fieldpath” and that notices were to be erected. 

(vii) On 5^th January 1978 the Council was advised that some riders had been “made aware of the position and it is hoped that this will now stop”. 

(viii) However, a further complaint of the same matter was recorded in the minutes for 8^th June 1978.    

The minutes contain no reference to vehicles being driven over the Strip to and from Knights’ Field.

 

Bollards

41.       The Minutes contain various references to the bollards around the car park.

(i)         Minutes of a meeting of the Recreation Ground Sub-Committee of the Parish Council held on 14^th July 1972 include the following entry

            “Bollards to prevent vehicles having access to the ground were recommended to be           installed as soon as practicable”.

(ii)               On 7^th September 1972 the Parish Council, according to the minutes, agreed to accept a tender for a fence and gate for the recreation ground.  It is not clear from the minutes of that meeting where the fence and gate were to be erected.  However, it is reasonable to conclude that it was across the Old Ford (also known as Frogmore Lane).

(iii)             The minutes for the Parish Council meeting held on 5^th April 1973 records as follows

            “Frogmore Lane, Chalgrove: A letter has been received from Mr Nixey complaining          of the fence erected in this area and would like to see it removed and the land made up             by some form of surfacing put on.   The Chairman reminded the Council that this          “Lane” had never been a right of way and the reason for putting a fence across was to         stop vehicles using the Recreation Ground and illegal dumping in the area.  Council        took note of the contents of the letter but saw no reason why any alterations should be             made and adhered to their original resolution”. 

(iv)       The minutes for the meeting of the Parish Council on 5^th June 1975 include the      following item

            “Recreation Ground: The gate at the west entrance had been broken down (the culprits     were known) the hanging posts would be replaced by steel posts, also the fencing            across the car-park would be replaced by bollards, estimates for this work would be         required”.

(v)        The minutes for 5^th November 1981 record that the clerk had instructed a Mr White to      “re-instate the broken bollards on the car-park”.

(vi)       The minutes of 7^th July 1983 record that the gate to the recreation field was to be   repaired as it had been torn from its hinges.

(vii)      The minutes of 2^nd May 1985 record under the heading “Recreation ground” that an          estimate had been received from Mr Daubney for erecting concrete posts between the    bollards and was agreed.

(viii)     The Council reported in its Annual Report for the year 1984/1985 that work in hand          included the erection of concrete bollards around the car park.

(ix)       The minutes for the meeting of 6^th June 1985 record that Mr Daubney had erected the       bollards and “this had stopped cars entering the rec”.

(x)        The following month, as appears from the minutes for the meeting of 4^th July 1985 Mr       Daubney was asked to put wire strands between the concrete posts surrounding the car        park, to stop any entrance to the recreation ground except by the gate.

 

Condition of the gate and lock

42.       The minutes contain various references to the condition of the gate into the recreation ground and padlocks for it.

(i)         The gate needed repair in June 1989; the minutes of 1^st June 1989 record that Councillor Snellgrove was to arrange for the gate to be welded.

(ii)        The gate still required welding in July 1989; the minutes of 6^th July 1989 and 3^rd August 1989  record that Mr Ace was to weld it.

(iii)       The gate had been repaired by 5^th October 1989 council meeting and it was then resolved to obtain a padlock.

(iv)       The padlock had still not be obtained on 3^rd May 1990 when the council minutes record matters outstanding as including a padlock for the recreation ground.

(v)        According to the minutes of the meeting held on 6^th September 1990, the gate had been pushed through the school fence. Cllr Snellgrove was to immobilise it.

(vi)       The gate had been “immobilised” by 6^th December 1990 as recorded in the minutes of that date but Cllr Snellgrove was still to obtain a padlock.

(vii)      A padlock had been obtained by August 1991 when the minutes refer to keys to the recreation ground gate. 

(viii)     However, the minutes of 5^th September 1991 record that the two keys to the padlock had been lost and the lock had been broken to allow the fair into the recreation ground.

(ix)       A padlock and extra keys had been bought by the date of the 3^rd October 1991 council meeting.  

