[2015] UKFTT 9 (PC)
REF/2013/0254/0538						
PROPERTY CHAMBER
FIRST-TIER TRIBUNAL LAND REGISTRATION
LAND Registration act 2002

BETWEEN
(1)	BRIAN KEITH HAMER
(2)	MARGARET ANITA HAMER

APPLICANTS
and

(1)	HELEN EDANNA GROOM
(2)	EURFYL LEWIS JAMES
	RESPONDENTS

Property Address: Alpine Villa and Treneddyn Farm, 
Llannon, Pontarddulais,Swansea SA4 1FP

Title Numbers:  CYM53031 and CYM219134

Before: Judge Owen Rhys

Sitting at: Swansea Crown Court

On: 18th and 19th February 2014

Applicant representation:	Mr Wilmshurst of Counsel instructed by Edward Harris solicitors
Respondent representation: 		Mr Strutt of Counsel instructed by
						William Graham Law Ltd Solicitors

D E C I S I O N

INTRODUCTION
1.	By an application in Form AP1 dated 18th March 2013, the Applicants applied to register three different easements over title number CYM219134, Treneddyn Farm, Llannon, of which the Respondents are the registered proprietors.  The Applicants claimed the easements for the benefit of their property known as Alpine Villa, comprising a field together with a bungalow and associated outbuildings in the south eastern corner of that field. This property is registered under title number CYM530301.  Treneddyn Farm lies immediately to the south and east of Alpine Villa.  The main access road to both properties is a tarmacadamed drive (“the Yellow Track”) that runs south from the public highway to the north.  Perhaps two hundred metres south of the junction with the road, there is the main entrance to Alpine Villa on the right hand side of the Yellow Track.  Alpine Villa itself is on higher ground, and the entrance drive therefore rises quite steeply and at an angle to the track.  The Yellow Track continues southwards for a short distance, through a gate which is in line with the southern boundary of Alpine Villa.  Another (gated) track turns off to the west at this point, running along the southern boundary of Alpine Villa and its adjoining field and outbuildings.  Again, due to the topography, this track rises quite steeply at first, before levelling out once past the outbuildings of Alpine Villa.  Although this track is no longer an issue in this case, as I shall explain, I shall refer to it for convenience as “the Brown Track”.  The area between the gates on the Yellow Track and the Brown Track leads into an open area of hard standing forming a yard.  On the south side of the yard are the buildings of Treneddyn Farm,  The main farm house stands in the south-western corner, and there is a small front garden with a wall which forms the physical edge of the yard.  To the east of the farm house there are a collection of outbuildings, the most easterly of which projects northwards into the yard and stands on a concrete or stone platform.  This building is derelict.  Opposite the farm house, forming the northern and north-eastern side of the yard, is a dwelling converted from an outbuilding or barn, now in the ownership of a Mr Preece.  A low breeze-block wall has been constructed along Mr Preece’s boundary, running from the south-western corner of his dwelling northwards to intersect with the eastern gatepost of the gate at the southern end of the Yellow Track. This was done as part and parcel of the building works carried out by Mr Preece post-2004.  Prior to the construction of the wall, the area between the gate and the entrance to the Farmyard was considerably wider, as is apparent from an aerial photograph produced by Mr Hamer (BKH6) dating from the early 1980s.   The area to the south of the Brown Track, comprising the whole of the Treneddyn Farm yard, and the land to the west of Mr Preece’s barn and adjoining wall, is referred to in these proceedings as “the Pink Land”, which includes Treneddyn Farmyard.  It forms part of the Respondents’ title, as I have said.

