REF/2006/0771

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A  REFERENCE FROM HM LAND REGISTRY

BETWEEN
SUSAN RUTH HOPTON
Applicant
and

(1)	SUSAN ELIZABETH GWILLIAM
(2)	ROBERT EDWARD GWILLIAM

Respondents

Property Address: Givendale Head Farm, Snaiton and High Scambridge Farm, Snaiton 
Title Numbers: NYK1567 and NYK80307

Before: Ann McAllister, sitting as Adjudicator
York County Court 
30 January 2008

Representation: Mr Hill instructed by Chadwick Lawrence appeared for the Applicant: Mr Davidson of Davis Davidson appeared for the Respondents

 ___________________________________________________________________________

DECISION

Application to register benefit of right of way – necessity – implied reservation – whether right of way at all times and for all purposes -  Wheeldon v Burrows (1879) 12 Ch D 31; In Re Webb’s Lease [1951] 1 Ch 808;Pwllbach Colliery Company Ltd v Woodman [1915] 1 AC 634 – Peckham v Ellison (1999) 77 P&CR D 27;  Corporation of London v Riggs (188) 13 Ch D 798;  Sweet v Sommer [2004] EWHC 1504; Stafford v Lee (1992) 65 P&CR 172;Mills v Silver (1991) Ch 271 – Chief Land Registrar ordered to give effect to application in modified terms

Introduction

1.	The Applicant, Mrs Hopton, is the registered owner of High Scambridge Farm, Snaiton, registered with title number NYK80307. The Respondents, Mr and Mrs Gwilliam, are the registered owners of a neighbouring farm, Givendale Head Farm, which is registered with title number NYK71567.

2.	Both farms were previously in the common ownership of CIN Industrial Investments Limited (‘CIN Investments’). By a conveyance dated 24 February 1989 (‘the February 1989 Conveyance’) Givendale Head Farm was conveyed to Mr and Mrs Gwilliam. By a further conveyance dated 8 September 1989 (‘the September 1989 Conveyance’) CIN Investments conveyed High Scambridge Farm to Mr and Mrs Hopton.

3.	Access to both farms (from the south) is along a single lane road (‘the Road’) from the A170 at Ebberston and (from the north), along the Road through Dalby Forest, part of the North York Moors National Park. Givendale Farm is situated just to the east of the Road. High Scambridge Farm is south of Givendale Farm and to the west of the Road. It can only be reached along a track (‘the Track’) which joins the Road. The farms are approximately 3 miles north of Ebberston.

4.	Part of the Track runs through a 12 acre field (OS number 5549) forming part of Givendale Head Farm. I will refer to this part of the Track as the Disputed Track. The Track is the only means of access to High Scambridge Farm which would otherwise be landlocked. No express right of way was reserved over the Disputed Track in the February 1989 Conveyance, nor was any express right of way granted by the September 1989 Conveyance. A right of way was reserved, however, over another part of the Road and was subsequently granted by the September 1989 Conveyance (‘the express right of way’).

5.	By an application dated 16 February 2006 Mrs Hopton applied to register the benefit of a ‘right of way for all purposes and at all times for the benefit of the applicant’s registered Title No. NYK80307 over the roadway leading from the property known as NYK80307 to the public highway over registered Title No. NYK71567.’

6.	The application was supported by two statutory declarations, one made by Mrs Hopton, the other by Marguerite Markham who managed Givendale Head Farm,  High Scambridge Farm, Ebberston Common Farm and two other farms on behalf of CIN Investments (the Coal Board Pension Fund) from 1979 until 1989. 

7.	By letter dated 20 March 2006 Davis Davidson, on behalf of Mr and Mrs Gwilliam, objected to the registration of the benefit and burden of the easement in the terms sought. The grounds of the objection related, it was said, to the extent of the right of way claimed. No objection would be made to registration in these terms: ‘The land has the benefit of a right of way with or without vehicles over the track tinted brown on the title plan for all purposes connected with the use and enjoyment of the land as a dwelling house and grazing land and not for any other purpose.’

