REF/2007/0938

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

IN the matter of a reference from hm land registry

BETWEEN

Mr Gilbert George Reed (1)

and

Mr Alan David Reed (2)

APPLICANTS

and

Godstone Parish Council

RESPONDENTS

Property Address: Pond Farm, Godstone Road, Lingfield, Surrey RH7 6JG
Title Number: SY690677

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

At: Procession House, 110 New Bridge Street, London EC4T 6JL
On: Tuesday 1st July to Thursday 3rd July 2008

Applicant Representation:	Mr Edward Francis, of Counsel, instructed by Messrs Warners
Respondent Representation:	Ms Catherine Taskis, of Counsel, instructed by Messrs Hedleys

DECISION

KEYWORDS: Acquisition of right of way by prescription - doctrine of Lost Modern Grant – whether a right acquired for all purposes or limited to agricultural purposes only – discontinuous user - whether a gate is an interference with a right of way - precarious user – whether direction to Registrar should contain the limitation that the right is for agricultural purposes only - 

Cases referred to: McAdams Homes Ltd v Robinson [2005] 1 P&CR 520; Mills v Silver [1991] CH 271; Loder v Gayden (1999) 78 P & CR 223; James v Hayward (1631) Sir W. Jones 222; Cro.Car.184; Andrews v Paradise (1724) 8 Mod 318; Kidgill v Moor (1850) 9 CB 364; Petty v Parsons [1914] 2 Ch 662; Johnstone v Holdway [1963] 1 QB 601; Dawes v Adela Estates (1970) 216 EG 1405; Flynn v Harte [1913] 2 IR 327

THE APPLICATION
1.	Mr Gilbert George Reed and Mr Alan David Reed (his brother) (“the Applicants”) have applied in form AP1 dated 12th February 2007 to register the benefit of a right of way, with or without vehicles, over a public footpath (“the Track”).  Since 1968 the Applicants have been the freehold owners of land and premises known as Pond Farm, Godstone Road, Lingfield, Surrey, registered at HM Land Registry under title number SY703967.  Form AP1 is supported by a statutory declaration of the first Applicant dated 5th February 2007.  The Track which lies to the north west of Pond Farm leads from the A22 public highway over land known as Blindley Heath Common part of which is registered in the register of common land now maintained under the Commons Act 2006.  The freehold proprietor of Blindley Heath Common is Godstone Parish Council (“the Respondent”) which is registered as such at HM Land Registry under title number SY690677.   

2.	Annexed to the Applicants’ statement of case is a plan (“the Plan”) which appears at page 17 of the bundle of documentation prepared for the hearing (“the Bundle”).  The Track is marked in yellow on the Plan and the relevant part of Blindley Heath Common over which the Track runs is shown edged blue on the Plan (“the Blue Land”).  The parcels of land claimed to benefit from the right of way comprise three fields lying between the Pond Farm land and a group of properties known as Martens Platt, Little Mead, and White Lodge Cottages.  The fields in question formerly formed part of an adjoining farm known as Snouts Farm.  Two of these fields are registered under title number SY672427 and are marked as OS field numbers 0947 and 9833 edged red on the Plan (“the Red Land”).  The third field is marked as OS field number 2634 and forms part of the land registered under title number SY499833 edged green on the Plan (“the Green Land”). 

3.	Snouts Farm originally came into the ownership of the Young family in the early 1920s and on 1st June 1943 a Mr Daniel Young became the freehold owner of the same having purchased it from his uncle Mr Robert John Young.  On 6th May 1981 the Green Land (together with other land) was transferred to the Applicants by virtue a land swap between Mr Daniel Arthur Young and others, and the Applicants, and on 15th June 1981 the Applicants were registered as the proprietors of this parcel.  Subsequently on 5th December 1986 the remainder of the land comprised in Snouts Farm, including the Red Land, was transferred by Mr Daniel Arthur Young to a Mr Charles Coyle who was registered as the freehold proprietor on 22nd January 1997.  On 23rd May 1997 Mr Charles Coyle transferred the Red Land to the Applicants who were then registered as the proprietors on 26th September 1997.  Thus by Autumn 1997 the Applicants had became the freehold owners of the whole of the land formerly comprising Snouts Farm.  Mr Coyle died in 1997.

4.	The basis of the Applicants’ case is that they claim that they, and more particularly their predecessors in title, have acquired an easement by prescription over the Track by virtue of the doctrine of Lost Modern Grant.  They contend that their predecessors in title have had uninterrupted vehicular use of the Track since at least 1943.  The Respondent has objected to this application by asserting that no prescriptive easement has arisen on the basis that there has been no continuous and uninterrupted use even on a discontinuous basis for the requisite period of time.  

5.	Further, I should state that there is a subsidiary issue (“the Subsidiary Issue”) which has been the subject of some contention during the hearing.  This issue arises for consideration in the event that I am satisfied that the Applicants and their predecessor in title have acquired a right of way by prescription.  If I am so satisfied, then I am enjoined by the Applicants to direct the Chief Land Registrar to give effect to the application but without any limitation.  The Respondent contends that if in the event that I find that the Applicants and their predecessors in title have acquired a prescriptive right of way this is limited to agricultural purposes only and I therefore should direct the Chief Land Registrar to note the register accordingly.  I shall refer to this issue again below.   

