REF/2011/0331

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Allen Sinclair

APPLICANT

and

Edward Morrison and Lesley McNealis

RESPONDENTS

Property Address: Land at the back of 156 Colin Gardens, London (NW9 6ER)
Title Number: AGL77518

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Victory House
On: Tuesday 18th October 2011 and Wednesday 25 January 2012

Applicant Representation: In person
Respondent Representation: In person

DECISION

KEYWORDS: Acquisition of easement by prescription; easement on foot over existing right of way granted by deed; identification of the dominant tenement; whether user as of right; whether such user was permissive and/or continuous; Prescription Act 1832, section 4; period next before suit or action; Limitation Act 1980, sections 15(1), 38

Cases referred to: Tickle v Brown (1836) 4 Ad & E 369; Gardner v Hodgson’s Brewery Co Ltd [1903] AC 229; Sturges v Bridgman (1879) 11 Ch D 852; Dalton v Angus & Co (1881) 6 App.Cas 740; White v Taylor (No 2) [1969] 1 Ch 160; Hollins v Verney [1884] 13 QBD 304; Harris v Flower & Sons (1905) 74 LJ Ch 127; Bracewell v Appleby [1975] Ch 408; Jobson v Record (1997) 75P&CR 375; Graham v Philcox [1984] QB747; National Trust v White [1987] 1WLR 907; Massey v Boulden [2003] 1WLR 1792; Peacock v Custins [2001] 2 All ER 827; Das v Linden Mews Limited [2003] 2 P&CR 58; Wilkin Sons Ltd v Agricultural Facilities Ltd Adjudicator to HM Land Registry Ref: 2011/0420 – dated 10th April 2012; J. A. Pye v Graham [2000] Ch 676

	THE APPLICATION
1.	Mr Allen Sinclair (“the Applicant”) is the sole registered freehold proprietor of 156 Colin Gardens, London NW9 6ER registered at HM Land Registry under title number NGL590758 (“No 156”). No 156 is shown tinted blue on the site plan produced by the Applicant and annexed to this Decision (“the Site Plan”). The Applicant is also the sole registered freehold proprietor with possessory title of a parcel of land at the rear of No 156 registered under title number AGL77518, having been registered as such in the Proprietorship Register of the title on 13th December 2007. The land comprised in this title was registered in the Property Register on 13th April 2000. This parcel is shown tinted red on the Site Plan (“the Red Land”). The Red Land not only comprises land to the rear of No 156, but also extends to the land at the rear of the neighbouring property at 158 Colin Gardens (“No 158”). No 158 was registered under title number NGL656991 in the names of Mr Edward Morrison and Ms Lesley McNealis (“the Respondents”) on 23rd December 1996. No 158 is shown tinted yellow on the Site Plan. I should state that the Red Land as shown on the Site Plan is not wholly contiguous with the official title plan of title number AGL77518 in that the area contained within the Red Land as drawn and coloured thereon is larger than the area registered with possessory title.  I shall refer to this aspect again below.

2.	The Applicant on 11th November 2010 applied on Form AP1 (“the Application”) to register the benefit of a prescriptive easement in favour of No 156 in the form of a claimed right of way over part of the rear garden of No 158 as shown tinted blue and cross hatched in black on the plan which accompanied the notice from the Land Registry dated 23 November 2010 (“the Notice Plan”).  This easement allegedly acquired by prescription lies over part of an existing right of way (“the Right of Way”) granted by deed over a number of burdened properties including No 158 and which serves to provide access from the roadway known as Colin Gardens to the rear of 158 to 150 Colin Gardens. There is a similar access to the rear of the houses to the south from 160 Colin Gardens onwards. I shall refer to that part of the land tinted blue and cross hatched in black on the Notice Plan and cross hatched in black on the Site Plan as “the Passageway”. I should state that where the Right of Way runs along the south side of No 158 from Colin Gardens it also falls within the title of No 158 (see official copy of the title plan to No 158, and note 2 in the Charges Register of the Respondents’ title).

3.	The Right of Way emanates from the public highway and initially runs on an east/west trajectory along the side of No 158. At the rear of No 158 it turns north and forms the Passageway straddling across the western end of the garden of No 158 between points C and A on the Site Plan and the Notice Plan. It then turns east in a “dog leg” formation at the north western corner of the garden between points A to B, and E to F (“the Dog Leg”). Thereafter the Right of Way continues in a northerly direction across the centres of No 156 and the remaining gardens to the north, as can be seen from the Site Plan. Originally the Passageway ran through the centre of the garden of No 158 through a gate in the fencing flanking the garden at approximately point W on the Site Plan. However, the direction was altered to its present trajectory by an agreement apparently made between the Respondents’ predecessors in title and the Applicant at a stage prior to the Respondents purchasing No 158 in December 1996 (see below). This relocation of the Right of Way to the western end of the garden of No 158 between points C to A to B probably occurred in about 1990 although the exact date is unclear. This is the date asserted by the Applicant in his Statement dated 23rd October 2010 and his Statement of Truth (“the Statement of Truth” - see below). However, it must be said that in his Statement of Case he refers to this date as being 1998. 

