Wilkin & Sons Ltd v Agricultural Facilities Ltd

Easements – Right of way – Prescription – Applicant applying to register prescriptive right of way – Whether establishing necessary period of enjoyment of way “next before some suit or action” in which claim brought into question for purposes of section 4 of Prescription Act 1832 – Whether application itself amounting to suit or action for that purpose – Application allowed The applicant was the registered freehold proprietor of a farm. It applied to the Land Registry for registration of a prescriptive right of way over a track on the adjacent freehold property of the respondent for the purpose of gaining access to the farm from the highway. The claim was founded on enjoyment of the way as of right for a period of 20 years so as to give rise to a right under the Prescription Act 1832 or the doctrine of lost modern grant. An issue arose as to whether the way had been enjoyed for the period “next before some suit or action” in which the claim was brought into question so as to fulfil the requirements of section 4 of the 1832 Act. The applicant contended that the application to the Lands Registry, under r 73(A) of the Land Registration Rules 2003, itself satisfied the requirement for there to be a “suit or action”. It submitted that any other construction would mean that a person could not rely on the 1832 Act unless court proceedings had been commenced and that parliament was unlikely to have intended so to curtail the application of the 1832 Act where the land was registered. Held: The application was allowed. The absence of any court proceedings in which the claim to a prescriptive right of way was brought into question did not mean that no period next before “some suit or action” had been brought into existence in the instant case. The making of an application by a party seeking to pursue a claim that was later opposed by the objector, with the result that the matter was then referred to the adjudicator, fell within the statutory requirement. The making of the application constituted a “suit or action”: JA Pye v Graham [2000] Ch 676 distinguished. The relevant date was that on which the application was entered on the day list at the Land Registry since that was the day when the applicant took the formal step that might initiate a judicial determination if the application were disputed and the matter were then referred to the adjudicator. If the application were successful, either because it remained undisputed or because, although disputed, the applicant eventually succeeded, then the easement would be registered from the date of entry on the day list. The applicant had made out its case for the right of way on the evidence. It was entitled to a right of way for all purposes and at all times over the track with or without vehicles for the purposes of access to and egress from the farm. Stephanie Tozer (instructed by Ellisons Solicitors, of Colchester) appeared for the applicant; Patrick Ellum, solicitor advocate, of Ellum LLP appeared for the respondent. Sally Dobson, barrister