REF/2006/1564

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

IN the matter of a reference from hm land registry

BETWEEN

Barteak Developments Limited

APPLICANT

and

Forhill Developments Limited

RESPONDENT

Property Address: Nash Works, Belbroughton Industrial Estate, Belbroughton & Land & Buildings on  NW side of High St
Title Number: WR55951 and HW17596

Before: Mr Cousins sitting as Adjudicator to HM Land Registry

Site View: 10.30am Monday 25 February 2008
Sitting at: Dudley County Court
On: Monday and Tuesday 25 and 26 February 2008

Applicant Representation:	Mr James Ramsden, of Counsel, instructed by Messrs Shoosmiths, Solicitors
Respondent Representation:	Mr John West, of Counsel, instructed by Messrs Harris Cooper Walsh LLP, Solicitors

DECISION

KEYWORDS – Rights of way – prescription at common law – lost modern grant - limited and discontinuous user – mistaken belief as to ownership of the land - 

Cases referred to: Mills v Silver [1991] I Ch 271; Gardner v Hodgson’s Kingston Brewery Limited [1903] AC 229; Bridle v Ruby [1989] QB 169

	THE APPLICATION
1.	The dispute between the parties concerns a right of way claimed by Barteak Developments Limited (“the Applicant”) enuring for the benefit of certain land and premises comprised in Title No. WR55951 over a wedge shaped parcel of land included within the adjoining Title No. HW17596 of which Forhill Developments Limited (“the Respondent”) is the registered proprietor.  Its shape has also been described during the course of the hearing as a “bell-mouth”.  I shall hereinafter refer to this parcel as the “Blue Land”, although for reasons set out below its extent is slightly reduced to that originally claimed.  The Applicant’s case is that he has acquired a right of way by prescription across this parcel for the purpose of entry to and egress from its premises known as the Nash Works (“the Nash Works”) which are situate to the north west of Nash Lane, Belbroughton, Bromsgrove, Worcestershire.

2.	On 10th March 2006 Mr David Back and Eagle Place Trustees Limited (“Eagle Place Trustees”) registered a unilateral notice (“the Notice”) to protect this claimed legal right of way acquired by prescription over the parcel.  The original area in question was shown coloured blue and edged blue on the Land Registry title plan dated March 2004.  Subsequently on 10th May 2006 the Respondent applied in Form UN4 to cancel the Notice. Mr Back and Eagle Place Trustees objected to this application by a letter dated 1st June 2006 and the dispute was then referred to this Office on 31st July 2006.  I should state that in fact two separate referrals were made by the Coventry District Land Registry in the names of Mr Back and Eagle Place Trustees which resulted in the registration of two disputes with different reference numbers by this Office, namely Reference Number 2006/1073 in the case of Mr Back, and Reference Number 2006/1075 in the case of Eagle Place Trustees. 

3.	Subsequently, the Applicant, the successor in title to Mr Back and the Trustees, lodged an application dated 25th September 2006 in Form AP1 to register the benefit of the easement as appurtenant to title number WR55951 and for the burden of the same to be noted against the Respondent’s title number HW17596.  The parcel of land identified on this occasion is identical to that referred to in the previous paragraph, but is shown edged and hatched blue on the plan attached to that application.  The Respondent objected to the registration of both the benefit and burden of the easement claimed on the basis that the circumstances referred to would not give rise to the acquisition of an easement by prescription.  This dispute was then referred to this Office and given the following Reference Number 2006/1564.

4.	The three referrals comprising Reference Numbers 2006/1073, 2006/1075 and 2006/1564 were subsequently the subject of an order to the effect that they should be heard at the same time.  

5.	The area the subject matter of the dispute had been identified prior to the hearing of this matter the parcel of land coloured blue on the Land Registry Notice Plan dated 9th July 2004 which appears at page 32 of the bundle of documentation prepared for the hearing (“the Bundle”).  This parcel is identical to that to which I have referred in paragraphs 2 and 3, above.  For the purposes of this Decision, however, the relevant parcel of land comprising the Blue Land is identified on the plan attached to a letter dated 20th February 2008 from Messrs Shoosmiths, the Applicant’s solicitors.  As I have stated above, the area identified is slightly smaller than the parcel referred to above, but it is this upon which the Applicant relies for the purpose of this hearing. 

6.	I should state that originally the basis of the acquisition by prescription claimed by the Applicant was on three grounds, namely (1) at common law, or (2) by implied grant, or (3) pursuant to the provisions of section 2 of the Prescription Act 1832.  In the letter dated 20th February 2008, however, sent by Messrs Shoosmiths (to which reference has been made above) the Applicant made a concession in that it has restricted its claim to a right of way by prescription to that set out in paragraph 15(a) of the Amended Statement of Case.  Thus the case is now limited by the Applicant to the right to use the Blue Land “… for the safe driving, position, manoeuvring or waiting of vehicles driving outbound from Nash Works when there is another vehicle travelling inbound” and likewise “… for the safe driving, positioning, manoeuvring or waiting of vehicles driving inbound to Nash Works when there is another vehicle travelling outbound.”

7.	Consequently the issues to be decided arising from this restricted claim are in the following terms:

	(1)	Does the applicant presently have a right of way over the Blue Land as a means of access to and egress from the Nash Works?

(2)	If so what is the precise nature and scope of the right of way?

