REF/2010/892

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

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

1.	KEITH WEBB
2.	PAMELA ANN PERKS

 APPLICANTS

and

WALSALL METROPOLITAN BOROUGH COUNCIL

RESPONDENT

Property Address: 8 Willow Road Shelfield Walsall WS4 1RD and 160 and 162 Lichfield Road and other land and buildings
Title Number:  WM211807 and WM64385
 
Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry
Sitting at:  Birmingham Tribunals
On: 20 April 2011

Applicant Representation:  In person
Respondent Representation:   Ms Caroline Rowlands, counsel

 
___________________________________________________________________________

DECISION

Applicants held to have acquired a right of way by lost modern grant and under the Prescription Act 1832, the user having been acquiesced in at latest from 1984, following the Applicants’ decision to ignore an offer of a limited licence to use the route.  Subsequent correspondence from the Respondent in 1986 held not to amount to a licence.  The user continued to be acquiesced in until December 2009  notwithstanding letters from the Respondent from the end of 2005  claiming that there was no right to use the route but without demanding that such user should cease.

Claims by the Respondent that any right of way had been abandoned, that the Applicants were estopped from relying on any such right and that the rules as to prescriptive easements infringed Article 1 of Protocol 1 of the European Convention on Human Rights rejected

Cases referred to: 

R v Oxfordshire CC, ex p. Sunningwell Parish Council, [2000] 1 AC 335
R(Beresford) v Sunderland City Council, [2003] 2 AC 889
Davis v Whitby [1973] 1 WLR 629, affd [1974] Ch 186
Newnham v Wilson, (1987) 56 P & CR 8
Smith v Brudenell-Bruce, [2002] 2 P & CR 51
Dalton v Angus, (1881) 6 App Cas 740
Pye v United Kingdom, (2008) 46 EHRR 45
Lyell v. Lord Hothfield, [1914] 3 KB 911
Gotobed v Pridmore, noted in (1970) 115 Sol.J. 78
CDC2020 Plc v Ferreira, [2005] EWCA. Civ 611

1.	For the reasons set out below, I shall direct the Chief Land Registrar to give effect to the application of the Applicants dated 3 March 2010 as if the objection of the Respondent had not been made. 

2.	The Applicants, Mr. Webb and Ms Perks, purchased 8 Willows Road, Shelfield, Walsall, in 1981, having occupied it since 1980.  The Respondent council owns a car park adjoining 8 Willows Road which was then used as a car park for its social services offices close by.  It continued so to be used until recently, but has now been closed and the council wants to sell it for development.

3.	In the latter part of 1981, Mr. Webb built a garage at the end of his back garden where it abuts the car park and from then onwards he has used the car park to access his garage from the highway.  I accept his evidence that he did this because of the difficulty he had parking on Willows Road.  He also has a side gate which he has accessed on foot from the car park.  Although at one point he thought that he may have a right of way by deed to use the car park in this way, he now claims a prescriptive right of way based on user between January 1981 and December 2009 to the rear of his property, where his garage is situated, with and without vehicles for the benefit of 8 Willows Road.  As I understand the application, and as presented by Mr. Webb at the hearing, no right of way is claimed on this occasion at least to the pedestrian side entrance, which has not been used in recent years.  The application was dated 3 March 2010, the Council objected on 29 March 2010, and the matter was referred to the Adjudicator on 24 August 2010.

4.	I accept Mr. Webb’s evidence, which was not seriously contested by the council, as to the extent to which the Applicants used the car park to obtain access to and from his garage.  It is clear that throughout the period from 1981 or 1982 to 2009 the Applicants would use the car park to get between their garage and the highway at whatever times they pleased and that Mr. Webb did so regularly throughout the period at virtually all times of day and night.  It is also clear that in 1982 Mr. Webb was seeking to negotiate with the council for a licence to cross the car park in this way, and that he recognised at that time that he did not have, or at least might not have, any right to do so otherwise.  I further accept that so far as Mr. Webb was concerned the negotiations broke down because of the Council’s insistence that the licence would only be outside the social services working hours.  He needed to get access during those hours.

5.	Following an initial enquiry from Mr. Webb, an acting secretary in the Council’s legal department wrote to him without prejudice and subject to contract by a letter dated 26 July 1982 as follows:

“I can now inform you that I would be prepared to recommend to the appropriate committee of the Council that you be allowed to use the Social Services car park, immediately adjacent to your property, to gain vehicular access to the rear of your property.  This recommendation would be subject to no objections being received from other Departments of the Council and I would confirm that this matter should be expedited by way of a licence at a fee of £50.00 per annum, the agreement being capable of termination by the service of one month’s notice by either side.

The accessway may only be used during weekends, public holidays, after 5.30 p.m. and prior to 8.30 a.m. on work days (i.e. not during office hours).”

