Prescriptive rights of way - Savill v Elkesley Parish Council & Others (Sheffield County Court, HHJ Sadiq, 11 March 2022)
Thomas Rothwell, instructed by Irwin Mitchell LLP, successfully represents the Claimants at a 2-day trial at Sheffield County Court on 10 and 11 February 2022.
The Claimants had been the owners of a residential property in the village of Elkesley, Nottinghamshire, since October 1978, which they had originally purchased as a new build (“the Property”). The southern boundary of the Property abutted land within the grounds of the local village hall (“the Hall”). This land was referred to throughout the proceedings as “the Hall Land”. It is managed by the trustees of the Elkesley Memorial Hall Charity (“the Charity”).
When the Claimants acquired the Property, there had been no boundary features separating the Property from the Hall Land. The Claimants therefore installed a boundary fence to demarcate the land which they had recently purchased. They were, however, unable to complete this fencing in the south-west corner of their garden because there was a brick wall there marking the boundary with another property. This belonged to a Mr Geoff Wagstaff, now deceased.
At the time, Mr Wagstaff sat on the committee of the Charity. Following a discussion between the First Claimant and Mr Wagstaff, it was agreed that the Claimants would leave a small gap in the fence next to the brick wall. This enabled the Claimants and Mr Wagstaff to pass through the gap and over the Hall Land in order to access both the Hall and the public playing fields to the south of the Hall Land.
In August 2002, the Claimants acquired a further parcel of the Hall Land in order to enlarge their garden (“the Additional Land”). The Claimants erected a new fence along the southern boundary but, because of a number of mature leylandii trees which had by then been planted along the rear of Mr Wagstaff’s property, it was again impossible for the Claimants to build their fence all the way up to the south-western corner of their land. The Claimants therefore installed a gate (which was kept locked from their side when not in use) which enabled them to continue enjoying their access over the Hall Land as before.
The Claimants subsequently enjoyed access in this way for more than 40 years; that is, until the Defendants, the current trustees of the Hall, installed a fence panel behind the Claimants’ gate in late 2018. The Claimants then asserted that they had acquired a prescriptive right to continue enjoying their access over the Hall Land. This led to the current proceedings.
The claim was defended on the basis that Mr Wagstaff, in his capacity as a committee member of the Charity, had given the Claimants permission to use the Hall Land, thus preventing any prescriptive rights from arising. Although Mr Wagstaff was long dead by the time of trial, the Defendants relied on minutes of a meeting of the Charity committee from 1989 which showed that the trustees of the Hall were aware of the Claimants’ use and also a recording, taken in early 2019, in which the First Claimant was said to have admitted that his use was permissive.
Following a 2-day trial at Sheffield County Court, HHJ Sadiq upheld the Claimants’ claim, holding that the Claimants had acquired prescriptive rights of way over the Hall Land under s.2 of the Prescription Act 1832 and the doctrine of lost modern grant. By way of summary, he found that:
- There had been a discussion between the First Claimant and Mr Wagstaff in 1978 regarding the creation of the gap in the fence but this was a neighbourly discussion only. It did not amount to Mr Wagstaff granting permission for the Claimants to use the Hall Land;
- In any event, Mr Wagstaff did not have any authority from the Charity to grant any such permission. Any permission he might potentially have given, therefore, would not have been on behalf of the Charity;
- Furthermore, the Defendants had wrongly transcribed the recording on which they relied. The First Claimant had therefore not admitted that his use was permissive.
The judge therefore found on the facts that the Claimants had used the Hall Land to access the Hall and the playing fields for upwards of 20 years “as of right”, that is, without force, secrecy or permission. The Claimants’ claim was therefore successful.
It is perhaps also worth emphasising a few points, however, which arose during the trial.
First, the Court emphasised the importance of the distinction between permission and acquiescence in the context of prescriptive easements. Whilst permission granted by some positive, overt act of the landlord would negative user “as of right”, acquiescence, that is, passive toleration of a particular user, would not: R (Barkas) v North Yorkshire CC [2014] UKSC 31. In this case, although the minutes from 1989 showed that the trustees of the Charity were aware of the Claimants’ use of the Hall Land, that was not sufficient to show that they had given permission for such use.
Secondly, because there was a live factual dispute between the parties as to whether permission had been given, much of the argument focused on the so-called “40-year rule” under s.2 of the Prescription Act 1832. This provides that a prescriptive right will become “absolute and indefeasible”, in the absence of any consent by deed or in writing, if the party claiming the right has exercised it “as of right” for 40 years or more.
It is commonly accepted that the 1832 Act, as a whole, is a poorly drafted piece of legislation. That is no different when one considers the 40-year rule. Given that a party needs to show that his user has been “as of right” for 40 years or more, that would appear to suggest that his use has to have been without permission of any kind. S.2 of the 1832 Act, however, expressly provides that only consent given by deed or in writing will defeat the acquisition of a prescriptive right. An oral consent will not suffice.
The Courts have had to grapple with this difficulty on a number of occasions. In Gardner v Hodgson’s Kingston Brewery [1901] 2 Ch 198, it was said that, whereas an oral consent given prior to the 40-year period would not defeat the right, a consent renewed during the period itself would. This dictum was followed in Healey v Hawkins [1968] 1 WLR 1967.
In Jones v Price [1992] 64 P&CR 404, however, the practical utility of the 40-year was arguably much reduced. The Court of Appeal held that, if the relevant user begins by permission and that permission continues into the 40-year period by a “common, tacit understanding” between the parties, a prescriptive claim based on the 40-year period would fail.
In the event, the above case law did not prove central to the judge’s decision. He held, quite simply, that no permission was given to the Claimants at any time, thus enabling them to succeed in their claim by reference to both the 20-year and 40-year rules. Importantly, however, he commented that Jones v Price would in any event have been distinguishable on the basis that the user did not start with permission and, if he had found that it had, the oral permission relied upon would not have defeated a claim based on the 40-year rule because the person who had supposedly given the permission had no authority from the landowner to give it, with the result that there was no common understanding between the Charity and the Claimants that the use was permissive.
The authors of Sara: Boundaries and Easements (7th edn) suggest that the 40-year rule exists “more in theory than in practice”. Although the judge’s decision in this case did not ultimately rest on the cases relating to the 40-year rule, his more general comments in the judgment would appear to suggest that there might still be cases in which the 40-year rule will still have some relevance.
A copy of the judgement can be found here.
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