(x)        There was an incident in September 1996 when a horse in Mr Knight’s field had to be destroyed.  The Parish Clerk wrote to Oxford County Council giving an account of what had happened.  Her letter included the following paragraph

            “Last week we had a very nasty incident with Mr Knight when he wanted to bring out     a  dead horse from his field.  He refused to take the horse out to the road at the front of    his house and knocked the recreation gate’ post down with a sledge hammer.  The        Parish Council meanwhile were trying to find a key to the gate (for humane reasons) but he did not wait.  When the Chairman arrived with the said key he was greeted with         a mob, who kicked his car and verbally abused him.  Later Mr Nixey, our Chairman,             had stones thrown through his windows at home.  The police were contacted by both        Mr Knight and the Chairman”.   

No-one gave evidence supporting this account of what happened.   

(xi)       On 3^rd October 1996 the Council agreed to make improved arrangements for emergency use of the recreation ground gate and that a notice listing keyholders would be attached to the gate.

(xii)      In October 1996 Mr Knight applied for retrospective planning permission to erect [two] stables and a tack room in his field.  The Parish Council informed the planning authority that it had no objection to the proposal provided that “access is available via St Mary’s Close which is the only right of way”.

(xiii)     In April 1997 Mr Knight had two containers brought on lorries to Knights’ Field, over the recreation ground.  One was brought on the 19^th April and the other on the 29^th April.   The Council noted this in its minutes of 1^st May 1997 and that the police had been informed.    The Parish Council minutes record that South Oxfordshire District Council had said that the containers required planning permission and had told Mr Knight to remove them. 

(xiv)     The minutes of 4^th September 1997 record that Mr Knight had removed one storage container and the other was to be relocated in his garden.

(xv)      A planning enforcement officer at SODC wrote to the Parish Council on 2^nd October 1997 saying that the Council was seeking to secure the removal of the remaining container but had been advised by Mr Knight that on the day a lorry arrived to take away the remaining container, Mr Knight was unable to secure access.  He went on to ask if the parish council was prepared to allow access across their land to secure the removal of the container. 

(xvi)     The Council replied by letter dated 23^rd October 1997 saying that one container had been taken out illegally “after the wrong advice was given to the key holder”.  The writer went on to say

            “We have been told by Oxfordshire County Council’s solicitor that we cannot give           permission for access over the Rec. as this is contrary to the bye-laws and the laws       appertaining to Village Greens Commons Registration.  Parish Councils, or indeed anyone, cannot give permission for what would be against the law.  The situation has      therefore reached an impasse”.  

(xviii)   Horses being ridden over the recreation ground was a subject raised at the Council meetings on 7^th May, 2^nd July and 5^th November 1998 and 7^th January 1999. The Minute  for the meeting of 2^nd July 1998 recorded that “One of the Councillors had challenged those walking across the recreation ground”. 

(xix)     On 1st July 1999 the Council resolved that more notices for the recreation ground were needed; “i.e. No horse riding”.       

(xx)      Jo Donoghue, the clerk to the Parish Council wrote to Mr and Mrs Knight on 17^th September 2013.  The letter reads as follows

            “Further to your attendance at the Parish Council meeting I am writing to inform you        that we have been corresponding with Mrs Burnham-Packham, who wrote to us requesting permission to have a gate key.  I have attached the correspondence for your    information.

            Whilst the Parish Council recognise your right of access, they have been contacted by       their solicitor who wishes to be directly involved in any agreements made with regards    to the gate key due to ongoing land registry applications.

            A draft agreement is to be sent to the solicitor on his return from holiday w/c 23^rd September and is hoped to be approved by Parish Council at their meeting at the        beginning of October.  It is expected that any agreement made with regards to the gate            key will be made with yourselves as land owner rather than Mrs Burnham-Packham”.     

 

Use by Mr Knight

43.

(i)         On 16^th October 1985 the clerk to the parish council wrote a letter to Mr Knight addressed to his business address at 60 High Street, Chalgrove, asking him to note that horses were not allowed on the recreation ground and that children using his paddock were taking their horses “along the footpath and over the rec”.  The clerk asked Mr Knight to ensure “that they use the St Mary’s Close entrance to your property only”.  The clerk reported to the council at its meeting on 7^th November 1985 that a letter had been sent to the paddock owner about “horses walking the footpaths”.   Mr Knight said that he did not see this letter but he said that he hoped if a letter addressed to him was sent to that address then it would have come to his attention.

(ii).       The minutes of meeting held on 5^th May 1988 record that Mr Knight was “to be asked to remove the gate he had erected from his field to the Baulk/Frogmore Lane footpath”.  At this time the Council had constructed a bridge at the end of the Baulk to give access into the new recreation ground to the south.