6.	There is a manuscript note on this letter “Ammended [sic] to £25.00 pa”.  It would appear that the licence fee was negotiated down to that sum, but nothing else appears to have happened following this letter as between the Council and the Applicants until the same acting secretary wrote by letter dated 14 December 1982, again headed without prejudice and subject to contract, that he was proposing to place a report before the appropriate committee with regard to their request for garage access.  The licence terms were repeated with the sole exception that the fee was reduced to £25 pa, and the letter concluded by asking for the name of the Applicants’ solicitor who would be dealing with the matter and stating that the writer would inform them of the appropriate committee’s decision as soon as it was available.

7.	There was then a further delay until by letter dated 6 May 1983 the Head of the Council’s Legal Services wrote to the Applicants that he had recently received instructions from the Estates Department regarding the proposed licence and enclosed a draft licence for approval, with a copy, and asked that it should be returned duly approved in order that the appropriate Deed could be submitted for signing in due course.  Nothing was done, and reminders were sent on 11 July and 16 September 1983 with a further reminder following in January 1984, but misdated 6 January 1983.

8.	None of these reminders produced a response.  By letter dated 8 October 1984, the Chief Executive and Town Clerk, or somebody on his behalf, then wrote again to the Applicants referring to previous correspondence and to the draft licence.  The letter observed that no reply had been received despite several reminders, and asked that they should contact a Mr. Kennedy of the Estates section to resolve the matter as to whether they still required a licence.

9.	Once again there was no reply and the Council did nothing further until it wrote by letter dated 30 September 1986, addressing the letter to the Applicants at 8 Willows Road, Shelfield, referring to the previous correspondence and stating that “A recent inspection by Miss Folks of my Estates Section has shown that you are still gaining access to your garage via the Social Services car park.  I should be grateful if you would contact Miss Folks in order to discuss the matter further.”  This was also ignored.  There is no suggestion in the Council’s Statement of Case or in the evidence of Steven Pugh on its behalf that any further letter was written at that stage, except that the Council included a letter dated 28 October 1986 in the list of the documents that it relied on, although no copy of it was included.  The Council’s chronology of events also contains a statement that a further letter was written on 28 October 1986 reaffirming the Council’s interest and that the Applicants required a licence to use the car park.  There is no such letter in the trial bundle and it is not referred to in the skeleton argument submitted on behalf of the Council.  Insofar as it may nevertheless be relied on, I am not satisfied that it was ever written, or if it was written that it was ever posted. 

10.	Curiously, the only copy of the draft licence in the trial bundle (which was prepared by the Council) is dated 1985 and was included in the Council’s disclosure with its Statement of Case at documents 43-46.  The date of 1985 is not a misprint as the period of the licence is stated to be from 1 January 1985, and the consideration has been reduced to £15 a year.  There is no suggestion that any draft licence was sent to the Applicants at that time, yet at the hearing the Council sought to insist that the 1985 draft had come from the Applicants.  Having checked the disclosure of both parties, I am satisfied that the copy disclosed by the Applicants is at pp.8a-c of the documents disclosed by them and is dated 1983.  The licence was for a period from a date to be completed until 31 December 1983 and thereafter for a year.  The consideration was £25 pa.  Further, the times when the way could be used under both licences on working days was limited in the 1985 version to 6pm until 8.15am the next day instead of the original 5.30pm to 8.30am.  Both licences were determinable by either party on one month’s notice.   

11.	There is a dispute as to whether the Applicants received the later correspondence from the council.  Mr. Webb stated in evidence that he received nothing after the letter of 16 September 1993, suggesting that this may have been because of postal problems and because the letters had in some cases been misaddressed.  However, he also accepted that he may have received and binned them.  Insofar as it may be relevant, I find that on the balance of probabilities the letters in the trial bundle were received although some may have gone astray, but I also find that the 1985 draft licence was not sent to the Applicants, there being no evidence that it was ever sent.  I consider that it is more likely than not that Mr. Webb received the letters because the presence on the Council’s file of the copies suggests that they were posted, and I consider that if they had been received Mr. Webb would have been likely to bin them, having decided that the terms offered were unacceptable, and that the Council would either do nothing at all if he ignored them or would do nothing for a considerable time.  I consider that he would have concluded that he would continue to use the car park for access whenever he pleased, as he had already been doing, without objection, for over two years by the beginning of 1994 and for over 4 years by 1996.

12.	The Applicants continued to use the car park for access to their garage as they pleased until 2009, and at least between 1996 and 2005 the Council acquiesced in this, although it contends that user until after September 1996 was by implied consent and that user after 30 December 2005 was not as of right.

13.	In about 1997, the Council wanted to increase the car parking spaces in the car park and Mr. Webb discussed with a Council representative how this could be achieved.  At Mr. Webb’s suggestion it was eventually achieved by moving the parking spaces from one side of the car park to the other, which also meant that from that time the Applicants would access their garage along the other side of the car park from the side they had previously used.  There was no suggestion either that the Applicants did not have the right to access their garage along either route or that the Council might want to use the area in front of the garage to park cars.  A memorandum dated 27 August 1997 (trial bundle, pp.197-200) considers the car park and points out that it provides access to the garage in the rear garden of the Applicants’ home.  An internal Council record hand dated 10 February 1999 refers to Mr. Webb as opposing certain proposals as inconveniencing himself and his neighbour at no.6 who had unrestricted access to the rear of their properties at that time. 

