England and Wales Land Registry Adjudicator

 

REF/2011/0420

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN:-

 

Wilkin & Sons Ltd

 

APPLICANT

 

and

 

Agricultural Facilities Ltd

 

RESPONDENT

 

 

Property Address: Land and Buildings At Bounds Farm, Goldhanger, Maldon CM9 8AX

Title Number: EX779118

 

 

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

 

 

Sitting at: Ipswich Magistrates Court

On: Monday 16 ^th, Tuesday 17 ^th and Wednesday 18 ^th January 2012

 

 

Applicant Representation: Ms Stephanie Tozer, of Counsel, instructed by Ellisons Solicitors

Respondent Representation: Mr Patrick Ellum, Solicitor Advocate, of Ellum LLP

 

 

DECISION

 

 

KEYWORDS: Right of way over track by prescription at common law - user as of right; doctrine of Lost Modern Grant - Prescription Act 1832 ss.2, 4 - whether reference to the Adjudicator constitutes a “suit or action” for the purposes of s. 2 - whether such right is at all times and for all purposes – Land Registration Rules 2003 Rule 73(A)

 

Cases referred to: Tremayne v English Clays Lovering Pochin & Co Ltd [1972] 2 All ER 234; Tickle v Brown (1836) 4 Ad & E 369; Gardner v Hodgson’s Brewery Co Ltd [1903] AC 229; Brown v Collins and Others REF/2009/1013 ALR 4/7/11; White v Taylor (No 2) [1969] 1 Ch 160; Hollins v Verney [1884] 13 QBD 304; Williams v Sandy Lane (Chester) Limited [2007] 1 P&CR 27; Mills v Silver [1991] Ch 271; Woodhouse v Kirkland [1970] 1 WLR 1185; Smith v Brudenell-Bruce [2002] 2 P & CR 51; J. A. Pye v Graham ([2000] Ch 676

 

THE APPLICATION

1.                   Wilkin & Sons Limited (“the Applicant”) is the registered freehold proprietor of land and premises known as Bounds Farm, Goldhanger, Maldon, Essex registered at HM Land Registry under title number EX779118 (“Bounds Farm”). Agricultural Facilities Limited (“the Respondent”) is the freehold owner of adjacent property to Bounds Farm known as Gardeners Farm, Maldon Road, aforesaid, registered at HM Land Registry under title number EX819645 (“Gardeners Farm”).

 

2.                   By an application (“the Application”) made in Form AP1 to HM Land Registry dated 28 ^th January 2011 the Applicant claims to have acquired a right of way with or without vehicles over a lane (“the Track”) leading from the highway known as Maldon Road in order to gain access to and egress from Bounds Farm. The Track lies at the western edge of a parcel of land referred to in the proceedings as Lot 5 (“Lot 5”) and which forms part of Gardeners Farm. Lot 5 is identified as such on a plan drawn up in 1990 by Messrs Strutt and Parker included in sales particulars of Gardeners Farm prepared by them (“the Sales Particulars”). The Track bears its own field number, namely OS 5233 (“OS 5233”), and Lot 5 comprises 2 fields OS 5936 and 7242. The claim is based upon prescription and/or under the doctrine of Lost Modern Grant.

 

3.                   The Application is supported by the statement of Mr Peter John Wilkin made on 19 ^th January 2011. The Track is shown tinted yellow on the plan exhibited to that statement. It is also supported by the statutory declaration made on 15 ^th November 2002 of Mr John Wilkin (now deceased) who was the father of Mr Peter John Wilkin, together with statements made by Mr Michael Philip Bragg dated 19 ^th January 2011, and Mr Christopher Worth Newenham dated 24 ^th January 2011 . For the purposes of this decision I shall refer to the site plan (“the Plan”) prepared by the Applicant on which the Track is coloured yellow leading southwards from Maldon Road marked at point G.

 

THE HEARING AND FINAL SUBMISSIONS

4.                   Between 16 ^th and 18 ^th January 2012 the hearing of this case took place at Ipswich Magistrates Court. This had been preceded by a site view held in the morning of the first day. Both sides called eleven witnesses in total. At the close of the Respondent’s evidence, it transpired that Mr Ellum had not completed his notes for his oral submissions. The question then arose as to how the case should proceed and whether or not closing submissions should be in writing rather than made orally in order to accommodate this. I gave directions to the effect that written submissions should be made and that such submissions should be made sequentially on the basis that the Respondent should file and serve his final written submissions on or before 27 ^th January 2012, and that the Applicant’s response should be filed and served on or before 6 ^th February 2012. Following this on 13 ^th February 2012 Mr Ellum made an application for leave to make further written submissions in reply to the Applicant’s final submissions. Ms Tozer’s response to this was made on 16 ^th February 2012. On 24 ^th February 2012 I handed down a Decision the effect of which was I rejected Mr Ellum’s application to make further written submissions, for the reasons stated therein. That decision has not been the subject of an appeal.

 

THE BACKGROUND

5.                   The Track is an unmetalled roadway running from Maldon Road at its northern end in a southerly direction over Lot 5 for approximately 200 yards until it reaches an orchard of apple trees (“the Orchard”) which lies immediately to the south of Lot 5 as indicated on the Plan. The Orchard forms part of Bounds Farm. There are hedges and ditches running along both sides of the Track the surface of which appears to be some form of hardcore although it has been referred to in the evidence as a “rubble” surface. Until more recently there were no gaps in the hedges on either side of the Track. At its northern end there has always been some form of gateway system (at least probably since the early 1950s) across the entrance to Maldon Road. At the southern end of the Track the double gateway which currently exists is of much more recent origin, the entrance to the Orchard historically always having been open at the southern end of the Track. Situated to the south of the Orchard are two irrigation reservoirs one of which has been regularly used for fishing since 30 ^th April 1992 when the Colchester Police Angling Club (“the Angling Club”) was originally granted a fishing licence. To the southeast of the Track and forming part of the land known as Bounds Farm is Bounds Farmhouse and the track has also been used to access the Farmhouse. I shall refer to the apparent use of the Track by various people and vehicles, including the angling members of the Angling Club, in some detail later in this Decision.

 

6.                   The Applicant’s claim is put on alternative bases:-

(1)                Under the doctrine of Lost Modern Grant

This claim is pleaded at paragraph 3 in the Applicant’s Statement of Case. This states that –

“For a long time, namely for twenty years and upwards prior to March 2010, the Applicant’s predecessors in title and, since 1923 the Applicant, have by virtue of a deed of grant (which deed has since been lost or destroyed by accident) made unto them by the predecessors in title of the Respondent who were then seised in fee simple of the Respondent’s land enjoyed the rights hereinafter set out in and over the Respondent’s land.”

 

(2)                Under the Prescription Act 1832 (“the 1832 Act”)

The claim under the 1832 Act is pleaded at paragraph 4 of the Applicant’s Statement of Case. This states as follows:-

“Further, or alternatively, the Applicant has for the full period of twenty years next preceding the making of the Application enjoyed as of right and without interruption the rights hereinafter set out in and over the Track.”

 

THE RESPECTIVE CASES FOR EACH PARTY

7.                   Although a considerable body of factual evidence was given, the essence of the respective cases presented by each party was relatively straightforward both legally and factually.

 

Summary of the Applicant’s case

8.                   The Applicant contends that it is entitled to succeed on either or both claims based upon the doctrine of Lost Modern Grant and/or the 1832 Act. In essence the Applicant claims that since at least 1987 (and probably since the early 1920s) there has been continuous user of the Track; that user was by a variety of persons including employees, licensees, seasonal workers and contract farmers; that the user was as of right i.e. nec vi, nec clam, nec precario, and in that context the Applicant was never granted permission by the Respondent or its representatives, as alleged. It is also contended that the start date for the requisite period of twenty years in September 1987 is the correct date despite the fact that the servient land was let to a Mr Eaton from September 1987 to September 1990.

 

9.                   To address the factual basis of the Applicant’s claim it is therefore necessary to analyse the use and maintenance of the Track by various persons from 1987, and also to have regard to the significance, or otherwise, of the installation of a number of successive gates at the northern end of the Track where it meets Maldon Road.

 

Summary of the Respondent’s case

10.               On 1 ^st October 1990 the freehold of Gardeners Farm was purchased by Mr and Mrs Creighton. Subsequently, as Mr Creighton put it, in 2008 he “lost the farm” as a result of divorce from his wife and a serious downturn in business. Gardeners Farmhouse was sold separately but most of the farm land was bought by the Respondent company who continued to employ Mr Creighton as the farm manager. For the purposes of this case Mr Creighton is the alter ego of the Respondent and gave extensive evidence on its behalf. No other representative of the Respondent appeared to give evidence.

 

11.               The basis of the Respondent’s case is that the Track was substantially unused and no real sign of usage was ever noticed by Mr Creighton, or any person on behalf of the Respondent. Permission was sought from Mr Creighton by the Angling Club to use the Track for access to go fishing but no permission was granted to the Applicant or any other party for any other purpose, save that permission was granted to the Applicant on two separate and discrete occasions in 1998 and 2002 for agricultural purposes. Essentially the Respondent contends that there was little use made of the Track throughout the period from 1990, and that such use as did occur was with the consent of Mr Creighton and subsequently the Respondent. In short there is no evidence to support the Applicant’s case as to the acquisition of prescriptive rights over the Track. The point is also made that no prescriptive rights could have been acquired in any event during the tenancy of Gardeners Farm between 1987 and 1990.

 

THE EVIDENCE

12.               As the witnesses were the subject of some lengthy cross-examination it is necessary to set out the evidence given in the case in some detail. Two main areas were the subject of (sometimes contentious) investigation during the course of the evidence, namely (1) the actions taken to install and replace gates at the northern end of the track, together with the provision of various padlocks and combinations thereto for the benefit of various persons, or not, as the case may be; (2) the use made of the Track by various persons and vehicles and whether such use was as of right.