THE PARTIES
2.	The Applicants have lived at Alpine Cottage since 1977.  Mrs Hamer is the daughter of Mr and Mrs Williams, who were then the owners of Treneddyn Farm, which consisted of some 200 acres.  In 1975 Mr and Mrs Williams obtained planning permission for the construction of a bungalow on the site now occupied by Alpine Villa.  The bungalow was constructed over a period of time and in April 1977 the Applicants moved in.  On 6th February 1978 Mr and Mrs Williams executed a Deed of Gift to the Applicants, of the area of land on which the bungalow was built.  In June 1978 Mr and Mrs Williams sold the remainder of Treneddyn Farm, with the exception of the field lying immediately to the north of Alpine Villa.  By two further Deeds of Gift, in 1981 and 1982, this field was given to the Applicants.  Accordingly, they are now registered under one title as proprietors of the three separate parcels of land given to them between 1978 and 1982.  Treneddyn Farm remained as a single unit from 1978 until the early 2000s.  Mr Michael Morris owned it between 1990 and 2003.  In 2004 the Respondents bought part of the farm, consisting of the farmhouse and outbuildings, the farm yard (forming part of the Pink Land) and some adjoining land, including the Brown and Yellow Tracks.  This land is registered under title number CYM219134.

THE APPLICATIONS
3.	By their application dated 19th September 2012, the Applicants applied to register two separate easements over the Respondents’ title.  First, a right of way over the Yellow Track.  Secondly, a right of way over the Brown Track.  By a further application dated 18th March 2013, they applied to register a right of way over the Pink Land.  On closer examination, however, it is not a right of way in any generally understood sense.  It is in fact a right to turn delivery vehicles within the Pink Land.  Such vehicles obtain access to Alpine Villa over the Yellow Track.  The Applicants claim that they then return to the public highway by turning round within the Pink Land, and driving back up the Yellow Track to the public road.  The Respondents objected to the applications insofar as they related to the Brown Track and the Pink Land.  There is no dispute as to the Yellow Track, as to which the Respondents accept that the Applicants have a full vehicular right of way.  In view of the dispute regarding the Brown Track and the Pink Land, the Chief Land Registrar referred both disputes to the Tribunal on 26th June 2013.

THE HEARING
4.	The matter came on for hearing before me on 18th February 2014.  At the outset of the hearing I was informed by the parties that they had reached agreement with regard to the Brown Track.  It was agreed that the Applicants would be granted a right of way for all purposes over the Brown Track but only with respect to the section between the Yellow Track and the gate into Alpine Villa from the south.  This is just to the north of the back entrance into Treneddyn Farm.  As far as that reference is concerned, I have made an order directing the Chief Land Registrar to give effect to the application but to that geographical extent only.  The sole remaining issue was that relating to the Pink Land – namely, the alleged right to turn delivery vehicles within Treneddyn Farm yard.  An attempt to agree this issue was also made, but for whatever reason no agreement could be reached.   The hearing proceeded before me on that issue.  Evidence for the Applicants was given by Mr Hamer.  Both Respondents gave evidence, as did Mr Michael Morris, the owner of Treneddyn Farm between 1990 and 2004. The Respondents relied on other witness statements, although these witnesses were not called, since their evidence related primarily to the Brown Track, which had been agreed.  Counsel was instructed on both sides.

THE LEGAL BASIS FOR THE CLAIMS
5.	The legal basis for the claimed easement was two-fold.  First, the Applicants allege that they are entitled to the right to turn vehicles on the Pink Land, in reliance in the so-called rule in Wheeldon v Burrows (1879) 21 Ch.D. 31.  In a nutshell, the Applicants claim that vehicles were turned on the Pink Land as at the date of the Deed of Gift, and such a right was “necessary for the reasonable enjoyment” of Alpine Villa as at that date.  Secondly, and if that argument fails, the Applicants claim to have acquired a prescriptive easement to the same effect.  They allege user as of right continuously from 1978 to the present day.  I shall consider the law in more detail later in this Decision.