8.	I should also mention that these referrals followed earlier disputes referred to this Office relating to the same title numbers and dealt with under Reference Numbers 2004/0692 and 2004/0693.  Those disputes concerned to the rectification of the Applicant’s title number WR55951 so as to remove the same parcel of land referred to above from the register on the basis that it had been wrongly registered as forming part of that title.  The application for rectification was made pursuant to the provisions of Schedule 4 to the Land Registration Act 2002.  On 28th February 2006 Deputy Adjudicator Simon Brilliant eventually made an Order rectifying the register with the consent of the parties on the withdrawal by the Applicant’s predecessors in title of its opposition to the claim.  I shall refer again to this aspect in paragraph 15 below.

9.	The hearing of the current dispute took place on 25th February 2008 and 17th March 2008 and was preceded by a site view of the locus in quo on 25th February 2008.  

	THE BACKGROUND TO THE APPLICATION AND THE ROOTS OF TITLE
10.	As the case has a somewhat curious history it is necessary to have some regard to the background circumstances and the roots of title.

11.	In 1966 Mr Roger Hill (who gave evidence on behalf of the Applicant during the course of the hearing) and Mr Frank Hill, his father, acquired the various parcels of land comprising Nash Works and now registered at HM Land Registry under Title Numbers WR55951 and HW17596.  The extent of the land formerly held by Messrs. Hill can be seen in the Notice Plan on page 32 of the Bundle as the land coloured yellow, pink and blue, respectively.  In February 1976 Mr Frank Hill died and the various parcels of land were conveyed to Mr Roger Hill, and Mrs Ann Hill (his wife).  There then followed a number of stages when various parcels of land were conveyed to third parties.  These were as follows –

	(1)	By a conveyance dated 3rd May 1976 Mr Roger Hill and his wife conveyed three units at Nash Works to Bricast Limited (“Bricast”), namely units 21 to 23.  That conveyance provided for a right of way in the terms set out in the conveyance and identified on the plan annexed thereto.

	(2)	By a further conveyance dated 21st May 1977 Mr and Mrs Hill conveyed a further parcel of land to Bricast at the Nash Works. The extent of the land conveyed was by reference to the plan annexed thereto (which was not expressed to be by way of identification only). It clearly included the Blue Land as part of the land conveyed.  

	(3)	By a conveyance dated 23rd April 1982 Mr and Mrs Hill conveyed unit numbers 24, 25 and 26 to Picton Investments Limited.

12.	The two parcels of land that were conveyed by the conveyances of 3rd May 1976 and 21st May 1977 to Bricast have been referred to in the current proceedings at the “Forhill Land”.  These parcels were subsequently registered at HM Land Registry under Title Number HW17596.  The filed plan clearly indicates that the Blue Land was included within that Title.  There was therefore no mistake in the register of that Title.  The Respondent then purchased the Forhill Land by a transfer dated 3rd November 2000.  On 15th August 2001 a Receiver was appointed over the affairs of Bricast.  During the period from 1977 until its receivership Bricast occupied the Forhill Land, and the receiver continued to do so for a further six months thereafter whilst winding up the affairs of Bricast.  Thereafter the Forhill Land was leased on short‑term lettings for varying periods and more recently has been used for storing motor vehicles, equipment and materials for the Respondent.  

13.	On 27th March 2001 the three parcels of land still remaining in the ownership of the Hills at Nash Works were registered at HM Land Registry under Title Numbers WR55951, HW9379 and HW60978, respectively.  Insofar as Title Number WR55951 was concerned the application for first registration was lodged at HM Land Registry on 15th January 2001.  That application identified the land to be registered by reference to a plan, and that plan (correctly) did not include the Blue Land.  The problem which arose, however, was that when the registration of Title Number WR55951 was completed by the Coventry District Land Registry in March 2001 that office incorrectly mapped the land in the application to include the Blue Land.  That registration was clearly a mistake in the register as there was no documentary title to the Blue Land held by the Applicant for first registration.  Thus in short, the Blue Land had been included (wrongly) in the pre‑merger Title Number WR55951 and also (correctly) in Title Number HW17596.  

14.	Following this on 1st August 2001 Mr Roger Hill and Mr Christopher Hill, his son, transferred the three parcels of land comprised in Title Numbers WR55951, HW9379 and HW60978 to Mr David Ronald Back and NPI Trustee Services Limited as Trustees of the Gannymead Pension Scheme with full title guarantee.  Consequently when the Applicant’s predecessors in title purchased the registered estate comprised in Title Number WR55951 it wrongly included the Blue Land. Thereafter following a request made by the Applicant’s solicitors to the Coventry District Land Registry by a letter dated 6th September 2001 the three Title Numbers were consolidated under the one title number, namely Title Number WR55951.  Thereafter by a Deed of Transfer dated 27th October 2003 ownership was transferred by Mr Back and AMP (UK) Trustees Limited (formerly known as NPI Trustee Services Limited) to Mr David Ronald Back as trustee of the Gannymead Pension Scheme.  

15.	As I have mentioned above, a dispute then arose in that on 28th October 2003 the Respondent lodged an application with the Coventry District Land Registry to rectify Title Number WR55951 seeking to remove the Blue Land from the now consolidated Title.  Mr Back and Eagle Place Trustees who were by then the registered proprietors opposed that application until their opposition was withdrawn on 28th February 2006 after the matter had been referred to the Adjudicator.  

16.	Meanwhile Mr Back and NPI Trustee Services Limited employed a chartered surveyor to advise them as to the maintenance of the Nash Works and to prepare a development strategy for the site.  It was decided to develop the site for commercial purposes and a planning application was then submitted to Bromsgrove District Council.  The Blue Land was included within the plan submitted with the planning application and access to the Nash Works plays a crucial part in planning terms.  Planning consent was duly granted by the local planning authority on 9th February 2005.  