The Applicant’s evidence

13.               The evidence given on behalf of the Applicant was provided by the following live witnesses: Mr Peter Wilkin, the Chairman of the Applicant Company; Mr George Vaughan Bunting; Mr Nigel Gordon Smith; Mr Michael Philip Bragg; Mr William Walsh; Mr Peter Richard Eaton; Mr John Peter Rose, and Mr Christopher Worth Newenham. Witness statements were also provided by Mr David William Hunter and Mr Thomas Malcolm Howie, but neither person attended to give evidence as their evidence was unchallenged. I have also made reference to the statutory declaration of Mr John Wilkin made on 15 ^th November 2002 which provided support for the Application.

 

Mr Peter John Wilkin

14.               Mr Wilkin is the Chairman of the Applicant Company. Bounds Farm was acquired in 1923 by his grandparents i.e. the parents of John Wilkin (deceased) who made the Statutory Declaration in support of the Application, to which I have referred above. It has remained in the ownership of the Company ever since. On 24 ^th June 1966 Mr Peter Wilkin was first employed by the Applicant to assist with the managing of Bounds Farm, in particular the fruit production. Mr Wilkin stated that following the acquisition of Bounds Farm by the Applicant in 1923 it has not changed materially in size or use, the dominant use being fruit production. However, over the last decade the value of the Farm’s output has increased considerably with the intensification of fruit production. Further, since 1923 the farm house at Bounds Farm has always been occupied by members of the Applicant, the latest change of occupation occurring late in 2008 when Mr Newenham (who is the current Farm Director) took occupation.

 

15.               Use and maintenance of the Track - Mr Wilkin confirmed that in his management role he visited Bounds Farm by car on most days during the course of his employment. Generally he used the main entrance the access being by means of Maldon Road, but he also used the Track. Between October and March in each year he used the Track for access to and egress from Bounds Farm on average once or twice per month. During the summer months (April to September) he used it more frequently, being some four or five times per month. He said that he also used it occasionally on foot when game shooting. However, once he became the Chairman of the Applicant in 1987 he was less involved with the direct management of the Farm and his visits to the area of the farm where the track is situated gradually reduced. His evidence is of importance as his knowledge of the use and maintenance of the Track pre-dates his new role as Chairman of the Company in 1987, and this evidence was not challenged in cross-examination.

 

16.               Mr Wilkin also stated that the surface of the Track is formed of rubble pressed into the ground surface and there are hedges and ditches running along both sides. Employees of the Applicant have always maintained the Track, trimmed back the hedges, kept the ditches clear and periodically mowed the surface of the Track in order to reduce any growth which may have occurred through the surface.

17.               In 1979 the Applicant Company started a small caravan park on the Orchard for use by fruit pickers. Touring caravans were driven and left there from June to September in each year and in which the fruit pickers resided. The Track was used as the main route to and from the Orchard on a daily basis. Such use by the caravanners of the Track continued until 2004 when the site was closed.

 

18.               Mr Wilkin also referred to the fact that a water main was put in by the Applicant under the surface of the Track in 1979 in order to service the caravanners, and a standpipe was installed on the Orchard, the position of which was identified to me on the site view. He stated during the course of his cross examination that no one objected to the water pipe being installed and that “we just did it”.

19.               Mr Wilkin further stated that employees of the Applicant also used the Track in order to collect and transport diesel from a diesel tank serving the pump in the reservoir situated to the south of the Orchard. He stated that this has to be done once every second day in the summer months between April and September, and this arrangement has continued since 2004 until prevented from doing so by the Respondent locking the gate in March 2010. Mr Wilkin also made reference to the fishing licence which was granted to the Angling Club on 30 ^th April 1992. The terms of this agreement specifically identify the Track as being the method by which access could be gained by the anglers to the reservoir on the land situated to the south of the Orchard. He said that this occurred more or less every week. He stated that the farmer who farmed the arable land included within Bounds Farm had always also used the Track annually for two to three days non-stop when harvesting with combined harvester and tractors.

 

20.               The Gate - Mr Wilkins asserted that as long as he had used the Track there had always been a gate at its northern end where it meets Maldon Road, this being secured with a padlock. The lock was changed from time to time and with no objection or comment from any third parties, to his knowledge. However, he said that the gate was left open during the months that the caravanners lived in the Orchard i.e. between June and September in each year.

 

21.               Finally, Mr Wilkin made reference to the Sales Particulars of Gardeners Farm prepared by Messrs Strutt and Parker in 1990 where reference is made in the following terms.

 

“In respect of Lot 5 subject to a Right of Way over the Chase [the Track] forming OS number 5233 in favour of the land to the south.”

 

He contended that this is a clear acknowledgement of the existence of a right of way along the Track.

 

22.               In short, although challenged on some of the factual matters, Mr Wilkin was clear that until such use was terminated in March 2010 the Track had been used to his knowledge for the purposes he identified since June 1966, such use having diversified with the commencement of fruit picking from 1979, and the use by the Angling Club for fishing purposes.

 

Mr George Vaughan Bunting

23.               Use and maintenance of the Track - Mr Bunting lives at Cobbs Farm, Maldon Road, Goldhanger. This lies directly opposite to the entrance of the Track which he has always known as “Green Lane”. He was born at Cobbs Farm and has lived there all his life. He stated that he is familiar with the Track which he and members of his family have used for as long as he can remember. For instance, when he was a child his mother, father, grandparents, sister and himself used the Track to walk their dog at least once per week. He also recalls when he was a child his father telephoning the late John Wilkin to ask if he could drive down the Track to the southern end and park there and walk across Bounds Farm to the Blackwater estuary. He also remembers that during the 1980s (when his own children were small) in addition to dog walking, the family used the Track in the winter in order to access some earth mounds beside the reservoir for sledging by his children when there was snow on the ground. Mr Bunting further stated that over the years he had cleaned out the ditch on one side of the Track with a JCB digger, the last time being in the mid 1990s when the ditch on the east side was thoroughly cleaned out and enlarged. His knowledge of the Track and its use therefore pre-dated 1987.

 

24.               Mr Bunting further stated that from about 2005 to 2009 his nephews used one of his tractors and his mower to cut the grass at the Goldhanger Sailing Club on the south east of Bounds Farm, and used the Track for the purposes of taking the tractor and mower each time. This use was generally weekly in spring and fortnightly in summer. Consent to this activity was obtained from Mr Newnenham of the Applicant Company. Mr Bunting stated that other than this particular consent, he had never sought or been given consent to use the Track from anyone else, and had never used it secretly or with force.

 

25.               Mr Bunting said that the arable land was farmed by a local farmer, Mr Jim Ashcroft, for about ten years, and he would take his combine harvester across Cobbs Farm, and then across Maldon Road and then down the Track. Mr Ashcroft’s grain trailers also used the Track to get to and from Maldon Road. Mr Bunting stated that he had seen the Track used by caravanners employed to pick fruit at Bounds Farm by the Applicant during the fruit picking season. Mr Bunting said that the surface of the Track was grass, but “firmed up” with some rubble from time to time and has always been passable with vehicles and on foot.

 

26.               The Gate – Mr Bunting further recalled that during the late 1960s a gate was erected at the northern end of the Track by a Mr Alan Stadden (who was the then Farm Manager for the Applicant), together with Mr Bunting’s late father and Mr Leslie Speakman (who was then the tenant of Gardeners Farm). He said that all these people had keys to the gate at the northern end for access. Later the Applicant put in a wider access gate and latterly Mr Creighton of the Respondent has installed a double wooden gate to which no key has been provided.

 

27.               Mr Bunting also confirmed that three gates had been installed across the northern end of the Track at various stages. The first was an 8 foot wide wooden gate put in in the 1960s to stop courting couple, as he put it. The second gate was put in in the 1990s which was a wider access and made of metal and was installed by Mr Wilkin of the Applicant. These remained until the present double gate system was installed by the Respondent at about the time when various buildings were erected at the southern end of the Track at its eastern side.

 

Mr Nigel Gordon Smith

28.               Mr Smith has been employed by the Applicant since 1973. From about 1981 until 2001 he was the Farm Manager for the Applicant’s farms including Bounds Farm when Mr Newnenham took over. At that point he became the IT Manager which position he still holds. In his witness statement he sets out in some detail his historical knowledge of the area. In particular he refers to the Track and its use by himself and others including the angling members of the Angling Club since 1992, and the fruit pickers from between 1979 and 2004.

 

29.               Use and maintenance of the track – Mr Smith asserted that the Track has always been maintained by the Applicant until access was blocked by Mr Creighton in March 2010. Rubble would be rolled in by the Applicant’s employees to harden the Track if necessary and the hedges trimmed back on either side to ensure that caravans could pass through without damage, and to ensure that any obstruction was also removed from the ditches.

 

30.               In his evidence Mr Smith also stated that between 1979 and 2004 the fruit pickers employed by the Applicant stationed their caravans on the Orchard to the north of the reservoir and these caravans were there from June to September in each year. He stated that the caravanners used to tow their caravans along the Track as their main route in and out of Bounds Farm on a daily basis. They also used the Track as a pedestrian access. Although he was challenged on this Mr Smith stated that there were as many as 15 to 20 caravans on the land in each year, although he agreed in more recent years the number of fruit pickers declined. His knowledge of the Track and its use therefore pre-dated 1987.

 

31.               The Gate - As to the gate at the northern end of the Track he recalled that there was always a gate there to which he had a full set of master keys, and that the gate was deliberately left unlocked whilst the caravanners were on the farm during the fruit picking season. As to the anglers, he stated that much of the time a double lock was in use operated in conjunction with the Angling Club so that they could get access along the Track using their own lock and therefore did not need a key to the lock provided by the Applicant. He also stated that the gate was frequently open, although he did agree that there were times when he did find it locked.

32.               Mr Smith submitted that he never asked Mr Creighton or anyone else for permission to use the Track, nor did he ask for or ever receive a key from him, or anybody else. He said that he had never been unable to gain access when he needed to do so and that when the gate was locked at the northern end of the Track he always held a key without the consent of any third party. He confirmed that he never used the Track with force, secrecy or with consent.