THE BACKGROUND
6.	The Track runs from the A22 public highway to the west of the Blue Land over the Blue Land in an eastwards direction to a point adjacent to the Red Land.  The first part of the Track has a tarmac surface and is used to gain access to a number of dwelling-houses.  These include:-

(1)	Martyns Platt - since 1978 this has been owned and occupied initially by Mrs Jean Bates her ex-husband and more recently by her alone.  Prior to that it had been occupied by Mr John Stewart Payne from the late 1920s (when it had been purchased by his father on his return from the First World War) until 1959.  Mr Payne gave evidence on behalf of the Applicants and Mrs Bates gave evidence on behalf of the Respondent and in these proceedings.

(2)	Little Mead – formerly known as the Nook.

(3)	White Lodge Cottages which comprise a modern development constructed on a plot upon which had previously stood a property known as White Lodge Hotel which was burned down in a fire some years ago and since redeveloped.  

7.	In 1981 a barrier comprising a gate (“the Gate”) and a side gate for pedestrian use was erected on the Track by the Respondent.  The Gate itself is approximately 10 feet wide and it is possible for smaller vehicles to pass and re-pass through it.  Since the date of its erection the Gate has been kept locked with a chain and padlock and a key has been held by the Respondent to this padlock.  It is, however, possible for pedestrians to pass through the side gate without impediment.  Whether and if so which other parties held a key to the Gate and whether a key was provided by the Respondent on a permissive basis to the then owner of the Red Land is in dispute, and I shall deal with the evidence, below.  

THE ISSUE
8.	The issue in the case is the following – can the Applicants demonstrate the requisite twenty years enjoyment as a right of way along the Track for the purposes of accessing the Red and Blue Land from the A22 for all purposes with or without vehicles?  As I have stated above, the claim by the Applicants is to a prescriptive right based upon the doctrine of Lost Modern Grant.  In such circumstances it is unnecessary for them to demonstrate that such user continued up to the date of the application, or any other particular date.  There is, however, the Subsidiary Issue relating to the nature and extent of such right which will need to be addressed.  

THE LEGAL POSITION
9.	To establish a claim by prescription the Applicants must demonstrate that for the requisite period of 20 years they must have had continuous enjoyment of the right of way of the necessary quality and character.  The user must be as of right, without force, without secrecy and without permission (nec clam, nec vi, nec precario).  The Applicants must discharge the necessary burden of proving such user. 

10.	There are a number of aspects of importance as to user as of right which require consideration.  These are the following:- the question of the discontinuity in the exercise of the right; the subsequent erection of the Gate over the way with a padlock which previously did not exist; and whether the use of the access thereafter became permissive.   Thus a point which can provide some difficulty is when the owner of the servient tenement asserts that he has given permission to the owner of the dominant tenement, or his visitors or tenants, to continue to use a way which previously had been exercised as of right.  If the owner of the dominant tenement seeks and obtains permission then it is difficult thereafter to contend that such user is as of right.  Permission may be given even though it had not been requested.  The owner of the servient tenement, however, cannot simply render user permissible by giving permission to someone who is claiming to exercise the easement as of right.  

11.	Further, even if the nature of the user of the right is of free passage, it does not necessarily follow that the way itself must be unobstructed.  In earlier cases erecting a gate across the way was considered to be an interference (see James v Hayward (1631) Sir W. Jones 222; Cro.Car.184); Andrews v Paradise (1724) 8 Mod 318; and Kidgill v Moor (1850) 9 CB 364.  In more modern cases it can be seen that the fact that the way is obstructed does not necessarily mean that this is necessarily an interference with a private right of way.  To be actionable the interference must be substantial (see Petty v Parsons [1914] 2 Ch 662 at p 666).  The head note and the reference in the statement of facts of Upjohn LJ in the case of Johnstone v Holdway [1963] 1 QB 601 suggests that placing a chain across an entrance with a combination lock would not be a substantial interference if the combination number was supplied to the owner of the dominant tenement (and see page 613 of the judgment).  In Dawes v Adela Estates (1970) 216 EG 1405 it was held that an automatic lock placed on the outer door of a block of flats was not to be construed as an obstruction provided that the postman could gain access.  In an Irish case it was held that whether a gate is or is not an interference with the right is a matter of fact (see Flynn v Harte [1913] 2 IR 327.  In both the Petty case and the Flynn case the erection of a gate across a private right of way was held to be no interference with the right provided that proper facilities had been given to the owner of the dominant tenement. Thus the more modern approach is to look at the degree of the obstruction and interference which will be acceptable dependent upon the nature and the purpose of the right of way in question.  