4.	In the Statement of Truth in Form ST4 provided by the Applicant in support of the Application he claims (in panel 9) to have the benefit of the right of way as follows:-

“A right of way to pass and repass on foot at all times and for the purpose of having access to the property of the land at the back of 156 Colin Gardens [Title No. AGL77518] from Colin Gardens over 158 Colin Gardens [Title No. NGL656991] to the land at the back of 156 Colin Gardens [Title No. AGL77518] and/or from 156 Colin Gardens [Title No. NGL359589/NGL590758] over the land of 158 Colin Gardens [Title No. NGL656991] to the land at the back of 156 Colin Gardens [Title No. AGL77518] over the right of way on 158 Colin Gardens [Title No. NGL656991] that has existed from 2nd December 1987 as described in section 2(a) of the deeds as of 2nd December 1987 of 158 Colin Gardens [Title No. NGL656991] under Rule 72 of the Land Registration Acts 1925 as shown in red on the Title No. NGL656991.” 

	Insofar as the details of the user claimed by the Applicant this appears in panel 10 of Form ST4 as follows:-

“In 1990 the owners at the time of 158 Colin Gardens moved a path, which at that time was across the middle of their rear garden/land/property; to a point that would enclose a larger part of their property into a garden area by fencing off this area and moving this path to the rear/end (most westerly part) of their property forming what has been referred to ever since as the ‘Dog Leg’ and giving direct access to ‘The Land at the back of 156 Colin Gardens’ over 158 Colin Gardens by way of a gate set at the turning point of the Dog Leg [i.e. at point X on the Site Plan  – my interposition] and from 156 Colin Gardens over 158 Colin Gardens…” 

	In panel 10 of the Form he states that user commenced from early 1990.

5.	The Applicant therefore claims that he has acquired a right by prescription along the Passageway since early 1990 for the benefit of the Red Land coterminous with the easement of way granted by deed over the same parcel of burdened land at the rear of No 158. The Respondents, whilst acknowledging that there is an existing right of way granted by deed along the Passageway over the rear of No 158 serving No 156 and other properties to the north in Colin Gardens, have objected to the application for the reasons set out in their letter dated 9th December 2010. In effect they contend that no prescriptive rights have been acquired by the Applicant for the benefit of the Red Land over that part of the Passageway forming part of their property at No 158.

THE BACKGROUND
6.	The Applicant, and his then wife Mrs Janine Florenza Sinclair, became the registered proprietors of No 156 on 2nd October 1987, the property having been first registered on 15th May 1987 following the transfer dated 22nd April 1987 between Cadbury-Schweppes plc and a Mr Dean Kosmin. 

7.	Note 2 in the Property Register of the title makes reference to the benefit of the rights granted by but subject to the rights reserved by a transfer dated 22nd April 1987 referred to in the charges register. Clause 2(a) of this transfer provides as follows:- 

“To pass and repass on foot at all times and for the purpose of having access to the rear of the property hereby transferred over and along the footpath laid between numbers 158 and 160 Colin Gardens and at the rear of number 158 and shown coloured blue on the said plan…”

8.	Subsequently the Applicant made a successful application in Form FR1 dated 5th April 2000 to the Land Registry for registration of the Red Land based upon a claim for adverse possession.  In support of that application the Applicant made a statutory declaration dated 24th March 2000 (“the Statutory Declaration”). This was disclosed as part of supplementary disclosure (“the Supplementary Disclosure”) following a direction made by me at the conclusion of the first day of the hearing in October 2011.  I should state that on 13th December 2007 the Applicant was subsequently registered in the proprietorship register of the Red Land as the freehold proprietor with possessory title. 

The Statutory Declaration
9.	The Statutory Declaration makes reference to the fact that at the rear of No 156 the fence line had collapsed as a result of which access became accessible to the area of land at the rear of the property referred to in the Declaration as “the Plot”.  In paragraph 2 the Applicant then states that as a “temporary measure” until he and his then wife could find homes for all his belongings (as they had moved from a three bedroom property and a one bedroom flat into a two bedroom house) they decided to store various belongings into a garden tool shed erected on the Red Land. It is also stated that they erected a lap larch fence three foot high around its perimeter.  It is then said that following the October 1987 storm some damage was caused to the recently erected fence and this was replaced with chicken wire fencing in order for the Plot to remain secure. No mention is made of any gaps or gates in this perimeter fence allowing access along its western flank, and any such breaks could presumably have compromised the claim to adverse possession by the Applicant and his then wife as the adjoining owners of No 156. Meanwhile access to the rear of No 156 and the other houses to the north continued to be achieved, when required, by means of the Right of Way running more or less in a straight line through the centres of the gardens from point W on the Site Plan and some yards to the north of the eastern flank of the Red Land.

10.	As the Declaration further reveals, the Red Land continued to be used by the Applicant and his former wife.  It is said that it was used for the Applicant’s then wife for planting and for her to take gentle strolls owing to an illness which had developed in the winter of 1990.  This meant that she was not restricted to the confines of her house. A dog kennel was also place within the Plot to house to house a dog which had been acquired to keep her company. The dog was let off its lead to run and play whilst on the Plot in the knowledge that it was secure for the dog. 

11.	In short the Applicant asserted in the Declaration that he and his then wife had been continuously using the Plot since they purchased No 156 in September 1987 and in effect was used with the garden and incorporated into the garden of No 156. It was on this basis that he succeeded in convincing the Land Registry of his claim, and the Plot was duly registered as the Red Land.  

The Dog Leg
12.	When the Respondents purchased No 158 in December 1996 the arrangement of the Passageway with the Dog Leg configuration was at that stage in existence. As stated above, it appears that Mr and Mr Warr (the immediate predecessors in title to the Respondents) reached a verbal agreement with the Applicant (apparently made in 1900) to make the garden at the back of their property more private and at the same time relocate the Passageway from the middle to the end of their garden.  This was on the basis that the relocated  right of access would continue to be connected into the existing shared Right of Way which ran through, and continues to run through, the middle of the gardens of numbers 156 to number 150 Colin Gardens and whose owners would continue to have the benefit of the easement.  The Applicant in his statement contained in the trial bundle says that this arrangement enabled him to have direct access from the Passageway into the land at the back of No 156 over No 158 by means of a gate set at the turning point of the Dog leg at point X on the Site Plan.