(iii).      On 16^th May 1988 the Council’s clerk wrote to Mr Knight asking that he remove the gate and re-fence the aperture.

(iv).      On 4^th March 1993 the council resolved to ask Mr Knight to remove his “illegally placed” gate giving access onto the recreation ground.

(v).       On 1^st April 1993 the Council resolved to ask Mr Knight to produce his deeds.  

(vi).      On 4^th October 1993 the Council wrote to Mr and Mrs Ireland and Mrs Higgins, who were believed to be the owners of horses kept on Mr Knight’s field.  The letters included the following

            “The Parish Council would like to make it clear that a) Horses are not allowed on the         two Recreation Grounds at Chalgrove (unless specifically authorised by the Council),   and this is legally enforceable through the byelaws b) There is no legal access from Mr           Knight’s fields to the Recreation Grounds.  Horses should use the main access to this house in St Mary’s Close. c). Horses are not allowed on public footpaths, even if they             are led, without prior consent from the landowner”.

(vii).     On 7^th October 1993 the Council minutes record the following

            “441    Horses on the Recreation Ground:  Following correspondence with the Council     Mr Higgins attended the meeting and outlined his problems with stabling horses           adjacent to the Rec.  He was advised to contact the OCC’s Footpath Office.  Mr              Knight to be informed that the Council will erect a fence along the Council’s boundary            by the path to the top Rec’s bridge, in a month’s time, and that new arrangements       should be made for the horses”. 

(viii).    The Clerk to the Council wrote to Mr Knight on 19^th October 1993 giving him notice that the Council would be erecting a fence “along the Recreation Ground side of the disputed access in one month’s time”.   Mr Knight then met with the Chairman of the council.

(ix).      According to the minutes of the meeting of 4^th November 1993 he was to produce evidence of access and the erection of the fence was deferred for a month.

(x).       The Council decided on 2^nd December 1993 and again on 6^th January 1994 and on 3^rd February 1994 to defer the erection of the fence for another month “as documents were being processed by Mr Knight”.

(xi).      On 3^rd March 1994 the Council agreed to erect the fence.  Mr Knight was informed of this by letter dated 25^th March 1994.

(xii).     It appears that the fence was erected sometime between 25^th March and 6th April 1994.  On 7^th April 1994 the Council agreed to “peel back the fencing around the gate area to allow horses out, as the owners were concerned about their health”.  

(xiii).    The Parish Clerk in her letter to Mr Redknapp of the Oxfordshire Association of Local Councils dated 10^th April 1994 explained that the horse owners had complained that they were being prohibited from exercising their horses and the horses were in danger of laminitus because of the wet ground.  

(xiv).    On 28^th September 1994 Darbys, solicitors instructed by the Parish Council, wrote to Cole and Cole, solicitors for Mr and Mrs Knight  stating as follows

            “As you know and as was made plain in our letter of 25^th April, our clients have been        allowing your client’s horses to use the access for humanitarian reasons and strictly by          revocable permission.  However, our clients are concerned at the length of time which       this matter is taking to resolve, and it appears increasingly unlikely that your clients            will be able to substantiate their right to use this access.  Your client’s permission is      therefore revoked with immediate effect.  If you have not provided us with compelling       evidence substantiating your client’s claim within 14 days of the date of this letter, our             clients will block the alleged access in a permanent manner”.

No reply to this letter was in evidence.  However, it appears that in response, Mr Knight said that he would produce a statutory declaration.

(xv).     The minutes of 6^th October 1994 record that Mr Knight produced at the meeting a letter from his solicitor stating that a “certain Statutory Declaration” would be forthcoming.  (xvi).           By 2^nd February 1995 the Parish Council had received a statutory declaration from Mr Monck.

(xvii).   There was then a long period while the Parish Council waited for advice from the solicitor of Oxfordshire County Council.  The minutes of 7^th November 1996 record as follows

            “Mr Perkins, the Joint Head of Oxfordshire County Council’s Legal Services had studied Mr Knight’s claim of access over the Recreation Ground and had found for the Parish Council.  There was and is no access for vehicles or horses over the Rec.”     

 

Submissions

44.       The Applicants first submitted that they had shown a right of way existed by prescription at common law.  There had been use without interruption from 1189 until at least 1822.  The 1822 map showed Frog Lane as then existing and it was to be inferred that occupiers of Knights’ Field would have gone up and down Frog Lane to access the field and it was to be inferred that the user would have included use with carts.

