Right of way disputes are amongst the most common for a property practitioner, but they can be complex and give rise to heavy evidential burdens in preparing cases. As to this, 2024 saw a number of involved cases reaching the databases, and notably the multi-week High Court proceedings, with dozens of witnesses, in South Tees Development Corporation v. PD Transport Limited [2024] EWHC 214 (Ch). One repeated subject, crudely alluded to in the title of this article, is the impact of signage on the ability or otherwise to acquire a right of way by prescription.
This edition of the Lay of the Land is intended to delve a little into issues arising in right of way litigation, viewed through the prism of 2024 decisions.
Excessive user of an easement
This contention is perhaps typically in the reserve armoury of a disgruntled servient owner. As to it, it will be recalled that Jelbert v. Davis [1968] 1 WLR 689 reinforced the prospect, in certain circumstances, of a servient owner who is overburdened being able to limit or restrain the full extent of the dominant owner’s use. (In Bee v. Thompson [2010] Ch 412, the Court of Appeal referred, in a similar way, to how grants of rights of way were not “unlimited”, and notwithstanding reference to “all purposes”. They would not extend to “the point of an unreasonable level of interference with the rights of the servient owners to their property and to use [of] the way in common”).
Such an attempt at restraint was made, unsuccessfully, in Merlin Real Estate Limited v. Balaam, a decision of the County Court cited in the new edition of Gale on Easements. In that case, the development of neighbouring land to the defendants’ land had meant that there were some 29 new houses in existence, with planning permission anticipated for a further 8 properties. The defendants owned a farm, and between the farm and the housing development was a lane. This was in their ownership and deployed also for their purposes, but was subject a right of way which had been granted in foregone years to the predecessors-in-title of the developers. There were no restrictions on user, and the terms of the grant had been general.
HHJ Walden-Smith confirmed in those circumstances that the right of way could be exercised for purposes other than those which had been required at the time of the grant. In particular, this included for purposes of accessing various residential properties. This trite proposition was subject only to the limitation of civiliter, meaning reasonably and with the least burdensome deployment of the servient tenement.
On the facts, the evidence was simply not strong enough to support the allegation of excessive use (or, if put another way, breach of the civiliter principles). In particular, photographic evidence of various vehicles on the lane had shown how they had often been able to pull in on verges or in passing bays, so as to enable the continuing passage of the defendants’ farm vehicles (preventing any obstructions).
The case serves as a useful reminder of the strictness with which claims to excessive use may well be treated, at least in the case of widely drawn grants.
Grass verges beside roadways
Merlin is also useful for the court’s conclusion that the grant of the easement had expressly (on its true and contextual construction), or else impliedly, incorporated the right to use the verges and passing places as much as the made-up lane itself. As it was put, “Given that this single-track roadway is of a length that … does not allow for users to simply wait at one end or the other and [that] inevitably … the users of the roadway respectfully pull into the side … it is more likely than not that in granting the right of way over the roadway, it was part of the grant that the users would be permitted to pull into the sides (i.e. the grass verges) to enable vehicles to pass … Without a right to pass each other along the roadway, the right to use the roadway as expressly granted could not be reasonably exercised”.
The question of whether verges are incorporated is a case-specific one, but it is nevertheless of note that (at least when they were not specifically excluded) the practical utility, or even practical necessity, of their incorporation into the grant was such as to lead to the clear conclusion that they were part of the right of way/servient land.
Implication of easements
South Tees was a mammoth piece of litigation, involving numerous complex contentions of easements (or of lack of them), over a vast former industrial site near Middlesbrough. One issue was as to whether a conveyance in 1974 impliedly permitted a certain deviation of route which had come into operation – a change which, whilst likely pursuant to agreement between relevant parties, could not be proven to have been, and which had not been the subject of any deed of variation of the original grant.
It was therefore alleged that the original conveyance impliedly authorised the varied route. In particular, it was said, the operation of the rules for the implication of terms, as per Marks and Spencer Plc v. Paribas Securities [2015] UKSC 72, enabled that conclusion. Further, it was suggested that those rules have been represented, in the context of easements specifically, through the discussion of Lord Parker in Pwllbach Colliery Co. Limited v. Woodman [1915] AC 634. There, the court had spoken of the implication of easements “where the … right in question is necessary for the enjoyment of some other right expressly granted”, as well as where it is necessary to “give effect to the common intention of the parties”.
