How do you deal with a longstanding claim to an easement over your land, if the users have never done anything to vindicate their claim? Leven Holdings Ltd v Johnston [2018] EWHC 223 (Ch); [2018] PLSCS 35 reminds us that landowners can make the running themselves – by issuing proceedings challenging the existence of the rights claimed.
The case concerned land in Oxfordshire, which was once an wartime aerodrome. After the war, part of the land continued to be used as an airfield and for other commercial purposes. Part was developed as an industrial estate, and other parts were used for agricultural purposes.
Successive owners of the industrial estate tried to control use of an estate service road that crossed their land by granting (and sometimes terminating) licences for use and by installing gates and employing security staff to prevent access by persons who did not occupy, or were not visiting, the industrial estate. But the owners of adjoining land claimed to have express, implied, or prescriptive rights of way over the service road, which were exercisable at all times and for all purposes. However, they did not provide any evidence to substantiate their claim, despite repeated requests to do so.
The dispute rumbled on for years, until the owners of the industrial estate decided to bring matters to a head by commencing legal proceedings themselves. They claimed that the adjoining landowners did not have any rights of way over the estate service road, except for agricultural purposes.
The court noted that there had been a chain of conveyances from the pre-war owners of most of the airfield to the government, followed by subsequent re-conveyances when the war ended. But the land with putative rights of way over the estate service road appeared to have passed from one generation to the next, without ever having been owned by the government. As a result, the government could not have conveyed it back to its pre-war owners with the benefit of newly granted express or implied rights of way over what became the service road. Furthermore, the re-conveyance of the land on which the industrial estate and service road were built did not state that the land was subject to rights of way in favour of the adjoining landowners.
There was no question of an easement of necessity in this case, because the adjoining landowners enjoyed alternative access to the public highway. But was there, perhaps, an easement by prescription, based on user “as of right” – ie use that had not been obtained by force, or exercised secretly, or because the landowner had granted permission for it?
The judge ruled that the use had not been of the requisite quality for the qualifying period of 20 years. Access to some parts of the adjoining land had been sporadic and intermittent. And, viewed against the backdrop of a constant flow of authorised traffic along the service road, it would not have been reasonably apparent to an objective bystander that trespassers were asserting rights over the service road. Access to other parcels had been permissive, because users had been granted permission to use the service road. And, finally, the use had become contentious before the qualifying period had elapsed, because it had been forced onto the owner of the industrial estate despite its objections to the use of the service road.
Allyson Colby is a property law consultant
