Andrew Walker KC and James Mitchell acted for the defendant, PD Teesport Limited, who successfully claimed a number of access rights for the benefit of Teesport and other land it owned in the Teesside area, following a 6-week trial in October and November 2023. PD Teesport relied on express grants, implied grants and prescription, and the trial required an analysis of a number of historic deeds, plans and photographs.

The context of the case was the largest brownfield development in Europe at Teesside of the former steelworks by the South Tees Development Corporation (a Mayoral Development Corporation) and Teesworks Limited (the joint venture company involved in the development) over which rights were claimed by PD Teesport.

The judgment addresses a number of significant issues on the law of easements of interest for property practitioners:

1. The case is an excellent example of a commercial entity claiming rights of way by prescription, as well as an analysis of what is required for use to be by permission. PD Teesport were successful in claiming rights by prescription to two locations, relying on a mixture of witness evidence, documentary evidence and inferences.

2. PD Teesport were successful in obtaining an implied right of way to access land which was intended to be a quay when it was acquired. This case provides an interesting, worked example of how implication by common intention can be established by parties who are lacking express grants of rights of way.

3. The judgment grappled with a number of difficult issues in relation to a compilation of express grants and provides confirmation that if the dominant tenement of a grant of a right of way is itself a road, the grant can be used to access other land beyond the dominant tenement (as an exception to the rule in Harris v Flowers).

The judgment also stands as a salutary reminder to all Business and Property Court practitioners of the importance of complying with PD57AC when preparing witness statements, and of the reasons why. Non-compliance was an important factor in the judge’s assessment of the evidence of the over 30 witnesses of fact who were called. The judgment also contains a helpful summary of the current judicial approach to witness evidence more generally.

Andrew and James were instructed by Jonathan Smith and Lana Imrie at DWF Law LLP.

The judgment can be viewed here.