17.	Finally, the Applicant acquired its interest in the land held under Title Number WR55951 by a transfer dated 18th August 2006 entered into between (1) the Applicant and (2) Mr David Ronald Back and Eagle Place Trustees Limited.

	THE APPLICANT’S SUBMISSIONS AND THE LEGAL POSITION
18.	Having regard to the background circumstances set out above, and in particular to the fact that the Applicant is neither the registered proprietor of the Blue Land, nor can it demonstrate that any documentation is in existence indicating that any right of way has been expressly granted by the owners of the Blue Land in favour of Title Number WR55951, it maintains that it, and its predecessors in title, have acquired a prescriptive right of way under the doctrine of lost modern grant in the restrictive form set out in paragraph 15(a) of the Applicant’s Amended Statement of Case for the purposes of this hearing.  To reach an appropriate decision it is therefore necessary to have regard to the legal principles and the questions of fact in support and against this assertion.

19.	The Applicant contends that for a period in excess of 20 years prior to August 2001 it as the owner, and its tenants, or their predecessors in Title, have acquired a full and free right of way without let or hindrance both on foot and with vehicles over the servient tenement comprising the Blue Land for the purpose of access to an egress from the dominant tenement comprised in Title Number WR55951 on the limited basis set out in paragraph 6 above.  It is said that he use of the Blue Land was open, apparent and obvious and at no time did either the owners or tenants of the dominant tenement ever seek the consent of the owners or tenants of the Forhill Land.  

20.	It is further submitted by the Applicant that the fact that its usage and that of its predecessor in Title was founded on a mistaken belief that they were the owners of the Blue Land in no way prejudices their claim to have established a right of way by prescription.  

21.	It is therefore necessary to look in more detail at the basis of the Applicant’s case that a right of way has been created by prescription on the limited basis sought.  

22.	Several factors are necessary to consider in this regard the principles being distilled from the case of Mills v Silver [1991] I Ch 271.

(1)	The period of enjoyment – the Applicant has to prove that the right of way has been enjoyed by it and its predecessors in title as owners and occupiers of the dominant tenement for a period in excess of 20 years without interruption.  Continuous user means that sufficient exercise of the right has been maintained so as to convey to the mind of a reasonable person in possession of the servient tenement that a continuous right to enjoyment of the easement is being asserted.  The Applicant contends that the evidence given during the course of the hearing is sufficient to discharge this burden.

(2)	Continuity of enjoyment – this is to be interpreted on a reasonable basis.  Thus, in the case of a right of way it is clearly not necessary to show ceaseless user by day or night user whenever the circumstances require it is normally sufficient provided that the intervals are not excessive.  Discontinuous user is sufficient, but merely casual or occasional user, however, is not.

(3)	The persons against whom and by whom the right has been enjoyed – as a matter of general principle there must be a competent grantor and a competent grantee, in other words the use must at the commencement of the period of prescription have been made by the freeholder of Title Number WR55951 against the freeholder of the Blue Land as opposed to any tenant of the freeholder.  Thus, where the dominant tenement is let a tenant cannot make a claim by prescription to an easement as annexed to his limited estate.  The claims and easement on the strength of his own user he must necessarily claim it for his landlord as well as for himself.  

(4)	The quality and character of the enjoyment of the right – crucially, it must be established by the person claiming the right that the enjoyment has been as of right and not be explicable for any other reason, such as where it is carried out with the permission of the owner of the servient tenement.  If it cannot be demonstrated that the person claiming the right has used it as if he were entitled to it, then the claim must fail as there can be no basis for presuming a grant.  Further, the fact that use is made of the right by different persons who cannot readily be identified is irrelevant. User as of right entails user nec vi, nec clam and nec precario, that is, without force, without secrecy and without permission.  The essence of this rule is that the claimant must prove not only his own user but also circumstances which demonstrate that the servient owner acquiesced in it as an established right, and the burden of proof falls upon the claimant (see Gardner v Hodgson’s Kingston Brewery Limited [1903] AC229).  It is necessary to look at these principles in more detail.
		
(a)	Vi - extends to user which is contentious or allowed only under protest.  

(b) 	Clam- as the basis of a prescriptive claim is acquiescence by the owner of the servient tenement. Thus he must have knowledge or means of knowledge that the act is done.  It is asserted by the Applicant that the use of the Blue Land was open as it was not carried out in secret and that its character is such that the owners of the Blue Land have had or must be taken to have had a reasonable opportunity of becoming aware of that use.  

(c) 	Precario – permissive user vitiates a claim to a right by prescription.  The basis of such a claim being established arises by reason of the acquiescence or tolerance of the owner of the servient tenement over whose property such rights are being exercised.  Toleration is limited in effect to those cases where the user is trivial or casual, or consensual, thereby giving rise to no legal obligation. Again, it is asserted by the Applicant that there is little difficulty in establishing the fact that the use of the Blue Land, although without consent, was with the acquiescence or tolerance of its owners.  As the Applicant contends, the test is whether the Respondent had actual or constructive knowledge that the owners and occupiers of the dominant tenement were asserting a continuous right of enjoyment over the Blue Land and did nothing to resist it.  If they had such knowledge (actually or constructively) and they took no steps either practically or legally to stop such use during the period of prescription, then it is asserted that the claim should succeed.

