REF/2008/1088
REF/2009/197, 349, 351 and 422

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
 OAKFINCH LIMITED

 APPLICANT

and

1.	MARK STEPHEN HALL
2.	ALAN GEORGE DANIELS
3.	ELIZABETH DANIELS
4.	RICHARD FRYER
5.	IAN STODDART
6.	ANNE COLE
7.	LUCY JOANNE WOOD

RESPONDENTS

Property Address: Land on the western and south western side of Raddlebarn Farm Drive, Bourneville, Birmingham
Title Number: WM915015
 
Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Victory House
On: 7 December 2009

Applicant Representation:  Solicitor
Respondent Representation: Fourth Respondent in person
___________________________________________________________________________

DECISION

 Requirements for reservation of a right of way of necessity.  Extent of any such right.  Relevance of available access by water.  Need for an Applicant to establish its case on the basis of the facts pleaded by it, even in the absence of any Statement of Case by a Respondent before an order can be made in favour of the Applicant.

A developer developed an area of land between a road and a canal, and sold off the houses and other land on long leases to individual purchasers in 1984.  Two small plots of land adjoining the canal were not sold off at the time and were acquired by the Applicant in 2007.  The Applicant wished to develop the plots by building steps up the canal bank and providing mooring facilities and applied to the Land Registry to register a vehicular right of way through a car park demised in individual lots together with houses occupied and owned by the Respondents and others as assignees of the various leases.  The Respondents, acting in person, objected, and the matter was referred to the Adjudicator.  The Applicant served a Statement of Case, later amended, but the Respondents  failed to serve Statements of Case in accordance with the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003, but did write to the Adjudicator explaining their objections to the claim.  A hearing was held to determine how the case should proceed and whether the Applicant had made out a case for the easement claimed.  

Held:   (1) The Applicant failed to establish a case for the claimed right of way as it failed to show that at the dates of each of the leases to the various Respondents’ predecessors in title there was no other access available to the developer to either of the plots.
	(2) Any right of way by necessity could not extend over the whole of the land in respect of which the claim was made, as it had been sold off at different times by the developer.
	(3) There was no real prospect of any amended claim succeeding even in respect of a more limited area bearing in mind that (a) the Applicant had already had the opportunity to amend to deal with this issue; (b) any right of way that might arise by necessity could only extend to the use of the plots as they were at the time of the grant of the relevant leases, and not to their development, which would at best be access on foot; (c) there was in any event access by water sufficient to negate the implication of the reservation of an easement of necessity in all the circumstances.

1.	For the reasons given below, I shall direct the Chief Land Registrar to cancel the application of the Applicant dated 14 February 2008.

2.	This is a case in which the Applicant (“Oakfinch”) seeks to register a right of way of necessity over the properties of the Respondents and others for the benefit of its land, which adjoins a canal, but which cannot be accessed by land except through the properties of at least two of the Respondents.  The Respondents, who are all now unrepresented, objected to the application, and the objections were then referred by the Chief Land Registrar to the Adjudicator.

3.	In the case of Mr. Hall, the reference (REF/2008/1088) was received on 12 August 2008.  The other objections were referred separately several months later, in February and March 2009.  Oakfinch was directed to serve a Statement of Case in Mr. Hall’s case by 5 November 2008.

4.	In Mr. Hall’s case, a Statement of Case was served on behalf of Oakfinch under cover of a letter dated 4 November 2008.  This stated that the reasons for supporting the application were set out in a statutory declaration of Julian Haswell which accompanied the original application, and that the basic fact on which Oakfinch intended to rely was that it was impossible to access its land without an easement.

5.	Mr. Haswell’s statutory declaration is dated 23 January 2008.  It states that Oakfinch purchased the land in July 2007 with other land from Allmid Limited.  The two pieces of land with which the application was concerned lay immediately to the north and south of a bridge across a canal.  The bridge was said to be at a higher level than the two pieces of land and there was no evidence of a reservation of a right of way over the bridge, so that legal access to the pieces of land was not possible, and as far as could be ascertained, no rights were reserved over the plots of land disposed of to the various house owners which lie between the two areas of land and Raddlebarn Farm Drive.  Accordingly an easement of necessity was claimed between the points marked 1 and 2 and 1 and 3 on the plan exhibited to the statutory declaration.  The plan showed the claimed access to be between buildings along an apparent open area, so far as one could tell from the plan, to two points at which that area adjoined the two plots of land in question.