14.	As a result of the changed position of the car parking spaces, instead of driving along the right hand side of the car park, Mr. Webb thereafter drove up the left hand side.  The evidence as to this from Mr Webb led to counsel seeking to argue for the first time at the hearing that any period of user in respect of the right hand side had ended in 1997 and thereafter any user had been in respect of the left hand side.

15.	There is also an internal memorandum of the Council dated 29 October 2001 which indicates that by that time at least Council officials thought that the Applicants had access rights through the car park dating back to the 1960’s.

16.	 It was only by letter dated 31 December 2005 that an employee of the council, Mr. Pugh, wrote to the owner-occupier at 8 Willows Road that he was currently investigating the possible sale of the car park and that he noticed from a recent site inspection that there was a side pedestrian gate from the car park and rear vehicular gates.  The letter continued:

“Whilst it would appear that the pedestrian gate is not used, the vehicular gates are clearly used and, presumably, you gain access to, and egress from, the rear of your property over the Council’s land, with a vehicle.

The Council’s records indicate that there is no formal Agreement for you to gain such access.  As such, I thought I would write to you to confirm that you have no legal right of way over the Council’s land, and any sale of the Council’s freehold interest in it would, therefore, be with the benefit of vacant possession.

I trust this clarifies the position.  If you have any queries, please do not hesitate to contact me.

You will be contacted with regard to the proposed Planning Guidelines for the development of this site and the Council’s land at the junction of Willows Road and Lichfield Road separately in the not too distant future.”

17.	A further letter appears to have followed dated 8 March 2006, although it is not in the trial bundle.  Mr. Webb responded to both letters by letter dated 13 March 2006, pointing out his use of the car park, and that of his neighbours, over the previous 26 years, and expressing the hope that common sense would prevail.   A further letter of the same date asked for clarification of the Council’s claim to the car park bearing in mind that it appeared from his deeds to belong to another local authority.  Mr. Webb also involved his MP and a letter from the Council to the MP dated 20 April 2006 makes it clear that the Council is investigating Mr. Webb’s claim to have acquired rights over the land by use.  The letter confirms that there is no formal agreement for the Applicants to gain access across the car park “and, as such, they have no legal right to use the land.”

18.	By letter dated 22 August 2006, Mr. Pugh for the Council, wrote to Mr. Webb that he had obtained the opinion of Legal Services, and set out the advice he had been given.  Without it being necessary to deal with the legal position as set out in the letter, in essence Mr. Pugh contended that in 1983 Mr. Webb had acknowledged the Council’s right to grant a licence by agreeing the terms of a licence agreement in that year, and reliance is placed by him also on the subsequent correspondence from the Council which it is said reaffirmed the Council’s interest and reminded the Applicants that they needed a licence.  It contended also that paragraph 3 of Mr. Pugh’s letter of 30 December 2005 (the second paragraph quoted above) re-affirmed the Council’s position as land owner and made it clear to Mr. Webb that he had no licence agreement and no legal right of way.  Mr. Pugh had received that letter and that the gap of less than 20 years between the letter of 30 September 1986 and that of 31 December 2005 meant that the 20 years criteria for a prescriptive easement did not appear to have been met.  The same point was made to the second Applicant, Mrs. Perks, by letter dated 3 October 2006.

19.	In the following year the land appears to have been offered for sale by informal tender by the Council, although no sale appears to have materialised.  In September 2007, solicitors for the Applicants obtained counsel’s Advice that there was a reasonable prospect of success in a claim for a declaration as to a right of way, and solicitors instructed on his behalf corresponded with the Council, making it plain that the Applicants had never entered into any licence agreement.  A copy of counsel’s Advice was forwarded by Mr. Pugh to the Council’s Legal Services for further advice on 8 April 2009, and the Applicants were advised that this had happened.  Eventually, in August 2009, the Council obtained the Advice of Ms Catherine Rowlands, who appeared for the Council at the hearing before me, that no right of way had been established, or if it had been, it was limited to the hours for which the licence had been offered.  That Advice was copied to the Applicants by the Council.

20.	It was only by letter dated 2 December 2009 that the Council’s solicitor then wrote to the Applicants’ solicitors.  That letter included the following:

“Your clients are not entitled to any access (vehicular or otherwise).  It is unacceptable that your clients have been using this Land … Your clients’ usage of this Land has interfered with our client’s use and enjoyment of its land.  Your clients are therefore committing a trespass and must refrain from using our client’s Land otherwise Walsall Council will take all measures to ensure that the position is regularised and that your clients are no longer able to commit a trespass.
…
Your clients are warned that if they do not refrain from using our client department’s Land, we will not only seek an injunction restraining your client’s trespass but we will also be seeking our legal costs in terms of the injunction.  In addition, we will also be claiming for losses in terms of value of the property as a result of this dispute.

