[2015] UKFTT 165 (PC)
REF/2012/0755

PROPERTY CHAMBER, LAND REGISTRATION DIVISION
FIRST-TIER TRIBUNAL
IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY
BETWEEN
(1) JOHN WESTON WHITAKER
and
(2) HAZEL LILY WHITAKER

APPLICANTS

and

JOHN TERENCE GILSENAN

RESPONDENT

Property Address: Land on the east side of Broadfield Road, Peaslake, Surrey 
Title Number: SY187340 and SY793637

Before: Judge Michell

Sitting at: Alfred Place, London
On: 25th and 26th February 2014

Applicant Representation: In person
Respondent Representation: Mr Christopher Mann, counsel, instructed under the Direct Public Access Scheme 

___________________________________________________________________________
DECISION
___________________________________________________________________________
RIGHT OF WAY –APPLICATION TO REGISTER-WHETHER RIGHT OF WAY TO BE IMPLIED-WHETHER EXPRESS RIGHT OF WAY RELEASED BY ORDER OF EXCHANGE-WHETHER IMPLIED RESERVATION OF RIGHT OVER LAND GIVEN ON EXCHANGE- WHETHER EASEMENT OF NECESSITY-WHETHER EASEMENT BY ESTOPPEL

Cases referred to
Wood v. Saunders (1875) 10 Ch.App 584N
Newcomen v. Coulson (1877) 5 Ch D 133
Cannon v. Villars (1878) 8 ChD 415
Re Webb’s Lease [1951] Ch 808 at 829
Dunn v. Blackdown Properties Ltd. [1961] Ch 433
Hillman v Rogers [1987] NPC 183
Butler v. Muddle (1995) 6 BPR 97532
Peckham v. Ellison (1999) 77 P & CR 276
Gale Easements (17th ed.)
Cooke’s Enclosure of Commons (2nd and 4th ed.)

1.	The Applicants, Mr and Mrs Whitaker are the owners of land on the east side of Broadfield Road, Peaslake, Surrey.  They made three applications to HM Land Registry for the registration of rights of way.  
(1)  They first applied to HM Land Registry on 28th June 2011 to alter the register by registering a right of way over a part of Broadfield Road for the benefit of that part of the land within title number SY187340 marked “B” on the title plan.  I shall refer to this part as “plot B”.  Broadfield Road is a private road and that part of it over which Mr and Mrs Williams claim to be entitled to a right of way is owned by the Respondent, Mr Gilsenan.  The part over which they claimed the benefit of a right of way is a part running between plot B and the north-western corner of another part of the land within title number SY187340, being the area shown on the title plan as tinted pink.  I shall refer to this area as “the pink land”.     
(2) The second application dated 9th July 2012 is to register an implied right of way for the benefit of plot B over Broadfield Road from a point adjacent to the north-west corner of plot B to the junction of Broadfield Road and the public highway called “Pursers Hollow” to the south.
(3) The third application dated 3rd June 2013 is to register the benefit of a right of way for the benefit of the pink land over the whole of the extent of Broadfield Road included within title number SY793637.  The Applicants’ case is that there was an express grant of this right of way by a conveyance of the pink land dated 26th January 1940, which conveyance has been lost.
The owner of the allegedly servient land under title number SY793637, the Respondent Mr Gilsenan, objected to all three applications. The three applications were referred to the Adjudicator to HM Land Registry and fell to be determined together  

2.	The office of the Adjudicator to HM Land Registry was abolished on 1st July 2013. The functions of the Adjudicator under the Land Registration Act 2002 were transferred to the First-tier Tribunal and have been allocated to the Property Chamber, where they are performed by the Land Registration Division.  The determination of this matter is one of the functions transferred to the First-tier Tribunal.    

The Applicants’ Title
3.	The Applicants were registered on 7th December 1981 as the proprietors of the land registered under title number SY187340.  The land in that title comprises four plots or fields, three of which are shown on the title plan as adjoining Broadfield Road.  Plot B is the northernmost of the plots.  The western boundary of this plot adjoins the strip shown on the title plan as being Broadfield Road.  To the south of plot B is a field registered under title number SY388929.  The Applicants do not own this field.  The land in title SY388929 adjoins on its east side land registered under title number SY357144 and being called Windy Cottage.  The pink land lies to the south of SY388929 and part of SY357144. The pink land is roughly triangular in shape. It borders Broadfield Road to the west and on its east side, plots marked C and B on the title plan and in the north-eastern corner, the western end of a roadway leading from Pursers Hollow to Windy Cottage. This road is shown coloured brown on the title plan.  The northern boundary of plot A runs alongside the southern boundary of the western part of the roadway coloured brown on the title plan.  Plot A adjoins to the south plot C.  Plot C adjoins on its southern side the strip shown as Broadfield Road on the title plan.  The pink land and the land now registered under title numbers SY388929 and SY357144 together originally comprised the land in title SY187340.  The land registered under title numbers SY388929 and SY357144 was removed from title SY187340 some time before the Applicants became the registered proprietors.  The plots marked A, B and C on the title plan were added to the title on 30th September 1965.        

