Worth v Turner & Anor

A right of way granted in general terms is construed by reference to the land, the terminus and the purpose of the grant. Where the grant contemplated vehicular use, its extent may be determined by the practical width of the existing track at the date of grant. Long, open and peaceful use may establish a prescriptive right over the area actually used, including occasional use by larger vehicles where that use asserts a right rather than mere tolerance. A criminal prohibition on driving off-road does not prevent prescription where the landowner could lawfully consent to the use. Interference is substantial if it materially reduces the convenience of access for vehicles reasonably contemplated by the easement. Mandatory injunctive relief may be granted for continuing substantial interference.

The claimant owned Betchworth Fort, operated as a chalet and caravan site. The Fort was accessed solely by Fort Road, including the section between Points B and C adjoining the defendants’ property. The claimant asserted an express and prescriptive right of way for vehicles over that route and, in particular, over an area known as the V, which provided turning space at the entrance to the Fort.

The defendants erected posts, gates and a kerb in 2001. The claimant sought declarations and injunctions, alleging that the works narrowed the route and obstructed vehicle access. The defendants disputed the extent of the right and denied that any right existed over the V. The central issues were the extent of the express grant, whether prescription had established additional rights, whether the works substantially interfered with those rights, and the appropriate relief.

1. Express grant. The claimant had an express right of way under the 1921 conveyance for all purposes, including vehicular and machinery access. The width of the grant was construed by considering the locus in quo, the terminus and the purpose of the way. The contemporary evidence showed that the track was approximately 12 feet 6 inches wide. The express grant therefore extended 3.81 metres from the identified boundary line between Points B and C, but did not extend over the V.
2. Prescription. Following Bakewell Management Ltd v Brandwood [2004] UKHL 14, the court disregarded section 34(1)(a) of the Road Traffic Act 1988 as a bar to prescription. The relevant landowner could have granted the claimed vehicular easement and could lawfully consent to the use. The contrary approach in Massey v Boulden [2002] EWCA Civ 1634, [2003] 2 All ER 87 was therefore not followed.
3. The claimant established open, peaceful, definite and continuous use sufficient to support prescription under the doctrine of lost modern grant and, for the relevant period, under the Prescription Act 1832. The use of the V by larger vehicles and vehicles towing trailers was sufficiently frequent and apparent to assert a right of passage. Ironside, Crabb and Crabb v Cook, Cook and Barefoot (1981) 41 P&CR 326 was distinguishable because the present use was use of the V as part of the carriageway, rather than occasional deviation onto a verge to allow vehicles to pass.
4. Interference. The test was whether the right could still be enjoyed as conveniently as before, not whether access remained possible or reasonably necessary. Applying B&Q Plc v Liverpool & Lancashire Properties Ltd [2001] 1 EGLR 92, the posts and kerb materially restricted access for large trade vehicles, caravans, trailers and other vehicles reasonably contemplated by the right. The interference was substantial.
5. The claimant was entitled to declarations and mandatory injunctions requiring removal of the obstructing works. The court allowed the defendants reasonable time to comply and reserved the precise form of order if agreement could not be reached.

First-instance judgment. No earlier appellate decision is stated in the judgment.