Private Rights of Way Update. Tuesday, 25 th June 2013 Alex Troup St John s Chambers

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Dwight Thompson
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1 Private Rights of Way Update Tuesday, 25 th June 2013 Alex Troup St John s Chambers

2 Overview Prescriptive rights of way: nec vi, nec clam, nec precario Excessive user Acquisition of right of way by proprietary estoppel Protecting equitable right of way against purchaser of servient land

3 Prescriptive rights of way: nec vi, nec clam, nec precario London Tara Hotel Ltd v. Kensington Close Hotel [2012] 2 All ER 554 (CA)

4 Hotel B s use was not permissive...where a landowner has granted a personal right to a licensee to pass over his land, all that is required of that landowner, if he wishes to ensure that a prescriptive right is not acquired, is to check every 18 years or so that the licensee remains the owner of the putative dominant land.

5 Hotel B s use was not secret...to succeed on the issue... [Hotel A] needs to establish that, as a matter of principle, a use can be clam simply if the identity of the person enjoying the use is unknown to the owner of the putative servient land. I am prepared to assume that that may be so, but I do not consider that the argument can succeed on the facts of this case.

6 No grounds for implying a licence the judge correctly directed himself that acquiescence or toleration was not sufficient, and then found there was nothing more than that in the evidence

7 Law reform The present case is yet another example which justifies the Law Commission s view that the law in this area requires urgent attention...

8 Excessive user Giles v. Tarry [2012] 2 P&CR 15 (CA)

9 The rule in Harris v. Flower (1904) 91 LT 816 If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the right in substance for passing over close A to close B

10 Substantial purpose test Once [the trial judge] had identified that the objective of Mr Tarry was to graze his sheep both on the Paddock and on the adjacent Green Land; and once he had identified what Mr Tarry s family actually did (by which conduct that objective was manifest); and once he had correctly characterised those pointless and self-cancelling manoeuvres as a somewhat artificial device or expedient then he was bound to conclude that Mr Tarry was in substance and intention using the driveway for the purpose of gaining access to the Paddock and the Green Land as a single agricultural unit.

11 Court s dislike of the rule The principle is not without its critics. It was criticised... by the Law Commission in its consultation paper Easements and Covenants and Profits a Prendre (Consultation Paper No 186 para.5.70). Short of legislation or the Supreme Court, we must accept the principle for what it is; but I do not consider that we should be keen to extend it.

12 Acquiring right of way by proprietary estoppel Joyce v. Epsom & Ewell Borough Council [2012] EWCA Civ 1398 (CA)

13 Defendant s knowledge of Claimant s acts of reliance It is not an invariable requirement in a case of this particular kind indeed it is contrary to the flexible approach which the more recent authorities establish that the person encouraging necessarily must know just what the person encouraged may have actually done in reliance on the encouragement...

14 Unconscionability The fact that the Council had not thus far sought to prevent Mr Holborn (or his successors after him) from using the road does not address what his entitlement was or the issue of unconscionability arising from the Council s conduct at the time and then its subsequent resiling from it position...

15 Remedy One has here to have regard... not only to the extent of the detriment... actually suffered by Mr Holborn in reliance on the encouragement but also to his expectation... there is nothing to show to the contrary that Mr Holborn had at the time any expectation of future development of 111 East Street or had in mind, or had any wish for, any vehicular right of way more extensive than one serving a sole dwelling at 111 East Street. That the claimant himself is a developer, harbouring development plans, is nothing to the point: he cannot be in a better position than Mr Holborn.

16 Whether equitable right of way binding on purchaser of servient land Chaudhary v. Yavuz [2012] 1 P&CR 206 (CA)

17 Unilateral notice What Mr Chaudhary could then have done, but did not do, was to cause to be registered a unilateral notice... If that had been done before Mr Vijay s sale of number 35, the purchaser would have taken subject to the rights which the notice related...

18 Actual occupation There was no indication that [the metal structure] was used otherwise than for passing and repassing between the street and the relevant flat or flats. In my judgment such a use does not amount to actual occupation.

19 Constructive Trust...in the absence of any express reference in the contract to the rights asserted by the claimant and an express provision requiring the purchaser to take the property subject to those rights, it is not sufficient that the metal structure was apparent on inspection of the land which was to be brought, and that it would have been apparent that it served as an access for the upper floors of both properties.

RIGHTS OF WAY AND PUBLIC FOOTPATHS BELIEF, INTENTION AND THE CAPACITY TO DEDICATE Stephen Whale

RIGHTS OF WAY AND PUBLIC FOOTPATHS BELIEF, INTENTION AND THE CAPACITY TO DEDICATE Stephen Whale 1. In this paper I intend briefly to discuss three topics which often arise in rights of way cases particularly