8.	The dispute was referred to the Adjudicator on 5 June 2006. At the hearing Mr Davidson accepted that the proposed limitation on the right of way should refer to ‘agricultural’ rather than merely grazing use. Thus it is accepted that there is a right of way for purposes connected with the use and enjoyment of the land as agricultural land. It is also accepted that the right of way is connected with residential use High Scambridge Farm, but as, I understand the case, limited to one dwelling. This is a right of way, so far as the Respondents are concerned, which arises (and only arises) by necessity. 

9.	Mrs Hopton puts her case on the basis of an implied reservation arising by common intention. The right, she argues, is in the same terms as the express right of way. In the alternative, if the right arises by necessity alone, the express right of way is the ‘template’  for the right granted.

10.	The issues which arise are therefore these:

(i)	Was there an implied common intention that a right of way should be reserved? If so, was the right of way in the same terms as the express right of way or is it restricted to (i) the use to which High Scambridge Farm was then put or (ii) to the use then contemplated by the parties, and if so what was that use?
(ii)	If the right of way arises by necessity only what is the extent of the right of way which thereby arises? 

11.	For the reasons which I will set out below, in my judgment, a right of way arose by common intention, limited to the contemplated use to which High Scambridge Farm might be put. That use was not, in my judgment, limited to a single dwelling and agricultural use, nor was it unlimited in extent, but was contemplated to extend to residential use in the most general sense. The same is the case if the right arises only by necessity. 

Conveyancing history

12.	By a conveyance dated 31 March 1960 made between Associated Dairies and Farm Stories Limited and Robin John Baker of Givendale Farm, the farm known as Upper High Scambridge Farm was sold to Mr Baker. This farm was considerably larger than what is now  High Scambridge Farm and included, for example, what is now field number 5549. The entirety of the Track (including the Disputed Track) formed part of the property conveyed.

13.	By a conveyance dated 5 October 1979 Robin John Baker and his wife, June Elizabeth Baker, conveyed to CIN Investments three farms: Givendale Head Farm, High Scambridge Farm and Ebberston Common Farm. Givendale Farm comprised 178 acres or thereabouts, High Scambridge Farm 28 acres or thereabouts. I have not seen the plan attached to this conveyance but it is clear that High Scambridge Farm had become very much smaller than it was in 1960.

14.	In 1989 CIN Investments decided to sell the three farms, totalling 477 acres. It is clear from the particulars prepared by Savills (the agents) that the vendors were content either to sell the farms as a whole or in three lots.  Lot 2 was High Scambridge Farmhouse  (and outbuildings) and 28 acres, 17 of which were used for grazing and 10 acres of which had been designated as part of the Troutsdale Site of Special Scientific Interest. This farm also contained the water pumping station used (and still used to this day) to provide water to High Scambridge and Givendale Head Farm (and three other properties).

15.	The agents’ particulars dealt with rights of way. As to Givendale Head Farm, the  Forestry Commission were said to have vehicular rights of way along ‘the farm road in OS 4574 and through OS 2663 and 3358’. These last two parcels are to the west of the Road. OS 4574 appears to include that part of the Road running past the main entrance to the farm. 

16.	The particulars then stated (in relation to lots 1 and 2) that the purchasers of High Scambridge Farm would be granted a right of way through OS 5549 (the Disputed Track) to the council road. In relation to lot 3 (Ebberston Common Farm) it was said that the road between Givendale Head Farm and Ebberston Common Farm (ie the northern part of the Road) was owned by the Forestry Commission who had granted a licence for access to Ebberston Common Farm.

17.	In the event the three farms were not sold as a whole. Givendale Head Farm was sold before High Scambridge Farm. Ebberston Common Farm was sold on 2 June 1989. I have not seen a copy of this conveyance.

18.	The February 1989 Conveyance  reserved ‘to the Vendor and its successors in title the owners and occupiers for the time being of Ebberston Common Farm shown coloured pink on Plan Number 2 annexed hereto and High Scambridge Farm shown coloured blue on Plan Number 1 annexed hereto (a) the right to the free and unrestricted use of the private water supply at High Scambridge Farm and the water pumps at Givendale Head Farm and all related pipes and apparatus together with the right to enter the property hereby conveyed for the purpose of inspecting and maintaining the same and (b) a right of way at all times and for all purposes connected with the use and enjoyment of Ebbertson Common Farm and High Scambridge Farm over and along the track through Givendale Head Farm shown coloured brown on Plan Number 1 annexed hereto subject to the owners and occupiers for the time being of Ebberston Common Farm and High Scambridge Farm contributing a due proportion according to the user to the costs of repairing or maintaining the same road or track.’