13.	It was apparently in this manner that the Dog Leg came to be created and that the part of the Passageway where it crossed No 158 came to be re-located and fenced off from the rear of the garden of No 158. This configuration meant that the eastern limb of the Dog Leg remained open and unfenced on its northern flank facing the rear garden of No 156 and also at point Y on the Site Plan on its western flank. By virtue of the positioning of this fencing  the Dog Leg became in effect incorporated into the garden of No 156. This led to a potential issue at a stage prior to December 2006 as to whether the Applicant could lay claim to the Dog Leg by virtue of adverse possession as it could be construed that the 12 years period of limitation had expired by 2002 (if 1990 was the date when the Dog Leg was created) .

14.	It must be said that this arrangement does not seem to have been the subject of any agreement with the owners of the other properties in Colin Gardens to the north, and no deed of variation seems ever to have been entered into between the then owners of No 158 and the Applicant, or indeed any of the other property owners to the north. However, no-one seems to taken issue with this despite the fact that the width of the Right of Way was reduced by approximately half in its width as it runs through the garden of No 158  than before at the time when it ran through the centre of the garden of No 158.

The Land Registry survey
15.	Enclosed in the supplementary documentation is a Land Registry survey requisition and replies (“the Survey”) to the Land Registry surveyor dated 29th June 2000. This bears the date of a site visit made by the surveyor on 9th August 2000.  This document is incomplete in that it would appear that some of the reverse pages have not been photocopied.  However, the first page refers to the adverse possession claim in Note 2 of the requisitions, and in (iii) a specific request is made as to all means of access. In the note appended to the replies to the requisitions, the following statement appears:-

“Access to land is via 156 Colin Gardens – rear garden.  However please note the passageway with separate gates (150 to 156) and the passageway at the rear of 158 to 168, see sketch plan and photos”.

16.	The sketch plan (at page 39 of the Supplementary Bundle) (“the Sketch Plan”) sets out various features in some detail, but not to scale. One of these features indicates that certainly by August 2000 new fences had been erected in the vicinity of the northern and western perimeters of the garden to No 158.  As I have stated above, the Applicant says that this event occurred in 1990. These erections physically separated and continue to separate the Passageway from the garden of No 158, although the Passageway still remains part of their registered title, albeit that the Dog Leg itself on its northern flank continued to remain unfenced where it abutted the garden of No 156.  Although it is somewhat unclear as to what had happened to the garden shed erected upon the Red Land referred to by the Applicant in his Statutory Declaration, it is apparent from the photographs taken by the surveyor that at that stage in August 2000 no shed or “summer house”  had been erected on the Red Land.

17.	The Sketch Plan also reveals that by August 2000 three and a half sides of the Red Land were fenced on a continuous basis there being no gaps or gates.  The fence on the northern boundary of the Red Land is described as being a wire mesh fence with wooden rail posts over a distance of 9.7 metres. The fence at the western boundary is described as being 8.7 metres in length and comprises wire garden fencing with wooden rail posts. The fence to the south is also 9.7 metres in length and comprises 3 panels of larch panel fencing.  

18.	The eastern boundary is shown on the Sketch Plan as comprising two parts. First, the northern section is shown as being 4.3 metres in length and is marked as unfenced and therefore open to the rear garden area of No 156. Along this unfenced boundary line in the western portion of the eastern boundary of the Red Land the Sketch Plan shows a metal garden shed of 5 years plus in age apparently wired up for electricity the western side of which runs along the boundary line formerly dividing the garden of No 156 from the Red Land. Secondly, the southern part abutting the western side of the Passageway before the Dog Leg is 3.4 metres in length and is described as being fenced with a chain link fence said to be about 30 years old.  This description appears to approximate between points A and C on the Site Plan (but see below). 
 
19.	The configuration of these measurements is not entirely clear as the boundary line between the gardens of No 156 and No 158 is shown as a continuous line which at its southern end refers to the “new fence” i.e. the line of the fence running from point E to point F from north to south on the Site Plan. However, this does not take into account that at those points the fence is erected about one metre or so into the garden of No 158 – in other words the fence line is “stepped” as part of the Dog Leg formation. Also the surveyor has not recorded on the Sketch Plan the actual existence of the Dog Leg or the fact that at the time of the survey the Dog Leg was open on its northern and western flanks, and in effect was incorporated into the garden of No 156.
20.	Further it must be stated that the photos produced by the surveyor, as part of the Survey, seem to indicate that on the ground the northern end of the chain link fence along the eastern boundary of the Red Land falls short of point A on the Site Plan.  Photographs numbered 6 and 7 serve to demonstrate this.  It would appear that the width of the concrete pathway forming the base of the Dog Leg between points A to B and F to E is approximately one metre, and this width does not seem to form part of the 3.4 metre calculation made by the surveyor. In essence the surveyor does not seem to have recorded accurately all the features on the ground.
 
21.	At the northern end of the chain link fence at point X just before the Dog Leg the Sketch Plan indicates that there is a 15 years plus gate which is hooked on to the inside of No 156, the bolts being described as not usable at present.  This bears the motif “Beware of the Dog”. This gate is shown in photographs numbered 1, 6, 7 and 12.