THE CASE FOR EACH PARTY 
Summary of the Applicants’ case
12.	The Applicants contend that the fields comprising Snouts Farm were used year on year during the ownership of Mr Daniel Arthur Young for the grazing of cattle and (until the early 1960s) haymaking.  This involved the annual preparation and maintenance of the fields (topping, rolling and spraying) and harvesting, together with other more frequent acts of routine maintenance.  During the months when the cattle were in the fields (usually between June/July and November – dependent on weather conditions) visits were made on more or less a daily basis.  The use of the fields for grazing continued following the acquisition by Mr Charles Coyle of Snouts Farm, during which time the fields were let to Mr Mark James for that purpose.  Such use continued until 1997.  In order to engage in such activities the Red Land and Green Land were accessed along the Track as other access routes were more dangerous or difficult.  For instance, historically there has been another access route from the south again leading from the A22, but the entrance to this route to the main road became more dangerous particularly when moving cattle.  Also there was an access route from the north, but this is low-lying and often boggy and involved the use of a narrow and weak bridge over which vehicles could not easily pass. This route has been referred to during the proceedings as “the Blue Track” the significance of which I shall refer to again below. In order to avoid confusion and in contra-distinction to the references to the Track I shall refer to it as “the Blue Route”. Thus, it is asserted, access to the Red Land and the Green Land was obtained more or less exclusively along the Track.  

13.	The evidence in support of the Applicants’ case was provided by the following witnesses – (1) both Applicants, (2) Mr John Richard Young (the son of Mr Daniel Arthur Young), (3) Mr Alfred Edward Goodwin, who was an employee of the Young family for a period of sixty years from 1939 onwards, (3) Mr John Stuart Payne, who was born and lived in Martyn’s Platt until 1959, and (4) Mr Mark James, who was the tenant farmer of the Red Land for the period after Mr Coyle’s acquisition of Snouts Farm in 1986, who gave evidence to the effect that use was made of such land until 1997.  Reliance was also placed upon the statutory declarations of Mr Daniel Arthur Young made on 21st November 1986 and Mr Charles Coyle made on 6th March 1997. 

14.	In short, the Applicants submitted that the right of way over the Track for the benefit of the Red Land and the Green Land was already well established and recognised by the Respondent in 1979.  Documentary evidence was also relied upon in support of the Applicants’ case. 

15.	Thus, it is the Applicants’ case that the prescriptive right of way was already established prior to the erection of the Gate.  There is no dispute that the Gate was subsequently erected in 1981, and a padlock or padlocks were placed on the Gate, but it is contended that the Gate was originally so erected to provide a temporary barrier to stop unauthorised vehicles from accessing land to the rear of the White Lodge Hotel.  In any event, however, the provision of a key to the Gate did not render the use of the way precarious.  The gate was erected by the Respondent expressly on terms that it would ensure Mr Young’s freedom of access to his fields and a key was provided for these purposes.

Summary of the Respondents’ case
16.	Evidence in support of the Respondent’s case was provided by the following witnesses, (1) Mrs Patricia Rodgers, who was employed as the Clerk to the Respondent from 1989 to June 2003, and (2) Mrs Jean Bates, who has resided at Martyn’s Platt since 1978, albeit that between the Autumn of 1981 until the Summer of 1990 she spent a large part of the year with her husband in Canada returning each Summer.  

17.	The Respondents’ case essentially is as follows:-

(1)	The Applicants’ predecessors in title have not made use of the Track as the route of access to and from the Red Land and the Green Land.  The statutory Declaration of Mr Daniel Arthur Young made on 21st November 1986 clearly demonstrates that the route used was the Blue Route as shown on the plan thereto at page 168 of the Bundle as it makes no reference to the Track. 

(2)	If and insofar as the use of the Track had been enjoyed by the owners and tenants of the Red Land and the Green Land there are two periods of user to which regard should be had – namely prior to and post 1981. It is common ground that there has been no user since 1997.  Prior to 1981 reliance is placed upon the Statutory Declaration of Mr Daniel Arthur Young made on 21st November 1986 in which (so it is contended) the access referred to is the Blue Route, and not the Track.  It is also submitted that the evidence in relation to the use of the Track was contradictory and, in any event, its use was on a discontinuous basis there being considerable periods of time during the winter months when the Track was not used at all. 

(3)	Since 1981, it being common ground that this was the date when the Gate was erected without the approval of the users or any consultation with them, there has been no, or no sufficient, evidence that any use was made of the Track other than occasional use.  Further, and in any event, such use that was made of the Track was in the terms of a limited permission granted by the Respondents with the provision by them of a padlock and a key.  The effect of the grant of this permission has been that user of the Track was not as of right.  It is, however, accepted that if there was sufficient evidence of the acquisition of a right of way prior to that date then the placing of the Gate could not render precarious any right acquired before then.  At best it would bring to an end the continuing period of acquisition.

(4)	If, however, the Applicants are found to have acquired and to remain entitled to a right of way along the Track, then the nature and extent of such right so acquired will be determined by the actual user found to have been made of the Track.  In other words, the use made of the Track was solely in connection with, and for the purpose of, the agricultural use of the fields in question.  This gives rise to the Subsidiary Issue, to which I have made reference above.  

