The existence of private rights can be a significant bar to development. Any landowner who fails to investigate carefully the possibility of such rights arising by prescription can find their land encumbered and the opportunity for development lost or significantly impeded.

One of the essential elements that allows a prescriptive right to arise is acquiescence on the part of the owner of the servient land. If the owner lets the servient land then it is necessary to ask whether the owner had the opportunity to prevent the user. If the owner did have such an opportunity, then the fact that the land was let will not prevent the claim to a prescriptive right being upheld.

The case of Williams & anor v Sandy Lane (Chester) Ltd [2006] illustrates how a lack of vigilance in the face of evidence of a potential claim to prescriptive rights resulted in success for the claimants.

The facts

Chester City Council owned land that lay between a public highway, Sandy Lane, and the River Dee. On the land was a boathouse – the boathouse was a tenant’s fixture. In 1908 the Council’s predecessor let the land on which the boathouse sat to a Mr William Williams, who ran his business from the site. A Mr Trevor Williams began working for Mr W. Williams in the 1950s and took over the business in 1974, although the lease for the boathouse was never formally assigned to him.

To the south of the boathouse is a residential property known as 20 Sandy Lane. Since 1937 the owners of the house had used a track over the Council’s land (which also ran to the boathouse) and by cutting across the common boundary to the two properties, which was not at that time fenced, gained access to the back door of their property (the secondary route). In 1975 Trevor Williams and his fiancée, Rita Hibbitt, purchased 20 Sandy Lane.

On taking over the boathouse Trevor Williams placed flagstones along the line of the track leading to the boathouse. On acquiring the house he and Rita Hibbitt ceased to use the secondary route: they moved the back door, built up the common boundary and fenced it. Instead they created an alternative route (the primary route) by extending the flagstones from the boathouse to the garden, making use of a hard standing immediately outside the boathouse.

In 1984 Rita Hibbitt wrote to the Council objecting to a proposal to develop the adjoining land and she claimed a prescriptive right of way.

In 1990 Trevor Williams was granted a new lease of the boathouse by the Council. It contained a covenant obliging him, as tenant:

To take all reasonable steps to prevent any encroachment upon the premises or the acquisition of any easement over the premises and to promptly notify the Council of any attempt or claim to make or require the same.

In 2003 the Council sold its interest in the site (subject to the lease of the boathouse) to Sandy Lane (Chester) Ltd, who intended to build houses on the land. In 2004 Trevor Williams and Rita Hibbitt sought a declaration that they were entitled to rights of way over both the primary and secondary routes.

The decision

The High Court found against the claimants, who appealed. In finding in the claimants’ favour, the Court of Appeal considered the following:

(1) Did the existence of the lease mean that the Council was unable to prevent user and thus it could not be said to have acquiesced?

(2) Did the Council have knowledge of the use of the primary route?

(3) Did the covenant in the lease requiring the tenant to prevent the acquisition of easements preclude the claimants from pursuing their claim?

(4) Had the claimants abandoned the secondary route?

Acquiescence

It is only the freehold owner who can acquiesce in the user required to create a prescriptive right. If the existence of a tenancy prevents the freeholder from discovering the user or preventing the user on becoming aware of it, then there is no acquiescence.

The Court of Appeal considered carefully the case of Pugh v Savage [1970]. In this case Cross LJ distinguished between a tenancy that predates the commencement of the user and one that has commenced a significant time after the period of user. In the latter case, if a freehold owner grants a tenancy after it is aware that user has commenced then the grant of the tenancy will not be a bar to a claim for a prescriptive right.

In Williams the High Court held that the Council had not acquiesced since granting the 1990 tenancy because of the terms of that tenancy – having required the tenant to ensure that easements are not acquired over the land, the judge held that the freehold owner would not need to make its own enquiries. The Court of Appeal disagreed. If the owner of the servient land, with knowledge of the user, grants a tenancy of the land which stops the owner from preventing user then the servient owner has acquiesced. The Council became aware in 1984 that prescriptive rights were being claimed but granted the tenancy in any event. It failed to investigate the contents of the letter.

Knowledge

The High Court accepted that, had the Council inspected the land in 1984 in the vicinity of the boathouse, it would have realised from the physical features on the ground that there was a real possibility that the owners of 20 Sandy Lane were using the track to gain access to their property. Furthermore, the information in the 1984 letter, if followed up, would have alerted the Council to the use of the primary route.

