REF/2010/0593

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
PETER ALFRED BUSH
APPLICANT
and

(1) DAVID JOHN SEYMOUR
(2) LYNN SEYMOUR
RESPONDENTS

Property Address: 30 and 31 North Street, Leigh-on-Sea, Essex SS9 1QE

Title Numbers: EX726132 and EX189646

Before: Mr Simon Brilliant sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Victory House, 30-34 Kingsway, London WC2B 6EX

On: 7 January 2011

Site inspection: 6 January 2011

Applicant’s Representation:	Mr Robinson, solicitor.
 
Respondents’ Representation:	Mr S Murch of counsel.

DECISION

Easements – right of way by foot alleged over adjoining owners’ land – land previously in common ownership – absence of an express grant in the conveyance – implied grant under the rule in Wheeldon v Burrows – section 62 of the Law of Property Act 1925 – power to amend statement of case. 

Weeldon v Burrows (1879) 12 Ch D 31, Kent v Kavanagh [2007] Ch 1.

Introduction

1.	Leigh-on-Sea is an historic fishing town sheltered in the Thames Estuary.  Since the completion of the London to Southend railway in 1854 it has been a popular commuter town.  In North Street there is a terrace of four suburban villas built in around 1920.  

2.	31 North Street (“number 31”) is at the eastern end of the terrace.  30 North Street (“number 30”) adjoins it to the west.  

3.	Mr Bush, the applicant, has been the freehold owner of number 30 since 2004. It is registered at Land Registry under title number EX726132. 

4.	Mr and Mrs Seymour, the respondents, have been the freehold owners of number 31 since 2010.   It is registered at Land Registry under title number EX189646. 

5.	A passage (“the passage”) runs alongside the eastern external wall of number 31.  At the end of the passage is a wooden door leading into the rear garden of number 31.

6.	There is a concrete path (“the path”) within the rear garden of number 31.  It runs from the end of the passage, past the rear extension of number 31, to a gate in the fence dividing the rear gardens of numbers 30 and 31.  

7.	The position of the passage and the path is shown marked in red on the plan annexed.

8.	Because number 30 is in the centre of the terrace, there is no access between the street and its rear garden within the curtilage of number 30, apart from through the house itself.

The reference

9.	In this reference Mr Bush claims that number 30 has the benefit of an implied right of way on foot over number 31 for certain purposes.  The right of way is between the street and the rear garden of number 30, along a route (“the route”) across the passage and the path.   

10.	Historically, both numbers 30 and 31 had been in common ownership.  They did not become separately owned until Mr Bush bought number 30 in 2004.

11.	Whilst in common ownership numbers 30 and 31 had been let out to tenants.  Mrs Page, whose evidence was not challenged, was the tenant of number 31 between 1956 and 1965.  Since 1965 Mrs Page has been the protected tenant of number 30.  Mrs Page has used the route for access between the street and her rear garden ever since 1965.  The route is obviously apparent from the physical features I have described, and which were in place well before 2004.

12.	Mr Bush’s case is that on the separation of the ownership of numbers 30 and 31 in 2004, an implied easement along the route arose for the benefit of number 30.

13.	By an application in form AP1 dated 1 March 2010 (“the original application”) Mr Bush applied for the benefit of that implied easement to be entered on the register of number 30, and for the burden of it to be entered on the register of number 31.

14.	Such an application is made pursuant to rule 73A(1)(b) of the Land Registration Rules 2003, as inserted by the Land Registration (Amendment) Rules 2008, which refers to an easement acquired otherwise than by express grant or reservation.  By rule 73A(3) this expression includes easements acquired as a result of the operation of section 62 of the Law of Property Act 1925.  

15.	Mr and Mrs Seymour’s predecessor in title objected to the original application on 7 April 2010. The dispute was referred to the adjudicator pursuant to section 73(7) of the Land Registration Act 2002 on 27 May 2010.    