23.	Perhaps the most unusual aspect of this case related to the point of mistaken belief in that the prescriptive right now claimed by the Applicant was for the period of time when its predecessors in title believed that they were in fact the owners of the Blue Land. Counsel for the Applicant addressed me at some length at the outset of the case on this point, and my attention was drawn to the case of Bridle v Ruby [1989] QB 169 where earlier authorities on the subject (which appeared to be in conflict) were considered in some detail by the Court of Appeal. Although there seemed to be some earlier doubt on this Counsel for the Respondent has now conceded that the mistaken belief that on the part of Mr Hill that he owned the Blue Land after 1977 would not as a matter of law be a bar to his subsequent claim to a prescriptive right of way. I therefore do not need to address this point further in any detail, other than for the sake of completeness and in case it is raised on a subsequent occasion.  I refer to the point as summarised in the judgment of Ralph Gibson L.J. as follows:-
	
	“For a mistake as to the origin of the right asserted by the user to be relevant, it seems to me that it must be such as to be capable of affecting the way in which the user of the right is conducted by the claimant or in which that user is seen by the owner of the land over which the right is asserted.  The requirement that user be ‘as of right’ means that the owner of the land, over which the right is exercised, is given sufficient opportunity of knowing that the claimant by his conduct is asserting the right to do what he is doing without the owner’s permission.  … the fact that the claimant mistakenly thinks that he derived the right, which he is openly asserting, from a particular source, such as the conveyance to him of his property, does not by itself show that the nature of the user was materially different or would be seen by the owner of the land as other than user as of right.  People who assert rights, such as rights of way, may well be, and I am sure often are, mistaken as to the many aspects of the law which determines the existence of such rights.  The nature of some mistakes as to the legal origin of the right asserted may be such that the court, in considering issues of fact as to the alleged acts of enjoyment, and in considering whether the user was ‘as of right’, will find the mistake a relevant factor in deciding those issues of fact.  I see no reason, however, to attach any significance to the mere fact of such subjective mistakes which, as in this case, are not shown to have affected the conduct of the claimant or the understanding of that conduct by the owner of the land over which the right is asserted.”

24.	Thus, where there is actual or constructive knowledge of the user on the part of the servient owner the fact that the claimant asserts a right in the mere mistaken belief that such right has been conferred, in this case in the mistaken belief that he owned the land in question, and it transpires that he did not in fact own the land during the relevant period does not by itself as a matter of law negate any claim for prescription at common law.  In short mistaken belief of itself does not defeat a claim to a right of way acquired by prescription.	

25.	It is then necessary to turn to the issues of fact in the case in support of or against the claim to the right of way over the Blue Land by prescription and in particular as to the question of quality and character of such claimed user. 
	
	FINDINGS OF FACT
	Summary of the evidence
26.	The essential conflict in the evidence between the Applicant and the Respondent relates to the quality and character of the use of the Blue Land for the relevant prescriptive period of 20 years prior to August 2001.  Without doing any dis-service to the evidence to which I shall refer to below in some detail, the essential difference between the respective parties’ cases is that the Applicant contends that for the relevant period of time there was “a hive of activity” along the narrow and relatively steep entrance to the Nash Works which necessitated the regular use of the Blue Land by vehicles for the purpose of access to and egress from the various units situate therein.  The Respondent, however, contends that there was only very limited use made of the Blue Land for the purpose of access to and egress from the Nash Works, and such use that was made of the Blue Land as a passing point was of a casual and intermittent nature insufficient to ground any claim as to the acquisition of prescriptive rights.

27.	The Applicant called five witnesses namely Mr Hill, Mr Back, Mr Rose, Mr Hemming and Mr Jowett.  The Respondent called three witnesses, Mr Miles, Mr Evans and Mr Reynolds.

The Applicant’s Evidence
Mr Hill
28.	Mr Hill provided two witness statements. The first of these was made in March 2005 in opposition to the claim made by the Respondent’s predecessors in title for rectification of the register.  The second witness statement is dated 25th July 2007 and was made in support of the current application.  Mr Hill also provided a statutory declaration dated 23rd June 2006.  I should state at the outset that Mr Hill was the subject of a sustained belligerent attack in cross-examination by Mr West, Counsel for the Respondent, as to his integrity and honesty. Indeed, at the commencement of the hearing Mr West made an unusual request in that he sought to exclude Mr Hill from the Court, together with the Applicant’s instructing solicitors during the course of an application made by the Applicant’s Counsel.  This was on the basis that Mr West considered that Mr Hill’s honesty was questionable and therefore he should not be present during the submissions made to admit a witness statement from Mr Jowett, a chartered surveyor, relating to the evidence of Mr Rose, to which I shall refer again below.  I refused the application to exclude Mr Hill and after some debate with Counsel, I admitted Mr Jowett’s witness statement in evidence in chief.  

29.	It became apparent, however, that during his cross-examination rather than being dishonest or devious, Mr Hill was considerably confused as to the historical circumstances relating to the ownership of the Blue Land.  He was, as the Applicant’s Counsel summed up in his closing remarks, not a reliable or careful witness as he made some entirely contradictory statements during the course of his cross-examination.  The question which I will have to decide, however, is whether the somewhat hopeless presentation by Mr Hill during the course of this cross-examination actually matters to the issues in hand.