6.	Although it is possible to see how an easement of necessity may have arisen (apart from the question to which I shall return, whether it could arise at all given that there appears to have been access by water to the two plots of land), as a Statement of Case it is defective in that it fails to plead (a) that at some point in time the two plots and the land in question were in common ownership and (b) that when the land over which the easement of necessity was claimed was sold off, that left no means of access over any other land to the either plot now owned by Oakfinch, or when the two plots were sold off there was no other access available except over this land.  Not only was there no reference to the history in the statutory declaration, but there was also no supporting documentation showing the conveyancing history from which any such information could be gleaned.  I assume for the purpose of this decision that, as I was informed at the hearing, the bridge was a private bridge owned by the British Waterway Board, to which Oakfinch had no right of access.

7.	The office copy entries for Oakfinch’s title to the two plots of land and a further much larger plot with which this application is not concerned shows that the land was first registered on 25 September 1970, and that Oakfinch paid £1750 for the three plots of land, all of which adjoin the canal, but with the largest plot also adjoining Raddlebarn Farm Drive.  Mr. Hall’s title, WM327744, is a leasehold title under a lease dated 17 July 1984 for 99 years, the original parties to the lease being (1) Tarmac Homes Midlands Limited (“Tarmac”) and (2) Desmond John Dillon and Tracey Jane Herbert.  Mr. Hall was registered as proprietor on 25 July 2007, about two months before Oakfinch was registered as proprietor of its three plots.

8.	There was a delay in this Statement of Case being served on Mr. Hall, and I am unclear when it was eventually served.  Mr. Hall eventually responded by an undated letter to the Adjudicator, received on 10 February 2009, essentially stating how shocked he had been to find that Oakfinch wanted access through his and his neighbours’ land and asserting that it had access from the opposite bank which Oakfinch realised when it bought its land.  

9.	An adjudicator then considered the file and gave a direction treating the letter as Mr. Hall’s Statement of Case and directing that both parties should provide further information as to their cases.  Those directions as to further information were set aside by a further direction dated 2 April 2009, when it was directed that the Applicant should serve a proper Statement of Case covering all five references, the other four having by that time been referred by the Chief Land Registrar and that the Respondents should then themselves all serve proper Statements of Case complying with the rules.  

10.	Oakfinch failed to comply with the order, and by a further order dated 2 June 2009, I made an unless order for service of its Statement of Case by 16 June 2009, drawing attention at the same time both to the matters referred to in paragraph 6 above and to the decision of the Privy Council in Manjang v Drammeh (1990) 61 P. & C.R. 194.

11.	Oakfinch did in due course serve its revised Statement of Case, to which I shall return, but none of the Respondents served a Statement of Case complying with the Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003.  As a result, another Adjudicator then made an order that unless the Respondents served their Statement(s) of Case by 25 August 2009 the Adjudicator would require the Chief Land Registrar to cancel their objections and if no Respondent had served a Statement of Case he would require the Chief Land Registrar to give effect to the original application to register an easement as if the objections had not been made.

12.	The Respondents did all fail to serve proper Statements of Case, although several did write to the Adjudicator explaining their objections further.  When the file came before me again on 14 September 2009, I considered that the sanction contained in the order dated 25 August 2009 to be wholly inappropriate in a case where, even ignoring anything the Respondents may have wished to say, it was unclear to me that Oakfinch’s case, as re-pleaded, established its entitlement to the claimed easement of necessity, or as to the extent of any easement that may exist.  I therefore directed a hearing to determine what substantive decision the Adjudicator should come to and what order he should make on the basis of Oakfinch’s Statement of Case, or what further directions should be given for the conduct of the reference.   Just as in court proceedings, it appears to me to be wrong for judgment in effect to be given that a party claiming an interest in property should be awarded what they claim because the Respondent fails to defend the claim when the facts pleaded do not establish entitlement to what is claimed.  It also seems to me that it is necessary to be particularly vigilant in this regard when litigants in person are concerned.