If your clients believe that they have rights in the Land, we invite your clients to make an application for a declaration of their alleged right of way no later than 4.00pm on 16th December 2009, after which date we confirm that our client department will be fencing off the said Land, without further notice to you.  Please note that if our clients do decide to make such an application, this will be vigorously defended by our client department.

In addition, if your clients decide not to make an application for a declaration and they do not refrain from using the Land by the above date, we confirm that we will be issuing injunctive proceedings against your clients to restrain their trespass without further notice to your clients.  In this event, we will be seeking costs from your client.  We will also be seeking to recover our client’s losses in terms of prospective sales and any diminution in value of our Client’s property.”

21.	This letter was forwarded by letter of 3 December 2009 to the Applicants.  In response, by letter dated 6 December 2009, the Applicants contested the Council’s contentions and contested that it even owned the land, while also contending that it acquiesced throughout to their use of it from 1981.  The letter concludes by stating that a complaint would be made to the council ombudsman and possibly the secretary of state.

22.	 During all this time, the Applicants had continued to use the car park as before.  It was only on 19 December 2009 that the council erected a fence to close off the car park entirely.  Due to the condition of another fence Mr. Webb was still able to continue to use the car park after that time, but there is no doubt that if he is to succeed in his claim for a prescriptive right by way of lost modern grant, he must establish the necessary 20 years of user before that date.  

23.	For the Council, Ms Rowlands contended that although the Applicants had used the car park as a route between their garage and the highway between about 1981 and 2009, they had not acquired a prescriptive right of way either under the Prescription Act 1832 or under the doctrine of lost modern grant.  She contended that user was not as of right until after the last letter had been written on behalf of the Council in 1986 and that it was not as of right or without force after Mr. Pugh wrote his letter of 31 December 2005, so that their was less than 20 years of user as of right and without force; that the Prescription Act 1832 did not assist the Applicants because more than a year had passed before the suit or action; that the council never had the power to grant a right of way and so none could arise by prescription; and that any right of way there may have been had been abandoned when the Applicants failed to commence proceedings after being faced with the ultimatum to which I have referred in the letter from the Council’s solicitor dated 2 December 2009.  Alternatively it was said that the conduct of the Applicants in failing to assert their claim when challenged meant that they were now estopped from relying on it.  In addition, when the evidence emerged at the hearing that the precise route through the car park had changed in the late 1990’s, she sought to contend that it was not possible to add the two periods of user of the separate routes together to make a period of 20 years.  Finally, Ms Rowlands contended that the claim for a right of way was too extensive and would amount to a complete sterilisation of the Council’s land for any other purpose and this would amount to a breach of its right to enjoyment of its own property contrary to Article 1 of Protocol 1 of the European Convention on Human Rights.

24.	The expression “as of right” arises only in relation to prescription under the Prescription Act 1832 and not in relation to the doctrine of lost modern grant, but has been held to have the same meaning as the expression “nec vi, nec clam, nec precario” – that is not by force, stealth or permission the owner of the servient tenement (see R v Oxfordshire CC, ex p. Sunningwell Parish Council, [2000] 1 AC 335, at pp.350-351;  R(Beresford) v Sunderland City Council, [2003] 2 AC 889)  It is said in this case that Mr. Webb’s request for a licence amounted to an acknowledgement that the Applicants’ user at that time was not as of right.  I do not see how a request for a licence can by itself prevent the user being as of right if the expression has the limited meaning given to it by the House of Lords.  The way was being used without any licence at that stage and the fact that both parties knew that would not prevent the unauthorised user from being as of right, which the authorities make clear is not the same as ‘of right’.  There is no need for the user to have any belief as to any right to use the servient tenement in the way in which he does.

Permission
25.	There was no express permission given in this case.  The Council claims, however, that an implied permission is to be gathered from the negotiations for a licence, relying on Beresford for the proposition that permission can be implied.

26.	An analysis of the events up to the final letter in 1986 shows that in 1982 the Applicants sought a licence to use the car park for access, that they were told that a licence might be given for out of hours use in this way but not during office hours and that a draft licence was sent to them with those terms.  The draft licence was ignored as were the reminders that followed, the last being in January 1984, some 8 months after the draft licence had been sent in May 1983.  The following letter of October 1984 pointed out that no reply had been received and simply asked if the Applicants still required a licence.  

27.	I have great difficulty in seeing how the indication that a licence might be forthcoming, or even would be granted, for use out of office hours only could possibly include an implied licence to use the car park during office hours.  Further, even if it is possible to construe the earlier negotiations as involving such an implied licence, at latest by early 1984 it was apparent that the negotiations had broken down and that the Applicants were not interested in continuing them.  The letter dated 8 October 1984 does not even try to continue the negotiations, but simply asks if a licence is still required.  The final letter of that decade, in September 1986 does not even refer to the licence, but simply notes that the Council has realised that the Applicants are still gaining access to their garage via the car park and invites discussions about this.