19.	The track coloured brown (‘the Brown land’) is that part of the Road immediately in front of the house on Giverdale Head Farm, bounded to the east by field number 5549. As I mentioned above, no rights of way were reserved over the Disputed Track (notwithstanding what was said in the agents’ particulars). That part of the Road which lies to the south of the Brown land was described in the agents particulars as a ‘Council’ road, and the part to the north as belonging to the Forestry Commission. It seems clear that the draftsman believed that the Brown land was not a public road. 

20.	Thus the first curious feature of the February 1989 Conveyance is that no right of way was reserved over the Disputed Track, leaving High Scambridge Farm effectively landlocked. The second point to note is that two reservations in this conveyance relate to both Ebberston Common Farm and High Scambridge Farm. So far as the first reservation (the supply of water) there was no need to reserve the right to a supply of water in favour of High Scambridge Farm since the supply is on High Scambridge Farm. The reservation of a right of way over the Brown land was essential  for Ebberston Common Land but not essential (though desirable)  for High Scambridge Farm since it was always possible to access the farm from the south, along the Road from Ebberston, and then to turn right along the Disputed Track. 

21.	The situation becomes even more perplexing when one looks at the September 1989 Conveyance.  Clause 2 provides that the property is sold subject to and with the benefit of the following matters, including (at 2 (c) ): ‘Rights granted and reserved or referred to in the Conveyance of Givendale Head Farm made on 24th day of February 1989 between the Vendor of one part and Robert Edward Gwilliam and Susan Elizabeth Gwilliam on the other part including the benefit of a right of way at all times and for all purposes with or without vehicles over and along the road way or track forming part of Givendale Head Farm shown on the plan annexed hereto coloured brown the Purchasers paying a due proportion according to the user of the cost of maintaining the said road or track.’

22.	The track coloured brown on the plan attached to the September 1989 Conveyance is a little less than half the length of the Brown land. The Brown land extends north past the turn off to the farm buildings and for a considerable distance southwards. In the September 1989 Conveyance, the track coloured brown is confined to the area north of the turn off.  There can be no sensible explanation for this. I should also note that there was no express reservation in relation to the water: presumably the draftsman had realised that this was not necessary.

23.	Clause 2(e) of the September 1989 Conveyance further provides that High Scambridge Farm is sold subject to and with the benefit of ‘all other rights of way water light drainage and other easements rights privileges and liabilities (if any) affecting the same and the Property is so conveyed.’

24.	Entry number 2 in the property register of title number NYK80307 (High Scambridge Farm) notes the reservation of the rights relating to the water supply in the February 1989 Conveyance but not the benefit of the right of way over the track coloured brown.   Entry number 4 in the charges register provides that the land is subject to rights reserved in clause 2(e) of the September 1989 Conveyance.

25.	Finally, entry number 4 in the charges register of title number NYK71567 (Givendale Head Farm) recites both the rights relating to water and the right of way over the Brown land in the February 1989 Conveyance,

Evidence

26.	I heard evidence from Mrs Markham, Mrs Hopton and Mrs Gwilliam.  There are few, if any, issues between them. I also considered documentation (particularly relating to planning) which post date the two Conveyances. 

27.	Mrs Markham and her husband, as I have said above, were tenant farmers first of land owned by Mr and Mrs Barker and then owned by CIN Investments. They ran a dairy business from Givendale Head, Ebberston Common and High Scambridge Farms, and two other farms,  with a herd of some 800 to 900 cattle. The young stock were kept at High Scambridge Farm. One of their tractor drivers lived there. Various farm vehicles, including tractors, trailers and JCBs were stored there.  She and her husband lived at Givendale Head. The Road running northwards was used by them regularly to get to Pickering or Whitby, and for the taxi run for the school children in the area. The Road was a rough track through the forest until it reached Forest Drive which was tarmaced.