22.	The position is further complicated by the fact that the surveyor has recorded the south eastern corner of the site of the area, the subject matter of the adverse possession claim by the Applicant, as lying at about point C on the Site Plan.  Whereas on site the southern flank fence erected just outside the wall of the shed (“the Shed” - this is also referred to as a “summer house” in some of the documentation), as constructed by the Applicant in 2002, lies a metre or just less to the south of point C.  This is more or less in line with the continuation of a line drawn westwards from the flank of the garden wall of number 160.   

23.	The area of the Red Land on the Site Plan also confirms this position as do the marks drawn on the plan submitted in support of the FR1 application by the Applicant’s solicitors on 5th April 2000.  It is also to be noted that the area of land contended for by the Applicant is 10 m x 10.550 m, whereas the Sketch plan shows that the area is 9.7 m x 7.7 m, or 9700 x 8.7 m depending on whether the measurements from north to south are along the eastern or western boundaries. 

The official title plan
24.	However, the official title plan to title number AGL77518 indicates that the area as registered conforms to the Sketch Plan in its slightly unequal shape and in particular as to the position at its southern flank. The inference to be drawn from this is that the land upon which the Shed has been constructed is approximately one metre or thereabouts to the south of the land originally acquired by the Applicant by means of his adverse possession claim. This means that the measurement produced by the surveyor of 3.4 metres should be calculated from point C and not about one metre to its south. This measurement provided by the surveyor then approximates with the former northern end of the chain link fence between point A, and the former position of the gate at point X. In short it would appear that formerly there was a gap between the left hand side of the gate at point X and point A, the gap in the fence line on the continuum of the line C to A being about the same width as the concrete surface of the Dog Leg. 
  
25.	These various features, to which I have made reference above, can be seen in the photographs taken by the Land Registry surveyor.  I particularly refer to photograph number 1 which shows the gate at the northern end of the Passageway where it abuts the rear garden of No 156, and also the new fence erected towards the southern end of No 158; photographs number 3 and 4 which indicate the continuation of the right of way across the middle of the gardens of No 156 and 154; photograph number 6 which indicates the continuous chain linked fence (overgrown with vegetation) lying along the eastern boundary of the Red Land where it abuts the western side of the Passageway, and the fence along the eastern side of the Passageway behind it; photograph numbers 11 and 12 which indicate the access between the garden area of No 156 and the Red Land, together with the 15 year plus gate situated at the northern end of the Passageway at point X, and the metal garden shed erected on approximately half the garden area of No 156 where it abuts the Red Land.

26.	Finally, as already noted that the Land Registry surveyor in his Replies to the Requisitions makes reference to access to the Red Land as being via the rear garden of No 156, and he refers to a passageway at the rear of numbers 158 to 168. However, neither he, nor the Applicant in his Statutory Declaration, makes any mention of access to the Red Land via the Passageway. 

Summary
27.	Thus, drawing together the various strands from the Survey, it appears that the end of the chain link fence along the eastern flank of the Red Land fell short of that part of the boundary line of the gardens between No 156 and No 158 between points A and B by about one metre. This is the approximate width of the passageway at points A to Y.  This meant that the southern end of the Dog Leg lying to the north of the gate at point X, and where it abutted the eastern flank of the Red Land, was open and unfenced. This enabled the Applicant to “step down” (as he put it) from that part of the Passageway into the rear garden of No 156, and then gain indirect access into the Red Land, or to maintain direct access into the Red Land by turning left and west at point Y.  This interpretation of the facts is significant when regard is had to the principles of law set out below.

The Shed
28.	After the Red Land was registered in the property register of the title on 13th April 2000, but before the Applicant was registered with possessory title in the proprietorship register on 13th December 2007, he embarked upon the construction of the Shed on the southern portion of the Red Land where it abuts the western side of the Passageway.  The Supplementary Bundle contains four photographs and they are captioned as having been taken between August 2000 and September 2002.  The first two photographs on page 27 demonstrate the construction of the base of the Shed, and the two photographs which appear on page 28 indicate the Shed at its completion stage.  These four photographs also illustrate the configuration of the Passageway between the fence constructed towards the western end of the garden of No 156 and the Dog Leg.  In particular it can be seen that the fence at the northern edge of the Dog Leg was built one metre or thereabouts inside the perimeter of the garden of No 156 at points E to F and the gate at point X is in line with that fence and is similarly set back into the Respondents’ land by a metre or so. This confirms the position that at points X and Y on the Plan, despite this corner falling within the Respondents’ title, the Dog Leg on its western and northern sides was unfenced and therefore open to the garden of No 156.  

29.	The position with regard to the Shed was that the construction of its base construction commenced in about 2000 without planning permission and its erection was completed in about 2002. After some local dissension as to its erection, planning permission was refused in July 2002, but on appeal the inspector allowed the appeal in February 2003.

The December 2006 enclosure of the Dog Leg
30.	Subsequently in 2006 the Respondents were desirous of selling No 158.  However, some concern was expressed to them by their solicitors that there were questions as to the boundaries of their property particularly relating to the reconfiguration of the Right of Way and the construction of the Passageway.  There was also the potential issue that a claim could have been mounted by the Applicant as to the ownership of the Dog Leg as it had effectively been incorporated into the garden of No 156. On advice given to the Respondents by their solicitors the Dog Leg was then enclosed on its western and northern flanks between points X to A, and A to B, with the 15 year plus gate being moved by the Respondents from point X and placed in the fence line at point Z. This action meant that there was no longer any gap between points X and A. 