30.	Essentially Mr Hill appears to have had little part to play during the course of the earlier conveyancing transactions, or if he did he could remember little about the circumstances.  He manifested a considerable confusion as to whether or not he believed or did not believe that the Blue Land remained in his ownership historically. In cross-examination Mr Hill was asked about a number of apparent inconsistencies in his written statements and statutory declaration.  His answer to the question as to the ownership of the Blue Land was that he considered that he continued to own it and that although his written evidence contained statements which at the time he considered to be true, in retrospect this was not a correct interpretation of the facts.  In short he was wrong, but as he said there was nothing sinister in that.  As he stated himself during the course of the lengthy cross-examination he now accepted that the contents of those statements were not correct.  It was on this basis that Mr West submitted that he could no longer be considered to be devious but was instead he was to be perceived to be in a “huge muddle” and could not be considered to be a reliable or careful witness as his evidence was entirely contradictory.  These words were echoed by Mr Ramsden in his closing submissions when he stated that Mr Hill was “not wholly impressive” and that it was unfair to castigate him.

31.	Mr Hill’s evidence as to the user of the Blue Land was to the following effect – throughout the period from his purchase of the Nash Works in 1968 until he sold the land now comprised in Title Number WR55951 to the Trustees of the Gannymead Pension Scheme on 1st August 2001 both he and his tenants, being the occupiers of the units at Nash Works, enjoyed full and free rights of way both on foot and with vehicles over and along the Blue Land.  As he stated in his first witness statement, throughout this period the Blue Land was used as a passing place for traffic entering and leaving Nash Works.  This arose as a result of the narrow width of the access way.  I appreciate that the words “on a daily basis” were inserted in the later witness statement in support of the present application (see paragraph 8.2), such words not appearing in the previous statement, or indeed in the statutory declaration, and Mr West considered that considerable importance could be attached to that omission.  It must be remembered, however, that the first witness statement was directed to the question of rectification of the register and not to any claim to rights acquired by prescription - these being mutually inconsistent claims.

32.	He was also asked why the section of the access way next to the Blue Land caused so much difficulty. Mr Hill’s response that it was a narrow hill with not enough room for two vehicles to pass as there was no passing place.  In such circumstances one vehicle either had to back down and let the inbound vehicle pass, or pull across into the passing place.  In answer to the question as to whether this was a frequent occurrence, his response was that with ten tenants there vehicles were coming and going all the time.  The Blue Land was regularly used, therefore.  He said the “concrete apron” was for the use of anybody.  He reiterated the point that he presumed the Blue Land belonged to him and had always believed this.  He, however, made some contradictory statements in cross-examination as to his belief in the ownership of the Blue Land.  In answer to the question whether it was a travesty to consider that the Blue Land was used on a daily basis, his answer was that it was there for use if needed.  He said that it was not his idea to use the words “on a daily basis”.

33.	I should also state that the steel stockholding business originally operated by Mr Hill and his family at Nash Works with about five employees ceased in 1978, and he thereafter started up a business as an estate agent in Bewdley.  I accept, however, that he still maintained an interest in the Nash Works as a landlord until 2001 and, as he said, he went there as a landlord as and when necessary.

The clock tower
34.	Challenges were also made as to the asserted use of the Blue Land by reason of the fact that at one stage apparently there had existed a building described as a clock tower, which apparently constituted a “timing house” for employees to clock in.  Mr Hill stated that the clock tower was demolished and eventually Mr Picton of Bricast surfaced the area where it had stood until about 1977/1978.  Not unusually bearing in mind that events of some 31 years ago were being investigated, there was some disparity in the evidence of the various witnesses (including Mr Hill) as to the existence of this clock tower, its precise location, and the date of its demolition.  It seems to have been situated slightly to the right of a building known as Unit 31.  It does appear, however, that whatever the significance of the clock tower and its position, and whether that position could have impeded the use of the Blue Land for the purposes of passing and re-passing of traffic, it is likely that the building was demolished prior to the sale to Bricast.  Subsequently Mr Picton put down a concrete surface over what subsequently became the land described as the Blue Land.  I appreciate that this is at variance with the statement in Mr Hill’s witness statement of March 2005 where he said that he demolished the building in question sometime after the sale of the land to Bricast, but I consider that he was probably mistaken in this assertion and that it is more likely that this building was demolished prior to such sale.  I do not consider that much turns on this as I also accept the statement made by Mr Hill that the presence of such a building did not prevent the use of the Blue Land as a passing place as it stood to one side and to the rear of the Blue Land, as can be seen from the apparent position as shown on the plan to the conveyance dated 3rd May 1976.  Whether or not it was demolished at the time of the sale of Bricast or subsequently, it is clear that it no longer existed by 1978 as can be seen in paragraph 20.2 of the second witness statement of Mr Hill.  

	Mr Hemming
35.	Mr Hemming provided a statutory declaration made on 28th June 2006.  He was the former owner of title number HW180562. This comprises a parcel of land at the south-western end of Nash Works known as the Coach House. He had purchased this property from a Mr and Mrs Barson in 1997 and was sold by him approximately 18 months ago.  He can therefore only deal with the period from 1997. He operated a graphic design business there with 3 employees.  He always arrived by car.  He said that the Blue Land was used by everybody and he never encountered any difficulty with forklift trucks in the entrance of the Blue Land as had been asserted during the evidence given by Mr Miles on behalf of the Respondent (see below).  He stated that the easiest way was to drive on to the Blue Land which he did on average about once per month.  