If the Council had spoken to Miss Hibbitt, she would no doubt have advised them of the previous use of the secondary route, which had been overtaken by use of the primary route.

The Court of Appeal held that knowledge of the use of the land should be imputed to the Council following the receipt of the 1984 letter. The fact that the letter went to its planning department in response to the planning application and not to the department that dealt with its land ownership was immaterial – the Council had to be treated as an individual organisation.

Lease covenant

The respondents argued that should the Court of Appeal find that the claimants had acquired a right of way by prescription over the primary route then it should not be upheld as it had been obtained by a flagrant breach of the terms of the lease by Trevor Williams on his own part and on the part of Rita Hibbitt with his permission.

It is the case that a tenant cannot acquire a right in relation to the freehold of the tenanted land by prescription against its own landlord. However, the co-owners relied upon use by Rita Hibbitt. The Council, being the sole party capable of acquiescence, had knowledge of her use and had acquiesced in her use by failing to take any steps to prevent it.

Following the decision in Bakewell Management Ltd v Brandwood & ors [2004] it is no answer to a claim to a prescriptive right that the user upon which it relies is unlawful. The fact that allowing Rita Hibbitt access across the premises was a breach of covenant by Trevor Williams was irrelevant.

Abandonment

It is generally accepted that it is difficult to show that a proprietary right has been abandoned. To establish that an easement has been abandoned it is necessary to show:

(1) non-user; and

(2) an intention to abandon the right.

Non-user is not sufficient on its own and it is necessary for the party refuting the right to produce evidence that the claimant had intended to give up the right. The period of long user may be substantial (30 years or more) but without evidence of the required intention, abandonment cannot be established.

In this case the Court of Appeal considered six factors:

(1) there had been a period approaching 30 years of non-use;

(2) at all times an alternative access from the front door of the property to Sandy Lane had been available;

(3) following the non-use of the secondary route, the land had been fenced, obstructing the right of way;

(4) the back door to which the right of way led had been removed;

(5) earthworks carried out by the claimants made the right of way difficult to use; and

(6) the claimants had allowed vegetation to grow over the path of the right of way across the garden of 20 Sandy Lane.

The Court of Appeal came to the conclusion that the cessation of use of the secondary route was simply a result of finding the primary route more convenient. The existence and use of a more convenient way is not sufficient to show an intention to abandon.

Of the above matters, 1, 2, 4 and 6 were incapable by themselves of providing a basis from which it could be inferred that the right had been abandoned. The matters that were relevant to abandonment were the fencing and the earthworks. The evidence showed that the fencing was not substantial and could easily be removed.

The earthworks did not make the secondary route impassable and thus the judge’s finding that the secondary route had been abandoned was overruled.

Conclusion

To acquiesce, a freehold owner must both know about the user and also be able to prevent it. Only when the freehold owner fails to act when it has the opportunity to do so can acquiescence be shown.

The existence of a tenancy may establish either that the freehold owner was not aware of the user or that it was unable to prevent the user. The point in time at which the tenancy was granted is likely to be relevant. As Cross LJ commented in Pugh:

If a tenancy is in existence at the beginning of a period of user, it may well be unreasonable to imply a lost grant by the owner at the beginning of the user. He might not have been able to stop the user, even if he knew about it.

While a lease granted before the claimed period of user commences may be evidence that the freehold owner is unaware of the user, if the claimant can show that the freehold owner did have the necessary knowledge, the grant of a lease will not necessarily prevent the freehold owner from acting.

The lease to Trevor Williams contained a proviso for re-entry in the event of breach of covenant. The Council could have taken steps to prevent Rita Hibbitt from using the primary route by taking steps to forfeit the lease but it chose not to and as a result was found to have acquiesced. If the freehold owner grants a lease when it is aware of the user and puts beyond its own reach the opportunity to prevent user, then this may also be taken as acquiescence.

In managing their property, landowners must be aware of the potential of acquisition of rights by third parties at all times. They should act upon information received and not assume that responsibility to take action can be left to those in occupation. If a landowner fails to take steps that it is entitled to take, such as the forfeiture of a lease, or puts out of its reach the right to take action, then it may be deemed to have acquiesced – with serious consequences for the future development of the property.