28.	It may well be that while negotiations were taking place there was an implied licence to cross the car park outside office hours, but even that limited licence could not have survived the very limited negotiations and came to an end at latest with the letter of 8 October 1984, or very soon afterwards.  In any event, it is plain that the Applicants regularly used the way at all times of day including during office hours.  The letter of 30 September 1986 is wholly neutral in its content.  It may be that by that time the Council had begun to believe that the Applicants had the right to cross the car park – a view that it took later as I have described.  It may be that it had decided that, as there had been no problem with its being used by day, it would stop insisting on the limitation to any proposed licence.  It may be that it was contemplating regularising the position in some other way.  What is clear is that there is no hint of any contention that the Applicants had to stop using the access.  Rather it is clear that the Council was acquiescing in the user continuing at least temporarily.

29.	As Lord Bingham pointed out in Beresford at p.894B, “Authority … establishes that a licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put.”  Lord Bingham then went on to cite at p.895B-C a statement in Cumbernauld and Kilsyth DC v Dollar Land (Cumbernauld) Ltd, 1992 SLT 1035, 1041, expressly approved by the House of Lords on appeal in 1993 SC (HL) 44, 47 in relation to public rights of way that “If [the owner’s] position is to be that the user is by his leave or licence, he must do something to make the public aware of that fact so that they know that the route is being used by them only with his permission and not as of right.”  Lord Walker, with whose reasoning both Lord Hutton and Lord Rodgers agreed, also cited the same passage with approval. At pp.912H-913B, he also cited the well known statement of Fry J in Dalton v Angus, (1881) 6 App Cas 740 at 773, where Fry J stated that the whole law of prescription rested upon acquiescence (a statement also cited with approval by Lord Hoffman at [2000] 1AC 351A), and continued “A landowner who wishes to stop the acquisition of prescriptive rights over his land must not acquiesce and suffer in silence.”  Lord Walker went on to state at p.913G that acquiescence denoted passive inactivity.  He stated that it would be wrong “to treat a landowner’s silent passive acquiescence in persons using his land as having the same effect as permission communicated (whether in writing, by spoken words, or by overt and unequivocal conduct) to those persons.”  I note the reference to overt and unequivocal conduct in relation to an implied permission.

30.	In Beresford, the public had used an area for informal sports and games.  The council and its predecessors in title had been willing for it to be used in this way and had provided some minimal facilities in the form of benches and a single hard cricket pitch, and had regularly cut the grass.  This was held to be insufficient to amount to an implied licence to enter the land, although this was in part due to the fact that the position of the council was different from a private landowner, since the council and its predecessors held the land for public law purposes.

31.	  I do not doubt that a licence may be implied or express, but I can see nothing from which any licence could possibly be implied from mid-1984 onwards, even if, which I doubt, it could be implied from the autumn of 1983 by which time it should have been clear that the negotiations for a licence had broken down.  The letter in October 1984 simply asked whether the Applicants still wanted a licence, although the Council clearly had the means of knowing that the car park was being used at all times by the Applicants to gain access to and from the garage.  The letter in 1986 shows that the Council did then know about the user and simply proposed a discussion about it.  There was no complaint about the user and nothing that could possibly be construed as permission to use the car park in this way.

32.	Further, the user at all times of day including during office hours cannot have been pursuant to some implied licence to use the way outside those hours.  There was no permission to use the car park during those hours and I therefore find that user as of right commenced at latest at some time in 1982 while negotiations for a licence were continuing.  

33.	It follows that unless either the point which emerged in the course of Mr. Webb’s evidence as to the change of route affected the position or the point under the Human Rights Act and Article 1 of Protocol 1 affected the law as to lost modern grant, by at latest mid-2004 the Applicants had acquired a right of way under that doctrine.  If, as I have found time started to run in 2002, or at any time before October 2003, Article 1 of Protocol 1 can have no relevance because the 20 years will have been completed and the prescriptive right acquired before the Human Rights Act 1998 came into effect.

Article 1 of Protocol 1
34.	If the 20 years only expired after that date, then I find that Article 1 was engaged.  However, it is patently obvious that the easement did not sterilise the property.  It continued to be used throughout that period as a car park and could still have a variety of uses.  It may be that it could not be developed as the Council would have wished, but that is all.  The challenge to the application of the rules as to prescriptive easements in this situation is in reality a claim that the law as to prescriptive easements is itself contrary to Article 1 of Protocol 1 because it diminishes the ability of an owner to enjoy property which becomes subject to the easement.  I am satisfied that the law in this respect is both proportionate and well within the margin of appreciation allowed to member states.  The period required to acquire an easement is longer than is required to acquire a possessory title, which the European Court of Human Rights has held not to contravene Article 1 in Pye v United Kingdom, (2008) 46 EHRR 45.  In addition the steps which the servient owner has to take to prevent such an easement from arising are significantly less than those required on the part of a paper title owner to prevent a possessory title from being acquired.