The Site 
4.	I visited the site and inspected it accompanied by the parties.  Broadfield Road is a wide lane, which runs north-south.  Broadfield Road runs from the public highway being the Peaslake to Shere road at the north in a south-easterly direction to rejoin Broadfield Road at the south end at a place called “Pursers Hollow”.  The majority of Broadfield Road is surfaced with hardcore but there are grass verges on each side.  A number of trees grow in the verges.  Mr and Mrs Whitaker’s land is on the east side of Broadfield Road.  It includes two fields.  The more northerly of the fields is plot B. It is at a higher level than Broadfield Road.  The southern field is the pink land.  It slopes downwards away from Broadfield Road towards the east before rising quite steeply so that the top of the field is some considerable height above the level of Broadfield Road.  The two fields are separated by a field not owned by Mr and Mrs Whitaker.  From Broadfield Road there is a slope which leads up into the south-western corner of plot B.  The land occupied by this slope was referred to in the proceedings as “the Spur”. There is a dispute between the parties as to who owns the slope.  Mr Gulsenan says it forms part of the field which lies between the fields owned by Mr and Mrs Whitaker.  Mr and Mrs Whitaker can currently access their land by entering Broadfield Road from the south and entering the pink land from a gateway in its north-eastern corner and plot B via the Spur.   

Title History
5.	It appears to be common ground that the land which is now the site of Broadfield Road and the Applicants’ land were both owned by The Corporation and Wardens of St Saviour’s Southwark (“the Corporation”).  

6.	Plot A was conveyed by a conveyance dated 15th April 1913 by the Corporation to Anna Mary Paine and Edith Alice Paine. It was conveyed together with a right of way over the land tinted brown on the conveyance plan.  That land is shown tinted brown on the Applicants’ title plan.  It is now the site of the roadway leading from the Shere to Peaslake road to Windy Cottage.

7.	Plot B was conveyed by a conveyance made on 18th March 1915 between the Corporation and the Misses Paine.  The Corporation conveyed
	“First All that piece or parcel of land situate and being on the east side of the proposed 	new Road leading out of the road leading from Shere to Peaslake … and coloured blue 	and brown on the plan drawn hereon and having a frontage to such Road of One 	hundred feet or thereabouts and Secondly All those two several pieces or parcels of 	land situate and being on the west side of the said proposed new Road and having 	frontages of one hundred feet and one hundred and five feet respectively to such Road 	All which pieces or parcels of land form part of Pursers Farm Shere … and are with 	the boundaries abuttals and dimensions thereof more particularly delineated in the said 	plan drawn hereon and thereon coloured red Together with a full right of way at all 	times and for all purposes over the site of the said intended new Road and over such 	new Road when the same shall have been made”.
The road “coloured blue and brown” on the plan is a road running west from the Shere to Peaslake Road along the southern boundaries of parcels shown on the plan with the names “Mr Sykes” and “Mr Snow” written upon them.  The word “roadway” is written on this section.  This section meets at its western end a “T” junction with a strip of land running a short way to the south and also to the north, being a section coloured blue.  This section is shown as adjoining the western boundary of plot B.  The width of the section coloured blue where it adjoins plot B is marked on the conveyance plan as being 20 feet.

8.	Plot C was conveyed by the Corporation to Anna Mary Paine by a conveyance dated 26th January 1940.  The land conveyed was described as
	“All that piece or parcel of land situate at Pursers Farm …abutting on to Broadfield 	Road and forming part of a field formerly called The Eight Acres but now known as 	The Guare containing three roods or thereabouts as the same with the boundaries and 	abuttals thereof is more particularly described in the plan drawn hereon and therein 	coloured pink”.
It was conveyed together with a right of way over the roadway leading to Windy Cottage and also with a right
	“to pass and repass with or without horses cattle carts carriages motor cars and other 	vehicles over and along Broadfield Road aforesaid”.
 
9.	The pink land was conveyed by a conveyance also dated 26th January 1940 by the  Corporation to Major and Mrs Ballard by a conveyance dated 26th January 1940.  The conveyance is missing.  Also missing is the abstract of title produced on first registration of this land in 1957.   The conveyance contained a number of covenants which are set out in the schedule to the charges register of title SY187340.  These included a covenant
	“To pay on demand a fair and proper portion of the expense of repairing and 	maintaining any private or proposed road abutting on or adjoining the said land such 	proportion to be fixed by the Vendors whose decision shall be final and to be 	estimated according to the extent of the frontage of the said land to such road”.   
The personal representatives of Major Ballard conveyed the pink land to Edith Clemence Paine of Windy Cottage, Peaslake by a conveyance dated 23rd August 1957.  The pink land was conveyed to Ms Paine as 
	“ALL THAT piece or parcel of land situate in the Parish of Shere …abutting on to 	Broadfield Road All which premises are more particularly delineated on the plan 	drawn on the said Conveyance dated twenty sixth day of January One thousand nine 	hundred and forty  
The conveyance was made
	“together with the right for the Purchaser and the persons deriving title under her in 	common with all other entitled to a like right from time to time and at all times 	hereafter to pass and repass with or without horses cattle carts carriages motor cars 	and other vehicles over and along the strip of land or private roadway shown in the 	said plan and thereon coloured brown”.
It appears from the title plan to SY187340 that the strip of land coloured brown on the plan to the 1940 conveyance is the strip of land tinted brown on the title plan and leading to Windy Cottage.  The purchaser was to hold
	“subject to the stipulations contained in the said Conveyance [dated 26th Janaury 1940] 	so far as the same are still subsisting and are capable of being enforced”.
By clause 2 of the conveyance, Ms Paine covenanted with the vendors to observe and perform the stipulations in the 1940 conveyance. 
     	