 

45.       The Applicant secondly submitted that they had established the existence of a right of way on foot and with horses over the Strip under the doctrine of lost modern grant. 

 

46.       The Respondent submitted that the claim based on common law prescription must fail through lack of evidence.  It was not possible to infer from the map that there had been user with vehicles and horses “as of right”. 

 

47.       As to the claim based on lost modern grant, the Respondent invited me to find that there had been no use with vehicles (save for the incident involving the horse slaughterer’s vehicle in 1996 and the bringing in of the containers in 1997).  Further, I should reject the evidence in Mr Monck’s statutory declaration that he had used the Strip with horses in light of the minute of the meeting of 4^th July 1974 recording his “categorical denial” of his ever having used the recreation ground footpath or the recreation ground for his horses.  Any use with vehicles was contentious, as shown by the locked gate and the bollards.  Use with horses was also contentious. 

 

The Law

48.       Counsel for the Respondents referred me to the judgment of Morgan J. in Barton v. The Church Commissioners [2008] EWHC 3091 (Ch).  That judgment contains a helpful exposition of the law of prescription:

“36.     The doctrine of prescription at common law, and as to lost modern grant, is based upon the presumption of a grant, in that prescription presupposes that a grant was once made and validly subsisting, but has since been lost or destroyed.  The presumption of a grant is derived from proof of enjoyment of the right which is claimed….

37.       The presumption of a grant is raised by proof of long enjoyment evidenced by acts of user on the part of the person claiming the right, or his predecessors in title.  The reason for the doctrine of prescription is that it is the policy of the law to do all that it can to quiet titles so as to avoid litigation and preserve the security of property.  When open and uninterrupted enjoyment, of what appears to be an incorporeal right, has continued for a long time the court will, where such enjoyment is wholly unexplained, presume, if it is reasonably possible, that the enjoyment is referable to a right which had a lawful origin.  Every presumption is made in favour of long user.  Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that it is reasonably possible to presume in favour of such a right….

38.       Prescription at common law is based upon a presumed grant which the law assumes to have been made prior to 1189, the first year of the reign of Richard I.  Enjoyment of the right must be proved from a time “whereof the memory of man runneth not to the contrary” that is to say during legal memory and the period of legal memory runs from 1189.  As it is usually impossible to prove user or enjoyment any further back than the memory of living persons, proof of enjoyment as far back as living witnesses can speak raises a prima facie presumption of an enjoyment from an earlier time.  Where evidence is given of the long enjoyment of a right to the exclusion of others, the enjoyment being as of a right in a manner referable to a possible legal origin, it is presumed that the enjoyment in that manner was in pursuance of a legal origin and in the absence of proof that the commencement of the user was modern, the user is deemed to have arisen beyond legal memory.  Unexplained user of an incorporeal right for a period of twenty years is held to be presumptive evidence of the existence of the right from time immemorial but the rule is not inflexible, the period of twenty years being fixed as a convenient guide.  In a claim to prescription at common law, it is not necessary to prove user during the specific period of twenty years before the commencement of the proceedings in which the claim is made.  …

40.       For a claim to prescription at common law or under the doctrine of lost modern grant, the user must have been “as of right”, having been enjoyed neither as the result of force, secrecy or permission, nec vi, nec clam, nec precario.  Acquiescence on the part of the owner capable of making the grant lies at the root of prescription.  A grant cannot be presumed from long user without the owner having had knowledge or the means of knowledge of the user.  The owner cannot be said to acquiesce in an act enforced by violence or an act which fear on his part hinders him from preventing, or an act of which he has no knowledge, actual or constructive, or which he contests and endeavours to interrupt, or which he sanctions only for temporary purposes or in return for recurrent consideration….

41.       In general, what must be shown is continuous user.  Unless satisfactorily explained long intervals between acts of user will go some way to defeat the right claimed.  The period of non user of an alleged right which will operate to defeat a prescriptive claim has no fixed length.  The user need not be constant; where the user has not been constant the evidence should show that the gaps in the user were not due to interference by the owner against whom the prescriptive right is claimed…”

 

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

            “User must be shown to have been of such a character, degree and frequency as to            indicate an assertion by the claimant of a continuous right and of a right of the             measure of the right claimed”.   