MR HAMER’S EVIDENCE
6.	Mr Hamer made a lengthy and extremely detailed witness statement relating to the use of the Brown Track and the Pink Land.  In fact, almost the entirety of the 19-page statement deals with use of the Brown Track.  There are a few references to use if the Pink Land.  First, in paragraph 9.1, he stated that during the course of the construction of Alpine Villa, delivery lorries and vans “would …. turn around in the farmyard, ie the pink land ……”.   In paragraph 9.2 he states that “After we had completed the bungalow and had moved in, then again, all delivery vehicles such as oil tankers, the sludge gulper tanker emptying the sewage tanks and delivery or other lorries or large vans all used the yellow track ….. turning around in the pink land…”.  Details of the method of turning were given in paragraph 10.2.  In paragraph 16.3 he states that; “Likewise, I and my licensees, invitees and contractors have used the pink land (the yard of Treneddyn Farm) throughout the whole of that period as and when required, openly, without force, and without permission as part of the yellow driveway for the purposes of turning                                                                                                                                                                                                                                                                                                                                                                                                                                        vehicles as recounted herein.” 

7.	Mr Wilmshurst, for the Applicants, sought permission to ask some supplementary questions of his client, Mr Hamer, when he came to give evidence.  As I have said, Mr Hamer had made a very detailed witness statement, a matter of weeks before the commencement of the hearing, and I found the request surprising.  However, I allowed him to put a number of such questions, which were directed to the evidence already given in paragraphs 9.1 and 9.2 of the statement, relating to the user of the Pink Land.  In this examination in chief, he stated that delivery vehicles now came to the house between 1 and 3 times per week, or perhaps less frequently.  He believed that these delivery vehicles have increased in amount since the advent of internet shopping. He said that oil delivery lorries came on 2 or 3 occasions annually, and the “sludge gulper” – emptying sewage tanks – perhaps once every 9 or 10 years.  He was asked about “other lorries” – his reply was they delivered once or twice per month.  

8.	In his cross-examination of Mr Hamer, Mr Strutt posed a series of questions focused on the precise nature and extent of the user of the Pink Land.  Mr Hamer confirmed that the building of the bungalow took place between 1975 and 1977, and that during this period there were numerous deliveries of building materials by lorry.  However, this activity ceased once the Applicants occupied the bungalow, in April 1977.  He also confirmed that oil was delivered to the bungalow.  According to him, the tanker would drive up the bungalow drive, pump out the oil, and then reverse back down the drive onto the Yellow Track. It would then drive into Treneddyn Farmyard, manoeuvre, and return up the Yellow Track in forward gear. He accepted that he was not always present when deliveries were made to the bungalow, but in recent years he has semi-retired and has actually witnessed the vehicles turning on the Pink Land.  He was asked about other deliveries by lorry.  According to him, he carried out some additional construction work at the bungalow – building a separate garage and outbuilding – and building material were delivered for this purpose. These works were carried out in the period 1981-83.  However, asked about other lorry deliveries, he said that for the period after 1983 there was “not really anything else…..”.  In relation to delivery vans, he accepted that most vans could turn within the bungalow area “with a good driver”, but said that some vans were as large as the 4-wheeler oil tanker.  He agreed that it was possible for delivery vans to turn in a more restricted area.  He also accepted that it was perfectly possible for large vehicles, including the oil tanker, to reverse back down the Yellow Track in order to re-enter the public road. He insisted however that each and every part of Trenyddon Farmyard was required for turning, since the Respondents’ vehicles were often parked there so that the largest possible area was needed to allow for flexibility. He vigorously denied that larger vehicles ever turned round in the area immediately to the south of the gate on the Yellow Track, being the area now enclosed and limited in size by Mr Preece’s breeze block wall.

9.	Mr Hamer was also asked about Mr Morris, a former owner of Trenyddon Farm, who had made a witness statement on behalf of the Respondents. In this statement, he had said that in around 1992 he had erected a gate at the entrance to the Farmyard, and had asked Mr Hamer not to use the Pink Land for turning vehicles.  According to his statement, as far as Mr Morris was aware, no vehicles had turned in the area after the time that the gate had been erected. When cross-examined by Mr Strutt, he accepted that Mr Morris “may” have erected the gate, and also accepted that Mr Morris had instructed him not to use the Pink Land. However, he claimed that this instruction had been given in 2002.  He was also re-examined on this issue.  He said that he had fallen out with Mr Morris right at the end of his period as owner of Treneddyn Farm, because he had asked to rent one of Mr Hamer’s fields, but this was not possible because he had another tenant.  According to Mr Hamer Mr Morris “wasn’t happy”. It was against that background that Mr Morris allegedly objected to his use of the Pink Land. 