 

33.               Computer records - Mr Smith also made a supplemental statement dated 11 ^th January 2012 in which he explains the contents of computer spreadsheets which appear in the trial bundle between pages 529 to 583. Summaries of these spreadsheets appear at intervals in the material. Mr Smith explains that to his knowledge since he became IT Manager in 2003 the Applicant has maintained a database of fruit pickers employed in each year on their two main farms at Tiptree and Bounds Farm. Those who worked at the Tiptree site bear the reference “TIP”, and those at the Goldhanger site have the reference “GOLD”. This database records the following - each employee’s year of service, earnings, picking number, address, car registration number (where appropriate), and the dates between which they were employed in that year and the number of years that they were so employed.

 

34.               However, of some importance is that there have been a number of further discoveries of relevant data. First, a file containing copies of spreadsheets for the years 2000 and 2001 has been recently located. The spreadsheets for those two years appear in the Bundle at pages 529 to 550, and pages 552 to 578, respectively. Secondly, Mr Smith has recently come across a copy of the 2005 database giving details of fruit pickers employed in 2004. This is summarised at page 579. Thirdly, as Mr Smith stated, on 9 ^th January 2012 he was able to convert files in the database for the years 1996 to 1999 into a readable form from a computer format which the Applicant no longer uses. For these years he has produced a further summary and these details are to be found as follows:- for 1996 see page 580; for 1997 see page 581; for 1998 see page 582 and for 1999 see page 583. He stated that he only listed those people found on the databases who are recorded as having worked and stayed at Bounds Farm.

 

35.               Although Mr Smith was challenged at some length on the authenticity and provenance of this material by Mr Ellum, for the Respondent, he was confident that the material was correct. He rejected the notion that these spreadsheets had in some way been falsified, as was suggested, and no proof was provided by the Respondent of these assertions. As Mr Smith indicated these documents provide in some detail the various people who over the years had come to stay on the Orchard at Bounds Farm, and had used the Track with and without vehicles, including towed caravans, for access to and egress from Maldon Road.

 

36.               Mr Smith’s evidence in relation to the number of caravans associated with fruit picking are as follows:

 

Date	No. of caravans	Page references
1996	23	Page 580
1997	14	Page 581
1998	16	Page 582
1999	11	Page 583
2000	13	Pages 529-530
2001	13	Pages 552-553

 

37.               The curiosity as to Mr Smith’s evidence is that (apart from the challenges made as to the provenance of the spreadsheets) it was largely unchallenged by the Respondent. The apparent purpose of Mr Smith being tendered to give oral evidence arose because Mr Ian Creighton of the Respondent was contending that the Applicant’s then Farm Manager at some stage after 1998 spoke to him and was asked whether he (Mr Creighton) -

 

“…would mind them occasionally using the Track. I did not mind for them to do so and I handed over a key for the gate lock so that they could let themselves in and out. For the next couple of years I kept receiving an occasional tray of strawberries and some jam, which I thought was a very nice gesture of them, considering that they hardly used it at all.” (See paragraph 17 of his witness statement.)

 

38.               When asked in cross examination about this alleged conversation, in his capacity as the Farm Manager at the time, Mr Smith denied that any such conversation had ever taken place with Mr Creighton, although he recalled once that he might have spoken to him but not in the vein alleged. He also could not recall Mr Creighton going to the same school, as was asserted by Mr Creighton during the course of his evidence.

Mr Michael Philip Bragg

39.               Use and maintenance of the Track - Mr Bragg is a farm worker employed by the Applicant Company since 1969. He recalled that shortly after they moved into their house in Fish Street (which is the main highway access from the north to Bounds Green Farmhouse) Fish Street was closed for a period of time in 1956 whilst the main sewer was being installed in the street. Mr John Wilkin in his statutory declaration also refers to this event, albeit that he says that it happened in 1953. At that point the Applicant cleared the Track and placed some rubble along the surface to make it easier for vehicles to use it. Thus whilst the main sewer was being installed the Track was used as the main vehicular and pedestrian access to Bounds Farm and the Farmhouse. Mr Bragg also stated that for as long as he worked for the Applicant this company maintained the Track by trimming the hedges, keeping the ditches clear along each side, and cutting the grass that grows up on the rubble surface. Indeed, he stated that he did this himself in his earlier years with the Applicant. As he lived along the main access to the Farmhouse at Bounds Farm (Fish Street) he therefore rarely used the Track and only usually when the main access had been blocked for some reason. However, he has stated that he knew the Track had been used consistently by those who have lived and worked on Bounds Farm since the mid 1950s and that farm staff tend to use it more in the summer months between March and September when the farm is much more active.

 

40.               Mr Bragg referred to the caravan park being established in the Orchard in 1979 for use by fruit pickers and that touring caravans were there from June to September in each year. He said that the fruit pickers used the Track as their main route in and out of Bounds Farm on a daily basis.

 

41.               Mr Bragg also stated that he helped put in a water main under the Track connected to a standpipe on the caravan site. He was also aware of the fishing licence granted by the Applicant to the Angling Club in 1992, and that the anglers used the Track to get to the reservoir until access was eventually prevented by the Respondent in March 2010

 

42.               The Gate – Mr Bragg asserted that the gate was left open during the months when the caravans were on there. The caravan site was eventually closed in 2004.

 

43.               I should state that Mr Bragg’s evidence was largely unchallenged by Mr Ellum on behalf of the Respondent, and Mr Bragg’s knowledge of the Track, and its use, pre-dated 1987/1990.

 

Mr William Walsh

44.               Mr Walsh is a retired school teacher now aged 78. His evidence is of considerable importance in the case as since 1980 he and his wife have had direct knowledge of Bounds Farm, and more particularly the Track, as they have picked fruit for the Applicant each summer until 2004. Indeed, his name is recorded on the database spreadsheets produced by Mr Smith, to which I have made reference above. His knowledge of the Track and its use therefore pre-dates 1987.

 

45.               These data base sheets record the following entries – at page 529 for the year 2000, and page 533 for the year 2001. Mr Walsh’s name also appears on page 579 for the year 2004 although in the last column on the right hand side under the heading “implied first visit” the year 1967 seems to have been recorded, which presumably must be incorrect. However, in the penultimate column to the right headed “previous visits as of 2002” the entry records 35 such visits. His name also appears on the records for the following years –at page 580 for 1996; at page 581 for 1997; at page 582 for 1998; and at page 583 for 1999.

 

46.               Mr Walsh and his wife together with many others picked fruit at Bounds Farm on a seasonal basis as a “working holiday” each summer. The pattern of such work was that in June in the North West of England there was “Wakes Week”, being a traditional holiday period, together with a further period at the end of August/beginning of September. In the earlier years there were approximately 30 workers staying in approximately 15 to 20 caravans in the Orchard, but latterly since the late 1990s the numbers engaging in this form of activity decreased so that by 2003 there were only about half a dozen caravans left. The reason for this according to Mr Walsh was, as he put it during the course of his evidence - “age”.

 

47.               As Mr Walsh stated, many of those who came to the site drove there in their cars towing their caravans along the Track in order to get into the Orchard where the cars and caravans were then parked. Mr Walsh stated that on 1 ^st June each year Mr Bragg unlocked the gate at the northern end of the Track which was then left unlocked until the end of the fruit picking season, but they were all told that the gate should be kept shut at all times. Mr Walsh also stated that periodically he saw Mr Bragg and another farm worker cut the grass along the Track, fill in any holes and trim the hedges on either side. He stated that the Orchard was also maintained by the Applicant’s employees. He said that on average half the people on the site used the Track to get in and out of the site by car each day, and that the use of the Track was without any force or secrecy or permission from anybody other than the Applicant. His assumption was that the Track was actually owned by the Applicant.

 

48.               Mr Walsh also produced a second witness statement dated 5 ^th January 2012 to which is exhibited two DVDs. These contain four video clips. These DVDs were shown during the course of Mr Walsh’s evidence and he was cross examined as to their contents.

 

49.               DVDs - The first DVD contained three video clips from 1991/1992. As he described during the course of his evidence, clip 1 is dated 1991 and shows him driving and towing his caravan out of the Orchard at the end of the fruit picking season in September. Clips 2 and 3 were made in 1992. Clip 2 shows Mr Bragg cutting the grass on the caravan site, and Clip 3 shows Mr Walsh and his wife picking blackberries on the Track. The second DVD is a clip from 1991 which shows Mr Walsh driving south down the Track into the Orchard, and he then drives east along the northern edge of the Orchard and turns south, and then drives along the eastern boundary of the Orchard to the corner of the reservoir.

 

50.               Photographs - Mr Walsh also produced a number of photographs. At page 497 of the Bundle there is a photograph of his wife apparently taken in 1988 standing by the gate at the northern end of the Track. He stated that this is the first gate that he could remember being erected there, although he had been fruit picking at Bounds Farm since 1980. At page 498 there is a further photograph taken in 1991, again showing his wife standing on the Track at the northern end, and by this stage the old wooden gate had been replaced with a metal one. At page 500 there appears another photograph taken in 1987 at the northern end of the Track, and in the background is the wooden gate. Finally on page 501 there is a further photograph taken in 1988 at the southern end of the Track where it enters the Orchard, and it can be seen that there is no gate in place at that stage, nor is the southern end of the Track blocked in any way to prevent free access through into the Orchard from the Track. Mr Walsh also stated that there were no gaps in the hedges on either side of the Track close to the Orchard.

 

Mr Peter Richard Eaton

51.               Mr Eaton is also a local person having been born in Tollesbury and has lived in the area all his life. He stated during the course of his evidence that he was familiar with both Gardeners Farm and Bounds Farm, and that he was also familiar with the Track. He recalls as a young boy cycling along the Track to go duck shooting twice each year.