Change of route
35.	So far as the change of route is concerned, in Davis v Whitby [1973] 1 WLR 629, affd [1974] Ch 186, the dominant tenement enjoyed a way for 15 years by one path across a garden and the route was then altered by agreement to another path across the garden and enjoyed for a further 18 years.  It was held that the two periods could be added together and it was emphasised that long user as of right should if possible be presumed to be of legal origin.  As observed by Burgess V-C at [1973] 1 WLR 631, it would be contrary to commonsense and natural justice if a friendly agreement of this kind was to deprive the claimants of the rights they were in the course of acquiring and cause the whole matter to start afresh.  The user of the substituted line is to be considered as substantially an exercise of the old right and evidence of the continued enjoyment of it (see per Lord Denning MR at [1974] Ch 191E-G).  Agreement to a change in the route did not make the user by permission on the facts of the case, as the arrangement involved “a claim of right by the dominant owner settled by the servient owner affording a route less disadvantageous to him that a path crossing the middle of his garden” (see per Stamp LJ at [1974] Ch at p.193B-C).  Nor did it make it by permission on the facts of this case, particularly as it would appear that by that time the Council thought that the Applicants had a legal right of access.

Force
36.	In case I am wrong as to the date on which the user began to be without licence, and there was an implied licence that only came to an end towards the end of 1986, I must also consider the question whether the user after 30 September 2006 was still as of right.  This depends on its not being by force and it is said that after receipt of the letter of that date the user was by force.  There are, I think, two answers to that claim.  First, the letter of 30 September 2006 does not even suggest that at that time the Applicants should cease or even modify their use of the land.  It simply seeks to point out that the Council does not recognise their right to use it and states that any future sale would be with the benefit of vacant possession.  There is continued acquiescence to user until that time.  There followed a consideration of the conflicting counsels’ Opinions obtained by both sides.  While this was going on, the Applicants continued to use the disputed access without any complaint or demand that they should stop.

37.	Indeed, it is not until the letter of 2 December 2009 that a demand is made that the Applicants cease to use the car park and a threat is made that an application will be made for an injunction if they do not.

38.	In Newnham v Wilson, (1987) 56 P & CR 8, Kerr LJ, with whom Eastham J agreed, approved a statement in Megarry & Wade, Law of Real Property, 5th ed., at p.870, that forcible user extended to user which is contentious or allowed only under protest.  The claim in that case was, for reasons which are unclear, brought only under the Prescription Act 1832, and not for a lost modern grant, although the facts as found would appear to have supported the latter claim.  The question which arose was whether the user of a ‘swept curve’ was contentious before June 27, 1983, a year before the action was begun.  The Court of Appeal concluded that it was contentious because on 23 June 1983 solicitors for the Plaintiff’s predecessor in title had written to one of the Defendants that they and the Plaintiff were becoming somewhat concerned with various obstructions that were being placed at the relevant bend which restricted access by large vehicles which needed the ‘swept curve’, and asked for their removal.  The court concluded that the letter created a contentious situation which meant that user from that time would have been by force and that the claim under the Prescription Act had to have been brought within a year of that letter.  It might have been thought that the deliberate obstruction of the ‘swept curve’ by the Defendants was a relevant obstruction and that any user after that time in the face of that obstruction was by force, so that the year in question would have run from the date either of that obstruction or of its presenting a problem to the Plaintiff or his predecessor in title.  However the judge at first instance had concluded that they were no more than fluctuating interruptions and did not have the degree of continuity to bring it home to the owner of he dominant tenement that the right was being seriously challenged.

39.	At p.19, after reviewing various authorities, Kerr LJ concluded that “what these authorities show is that there may be “vi” – a forceful exercise of the user – in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious.  If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word “vi” or “force”, such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of he servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner.”

40.	Kerr LJ goes on to say that the letter of 23 June 1983 “clearly shows that there was then an increase in a state of already existing contentiousness.  From about March 1983 or thereabouts, and then increasingly so thereafter, the [Defendants] were making it perfectly clear, first to [the Plaintiff’s predecessor in title] and then to [the Plaintiff], that they were objecting to the way in which the turn from the drive to the track was being used.”  In effect therefore, Kerr LJ was saying that the judge at first instance was wrong in concluding that the Defendants’ obstructions did not have the degree of continuity to bring it home to the owner of he dominant tenement that the right was being seriously challenged.

41.	Newnham v Willison, and the authorities referred to in it, were considered by Pumfrey J in Smith v Brudenell-Bruce, [2002] 2 P & CR 51.  He concluded in paragraph 12 of his judgment, at p.59, that  Newnham v Willison was an example of an application to particular facts of the principles stated in  Dalton v Angus and  Eaton v Swansea Waterworks, and continued: 

“It seems to me a user ceases to be ‘as of right’ if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner’s knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action.  A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.”

42.	Although Pumfrey J expressed himself as having felt considerable doubt about this question, he concluded that the user in the case before him was contentious from the time of a letter in which the owner of the land had written to the person claiming the right of way informing him that the property was now closed to him and to all his household, that the ‘Private Road’ sign applied to him and the private road was ‘closed to ALL members of your household, permanently.  All those who are found walking or driving along it will be turned round, with minimal ceremony.  And permanently.’  This was the second letter to have been written.  The first, a few weeks earlier, was in almost as strong language.