	Mr Rose
36.	The third witness to give evidence on behalf of the Applicant was Mr Rose.  The admission of Mr Rose’s evidence had been the subject of an application made at the outset of the case by Counsel for the Applicant to allow his witness statement to form part of the evidence, to which I have referred above. This was on the basis that Mr Rose had been approached only very recently by Mr Jowett, the Chartered Surveyor employed by the Applicant.  This application, as I have stated above, was opposed by Mr West on behalf of the Respondent on the basis that it was far too late for such evidence to be produced and should not be admitted.  After hearing submissions from both sides I allowed this evidence to be admitted on the basis that the Respondent’s Counsel could cross-examine Mr Rose as to the significance of his evidence and why his witness statement was so delayed in its production. I consider that there is nothing of any significance in the point that he had been willing to supply a witness statement but had only recently been asked to do so.  There was also an issue as to whether Mr Rose had a lease or a tenancy of his property.  As it transpired he apparently had a monthly tenancy of the unit in respect of which there was a monthly rent, but there was no written document evidencing this.

37.	The evidence of Mr Rose was of considerable importance to the Applicant’s case in that he had occupied a unit in the Nash Works for 30 years in which he stored carpets and rugs for his business. He also operated a procedure in the unit which he called “binding up” which meant placing edging around the rugs presumably to prevent fraying.   Members of the public would come and visit this storage unit in order to purchase such items.  Mr Rose stated that he went there at least twice per week and sometimes every day from home and back again, and also from there to the place where he was to fit carpets.  Mr Rose sometimes would go to this unit very early in the morning such as between 5 and 8 o’clock to get the items to load into his motorcar.  He said that he was the oldest surviving tenant in the Nash Works, although he said for the last ten years or so he was about the only tenant left apart from a computer person.

38.	He agreed that he saw vehicles and particularly fork lift trucks at the Bricast premises taking material from one unit to another and occasionally stillages (these are metal containers of different sizes in which castings had been placed) were placed in front of the Bricast premises i.e. on the Blue Land, but mostly these stillages were placed behind the entrance gates.  When they were placed on the Blue Land they were usually remain there for about half an hour or so.

39.	Crucially, Mr Rose stated that the Blue Land had always been used as a passing place in order to enable vehicles to pass each other.  He also said the amount of traffic was always much the same but it had become less and less during the last two years.  He said that it was an everyday occurrence that vehicles would pull over on to the Blue Land going back to 1978 and continuing on average every day until at least 1988.  He also said that there was no dispute or difficulties between himself and the Applicant.

40.	A difficulty arose during the course of the case when Counsel for the Applicant sought to put to Mr Rose in re-examination a list of tenants apparently occupying Nash Works in July 2001 and contained in the letter from “Chris”. This was the subject of some debate as to its admissibility, to which I shall refer again below in paragraph 51.  

Mr Back
41.	Mr Back provided a witness statement in the rectification proceedings dated March 2005 and also a statutory declaration made in June 2006.  He also gave evidence at the hearing.  Such evidence cannot greatly assist the Applicant’s case on prescription as to the use made of the Blue Land as he did not purchase Nash Works as an investment opportunity from Messrs Hill until August 2001.  Having acquired the site he appointed Mr Jowett to work for him on its proposed redevelopment.  Importantly, a planning application was submitted to Bromsgrove District Council on 5th November 2003 and the plan attached to the planning application indicates that it was understood at the time that the Blue Land formed part of the property purchased by Mr Back.  The application clearly envisaged that the Blue Land is of considerable importance so as to enable the access way to be widened in and out of the Nash Works.

42.	I do not consider that his evidence assists in relation to the question of prescription. As a consequence I do not propose to make any further comment as to such evidence.

Mr Jowett
43.	Mr Jowett was the maker of the Plan of the Blue Land served under cover of the letter dated 20th February 2008 from Messrs Shoosmiths, to which I have made reference above..  He could not assist as to the aspects of prescription, although he was asked a number of questions by Mr West with regard to the line of kerbstones. These seem to define the concrete area of the Blue Land from the outer edge of the tarmac of the access way to the south east.

The Respondent’s evidence
44.	There were three witnesses called by the Respondent namely Mr Miles, Mr Evans, and Mr Reynolds.

Mr Miles
45.	Mr Miles worked for Bricast and subsequently for another company called Mileswade Limited (“Mileswade”) from 1994 until 2001.  He provided a witness statement dated 1st February 2005.  In his evidence given at the hearing he stated that he had been involved with the site since 1994 and his involvement with the site seems to have stopped when he left the company in 2001 after it had gone into receivership.  In his statement he stated that the entranceway to the foundry operated by Bricast was always in constant use on a daily basis during normal business hours by lorries and forklift trucks ferrying goods to and from Bricast’s other premises nearby.  To his knowledge no one else ever used of the access to the Bricast premises.  In his evidence he elaborated to some extent as to the use of the entrance by forklift trucks in that the stillages were left standing to be collected and taken to the other site which comprised the finishing shop.  On some occasions there would be six or seven stillages placed there.  There were three forklift trucks and two men to ferry the goods in question.  There were between ten and twenty such operations each day.  He also stated that before 1998 there was more activity in the Nash Works, but after about that date there was little further activity and only one unit was apparently working. Crucially, Mr Miles had no involvement with the site until 1994 and was therefore unable to assist as to the use of the Blue Land between 1977 and 1994. 

	Mr Evans
46.	Mr Evans is a director of the Respondent and has been concerned in the affairs of the company since its incorporation in 1997.  He made a witness statement again dated 1st February 2005.  His knowledge, however, of the activities of the site has only occurred since 3rd November 2000 when the Respondent acquired the Forhill Land.  He was not cross-examined by the Applicant’s Counsel.