 

52.               In the 1980s he and his wife took a tenancy of Gardeners Farm for three to four years until it was sold to Mr Creighton in 1990. A Mr Philip Hutley acted as the agent on behalf of Messrs Strutt and Parker for the freeholder. The tenancy agreement is in the Bundle and contains detailed provisions negotiated between the parties’ agents (see pages 523/524). Correspondence between the respective agents indicates that the agents had met (see pages 594/595). A plan produced by Messrs Strutt and Parker in September 1987 indicates the Track (see page 521). In this regard it is important to note that Mr Hutley also acted as the selling agent on behalf of Strutt and Parker on the sale of Gardeners Farm to Mr and Mrs Creighton in 1990 the Sales Particulars making specific reference to the right of way over the Track.

 

53.               Mr Eaton stated that as tenants of Gardeners Farm they never used the Track for agricultural purposes and there were no openings on the east or west sides of the Track to facilitate access to the adjoining fields. Indeed, he believed that the Track was actually owned by the Applicant as it only served Bounds Farm, there being no access to Gardeners Farm at that time. On each occasion that Mr Eaton wished to use the Track for shooting purposes between October and February he obtained the keys to the locked gate at the northern end of the Track from the Applicant. He also recalled that fruit pickers employed by the Applicant parked their caravans on Bounds Farm and used the Track for the purposes of getting in and out. Occasionally he saw the caravans parked on the Farm and also saw the caravans being towed or driven along the Track. Again, Mr Eaton’s evidence was largely unchallenged.

 

 

Mr John Peter Rose

54.               Mr Rose is a retired police officer having reached the rank of sergeant. He retired in November 2005 following thirty years’ service.

 

55.               He is a founding member and secretary of the Angling Club. Having checked the Angling Club’s records he confirmed that membership since 1991 has varied between a low of 34 (2009/2010) and a high of 81 (1994/5), with an average membership over the years of 57.

 

56.               In April 1992 the Angling Club was granted permission by the Applicant to fish the reservoir at Bounds Farm which lies immediately to the south of the Orchard. A copy of the original licence agreement between the Angling Club and the Applicant is contained in the Bundle at pages 326 – 327. The Angling Club was granted the right to fish in the reservoir from 1 ^st September in each year to the beginning of the closed season, but this restriction was later dropped. Clause 5 of the agreement provides that vehicular access to the reservoir is via the Track (see page 326). Mr Rose stated that at the northern end of the Track there was a five bar metal gate which was padlocked by the Applicant. It was agreed between the Angling Club members and the Applicant that a double padlock system could be utilised so as to enable the members to access the Track without having to involve any employee of the Applicant. In other words, the system was that each padlock went through the other so that each lock could be opened to get in and out. The Angling Club’s lock was a combination lock and members were provided with the number.

 

57.               In 2009 the Angling Club revised its rules and Mr Rose referred in his evidence to rule 1(v) (at page 339 of the Bundle) and reiterated the point (as stated in the rule) that vehicular access would be via the Track and that the gates should be kept locked at all times.

 

58.               Mr Rose stated that the first time he met Mr Creighton of the Respondent was in about 2008/2009 when there were problems with the old wooden gate at the northern end of the Track (Mr Creighton having replaced the previous five bar gate), and with continued access to the Track. The date of replacement of the gate accorded with Mr Creighton’s original recollection, although later in evidence Mr Creighton asserted that the change of gate occurred in 2006. Mr Rose stated that he believed until then that the Applicant owned the Track. The problem which had arisen related to one of the members of the Angling Club who could not gain access through the gate. Mr Rose stated that over time they lost a couple of padlocks and as they are not cheap to purchase he spoke to Mr Creighton on the telephone. He asked Mr Creighton if the Angling Club could use his lock. Mr Creighton apparently agreed that access should be restored and that Angling Club could double padlock the gate as they had done before so that members could get in when they wanted to, and that Mr Creighton could use his own padlock to get in when he wanted to. Mr Creighton gave Mr Rose the combination to his own lock. Mr Rose asserted that at no time did Mr Creighton or anyone else indicate that he or anyone other than the Applicant owned the Track. In this context Mr Rose contended that it was only the Applicant that had ever given the Angling Club consent to use the Track and on this basis he assumed that the Applicant owned it.

 

59.               In summary, Mr Rose was insistent in his evidence that (1) the gate was padlocked by the Applicant, (2) he believed that the Track belonged to the Applicant until 2008/2009, and (3) no permission was granted by Mr Creighton for the Angling Club to use the Track. He was also adamant that the padlock on the gate was shared with the Applicant.

 

60.               Mr Rose also made reference to a number of e-mails which appear in the Supplemental Bundle at pages 584 to 587, and 612 to 615. When questioned in cross-examination he stated that these appeared exactly as they were in their original format and when questioned as to their provenance he insisted that no changes or alterations had been made to them as was suggested by Mr Ellum. The significance of these e-mails is that they apparently reproduce conversations which had occurred immediately before transcription. The e-mail at page 614 apparently refers to a conversation which Mr Rose stated took place in September 2009 between himself and Mr Creighton after the padlock placed by the Angling Club on the gate had been broken off for the second time. It was apparently agreed between them that only one padlock would thereafter be used and that Mr Rose would pass on the combination number to the Applicant. This conversation is denied by Mr Creighton.

 

61.               As to usage of the Track Mr Rose stated that he personally fished in the reservoir to the south of the Orchard about once in every six to eight weeks. The Angling Club had with an average membership of 57 members and each member used the reservoir on average once every six to eight weeks. On the basis of this average he estimated that each member of the Angling Club would use the reservoir on an average of more than one visit per day, but sometimes there would be no-one and on other days there would be 5 or 6 members. On competition days there would be two teams of seven to eight on each side. Mr Rose also said that he accessed the reservoir via the track in order to stock it, and he would meet the suppliers’ vehicles at the entrance to the track and they would all then drive down together “in convoy”.

 

62.               Mr Rose also referred to an occasion in 2010 when a fellow member of the Angling Club, who was also a neighbour of his, told him that whilst he was fishing at the reservoir someone put big rollers in front of the gate at the southern end of the Track to obstruct access. Angling Club members were then forced to use the main farm entrance via Fish Street which accessed the Farmhouse, and they have continued to use this alternative temporary access since.

 

63.               Mr Rose was cross examined by Mr Ellum at some length on his evidence in chief, and Mr Rose was firm in his recollection that the Track was indeed the way in which the reservoir was accessed until it was blocked in March 2010. He was also quite certain as to the number of visits that he and the other Angling Club members had made to the reservoir along the Track in order to fish. Further he reiterated the point that the two lock arrangement with Mr Creighton only started from about 2007/2008, and that he was “totally certain” that he had no dealings with Mr Creighton from 1992. He was adamant that he did not meet Mr Creighton until after he retired as a police officer in 2005, and probably did not meet him until 2007.

 

Mr Christopher Worth Newenham

64.               Use and maintenance of the Track - Mr Newenham was the final witness to be called on behalf of the Applicant. He is the current farm director having been appointed in June 2008 when he took up occupation of Bounds Farmhouse. In fact he has been employed by the Company since 1 ^st October 2001 when he joined it as Farm Manager. He stated that he occasionally used the Track for the purposes of access to and egress from the Farm from 2001 until access was prevented by obstruction placed there by the Respondent in March 2010. He estimated that he used the Track during the winter months about once per month and during the summer months his usage increased to once per fortnight. Access was generally effected by vehicle rather than on foot. Mr Newenham also stated that Company staff employed by the Applicant maintained the Track, trimmed back the hedges, kept the ditches clear and periodically mowed the surface when growth came up through the rubble surface. These works carried on until about 2005 when Mr Creighton constructed a new stable block on the east side of the Track towards it southern end and thereafter Mr Creighton undertook this work.

 

65.               The Gate - Mr Newenham also stated that as long as he used the Track there has always been a gate at its northern end secured with a padlock. He stated that the padlock was changed from time to time at the instigation of the Applicant and no objection or comment was made by any third parties to his knowledge. In 2008 gates were erected at the southern end of the Track by the Applicant in order to prevent theft of diesel from tanks on Bounds Farm. The diesel tanks were used to fuel pumps that pump water from a reservoir on nearby land into the reservoir situated to the south of the Orchard. During the summer months this used to take place every day or two in order to maintain water levels in the reservoir and the Applicant’s employees used the Track in order to take diesel from the Farm to the fuel pumps. This arrangement started in 2004.

 

66.               Obstruction of the Track and poof of title to right of way - In September 2009 the existing combination lock on the gate at the northern end of the Track was removed by Mr Creighton who then replaced it with a new combination lock. However, Mr Creighton failed to inform the Applicant of the code which meant that the Applicant and its employees could no longer access the Track from the Farm, and vice versa. Mr Newenham stated that he managed to obtain details of the combination lock through the Angling Club.

 

67.               Mr Newenham confirmed that use of the Track has been also prevented by obstruction since late March 2010 by one or more agricultural implements placed there (undoubtedly by Mr Creighton or on his orders) at the southern end of the Track. This has therefore rendered the Track unusable by the Applicant and its employees. Initially Mr Creighton had blocked the Track with a digger and subsequently with a set of Cambridge rolls. He refused to move the digger until he saw evidence of an express right of way. Mr Newenham stated that Mr Creighton knew from an earlier conversation in 2002 that he could not produce any such evidence.

 

68.               According to Mr Newenham he then tried to resolve the problem by speaking to Mr Creighton who he thought was the owner of the adjacent land – as it transpired the registered proprietor was the Respondent – and he asked him why access had been blocked. The response to this was, according to Mr Creighton as relayed by Mr Newenham, the Applicant had no right of way over the Track. Mr Newenham then referred him to the 1990 Sales Particulars. Apparently then Mr Creighton asked Mr Newenham to show him legal proof of the right of way. Mr Creighton then raised another issue regarding the installation of a water pipe across the Respondent’s land, and Mr Newenham informed him that he should speak to Mr David Hunter, a contractor for a neighbouring farmer in order to resolve this matter.