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

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

 

50.       User which is contentious will not give rise to a prescriptive easement.  In Bennett v. Winterburn, UKUT 0059 (TCC)  HH Judge Charles Purle QC sitting as a Judge of the Upper Tribunal allowed an appeal against a finding by the judge of the First-tier Tribunal that a right of way by vehicles had been acquired by prescription over a car park on the grounds that the presence on the car park of a visible sign reading, “Private car park: For the use of club patrons only.  By order of the committee”, made any vehicular use by the party claiming a prescriptive easement “vi” or by force.  The learned judge rejected a submission that the relevant test was that set out in the following passage from the judgment of Pumfrey J. in Smith v. Brudenell-Bruce [2002] 2 P & CR 4 in which Pumfrey J. said

“It seems to me a user ceases to be user “as of right” if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner’s knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action.  A user is contentious when the servient owner is doing everything consistent with his means and proportionately to the user, to contest and endeavour to interrupt the user”.

   He said (at paragraph [13]),

“In my judgment, whilst I have no doubt that user is contentious in those circumstances, that passage should not be read as embodying a minimum test which needs to be satisfied before user becomes contentious.  It is not the law, in my judgment, that the servient owner has to do everything consistent with his means and proportionality to contest and endeavour to interrupt the user.  In my judgment, in a straightforward case, such as the present, a sign which unambiguously states that the car park is for the use of club patrons only leaves the reader in no doubt that parking by others is objected to and that any user, contrary to that sign, is contentious and therefore not peaceable but vi or “by force”, as that expression is used in this area of the law.  The fact that the club might without much difficulty have taken other steps such as fixing stickers to cars, closing the gates from time to time, or writing a formal letter of complaint to the fish and chip shop owners, is in my judgment neither here nor there”.      

51.       I as told that the Court of Appeal has given permission to appeal from the Decision of HH Judge Purle Q.C.  The appeal has not yet been heard Counsel before me did not submit that Bennett v. Winterburn was wrongly decided.  In those circumstances, I should follow it.

 

Common Law Prescription

52.       I reject the Applicants’ claim based on prescription at common law on a number of grounds.  Firstly, the Applicants have not shown that there was user as of right of the Strip to gain access and egress to and from Knights’ Field in 1822.  Though a lane in the position of Old Ford does appear to have existed, there is no evidence that there was any existing means of access from Knights’ Field onto the lane at that time.  The mere fact that the field adjoined a lane cannot lead me without more to infer that the lane was used as a means of access to and from the field.  The field could have been accessed from a different road or lane through an adjoining field.  Secondly, even if I should infer that the lane was used in 1822 as a way to and from the field, the Applicants have not shown that there has been user since time immemorial.  The evidence is that there was no user between 1911 and about 1970 because Old Ford was blocked by a fence at the north end and was water logged so as not to be passable.  There has been an interruption in the user of almost 60 years or even more.  In those circumstances, it is not possible to say that there has been user as of right since time immemorial.

 

Lost Modern Grant

53.       I do not accept that Mr Monck drove along the Strip.  There is no evidence from Mr Monck that he did so.  He made no reference to driving along the Strip in his statutory declaration.  The attempts by Mr Knight to explain away the lack of reference in the statutory declaration to driving on the Strip is unconvincing.  The statutory declaration was drawn up with the assistance of solicitors in the context of a dispute about access over the Strip.  Had Mr Monck been driving over it, I consider it highly unlikely that he would not have mentioned it and had he mentioned it to the solicitors, it would have been mentioned in the statutory declaration.  I accept that the Strip was not passable with vehicles before in or about 1970.  I accept the evidence of Mr Batley that the Old Ford was in large part covered with water until it was drained in around 1969 or 1970.  His evidence is supported by the reference in the minutes of the Parish Council meeting in August 1966 to filling in the “swamp”, by the reference in the Parish Clerk’s annual report for 1966/1967 to reclaiming the Old Ford, by the reference in the Parish clerk’s letter of 15^th April 1968 to the Old Ford as a “swampy area” that the Parish Council was filling in and reclaiming and by the reference in the Parish clerk’s letter dated 1^st April 1969 to water having been allowed to enter the Old Ford and not being able to get away.   As the Strip was not passable with vehicles before 1970, Mr Monck must have gained any vehicular access he needed to Knights’ Field otherwise than over the Strip.  The obvious way would have been through an access by the house and buildings of Church Farm.  No reason was suggested as to why Mr Monck should have changed his customary route into Knights’ Field after the Old Ford was drained.