The law

16.	In Weeldon v Burrows (1879) 12 Ch D 31 it was held that upon the grant of part of a tenement, there would pass to the grantee as easements all quasi-easements over the land retained which:

	(1)	were continuous and apparent;

	(2)	were necessary for the reasonable enjoyment of the land granted;

(3)	had been, and were at the time of the grant, used by the grantor for the benefit of the part granted.

17.	This type of implied easement is explained in paragraphs 28-015 to 28-018 of Megarry & Wade seventh edition, paragraphs 5.2.31 to 5.2.39 of Gray and Gray fifth edition, and paragraphs 3-53 to 3-66 of Gale eighteenth edition.

18.	Section 62(1) of the Law of Property Act 1925 provides:

	A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.

19.	Section 62 is explained in paragraphs 28-019 to 28-027 of Megarry & Wade seventh edition, paragraphs 5.2.40 to 5.2.53 of Gray and Gray fifth edition, and paragraphs 3-126 to 3-159 of Gale eighteenth edition.

Mr Bush’s change of case

20.	Until the day of the hearing, Mr Bush’s case was put solely on the basis of the rule in Weeldon v Burrows (1879) 12 Ch D 31.  

21.	On the day before the hearing, it was correctly pointed out, on behalf of Mr and Mrs Seymour, that it was not appropriate for Mr Bush to rely on the rule in Weeldon v Burrows (1879) 12 Ch D 31.  This was in the light of the decision of the Court of Appeal in Kent v Kavanagh [2007] Ch 1, which establishes that the rule cannot be relied upon in the absence of unity of occupation at the time the unity of ownership is broken.  When number 30 was sold off in 2004, it was occupied separately from number 31.  This point had not been taken before.

22.	The law is set out in the following passages in the judgment of Chadwick LJ in Kent v Kavanagh [2007] Ch 1:

[43]	 The two propositions which, together, comprise the rule (or rules) in Wheeldon v Burrows are confined, in their application, to cases in which, by reason of the conveyance (or lease), land formerly in common ownership ceases to be owned by the same person. It is in cases of that nature that, in order to give effect to what must be taken to be the common intention of the grantor and the grantee, the conveyance (or lease) will operate as a grant (for the benefit of the land conveyed) of such easements over the land retained by the grantor as are necessary to the reasonable enjoyment of the land conveyed. But, because the principle is founded on the common intention of the parties, the easements necessary to the reasonable enjoyment of the land conveyed are those which reflect (and, following separation of ownership, are needed to give effect to) the use and enjoyment of the land conveyed at the time of the conveyance and while that land and the retained land were in the common ownership of the grantor.

[44]	 It is necessary to ask how far either of the two propositions which Thesiger LJ identified in Wheeldon v Burrows can have any application in a case where, at the time of the conveyance, the land conveyed and the land retained, although in common ownership, were not in common occupation. In particular, can either of the two propositions have any application where the land conveyed was occupied by a tenant holding under a lease from the common owner. Assuming, for the moment, that the land is not conveyed to the tenant, there are, of course, two distinct questions: (i) what easements over the retained land pass with the conveyance of the freehold and (ii) what easements are reserved out of the land conveyed for the benefit of the retained land. The rights of the tenant over the land retained; and the rights of the grantor (as owner of the land retained) over the land held under the lease are unaffected by the conveyance. Prima facie, those rights will depend on the terms of the lease-but may include rights which passed to the tenant under the first rule in Wheeldon v Burrows when the lease was granted.

[45] 	In the absence of an express grant, the answer to the first of those questions-what easements over the retained land pass with the conveyance of the freehold-turns, as it seems to me, not on any application of the first rule in Wheeldon v Burrows but on the operation of section 62 of the Law of Property Act 1925. Under section 62 a conveyance of land operates to convey with the land "all … ways … easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land … or, at the time of conveyance, demised … or enjoyed with … the land". I can see no reason why those words are not apt to convey, with the freehold, rights of way over the retained land which are, at the time of the conveyance, enjoyed by the tenant in occupation of the land conveyed. For my part, I find that analysis more attractive than one which relies upon the first rule in Wheeldon v Burrows. It seems to me an unnecessary and artificial construct to hold that the grantor, as common owner and the landlord of the land conveyed, is himself using the rights over the retained land which his tenant enjoys under the lease.

