Keith Webb & Anr v Walsall Metropolitan B.C.  EWLandRA 2010/892
This case is a good reminder of the importance of dealing with an unauthorised user. Here, the Land Registry Adjudicator upheld the Applicants' claim for a prescriptive right of way, rejecting the landowner's argument that historic negotiations between the parties for a licence to govern the use of the access route meant that the use had been with permission. Even though the access route had changed at one point, the Adjudicator allowed the two periods of user to be added together to result in a total period of use which exceeded 20 years.
The Applicants' house was adjacent to a car park owned by the Respondent Council. During 1981, the Applicants built a garage at the end of their back garden next to the car park and they used the car park to access the garage from the highway. In 1982, the Applicants sought to negotiate with the Council for a licence to cross the car park in this way. Although the Council was prepared to grant a licence, negotiations broke down because the Council insisted that it would only allow use of the car park outside of working hours. The Applicants therefore failed to return the draft licence sent to them by the Council for approval or to respond to chasing letters and they continued to use the car park at all times of day and night.
In around 1997, the Council relocated the spaces within the car park in order to increase their number. It discussed these plans with the Applicants and there was no suggestion that the Applicants did not have the right to access their garage. From that time, the Applicants used a different route across the car park to access their garage.
At the end of 2005, the Council wrote to the Applicants about the possible sale of the car park and the fact that there was no formal agreement in place to allow the Applicants to access their garage from the car park. The letter stated that the Applicants had no legal right of way over the Council's land. Following further exchanges of correspondence, the Council's solicitor wrote to the Applicants' solicitor in December 2009 to say that the Applicants were committing a trespass in their use of the car park. The letter stated that the Respondent Council would seek an injunction to restrain the alleged trespass, if necessary. Shortly afterwards, the Council erected a fence to close off the car park.
The Applicants claimed a prescriptive right of way based on their use of the car park between 1981 and 2009. (It was accepted that the claim for a prescriptive right by way of lost modern grant meant that the Applicants had to establish 20 years' use before the erection of the fence.) The Council argued that the Applicants had not acquired a prescriptive right of way – either under the Prescription Act 1832 or under the doctrine of lost modern grant – on the basis that there had been less than 20 years of user as of right and without force.
The dispute was referred to the Land Registry's Adjudicator.
The Adjudicator noted the clear guidance from case law that (i) a licence to use land cannot be implied from mere inaction of a landowner with knowledge of the use to which his land is being put; (ii) if an owner wishes use of his land to be by licence, he must do something to make the public aware of the fact that the route is only being used with permission and not as of right; and (iii) a landowner who wishes to stop prescriptive rights from being acquired over his land must not acquiesce and suffer in silence.
The Adjudicator rejected the Council's argument that the Applicants' request for a licence in 1982 had acknowledged that their use at that time was not "as of right". The Adjudicator also found that the evidence did not support the Council's contention that there was an implied permission in place as a result of the licence negotiations between the parties, not least because the Council had only offered a licence to permit accessing the garage outside of working hours. Moreover, even a limited licence which extended to accessing the garage during working hours could not have survived the breakdown of the negotiations and the Applicants' decision not to pursue them. The Adjudicator felt that, since there was no suggestion by the Council when negotiations broke down that the Applicants should stop using the access, there appeared to be at least temporary acquiescence by the Council concerning the continuing use.
In relation to the change of access route in 1997, the Adjudicator noted that this should be considered as substantially an exercise of the old right and evidence of the continued enjoyment of it; the two periods of use were therefore added together. The Adjudicator did not feel that any circumstances of the case justified a finding that the arrangement reached in 1997 amounted to a user by permission.
Although the erection of the fence by the Council (and possibly the letter shortly beforehand) made the use of the access non-peaceable (i.e. a forcible exercise of the use), the user by that time had been enjoyed without force, openly and without force for over 27 years. The Adjudicator also found that the interruption from the fence was for less than a year before the proceedings started, so that the right of way was established both under the doctrine of lost modern grant and under the Prescription Act 1832.
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