THE RESPONDENTS’ EVIDENCE
10.	Evidence was given by both Respondents.  They did not acquire their land until 2004, and could not therefore give evidence as to the Applicants’ use of the Pink Land prior to that time. Most of their written evidence was directed to the Applicants’ (disputed) use of the Brown Track, and to the origin of their dispute with Mr Hamer. Ms Groom said that they had visited the Applicants in around November 2004, just after she had moved to live at the farm.  According to her, there was a conversation with the Applicants, in the course of which they said that they were looking forward to “nice people” moving in as the current owners would not let them turn in the yard of the farm.  She accepted that she gradually became aware that some vehicles making deliveries to Alpine Cottage did turn in the Farmyard.  This became a source of irritation to her, and both she and her partner, Mr James, on occasions had words with Mr Hamer and asked him to instruct drivers not to turn in the yard.  She explained how a series of incidents, relating to alleged acts of trespass by Mr Hamer on the Respondents’ land, led to a complete break with the Hamers in 2012.

11.	Mr James confirmed Ms. Groom’s evidence, including the conversation in around 2004 when the Hamers told them that the previous owner of Treneddyn Farm had told them not to turn in the Farmyard – a conversation which was denied by Mr Hamer. Mr James was an HGV driver by profession, and until recently ran a small haulage business from Treneddyn Farm, which had not been successful.  In cross-examination, he said that there was a great deal of building activity around the Farmyard for a period of several years after their purchase in 2004.  Mr Preece, who owned buildings to the north of the Pink Land, spent several years converting them into a dwelling.  Another barn conversion was taking place to the south and east, and the owners of that land obtained an express vehicular right of way through the Pink Land and onto the Yellow Track. The building work was completed approximately three to four years ago.  During this period there was a lot of activity in the Farmyard, and there were occasions when drivers making deliveries to Alpine Cottage would turn either in the Farmyard itself, or in the area immediately to the south of the gate on the Yellow Track, before the breeze block wall was constructed.  Mr James recalled seeing vehicles turning round at the entrance to the Farmyard, to the south of the gate and in the area now partially blocked by the breeze block wall.  As he picturesquely put it, “all it takes is four shunts”.  According to him, it was usually safer to do that, since cars and other vehicles belonging to Treneddyn Farm were usually parked in the Farmyard, and a turning vehicle could damage them. Sometimes drivers would get lost looking for Alpine Villa and come into the Farmyard to ask the way.  He recalled seeing lorries reversing back out along the Yellow Track towards the main road, at times when the Farmyard was congested with vehicles.  He confirmed Ms Groom’s evidence as to the gradual falling-out with the Hamers. He recalled a particular occasion in 2007 or 2008 when he complained to Mr Hamer about a flatbed truck, delivering to Mr Hamer, which had damaged the surface of the Farmyard.  According to Mr James, Mr Hamer apologised and as a peace offering gave him some fire-fighting equipment.  It was put to him that this event never occurred.

MR MORRIS’S EVIDENCE
12.	Michael Morris, the owner of Treneddyn Farm between 1990 and 2003, made a witness statement.  His evidence in relation to the Pink Land was as follows: 
“10.	In relation to the pink right of way when I moved in I acted as any neighbour would and I was accommodating and helped the Applicants where I could.  However within a year or so I realised that the Applicants were using my land for turning vehicles.  I told Keith Hamer in no uncertain terms that he was not to use the yard of the Farm to turn any vehicles i.e no oil lorries, no delivery lorries and none of his own vehicles in the yard.  I pointed out to him that if he had issues with turning etc he had a 5 acre field which he could use to make a drive in drive out drive, he was more than capable of doing that as he had a JCB.  That conversation was in 1991 or 1992.  
11.	I also closed the gate at the top of the yard to physically stop the Applicants, their servants or agents from using the yard to turn.  The latest I started doing that was in 1992.  After that time my yard was never used to turn.  I am sure of this as again as a farmer I was in and around the yard regularly during the day and I or a member of my family would have seen if it had been used.”