 

69.               Mr Newenham stated that there had been an earlier conversation which took place in or about 2002 and arose when Mr Newenham went to see Mr Creighton in order to inform him of a change in farming circumstances at Bounds Farm in that that a new tenant farmer of Bounds Farm would be using the Track as access to the Farm. It was at this point in time that Mr Creighton questioned the Applicant’s right of way and Mr Newenham was unable to find any deed or other supporting document granting an express right of way over the Track. It was a result of this that a statutory declaration was obtained from Mr John Wilkin (now deceased) in November 2002.

 

70.               In short, Mr Creighton apparently sought legal proof of the right of way, and Mr Newenham asked him to remove the obstruction, which Mr Creighton refused to do. Mr Newenham stated that in such circumstances there would be no alternative but to pursue a legal remedy. According to Mr Creighton thereafter there was no direct contact between either person.

 

71.               Mr Newenham was adamant that he never sought nor received consent or permission from Mr Creighton to use the Track, and indeed, as he points out, had he sought and obtained consent there would have been no need to obtain the statutory declaration from Mr John Wilkin. He is also certain that any neighbourly gesture that he may have manifested to Mr Creighton such as giving him a tray or strawberries, or jam on single occasions only, were completely unrelated to the use of the Track as a right of way by the Applicant and its employees and in no way could signify any form of recognition of permission or consent being granted to use the same.

 

Mr John Wilkin

72.               As stated above, Mr John Wilkin made a statutory declaration on 15 ^th November 2002. He has since died. This declaration was provided in support of the Application. I consider that I am able to refer to it as part of the evidence in the case, but there is a question as to the weight to be attached to it.

 

73.               Mr John Wilkin was born on 29 ^th November 1911 and was aged 90 at the date of the making of the Declaration. He stated in this declaration that he remembered regularly and openly using the Track when he would cycle into Maldon from the farmhouse and although during this time it was a little overgrown it was still passable with vehicles and on foot. He stated that he was never challenged as to his right to use it, nor did he seek the consent of anyone to use it.

 

74.               Fish Street in Goldhanger is the only access by public roads to the Farmhouse. In 1953 this road was closed for a time during the construction of a main sewer. This meant that the only means of access to the farmhouse was via the Track, according to Mr Wilkin. He stated that prior to this closure the Applicant cleared and hardened the Track at his own expense and it was then used as vehicular and pedestrian access to the house and farm during the period of closure. The right of the Applicant to do this was never questioned.

 

75.               Further, Mr Wilkin stated in 1953 a padlock was placed on the gate situated at the northern end of the Track, and as far as he believed no neighbouring landowners were provided with keys. He also stated that this lock had been changed on a number of occasions since then, and no objection or comment had been raised by any third party, so far as he was aware.

 

76.               Mr Wilkin also made reference to the development in 1979 of a small caravan site for fruit pickers on OS121 at the southern end of the Track (the Orchard), and the site was used regularly every summer since then. The caravan owners regularly used the Track as a means of getting to and from the main road. Mr Wilkin also referred to the particulars of sale of Gardeners Farm in 1990 (see paragraph [ ] above). He also stated that the Applicant’s employees also used the Track for vehicular access to and from Bounds Farm from time to time.

 

The Respondent’s evidence

77.               The evidence given on behalf of the Respondent was provided by Mr Ian Creighton; his brother Mr Neil Creighton, and Mr Dennis Lawes. A statement was also provided by Mr Aiden Rycraft, but he did not attend to give evidence despite seemingly to have important evidence to give in his capacity as the son of a director of the Respondent Company. I shall therefore discount his witness statement.

 

Mr Ian Creighton

78. The essence of Mr Creighton’s evidence is two fold. First, he asserts that since Gardeners Farm was purchased by him and his former wife on 1 ^st October 1990 there has always been a roadway running from the farmhouse at Gardeners Farm in an easterly direction where it joined the Track at its southern end and then access was gained to Maldon Road along it. He also stated that the only access from the farmhouse at Gardeners Farm to Lot 5 (to OS956 forming part of Lot 5) was by means of that way. Mr Creighton illustrates this by reference to a plan (at page 304 of the Bundle) where the path of this way is highlighted in yellow. However, the difficulty with this line marked in yellow is that it is not the true line of the way when viewed from the ground as the gap in the hedge on the western side of the Track leading to Gardeners Farmhouse is at a point higher than at the southern end of the Track. Be that as it may, he insists that there always was a gap in the hedge at the southern end of the Track on its western side which enabled access to Gardeners Farm along the Track and across his field to the west. He said that this gap was in existence when he and his former wife purchased the Farm in October 1990. In fact according to his evidence there were gaps in the hedges on both sides of the Track at the southern end to enable such access from Gardeners Farm into Lot 5.

 

79.               Secondly, Mr Creighton categorically rejects the contention raised by the Applicant that there was any right of way along the Track in existence at the date of purchase of Gardeners Farm in favour of the Applicant, or indeed anybody else, and that at the date of purchase the Track did not show much sign of use other than for access between the Vendor’s fields. He stated that although he would not have been able to see anyone walking on the Track he would have been able to see from either the farmhouse or the workshop at Gardeners Farm any high vehicles using the Track, such as caravans and he said that he could recall no caravans on the Track. At the time of purchase he stated that the Track had a flimsy aluminium gate at the northern end which was open and there was a “… very insubstantial lock and chain tied to it.” He did not recall there being a gate at the southern end, but it was very overgrown and there may have been a gate there.

 

80.               The Angling Licence - use of the track and permission – Mr Creighton stated that in about 1991 he was approached by Sergeant John Rose who informed him that a licence to fish in the reservoir at Bounds Farm was being granted by the Applicant to the Angling Club. He stated that Sergeant Rose asked him if they could use the Track for access to the reservoir. The reason for this was apparently that if the members of the Angling Club wanted to fish at night or in early morning they did not want to disturb the occupants of Bounds Green Farmhouse by approaching the reservoir from the east. This version of the facts is diametrically in opposition to the evidence of Mr Rose, and other witnesses for the Applicant. Mr Creighton stated that up to that time the Track had not been used by anyone but himself so far as he was aware since the purchase of Gardeners Farm, and he did not want the members of the Angling Club to encourage others to use the Track. It was in this context, so Mr Creighton asserts , that he agreed to Mr Rose placing a padlock on the gate at the northern end of the Track provided that he, Mr Creighton had the combination. He stated that Mr Rose gave as the combination his police number, 1631. Mr Creighton stated that thereafter over the years members of the Angling Club had used the Track with his consent, and that he also permitted them to park on his land and walk to the reservoir as the Orchard could be very boggy in wet weather. Mr Creighton stated that for the most of the time there was a two lock arrangement in which the Angling Club padlock was locked on to his so that either one could open the gate.

 

81.               In 1998 Mr Creighton stated that the gate at the northern end of the Track remained unchanged but at that point they had a lot of trouble with hare-coursers and he therefore decided to replace it with a much more substantial gate and lock. He did this at his own expense and there was no suggestion from the Applicant that he should not do this, and “given that there was no apparent use of the Track by them it would have been surprising if there had been”.

 

82.               Mr Creighton’s version of the facts is again diametrically opposed to that of the Applicant. He recalls that it was at some point after 1998 that the then Farm Manager of the Applicant was waiting to see him at his drive. The conversation which Mr Creighton stated took place is that he was very politely asked by this person whether he would mind the Applicant occasionally using the Track. Mr Creighton did not mind for them to do this and so he handed a key for the lock on the gate so that the Applicant’s employees could let themselves in and out. For the grant of this permission over the next couple of years or so Mr Creighton stated that he kept receiving an occasional tray of strawberries and some jam which he thought was a nice gesture on the part of the Applicant.

 

83.               The curiosity about this conversation is that the then Farm Manager of the Applicant (Mr Smith) was called to give evidence as to whether or not he had any such conversation with Mr Creighton. Mr Creighton in his evidence stated that he thought that this was the person he was at school with him, but he then acknowledged that he that he had never seen this person before. Insofar as Mr Smith’s evidence is concerned on this point, he had no recollection of ever meeting Mr Creighton, and indeed was not at school with him that he could recall.

 

84.               Subsequently some years later Mr Creighton stated that Mr Newenham came to see him and introduced himself. The purpose of this visit was that permission was being sought by the Applicant to use the Track to get into the fields at Bounds Farm as he was using another farmer to do his arable crops. It was during this conversation, so Mr Creighton asserts, that Mr Newenham said he thought that there was a right of way along the Track in any case.

 

85.               Mr Creighton frankly admitted during the course of his evidence that this comment as to there being an existing right of way along the Track “put his back up” as it was one thing allowing someone to use your land as a gesture of goodwill and neighbourly assistance, but it was a completely different matter when someone was claiming to have a right over your land. Mr Creighton stated in evidence that he knew that the Applicant had no right of way, but just in case he was mistaken he asked him to bring some documentary evidence that such a right existed. He said “go away and find evidence of the right of way” and he would give permission to use it. That much appears to be agreed and the generation of ill will seems to have developed from the fact that Mr Newenham had apparently “put his back up”.

 

86.               However, what is not agreed is the contention that Mr Newenham about a week later telephoned to let Mr Creighton know that he could not find any official papers of agreement that there was a right of way over the Track in favour of the Applicant, but he needed his contractor to get started with the arable cultivation on Bounds Farm and asked if they could have permission to use the Track. According to Mr Creighton he consented to this request but that he made it clear that there was no existing right of way. This subsequent conversation was denied by Mr Newenham in his evidence.

 

87.               Mr Creighton then asserted in his evidence that the next year or possibly two years the contractors engaged by the Applicant used the Track, and that during the period of time more strawberries and pots of jam were sent as a gesture of appreciation. Also one evening in the pub in Goldhanger Mr Newenham bought Mr Creighton a pint of beer and thanked him for allowing the Applicant to use the Track. Again, this gloss on what subsequently happened is denied by Mr Newenham other than there was one occasion when strawberries were given to Mr Creighton and another occasion when a pot of jam was also given.