 

54.       I accept that Mr Monck had a gateway from Knights’ Field onto the Baulk and that this gateway was in existence in 1973.  However, the reason why Mr Monck had this gateway was to give him access between Knights’ Field and Harding’s Field by crossing over the Baulk and not to provided access for vehicles to and from the Strip for the purpose of going to and from the highway.  There is evidence that Mr Monck was crossing between the two fields over the Baulk in 1972 in the minutes of the Parish Council meeting of 6^th April 1972 and the reference to “the Council’s complaint of horses using [the Baulk] as a means of crossing from one field to the other”.  Mr Batley thought that Mr Monck was given oral permission by the Parish Council to cross the Baulk to get between the two fields.  Whether or not he is correct in saying that permission was given, he plainly recollected that horses were being taken between the two fields and I accept that evidence.  

 

55.       The absence of a reference in the Parish Council minutes to vehicles being taken along the Strip during the period that Mr Monck owned Knights’ Field whilst there are references to horses “on the entrance to the baulk area”, using the recreation ground footpath, using the “Recreation Ground/Baulk” “right of way”, using the “ditch and the footpath” and being ridden on the “baulk fieldpath”, does lend support to the view that vehicles were not being driven on the Strip.  If they were, it is difficult to think that they would not have been noticed and if noticed, would not have been the subject of a complaint and discussion at the Parish Council, which would have been mentioned in the minutes. It is further improbable that Mr Monck drove along the Strip from or to the highway after 1973 because the recreaton ground (including the Strip) was then fenced off, as the minutes of the Parish Council of 5^th April 1973 record.    

 

56.       The only evidence of Mr Monck having driven down Old Ford is the evidence of Mr Knight. I do not accept Mr Knight’s evidence.  He is obviously an interested witness who wishes to establish use by Mr Monck.  He was an unsatisfactory witness in a number of respects.  He sought to argue in cross-examination that the Parish Council objected only to horses on the recreation ground and not to horses on the Strip when it was obvious from the documents that the Parish Council did not draw a narrow distinction between the recreation ground and the physically undivided Strip in this regard.  Further, he sought to give different explanations for the failure of Mr Monck to refer in the statutory declaration to vehicular use, none of which was credible.   Further, Mr Knight did not assert in his statutory declaration made in support of his application for a caution against first registration that he had a vehicular right of way to pass over the Strip.  If he believed at the time he made his own  statutory declaration that Mr Monck had been passing over the Strip with vehicles and was himself doing so, it seems unlikely that he would not have asserted a vehicular right of way in the statutory declaration

 

57.       As regards vehicular use during the period Mr and Mrs Knight have owned Knights’ Field, the Knights rely on evidence of use by Mr Knight, by Mr David Munro and by Mr Guard.  As set out below, I find that such vehicular use of the Strip as was made to gain access to and from the Strip was not sufficient to satisfy the test in Hollens v. Verney and from 1991 was permissive and not “as of right”.  

 

58.       I have previously noted the point that Mr Knight did not assert in his statutory declaration made in support of his application for a caution against first registration that he had a vehicular right of way to pass over the Strip.  This strongly suggests that he was not making any significant vehicular use of the Strip at that time.

 

59.       Mr Knight said that he reared cattle in Knights’ Field between 1987 and 1993 and that this required him to drive over the Strip about 5 times in each year.  This period overlaps, save for one year, the period when Mr David Munro said he was grazing sheep in Knights’ Field, namely from 1986 to 1989.  Mr Munro said that he removed the sheep after they had been grazing in the field for about two months in order to allow the grass to recover.  It seems to me to be highly unlikely that the field would have been used at the same time for grazing both cattle and sheep.  Mr Munro said that he passed over the Strip in a vehicle 4 times a year.  That means that during the period 1987 to 1989 on the evidence of Mr Knight and Mr Munro there were 9 vehicle movements over the Strip between the highway and Knights’ Field.  Had there been that number of vehicular movements over the Strip, they would have come to the attention of the Parish Council. The absence of any reference in the minutes to vehicles driving on the recreation ground from or to Knights’ Field supports the conclusion that there was not a significant number of vehicle movements over the Strip to and from Knights’ Field.   Mr Knight may have had cattle in the field at some time between 1987 and 1993 and Mr Munro may have had sheep in the field at some other time in the same period.  They could have taken these animals via St Mary’s Close. I do not consider that if they did drive over the Strip, they did so as frequently as they suggested. 

