Case Summary: Easements - Right Of Way

Summary

In this case, the Adjudicator found that a barn enjoyed a right of way for residential purposes arising from the fact that it had previously been part of a larger dominant tenement which included a residential farmhouse. Noting that the Council had failed to take any substantive action to enforce its view that the Applicants were trespassers, the Adjudicator concluded that there had been insufficient efforts to interrupt the use so as to show user by force.

Facts

The Applicants owned and occupied Foxhalls Barn. The Applicants had acquired the barn in 1988 by way of a Conveyance which included a right of way over a specified track to the extent "hitherto...exercised by the Vendor and his predecessors in title for the benefit of the said property". This track gave the only means of vehicular access to the barn and, for much of its length, to a nearby farmhouse. The Conveyance was supported by a Statutory Declaration made by the vendor, who declared that the track had been used since at least 1954 "as of right" for all purposes connected with the barn. Following the Applicants' acquisition of the barn, they converted it from agricultural to residential use.

The track is part of Brinsty Common, an unregistered title owned by the Respondent Council. As a result of the decision in Hanning v Top Deck Travel (1993) 68 P&CR 14 (where it seemed – until the decision was overturned by the House of Lords - that prescriptive rights of way could not be acquired over common land because such use was illegal), the Council decided to regulate vehicular access and parking by residents living on Council-owned common land – by granting formal easements at nominal cost to parties who could establish at least 20 years' use and considering other cases on their merits. The Council wrote to the Applicants about this possibility in 2000 and negotiations for the grant of a "formal easement" initially proceeded amicably. However, discussions broke down when the Council discovered that the barn had only been used for residential purposes since around 1988/1989 and claimed that the Applicants had not acquired a prescriptive easement because of the lack of 20 years' use for residential purposes.

In 2010, the Applicants applied to register a right of way across the track referred to in the Conveyance, based on 20 years' use from 1989. The Respondent objected to the application, claiming that the use of the right of way had been with its permission because it had...