28.	Mrs Hopton’s husband ran a road haulage and timber pallet supply business from Wakefield. On occasion Mr Hopton drove a low loader or van to High Scambridge Farm. They lived there for a few years. In 1991 they let the farm to a Mr and Mrs Robinson. 

29.	Mrs Hopton also told me, and I accept, that they had in mind the possibility of converting the farm buildings to holiday cottages at the time of the purchase, and raised the possibility with Savills. Although no mention is made of this in the sales particulars, her recollection is that the advertisement she saw relating to the farm indicated this as a possibility. 

30.	A memorandum from the national park officer to  the county area surveyor dated 8 May 1989 refers to the possible sale of High Scambridge Farm and states that a number of inquiries had been made about the possibility of converting the outbuildings to holiday use. It seems to me evident that those inquiries were made from the time the various farms were put on the market (and therefore at the time of or shortly after the particulars were prepared by Savills) and may well have also been made in respect of Givendale Head and Ebberston Common Farm.

31.	The writer asked for general comments about the potential increase in the use of the access way leading to the property. The reply from the county area surveyor is dated 1 June 1989. It stated that there were no highway objections to the redevelopment of the farm for holiday use provided that no caravan element was contemplated. It would however be necessary for a stable surface to be provided at the junction of the farm access track with the highway. This merely confirms, as I have said above, that the Road (or at the very least that part of it running south to Ebberston) is a highway.

32.	 In November 1991 an application for planning permission was made. On 10 July 1992 the North Yorkshire County Council and the North Moors National Park Committee granted permission. The minutes of the planning committee meeting in April 1992 refer to the narrow access road and state that two holiday lets would probably be the most that would be accepted at the site.

33.	Nothing came of these plans. In 2004 Mrs Hopton decided to sell High Scambridge Farm and it was then that the difficulties relating to access became apparent. She stated that  she and her late husband would not have bought the property with a restricted access. 

34.	Mrs Gwilliam’s evidence was that she was not aware of the planning application for holiday lets at High Scambridge Farm. In any event, she too was unaware of any possible difficulty with access to the farm until she was asked by a prospective purchaser to agree to extended use. Givendale Farm itself is used primarily for agriculture, but it now has a full waste management licence, and the house is used for bed and breakfast. 

35.	It is also clear from her evidence that she and her husband were aware, when they purchased, that 5 farms were up for sale, and that, necessarily, there would be some change to their use. When she was asked about holiday lets by Mrs Hopton, Mrs Gwilliam’s response was that she doubted whether there would be a market for such lettings, having regard, in particular, to the nature of the Track. My impression, from her evidence, is that she was aware from a very early stage that High Scambridge farm might be used for holiday lets. 

36.	Mrs Gwilliam also accepted that the Road is used, going north past her farm, for children going to and from school and other uses. There is a visitor’s centre in Dalby village. A gas project involving excavations has also required the use of the Road with lorries. Her case is that whilst the owners of High Scambridge Farm can use the Brown land for any purpose, without limitation, this is not the case in respect of the Disputed Track.  

Legal analysis

General points

37.	The  starting point is Wheeldon v Burrows (1879) 12 Ch. D 31. In his well known speech Thesiger J said this: ‘ We have had a considerable number of cases cited to us, and out of them I think two propositions may be stated as what I may call general rules covering cases of this kind….. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions to which I shall refer before I close my observations upon this case.’ 

38.	The next relevant case is the House of Lords decision in Pwllach Company Ltd v Woodman [1915] 1 AC 634.  The issue in the case was whether tenants, who were granted a right to mine, were authorised to commit a nuisance by depositing coal dust on the neighbouring butcher’s premises. The lease granted no express right to commit the nuisance. The right was claimed to arise by implication. Lord Parker stated that implied easements (other than by necessity or continuous and apparent easements) can be classified under two heads. 

39.	The first is where the implication arises because it is necessary for the enjoyment of some other right expressly granted. So, for example, the right of drawing water from a spring necessarily involves the right to going to the spring.  The right must, in other words, be necessarily ancillary or necessarily incidental.

40.	The second class of easements identified by Lord Parker as arising by implication depend upon the circumstances under which the grant was made. ‘The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by grantor is to be used…. But it is essential for this purpose that the parties should intend that the subject of the grant or land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use.’ 