10.	An Order of Exchange made by the Minster of Agriculture and Fisheries under the Inclosure Acts 1845 to 1899 and the Ministry of Agriculture and Fisheries Acts 1889 to 1919, ordered that land should be given by the Corporation and taken by Mary Paine in exchange for land to be given by Mary Paine. The land given by Mary Paine is shown on the plan attached to the Order of Exchange as a piece of land running north-south being 100 feet long, 15 feet wide at the north end and 5 feet wide at the south end.  Also marked on the plan is a “New Road” running alongside plot B and incorporating the land given by Mary Paine.  This road is marked as being 3o feet wide. The land to be taken by Mary Paine is shown as a narrow “L” shaped piece of land.  One part of the “L” runs north-south being to the west of the land to be taken by the Corporation and adjoining the west side of Broadfield Road.  The other part of the “L” runs from the southern end of the first part and at right angles to it, in an east-west direction and is shown as being 2’6” wide.   There was no evidence as to the purpose of the Order of Exchange.  No copy of an application for the Order of Exchange to be made was produce and not contemporaneous correspondence between the parties or between the parties and the Ministry was produced. It would seem apparent that the Corporation wished to construct a road which was wider than the road indicated on the 1915 conveyance and for that purpose, required part of Plot B.  There is no evidence at all as to why Mary Paine should have wanted the “L” shaped piece of land on the other side in exchange.  

Title to the Respondent’s Land       
11.	That part of Broadfield Road which is now owned by the Respondent is registered under title number SY793637.  It, together with other land comprising Pursers Farm was conveyed by the Corporation to Mr WL Wonham by a conveyance dated 5th June 1957.  Pursers Farm including the part of Broadfield Road now owned by the Respondent was conveyed to Mr and Mrs Jeremy Morritt in 1999.  Mr Morritt died on 8th February 2003 .Mrs Morritt died on 17th July 2010.   Pursers Farm was then broken up.  Pursers farmhouse and other land was transferred to Mr Martin Nicholson and Ms Gould by a transfer dated 11th February 2011.  Part of Broadfield Road was transferred to the Respondent by a transfer dated 28th February 2011.  The Respondent was registered as proprietor on 4th March 2011.

The Applicants’ Claims
12.	The Applicants three claims to rights of way were considered at the hearing in the following order
(1) the claim to a right of way in favour of plot B over the section of Broadfield Road running south from the entrance in the south-west corner of plot B to and from Pursers Hollow;
(2) the claim to a right of way in favour of plot B over the site of the road shown on the plan to the conveyance of 18th March 1915 to provide access between plot B and the pink plot; and
(3) the claim to a right of way in favour of the pink plot over the section of Broadfield Road running from the junction with Pursers Hollow to the north side of the junction of Broadfield Road and another lane known as Farney Lane.

Right of Way over Broadfield Road to Pursers Hollow
Right granted over “site”
13.	The Corporation granted by the 1915 conveyance a right of way “over the site of the said intended new Road and over such new Road when the same shall have been made”. 
It was suggested in argument that this grant offended against the rule against perpetuities because the new road had not been constructed at the time of the grant.  It is clear that in the case of a grant made prior to the date of commencement of section 3 of the Perpetuities and Accumulations Act 1964 (being 16th July 1964), the grant of a right of way to arise in the future would be void unless it were limited to take effect only within the perpetuity period – see Dunn v. Blackdown Properties Ltd. [1961] Ch 433.  However, in this case there was the grant of a right of way over “the site of the intended new road” as well as the attempted grant of the right “over such new Road when the same shall have been made”.  In construing the grant of a right of way, I must have regard to all the circumstances at the date of the grant, including the physical characteristics of the land over which the way is granted, the land intended to be benefitted by the grant and the purpose for which the way is to be used, adopting a  practical approach, looking at geographical and commercial realities – see Hillman v Rogers [1987] NPC 183 per Walker L.J.  Where there is no clear indication of the intention of the parties in the deed, then I should apply the maxim that a grant must be construed most strongly against a grantor – see Wood v. Saunders (1875) 10 Ch.App 584N.