(5)	I should also add that it was part of the Respondents’ case that since such use ceased in any event following the acquisition of the Red Land by the Applicants in 1997 this was sufficient to demonstrate an intention amounting to an effective abandonment of any right previously acquired.  During the course of the hearing the case for abandonment was not pursued.

THE EVIDENCE
Statutory Declaration of Mr Daniel Arthur Young dated 21st November 1986
18.	Of crucial importance to the Respondents’ case is the significance of the Statutory Declaration of Mr Daniel Arthur Young in seeking to provide an answer to the question as to which route formed the access and therefore the subject matter of the right of way to and from the Red Land and the Green Land.  This document was prepared in the context of the sale of the remaining land comprising Snouts Farm (which included the Red Land) to Mr Charles Coyle on 5th December 1986.  I have not had sight of this transfer.  It is, however, clear from the contents of this Statutory Declaration that it was prepared for the specific purpose of describing the rights then being asserted as attached to the land so transferred.  I should state that no evidence has been provided to me of there being any dispute at that stage as to such rights and, as Counsel for the Respondents states, “there was nothing to colour or otherwise influence the terms of the evidence given in the Statutory Declaration”. 

19.	Unfortunately the original Statutory Declaration of Mr Young apparently no longer exists – nor has any certified copy been produced.  The Bundle, however, contains what purports to be a coloured copy of an undated certified copy of the original prepared by a firm of solicitors, Messrs Dean Wilson Laing.  The plan is exhibited as “DAY1” to the Statutory Declaration at page 168.  This indicates a route marked in blue (and referred to during the course of the proceedings as the Blue Track), and this marking is of some significance for the purposes of this case.  I should also mention that at various places in the Bundle there appear a number of copies of an uncoloured copy of the same plan forming part of the Statutory Declaration which in turn have been exhibited to other statutory declarations and witness statements.  These copy plans have been included in the Bundle as follows:-

(1)	Copy Statutory Declaration of Mr Charles Coyle declared on 6th March 1997 – at page 164;
(2)	Witness statement of the First Applicant – at page 103;
(3)	Witness statement of the Second Applicant – at page 125;
(4)	Witness statement of Mr John Richard Young – at page 151.

Confusingly, the copy Statutory Declaration of the First Applicant declared on 5th February 2007 does not in fact reproduce a copy of the same plan at page 187 but repeats the plan exhibited to the Statutory Declaration of Mr Charles Coyle at page 182.

20.	The significance of the uncoloured versions of exhibit “DAY1” is that it appears to show clearly the beginning of the Blue Route as passing to the side of the two properties Little Mead and the White Lodge on its trajectory to the north west.  What it does not do is seemingly to pass between White Lodge and Martin’s Platt.  The coloured version of this plan at page 168 shows a blue line of a somewhat thicker dimension but on the same trajectory.

21.	I therefore now turn to the terms of the Statutory Declaration of Mr Young itself.  In this document Mr Young refers to the Red Land and the other remaining land within  Snouts Farm as follows:-

“2.	Access to the property has always been gained either direct from the main A22 London to Eastbourne Road or alternatively by the exercise of rights of way along the public footpath shown on the said plan giving access to the land to the north western corner thereof passing the properties known as White Lodge and Little Mead.

3.	I am advised that no legal easements exist for the exercise of such a right of way.  Certainly access has been gained to the land by me, my partners, agents, servants and friends at least since the year 1943 as of right without the consent of any person without interruption and without payment of any kind to any person whatsoever until the present time.

4.	The said use has been to pass and repass along the said road or way by day or by night with or without vehicles of any description (including farm vehicles such as tractors, and combined harvesters) and with or without animals for all purposes connected with the use and enjoyment of the land.”

22.	Mr Young thus refers to two access routes.  One of those mentioned undoubtedly must refer to the southern access route which lies directly from the A22, and to which reference was made during the course of evidence as being hazardous at the point of entry on to the A22.  That access route has been identified at point “X” on the plan at page 116 of the Bundle.  The identity of the other access route has been the subject of some debate. 

23.	Counsel for the Respondents points to what she asserts is a considerable inconsistency between the evidence provided by the Applicants and their witnesses and the express terms of this Statutory Declaration when seen in the context of exhibit “DAY1”.  Miss Taskis states that when comparison is made between the plan at e.g. page 103 and the plan at e.g. 140 there is a clear distinction between the Track itself marked coloured yellow which (as she put it) “hugs the boundary of Little Mead” and then veers to the west and passes between White Lodge and Martin’s Platt.  This is in contradistinction to the Blue Route, which, as I have stated above, is shown as heading on a trajectory to the North West.  There can be no real dispute (so it is asserted by Miss Taskis) that the access referred to by Mr Young is the Blue Route.  It is submitted that this inconsistency between the terms of this Declaration and the evidence given on behalf of the Applicants is of such significance that it throws into doubt the Applicants’ case as to which access is the subject matter of the claim.

The oral evidence as to the Track/the Blue Route
24.	For his part Mr Francis, Counsel for the Applicants, submitted that I do not have to rely on this Statutory Declaration as the evidential basis for supporting the assertion the prescriptive right of way over the Track.  The oral evidence is clear as to the use of the Track and there is no countervailing evidence to challenge.