31.	However, this action was apparently not well received by the Applicant who demanded that the fence be taken down and the gate reinstated to its previous position (see letter dated 31st March 2010 from Messrs Northwood Collings, solicitors then instructed by the Respondents). This did not occur.  Also it is asserted by the Applicant that parts of the fencing and posts erected by the Respondents have encroached upon his land and there is therefore a boundary dispute.  He then a sign at the edge of his land for all to see stating that there is a boundary dispute. The effect of this is that it is said that No 158 is rendered unsaleable.
The positioning of the gate at point Y
32.	More recently and at some stage (the Applicant says this occurred in 2007, and the Respondents assert it was between September 2009 and March 2010) the Applicant removed the panel erected by the Respondents between points X and A and placed an additional gate (a “picket gate” according to the Applicant) in the western fence line of the Passageway where there had formerly been the gap (see above). Reference to this fact is made in the letter dated 31st March 2010 from Messrs Northwood Collings, and a photograph of this gate appears at paragraph 5.3 of this letter.  The purpose of this has been to enable the Applicant to gain direct access from the Passageway to the Red Land instead of having to achieve such access via No 156 through the gate at point Z.  It also meant that the Applicant could access the Shed on the Red Land from the garden of No 156 by using the Dog Leg route from point Z to point X instead of accessing it directly from the garden of No 156.
 
SUMMARY OF THE APPLICANT’S CASE
33.	It is contended by the Applicant that since early 1990 until the present time he has been able to access the Red Land by “chiefly utilising the existing right of way” both following its original trajectory, and following its re-configuration when the Dog Leg was created over No 158.  The Applicant asserts that direct access was achievable to over the whole of the Red Land by virtue of the re-configuration of the Right of Way and the creation of the Passageway from about 1990 to about December 2006/January 2007 when the Passageway was enclosed on its northern and western sides and direct access could no longer be maintained to the Red Land. At a date either in 2007 or between September 2009 and March 2010 a gate was inserted at point Y by the Applicant to enable such access thereafter to continue. 
 
34.	The Applicant denies that he has been running a business from the Shed since it was erected in 2002. He has several business interests namely as an engineer in hydraulics and electronics business, and in security services and equipment. His company is called “Simplex Security Systems”. The daily running of the business is 99% paper work and he runs a “home office” from the Shed whereby he organised deliveries to sites, and he stores items there. However, he is not engaged in business use there and he is not trying to claim such, and the Shed does not comprise a warehouse or shop. People rarely visit him and no-one is employed there.    

35.	It is said that such access by the Applicant over the Passageway and on to the land at the rear of No 156 has been without agreement, permission, consultation, discussions or by stealth (nec vi, nec clam, nec precario) for the period of more than twenty years for his personal use, and that of his household, from Colin Gardens along the Passageway into the Red Land.  It is said that such rights are prescriptive rights arising under the provisions of the Prescription Act 1832. 

SUMMARY OF THE RESPONDENTS’ CASE
36.	The Respondents deny that the Applicant has acquired a prescriptive right over the Passageway in order to access the Red Land.  They accept that there is an easement granted by deed for the benefit of the adjoining owners of the properties to the north including No 156 to utilise the Passageway but on the limited basis as set out in the grant. They assert that the Applicant has not acquired a separate prescriptive right for the purposes of access to and egress the Red Land.

37.	Further, and in any event, the Respondents assert that they were unaware that the Applicant had acquired possessory title of the Red Land until the summer of 2002 when the Applicant’s ex-wife claimed this. Activities on the Red Land had commenced in about 2000/2001 when fencing was erected surrounding the Red Land, trees were felled, and piling for the construction of the base of the Shed started in about 2001. The Shed itself was erected in 2002. Prior to these activities commencing the Respondents were unaware that anyone used the Red Land.

38.	Further, the Respondents contend that the Applicant has been running his business from the Shed erected by him at the rear of No 156 from about 2002.  They contend that a number of people being customers or clients of the Applicant frequently use the Passageway in order to meet the Applicant on the Red Land and collect various goods from him items. Every day deliveries are made of boxes both large and small, and equipment.  As the first Respondent stated in his evidence, it has been a “busy alleyway” since 2002 with people coming and going along the Passageway during early mornings (before 7 am), and throughout the day and evenings, and also on Saturdays. The noise levels with “chit chat” and whistling could be high.  He accepted that from 2007 until 2009 when the property was tenanted he had no direct knowledge of such activities, but stated that the tenant had kept him informed. The tenant (Ms Marina Hierro) also gave evidence and confirmed the nature and extent of such activities. The second Respondent (the Respondent’s partner) also gave evidence to the same effect. She was often present during the day in No 158 as she stopped work in May 2002 to have children, only resuming part-time in January 2003.  

39.	The Respondents contend that such activities on the Red Land are in breach of clause 5(a) of the conveyances of No 156 and No 158 (and also reflected in the deeds of the other properties) in that such activities are a nuisance and annoyance to the owners and occupiers for the time being of the adjoining or neighbouring properties. They contend that use of the passageway is for the residents of the adjoining houses in accordance with the grants by deed and no more. 

THE PRINCIPLES OF LAW
The 1832 Act
Generally
40.	To establish a claim for an easement acquired by prescription under the 1832 Act the Applicant must demonstrate that for the requisite period of twenty years the owner of the dominant tenement has had continuous enjoyment and benefit of the right of way over the servient tenement based upon the same quality and character as is necessary to demonstrate at common law (see Tickle v Brown (1836) 4 Ad & E 369 at p 382, and Gardner v Hodgson’s Brewery Co Ltd [1903] AC 229 at pp 238, 239).  Such user must not only be as of right, without force, without secrecy and without permission (nec vi, nec clam, nec precario) as at common law, but also it must be by or on behalf of one fee simple owner against another.  There are a number of points to be analysed.