 

88.               Subsequently further bad blood seems to have developed in about 2002/3 owing to the fact the Mr Creighton apparently expected to play a part in an arrangement whereby a firm known as Sewells Reservoir Construction Limited were to extract gravel in the creation of a reservoir on a neighbouring farm known as Cobbs Farm, and that the Applicant would gain an improved irrigation supply for Bounds Farm. Mr Creighton was apparently offered 10p per tonne of gravel extracted plus the opportunity to carry out the construction work for the new reservoir at Cobbs Farm in return for allowing irrigation pipes under his property to carry water from the reservoir on Cobbs Farm to Bounds Farm. Mr Creighton agreed to this and enclosed in the Bundle is a copy of a letter from David Rees of Sewells confirming the terms of the agreement and a copy of a draft deed of easement. Mr Creighton stated that he agreed to this arrangement and then subsequently in 2003 he was asked to allow Sewells to install the pipe before the start of the construction of the reservoir at Cobbs Farm. He stated that he permitted this to be done and the work was completed in 2004.

 

89.               Mr Creighton stated that in about 2008 he fitted a pair of new gates and a new combination lock. The reason for this was that in about 2006 he built a more substantial building on Lot 5 whilst retaining the barn there and put Lot 5 and other parts of Gardeners Farm to grass and was selling hay from the buildings. Mr Creighton stated that he expected the Applicant to come and ask for the combination of the lock on the gate but that no one approached him, and on this basis he assumed that the Applicant did not wish to use the Track any further. Mr Creighton made reference to an invoice on page 611 of the Bundle where one item is shown referring to two wooden gates. He stated that these were the gates that he installed at the northern end of the Track in November 2006 or shortly thereafter – the dates do not match.

 

90.               Resulting from a serious downturn in this business Gardeners Farm was repossessed in 2008 and the farmhouse was sold separately to a private buyer. Most of the farm land was purchased by the Respondent who continues to employ Mr Creighton as the farm manager.

 

91.               In March 2010 he discovered that Sewells had begun excavation work on the Cobbs Farm site without notifying him. In short, Mr Creighton was concerned that he had been cut out of what could have been a very lucrative deal for him, and as he stated during the course of his evidence he realised that the conversations with Mr Newenham and Mr Hunter (who did not attend to give evidence) made him realise that the Applicant was no longer to be trusted and that he had been far too amenable as a neighbour. This particular aspect appears to have generated a considerable amount of bad feeling on the part of Mr Creighton.

Mr Neil Creighton

92.               Mr Neil Creighton is the brother of Mr Ian Creighton and is also an employee of the Respondent as a contracts manager and in this role is responsible for supervising members of staff. His evidence was directed to the fact that on a number of occasions he had been asked by his brother to undertake certain activities such as maintenance of the Track, and the hedges on either side. He also was involved in filling in potholes and levelling the surface of the Track itself. He acknowledged that the way marked in yellow on the Plan was not an accurate depiction and in fact went directly from Gardeners Farm to the new buildings on the side of the Track which had been erected by his brother in 2008. Mr Ian Creighton asserted that he did not know the caravanners were using the Track, but acknowledged that he did not have much to do with it. He said that in 2005/2006 he started to have a bit more involvement with the maintenance of the Track.

 

Mr Dennis Laws

93.               The Respondent’s final witness was Mr Dennis Laws who has been employed by the Respondent since January 1986 His current job description is digger/tractor driver in which he has been engaged since about September 1990. He stated that part of his duties were to maintain the tracks at Gardeners Farm. During his evidence he made reference to the Track as shown yellow on the Plan. Part of his job was filling potholes and undertaking general maintenance of the Track. He also trimmed hedges around the farm. These activities were apparently always carried out following instructions from Mr Creighton, and no one else.

 

The Respondent’s closing submissions

94.               Comprehensive submissions were provided by Mr Ellum on behalf of the Respondent. I do not propose to repeat in extenso in this Decision. These are divided into two main parts: first, credibility; and secondly, key issues. As to credibility, in my judgment the Respondent has somewhat overstated its case in that it is asserted (as it was during the course of cross-examination) that the witnesses provided by the Applicant have proved to be “significantly untruthful”. Mr Ellum has provided in Annex A to the Respondent’s closing submissions a detailed analysis of such mis-statements. It is contended that Mr Peter Wilkin showed himself willing to say things without proper enquiry, and that every statement of continuing use was disproved by other available evidence from the Applicant. Insofar as Mr Newenham is concerned it is contended that the truth was intentionally mis-stated and that key information was omitted in order to mislead. It is said that this untruthfulness is indisputable. Insofar as Mr Smith’s data is concerned this is said to be false. In these circumstances I am enjoined to treat the Applicant’s evidence with great care and in particular in relation to late disclosure of new evidence which was introduced shortly before the hearing which amounted to 100 extra pages.

 

95.               Insofar as the Respondent’s credibility is concerned, it is contended that the statements made on behalf of the Respondent have proved to be accurate time and again, and that it is compelling that the Respondent’s evidence has been based upon truth and accuracy.

 

96.               The key issues set out in these written closing submissions relate to the following: The 2002 discussion and its effect i.e. the fact that unequivocal consent was given by the Respondent to the use of the Track by the Applicant. It is asserted that the effect of the 2002 discussion was that the claim by Mr Newenham, and the challenge by Mr Creighton, meant that use was in issue and could no longer be as of right (even if it had been before). It is contended that it is absolutely clear from the evidence (which I should believe) that Mr Creighton gave consent, and that such evidence should be preferred because of the lack of credibility on the part of the Applicant’s witnesses. It is submitted that Mr Creighton’s evidence has been clear and consistent on the issue from the outset. In this context it is contended that Mr Newenham was evasive on the issue during the course of his evidence, and had presented a false picture to the Land Registry. Further, it is submitted that the Respondent’s evidence must be preferred because for a claim to a prescriptive right to succeed it is essential that it is only consistent with user as of right.

 

97.               The second issue relates to the installation of the 2006 gate. In support of this the Respondent asserts that the evidence for its installation is derived from the copy invoice dated 7 ^th November 2006 (at page 611 of the Bundle). It is said that this is a manifestation of the control of the access by the Respondent and that any use is with the permission of Mr Creighton. It is further stated that Mr Newenham acknowledged that the gate and lock were supplied by and belonged to Mr Creighton and that the Applicant was not given the combination for this by him. It follows that only the Angling Club had access with the permission of Mr Creighton to use the Track, and that there were period or periods when the Track was not used by the Angling Club but they used the easterly route via Bounds Farmhouse instead.

 

98.               A further issue relates to the combination of the padlock to the gate at the northern end of the Track. It is asserted by the Respondent that if the Applicant used the Track after the new gate was installed in 2006 they only did so by being provided with the code for the combination lock from the anglers. The e-mail exchange, to which reference has been made above in paragraphs 60 to the effect that Mr Creighton gave permission to the anglers to provide the combination to the Applicant is denied by Mr Creighton, and it is stated that it does not seem credible that a third party arranging or re-arranging access to go fishing would start to assert obligations to the landowner on behalf of a neighbouring landowner. In any event the anglers were only using the Track with the consent of Mr Creighton, so it is contended.

 

99.               It is further contended that there is a lack of evidence of the use of the Track by the Applicant, and it is asserted that not one of the non-Wilkin’s employee witnesses provides any evidence whatsoever of actual use by the employees of the Applicant. In any event it is submitted that the claims of use by the Applicant’s employees was minimal, and instances of this are set out in paragraph 31 of the written closing submissions.

 

100.           Mr Ellum on behalf of the Respondent also takes issue with parts of the Applicant’s skeleton argument as set out in paragraphs 38 to 49 of Mr Ellum’s closing submissions, which I do not propose to reproduce in this Decision. A point is taken, as indeed was taken, at the commencement of the hearing that fair and proper notice had not been provided to the Respondent by the Applicant by reason of late service of the contents of the Supplemental Bundle. However, Mr Ellum did not seek an adjournment of the hearing on this basis, and preferred to continue, but stated that he wished to make submissions in due course on the question of costs. I shall deal with this issue in due course

 

101.           Finally, it is contended that if it were to be determined that the Applicant is entitled to a right of way this should be limited to agricultural purposes only. It is submitted that whatever use was made of the Track it was not for all purposes. In support of this it is asserted that the use by temporary workers of the Track for fruit picking is a manifestation of use by agricultural workers, being rights which are coterminous with farming. The caravan site situated on the Orchard was seasonal and used only for temporary agricultural workers.

 

102.           In such circumstances I am enjoined to refuse the Application.

 

The Applicant’s Closing Submissions

103.           Ms Tozer on behalf of the Applicant as directed provided detailed responses in answer to the various contentions, both legal and factual, raised by the Respondent. Instead of encapsulating such submissions at this stage in this decision, I shall refer to them in my analysis of the issues, below.

 

THE LEGAL POSITION AND SUBMISSIONS ON LAW

104.           As I have stated above, the case for the Applicant is placed on alternative grounds, namely under the doctrine of Lost Modern Grant, or by dint of prescription under the 1832 Act.

 

The doctrine of Lost Modern Grant

105.           If the Applicant can demonstrate user as of right which has continued throughout a period of 20 years or more, then it has satisfied the requisite test for the acquisition of a prescriptive right. The grant is judge-made fiction and it is not necessary to provide particulars of the fictitious grant, although it must be pleaded whether the grant is alleged to have been made before or after a particular date (see Tremayne v English Clays Lovering Pochin & Co Ltd [1972] 2 All ER 234). I find that this requirement has been satisfied in the present case when reference is made to paragraph 3 of the Applicant’s Statement of Case.

