Case Summaries: Rights of Way

17 August, 2017
by: Cripps Pemberton Greenish

Implied rights of way, s.62 and rights of necessity


Linvale Investments Limited v Christopher Eric Walker [2016] WL 03049957


Linvale purchased Orbital Business Park for £4,225,000.  The company planned to let the buildings on the property and re-sell it 2 years later for a profit of £2-4 million, depending on how good the tenants’ covenants were.  A company director of Linvale, Mr Walker, held a ransom strip in his personal name for taxation purposes.  This ransom strip also served as a fire escape route from Unit J1, a factory, on Linvale’s land.  The receivers of the property at Unit J1 claimed the factory had the benefit of a right of way over the ransom strip.


The factory had been vacant for around 2 years.  There was no continuous use of the escape route and a right of way could not be established using s.62.  Nor could the Wheeldon v Burrows requirement of ‘continuous and apparent use’ be met.  However, the court found that it was the intention of the parties that the factory would be let and the fire escape route would be used by the tenants as needed.  An implied easement was found based on the common intention of the parties.


Wood & Anr v Waddington [2015] EWCA Civ 538


The land in question was previously one farm which was sold off in parts.  The land was crossed with two tracks and two public bridleways.  The Woods claimed that they had the benefit of rights of way over two tracks.  Mr and Mrs Sharman (the Woods’ predecessors) had used the tracks on Mr Waddington’s land without any objection.


The court considered the track that led to the road first.  When considering s.62, the court held:  “what is important is the extent to which there are visible signs of a track or road.”  There was evidence that the track was visible on the day the land was transferred to the Sharmans and neighbours provided evidence that the track was used once a month.  The court held that this constituted a pattern of regular use and was ‘enjoyment’ for the purposes of s.62.


The court then considered a track that led to the public bridleway.  This was a hard track and was visible on the ground.  S.62 had not been excluded in the conveyance and it was held that:  “The grant in the written terms of a conveyance of a limited right will not exclude the operations of section 62 to confer a greater right than that which is contained in the conveyance itself.”  This is qualified by the fact that rights can be no greater than their predecessors in title.


Notices, obstruction and prescription


Trevor Winterburn, Elizabeth Winterburn v Garry Bennett, Lynne Bennett [2016] EWCA Civ 482


The Winterburns ran a fish shop and, along with their suppliers and customers, regularly parked in a parking lot owned by the Conservative Club Association.  Over a 7 year period the Club asserted on 12-15 occasions that it owned the parking lot and the Winterburns and their suppliers and customers had no right to park there.  The Club posted a sign, clearly visible to those entering their parking lot, which read:  “Private car park.  For the use of Club patrons only.  By order of the Committee.”  The entrance to the parking lot was subsequently blocked off, prohibiting any vehicular access.


The Winterburns claimed a right for themselves, their suppliers and customers to park vehicles in the Club’s parking lot.  The claim was based on acquisition by prescription by lost modern grant, which requires 20 years of uninterrupted user ‘as of right’.  This means that the parking lot was used without force, secrecy or permission.  The element of ‘without force’ was the issue in this case.  The court held:  “The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private … I do not see why those who choose to ignore such signs should […] be entitled to obtain legal rights over the land.”


Blocking access


Adam Stoddard Page v Convoy Investments Limited [2015] EWCA Civ 1061


Mr Page purchased 2 lots from a farmer at auction.  Both lots had the benefit of a right of way for agricultural purposes over the retained land that led to the public highway.  The farmer then sold the retained land to Convoy.  Convoy installed electric gates at the entrance to the roadway that required a fob or code to gain entry to its land and the right of way benefiting lot 1.  This obstructed Mr Page’s access to his land and he claimed the gates were a substantial obstruction to the reasonable use of the right of way.


The court agreed with Mr Page, despite Convoy offering Mr Page the code and a fob after installation of the electric gates.  The court found that:  “fobs and codes may be a convenient way of opening gates in a domestic context, but not being a farmer …”  When the lots were conveyed to Mr Page there were no practicable gates in use; therefore Mr Page is entitled to require Convoy to keep the gates open at all times.


Martin Harry Bradley, Rosemary Diane Bradley v Peter Greenwood Heslin, Marianne Heslin [2014] EWHC 3267 (Ch)


Two houses, No.40 and No.40A, originally belonged to one owner.  No.40 was sold off and eventually both houses changed ownership.  A right of way was granted to No.40 in the original conveyance over roughly 200 feet of the driveway so that the owners of No.40 could access their property with or without vehicles from Freshfield Road.


The Bradleys now own No.40 and regularly close the gates at the entrance of the driveway, which the owners of No.40A, the Heslins, claim is an obstruction to accessing their house.  The Bradleys claim they own the pillars and assert their right to close the gates due to proprietary estoppel (or alternatively, adverse possession of the northern pillar and under prescription or lost modern grant to close the gates).  The court agreed that No.40 owned the pillars, the southern pillar by the original conveyance and the northern pillar by adverse possession in 1992.


When the Bradleys close the gates over the driveway it is a trespass over the Heslins’ land, unless there is an easement.  The court looked at the intermittent use of the gates over time and held no right was acquired by prescription or lost modern grant.  The court held that the original owners’ relationship was bound by estoppel and therefore the Bradleys had a right to close and open the gates for all purposes connected with reasonable enjoyment of No.40A.  The court suggested closure of the gates from 11 pm – 7.30 am and installation of an electric gate operable from a vehicle.