Acquisition by prescription – the principles 
41.	The following legal principles are relevant:-

(1)	It is necessary to show that the enjoyment has been as of right for a period of 20 years or more. As of right means that the use must be such so as to convey the impression to the owner of the putative servient tenement that use as of right is asserted. The essence of the rule is that the claimant must prove not only his own user but also circumstances which show that the servient owner acquiesced in such user (see Sturges v Bridgman (1879) 11 Ch D 852 at 863).  In the case of Dalton v Angus & Co (1881) 6 App.Cas 740 it is stated that:-

“The whole law of prescription… [rests] upon acquiescence… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: (1) a knowledge of the acts done; (2) a power in him to stop the acts or to sue in respect of them; and (3), an abstinence on his part from the exercise of such power.” (at 773/774, per Fry J).

Thus, permissive user (precario) is the most common kind of enjoyment which will vitiate a claim by prescription. Such rights are established because of the acquiescence or tolerance of the landowner over whose property they are exercised.  If the landowner is not aware of such actions, then there can be no acquiescence and he cannot be taken to have assented to such conduct.

(2)	A continuous right must be asserted.  Such use as of right must be demonstrated to have been exercised throughout the 20 year period.  The use of a right of way is by its nature discontinuous, and the enjoyment need not be incessant to give rise to such prescriptive right.  Nonetheless, the use must be of such nature and at such intervals as to indicate to the owner that a continuous right is claimed (Gale on Easements, 18th Edition, section 4-120). Thus occasional use or casual use is unlikely to amount to a claim as of right – such use does not put the servient owner on notice that a right is being asserted.  

“To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously.  This is a profit of a kind that, of its nature, would only be used intermittently.  Flocks would not, for instance, be on the down at lambing time, or for 24 hours of the day, or very possibly on every day of the week or all round the year.  But the 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.” (see White v Taylor (No 2) [1969] 1 Ch 160, at page 192).

“No actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user 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 of enjoyment is being asserted, and ought to be resisted if such right is not recognized, and that resistance to it is intended.” (See Hollins v Verney [1884] 13 QBD 304, at page 315).

(3)	Use of the way that is by permission of the owner of the land of the way is not use as of right, and each occasion upon which use of the way is enjoyed under a permission amounts to an admission that the user had no right. This breaks the continuity of any user as of right that has been exercised;

(4)	The burden of proving that there has been the requisite use as of right rests upon the Applicant, including proving that use has not been by permission.

(5)	If the user becomes contentious and/or is interrupted during the twenty year period then it is not continuous and user as of right terminates.

42.	As stated in Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 at 239:

“A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established that the enjoyment must be inconsistent with any other reasonable inference than that it has been a of right in the sense above explained.  This, I think, is the proper inference to be drawn from the authorities discussed in the court below.  If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established…”

43.	If a prescriptive right is established, then the purpose for which it may be exercised is to be gathered from the evidence of the past use, in all the circumstances. 

The dominant tenement - identification
44.	Having stated that for an easement to exist there must be a dominant tenement it then becomes necessary to identify that tenement.  Insofar as where the easement is created by deed then that is relatively straightforward.  However, in the case where rights are claimed by prescription the dominant tenement is sometimes more difficult to identify.  In the present case there is a clearly defined dominant tenement by virtue of the clause contained in the transfer, which, incidentally, does not precisely define the exact positioning of the Right of Way itself over the rear gardens of the various houses.

45.	The principle is that where the Right of Way is defined the extent of the dominant tenement is strictly limited to the land intended to be benefited at the time.  Thus, where the Right of Way is defined by deed it may only be used for gaining access to the land identified as the dominant tenement in the grant.  This is known as the rule in Harris v Flower & Sons (1905) 74 LJ Ch 127 where it is stated

“if a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.”

	It was also stated that as every easement is a restriction upon the property rights of the owner of the servient tenement, no alteration can be made in the mode of enjoyment of the dominant tenement the effect of which will be to increase such restriction beyond its legitimate limit (at p. 132 per Vaughan Williams LJ).  It is, of course, more difficult to define the extent of that legitimate limit (see Gales on Easements 18th Edition 2008 at paragraphs 9-31ff.)

46.	The case of Harris v Flower & Sons has been applied subsequently in Bracewell v Appleby ([1975] Ch 408) and Jobson v Record ((1997) 75P&CR 375).

47.	More recently a body of case law has developed involving attempts to challenge or distinguish this rule such as in the case of Graham v Philcox ([1984] QB747) and in National Trust v White ([1987] 1WLR 907), and Massey v Boulden ([2003] 1WLR 1792).  In the case of Peacock v Custins ([2001] 2 All ER 827) the Court of Appeal explained the principle in the following terms:-

“the right to use a right of way is determined by the terms of the grant, specifying the dominant tenement for the purposes of which the right is created.  Trespass is whatever is not permitted by the grant.  The right is not to use the way for the purposes of benefitting any property provided that the total user does not exceed some notional maximum user to which the beneficiary might have been entitled to make for the purposes of the dominant tenement.  If that were the test, the beneficiary might in some circumstances use the way entirely for purposes other than those of the dominant tenement.  The right is to use the way for the purposes of the dominant tenement only. …the authorities indicate that the burden on the owner of the servient tenement is not to be increased without his consent. The burden in this context does not refer to the number of journeys or the weight of the vehicles.  Any use of the way is in contemplation of law, a burden and one must ask whether the grantor agreed to the grantee making use of the way for that purpose.”

