Summary

Various owners and occupiers of land forming part of a former military aerodrome had not established a right of way, either by express or implied easement, prescription or lost modern grant, over a service road through part of the former aerodrome that had become an industrial estate.

Facts

The claimants claimed a declaration denying the existence of a right of way over an estate service road through its industrial estate.

The industrial estate was on land that formed part of a former military aerodrome. The other part of the former aerodrome was a large landed estate, mainly used for farming, the southern part of which was divided into 12 plots each owned by one or more of the first four defendants. The fifth defendant had a lease of plot 4, which formed part of a new aerodrome. The estate road ran from a public highway, through the industrial estate, to plot 4. At some point between 1970 and 1978 the access point from the public highway had been moved by several hundred yards. The first, second, fourth and fifth defendants claimed rights of way over the service road based on express or implied easements in an alleged conveyance in the 1950s, or acquisition by prescription or by the doctrine of lost modern grant. The defendants sought to establish that the government had acquired ownership of the land during the Second World War for the military aerodrome and reconveyed it to their predecessors in title in the 1950s with an express or implied right of way over the service road. It was admitted that the owners of plots 2 and 4 had a right of way by prescription for agricultural purposes only.

Held

1950s conveyance - The only available conclusion, on the balance of probabilities, was that although the government had requisitioned and occupied the land on which the military aerodrome was sited, there never was any acquisition by the government of that land, or any retransfer of title to the defendants' predecessors in title (see paras 108-109 of judgment).

Express or implied right of way - There was neither documentary nor live evidence of any acquisition from or reconveyance by the government to the defendants' predecessors in title, nor of the date or terms of the supposed conveyance, and there was no mention in a 1960s conveyance to the claimant's predecessors in title of any rights that would have burdened the land in favour of the reconveyed land. There had been no reconveyance which expressly granted an easement, and it could not be inferred that the government would have reconveyed the land with greater rights than it had enjoyed before it was taken away (paras 111, 113).

Prescription - Unless the defendants could show 20 years' user of the right of way to the old access point, they had to show 20 years' user to the new access point. They had to establish user as of right, which had to be neither by force, nor in secret, nor with permission, R. (on the application of Barkas) v North Yorkshire CC [2014] UKSC 31 applied. For there to be a forceful user it was sufficient that conduct was both known and properly to be regarded as contentious between the parties, Newnham v Willison (1988) 56 P. & C.R. 8 applied. In the instant case it had become contentious by December 2004, when the claimant's solicitors had rejected the landed estate's claims to a prescriptive right and in effect threatened a claim for an injunction (paras 119, 124-125, 133).

The claimed rights of way - In relation to plot 1, given the authorised traffic on the service road for the purposes of the industrial estate, agricultural use for the purposes of plot 1 would not have been sufficient to have been reasonably apparent to an objective bystander that the right was being asserted. The defendants could not establish the quality of user required to prescribe a right of way or have the grant of one presumed under the doctrine of lost modern grant. The tenants of plot 6, and the lessees of the part of plot 4 that formed part of the new aerodrome, had agreed a licence over the service road and so could not demonstrate the necessary quality of user. In relation to the other parts of plot 6, it was not clear that the relevant defendant had used the service road believing that it had a right to do so; it had asked for permission to use the road on each occasion. In any event, from December 2004 use of the service road had become contentious. The defendants had not made out their claims to a right of way over the service road (paras 134-138, 143).

Declaration granted in favour of claimant