 

The 1832 Act

106.           To establish a claim under the 1832 Act the Applicant must demonstrate that for the requisite period of twenty years it must have had continuous enjoyment of the right of way based upon the same quality and character as is necessary to demonstrate at common law (see Tickle v Brown (1836) 4 Ad & E 369 at p 382, and Gardner v Hodgson’s Brewery Co Ltd [1903] AC 229 at pp 238, 239). In the case of prescription under the 1832 Act it must not only be as of right, without force, without secrecy and without permission ( nec vi, nec clam, nec precario) as at common law, but also such user must by or on behalf of one fee simple owner against another.

 

107.           A further requirement under the 1832 Act is that by the provisions of section 4

“(i) All periods of enjoyment under the Act are those periods next before some suit or action in which the claim is brought into question.

(ii) No act is to be deemed an interruption until it has been submitted to or acquiesced in for one year after the party interrupted had notice both of the interruption and of the person making it.”

 

108.           If the user becomes contentious and/or is interrupted during the 20 year period then it is not continuous and user as of right ends (see Smith v Brudenell-Smith (2002) 2 P & CR 51, at pages 62/63). It is the Applicant’s case that user was continuous and only ceased in March 2010 when Mr Ian Creighton on behalf of the Respondent erected agricultural obstructions, notably an agricultural roller which was placed across the southern end of the Track just before the point where the Track entered the Orchard. The Respondent asserts that user was not continuous, and that user as of right ceased in any event in 2002 when conversations took place between Mr Newenham and Mr Creighton and permission was given by him to use the Track. I shall deal with these factual issues, and also the question of interruption for a period of less than one year, below.

 

109.           As to the requirement for there to be a “suit or action” for the purposes of section 2 of the 1832 Act, it is submitted by Ms Tozer, Counsel for the Applicant, that the Application satisfies this requirement. The basis for this is that if the initial premise is accepted that Parliament is not likely to have wished to curtail the application of the 1832 Act where the land is registered, the only proper construction of Rule 73(A) of the Land Registration Rules 2003 is that the application for registration should be taken as a suit or action within the meaning of the 1832 Act. It is submitted by Ms Tozer that any other construction of that Rule would mean that a person could not rely upon the 1832 Act, at least not without there having been the commencement of court proceedings, as the Applicant must be able to show that the easement exists at the time when the application is made. If it is unable to do so then the application would have to be dismissed. Thus, it is argued, the relevant period is twenty years before the application is made pursuant to Rule 73(A) of the Land Registration Rules 2003. Accordingly it is contended that the relevant period for a claim to be made under the 1832 Act is the period between January 1991 to January 2011.

 

110.           In paragraph 39 of the Respondent’s closing submissions, Mr Ellum takes issue with this interpretation and asserts that (as he puts it) it cannot be correct that an Act of Parliament (however badly drafted) could be amended by a decision of the Adjudicator as to the timing of the suit or action.

 

111.           I appreciate that it could be argued that no such period next before “some suit or action” has in the present case been brought into existence as there is no suit or action. In other words, there are no court proceedings in which the claim to a prescriptive right of way has been or is to be brought into question. As Gale on Easements states (18 ^th edition, paragraph 4-43), the words mean that “… until the  claim or matter is brought into question in some action, the right under the  Act remains inchoate, but the commencement of such an action fixes the period  and enables the right to be established.” I also refer to dicta of Neuberger J in the case of J. A. Pye v Graham ([2000] Ch 676, at pp 699 – 703, at first instance) as to the meaning of the word “action” for the purposes of section 15(1) of the Limitation Act 1980 in the context of adverse possession. He specifically states that the natural meaning of the sub-section (as seen in the context of the definition of “court” in section 38 of that Act) does not extend to an application to the Land Registry which, as the learned judge states, is “not a ‘court’”. However, I consider that the dicta in this case can be distinguished as it specifically relates to limitation not prescription, and the legal position appertaining prior to the judicial process created by the provisions of the 2002 Act.

 

112.           In my judgment there would seem to be four possible interpretations, namely that:

 

(a) the making of an application to the Land Registry for the registration of a right of way is not “some suit or action”, and it refers only to court proceedings as properly constituted;

(b) the “suit or action” is the making of the application and its acceptance by the Land Registry;

(c) the “suit or action” is the making of an objection;

(d) the decision of the Land Registry to refer the matter for adjudication.

 

113.           Having regard to these submissions, as a matter of law and construction I am satisfied that the making of an application by a party seeking to pursue a claim which is later opposed by the objector, the result of which the matter is then referred to the Adjudicator, falls within the statutory requirement. In other words I consider that option (b) is the correct position and that the making of the application constitutes a “suit or action”. This is the day upon which the application is entered on the Day List at the Land Registry being the day when the applicant takes the formal step which may initiate a judicial determination if the application is disputed and the matter is then referred to the Adjudicator. If the application is successful, either because it remains undisputed, or if disputed the applicant eventually succeeds, then the easement will be registered from the date of entry on the Day List.

 

114.           I further find as a matter of law that as the Application made by the Applicant was made in January 2011, being less than one year from the cessation of the user, the requirement of a “suit or action” for the purposes of the 1832 Act is also satisfied.

 

115.           In any event, even if I am wrong in this interpretation the Applicant still seeks to justify its claim by prescription under the doctrine of Lost Modern Grant.

 

116.           As to the substantive claim to the acquisition of a right of way over the track by prescription on either or both grounds (i.e. under the Doctrine of Lost Modern Grant and/or under the 1832 Act) the following legal principles are relevant –

 

(1)                The user as of right must be demonstrated to have been exercised for a period of 20 years or more;

(2)                It is necessary to show that the enjoyment has been as of right;

(3)                As of right means that the use must be such as to convey the impression to the owner of the would be servient tenement that use as of right is asserted;

(4)                A continuous right must be asserted. The use of a right of way is by its nature discontinuous, and the enjoyment need not be incessant to give rise to such prescriptive right. Nonetheless, the use must be of such nature and at such intervals as to indicate to the owner that a continuous right is claimed (Gale on Easements, 18 ^th Edition, section 4-120).

 

“To make good a prescriptive claim in this case it is not necessary for the claimant to establish that he and his predecessors have exercised the right claimed continuously. This is a profit of a kind that, of its nature, would only be used intermittently. Flocks would not, for instance, be on the down at lambing time, or for 24 hours of the day, or very possibly on every day of the week or all round the year. But the user must be shown to have been of such a character, degree and frequency as to indicate an assertion by the claimant of a continuous right, and of a right of the measure of the right claimed.” (see White v Taylor (No 2) [1969] 1 Ch 160, at page 192).

 

(5)                Such use as of right must be demonstrated to have been exercised throughout the 20 year period. Thus occasional use or casual use is unlikely to amount to a claim as of right – such use does not put the servient owner on notice that a right is being asserted.

 

“no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right of enjoyment is being asserted, and ought to be resisted if such right is not recognized, and that resistance to it is intended.” (See Hollins v Verney [1884] 13 QBD 304, at page 315).

 

(6)                Use that is by permission of the owner of the land of the way is not use as of right, and each occasion upon such use is enjoyed under a permission amounts to an admission that the user had no right, and breaks the continuity of any use as of right that has been exercised;

(7)                The burden of proving that there has been the requisite use as of right rests upon the Applicant, including proving that use has not been by permission;

 

(8)                The fiction of a lost modern grant should be applied only when no other explanation is forthcoming. Such other possible explanations may be permission from time to time or neighbourly tolerance. As stated in Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] AC 229 at 239:

 

“A title by prescription can be established by long peaceable open enjoyment only; but in order that it may be so established that the enjoyment must be inconsistent with any other reasonable inference than that it has been a of right in the sense above explained. This, I think, is the proper inference to be drawn from the authorities discussed in the court below. If the enjoyment is equally consistent with two reasonable inferences, enjoyment as of right is not established…”

 

(9)                If a prescriptive right is established, then the purpose for which it may be exercised is to be gathered from the evidence of the past use, in all the circumstances. The court is to make a supposition as to what, in all the circumstances, must have been the contents of the fictional lost grant on which prescription rests.

 

Mr Eaton’s tenancy

117.           In support of its claim to prescription the Applicant seeks to rely upon user during the period of Mr Eaton’s tenancy between September 1987 and September 1990, the tenancy agreement being dated 29 ^th September 1987. Where the servient land is let, the question to be asked is whether the freehold owner of that land acquiesced in the relevant user. This in turn requires consideration of whether the freehold owner could have taken steps to prevent the user, and whether the freehold owner had knowledge, actual or constructive, of that user. Where the tenancy pre-dates the commencement of user, it is more difficult, although not impossible, for the claimant to show acquiescence on the part of the freehold owner of the servient land (see Williams v Sandy Lane (Chester) Limited [2007] 1 P & CR 27). Thus, if it can be demonstrated that user as of right began against the freehold owner it will not be any less effective because the land was subsequently let, and in such circumstances user against the fee simple owner will be presumed, unless the servient owner can show circumstances to the contrary.

 

118.           If the Applicant is able to demonstrate in the present case that this had commenced before 1987 (see in particular the evidence of Mr Peter Wilkin, together with the evidence of other witnesses such as Mr Bragg, Mr Bunting, Mr Walsh and Mr Smith) then the fact that the land was later let to Mr Eaton is, in my judgment, immaterial. Further, the point is made by the Applicant that clauses 18 and 33 of the tenancy agreement made with Mr Eaton demonstrate that the freeholders could have required that Mr Eaton take steps to prevent the Applicant from using the Track i.e. any acts of trespass being committed, and to have terminated the tenancy agreement if he was in breach of those clauses. No such requirement was made, and the tenancy was never terminated prior to its determination by an effluxion of time.

 

119.           Applying these principles to the present case, the following must be demonstrated by the Applicant, that:

 

(1)                There was continuous user of the Track for a period of at least twenty years in order to access the Orchard;

(2)                That user was by a variety of persons, including employees, licensees, seasonal workers and contract farmers, and, as a matter of law, that this suffices to give rise to an easement benefitting the Applicant’s land; and

(3)                That user was of right i.e. that the Applicant was not given permission in 1998 and/or 2002, or at any other time, as alleged by the Respondent.