	In this case the judge at first instance had refused to make a declaration that the claimants were not entitled to use the way for gaining access to the second and adjoining parcel of land on the basis that it did not involve any significant additional user of the way.  In the Court of Appeal that decision was overturned and the declaration was made.

48.	Thus, in short, a right of way can normally only be used as a means of access to the dominant tenement.  The right to pass over parcel A to reach parcel B cannot be used as a means of access to parcel C lying beyond parcel B unless parcel B is itself used as a means of access to parcel C at the time of the original grant.  The mere fact that parcel C is added to parcel B so that the dominant tenement is enlarged, would not necessarily destroy a right of way previously appurtenant to parcel B.  This depends on whether the user for the purposes of parcel C is merely “ancillary” to the user for the purposes of parcel B.  If the result would be a substantial use of the right of way for the benefit of land outside the dominant tenement i.e. parcel C, then this would be unlawful (see Das v Linden Mews Limited [2003] 2 P&CR 58).

49.	However, if the contention made as to the acquisition of the right of way by prescription is the right to pass over parcel A to reach parcel B directly over an existing right of way, then this is not a question of accessing the land indirectly via another parcel of benefited land i.e. to gain access to parcel C via parcel B in the example above.  Such a right can be independently acquired over an existing right of way even if granted by deed if the conditions for its acquisition by prescription are met.

“next before suit or action”
50.	A further requirement under the 1832 Act is that by the provisions of section 4:- 
“(i)	All periods of enjoyment under the Act are those periods next before some suit or action in which the claim is brought into question.
 (ii)	No act is to be deemed an interruption until it has been submitted to or acquiesced in for one year after the party interrupted had notice both of the interruption and of the person making it.”

51.	In my judgment there would seem to be four possible interpretations, namely that:

(a)	the making of an application to the Land Registry for the registration of a right of way is not “some suit or action”, and it refers only to court proceedings as properly constituted; 
(b)	the “suit or action” is the making of the application and its acceptance by the Land Registry; 
(c)	the “suit or action” is the making of an objection; 
(d)	the decision of the Land Registry to refer the matter for adjudication.

52.	As a matter of law and construction I found in the case of Wilkin Sons Ltd v Agricultural Facilities Ltd (Ref: 2011/0420 – dated 10th April 2012) that an application by a party seeking to pursue a claim which is later opposed by the objector, the result of which the matter is then referred to the Adjudicator, falls within the statutory requirement.  In other words I found that option (b) is the correct position and that the making of the application and its acceptance by the Land Registry constitutes a “suit or action”.  This is the day upon which the application is entered on the Day List at the Land Registry being the day when the applicant takes the formal step which may initiate a judicial determination if the application is disputed and the matter is then referred to the Adjudicator. If the application is successful, either because it remains undisputed, or if disputed the applicant eventually succeeds, then the easement will be registered from the date of entry on the Day List. 
 
53.	In the present case therefore the application was made by the Applicant to the Land Registry on 23rd October 2010 and entered into the Day List on 11th November 2010, it is that date which is relevant date for the purposes of “suit or action”. The Applicant therefore has to demonstrate 20 years user prior to that date i.e. from 11th November 1990.

THE FINDINGS
54.	In my judgment there are four separate periods of user to be considered in the context of the means of access to and from the Red Land whether made directly or indirectly over the Passageway.  

(1)	From December 1987, being the date when the Applicant was registered as the proprietor of No 156, to 1990 when the Passageway was reconfigured and the Dog Leg was created; 
(2)	From 1990 to December 2006 being the date when the Respondents erected fencing along the western and northern flanks of the Dog Leg and placed the gate formerly at point X into the northern fence line of the Passageway at point Z;
(3)	From December 2006 to a date between September 2009 and March 2010 when the Applicant inserted a new gate at position Y on the Site Plan.  The Applicant asserts that this occurred in 2007;
(4)	Finally, between that date and 11th November 2010 when the Applicant’s application was entered into the Day List.

55.	Insofar as the first period is concerned, the Applicant’s access to the Red Land over the Right of Way can only have been indirect through the rear garden of No 156.  In any event he claims the date for the acquisition of the easement as being early 1990 and not before. Insofar as the second period is concerned, it appears that the Applicant’s access to the Red Land could have been either direct or indirect.  It could have been direct in that he could have passed along the Passageway and through the gate at point X on the Site Plan and then either have proceeded in a northerly direction into the rear garden of No 156 and then turned left and west into the Red Land at point A. Alternatively the Applicant could have turned left and west when the gap existed at point Y.  This produces a somewhat artificial state of affairs.  

56.	Insofar as the third period is concerned, from December 2006 the Applicant could only have accessed the Red Land indirectly through the gate at point Z via the garden of No 156 because any direct access through point Y was prevented.  Direct access was then in principle re-established whether on a date between September 2009 and March 2010, or in 2007, when the Applicant inserted the gate at point Y.  This is the fourth period. 

57.	Adding together these periods in the context of the Applicant’s asserted claim to have acquired an easement between early 1990 and November 2010 (being just in excess of 20 years) and also ignoring the first period, I find the following:- 

(1)	Insofar as indirect access is concerned when access could only have been made via the garden of No 156, on the Applicant’ case he asserts that such access occurred from December 2006 to an unspecified date in 2007. This could be from one month up to one year. The Respondents for their part assert that this period ran from between December 2006 and September 2009 and March 2010 i.e. for the period of just under or just over three years.  
(2)	Insofar as direct access is concerned during the second period the Applicant can only demonstrate just under 17 years user. This is on the assumption that on each and every occasion during those years the Applicant turned left and west through the gap at point Y in order to achieve such access. Subject to observations made below, if the third period is added to this calculation then the total period on the Applicant’s case is 20 years 8 months i.e. when the period from January 2007 to November 2010 is added.  