25.	Instead he submits that I can rely upon the evidence of live witnesses who have had knowledge of use of the Track from the 1930s onwards.  These witnesses have provided witness statements and also have attended the hearing to give evidence.  In particular he relies upon Mr Goodwin, Mr Young and Mr Payne all of whom he states gave clear and consistent evidence as to the fact that the Track was used as the main access to the Red Land and the Green Land.  Indeed, the Blue Route could not be used for the purposes of obtaining vehicular access as it was impossible for periods of time and that it crossed a bridge spanning a stream and the bridge was too narrow and it was boggy and impassable for vehicles.  

26.	In his witness statement dated 30th November 2007 Mr Young says that since 1955/1956 he had a good recollection of the activities that were undertaken on the fields and says that vehicular access was always by way of the Track.  Earlier use was by means of horses and carts, and later use (from about 1955) was by means of tractors and other mechanically propelled vehicles.  Although farm workers made some use of the Blue Route on foot and cattle was driven along it, he and another person would drive down the A22 and access the fields via the Track.  This was always the access that was used for vehicles going to these fields.  Further, towards the end of the family’s ownership of the fields in the mid to late 1980s they used the Track to transport cattle from grazing back to Blackgrove Farm.  Sometimes it was necessary to reverse a livestock trailer all the way along the Track through the gate marked ‘X’ on the plan on page 46 of the Bundle and to the field gate lying to the east.  

27.	Insofar as Mr Goodwin’s evidence is concerned, he was employed by the Young family from 1939 and worked for them for over 60 years (save for war service).  He said that until the early 1960s the Red Land was used solely for grazing cattle and haymaking and from then on the grazing of cattle remained but the haymaking ceased.  He confirmed that access to the fields were gained by the Track and that although there was access from the north over the Blue Route it was impassable with a horse and cart and even from the 1950s when he drove a tractor it was generally too wet and boggy even for the best tractors to gain access.  Mr Goodwin went on to say that he accessed the fields in question with both horses and tractors along the Track on regular occasions during his employment with the Young family. 

28.	As to the evidence given by Mr Payne he was born in Martyn’s Platt in 1927 and remembered Mr Arthur Young using the Track regularly and driving his cattle along it to gain access to his fields to the east.  He saw his father regularly converse with Mr Arthur Young and he drove his cattle along the Track.  

29	In short, the evidence from the witnesses for the Applicants and in particular the evidence given by Mr Young, Mr Goodwin and Mr Payne is clear in that access was gained to the Red Land via the Track and not the Blue Route.  The latter access from the north was not one which was used except on foot and for the movement of cattle and was generally impassable for vehicles owing to it being wet and boggy for periods of the year and also there being a narrow and inadequate bridge along its course.  In such circumstances I prefer the evidence of the live witnesses as to the use of the Track for the purpose of the access to and from the Red Land (and the Green Land), as opposed to access along the Blue Route.  I appreciate that the Statutory Declaration of Mr Daniel Arthur Young appears to contradict this, but as Mr Francis submits is that there is ambiguity insofar as the plan attached to the Statutory Declaration is concerned.  He contends that statutory declarations are often little more than formulaic documents which quite often display inaccuracies or ambiguities.  He also asserts that it all the more likely that this document is inherently ambiguous for the reason that there was in fact no dispute at the time and therefore the person drafting it on behalf of Mr Young was not as careful as he should have been in so doing. 

30.	Thus, I accept the submissions made by Counsel for the Applicants in this regard.  I do not accept that there is a contradistinction between the evidence of the Applicants’ witnesses and the terms of the Statutory Declaration and in particular the Plan annexed thereto.  It is clear from the oral evidence given that the Track was the main route for the purposes of access to and egress from the Red Land and the Green Land as the other two routes, namely the route from the south and the Blue Route were inappropriate access routes the reasons stated by the witnesses.  This does not mean to say that those routes were not used on occasions for the purpose of access to Snout’s Farm, but the primary route or access of people, cattle and vehicles was, in my judgment, the Track.  Accordingly I find that the plan attached to the various copies of the Statutory Declaration is not sufficiently determinative of either access route and I accept the evidence of the live witnesses that the Track was the usual route for accessing the fields in question. 

The extent of the user of the track
31.	Having so found, it is then necessary to determine whether or not the use of the Track was sufficiently continuous to meet the conditions required for prescriptive user.  

32.	Again, it is necessary to have regard to the oral evidence given during the course of the proceedings.  Insofar as the period of user until the erection of the Gate in 1981 is concerned I accept the oral evidence of Mr Payne, Mr Goodwin and Mr Young that there was frequent user of the Track for the purpose of accessing the fields comprising Snout’s Farm.  As I have stated above, Mr Young had a good recollection since 1955/1956 when he was aged ten or eleven years of the activities undertaken in the fields and that vehicular access was maintained by the Track.  He himself from the age of 17 in 1962 regularly drove a tractor along the Track.  Insofar as Mr Payne’s evidence is concerned he lived at Martyn’s Platt from the time he was born in 1927 until the property was sold in 1959.  He stated that he saw Mr Arthur Young using the Track regularly driving his cattle along there and for the use of carts.  As to the evidence given by Mr Goodwin he was born in 1925 and from the age of 14 in 1939 he was employed by the Youngs on Snout’s Farm.  Again, he confirms that regular access was maintained by him during such employment from 1939 originally by means of horses and then thereafter in the early 1950s with both horses and tractors on a regular basis.  