43.	 Pumfrey J also cited at length from the well known advice of Fry J to the House of Lords in Dalton v Angus, (1881) 6 App Cas 740, a case concerned with a claim to a prescriptive easement of support for a building,  Fry J observed at p.773 that 

“[T]he whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence.  The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.  It becomes then of the highest importance to consider of what ingredients acquiescence consists.  In many cases, as, for instance, in the case of that acquiescence which creates a right of way, it will be found to involve, 1st, the doing of some act by one man upon the land of another; 2ndly the absence of right to do that act in the person doing it; 3rdly, the knowledge of the person affected by it that the act is done; 4thly, the power of the person affected by the act to prevent such act either by act on his part or by action in the Courts; and lastly, the abstinence by him from any such interference for such a length of time as renders it reasonable for the Courts to say that he shall not afterwards interfere to stop the act being done….  I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power.  That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain, both from reason, from maxim, and from the cases.

As regards the reason of the case, it is plain good sense to hold that a man who can stop an asserted right, or a continued user, and does not do so for a long time, may be told that he has lost his right by his delay and his negligence, and every presumption should therefore be made to quiet a possession thus acquire and enjoyed by the tacit consent of the sufferer.  But there is no sense in binding a man by an enjoyment he cannot prevent, or quieting a possession which he could never disturb.

Qui non prohibet quod prohibere potest, assentire videtur; per Parke B, in  Morgan v Thomas, 8 Ex. 304 [this translates as “A person who does not forbid what he is able to forbid, is seen to assent to it”] …”

44.	Fry J then went on to quote with approval Willes J in Webb v Bird, (10 CB(NS) at p.382, where he said “In general a man cannot establish a right by lapse of time and acquiescence against his neighbour, unless he shews that the party against whom the right is acquired might have brought an action or done some act to put a stop to the claim without an unreasonable waste of labour or expense.”

45.	In Lyell v. Lord Hothfield, [1914] 3 KB 911, there had been a dispute as to the boundary between two properties in an area used for grazing sheep.  The dispute had been determined in favour of Lord Hothfield in 1911.  Captain Lyell then claimed a right of common to feed sheep on the area which it had been determined that he did not own, the limitation period for this, on the facts of the case, being 60 years.  Shearman J found at p.915 that the owners and shepherds used the grounds knowing that it was disputed ground claimed by Lord Hothfield.  He also found that there had been during those 60 years not infrequent disputes between the shepherds, each asserting their own rights on the ground that the land belonged to the lord of their own manor and not to the lord of the other manor, although the disputes do not seem to have led to blows or litigation, there being enough grass for all the sheep on the extensive manorial wastes.   Shearman J found that there had not been anything that could be described as non-contentious user, applying what was said in Eaton v Swansea Waterworks as explained by Bowen J in Dalton v Angus at p.786, where Bowen J stated:

“It might, perhaps, be added with some show of reason that the user ought, if the analogy of lights and other easements were to be followed, to be neither violent nor contentious.  The neighbour, without actual interruption of the user, ought, perhaps, on principle, to be enabled by continuous and unmistakeable protests, to destroy its peaceable character, and so to annul one of the conditions upon which the presumption of right is raised:  Eaton v Swansea Waterworks Company 17 QB 267.

I am aware that this view is not one that has been laid down in any decided case.  On the contrary, it has been said that in the case of window lights, the only manner in which enjoyment could be defeated before the Prescription Act was by physical obstruction of the light… If in any particular instance interruption is impracticable, and if perpetual protests in such instances are also legally useless, there is no necessity that I know of in law or in sense to assert that any right will in that special instance be the consequence of non-interruption.”

46.	What these cases show, in my judgment, is that acquiescence need not involve total passivity.  It is possible to acquiesce in the user of the land while claiming to be able to prevent such use.  The interference must be such as to prevent the user being without force or without licence.  To prevent it from being without force, the protests must be such as to destroy its peaceable character.  There are various statements as to what is required for this purpose, which I have cited above, but what is clear is that the correspondence in 2006 and subsequently before December 2009 did not even ask that the user should immediately cease.  It did not make that user non-peaceable, but passively acquiesced in its user for the time being.  Nor did the Council do what it might proportionately have done (subject to no rights yet having in fact been acquired), and erect posts to block vehicular access to the garage close to the boundary with the garage.

47.	The letter on 2 December 2009 may well have made the user non-peaceable, and the erection of the fence two weeks later certainly did have that effect, but by that time the user had been enjoyed without force, openly and without permission for over 27 years.  Further, that interruption was less than a year before these proceedings commenced, so that, subject to the remaining issues raised by the Council, the right of way was established both under the doctrine of lost modern grant and under the Prescription Act 1832.