 

THE FINDINGS

120.           As a general point it is of importance to note (and I so find) that much of the Applicant’s evidence as to user of the Track was either not disputed, or not strongly disputed. Indeed it was not possible for the evidence led by the Applicant prior to October 1990 to be the subject of challenge by Mr Creighton himself as he did not purchase Gardener’s Farm until October 1990. Therefore he did not have, nor did he claim to have had, any personal knowledge of the circumstances prior to that date. Further he did not call any positive evidence to contradict such earlier evidence given by the Applicant’s witnesses. Instead Mr Creighton sought challenge the credibility of the Applicant’s witnesses (as did Mr Ellum in his written closing submissions - undoubtedly on instructions) and to discredit the Applicant’s witnesses on the basis that they were not telling the truth in their evidence. He also even ventured to suggest that the e-mail exchanges produced by Mr Smith relating to the Angling Club, and the problems with regard to the Gate, had in some way been forged. Mr Creighton also sought to diminish the claimed user of the Track by the Applicant on the basis that such user as there was minimal and/or with his permission. For the reasons I set out below I reject these contentions.

 

121.           I further find that Mr Creighton was a poor witness. He was evasive, argumentative and aggressive in many of his answers to questions posed by Counsel for the Applicant in cross-examination, and would often cut across and interrupt such questions. Mr Creighton also appeared to give answers to questions which he seemed to consider would help his case, but which were contradictory to other answers given by him.

 

122.           What became apparent during cross-examination is that Mr Creighton seems to have borne a grudge. The generation of ill-will seems to have developed from the fact that Mr Creighton apparently expected to play a part in an arrangement to extract gravel during the process of the creation of a reservoir on Cobbs Farm (see paragraph 88, above), and to have gained some form of economic benefit from this. I find as a fact that it was this generation of bad blood which motivated Mr Creighton to prevent any further access along the Track in March 2010, and not from a genuine and considered belief that the Applicant, its servants and agents, and the members of the Angling Club, in some way had no genuine right to use the Track for various purposes.

 

123.           Having regard to the evidence and principles of law, to which I have made reference above, I make the following specific findings of fact and law:-

 

(1)                I consider that the evidence in support of the Applicant’s claim to a right of way over the Track is overwhelming, and that Mr Creighton and the Respondent have singularly failed to demonstrate in their evidence that no such right of way has been acquired.

 

(2)                I am therefore satisfied that the Applicant and its predecessors in title have acquired a prescriptive right of way at common law over the Track for the purposes of accessing the Orchard and other parts of Bounds Farm under the doctrine of Lost Modern Grant, such user having been acquired before 1987.

 

(3)                Alternatively, I am satisfied that based upon the evidence the right of way over the Track in favour of the Applicant was acquired by prescription under the 1832 Act for the continuous period of twenty years prior to March 2010 when Mr Creighton erected obstructions thereby preventing access to the Orchard from the Track, and in particular when he placed the agricultural roller at the entrance, to which I have made reference above.

 

(4)                These findings are based, in particular upon the evidence of Mr Peter John Wilkin, Mr Bragg, Mr Bunting, Mr Walsh, Mr Rose and Mr Smith, parts of which was unchallenged by the Respondent.

 

(5)                I should state that I find that the evidence of Mr Walsh to be particularly compelling. He is a retired school teacher now aged 78. His evidence is of crucial importance in the case as since 1980 he and his wife have had direct knowledge of Bounds Farm, and more particularly the Track, as they have picked fruit for the Applicant each summer until 2004. Indeed, his name is recorded on the database spreadsheets produced by Mr Smith, to which I have made reference above. His knowledge of the Track and its use therefore pre-dates 1987 by some years. I also find that he had no reason to lie about the factual circumstances the subject matter of his evidence.

 

(6)                I also find the evidence of Mr Rose to be compelling. I find that at no time did Mr Creighton or anyone else indicate to Mr Rose that he (Mr Creighton) owned the Track. In this context I find that it was only the Applicant who had ever given the Angling Club consent to use the Track and on this basis Mr Rose assumed that the Applicant owned it. Mr Rose was insistent that (1) the gate was padlocked by the Applicant, (2) he believed that the Track belonged to the Applicant until 2008/2009, and (3) no permission was granted by Mr Creighton for the Angling Club to use the Track. Again, Mr Rose had no reason to lie about the factual circumstances the subject matter of his evidence, nor could it be said that he was in some way motivated by malice.

 

(7)                I am also satisfied that such user that was acquired from before 1987 was not at any stage rendered precarious by any actions taken on the part of the Respondent such as the erection and re-erection of gates or the provision of keys. I therefore reject the submission made by Mr Ellum that the use of the Track was interrupted much earlier than March 2010 by Mr Creighton locking the gate with the padlock and its code supplied by him, and/or that permission was granted for use of the Track.

 

(8)                Thus I do not accept that there was any conversation with Mr Smith or any other person as to permission being sought or granted from or by Mr Creighton, or anybody else on behalf of the Respondent. I am satisfied on the evidence that no such conversation ever occurred between Mr Smith and Mr Ian Creighton as has been asserted, and in particular there was no attempt on the part of Mr Smith on behalf of the Applicant to seek permission after 1998, or indeed at any time, to use the Track.

 

(9)                As to issue relating to section 4 of the 1832 Act, the Application to the Land Registry was made in January 2011 which was less than one year after the cessation of user. I am therefore satisfied that the making of the Application itself demonstrates as a matter of principle that the interruption was not acquiesced in for the period of one year (see the case of Brown v Collins and Others REF/2009/1013 ALR 4/7/11 at paragraph 28).

 

(10)            I also find (based upon the evidence to which I have made reference above) that until the early 1990’s the Track exclusively served the Orchard and other parts of Bounds Farm. I find that there were no gaps in the hedges on either side of the Track at its southern end. Any person using or inspecting the Track then would have noted this position, as the evidence indeed reveals ( viz. the evidence of Mr Walsh and the evidence confirmed by the DVDs in 1991). Mr Howie stated that he created access through the hedges on both sides in the early 1990’s in order to move farm machinery across the track to access the fields on both sides. As a consequence it was impossible until these gaps were created for Mr Creighton/the Respondent to access the Track from Gardeners Farm by crossing the field to its east. Mr Creighton stated in his evidence that he constructed a steel framed building at the southern end of the Track on Lot 5 in 2006. At one point he asserted that he started this construction in 2001. Mr Newenham stated that this construction took place in 2005, and Mr Neil Creighton said it occurred in 2008.

(11)            As to the nature and use of the Track I further find that the right of way acquired over the Track in favour of Bounds Farm was, and is, with or without vehicles for all the purposes associated with the accessing the Orchard and other land forming part of Bounds Farm owned by the Applicant.

 

(12)            Specifically, I find that vehicles which have used the Track over the decades have historically been agricultural vehicles serving Bounds Farm, such use being more extensive at certain times of the year. I also find that cars and caravans were used by the caravanners for the purposes of fruit picking in the Orchard during the Wakes Week in June and on subsequent periods of fruit picking in late August and early September. The evidence of Mr Walsh is of considerable importance in this regard, which I accept in its entirety.

 

(13)            The evidence further revealed that the track was used by other vehicles at times, such as such as cars owned by the members of the Angling Club for the purposes of fishing on the reservoir; vehicles replenishing fish stocks in one of the reservoirs situated to the rear of the Orchard; together with other vehicles for the purposes of maintenance of the irrigation system, and other such activities. The Track was also used to access Bounds Farmhouse whilst Fish Street was closed in 1953/1956.

 

(14)            I therefore find that the use of the Track over the decades by persons on foot and by vehicles was extensive, and for all purposes, and was not limited to agricultural use. Also the fact that the caravanners used the Track and parked their vehicles in the Orchard during the fruit-picking season did not mean that they were engaged in agricultural activity as contended for by the Respondent. Indeed, as Mr Walsh explained, this activity was a working holiday for him and the other fruit-pickers. I therefore find that their occupation of the Orchard was regular, and was a combination of residential and working purposes, albeit on a discontinuous basis.

 

(15)            I also find that the issue with regard to the rights of way only came to the fore as a result of Mr Creighton’s fit of pique over the apparent failure to include him into a financial arrangement for the extraction of gravel which he discovered in March 2010. Prior to that he appears to have accepted the use by the Applicant and its employees and agents and members of the Angling Club without demur, and there is no documentary evidence on file which demonstrates that he took exception to such user prior to then. He was, in effect, riled by the fact that he appeared to have been cut out of any financial stake in such extraction.

 

(16)            In such circumstances, I find that the nature and extent of the right of way is not limited to agricultural use but extends to all uses with or without vehicles for the purposes of accessing all parts of Bounds Farm, and in particular the Orchard.

 

(17)            I also take into account that despite requests having been made for its disclosure, it is a telling aspect of the case that Mr Creighton/the Respondent has never produced the conveyancing file for the sale and purchase of Gardeners Farm in September 1990 and no satisfactory explanation of the reason for this refusal has been provided. Production of this file might have shed some light of his knowledge, or otherwise, of the user of the Track The obvious inference to be made from this non-disclosure is that the file may well contain documentation in the form of replies to enquiries before contract, or the like, that the Track was subject to a right of way in favour of the Applicant, such reference having been made in the Sales Particulars of Gardeners Farm. I particularly refer to paragraph E of the Sales Particulars, together with clause 1 of, and paragraph (a) to the third schedule to, the conveyance of Gardeners Farm dated 1 ^st October 1990 (see pages 320 and 432 and 436 of the Bundle).

 

THE DECISION

124.           In such circumstances I therefore direct the Chief Land Registrar to give effect to the original Application that the Applicant is 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 Bounds Farm.

 

Dated this 10 ^th day of April 2012

 

 

 

By Order of The Adjudicator to HM Land Registry