Area(s) of Law :
Source : EWCA Civ 1712
J tenant and appellant (A)- C freeholder and respondent (R)- block was a building in multiple occupation, for purposes of Part XI Housing Act 1985- A had right (in common with other long leaseholders) to access to bins at rear of block- local authority served notice on R under s.352 of the 1985 Act, requiring various works- works included erection of a wall which blocked A’s access to the bins- R did not appeal against the notice- A did not notify local authority that the works would obstruct a right of way- A sought declaration confirming her right of way, and injunction- CJ dismissed claim on basis that right of way had been extinguished – J dismissed A’s appeal- further appeal:-
Held: Appeal dismissed. The s.352 notice imposed a statutory obligation on R to carry out the specified works, including the erection of the wall. It followed that he had a statutory power to do so. The performance of that statutory obligation did not however, have the effect of extinguishing A’s rights once and for all. There was a practical possibility that at some time during the remainder of the term granted by the lease there would no longer be any statutory impediment to the exercise of A’s rights and that they might once again become exercisable. In carrying out the works required by the s.352 notice R committed no actionable wrong against A (whether in contract or otherwise). The fact that in erecting the wall R was discharging a statutory obligation was a complete.
The appellants (W and H) appealed against an order dismissing their claim for declarations that they were entitled to rights of way over neighbouring land in the ownership of the respondent company (S). W and H appellants (A)- owned the property since 1975-t rack from land to back garden across property formerly owned by Council- Council sold land to S (Respondents) in 2003- R wanted to erect houses on land- A sought declarations that they were entitled, by virtue of a lost modern grant, to use the track- also sought an injunction restraining R from erecting any building on the track or otherwise interfering with the exercise of those rights- track formed part of both primary route and secondary routes claimed as rights of way by A-. secondary route had been used by the former owner of A’s property between the 1950s and 1975 but ceased in 1976 when A had moved the back door of property, erected a fence and carried out earthworks near the part of the track that formed the secondary route. In 1984 A wrote to council opposing the development of the land north of the property on basis that the occupants had used the land since 1947 and so acquired an easement over it. In 1974 A had taken over a business carried on at a boathouse that was let under a tenancy agreement dating back to 1908 Council and included a right of way along part of the track- claim in relation to the primary route relied on acquisition by way of prescription and the claim in relation to the secondary route was based on uninterrupted use J decided against A on both issues. Appeal:-
(1) In relation to the primary route, the questions for the court were whether the Council had knowledge that the primary route was being used to gain access from the track to the property of A and whether the Council was in a position to prevent that user. The presumption or inference of a grant, to which it was claimed the long uninterrupted use of the right claimed could give rise, was a grant by the freehold owner. Had a tenancy been in existence at the beginning of a period of use it would be unreasonable to imply a lost grant by the owner, as he might not have been able to stop the user even if he had known of it. Whether or not there was a tenancy of the land immediately to the east of the boathouse, and whether or not the terms of that tenancy were such that the Council could have prevented use of that land in conjunction with the primary route, there was no doubt that the Council could have prevented use of the track for that purpose. The Council’s knowledge of the use was to be imputed following receipt of A’s letter in 1984. The judge’s conclusion that the Council had not acquiesced in the user of the primary route was therefore wrong.
(2) Evidence of non-use alone was not sufficient for the presumption of abandonment, there had to be intention to abandon on the part of the owner. The question for the court was whether the judge had been entitled to infer that W and H had intended to give up their right to use the secondary route. The judge’s conclusion (that there had been abandonment) had essentially rested on the fact that A had fenced their land so as to obstruct the right and the fact that they had carried out earthworks that made walking along the path difficult if not impossible. However, the evidence suggested that that fence was insubstantial and there was no reason to think that if A had wanted to remove it in order to use the secondary route it would have caused them any difficulty or even expense. Further, the evidence was that the earthworks made use of the secondary route more difficult but not impossible. The Judge had taken into account matters that were incapable of supporting the inference and had come to the wrong .
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