13.	Mr Morris was robustly cross-examined on his statement by Mr. Wilmshurst, for the Applicant.  It was put to him that he had not objected to Mr. Hamer’s use of the Farmyard until 2002, in the context of an alleged disagreement about the renting of the Applicant’s field.  It was vigorously suggested that Mr. Morris had an animus against the Hamers, because they would not rent the field to him at an acceptable price, at a time when he was in financial trouble.  Generally, it was suggested to Mr Morris that he was not being truthful, and that the Applicants’ use of the Farmyard continued unabated throughout the period of Mr Morris’s ownership.   Mr Morris, equally robustly, denied these suggestions, and repeatedly said that he had objected to the Applicants’ use of the Pink Land in 1991 or 1992, and that, as far as he was aware, the user had ceased at that time.

FINDINGS OF FACT
14.	Given the way in which the Applicants put their case, it is necessary to focus on two particular periods of time.  In relation to the Wheeldon v Burrows claim, one must consider the position at and around the date of the Deed of Gift, in February 1978.  In relation to the claim of a prescriptive easement, any continuous twenty–year period after 1978 – when the Pink Land and Alpine Villa came into separate ownership – must be considered.  My findings of fact in relation to the pre-February 1978 period are as follows: 

a.	During the period of the construction of the bungalow, between late 1975 and early 1977, there were frequent deliveries of building materials by large vehicles.  Alpine Villa was in effect a construction site, and such vehicles often turned within the Pink Land.  They may have turned within the farmyard itself, or within the area to the north of the farmyard, now partially blocked by the erection of Mr Preece’s breeze block wall.
b.	Once the Applicants had moved into the bungalow, in April 1977, these deliveries ceased.  
c.	In the period between April 1977 and February 1978, there may have been one or more deliveries of oil to Alpine Villa.  It is possible that the oil tanker turned around within the farmyard, or the land to the north described above, as opposed to reversing back up the Yellow Track to the public highway.
d.	There was no other regular delivery to Alpine Villa in this period which required a vehicle to be turned within the Pink Land.

15.	With regard to the period after February 1978, my findings of fact are as follows:
a.	There were occasions prior to 1991 or 1992 when vehicles making deliveries to Alpine Villa would turn on some part of the Pink Land.  This included the oil deliveries, the occasional “sludge gulper” collection, and the delivery of building supplies during the early 1980s.  
b.	After Mr Morris erected the gate at the southern end of the Yellow Track in 1992, being the northern access to the Pink Land, delivery drivers ceased to use the Pink Land for manoeuvring. They either turned within Alpine Villa’s grounds, or reversed out.  It is of course possible that there was occasional use of the Pink Land, at a time when neither Mr Morris nor members of his family or employees were present at the farm, but this would have been very exceptional.
c.	It has always been possible to turn delivery vans within the grounds of Alpine Villa.  Larger vehicles may be reversed back along the Yellow Track, and witnesses have seen this occurring.
d.	After Mr Morris sold Treneddyn Farm in 2003, the user recommenced.  This coincided with a period when there was considerable vehicular traffic within the area generally, due to the building works being carried out.  
e.	More recently there have been a greater number of deliveries, due in large part to the increase in internet shopping.
f.	When the Respondents first met the Applicants at Alpine Villa, there was a conversation in which Mr Hamer told the Respondents that the previous owner had prevented them from turning vehicles within the Treneddyn farm yard. 
g.	Eventually the Respondents asked Mr Hamer to desist and to instruct delivery drivers not to turn on the Pink Land. The first occasion was in 2006 or 2007. They repeated this request on several occasions, but without success.   
h.	Mr Hamer himself was in full-time work until the last few years. Until his retirement (or perhaps semi-retirement) he was not generally present at Treneddyn Farm to witness the actual method whereby delivery drivers turned their vehicles.  As I have said, until the erection of the breeze block wall, it was perfectly possible for large vehicles to be turned in the area to the north of the farm yard proper, and this would have been the safer and more convenient method whenever vehicles were parked within the farm yard, as was often the case.