47.	In his witness statement Mr Evans stated that the access to the Forhill Land is always in constant use on a daily basis during normal business hours and nobody to his knowledge ever had any other user of the access.  He says that the access is used by lorries, vans, forklift trucks and other motor vehicles. Again, his evidence is only of limited value as he had no knowledge of the site until November 2000. 

Mr Reynolds
48.	Mr Reynolds provided two witness statements, the first being dated 18th March 2005 and the second 25th February 2008.  There was some dispute as to whether or not this second statement should have been admitted, but after some discussion with Counsel I decided that it should.  Mr Reynolds was briefly cross-examined by Counsel for the Applicant and in particular in relation to paragraph 5 of his first statement and paragraph 4 of his second statement.  Mr Reynolds stated that he had an intimate knowledge of Nash Works having been a company director running a car body repair business which he occupied from 1976 until about 1994.  He has seen many changes there. He was also formerly a partner with Mr Christopher Hill and Mr Plested owning other land and buildings at Nash Works, such property being purchased by him and others in 1996.  That property was eventually sold in August 2001.    He specifically referred to the entrance gate to the Forhill Land and said that commercial goods, lorries and forklift trucks passed on a daily basis through that gateway going to and from Forge Lane and the adjoining premises owned by Bricast.

49.	In paragraph 5 of his first statement he stated that apart from Sundays the gateway leading from the Bricast Works on the Forhill Land was always in use and “although there may have been the odd occasion when a vehicle pulled in front of the gate to let other traffic through, I can never recall the gateway being obstructed or not in use by Bricast or other tenants or occupiers who have used it since”.  In his second witness statement he said that if on ascending the drive up the hill out of the Nash Works he saw a vehicle coming around the corner down towards him, “depending on where or how far each vehicle had gotten along the drive, I would tend to reverse back or wait whilst the other vehicle reversed back to allow me passage”.  He stated that never at any time did he assume that he had the right to pass over the Blue Land and indeed this would not generally have been possible because the entrance was in constant use during the working day, by lorries and fork lift trucks.  He went on to say that if he did drive on to this entrance then this would have been “a purely casual user”, and not on the basis that he considered that he had the right to do so.  In any event he rarely found that he was obstructed by visitors to the lower parts of the Nash Works where his units were situated.  The obstruction if any usually came from the fork lift and other vehicles progressing in and out of the gateway and as a consequence he stated that he could not have driven into it because he would be blocking the way for such vehicles.  Finally, Mr Reynolds stated that if he had used the gateway he would have assumed in doing so he was acting with the permission of Bricast whose drivers “out of courtesy” have allowed him to pull over in front of them.  He said that it never occurred to him for one moment during the whole of the time he was at the Nash Works that he could assert to Bricast a right of way over the Blue Land.

50.	In cross-examination he stated that he could not recall ever asking for permission to pull over on to the Blue Land which he rarely did, and if such action was taken he was likely to get a puncture from the flashings left over from the castings. He, however, accepted that on odd occasions he did pull over onto the Blue Land.

	The issue of the “Chris” letter
51.	There was some dispute between Counsel as to the admissibility of the faxed letter dated 12th July 2001 from Hanbury Wharf to the Applicant signed by someone called Chris. Mr West challenged its admissibility as Mr Ramsden attempted to re-examine Mr Rose as to its contents rather than to prove it by calling its maker, or to adduce it as hearsay evidence or to ask questions on it of Mr Hill or Mr Rose in examination in chief.  After argument I allowed this document in evidence as it was clearly relevant (and had been disclosed as such) as it provided a snapshot of the extant tenancies in Nash Works in July 2001. Also, as it transpired, much of the information provided in that letter was in the public domain in any event as it is contained in the schedule of personal covenants subsisting in the entries in the register in title number WR55951 on 7th November 2003.  Clearly it could not be relied upon by the Applicant as providing evidence of the number of occasions that tenants actually used the Blue Land for the purposes of passing and re-passing along the access way, but it did provide background information as to the number of tenants and the rent they were paying at that stage in Nash Works. I have been requested by Mr West to re-consider the admissibility of this letter.  This I do and I consider that it is an admissible document in the circumstances not least by reason of the fact that much of its contents appear in the schedule of personal covenants to which I have referred above and therefore its contents are authentic. Its value is, however, does not extend to providing evidence as to the nature of the businesses at Nash Works or vehicle movements along the accessway.

	FINDINGS OF FACT
52.	In all such cases where rights are claimed to have been acquired by prescription it can be quite difficult to make an appropriate assessment of the circumstances when hearing evidence of historic events.  Memories fade, perceptions of individuals can be markedly in contrast, especially when such individuals are being asked to recall events many years before, and interpretations can in any event be so very different. In this regard I refer to the case of Mills v Silver [1991] 1Ch271 where Stocker LJ (at p 291A-E) makes the following statement:-

“The question whether or not there has been over the relevant period such use of a disputed right of way as to give rise to the conclusion that the owner of the servient tenement acquiesced in it so as to give rise to a presumption of a lost modern grant and thus to justify the existence of the right as an enforceable easement is a matter which inevitably involves retrospective conclusions from the evidence related to a long period of time”.

53.	Being faced with conflicting evidence given by witnesses for the Applicant and the Respondent I have come to the following factual conclusions based upon such evidence.  I am satisfied that a right of way has been acquired by prescription under the doctrine of lost modern grant over the Blue Land to the limited extent sought by the Applicant and that the various tests set out above have been satisfied in particular contained in paragraph 22(4).  My findings are contained in the following paragraphs.