Rajah J acknowledged that these categories, judged in isolation, could well have supported the implication of the easement. He nevertheless dismissed the claim, holding that the tests in Marks and Spencer could not be made out. In particular, the original grant had appeared deliberately to limit the operation and route of the way, such that it was “impossible to say that it is obvious that the parties intended British Steel to grant a right of way over the rest of the route by this document” (emphasis original).
This appears to be an endorsement of the interpretation of deeds which does not treat grants of easement as involving any special class, or as governed by discrete principles, when considering whether easements arise by implication from them. As it was put, “an application of the principles in Pwllbach should not be allowed to detract [or distract] the court from the primary exercise which it is undertaking, namely ascertaining the meaning of the document to a reasonable person, including the implication of terms a reasonable person would conclude that the parties must have intended to include in it. No doubt most circumstances which fall into one or other of the two heads referred to by Lord Parker will also satisfy the ordinary rules of construction. But it is possible there will be cases where they do not. It seems to me that this is one such case”.
Signs precluding (or not) the acquisition of prescriptive easements
2024 was notable for at least three cases in which a key issue was as to the impact of signage upon claims to a prescriptive easement. These took various different turns.
Firstly, in South Tees it was alleged, unusually, that signs were relevant to whether the use of the roadway had been by permission (as opposed to by force). For the usual relevance of signs is instead to the allegation that the use had been contentious, or by force, in the sense that it was being complained of at the time. However, that plea had not been made by the alleged servient owner. As respects its case on permission, it was instead suggested (perhaps somewhat optimistically) that a sign saying “Private Road: No unauthorised vehicles beyond this point” impliedly authorised certain vehicles (being the ones which were not “unauthorised”), and so as to mean, in turn, that their presence had been by permission and could not have led to any prescriptive easement. Rajah J was quick to dismiss that contention. As he confirmed, these were “completely prohibitive signs”, which “do not purport to confer permission on anyone”.
Returning to cases on use ‘by force’, two Upper Tribunal decisions in quick succession gave rise to opposite outcomes. In Nicholson v. Hale [2024] UKUT 00153 (LC), Edwin Johnson J, the Chamber President, opted for what might be supposed the simplest result. A sign which described the land over which the right of way had allegedly been acquired as “PRIVATE PROPERTY”, which enabled “NO PUBLIC RIGHT OF WAY”, was treated as making the use contentious. It therefore precluded the acquisition of any easement. As he put it, “[w]hat has to be made clear is that the property is private and not to be used by others”. For “[i]f land is identified as private property, the message which this identification seems … to convey is that it is not open to persons other than the owner of the land and those authorised by the owner either to go on to the land or make use of” it. Furthermore, such a notice was not to be taken as not preventing, or as not rendering contentious, any private pursuit. It would instead be “wrong to treat the reasonable user as taking the wording to mean that, while no public right of way existed, the exercise of a private right was not prohibited”.
Very shortly afterwards came Sagier v. Kaur [2024] UKUT 217 (LC), in which Anya Newman of the St. Philip’s Real Estate Team appeared. Martin Rodger KC, the Deputy President, distinguished the earlier judgment. He did so in a case in which the road over which the right was being asserted was, itself, a private one. By this it was meant not only that it was private land but an unadopted roadway. The signs in question had stated: “No public right of way”. The tribunal concluded that, in the context of a private road, the assertion that there was to be no public right of way could have been addressed as much to the public at large as to the purported dominant owners, who themselves owned houses on the road and who had been crossing over the subject land. Therefore, the reasonable reader in their position would not necessarily have understood the signs to have been addressed to their use of the land, as opposed to that of general members of the public (whose use would have been objected to, lest the private road should have acquired public rights over it). Accordingly, the signs had not precluded the acquisition of private prescriptive rights by those who owned houses on the road.
It would appear, however, that Sagier was very much a case on its own facts. The general import of Nicholson is that a sufficiently clear sign objecting to the presence of persons on land, whether or not in pursuit of ‘public right’, will be capable in most cases of preventing the acquisition of a private right because of the general implication of the message – i.e. that all (unauthorised) access is prohibited.