RESOLVING THE CONFLICTS IN THE EVIDENCE
16.	In reaching these conclusions, I have been obliged to reconcile some serious conflicts in the evidence.  Perhaps the most serious, and potentially important conflict, is that between Mr Hamer and Mr Morris. Mr Morris is the only witness, other than Mr Hamer, who is able to give evidence as to the user of the Pink Land for the critical period between 1991/2 and 2003.  In terms of a claim to a prescriptive easement, this period is essential to the Applicants.  The periods of alleged user prior to 1991/2 (13/14 years) and post-2003 (10 years) are too short, and user has to be unbroken in order to found a prescriptive easement.  Mr Morris’s evidence was that he had told Mr Hamer not to use the Pink Land, and had installed a gate at the southern end of the Yellow Track to reinforce the point, in 1991 or 1992.  Mr Hamer accepted that Mr Morris may have installed the gate, and also accepted that he had been told not to use the Pink Land, but insisted that this had taken place in 2002.  He said it was against the background of a dispute about a tenancy.  What is perhaps surprising about this admission is that there is no mention in Mr Hamer’s witness statement of any dispute regarding the alleged rights of way, prior to the arrival of the Respondents.  On the contrary, paragraph 16.3 of his witness statement (signed as recently as February 2014) reads as follows: “Likewise, I and my licencees, invitees and contractors have used the pink land (the yard of Treneddyn Farm) throughout that period as and when required, openly, without force and without permission as part of the yellow driveway for the purposes of turning of vehicles as recounted herein.”  The “period” mentioned is from 1978 to 2012.  It was only in his cross examination that he acknowledged the dispute with Mr Morris.  I find it hard to reconcile this evidence with the statement that he had used the Pink Land “openly, without force and without permission” – at the very least, if he continued to use the Pink Land in the teeth of Mr Morris’s objections (which is his own case) this was worthy of mention.  

17.	Ultimately, I have to resolve the conflict between the two on the basis of their demeanour in the witness box and the impression I formed of them as witnesses, in the context of the inherent probabilities and any relevant documentation.  In my judgment, the evidence of Mr Morris is to be preferred.  I found him to be straightforward and definite in his recollection of relevant events, albeit somewhat truculent.  I bear in mind that there is some bad feeling between the two, and I am not sure that Mr Morris reacted too well to the suggestion, put to him in cross-examination, that somehow he had failed as a dairy farmer and was forced to sell up Treneddyn Farm.  The only real issue between the witnesses was as to the date when he “banned” use of the Pink Land.  I have no reason to disbelieve Mr Morris’s evidence that this took place in 1991 or 1992. I also have no reason to disbelieve him when he said that the Applicants’ user ceased at that time.  He struck me as a person who, having refused Mr Hamer permission to enter his land, would be vigilant to ensure that his instruction was obeyed.

18.	 By contrast, Mr Hamer has every reason to place the incident in 2002, after a full 20-year period would have passed.  The favourable impression which I formed of Mr Morris may be contrasted with the lack of candour in Mr Hamer’s witness statement, and the absence of any documentary evidence to support his claim that there was a dispute regarding the tenancy dispute as late as 2002. In assessing his evidence, I also have regard to the fact that he denied the conversation with the Respondents (in which he was alleged to have told them that the previous owner of Treneddyn Farm had prevented the Applicants from turning in the farm yard), a conversation which I have found did take place.  I found the Respondents to be entirely credible and candid witnesses of truth, and I reject the suggestion that they simply invented this conversation. In any event, it is perfectly true, and accepted by Mr Hamer, that Mr Morris did prevent him from turning on the Pink Land.  The only dispute on that score is the date when he did so.  Accordingly, it would be entirely probable that Mr Hamer, in meeting his new neighbours for the first time, would put down a marker as to his future use of the Pink Land.  