The revised Statement of Case – the adequacy of the pleading
13.	The revised Statement of Case alleges that title WM277275 comprised a housing estate at Raddlebarn Farm Drive that was developed by Tarmac Homes Limited, which granted the 166 leases referred to in the Schedule of Notices of Leases in that title.  Allmid was registered as proprietor of the land in that title on 8 August 2005.  When Oakfinch purchased the land now in title WM915015, it did not appreciate that access could not be obtained via the housing estate as developed.  Access from the bridge was impossible and the only other access would be by water.  Access by water had not been obtained in the past, however, at least “regularly and without inconvenience”, and could not be obtained without moorings and pontoons being provided from the landward side, because it would not be possible to moor and construct moorings and/or pontoons from a boat in the river.  Thus Manjeng v Drammeh was to be distinguished.

14.	It is further asserted that Oakfinch (in fact this was plainly referring to Oakfinch’s predecessors in title) had no right of access at the date when the land ceased to be in common ownership with the land over which the right of way was claimed along the canal “either specifically or from the [larger piece of land which did adjoin the highway]”.

15.	The revised Statement of Case also deals with the objections raised by each of the Respondents.  What is clear from that part of the Statement of Case, as confirmed and explained by Oakfinch’s solicitor at the hearing, is that the land through which access is claimed is divided into parking places allocated to the different properties and let with them, so that access can only be obtained, if at all, through a demised space when it is not occupied by a vehicle.  It is also clear that the work envisaged includes the provision of concrete steps or stairs to provide access from the canal to the top of the canal bank.  Finally, I was told at the hearing that a parking space for one vehicle may also be created at the top of the bank.

16.	The Respondents’ leases are annexed to this amended Statement of Case, although the photocopies of the plans annexed to the leases, showing the extent of the demises are not clear.  I therefore have regard to the registered leasehold titles supplied by the Land Registry to identify the land demised to each objector.  For this purpose I shall refer to the two plots to which access is sought as the southern plot and the northern plot.  

17.	As to the southern plot, access is sought, inter alia, through Mr. Hall’s demised parking area as shown on his registered title. His lease is dated 17 July 1984, and his demised parking area can only be reached by crossing several other parking areas.  It is in fact the most southerly parking area, and access to the southern plot is possible, if at all, without going so far as his parking area, as the two parking areas immediately to the north of it also front onto the southern plot.  Access is also sought through Mr. Fryer’s demised parking area, which is immediately to the north of that of Mr. Hall.  His lease is dated 31 July 1984, and he was registered as proprietor on 20 August 2007.  Immediately to the north of Mr. Fryer’s parking area is that of Mr. Stoddart and Ms Cole.  They were registered as proprietors in 1999, and their lease is dated 29 June 1984.  They also appear to front onto the southern plot, close to the bridge.

18.	Ms Wood’s demised parking area is directly in front of the bridge.  Her lease is dated 17 June 1984, and she was registered as proprietor in 2005.  I am unclear whether access is possible directly from that parking area onto the southern plot or whether it is necessary to go through parking areas to the south of it.  There is a parking area directly to the south, between Ms Wood’s property and that of Mr. Stoddart and Ms Cole, in respect of which there is no evidence of either ownership or the date of the lease.  Access to Ms Wood’s demised area from the access road is only through the parking area directly to its north.  There is no evidence as to who is the lessee of this area or when the lease was granted.

19.	Access to the northern plot is sought in part through Mr. and Mrs. Daniels demised parking area as shown on their registered title.  Their lease is dated 6 July 1984, and they were registered as proprietors in 1991.  It is accessible directly from the approach road to the demised parking areas and has quite a wide frontage onto the northern plot.  There are two other parking areas between that area and Ms Wood’s parking area, one of which appears to front onto the bridge and the other of which appears to front onto the northern plot.  There is no evidence as to the dates of those leases or as to their terms.

20.	In addition, there appears to have been a significant area of land to the north and east of the northern plot and to the south of the southern plot which appears likely to have been part of the development in 1984 as to which there is no information as to the extent to which it was in fact owned by Tarmac or, if it was owned by them, as to when it was either developed or sold off.  There is therefore no way of telling, as the matter is presently pleaded by Oakfinch, whether in June or July 1984, when these various parking areas were sold off, Tarmac still had access from elsewhere on its property to either or both of the two plots to which Oakfinch now claims a right of way by necessity over the Respondents and other land.