14.	In this case, the land to be benefitted, namely plot B was an area of land which did not adjoin a public highway.  The land over which the right of way was expressed to be granted was land which was intended to be the site of a road and which strip at one end adjoined the public highway.  It is clear that the strip was intended to provide access to the land conveyed to and from the public highway.   If the land was conveyed without an immediate right of way, it would have been landlocked. In my judgment, the conveyance granted a right of way taking effect immediately over an area of land intended to be the site of the road.  It was not only the conveyance of a right of way over the road once constructed.  The site of the new road being the land over which the immediate right of way was granted was capable of being ascertained by looking at the conveyance.  Such a grant does not offend against the rule against perpetuities.  

15.	However, the right of way granted was not a right of way over the full extent of Broadfield Road as now existing.  The grant was over a strip giving access to the roadway running or intended to run due east along the land of Mr Snow and Mr Sykes, being the land now registered under title numbers SY388929 and SY357144, to meet the Shere to Peaslake road at a point between the points where Broadfield Road now meets that road.  The intended east-west road has only been partially constructed.  It runs from the highway to Windy Cottage but was intended to continue along what is now part of the pink land. The express grant cannot be relied upon by the Applicants as giving them a right of way along Broadfield Road to its southern end at Pursers Hollow.       

16.	There having been an express grant of a right of way as described above, I can see no grounds for implying the grant of a right of way along the length of Broadfield Road to Pursers Hollow.  The grant indicated how access and egress from plot B was to be had and enjoyed.  That was over a particular strip of land shown on the conveyance plan.  Had the parties intended that the purchasers of plot B should have a right of way over some other strip of land that would have been shown in the conveyance.  

17.	The Applicants relied in part on the fact that the site of the intended road leading from Broadfield Road past Windy Cottage to the highway is a steep slope.  It is steep but it is not plainly so steep that no road could be constructed over it or so as to enable it to be said that the parties to the 1915 conveyance cannot have intended that a road be constructed over it.  At the date of the 1915 conveyance Broadfield Road itself had not been constructed.  The Misses Paine as purchasers of plot B acquired in addition to the right of way, the ancillary right to alter the surface of the land over which they were given the right of way to accommodate the right granted, as by building a road of a type reasonably necessary for the enjoyment of her right of way – see Newcomen v. Coulson (1877) 5 Ch D 133 and Butler v. Muddle (1995) 6 BPR 97532.  I do not consider that the fact that neither road had been constructed at the time of the grant and that the route via Windy Cottage was steeper than the route adopted later for the construction of Broadfield Road means that it is somehow possible to infer an intention to grant a right of way over the site of Broadfield Road in addition to the right of way expressly granted by the conveyance along the route passing Windy Cottage.    

18.	No claim to an easement of necessity over Broadfield Road arises.   The easements of necessity principle is summarised as follows in Gale on Easements (17th ed.) at 3-109
	“A way of necessity … arises where, on a disposition by a common owner of part of 	his land, either the part disposed of or the part retained is left without any legally 	enforceable means of access. In such a case the part so left inaccessible is entitled, as 	of necessity, to a way over the other part”.       
In this case, on the disposition of plot B by the Corporation, plot B was not left without any legally enforceable means of access because the conveyance of plot B included the grant of a right of way over the strip of land shown on the conveyance plan.

Did Miss Paine release the right of way by entering into the deed of exchange?
19.	The Respondent submitted that such right of way in favour of plot B as had been granted by the 1915 conveyance was released by Miss Paine, as owner of plot B by being a party to the order of exchange.  By the order of exchange, Miss Paine gave to the Corporation a strip of land shown on the plan to the order as being 100 feet in length from north to south and 15 feet wide at the north end and 5 feet wide at the south end.  The strip is shown on the plan as lying between two lines between which the words “new road 30’ wide” have been written.  It is common ground that Broadfield Road had not been built at the date of the order of exchange.  The strip is at the western end of plot B and lay between therefore the retained part of plot B and the land shown on the 1915 conveyance plan as the site of the proposed new road and over which a right of way was granted. 

20.	Following the making of the Order of Exchange, the owners of plot B could not get to the strip of land over which they had a right of way under the 1915 conveyance without passing over the strip given to the Corporation.  The Applicants suggested that Miss Paine retained on the making of the Order a strip in the southwest corner of plot B leading onto the land over which she had been given a right of way by the 1915 conveyance.  That strip they say was the Spur referred to above.  I do not accept that the Spurt was part of the land conveyed by the 1915 conveyance.  That conveyance conveyed a strip 100 feet wide, i.e. measuring 100 feet from north to south where it adjoined the land over which a right of way was granted.  The land given to the Corporation by the Order of Exchange was a strip measuring 100 feet wide or 100 feet from north to south and at the western end of plot B.  Miss Paine could not have both given up a strip 100 feet wide and retained part of the 100 feet wide area of land conveyed to her by the 1915 conveyance.    

