Paul Raymond Bradley v Whatton Developments Ltd.

Key words: Easement of right of way- acquisition by prescription – user as of right – acquiescence and tolerance Case referred to: Mills v Silver [1991] Ch. 271

1. The Applicants (Mr and Mrs Bradley) are the registered freehold owners of the above mentioned property 1, The Maltings under title number NT146855 ( the Dominant Land) and the Respondent (Whatton) is the registered freehold owner of the above mentioned freehold property The Maltings, Main Street under title number NT346861 (the Servient Land).

2. Immediately to the east of the Dominant Land lies the Servient Land which until fairly recently was open undeveloped land which formed part of Maltings Farm, a property owned by the Sheardown family. Until circa 2015 it was used as a chicken farm. In March 2022 the Servient Land was purchased by Whatton from James Sheardown. Whatton then developed part of the Servient Land as a small housing estate comprising about seven houses.

3. The Dominant Land comprises a single residence belonging to, and occupied by, Mr and Mrs Bradley. Their property is made up of two registered titles being the Dominant Land and an adjoining block to the north of the Dominant Land of which Mr and Mrs Bradley are the registered owners under Title number NT369162. Mr Bradley told me in oral evidence that this latter land had always formed part of their garden since the purchase by them of the Servient Land in 1994. At that time they had not noticed that this northerly block of land was not registered in their names despite them being in occupation of it. This state of affairs was regularised in January 2022 when the legal title was transferred to Mr and Mrs Bradley.

4. To the east of the Dominant Land runs a track (the Track) which connects the old Maltings Farm lying to the north of the Dominant and Servient Land and the highway. At its southern end its course is between the Dominant and Servient Land although there is a very narrow piece of land that runs between it and the Dominant Land upon which Whatton has erected a fence.

5. The issue that concerns the parties is as to whether Mr and Mrs Bradley have acquired by long user as of right a prescriptive right of way on foot and by vehicle over the Track. Their case is that since acquiring the Dominant Land in 1994 they have used the Track to access the rear of the Dominant Land for the purposes of deliveries of bulky items, gardening requirements and for other purposes associated with their property particularly the garden. In fact they say that the only way they could take delivery of bulky items was via the rear of the Dominant Land.

6. Throughout this period starting in 1994 their user of the Track has not been challenged, has not been obstructed and has not been the subject of any permission from the owners of the Servient Land, which was the Sheardown family until 2002. The first time Mr and Mrs Bradley say they were challenged was when Whatton purchased the Servient Land in 2022. They thereupon made the Application.

7. Mr and Mrs Bradley aver that they used the right of way over the Track nec vi, nec clam, nec precario, that is to say openly, without force or permission, namely as of right, for a continuous period of nearly 30 years. Their claim therefore rests upon acquisition of an easement of a right of way by common law, and/or under the doctrine of lost modern grant and/or the Prescription Act 1832 . These provisions are not explicitly pleaded but as Mr and Mrs Bradley are not represented it is I think permissible to assume, on the basis of the facts which they have pleaded, that these are the legal foundations of their case.

8. Oral evidence was given by Mr Bradley and Mrs Kennedy for the Applicants and Mr James Sheardown and Ms Claudine Irwin a director of Whatton, for it.

9. The Respondent’s case as set out in its Statement of Case was that at all material times the user was challenged or alternatively any user of the nature contended for was as a result neighbourly tolerance or to put it another way implied permission.

10. There was a straight dispute of fact as to whether Mr Sheardown gave permission for the track to be used by the Bradleys and as to whether a gate half way up the track was ever locked by him so as to deny access for their user. Mr Bradley denied both these assertions.

11. In cross examination the only specific example of explicit permission Mr Sheardown could come up with was when Mr Bradley asked if he could burn rubbish on unused ground behind and to the north of the Dominant Land. This of course had nothing to do with the right of way.

12. He said the gate was erected in 1997 and that it was locked in order to provide security for the farm. Mr Bradley denied that the gate was ever locked. Mr Sheardown however accepted that he was aware of dog walkers using the Track which in my view indicates that the gate could not have been locked.

13. Mr Bradley whom I found to be honest and straightforward was quite clear in his evidence that he had also used the Track freely and without objection since 1994, until that is the dispute blew up. I have no hesitation in accepting his evidence that he was able to access the northern most part of the Dominant Land at any time he wished to without permission or force and that he never found that he was prevented from doing so by a locked gate.

14. There is some mention in the papers about a gate at the southern end of the Track. Mr Bradley told me, and I accept, that this was erected by his neighbour and himself with the knowledge of Mr Sheardown to exclude travellers who had set up an encampment on the other side of the highway and they feared an attempt would be made to camp on what was then the undeveloped Servient Land.

15. As to the other witnesses, Mrs Bradley confirmed her husband’s evidence,Ms Irwin having known the Servient Land since 2022 was unable to give any material evidence. Mrs Kennedy was similarly unable to provide any relevant evidence.

16. Whatton in its Statement of Case and Skeleton Argument state that user has been objected to since the erection of the locked gate allegedly in 1997. Whilst Mr Bradley accepts that there was a gate in situ as alleged he denies that it was ever locked. Mr Sheardown’s acceptance that the Track was used by dog walkers seems to me, as I have said, to indicate that the gate was not locked.

17. In so far as there is a conflict between Mr Bradley’s evidence and that of Mr Sheardown’s I unhesitatingly prefer Mr Bradley’s. I therefore reject any suggestion that the user of the Track by Mr and Mrs Bradley was subject to interruption by the presence of the gate.

18. The other strand of Whatton’s objection is that user was with “express or implied permission”. Mr Sheardown was unable in his oral evidence to give any example of when he had given permission to Mr and Mrs Bradley to use the Track. Mr Bradley was adamant that he never sought nor was he given such permission. I accept Mr Bradley’s evidence in this regard. I find there was no express permission given by Mr Sheardown to Mr and Mrs Bradley to use the Track for accessing the Dominant Land.

19. This then leaves the question of implied permission arising out of “neighbourly tolerance” of such user. This aspect of the case is somewhat contradictory to the previous assertions. However, I find that a reasonable person would have realised that Mr and Mrs Bradley were using the Track to access the rear of the Dominant Land which Mr Bradley told me, and showed me from photographs, was possible (i.e. his rear boundary was not closed), and that as I have found Mr Sheardown did nothing to resist, then his alleged acquiescence or tolerance did not make the user permissive: see Mills v Silver [1991] Ch 271 .

20. I therefore find Mr and Mrs Bradley succeed in their claim to register a prescriptive right of way and I shall direct the Chief Land Registrar accordingly. DATED this first day of December 2025 Nigel Thomas BY ORDER OF THE TRIBUNAL