33.	Thus as to the extent of user of the Track based upon the evidence, to which I have referred above, I make the following findings - from at least 1939, and probably earlier, regular access was maintained over the Track for the purpose of accessing the fields then comprising Snout’s Farm.  In the early years such access was for the driving of cattle and the use by horses and carts and subsequently in the 1950s access was maintained by tractors and other vehicles.  I find that such access was obtained throughout the year.  During the summer months cattle grazed on the fields and access was maintained on a daily basis to check the herd.  When the fields were not occupied by cattle and clearly access was not on the same regular basis but there was access to prepare the fields in April and May each year and other activities also occurred such as harrowing, topping and rolling and during the period when haymaking was undertaken there was also spraying.  The cattle were in the fields from late spring until September to November dependent upon conditions and also there were sheep in the fields which remained there until about Christmas time.  During the winter months there was less necessity to obtain access to the fields, but I find that they were checked on a monthly basis on foot and by vehicle and also other jobs were undertaken such as carrying out fencing repairs and replacement of such parts that were required.  I also find that the Track itself was the subject of some maintenance and on one particular occasion (according to the evidence of Mr Young) hardcore was laid to the corner of the Track near the pond where it was prone to boggy conditions.  

34.	In such circumstances, I find although there were periods of the year when the Track was used more intermittently than at other times the overall user was sufficiently continuous to meet the conditions required for the acquisition of a right of way by prescription.  I do not need in the circumstances to specify the actual period of acquisition save to say that I am satisfied that the minimum period of twenty years was achieved prior to 1981 and the evidence given clearly indicates, in my judgment, that such period was achieved at least from 1939 and the user continued unimpeded until 1981.  I therefore do not need to refer to the evidence of Mr Mark James as such as the period necessary for the acquisition of the prescriptive right had already expired by the time he used the Track as  access to the Red Land.

	Erection of the Gate – the question of precarious user
35.	It is common ground that a Gate was erected across the Track near to the entrance of Martyn’s Platt in 1981.  As I have stated above, a concession was made by Counsel for the Respondents that the erection of the Gate in itself could not render precarious a right which had been acquired by prescription before that date.  Their position, however, is that if the evidence is not sufficient to demonstrate that the Applicants had acquired a right prior to 1981 then if the period of acquisition was still in progress, as it were, the erection of the Gate would render the use of the Track precarious thereafter. 

36.	That, therefore, is an end to the matter as I have found that the period of acquisition of the right of way was concluded prior to 1981.  I will, however, make one or two further comments insofar as Counsel’s submissions are concerned.  It was submitted that the Gate was erected without consultation or approval of any of the parties who may or may not have been using the Track prior to that date and locking the Gate somehow rendered subsequent user precarious.   I reject that submission.  At page 25 of the Bundle is a letter dated 27th March 1979 from the Respondents to Mr J Young of Comforts Place Farm.  This is in the following terms: -

     “ Blindley Heath Common
Tract besides Martyn’s Platt
The Parish Council is prepared to give Mr Bates [who then lived at Martyn’s Platt] permission to erect a temporary barrier to prevent vehicles using the rear of White House Hotel, provided satisfactory arrangements can be made with you to ensure your freedom of access to your fields via this Track.”

37.	Evidence was given by Mr Young that when the Gate was subsequently erected he did not request a key to the padlock but one was sent through the post to the Young family.  In such circumstances I accept that the provision of a key to the padlock was one effected in satisfaction of the commitment which the Respondents had given in this letter.  It is not, in my judgment, an indication of permission being given for the use of the Track, but the reverse.  It is, in effect, an indication of the Respondents’ acknowledgment of the right of way over the Track, and the provision of the key was to avoid what could otherwise be construed as an interference with the enjoyment of the right of way by the Young family.  

38.	That being so, the question then needs to be asked as to whether or not anything occurs subsequent to that action in order to change the position.  I find that it is likely that the original padlock remained in position until September 1996 when it was replaced by Mrs Rogers, the Clerk to the Respondents.  Until that event occurred the evidence reveals that Mr Young, Mr Charles Coyle and Mr Mark James who was a tenant farmer of the Red Land from 1986 until 1997 had access through the locked gate so as to use the Track for the purposes of gaining access to such land.  