21.	The question therefore arises whether on the exchange there was impliedly reserved to Miss Paine a right of way over the strip given by the Order of Exchange to the Corporation.  If there was such a reservation such that Miss Paine could reach the land the subject of the express grant of a right of way in 1915 then no question of her having released that right by applying for the Order of Exchange to be made in 1933 arises.  I was referred to no authority as to the approach to be adopted in construing an Order of Exchange.  There was no evidence before me as to why the order of exchange mechanism was used in this case and no explanation was offered.  I note that the author of Cooke’s Enclosure of Commons, 2nd ed. 1860 at p. 100 describes section 147 of the Inclosure Act 1845 as providing a mechanism for overcoming the difficulties of exchanging small areas of land where the expenses of investigating title may be disproportionately high.  The author described the section as providing a mechanism for exchange without risk or the need to investigate title.  In the 4th edition, the author described the effect of an exchange under the Act as follows
	“the one parcel immediately, for all purposes, takes the place of the other.  So that if 	title of either be thereafter found faulty, the person who may recover, will have, not 	the piece of land with the faulty title, but the piece which the commissioners have put 	in its place and clothed with all its liabilities”.      

22.	Section 147 of the Inclosure Act 1845 provided as follows
	“It shall be lawful for the commissioners, upon the application in writing of the 	persons interested, according to the definition herein-before contained, in land not 	subject to be inclosed under this Act, or in lands subject to be inclosed under this Act 	as to which no proceedings for an inclosure shall be pending, and who shall desire to 	effect an exchange of lands in which they respectively shall be so interested, to direct 	inquiries whether such proposed exchange would be beneficial to the owners of such 	respective lands; and in case the commissioners shall be of opinion that such exchange 	would be beneficial, and that the terms of the proposed exchange are just and 	reasonable, they shall, unless notice of dissent to the proposed exchange shall be 	given, under the provision hereinafter-contained, caused to be framed and confirmed 	under the hands and seal of the commissioners, an order of exchange, with a map or 	plan thereunto annexed, in which order shall be specified and shown the lands given 	and taken in exchange be each person so interested respectively..”
The section continues, providing for the effect of the order of exchange as follows
	“and such order of exchange shall be good, valid, and effectual in law to all intents 	and purposes whatsoever, and shall be nowise liable to be impeached by reason of any 	infirmity of estate or defect of title of the persons on whose application the same shall 	have been made; and the land taken upon every such exchange shall be and enure to, 	for, and upon the same uses, trusts, intents, and purposes, and subject to the same 	conditions, charges, and incumbrances, as the lands given on such exchange would 	have stood limited or been subject to in case such order had not been made:”        
By section 16 of the 1845 Act the “persons interested” in land subject to the provisions of the Act, were the persons in actual possession or enjoyment of the land or any part of it.  

23.	Section 4 of the Inclosure Act 1847 provided as follows
	“Where an exchange shall be made under the said Acts” (i.e.. the Inclosure Act 1845) 	“of land not subject to be inclosed under such act, or of land subject to be so inclosed 	as to which no proceedings for an inclosure shall be pending, it shall and may be 	lawful for the Commissioners, in conformity with the terms of the application for such 	exchange, to except or reserve out of such exchange such rights of way and other 	easements as the parties to such application may have agreed on”.  

24.	The explanation for the Order of Exchange having been made by the Minister for Agriculture and Fisheries is as follows. The powers and duties of the Commissioners under the Inclosure Acts were transferred to the Board of Agriculture by the Board of Agriculture Act 1889.  The Board of Agriculture was abolished by Section 1(1) of the Ministry of Agriculture and Fisheries Act 1919 from the date of appointment of the Minister of Agriculture and Fisheries and the section provided that any reference in any Act to the Board of Agriculture was thereafter to be read as a reference to the Minister. Hence, the power to make an order of exchange under section 147 of the 1845 Act became vested in the Minister of Agriculture and Fisheries.       

25.	The order of exchange included no express reservation or re-grant of a right of way over the strip given to the Corporation.  The test for implying the reservation of an easement into a deed of grant was stated in the judgment of Jenkins LJ in Re Webb’s Lease [1951] Ch 808 at 829.  It is summarised in the following words in Gale Easements (17th ed.) at p.139
	“whether the circumstances raise a necessary inference of an intention common to 	both parties that the right in question should be reserved; before such an inference can 	be drawn, the party claiming the reservation must show that the facts are not 	reasonably consistent with any other explanation; it is not enough that they are simply 	consistent with such an explanation”.     
This test was approved by the Court of Appeal in Peckham v. Ellison (1999) 77 P & CR 276. 

26.	Here, plot B had the benefit of a right of way granted in 1915 over a strip of land intended to be the site of a road.   The plan to the deed of exchange indicates that the land given to the Corporation by Miss Paine out of plot B was intended to form part of a new road.   Miss Paine’s address in the order of exchange was given as Furzefield.  That is a house on the east side of the Shere to Peaslake Road.  There is no evidence Miss Paine at the date of the deed of exchange owned land between plot B and the public highway so as to permit of access from plot B to and from the public highway.  In those circumstances, I do not consider that the facts are reasonably consistent with an intention on the part of Miss Paine that she should give up the right of way granted to her in 1915.  I consider that if the exchange had been effected by deed, the circumstances would have raised the necessary inference that Miss Paine was to have a right of way over the land given to the Corporation for the purposes of accessing and exiting the part of plot B retained by her over the route of the right of way granted to her by the 1915 conveyance.      
27.	The question then arises whether it is possible to infer into the Order of Exchange the the making of a reservation of a right of way over the strip given to the Corporation in favour of the land retained by Miss Paine.   I was not referred to any authority as to the construction of an order of exchange or to any textbook or other discussion of the subject.  