58.	However, two important aspects arise for consideration in this regard, First, insofar as the Applicant seeks to argue that he has gained a prescriptive right over the Passageway in order to access the Red Land directly through the gate formerly positioned at point X by means of a left or westward turn, it is necessary for him to demonstrate that he has fulfilled the relevant requirements for acquisition of a right of way by prescription.  Insofar as indirect access by gaining access to the Red Land by means of the garden of No 156 is concerned not only does the Applicant have to fulfil these requirements, but also he would need to demonstrate that the rule in Harris v Flower does not in some way apply to the circumstances. 

59.	In my judgment insofar as the period when indirect access was achieved to and from the Red Land via the Passageway this is a clear instance of a case where the rule in Harris v Flower applies.  As I have stated above, in order to ground a claim in prescription a continuous right must be asserted and such user as of right must be demonstrated to have been exercised throughout the twenty year period. Such use must have been by its very nature interrupted by virtue of the fact that between December 2006 and a date between September 2009 and March 2010 such user of the Passageway to gain access to the Red Land was indirect. At the highest the Applicant can only demonstrate direct access to the Red Land for the period of just in excess of 17 years and therefore falls foul of the rule in Harris v Flower.  Thus, in my judgment, the only period upon which the Applicant can rely as the basis for his claim to have acquired a prescriptive right over the Passageway is some 17 years or so.

60.	In such circumstances and in the absence of the consent of the Respondents, I find that the Applicant is unable to substantiate his claim to a prescriptive right over and along the Passageway in that manner for the periods which I have identified, above.  

61.	In this regard I also find that as a matter of law it is not possible to add together in some way the periods of direct and indirect access so as to provide a calculation of user in excess of 20 years in the circumstances.  By reason of the rule in Harris v Flower the period of indirect access has to be wholly discounted. 

62.	Further, and in any event insofar as the date when the Applicant inserted the new “picket” gate at position Y on the site plan I prefer the evidence of the Respondents in this regard and I find that the gate was inserted between September 2009 and March 2010, and not in 2007.  There is documentary evidence to support this finding in that in paragraph 5.3 of the letter dated 31st March 2010 from Messrs Northwood Collings there is reference to the fact that the Respondents informed their solicitor that the Applicant had erected this gate “within the last six months”, and a photograph of that gate is supplied. This means that the period of indirect access along the Passageway is just less than or just in excess of 3 years.

63.	Also, as I have set out in paragraph 41, above, the essence of a claim in prescription is that the Applicant must demonstrate that such user has been as of right for the period of twenty years or more, meaning that such use must be such so as to convey the impression to the owner of the putative servient tenement that user as of right is being asserted.  The claimant must demonstrate that the servient owner has acquiesced in such user i.e. it has been permissive.  In the present case the Respondents stated in evidence that they were unaware of the use of the Passageway by the Applicant for gaining access to and egress from the Red Land (as opposed to the garden of No 156) until the Shed was erected in 2002 when it became clear to them that the Applicant was using the Passageway for gaining access to the Shed for the purposes of (as they assert) business use.  It was only then and I so find that they were told by the Applicant’s ex-wife that they had acquired the Red Land. Prior to that time they could not have known and they stated in evidence that they did not know that the Applicant was specifically using the Passageway for access to the Red Land either directly or indirectly.  This therefore means that the Respondents were then only made aware that the Passageway was being so used by the Applicant, and that at this point in time that such alleged user then became contentious.

64.	I should also state re-iterate the point made in paragraph 9, above, that in his statutory declaration the Applicant makes no mention of any gaps or gates in this perimeter fence allowing access along its western flank, and any such breaks could presumably have compromised the claim to adverse possession by the Applicant and his then wife as the adjoining owners of No 156. Quite when the Applicant started to use the Passageway to maintain direct access to the Red land is open to considerable doubt.

65.	In all these circumstances, I therefore find that the Applicant has failed to demonstrate that he has acquired an easement by prescription under the 1832 Act over the Passageway in order to access the Red Land either in a westweard direction along the Dog Leg from the garden of No 156 through the gate at point Z on the Site Plan, or in a northerly direction along the Passageway and turning through the picket gate at point Y.  I further find that the only lawful means of access the Applicant has to access the Red Land is via the garden of No 156.  He has gained no separate prescriptive right of way over the Passageway.

66.	 In such circumstances I therefore direct the Chief Land Registrar to cancel the original Application.  As to the question of costs as both parties are litigants in person the relevant statute (the Litigants in Persons (Costs and Expenses) Act 1975) does not apply and as a consequence the Respondents are only entitled to their out of pocket expenses.  I should be grateful if within fourteen days the Respondents could furnish me with particulars of such out of pocket expenses, such as rail fares, photocopying, and the like.  

67.	I should also add that the offending sign erected by the Applicant on the garden of No 156 should be removed as there is no boundary dispute, in my judgment, between the parties.  Any arguments which the Applicant may have as to whether or not a fence post or two, or a fence, have been erected on his land and constitute a trespass (as he asserted) are de minimis, and, in my judgment, are of no consequence.

Dated this 9th day of May 2012

By Order of The Adjudicator to HM Land Registry