19.	As a more general point regarding the Applicants’ case, it may be noted that no witnesses have been called to explain either the method of manoeuvring vehicles after delivering to Alpine Villa, or the period of uninterrupted user.  At the very least, one might have thought that the oil delivery driver or drivers – who were regular visitors to Alpine Villa over a period of some 35 years – could have been asked to give evidence.  Given that the Respondents’ evidence was that on the whole vehicles were reversed back down the Yellow Track, as opposed to turning in the Farmyard, such evidence might have been able to resolve these conflicts.

CONCLUSIONS – WHEELDON v BURROWS

20.	In the light of the findings that I have made, what are the implications for the Applicants’ claims with regard to the Pink Land? First, I shall consider the Wheeldon v Burrows claim.  In Mr Wilmshurst’s skeleton argument, he identifies the “classic requirements” of a Wheeldon v Burrows claim as follows: “a) that the right “must be continuous and apparent”; b) the right must be “necessary for the reasonable enjoyment of the property granted” and c) at the time of the grant the quasi-easement was being used by the common owner for the benefit of the part granted…”.   In my judgment, on the facts of this case the Applicant has failed to establish a Wheeldon v Burrows easement to turn vehicles on the Pink Land.  My reasons are as follows.  First, I am not satisfied that the easement claimed can properly be regarded as “continuous and apparent” within the meaning of Wheeldon v Burrows.  The Pink Land does not, of course, form part of any access or way leading to or from Alpine Villa.  The classic example of a “continuous and apparent” quasi-easement would be a made-up road or track affording a visible means of access to and from the quasi-dominant tenement.  This is not of course an inflexible rule, and there have been cases where an identifiable strip of land – but not formed into a made road – has been held to be “continuous and apparent”; see Brown v Alabaster (1888) 37 Ch.D 490 and the other cases cited in Gale on Easements (19th ed.) at 3-65 to 3-67.    However, in my judgment it is too much of a stretch to regard the Pink Land, including the area within Treneddyn Farmyard itself, as an “apparent” quasi-easement serving Alpine Villa.

21.	Secondly, I am not satisfied that the claimed user is “necessary for the reasonable enjoyment of the property granted”.  The quasi-easement is clearly not “necessary” in the strict sense.  The question is whether Alpine Villa could be reasonably enjoyed without the use of the Pink Land.  Mr Hamer’s evidence, at its highest, was that delivery drivers found it more convenient to turn vehicles within the Pink Land, than to reverse back up the Yellow Track and turn to enter the public road.  Specifically, that the oil delivery driver would so do, that being the only type of delivery that he mentioned in regard to the period between early 1977 and February 1978.  It was not his evidence that he himself, or members of his family, ever needed to turn vehicles on the Pink Land.  It was not his evidence that the oil delivery drivers had ever expressed any reservations about reversing back up the Yellow Track.  It was not his evidence that the oil suppliers had ever stipulated that vehicles had to be turned on the Pink Land, or that deliveries would be terminated unless the Pink Land was available.  In my judgment, the owners and occupiers of Alpine Cottage have reasonable enjoyment of it without any access to the Pink Land for the purposes of turning vehicles.

22.	Thirdly, there is no evidence that the Pink Land was actually used for turning vehicles as at the date of the Deed of Gift in February 1978, or in any reasonably relevant period leading up to that date.  There is no doubt that it had been so used, by construction and delivery vehicles, at a time when the land on which Alpine Villa was built formed part of Treneddyn Farm.  However, it has been established that these works were concluded by the end of 1976 or early in 1977.  With the possible exception of one or two oil tanker deliveries, there was no such user for the period between (at latest) early 1977 and February 1978.  The Applicant accepted that these vehicles could reverse back down the Yellow Track if necessary.  On Mr Hamer’s evidence, even those vehicles that wished to turn round on the Pink Land would initially have to reverse back down the drive to Alpine Villa.  This drive is itself quite steep, and enters the Yellow Track at quite a sharp angle.   Purely based on my observation of the physical circumstances, I would not have thought that the ability to turn vehicles on the Pink Land conferred a great advantage to a delivery driver, particularly if parked vehicles were present. In any event, Mr Hamer would not have been in a position to monitor the exact method by which these tanker deliveries were made, and cannot possibly recall the details of these particular deliveries some 35 years on.  In the circumstances, I cannot be satisfied that such user fell within the requirement stated by Thesiger LJ in Wheeldon v Burrows (at page 49), namely quasi-easements “which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”

23.	Accordingly, I hold that the claim to an implied easement to turn vehicles on the Pink Land, under the rule in Wheeldon v Burrows, must fail.  