 

60.       Bollards were erected around the car park in June 1985 as appears from the minutes of 6^th June 1985.  The minutes contain no mention of these bollards requiring repair at any time between their having been erected and 1986 when Mr Munro says he drove over the Strip to carry sheep to and from the field or prior to 1987 when Mr Knight says he drove over the Strip to take cattle to and from the field.  If they did drive over the Strip as alleged then they must have diverted off the Strip onto the recreation ground to avoid the bollards and hence to be able to get between the field and the highway.  That might have been straightforward between June 1989 when the gate into the recreation ground was in disrepair and August 1991 when a padlock was fitted to the repaired gate.  But outside that period, the ability of Mr Knight or Mr Munro to get from the car park onto the recreation ground in order to get to the Strip or vice versa would have been dependent on the whim of the key-holder.  I consider it improbable that either would have depended on the Strip as the regular or normal way to bring animals to and from the field, given that they could not be certain the gate would be open.

 

61.       The lack of reference in the Parish Council minutes to vehicles passing over the recreation ground or the Strip between Knights’ Field and the highway is significant.  It makes no sense for the Parish Council to have been complaining only of horses passing over the Strip if there were also vehicles passing that way.  If the Parish Council was aware of horses being ridden on the Strip, it would have been aware of vehicles driving along it unless the vehicular movements were very infrequent.   It seems to me that any vehicular movements that there were along the Strip cannot have been frequent enough to convey to the minds of the Parish Councillors that Mr and Mrs Knight were asserting a continuous right to enjoyment and that the assertion ought to be resisted if their right was not recognised and hence they were not sufficient to satisfy the test in Hollens v. Verney.

 

62.       The evidence of subsequent vehicular use by Mr Knight was Mr Knight’s evidence that he had building materials required for the erection in 1996 of two stables and a tack room brought in over the Strip and the evidence that he brought two containers onto the field by having them brought down the Strip.  In each case, the drivers would have had to driven on part of the recreation ground and through a gate to get between the car park and the remainder of the Strip.  There is no doubt that the containers were taken down the Strip and that subsequently one was removed by taking it up the Strip.  Mr Knight or the lorry driver had to get a key to the gate into the recreation ground to take out one of the containers and was prevented from removing the other by the locked gate and the refusal of the Parish Council to allow the gate to be unlocked.  What this shows is that use by the container lorry was permissive and not as of right. 

 

63.       There is also the incident in 1996 when on Mrs Knight’s evidence, she obtained a key to the gate into the recreation ground from someone at The Crown.  What is significant is that the gate was locked and according to Mrs Knight, she had to ask for a key.  It was an emergency and she was given the key.  This is not an example of Mr and Mrs Knight using the Strip “as of right” but rather of their using the Strip by permission.            

 

64.       There was also the evidence of Mr Matthew Knight that Mr Guard between 1994 and 2000 took a horse and pony kept in the field to horse shows in a motorised horsebox that he drove down the Strip.  This evidence does not assist the Applicants because Mr Matthew Knight did not know whether or not Mr Guard had permission from the Parish Council to drive over the Strip.  Matthew Knight’s evidence does not assist in showing user as of right.

 

65.       What vehicular use there was of the Strip after August 1991 when a padlock was fitted to the gate was permissive and therefore not “as of right”.  By fitting a padlock, the Parish Council assumed physical control of access to the Strip as much as to the recreation ground.  Mr and Mrs Knight had to obtain a key to the padlock from The Crown.  The landlord of The Crown must have held the key as agent for the Parish Council.  The key was given to him by the Parish Council and there is no evidence that Mr and Mrs Knight were ever consulted about this. Mr and Mrs Knight were therefore dependent on the consent of the Parish Council or its agent to use the Strip with vehicles as a means of passing between Knights’ Field and the highway.   