41.	The issue in In re Webb’s Lease [1951] 1 Ch 808 was whether a landlord who had granted a 21 year lease of the first and second floor of a building could continue to advertise his business (which was carried out on the ground floor) and that of a well known brand of matches on the outside walls of the demised premises in the absence of any express reservation to do so.

42.	On appeal, it was held that the landlord had no right to use the walls for advertisements. Jenkins LJ said this: ‘….it is not disputed that, as a general rule a grantor, whether by way of conveyance or lease of part of a hereditament in his ownership, cannot claim any easement over the part granted for the benefit of the part retained, unless it is expressly reserved out of the grant. ….There are, however, certain exceptions to the general rule. Two well established exceptions related to easements of necessity and mutual easements… But it is recognised in the authorities that these two specific exceptions do not exhaust the list, which is indeed incapable of exhaustive statement, as the circumstances of any particular case may be such as to raise a necessary inference that the common intention of the parties must have been to reserve some easement to the grantor, or such as to preclude the grantee from denying the right consistently with good faith, and there appears to be no doubt that where circumstances such as these are clearly established the court will imply the appropriate reservation.’

43.	The judge then stated that the mere fact that the tenant knew at the date of the lease that the landlord was using the outer walls of the demised premises for the display of the advertisements was not enough to absolve him from his duty of expressly reserving these rights. Nor was it sufficient that the advertisements had been present for the previous two years or so when the same tenant held a different tenancy. Jenkins LJ said this: ‘The most that can be said is that the facts are consistent with (such) common intention. But that will not do. The landlord must surely show at least that the facts are not reasonably consistent with any other explanation. Here he manifestly fails. … If the hypothetical officious stranger sometimes used as a test of implied terms had intervened in the course of the negotiation of the lease and said: ‘What about Mr Webb’s advertisements?’ Would both parties have exclaimed with one voice ‘Of course they are to stay’. I see no justification at all for this assumption. The landlord might well have said ‘Of course I want them to stay’ but as likely as not the tenant would have said ‘ At present I have no objection to your advertisements, but I cannot bind myself to allow them for 21 years. For all I know I may at any time during that period for one reason or another want them removed. If you insist on reserving rights in the matter you must either reduce the rent or find another tenant’.

44.	In Peckham v Ellison (1999) 77 P &CR D 27 the issue was whether one house (formerly owned by the Council and bought under right to buy legislation) had a right of way round the side and back of his neighbour’s property (also bought under right to buy legislation). Knowledge of a previously exercised right was not sufficient. In order to establish an easement by common intention the vendor had to show that the facts were not reasonably consistent with an explanation other than that of an implied reservation. 

45.	The Court held that the facts in the case were exceptional. The original grantee  acknowledged that a right of way existed over the servient tenement. Secondly, the right of way had been exercised for many years and this right had been disclosed in pre contract inquiries. Thirdly the right of way had been exercised for 10 months following the defendant’s purchase. Fourthly, there was evidence that other properties on the estate enjoyed mirror rights. Finally, the council had mistakenly omitted properly to deal with rights of way in the conveyance.

Extent of right of way

46.	As stated above it is conceded that a right of way arises by necessity.  But, it is said, this right is limited to the use to which High Scambridge Farm was put in February 1989: a dwelling house and agricultural use.

47.	The scope of a right of way reserved by necessity was considered in Corporation of London v Riggs (1880) 13 Ch D 798. In that case the defendant retained land used solely for agricultural purposes. He started to build a public tea room. The Corporation brought proceedings claiming, amongst other things, that the right of way to the retained land was limited to agricultural use. Jessel M.R framed the issue in this way:  whether the right of way was a general right of way for all purposes or only a right of way for the purpose of the land in its then state. His answer was that the right of way is limited to the use of the land in its then condition.:’That appears to me to be the meaning of a right of way of necessity. If you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is, but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes: that is- as in the case before me- a man who reserves two acres of arable land in the middle of a large piece of land is to entitled to cover the reserved land with houses and to call on his grantee to allow him to make a wide metalled road up to it.’

48.	In Sweet v Sommer [2004] EWHC 1504 Hart J held that a reservation of a vehicular right of way of necessity was to be implied even though pedestrian access was available.  The facts of the case clearly indicated a series of mistakes, including the registration by HM Land Registry of vehicular rights of way which vendor had no power to grant. 