21.	In the circumstances, it appears to me that (1) Oakfinch has not pleaded a sufficient case to show that, at the dates of the various leases, Tarmac had no other means of access to either plot, and (2) in any event, at the date of Mr. Hall’s lease, Mr. Fryer’s parking space had not been demised, so that no question of a right of way by necessity through Mr. Hall’s parking space could possibly arise, whatever rights there may be over any other area.

Effect of the Land Registration Act 2002 in respect of transfers after that Act came into force
22.	I would add, although the matter was not raised by me, and I do not base my decision on it, that in relation to those Respondents who acquired their leases by assignment after the coming into force of the Land Registration Act 2002, it appears to me that they are likely to have taken that lease free from any right of way of necessity bearing in mind that it is common ground that the easement had, so far as anybody is aware, never been exercised, and the parking areas are and were then fenced off from the two plots (see Land Registration Act 2002, section 29 and Schedule 3, paragraph 3).

The extent of a way of necessity 
23.	A way of necessity, if implied, is limited in use to the purposes for which the quasi-dominant land (in this case the two plots) was used at the time of the grant.  Thus the purchaser of a farm acquires a way of necessity for agricultural purposes only and cannot, if he chooses to build a restaurant on his land, claim a way of necessity for customers and deliveries of food supplies (London Corporation v Riggs (1880), 13 Ch D 798).  As it was put by Jessel M.R. in that case at pp.806 and 807, “the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is… I think it must be limited by the necessity at the time of the grant.”  In the present case, the two plots were part of the bank of the canal that were surplus to Tarmac’s requirements and that do not appear then or thereafter to have been used for anything.  There can be no easement of necessity implied (even if all the other requirements are satisfied) to enable the retained land to be developed, rather than simply to come onto it to use it and maintain it in its existing state, or something similar to and involving no significantly greater use of it than that state.  Further, if an easement of necessity were to be implied, I would find it very difficult to see why it should include access with vehicles, if it were only to be in effect for the benefit of users of the canal coming ashore.

The relevance of access from the canal
24.	Oakfinch’s solicitor correctly points out that in Manjang v Drammeh, Lord Oliver emphasised that the land in question was regularly and without inconvenience accessed by river by the customers of the owner.  The Privy Council did not therefore have to consider what the position would have been had it not previously been so accessed.  What the case does establish, however, is that access by water can prevent any right of way by land from arising as a matter of necessity.  

25.	In Titchmarsh v Royston Water Co. (1899), 81 LT 673, access was possible, but difficult, from a public highway in a cutting 20 feet below the level of the land to which a right of way by necessity was claimed.  That access had never been used before and involved the construction of a new access way.  Nevertheless, it was held that no right of way by necessity could arise.  That case was considered recently by the Court of Appeal in Adealon International Proprietary Limited v London Borough of Merton, [2007] EWCA Civ 362.  At paragraph 18 of his judgment, Lord Justice Carnwath, with whom the other members of the court agreed, said this:

	“Titchmarch was a decision of Kekewich J. The purchaser's land was bounded on three sides by land of the vendor, and on the fourth side by a public road which ran in a steep cutting. The purchaser claimed a right of access to the highway over a private way across the farm, either under the general words of the conveyance, or as an easement of necessity. Both claims failed, the latter on the grounds (in the words of the headnote) that:
"… the way was not a way of necessity because the defendants could, though at some expense, cut a way from the public road."  So understood, the case is unremarkable.”

26.	It is clear therefore that with access from the highway, it is irrelevant that it had not been used before and that significant expenses had to be incurred to make access from the highway practicable.  I see no reason why the same principle should not apply where access is from a river or canal.