           

66.       As to horses being ridden over the Strip to and from Knights’ Field, it is clear that horses were ridden on the recreation ground (including the Strip) over a number of years but it is less clear that horses were ridden over the Strip as a means of access between the highway and Knights’ Field.  The minutes of Parish Council contain references to horses going onto the recreation ground from Knights’ Field.  Some of those references relate to horses going from the direction of Knights’ Field across the recreation ground to Chibnall Close and not to them going along the whole length of the Strip.  It is not correct that they only relate to horses on parts of the recreation ground other than the Strip and even horses going to Chibnall Close would have had to go onto at least the Baulk part of the Strip.  During the period the Knights have owned Knights’ Field, there are references in the minutes to horses riding on the recreation ground from 1985 up to 1999 and again in 2013.  The use by horses was physically prevented for a short period in 1994 when the Parish Council fenced off the gate into Knights’ Field.

 

67.       Use of the Strip by Mr Monck with horses was contentious.  He was told by the Parish Council that he should not take horses across the Strip and he responded by denying that he had done so as the minutes of 6^th April 1972 record.  Further, notices were put up on the recreation ground in 1977 saying “no horses” and these notices would have communicated to Mr Monck that taking horses onto the Strip was objected to by the Parish Council and was contentious or “vi”.    

 

68.       From April 1994 until 28^th September 1994 any use of the Strip with horses to go between the highway and Knights’ Field was permissive.  The Parish Council had blocked off the gateway from Knights’ Field in about late March 1994 and then in April 1994, opened up the gateway again pending production by Mr Knight of evidence of his having a right of way over the Strip.  The Parish Council plainly did not accept that the Knights had a right of way but were allowing access.  Subsequently, by letter dated 28^th September 1994 that permission was revoked.

 

69.       I consider that the use with horses by Mr Knight and his licences had been contentious from at latest 16^th May 1988 when Mr Knight was asked by the Parish Council by letter to remove his gate onto the Baulk and re-fence the aperture.  The gate was the means by which horses could be brought onto the Strip or from the Strip into Knights’ Field.  The demand that the gateway be blocked up would have left the Knights in no doubt that the use of the Strip with horses was objected to and that such use would be vi or by force.  Further, the Parish Council again made it clear that such use was objected to by writing to the Knights’ licensees, Mr and Mrs Ireland and Sally Higgins on 4^th August 1983 stating that no horses were allowed on the recreation ground and that there was no legal access from Knights’ Field to the recreation ground.  No-one reasonably reading that letter could have thought that the Parish Council was excluding the Strip when it referred to the recreation ground.          

 

70.       Use with horses after 28^th September 1994 was contentious because the Parish Council had told Mr and Mrs Knight’s solicitors that the previous permission for horses to go out of Knights’ Field by the gate by the Baulk was revoked.  Furthermore, it was clearly contentious after the Parish Council put up further notices in the recreation ground in 1999 (including one near to the car park) saying “no cars, bikes, horses”.  That would have left Mr and Mrs Knight and others going to and from Knights’ Field in no doubt that the riding horses was objected to.  Again, the reasonable reader of the signs would have taken them to include the Strip as well as the recreation ground given that they appear together as one largely open area of land, without there being any clear physical distinction between the two areas.      

       

Conclusions

71.       Mr and Mrs Knight have not shown that they are entitled to the benefit of a right of way over the Strip with vehicles or with horses either by common law prescription or under the doctrine of lost modern grant.  There is no sufficient evidence to show user since time immemorial.  As to lost modern grant, I find that Mr Monck did not make use of the Strip with vehicles and/ or horses while he was the owner of Knights’ Field.  While the Knights have owned Knights’ Field, such vehicular use of the Strip as there has been as a means of access to and from the field has not been sufficiently frequent to carry to the minds of the Parish Council that a right of way with vehicles was being asserted.  Further, use since 1991 has been permissive and not “as of right”.  The use with horses has been contentious, save for a period of months during 1994 when it was permissive.  Accordingly, Mr and Mrs Knight have not shown good grounds to maintain their caution against first registration.  I shall direct the Chief Land Registrar to give effect to the application of the Parish Council to cancel the caution against first registration registered by Mr and Mrs Knight.

 

 

 

Costs

72.       My preliminary view is that it would be just to order Mr and Mrs Knight to pay the costs of the Parish Council incurred since the date of reference of the matter to the Tribunal, such costs to be assessed on the standard basis.  Any party who wishes to submit that some different order should be made as to costs, should serve written submissions on the Tribunal and on the other party by 5pm on 14^th October 2015.

 

 

 

BY ORDER OF THE TRIBUNAL

 

 

 

 

Dated this 24^th September 2015