THE CLAIM - PRESCRIPTION
24.	Their alternative claim is to have acquired an easement by virtue of long user.  There is no controversy as to the necessary ingredients of such a claim, whether made at common law, under the Prescription Act 1832 or by virtue of the doctrine of lost modern grant.  The Applicants must prove, on the balance of probabilities, more than 20 years’ user as of right (or perhaps “as if of right” per Lord Walker in R ex.p Beresford v Sunderland City Council [2004] 1 AC 889 at para. 72).  User as of right means user enjoyed without force, concealment or permission.   In the case of a right of way and similar rights, the user must be definite and continuous, as explained in Gale at 4-143.  The user, in the present case, is the claimed right to turn vehicles within the Pink Land.

25.	In considering whether the user relied upon can gives rise to a prescriptive easement – assuming that the required period and quality of user is proved – it is first necessary to decide whether the claimed right is capable of being an easement at all.  One of the fundamental requirements of an easement is that it accommodates the dominant tenement.  In the words of Lord Evershed MR in Re Ellenborough Park [1956] Ch 131 at 170: “the right accommodates and serves the dominant tenement, and is reasonably necessary for the better enjoyment therewith, for if it has no necessary connection therewith, although it confers an advantage upon the owner and renders his ownership of the land more valuable, it is not an easement at all, but a mere contractual right personal to and only enforceable between two contracting parties”.    These words have been the subject of considerable discussion – see, for example, Gale at 1-24 and the cases cited and noted therein – in order to determine whether there is a requirement of “reasonable necessity” before the accommodation test is satisfied.  In the present case, I have of course already found that the claimed right is not “necessary for the reasonable enjoyment” of Alpine Villa for the purposes of the Wheeldon v Burrows claim – see paragraph 20 of this Decision.  As I have explained, it is not contended by the Applicants that they, as owners and occupiers of Alpine Villa, will suffer any detriment if the Pink Land is unavailable for turning.  The availability of the Pink Land may in some circumstances render the delivery drivers’ manoeuvres more convenient.  That is the full extent of the benefit claimed. I have doubts, therefore, whether this marginal advantage (only indirectly benefiting Alpine Villa) is capable of maturing into a full legal easement, creating a burden on the land of the Respondents which, if enjoyed to the full, would effectively sterilise their use of Treneddyn Farmyard. The issue is not straightforward, but I have concluded that the safer course, as far as this decision is concerned, is to assume in the Applicants’ favour that the claimed right does indeed accommodate the dominant tenement.

26.	However, in the light of the findings of fact which I have set out above, in my judgment the Applicants are unable to establish any continuous period of more than 20 years’ user of the Pink Land.  At best, they can show user between 1978 and 1992, and a subsequent period between 2003 until very recently. However, there is a period of not less than 11 years – between 1992 and 2003 – when user was interrupted due to the actions of the quasi-servient owner, Mr Michael Morris.  Accordingly, as a matter of law the Applicants cannot demonstrate any continuous period of 20 years user as of right.  On that ground, therefore, the claim to a prescriptive easement fails.

THE PROPOSED ORDERS
27.	I shall therefore direct the Chief Land Registrar to cancel the Applicant’s application in Form AP1 dated 18th March 2013.  I do not see why the Applicants should not pay the costs of this reference on the standard basis, to be subject to a detailed assessment if not agreed.  However, I shall permit them to file and serve written submissions if they object to the proposed costs order on or before 3rd April 2014.  The Respondents may reply on or before 10th April 2014.  
Dated this 21st day of March 2014

BY ORDER OF THE TRIBUNAL