Abandonment
48.	 In my judgment the submission that any right of way which had been acquired had been abandoned because the Applicants failed to commence proceedings when faced with the Council’s ultimatum early in December 2009 and with the erection of the fence later that month is wholly untenable.  They responded immediately by re-asserting their right to use the car park in their letter of 6 December, and by continuing to use it until the fence was erected.  They made their application to the Land Registry in March 2010.  Even without authority it is blatantly obvious that the claim was not abandoned.  Mr. Webb stated in evidence, and I accept, that he could not afford to employ lawyers in court proceedings.

49.	Ms Rowlands sought to rely on the unreported Court of Appeal decision in Gotobed v Pridmore, noted in (1970) 115 Sol.J. 78. I am unclear how she thought that that case assisted her, but in CDC2020 Plc v Ferreira, [2005] EWCA. Civ 611, which was not cited to me, the Court of Appeal had the benefit of a transcript of the judgments in Gotobed v Pridmore.  CDC2020Plc v Ferreira concerned a right of way to access three garages.  The garages had been demolished many years, and a ramp to an underground car park had been constructed over the land on which they had been built.  The Court of Appeal held that this did not mean that the right of way had been abandoned.  The dominant owner had constructed three new garages on the site of the old ones, and it was held that the right of way to access them had not been abandoned.

50.	Lloyd LJ, who delivered the leading judgment, stated as follows:
	“23. Abandonment is a different question. The statement of the law relied on principally below, and by the judge, is that of Buckley LJ in Gotobed v Pridmore, decided by the Court of Appeal on 16th December 1970, which is available in a Court of Appeal transcript, and is also reported shortly at 115 Sol Jo 78. Having had the opportunity of comparing that report with the full judgment it is right for me to say that the essence of Buckley LJ's reasoning is fairly reflected in the short report. 
	24.	As Buckley LJ puts it, the dominant owner must manifest an intention to abandon the right and, in order to do so, must make it clear that his intention is that neither he nor his successors in title should thereafter make any use of the right. He observes that abandonment is not to be lightly inferred because owners of property do not normally wish to divest themselves of property unless to do so is to their advantage, even if they have no present use for the property in question. 
	25.	There are cases in which a physical change to the dominant tenant results in the right no longer being exercisable. One such case, which Mr Hamlin mentioned to us without citing it, is the striking one of National Guaranteed Manure Co v Donald (1859) 4 H&N 8, where the right was to the supply of water from given sources to a canal, but the canal was later filled up and turned into a railway. It was held that upon the canal ceasing to exist so the right ceased to exist. 
	26.	The facts in Gotobed v Pridmore were very different. Mr Hamlin relies fairly on a comment by Buckley LJ that the court was impressed by the ease with which the physical state of affairs could have been altered so as to restore the right of way. 
	27.	Buckley LJ also referred in the course of his judgment in Gotobed v Pridmore, in a passage not summarised or referred to in The Solicitors' Journal report, to an earlier case, Cook v Bath Corpn (1868) LR 6 Eq 177, where the plaintiff owned a house, the back door of which had been bricked up for about some 40 years, up to 1864, at which time he reopened it and restored it to use. The defendant then began works obstructing or threatening to obstruct a passageway to which the door gave access. Sir John Malins, Vice Chancellor, held that there had been no abandonment of the right of way from the back door over the passageway despite the 40 years during which it had been bricked up. 
	28.	Mr Hamlin does not rely on the demolition of the garages by itself. That, on his argument, would have suspended the right to use the way but not necessarily extinguished it. Rather, he relies on the demolition followed by the construction of the ramps and the car parks to which they led. He submits that these works were (a) substantial and (b) incompatible with the use of the pink land for which the way could properly be used. 
	29.	He also says that the reconstruction of garages would sterilise the use of the car parks so that the then owners' acts showed to the world an intention to use this site entirely inconsistently with garage use of the pink land. Not least, to put the garages back would require not only substantial work and expenditure on the pink land itself, but would, in effect, require a quite different use of the site of the two car parks.” 
Estoppel
51.	The claim that there was an estoppel arising from the failure of the Applicants to commence court proceedings is equally hopeless and must fail.  At no time did the Applicants do anything that would cause any reasonable person to believe that they were not pursuing their claim, and indeed nobody from the Council gave evidence to the contrary.  

Power of the Council to grant the right of way
52.	No evidence was given as to any lack of power on the part of the Council to grant the right of way.  It was said by Ms Rowlands that if the question had arisen the Council would not have granted it, because the grant would have been vetoed by one of its departments.  That also was not in evidence but it is irrelevant in any event.  The question is not whether the Council would have granted the right of way.  The question is whether it had power to do so, which, in the absence of any evidence to the contrary, it plainly did.  There is no suggestion that the departments had no power to consent, even if it had been proved, which it was not, that any possessed a power of veto.  

53.	I therefore conclude that the Applicants have established their entitlement to a right of way and that their application to the Land Registry should be given effect to.
 
By Order of The Adjudicator to HM Land Registry

dated the 5th day of May 2011