49.	The defendants’ case was that, at the relevant date, the dominant tenement was open ground for which no vehicular access was necessary and that, in any event, even if were possible to have regard to the fact that the construction of a dwelling house was in the contemplation of the parties at the date of the transfer, vehicular access was not necessary for the use of such a dwelling house.  As to the first of these arguments Hart J said this: ‘I do not accept the first of these submissions. Although it is true that in Rigg, Jessel MR was concerned to emphasise that the way must be limited to ‘that which is necessary at the time of the grant’ the context was one where he was rejecting a contention that the way must be implied for any purpose to which the dominant tenement might be put. That a way of necessity may be implied for purposes contemplated at the date of the grant but not yet implemented seems to me to be clear from the decision of Pearson J in Serff v Acton Local Board (1886) 31 Ch 679.’

50.	As to the second issue, the judge dealt with by saying that the question whether a particular way is necessary is in the end a question of fact to be decided by reference to all the circumstances. In some cases, he said, it will be obvious from the nature of the particular house and the circumstances surrounding it that a vehicular way was treated as necessary so that it would be open to the fact finding court to conclude that the house would not be usable in the ordinary way without it. Thus, although the dominant tenement was an open field at the relevant date, the judge found both that the parties contemplated the construction of a dwelling and that, on the facts, such a dwelling could not, in effect, be used unless there was a vehicular access to it.

51.	The scope of a right of way created (rather than reserved) by the common intention of the parties was considered in Stafford v Lee (1992) 65 P&CR 172. An area of woodland was conveyed to the claimant’s predecessor in title. The deed described the land as having a frontage to a private road but no right of way was granted over the road. The only practicable means of access was over the road. The claimant wanted to build a house. He argued that he had an implied right of way over the road, and that this right extended to user of the plot for residential purposes. It was accepted by the defendant that the deed did grant an implied right of way, but it was contended that this right was limited to purposes reasonably necessary for the enjoyment of land as woodland only. This was the use to which the dominant tenement was put in 1955 (the date of the original sale).

52.	Nourse LJ said that the issue was whether the claimed right of way fell within the second class of implied easements described in Pwllbach (the judge at first instance had held that there was no easement of necessity and no right arising under Wheeldon v Burrows).  The claimant had to establish a common intention as to some definite and particular user and that the easement claimed is necessary to give effect to this intention.

53.	No extrinsic evidence was given as to the facts by reference to which the 1955 conveyance was made. The material question was not, said Nourse LJ, how the dominant tenement was used in 1955 but whether the parties intended then that it should be used in a definite and particular manner. The defendant argued that there was no evidence at all on this point. So far as anyone knew the original owner might have had a property nearby and intended only to use the plot as a paddock or vegetable garden.

54.	These submissions were described as unrealistic. The requirement that the parties intended a particular and definite use did not require that the intention be proved with certainty. The deed plan clearly showed two other nearby plots on which dwellings had obviously been constructed. It followed, therefore, that, on the balance of probabilities, the parties to the conveyance of the plot in dispute intended that it should be used for residential purposes.

55.	It seems to me that the following propositions can be drawn from the authorities. First, the correct test is not what user was the dominant tenement put to at the relevant time, but what was the user then contemplated by the parties. The second (which I arrive at with some greater hesitation) is that the contemplated user must be definite and particular and cannot extend to any purpose to which the land might be put. I say I reach this conclusion with some hesitation because it is difficult to see why, if one adopts the test of the officious bystander (or the test of whether the facts are not reasonably consistent with any other explanation) the parties should not contemplate user for all times and for all purposes. There is no case, so far as I am aware, where the issue was, in terms, whether the parties could contemplate a user for all purposes.  But it seems to me clear that I am constrained by authority to limit user to some definite and particular user contemplated at the time.