[46]	In reaching that conclusion I have had regard to the observations of Lord Wilberforce in the Sovmots appeal [1979] AC 144, 169, that:

"section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc, does not exist: see Bolton v Bolton (1879) 11 Ch D 968, 970 per Fry J and Long v Gowlett [1923] 2 Ch 177, 189, 198, in my opinion a correct decision."

As Lord Wilberforce pointed out, there can be no sensible concept of rights over one part of land for the benefit of another part while the two parts are in common ownership and occupation. But, once there is a separation of occupation (because part of land in common ownership is held by a tenant under a lease) there is no conceptual difficulty. There may well be rights over the untenanted part of the land for the benefit of the tenanted part. If there are, those rights are within the wide compass of section 62 of the 1925 Act.

23.	In his skeleton argument, delivered on the day before the hearing, Mr Murch referred to Kent v Kavanagh [2007] Ch 1.  He pointed out that although in that case the claim for an easement had succeeded under section 62, this was not the basis upon which Mr Bush had put his case.  Mr Murch then asserted that this was a sufficient ground to dispose of the original application.

24.	He then submitted that, even if the rule in Weeldon v Burrows (1879) 12 Ch D 31 were to be relied upon, it would not succeed.   The route was not necessary for the reasonable enjoyment of the land granted.  This is because there were two alternative routes.  One was through the house itself.  Another was through a path leading north from the rear garden of number 30 to Canonsleigh Crescent. 

25.	I should say, for the sake of completeness, that I do not accept this latter submission.  It was reasonably necessary to have a means of delivering bulky items for use in the rear garden of number 30 directly to the garden without the necessity of trampling through the house itself.  There is no right in law for an occupant of number 30 to use the path leading to Canonsleigh Crescent.  The path is not part of the public highway and there is no prescriptive or other right to use it.  The path, as I saw on the site view, is wholly inaccessible from the rear garden of number 30.

26.	Mr Murch did not challenge Mrs Page’s evidence.  Nor did he suggest that an implied easement under section 62 had not arisen.  His stance was that it was not open to Mr Bush to rely upon a case he had not put forward.  He was also properly concerned that if, contrary to his submission, it was open to Mr Bush now to advance a case based on section 62, the precise scope of the easement so acquired should be recorded.

27.	I invited Mr Robinson to amend his statement of case to include a claim based on section 62.  He indicated that he would wish to do so.  In the part of the statement of case headed “Facts upon which the Applicant intends to rely” he had already set out words to the effect that, on the transfer of number 30 to Mr Bush in 2004, there had passed by implication to Mr Bush, for the benefit of number 30, a right to pass and re-pass in foot over the passage under the rule in Weeldon v Burrows (1879) 12 Ch D 31. He wished to add at the end the words “and/or by virtue of section 62 of the Law of Property Act 1925”. 

28.	It is to be noted that there is a requirement to set out in the statement of case the facts on which a party relies under the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003. There is no requirement in those rules to set out propositions of law.  This equates to CPR 16.4(1)(a) which requires a particulars of claim to include a concise statement of the facts on which the claimant relies.  It is not necessary to plead law.  The notes to the White Book 2010 (16.4.1) state that a claimant may also refer in his particulars of claim to any point of law on which his claim is based.

29.	Mr Murch objected to Mr Robinson being given permission to amend the statement of case.  This was a point properly taken on behalf of his clients, and attractively made.  He said there is no express power in the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 to amend a statement of case.  That is true: there is no equivalent to CPR 17. He said there was no implied power to do so.