28.	The following matters seem to me to be relevant to a consideration of whether it can be inferred that a right of way was reserved by the Order of Exchange.  
(1) Firstly, the Order of Exchange was made by the Minister in exercise of his statutory power.  
(2) Secondly, the power of the Minister included power to except or reserve rights of way out of the exchange.  
(3) Thirdly, that power was a power to except or reserve rights of way “in conformity with the terms of the application” for the exchange and was a power to except and reserve “such rights of way as the parties to such application may have agreed on”.  The section does not state that the rights must be such as the parties have expressly agreed on.  Rights which are impliedly agreed to be excepted or reserved are rights which are agreed and an exception or reservation of rights which are impliedly agreed would be “in conformity with” the application.     
(4) Fourthly, the Order would have been made only following inquiries as to whether the exchange would be in the interests of the parties and upon the Minister being of the opinion that the exchange was in the interests of the parties.
(5) Fifthly, so far as can be ascertained from the evidence, the purpose of the exchange was to enable the Corporation to construct a wider road, which, when constructed, was to adjoin land retained by Miss Paine.
(6) Sixthly, the land given to Miss Paine was land which she would not appear to be able to access without going onto the intended new road.
(7) Seventhly, there is no evidence Miss Paine at the date of the deed of exchange owned land between plot B and the public highway so as to permit of access from plot B to and from the public highway.
(8) Eighthly, it is difficult to see how an exchange could have been in Miss Paine’s interests if it resulted in her losing an existing right of way to access plot B or why it would have been against the interests of the Corporation for it to have acquired the land from Miss Paine subject to a right of way over it in favour of plot B. The Corporation was obtaining the land in order to lay out a road, using part of it. That road would serve the estate being created by the Corporation, including plot B.
 
29.	If it is possible for the Minister to reserve rights of way over land given by an order of exchange where the parties agree and the circumstances are such that it would be right to ifner the reservation of a right of way if the exchange had been effected by deed of exchange because the facts raise the necessary inference of the common intention of the parties to reserve a right, then it seems to me to be possible to infer a reservation into an order of exchange.  The facts do here raise the necessary inference that it was the common intention of the parties that a right of way should be reserved for the benefit of plot B.  The parties must have thought that Miss Paine should be able to use the land over which she was given a right of way to access plot B.   I consider that it is to be inferred that the exchange was made subject to the reservation over the land given by Miss Paine of a right of way for the benefit of the land retained, being plot B.  Accordingly, following the making of the Order of Exchange, Miss Paine retained the legal right to access the land over which she had been given a right of way by the 1915 conveyance and did not release that right of way. 

Estoppel
30.	The Applicants submitted that the Respondent was estopped from denying that they were entitled to a right of way over Broadfield Road to and from plot B.  The basis on which this claim was made was set out in paragraph A20 of the Applicants’ Statement of Case as follows
	“The Applicants relied to their detriment on the actions of the Respondent’s 	predecessors in title when erecting field shelters, installing and replacing water 	troughs, resurfacing the driveway and erecting and replacing gates.  The Applicants 	therefore further claim that the Respondent is estopped from objecting to the 	Applicants using the southern section of Broadfield Road to access plot B by car or 	other vehicle”.
The reference to 
	“the actions of the Respondent’s predecessors in title” appears to be a reference to the 	preceding subparagraph which refers to “the action of the Respondent’s predecessors 	in title, Mr Wonham and Mrs Morritt, the former in advising that the driveway and 	gate gave the right of access and the latter in agreeing to the resurfacing and the use of 	the crossover, which show that they shared the Applicants’ interpretation of the 	documents”.    	

31.	The essential elements of proprietary estoppel are summarised as follows in Gale on Easements (17th ed.) at 2-03
	“(1) an equity arises where the owner of land induces or encourages or allows another 	to believe that he has or will enjoy some right or benefit over the owner’s property; in 	reliance upon this belief, the other acts to his detriment to the knowledge of the owner; 	and the owner then seeks to take unconscionable advantage of the other by denying 	him the right or benefit which he thought he had or expected to receive;
 	(2) the equity gives the other person the right to seek relief; the claim is an equitable 	one and is subject to the normal principles governing equitable remedies;
 	(3) the court has a wide discretion as to the manner in which it will give effect to the 	equity, having regard to all the circumstances of the case and to the expectations and 	conduct of both parties;
	(4) the relief which is available to the court may be negative, that is, in the form of 	retraining the owner from asserting his legal rights, but it may be positive, by ordering 	the owner to grant or convey to the other some estate, right or interest in or over his 	land, or to pay the other compensation, or both, or to act in some other way;
   	(5) it is in a case where the operation of these principles gives rise to an order that the 	owner grant the other a right in the nature of an equitable easement, that the case may 	be regarded as one where an equitable easement has been created by the operation of 	the principles of proprietary estoppel”. 