56.	I should just add one further point. Where separate parts of land held by the same person are disposed of at the same time, each part acquires by implication the same easements over the other part as if the part had been retained and is subject to the same easements. But it is not enough to say that the plots were intended to be sold at the same time: this fact, of itself, will not give rise to an implication of an intended easement

The present case

57.	The applicant does not, in terms, argue that this is a case which comes within the first category set out in Lord Parker’s speech in Pwllbach, that is to say that in order to give effect to the express right of way reserved in favour of CIN Investments in the February 1989 Conveyance (ie over the Brown land) a right of way in the same terms exists over the Disputed Track. This seems to me correct: the first class of rights identified by Lord Parker are ancillary rights which arise because they are necessary for the enjoyment of the right expressly granted. In this case the right expressly granted can be enjoyed without the use of the Disputed Track. It is a right which stands on its own, and has no need of any ancillary right in order for it to be enjoyed. 

58.	Rather it is said that the express right of way should be the template for the right of way contemplated by the parties. It is said that it would make no sense to have any different right over the Disputed Track, and, indeed, that it is inescapable that the rights must be the same. 

59.	The applicant’s case is that  an unrestricted right of way (or, more accurately, a right in the same terms as the express right of way) is to be implied as a matter of common intention. In support of this argument they pray in aid firstly, the right of way over the Brown Land (and repeat the same arguments set out above) secondly the fact that the Disputed Track is shown on the relevant conveyancing plans, thirdly the terms of the agents particulars which dealt with all three farms. These say, in terms, ‘the purchasers of High Scambridge Farm will be granted a right of way along the track through OS 5549 to the council road.’  There is no reason, it is said, not to give these words their plain meaning.

60.	Fourthly, they point to the memorandum dated 8 May 1989 which refers to the possible sale of High Scambridge Farm and the possibility of converting the outbuildings for holiday use.  Fifthly it is said that by early 1989 it was apparent that there might well be a change of user in relation to all or some of the farms previously owned by CIN Investments, not merely because they would no longer be owned by the pension fund of the Coal Board but because it was clear that the farms might be sold separately and their uses diversified. In a sense, this is restating the previous point in another way.

61.	I have no hesitation in concluding, on the evidence, that there was a common intention of the parties to the February 1989 Conveyance that a right of way would be reserved in favour of High Scambridge Farm for agricultural and residential use. The residential use intended was not limited to the use then enjoyed (the farm house itself) but extended to such other residential use as the farm might be put to (subject, of course, to the necessary consents being granted, but including, for the avoidance of doubt, the conversion of some or all of the buildings  to holiday lets). 

62.	In reaching this conclusion I have had regard, in particular, to the agents particulars and to the evidence as to the inquiries made at the time as to the possibility of converting the farm buildings, and to the evidence given by Mrs Hopton. It is also relevant, it seems to me, that there was a possibility (which then became the reality) that the various farms would be sold separately, leading to a change in user. 

63.	I do not however accept that the extent of the right of way is the same as that set out in the express right of way.  This is not a claim for rectification where evidence can be adduced as to a common mistake made by the parties in the wording of the relevant conveyance. As I have explained above the authorities appear to constrain me to limiting the user to a definite and particular manner, and to preclude me from concluding that a right of way for all purposes can be impliedly reserved (or granted). The right of way contended for by the applicant is indefinite and unparticular.  

64.	I reach the same conclusion in relation to the easement of necessity.

65.	In the circumstances the applicant is entitled to have the benefit of a right of way noted on her title, and the burden noted on the respondents title. The right, however, cannot be in the terms sought. In the circumstances I propose to make an order to the Chief Land Registrar to note the benefit (and burden) of a right of way at all times with or without vehicles in connection with the use and enjoyment of High Scambridge Farm for agricultural and residential purposes. If this form of wording is acceptable to the parties (having regard to my findings and reasoning) I will make an order in these terms. If not, I will consider the written submissions made by each side. I ask that those submissions be sent to me by 17 March 2008. 

Costs

66.	The applicant has submitted a schedule of costs which include costs incurred before the reference to the Adjudicator. The jurisdiction of the Adjudicator is limited to costs incurred since the date of the reference (5 June 2006). In the circumstances, a revised schedule will need to be prepared.

67.	In the light of my findings I invite the parties to make submission in writing as to the appropriate order for costs by 17 March 2008. I will then consider the matter and give such further directions as I deem appropriate.  

BY ORDER OF THE ADJUDICATOR

ANN McALLISTER

Dated this 25th day of February 2008