39.	Mrs Rogers in her evidence was somewhat inconsistent insofar as the question of how many keys existed to the padlock placed on the gate in 1981.  She, it must be remembered, was not employed as the clerk until 1988/1989.  Initially in her evidence she asserted that she had custody of the key to the padlock and then that no other person had such a key.  She also said in her first witness statement that there was only one occasion when Mr Coyle used the Track.  This was when she loaned the key to him having gone to the Gate for that purpose so as to enable him to drive cattle along the Track.  In her letter dated 16th September 1996 (at page 85 of the Bundle), that the position asserted by her was incorrect.  It is clear from paragraph 4 of that letter that prior to the change of padlock in September 1996 she had no idea who held the keys to the previous padlock.  The purpose of changing the padlock at that stage was to prevent illegal and unauthorised access to the Track and to enable the Respondents to re-establish control over the Track and the whereabouts of keys to the padlock. 

40.	In such circumstances, I am satisfied that when the Gate was erected in 1981 and a padlock placed upon it this was not in order to render the use of the Track precarious and did not do so.  Further, the subsequent actions of the Council were not designed to prevent those persons who had the right to use the Track thereafter from so doing.  Indeed, it is likely that the original lock placed on the Gate in 1981 remained there until September 1996 and a number of persons had keys which were not under the control of the Respondents.  I therefore find that user post 1981 was not rendered precarious at any time. 

41.	I do find, however, that in order to prevent unauthorised access the Respondents, as the owners of the servient tenement, were and are quite within their powers to have erected the Gate, together with the provision of a padlock in order to prevent unauthorised user of a Track by persons not entitled to exercise the private right of way.  The caveat to this is that a key or keys should be provided to those persons authorised to use the Track for the purpose of accessing the Red Land and the Green Land for the purpose of agricultural user, namely the Applicants.  Further, as the Track also constitutes a public footpath, then the public on foot must continue to have access along the Track as pedestrians.  In this regard I refer to the authorities set out in paragraph 11 above, to the effect that the Respondents are entirely within their rights in seeking to restrict access by the erection of the Gate and the provision of a padlock so as to prevent unauthorised user. 

42.	Thus, having regard to the evidence to which I have referred above, I am satisfied that the Applicants have the benefit of a right of way with or without vehicles over the Track forming part of title number SY690677.  The Applicants through their predecessors in title have acquired a right of way by prescription and remain entitled to such on the basis that the nature and extent of this right of way so acquired has been determined by the actual user for the period of 20 years establishing such right which I found to have been made of the Track.  Thus I am further satisfied on the evidence that the right of way so acquired by prescription was used for the purposes of agriculture, namely accessing the Red Land and the Green Land for use qua fields.  

THE FINDINGS OF FACT
43. 	Thus, in summary, I make the following findings of fact: -

(1)	The Applicants’ predecessors in title acquired a prescriptive right of way over the Track with or without vehicles for the purposes of accessing the Red Land and the Green Land under the doctrine of Lost Modern Grant, such user having been acquired by 1981.  

(2)	I am satisfied, however, on the evidence that the right of way so acquired by prescription was for the purposes of agriculture, namely accessing the Red Land and the Green Land for use qua fields.  

(3)	I am further satisfied that such user acquired prior to 1981 was not rendered precarious by any actions taken on the part of the Respondents thereafter by the erection of the Gate, or the provision of keys.

THE SUBSIDIARY ISSUE
44.	I now need to turn to the actual terms of the Direction which I am required to make to the Chief Land Registrar to give effect to the original application.  As I have stated above, Mr Francis contends that this Direction should reflect the fact that I have found in favour of the Applicants and thus it should merely state that the Applicants have the benefit of a right of way, with or without vehicles over the Track of which the registered proprietors are the Respondents.  In other words, I should make no reference in this direction to the nature and extent of the right of way so acquired by prescription. 

45.	In this context the Applicants accept that the Track during the prescriptive period has been used by them and their predecessors in title as owners for the time being of the dominant tenement for the purpose of accessing agricultural land in the context of the agricultural activities carried out on the dominant tenement.  It is also accepted by the Applicants that if the owners for the time being of the dominant tenement put such land to a different use in the future then there would be an excessive user of the right which would entitle the owners for the time being of the servient tenement to injunctive relief.

46.	It is, however, not accepted by the Applicants that the right as such to use the Track for agricultural purposes should be the subject of any limitation in the register of title as to the description of the right both in terms of the benefit and the burden.  In this regard I quote from paragraph 13 of the Applicants’ skeleton argument, as developed during the course of the final submissions in the case:-

“… any such issue would fall for determination not in the context of determining whether a right of way based on prescriptive user was established, but whether any subsequent use of the way arising upon a change of use of the [dominant tenement] would amount to an excess user.  That would be a fact-specific enquiry based on the questions (1) whether there was a radical change in the character of the dominant tenement (as opposed merely to a change or intensification of use) and, if there was, (2) whether the use of the dominant land would result in a substantial increase or alteration in the burden on the servient land: see McAdams Homes Ltd v Robinson [[2005] 1 P&CR 520].”

47.	In short, although it is accepted by the Applicants that I am entitled to make findings of fact based upon the evidence as to prescriptive user – in this case limited to agricultural purposes, I am not, so it is contended, entitled to direct the Chief Land Registrar to verify those findings into a direction giving effect to the application, but limiting it to the user so found.  To do otherwise would (so it is argued) tie the hands of any court in the future with regard to any further user that might be made of the Track.