30.	I gave an immediate oral judgment on this point against Mr Murch. He has indicated that he might seek permission to appeal.  The reasoning is on the tape, and the parties have agreed a note of what I said.  I drew attention to rule 52 which provides for applications to be made, rule 20 which provides for the giving of directions, and to the overriding objective in rule 3.  I decided I did have the power to allow an amendment to a statement of case in an appropriate case, and that this was an appropriate case.  Mr Murch did not suggest he was unable to deal with the section 62 point, and declined the offer of an adjournment until 2.0pm.

31.	It is right to say that, in reaching my decision during the hearing, I did not rely on the matters set out in paragraph 28 above, but would have done so had they been drawn to my attention during the course of argument, or had I recalled them at that time and not later in the hearing.

The extent of the right of way

32. 	Having given Mr Robinson permission to rely on section 62, he correctly abandoned any reliance on the rule in Weeldon v Burrows (1879) 12 Ch D 31.

33.	Mr Murch was entitled to amend his statement of case and has submitted the following, which I allow to be inserted into the respondents’ statement of case:

“Any easement implied into the transfer by section 62 of the Law of Property Act 1925 can be no greater than the right appertaining or reputed to appertain to the land.  Accordingly, it must be limited to a right of way for the purpose of passing between the rear garden of Number 30 and North Street, Leigh on Sea to deliver goods to and remove the same from that garden, on foot only along the path marked in yellow on the plan attached to the statutory declaration attached to form AP1”.

34.	It is agreed by both parties that the extent of the right of way is as set out in Mrs Page’s evidence and no further.  Paragraph 7 of her witness statement reads as follows:

	“Since the commencement of my tenancy of [number 31] on 19 July 1956 to the present day the [route] has been used by the occupiers of [number 30] to facilitate the delivery from North Street to the rear of [number 30] of coal and other goods and garden supplies.  The [route] has also been used by tradesmen such as the window cleaner and builders carrying out work at [number 30] to carry ladders and building materials from North Street to the rear of [number 30] and by me and others to wheel bicycles from North Street to the rear of [number 30] and vice versa”.

35.	I therefore propose to direct the registrar to give effect to the original application as if the objection had not been made, but to set out the extent of the permitted user of the right of way.  It does not seem to me that Mr Murch’s formulation is sufficiently wide as it does not include the wheeling of bicycles between the rear of number 30 and the street.

36.	I would therefore ask both sides’ solicitors to try and reach agreement by 4.0pm 1 March 2011 as to the wording of the entries on the register, and to notify the adjudicator by that date of what, if any, agreement has been reached.  In the absence of an agreement I shall have to make a direction to the registrar. Ultimately the exact form of wording may depend on the registrar’s practice.  But my finding of fact as to what user has actually occurred is as set out in paragraph 7 of Mrs Page’s unchallenged witness statement.

Costs

37.	There was some discussion as to costs at the end of the hearing.  

38.	Mr Robinson accepted responsibility for relying on the rule in Weeldon v Burrows (1879) 12 Ch D 31 when it was inappropriate to have done so, and conceded that there should not be a costs order in his client’s favour and asked for no order as to be costs to be made.  Mr Murch said that if the case had been properly argued under section 62 from the beginning it may well have settled, so his clients have incurred unnecessary costs.

39.	I accept that submission, but if the point had been taken earlier Mr Robinson would have had the opportunity to have put his house in order earlier.  The respondents took the gamble that Mr Robinson would not be allowed to extricate himself from his difficulty.  In that they failed.  It is also to be noted that by rule 3(4) of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003 the parties are required to help the adjudicator to further the overriding objective.

40.	This corresponds to CPR r.1.3, about which there is much learning at 11-14 in volume 2 of the White Book 2010.  Not mentioning a mistake made by the other side until the day before the hearing may be looked upon in a somewhat different light to how it was a generation ago.  The conduct of the parties is a matter to which I must have regard under rule 42(1) of the Adjudicator to HM Land Registry (Practice and Procedure) Rules 2003.

41.	My present view is that there should be no order as to costs. Any party who wishes to argue to the contrary must please serve on the other party and file with the adjudicator written submissions by 4.0pm 1 March 2011.

Dated this 31st day of January 2011

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY