Property Point Ltd v Kirri

Right of way – Turning of vehicles to access garage – Respondent claiming such right by prescription and registering entry against title to appellant’s land – Whether right capable of being acquired by prescription – Whether change in route of access to servient land preventing establishment of necessary period of continuous user – Appeal dismissedThe respondent was the freeholder of a north London house and garage that she had acquired in 1982. The appellant purchased adjacent land in 2006. The appellant’s land included part of an alleyway that ran alongside the respondent’s property and a further area referred to on title plans as the “yellow land”. Until 2001, the respondent and her family had used the alleyway to gain access to their garage and to receive deliveries. They had also used the yellow land for turning vehicles so that they could reverse them into the garage. In 2001, another adjacent landowner had erected a hoarding along the alleyway for part of its length, barring direct access from the alleyway to the yellow land. Thereafter, the respondent took a more circuitous route to reach the yellow land, first along the alleyway and then across a third-party’s land. The hoarding was removed in 2006.In September 2006, the respondent registered an entry against the appellant’s title, recording a prescriptive right of way over its land. The appellant applied to the Land Registry for the removal of that entry; the respondent objected and the matter was referred to an adjudicator under section 73(3) of the Land Registration Act 2002. The adjudicator found that the right of way was established and refused the appellant’s application.Leave to appeal was given, confined to whether the necessary 20 years’ continuous user could be established where the means of access to the yellow land had changed in 2001. The appellant contended that: (i) the right claimed was not an easement known to law; (ii) owing to the different route and the different manner of usage of the yellow land after 2001, the periods of use before and after that date could not be combined to make up the necessary 20 years; and (iii) an easement could not be established where, since 2001, the claimed right of way had required access across intervening property of a third party over which the respondent had no right.Held: The appeal was dismissed. (1) The easement claimed by the respondent could have arisen either under the principle of lost modern grant or under the Prescription Act 1832. When determining whether a prescriptive easement had arisen, the court needed to consider the nature, extent and purpose of the usage that established the right by prescription. The grant that was deemed to have been lost was taken to be co-extensive with, but not more burdensome to the servient tenement than, that usage. The right claimed by the respondent was effectively a right to enter for the purpose of turning vehicles to reverse into her garage. The purpose and nature of the claimed easement was clearly defined and easily understood. There was no reason in theory why a right of way should not be established for that defined purpose. Such a right was known to the law; it was not so burdensome as to sterilise the servient land. No specific part of the yellow land had been used for the purpose of turning vehicles, and the appellant could build on that land so long as sufficient space was allowed for a normal-sized vehicle that was parked in the garage to turn on the remainder of that land: Wimbledon and Putney Commons Conservators v Dixon (1876) LR 1 Ch D 362 applied; Batchelor v Marlow [2001] EWCA Civ 1051; [2003] 1 WLR 764 distinguished. There was nothing in a right of way to turn vehicles that made it inappropriate for acquisition in a north London suburb as opposed to less built-up and highly populated areas. Such a right was particularly important in the confined spaces often found in large conurbations, making it more likely to be needed in such an area: Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620 considered.(2) ) In determining whether an easement had arisen by prescription, the question was whether the yellow land had been used for the right of way for the entirety of the required period. The actual user of the yellow land was relevant, not the route by which that servient land was entered. The change of route was therefore irrelevant: Davis v Whitby [1973] 1 WLR 629 applied.(3) Although the respondent had accessed the yellow land across third-party land from 2001, that did not prevent a right of way from arising. There was no authority under which the absence of an enforceable legal right to use the intervening land was a barrier to the establishment of a right of way: Todrick v Western National Omnibus Co Ltd [1934] 1 Ch 561 and Pugh v Savage [1970] 3 QB 373 considered. Since users were able to pass over the third-party land as a matter of fact, that was enough to establish the required usage. Furthermore, the use of the yellow land for the turning of cars was sufficiently connected with the enjoyment of the respondent’s property and for its benefit.James Harris (instructed by Protopapas Solicitors) appeared for the appellant; Joanne Wicks (instructed by David Vlahos Solicitors) appeared for the respondent.Sally Dobson, barrister