54.	I am satisfied that throughout the period of twenty years next before August 2001 the Blue Land was used as of right on a discontinuous basis as a passing place for the purposes of access to and egress from the various units situate in the Nash Works.  The fact that such use of the Blue Land was on a discontinuous basis and in the early years from 1977 until about 1994, or thereabouts, was more frequent, and less frequent thereafter, does not, in my judgment, result in the finding being made (as I was enjoined so to do by Counsel for the Respondent) that such user was necessarily casual or occasional or tolerated by the Respondent’s predecessors in title.

55.	I base these findings principally on the evidence of Mr Hill and Mr Rose. I prefer their evidence to that of Mr Miles whose involvement with the site has only occurred from 1994 to 2001, and the other witnesses for the Respondent on the crucial evidence as to user as of right. I have already mentioned that Mr Hill was not a particularly impressive witness, but that does not mean to say that he was devious, dishonest or untruthful in his evidence as to the important issue as to user of the Blue Land.  Mr West in his submissions and cross-examination sought to paint him as devious and dishonest, but (as I have mentioned above) he was forced to concede that Mr Hill was muddled rather than devious on the issue as to ownership of the Blue Land.  Mr Hill’s knowledge of the site goes back a long way in history although for the purposes of this hearing the relevant start date for the acquisition of the prescriptive right of way was 1977.  I have already referred to those parts of his evidence above which I consider to be relevant to the case and it is clear from the site view that there is no room for two vehicles to pass on the narrow hill outside the Forhill Land. This means that to enable vehicles to pass one vehicle has to back up or down to allow the other to pass, or, more conveniently, the vehicle ascending the hill would if it was able to pull across into the bell-mouth (i.e. the Blue Land) in order to let the descending vehicle proceed down the hill.  As Mr Hill said, in its heyday, when there were ten tenants in occupation of the Nash Works, there were vehicles coming and going all the time and the Blue Land was regularly used for such purposes.

56.	In summary, therefore, although Mr Hill was at times hopeless witness who manifested a number of inconsistencies, as to the essential feature as to the use of the Blue Land from the time that the original parcels of land was sold to Bricast in 1977 until August 2001 when the final parcel of land was sold, I accept the Applicant’s case that the Blue Land was used as and when necessary and as of right for the purposes of enabling vehicles to pass and re-pass along the narrow stretch of access way at the point and that the Respondent’s predecessors in title had actual or constructive knowledge of this.  I do not consider that the fact that Mr Hill’s unreliability as a witness in various other respects affects this essential point as to the use of the Blue Land his evidence being materially supported by Mr Rose and for the later periods of time by Mr Hemming and Mr Reynolds. 

57.	As to Mr Rose he was clearly an honest witness and his involvement with Nash Works was of longstanding. He continued to work there until recently and undoubtedly has a first hand knowledge of the area. He had occupied his unit for some 30 years and he visited his premises on frequent occasions. He stated in terms that the Blue Land had always been used as a passing place, although the traffic became less and less in more recent history. Having heard him give his evidence I am satisfied that he was a truthful witness and supported the Applicant’s case that the Blue Land was used frequently for the purposes of traffic passing and re-passing every day from 1978 until at least 1988 on a daily basis, although thereafter such use became more reduced (particularly since 2003 or thereabouts). I therefore reject the submission made by Counsel for the Respondent that Mr Rose’s reliability has to be called in question by the circumstances in which he came to give his evidence and the conflict between his own evidence and the statements made by Mr Jowett. 

58.	For his part Mr Reynolds also confirmed that use was made of the bell mouth albeit of a casual nature. In so far as Mr Miles is concerned I do not  accept his evidence that no one else used the bell mouth apart from vehicles operated by Bricast and subsequently Mileswade. I appreciate also that there may well have been fork lift trucks placed on occasions at the entrance to the Forhill Land and it may well be that occasionally stillages were also placed there for short periods of time, but the fact that on occasions there were obstructions would not have prevented the Blue Land from being used on other occasions for the purposes of vehicles pulling over.

59.	Thus, I do not accept that such user of the Blue Land (which I have found) did not and could not constitute a continuous right to enjoyment - nor do I accept that there is no satisfactory evidence of such user having continued during the whole period from 1977 up to November 2001. I find that it must have been obvious to Bricast and their successors in title that the Blue Land was being so used for the purposes which I have described above. I therefore reject the submission made that such use was on a casual or occasional basis or tolerated by Bricast.  

DECISION
60.	For all these reasons I find for the Applicant. Thus in answer to the questions

	(1)	Does the applicant presently have a right of way over the Blue Land as a means of access to and egress from the Nash Works?

	(2)	If so what is the precise nature and scope of the right of way?

	I find as follows: 

(1)	Yes. 

(2)	On the basis of the Applicant’s now limited case it has to the right to use the Blue Land for the safe driving, position, manoeuvring or waiting of vehicles driving outbound from Nash Works when there is another vehicle travelling inbound and likewise for the safe driving, positioning, manoeuvring or waiting of vehicles driving inbound to Nash Works when there is another vehicle travelling outbound.

61.	Accordingly I shall direct the Chief Land Registrar to give effect to the original application as modified to take account of the wording set out in the foregoing sub-paragraph. Cost should follow the event.

Dated this 4th day of April 2008

By Order of The Adjudicator to HM Land Registry