32.	Evidence relevant to estoppel
	The Applicants acquired plot B and the pink land in December 1981.  At the time they acquired the land, it was held on an agricultural tenancy by Mr WL Wonham, who then owned Pursers Farm, including Broadfield Road.  At this time, there was no fence between plot B and the adjacent field to the north.  In May 1989 Mr Wonham agreed to give up his tenancy of plot B.  The Applicants had a stock fence with a bar gate erected on the north boundary of plot B.  Mrs Whitaker gave evidence that while she and her husband were standing in plot B, Mr Wonham came to inspect the fence.  He said that he had seen the erection of the fence with the bar gate in it and asked them why they had done so.  He said that the Applicants had no right of way over his field to the north and that their right of way was in the bottom corner, meaning through the gateway by the south west corner of plot B onto Broadfield Road.  

33.	Mr Martin Nicholson is an agricultural contractor who worked for both Mr Wonham and the Applicants.  He gave evidence that he put up the fence between plot B and the field to the north.  He said that Mr Wonham allowed slip rails to be put in the fence so that access could be gained between plot B and the field to the north but that Mr Wonham told him the Applicants’ right of access was by the gate in the south west corner.  

34.	Mrs Whitaker gave evidence that the Applicants erected a horse shelter in plot B and installed a drinking trough.  She accepted that there was already a water supply to the land.  However, she did not say in terms that the Applicants did these because of what Mr Wonham had said about the access to plot B.  The Applicants did not dispute Mr Gilsenan’s evidence that they did not start work on the field shelters until 1997 by which time Mr Wonham had been in a residential care home for over a year. 

35.	Mrs Whitaker also gave evidence that the Applicants had written to Mrs Morritt when she was the owner of Broadfield Road about improving the surface of the entrance to plot B from Broadfield Road.  Mrs Morritt wrote back on 30th April 2008 stating that she had “no objection to the rolling of sandstone or whatever to remedy the problem” and agreeing to meet half the costs involved in the project.  Having received that letter in reply, the Applicants had sandstone rolled into the ground to improve their access into plot B but this was in the area of the entrance to plot B and not over Broadfield Roads as a whole.    

36.	Estoppel – Discussion
	I accept the evidence of Mrs Whitaker and Mr Nicholson as summarized above as to what Mr Wonham said.  He said that the entrance to field B was in the south-west corner.  However, that did not amount to a representation that the Applicants were entitled to a right of way over Broadfield Road to its southern junction with Pursers Hollow.  What Mr Wonham said was consistent with the Applicants’ right of way as I have found was expressly granted by the 1915 conveyance.  What he said would not reasonably have induced the Applicants to think that they had a right of way over the whole or Broadfield Road.  Further, I do not consider that the Applicants were induced by what Mr Wonham said act to their detriment.  Such expenditure as they did incur in building a shelter for the horses and installing a water trough, if incurred in reliance on anything said by Mr Wonham was not such as to make it unconscionable for Mr Wonham subsequently to deny that the Applicants have a right of way over Broadfield Road to its southern end at Pursers Hollow. Further, I do not consider that what was said by Mrs Morritt and subsequently done by the Applicants to improve their entrance by rolling sandstone gave rise to a proprietary estoppel claim against Mrs Morritt.         

37.	However, it is not necessary for me to decide whether a proprietary estoppel arose against either Mr Wonham or Mrs Morritt. If an estoppel did arise against Mr Wonham and/or Mrs Morritt, this would not give the Applicants a right enforceable against the Respondent.  On registration as proprietor of the title to part of Broadfield Road, the Respondent acquired title subject only to interests protected by a notice in the register and to overriding interests.  This is the effect of section 29 of the Land Registration Act 2002.  The unregistered interests which override registered dispositions are those set out in Schedule 3 to the 2002 Act.  They include only certain types of legal easements and do not include equitable easements.     

Right over Broadfield Road to access pink land
38.	It follows from the reasoning set out above, that the Applicants are entitled to a right of way in favour of plot B over that part of Broadfield Road lying between the plot B and the pink land.  This is part of the right of way granted by the 1915 conveyance.  I do not accept, for the reasons set out above, that the Applicants’ predecessor in title, Miss Paine abandoned or released that right of way. 

Right of way in favour of Pink Plot
39.	The Applicants submitted that I should find that the 1940 conveyance of the pink land by the Corporation to Major and Mrs Ballard included the grant of a right of way over Broadfield Road because of two matters; firstly, the inclusion in the conveyance of a covenant to pay a proportion of the expense of “repairing and maintaining any private or proposed road abutting on or adjoining the said land”; and secondly, the grant by conveyances of other nearby land by the Corporation at a similar time of rights of way over Broadfield Road by the land conveyed by those conveyances.  