48.	For her part, Ms Taskis rejects such an approach.  She submits that the nature and extent of the right of way so acquired is determined by the actual user found to be made of the Track.  The purpose of the user will be determined by the purpose for which the way was so used during the period relied upon to establish the right.  This I agree with and I have so found.  Ms Taskis relies upon the cases of Mills v Silver [1991] Ch 271 and Loder v Gayden (1999) 78 P&CR 223.  She submits that it is clear from the evidence upon which the Applicants rely that during the relevant period the Track has been used for agricultural purposes in connection with dominant tenement.  Accordingly any right found in favour of the Applicant should be expressly limited in that regard.  

49.	In this regard I appreciate that the AP1 merely refers to an application on the nature of a right of way and does not expressly limit that to a right of way for agricultural purposes.  Paragraph 11 of the statutory declaration of the first Applicant, however, states as follows:-

“However, I believe that a vehicular right of way over the [Track] for all purposes in connection with the use of the farm has been acquired by prescription and I, therefore, claim that I am entitled to have a notice of the right of way entered into the property register of the title…”

Further, I note in paragraph 6(a) of the Applicants’ Statement of Case that in support of their claim they wish to rely upon a number of facts, which, inter alia, included the following:-

“…the Track was used by them with vehicles of all descriptions including tractors and harvesters and for all purposes in connection with their use and enjoyment of Snouts Farm; their use of the Track was one as of right and without interruption and was enjoyed without the permission of any person or payment to any person…”

50.	I also note that in the case of Mills v Silver Lord Justice Dillon allowed the appeal in part from the Judge at first instance and declared that the Defendants were entitled by prescription to a right appurtenant to Coed Major to pass with our without vehicles, but for domestic and agricultural purposes, over the disputed Track with power to repair the surface (see page 286E, page 287D to F). 

51.	I further refer to paragraph 33 of the McAdams Homes case (at page 528) where Lord Justice Neuberger, after reviewing a number of authorities, stated that the use of the dominant land will determine the character and the extent of the enjoyment of the easement, and a change in the use may obviously lead to an alteration in that enjoyment.  This was a case where it was common ground between the parties that a conveyance made in April 1982 included, by implication, a right in favour of the purchaser to discharge, foul and surface water from a bakery through a drain under the site and under the neighbouring property, into a pipe under the garden of the neighbouring property and then through that pipe and into the public sewer.  In that case in view of the fact that the dominant land had been developed by the erection of two detached four-bedroom houses on the site of the former bakery the question arose whether (1) this represented a radical change in the character or change in identity of the site as opposed to a mere change or intensification in the site; and (2) the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land.  In other words, the Court of Appeal was dealing with circumstances one stage further on from the circumstances which I have been considering.  
52.	Whether or not a change of use is objectionable is dependent upon the answer to the two questions posed by Neuberger LJ at paragraph 50 (at page 532).  In my judgment there is nothing in that judgment which prevents me from making a finding of fact at this stage as to the extent of the right acquired, and then directing the Chief Land Registrar as appropriate.  It is only once the extent of the right acquired is apparent that the two-stage test can be applied as posed by Neuberger LJ.  The purpose of that test is to identify whether or not the proposed, or actual, future use of the dominant is in fact a legitimate activity.

53.	The user of the Track upon which the Applicants rely does not give rise to a prescriptive easement unlimited in terms.  It gives rise to a prescriptive right limited in accordance with the actual user made of the Track for the period in question.  Thus in my judgment it would wholly inappropriate to record in the register a right of way without any of the limitations to which the right is subject.  Not to do would be misleading.  

54.	In the present case the question before me is not a question of an increase, whether insubstantial or substantial, in the intensity of the use of the right of way, but, instead, I am dealing with the circumstances at this point in time which have given rise to the acquisition (as I have so found) of the prescriptive easement.  If in future there is a radical change in the character of the dominant tenement or a change in its identity, and also whether the use of the Track could result in a substantial increase or alteration in the burden of the serving tenement, will be matters to be determined by another tribunal.  

55.	Thus, I do not consider that the two questions posed in paragraph 50 of the McAdams Homes case are in fact relevant to the issue as to the Direction which I should make to the Chief Land Registrar.  

56.	Thus I reject the submissions made by Mr Francis and I agree with the submissions made by Ms Taskis.

57.	I have made a number of minor and typographical alterations to the original Decision pursuant to Rule 57 of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003.

THE DECISION
58.	Therefore in these circumstances I consider that the appropriate Direction to make to the Chief Land Registrar is that he should give effect to the original application that the Applicants are entitled to a right of way over the Track with or without vehicles for the purpose of access to and egress from the Red Land and the Blue Land, and referred to as field numbers OS 0947, 9833 and 2634 on the Plan, but limited for the purposes of those agricultural activities carried out on the fields in question as set out in paragraph 33 above.  

Dated this 19th August 2008
Re-dated this 6th day of February 2009

By Order of The Adjudicator to HM Land Registry