Estate of Llewellyn (deceased) and another v Lorey and another

Easement — Right of way – Prescription – Respondents owning farm with access over appellants’ land – Respondents having right of way for agricultural and associated purposes but wanting to use it for commercial purposes — Respondents claiming use of route for business purposes – Appellants’ predecessor renting land to tenant at material times — Whether judge erring in law in finding respondents having established right of way for commercial purposes In 1983, the respondents purchased a farm with 266 acres of land, part of which had been used as a colliery between 1931 and 1960. One of the access routes to the farm (the southern route) crossed land that the appellants had owned since 2002. The respondents had the benefit of a full right of way over the southern route for agricultural and for associated or ancillary residential purposes. However, they wanted to operate a tipping business from the farm, the viability of which depended on establishing a vehicular right of way for commercial purposes over the southern route. A dispute arose as to whether the respondents’ right of way extended to commercial use. From 1984, the respondents’ son (S) had operated a business from the farm. The appellants’ predecessor had let the land to a tenant (G) between 1965 and 1992, who was resident on the land at the time S had started his business. Thus, the court had to decide whether the respondents had shown 20 years’ use of the southern route such that the tests for prescriptive acquisition of a right of way for commercial purposes were satisfied. The earliest relevant date for prescriptive use in respect of the colliery use was 1954. The judge found that the respondents had shown such use because the colliery had been open between 1954 and 1960 and it was likely that, since then, red ash had been commercially exploited from the colliery until the end of the 1970s using the southern route. Moreover, S had used that route for at least 20 years in connection with his business. Accordingly, the judge concluded that the respondents were entitled to exercise a right of way over the appellants’ land for commercial purposes. The appellants appealed, raising questions as to whether: (i) the colliery had been in continuous use from 1954 for 20 years; and (ii) the appellants’ predecessor could have prevented the use of the southern route.Held: The appeal was allowed. (1) The judge had wrongly held that the southern route had continued to be used in connection with the colliery waste from 1960 to the late 1970s. There was no evidence of any removal of red ash from the site until the 1970s. Materials had been stored on site in the late 1960s, but there was no evidence that they were brought to or taken away from the site by way of the southern route. When the colliery closed in 1960, all that remained were some machinery, buildings and three tips of colliery waste. There was no need for continuing operations of any kind, except in respect of the waste. There was no evidence that anything was done with that waste until, at the earliest, 1967, and there was good reason to suppose that nothing was done with it for another five years. Moreover, there was no evidence that this would have involved the use of the southern route before the 1970s. Accordingly, the evidence did not justify a finding that that use had existed before 1970 at the earliest; the colliery use was therefore insufficient to make out a prescriptive right of way: Hollins v Verney (1884) LR 13 QBD 304 considered.(2) The principle behind a prescriptive acquisition of a right of way was that if for many years the use of the land was of a kind that could constitute an easement, but no express grant of such an easement could be proved, the law could presume such a grant, in order to ascribe a lawful basis to the lengthy use. An essential element for such a presumption was that the freehold owner of the land knew or was taken to have known of the use and was able to prevent it if so wanted. Only in those circumstances could it be regarded as having acquiesced in the use, so that it was proper to attribute it to a presumed grant. The same principles applied whether one was considering prescription under the Prescription Act 1832 or by way of lost modern grant. The only difference, with regard to the instant case, was whether the use had been continuous up to the start of the proceedings, in which case the Act could be used; or if not, lost modern grant would be the available principle. If the respondents could have shown 20 years’ use that satisfied the relevant tests up to 1960, it would have made no difference if the southern route had not been used thereafter. Mere failure to use an easement once established was not an adequate basis for treating the easement as lost: Pugh v Savage (1970) 213 EG 1535 and Williams v Sandy Lane (Chester) Ltd [2006] EWCA Civ 1738; [2007] 1 EGLR 10; [2007] 07 EG 144. In the instant case, there was no evidence that the appellants’ predecessor had any knowledge of S’s use of the southern route for his business. The existence of the tenancy when S’s use started in 1984 was fatal to the claim that the use satisfied the test for prescriptive use at that time. The period thereafter was too short for the acquisition of a prescriptive right of way. Accordingly, the respondents had failed to establish a vehicular right of way over the southern route for commercial purposes.Vivian Chapman QC and Edward Hewitt (instructed by Edward Harris Solicitors, of Swansea) appeared for the appellants; James Thom QC and John Brookes (instructed by Watson Farley & Williams LLP) appeared for the respondents.Eileen O’Grady, barrister