40.	The argument that I should find as a fact that the conveyance of 1940 included the express grant of a right of way over Broadfield Road because it contained a covenant to pay towards the expense of repairing and maintaining any road which it abutted or adjoined is not one which I find persuasive.  It does not follow from the inclusion of this covenant that there was a grant of a right of way over Broadfield Road in the conveyance. It was wholly open to the Corporation to reach an agreement with the purchaser to covenant to contribute towards the costs of repair of all roads while not giving him a right of way over all roads. 

41.	The other conveyances the Applicants rely on are the following.  
(1) They rely on the conveyance of the plot of land to the east of plot C, being part of the land registered under title number SY485156 and called “The Guare”.  The land within that title was the subject of three separate conveyances.  The land on which the house called “The Guare” stands is the land at the junction of the lane leading to Windy Cottage and the road called Pursers Hollow.  This was conveyed by the Corporation to Grace Wood by a conveyance dated 14th September 1911.  The area of land within title SY485156 immediately to the south of the area conveyed in 1911 was conveyed by the Corporation to the Misses Paine by a conveyance dated 15th April 1913. The land to the south of the land conveyed by the 1913 conveyance was conveyed to Mansel Glasbrook Richards by a conveyance dated 25th January 1940.  This area of land adjoined the highway called Pursers Hollow or Pursers Lane on its east side and Broadfield Road along its west and south sides. By the conveyance the Corporation granted the purchaser
	“the right for the Purchaser and the persons deriving title under him in common with 	the other persons entitled thereto from time to time and at all times hereafter to pass 	and repass with or without horses cattle carts carriages motor cars and other vehicles 	over and along Broadfield Road aforesaid”. 
The conveyance included a covenant on the part of the purchaser to pay towards the expense of repairing and maintaining any road which the land conveyed abutted or adjoined in the same terms as the covenant in the conveyance of the pink land. 

(2) They also rely on the conveyance of land on the west side of Broadfield Road, on the other side of the road from the pink land, being the land registered under title number SY314771 and called “Shepherds Hill”.  This land was conveyed by the Corporation to Helen Guthrie by a conveyance dated 6th April 1939.  By the conveyance, the Corporation granted the purchaser
	“the right for the Purchaser and the persons deriving title under him in common with 	the other persons entitled thereto from time to time and at all times hereafter to pass 	and repass with or without horses cattle carts carriages motor cars and other vehicles 	over and along Broadfield Road aforesaid”.
The conveyance included a covenant on the part of the purchaser to pay towards the expense of repairing and maintaining any road which the land conveyed abutted or adjoined in the same terms as the covenant in the conveyance of the pink land.

42.	The argument that I should find as a fact that the conveyance of 1940 included the express grant of a right of way over Broadfield Road because other conveyance of parcels of land by the Corporation at a similar time included the grant of a right of way is not one I can accept.  It does not follow that because the Corporation conveyed other land with a right of way over Broadfield Road that it also conveyed the pink land with such a right of way.  There may be many reasons why the Corporation could have chosen to grant a right of way over Braodfield Road to Shepherds Hill and to the land now forming part of The Guare and not to the pink land.  It is to be noted that the land now forming part of The Guare bordered on Broadfield Road and not on any other private road so if access was to be gained to it otherwise than directly from the highway, it needed a right to pass over Broadfield Road.  The pink land is different because it bordered the lane leading to Windy Cottage and was given an express right of way over that lane.  Shepherds Hill is only accessible from Broadfield Road and so needed a right of way over it.  Plot C was similarly only accessible from Broadfield Road.   

Conclusions
43.           The Applicants are not entitled to a right of way over Broadfield Road as claimed save only that they are entitled to a right of way only over that part of Broadfield Road which lies between plot B and the northwest corner of the pink land for the purposes of gaining between plot B and the highway being the Shere to Peaslake road, called Pursers Hollow, via the lane by Windy Cottage. I shall direct the Chief Land Registrar to give effect to the application made on 28th June 2011 to alter the register by registering a right of way for the benefit of plot B over the part of Broadfield Road between plot B and the northwest corner of the pink land.  I shall direct the Chief Land Registrar to cancel the other two applications. 

Costs
44.	The Applicants have succeeded on part of their application, namely for a right of way over the site of the road as shown on the 1915 conveyance plan between plot B and the pink land.  My preliminary view is that the Applicants should pay one third of the Respondent’s costs of the proceedings, to be assessed on the standard basis.  The Applicants have succeeded on one of three issues and are prima facie entitled to have their costs of that issue paid by the Respondent.  The Respondent has succeeded on two of the three issues and is prima facie entitled to have his costs of those issues paid by the Applicants.  An order that the Applicants pay one-third of the Respondent’s costs would be just.  Any party who wishes to submit that some different order should be made as to costs, should serve written submissions on the Tribunal and on the other party by 5pm on 5th September 2014.

BY ORDER OF THE TRIBUNAL

DATED 18th August 2014