27.	As was also pointed out by the Court of Appeal in Adealon, as a way of necessity is something to be implied from all the facts, it will not be implied where, in the case of a claim by a vendor or his successor in title, it can be shown that the intention of the vendor was that he should not have access over the land which he was selling.  Thus at paragraphs 25 and 26 of his judgment, Lord Justice Carnwath stated as follows:

	“25. For completeness I should refer to an Australian case which was not cited to us, but which seems closer to the present on the facts, relating as it does to a claim by a vendor: North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd [1971] NSWLR 150. This also appears to be the fullest judicial discussion of the authorities in the modern cases. It was considered by Sir Robert Megarry VC in Nickerson v Barraclough at first instance ([1981] Ch 325, 333-4). I gratefully adopt his summary of the facts:
		"The North Sydney case was decided in the Supreme Court of New South Wales by Hope J., sitting in Equity. Put very shortly, the facts were that a company sold part of its land, which abutted on to a street. The retained land had no access to a highway, but the company intended subsequently to sell it to the local authority as an addition to a contiguous car park owned by that authority. The proposed sale to the local authority went off, and the company was left with its retained land, which was landlocked. The company then sought a declaration that its retained land had a way of necessity over the land sold; and this claim failed. Over twenty authorities (half of them English) were cited in argument, including Packer v. Wellstead, 2 Sid. 111 and Dutton v. Tayler, 2 Lutw. 1487…The company contended that it was entitled to a way of necessity by virtue of public policy, and that the intention of the parties was irrelevant. The purchaser contended that public policy was irrelevant, and that the company was entitled to no right of way, since the intention of the parties was that the company should have no such right…." 
	26. The claim failed. The court held that a way of necessity arises to give effect to an actual or presumed intention. On the facts the company's intention was the contrary: its intention was that the land retained should have no access over the land conveyed, but instead should have access over the car park. I note in particular the Vice-Chancellor's comment on the differences from the case before him:
"… the claim to a way of necessity was made by the vendor, and not, as in the present case, by successors in title of the purchaser; and although ways of necessity are in a special position, the law is far more ready to imply the grant of easements than it is to imply their reservation. There is a doctrine against derogating from a grant, but not against derogating from a reservation…." (p 334).  The case was not referred to in the Court of Appeal, which differed from the Vice-Chancellor on the facts of Nickerson v Barraclough itself. However, I see nothing to throw any doubt on this aspect of his analysis, which is consistent with the view I have already expressed.”

28.	As stated in Gale, the Law of Easements, 18th ed., paragraph 3-117, “Although earlier cases had tended to treat the relevant principles as equally applicable to claims as to implied reservations and to claims as to implied grant, it is now clear that a distinction can be drawn and that the principles are to be more strictly applied in the case of a claim to an implied reservation of an easement of necessity.”  

29.	It seems to me highly improbable that, when granting leases of the last of the parking spaces, Tarmac had any intention of making any future use of the river bank by accessing it from the highway through those parking spaces.  No special facts are pleaded from which such an intention might be inferred, and there is no suggestion of any facts that might be pleaded.  

30.	It is plain that there are rights of navigation on the canal, otherwise there would be no point in seeking access to build steps, moorings and pontoons.  It is said that it is not possible to build these from the river.  For present purposes, I must assume this to be true.  However, I have the gravest doubt that it would not be possible to access the plots by boat, climb ashore and drive home one or more mooring posts to enable a boat to be tied up, and to do other work to make the plots usable to a degree – to a greater degree in fact than they appear to have been used in the past.  That of course assumes that there is not currently, and was not in 1984, an available tree or branch of a tree to which a boat could be tied.  Even if I were wrong and access from the road was required, and an easement of necessity was made out at least in respect of one or more of the parking areas, I can see no reason why it should be more than an easement on foot.

Conclusion
31.	There is even now no adequate pleading on the basis of which this claim could succeed.  Nor does it appear at present that there is any real prospect of the Applicant’s Statement of Case being amended to establish an easement of necessity over any part of the land over which the present claim is made.  In the case of Mr. Hall’s land, the claim is bound to fail.  In other cases, even if it could be shown that one or more of the parking spaces constituted the last land access to one or both of the plots, I do not consider that a right of way of necessity would arise because (a) there was access from the canal, (b) it would be wrong on the facts of this case to imply a right of way of necessity by a landlord even on foot, and certainly not with vehicles, to an unused strip of canal through a demised parking area to enable it to be developed.

32.	In all the circumstances, the present application to the Land Registry is bound to fail, and I see no real prospect of a more limited application succeeding.

Dated this 18th day of December 2009

By Order of The Adjudicator to HM Land Registry