Polo Woods Foundation v Shelton-Agar & Anor

A profit appurtenant must accommodate the dominant tenement by having a real connection with its normal enjoyment. The law does not impose a separate threshold of real or appreciable benefit. The needs of the estate perform a different function: they help determine the permissible extent of a profit, particularly a grazing right, and are not measured by practical necessity.

For prescription, the right established must reflect user of sufficient character, degree and frequency to indicate an asserted continuous right of the measure claimed. Occasional use by a larger number of animals does not necessarily establish a right for that larger number. Where the first-instance decision applied the wrong legal test or failed to determine the factual extent of the right, the matter may be remitted for further findings.

Polo Woods Foundation appealed against a decision of the Deputy Adjudicator to HM Land Registry refusing registration of a profit à prendre by prescription. The claimed right was to graze up to 10 ponies on the respondents’ land between March and October, during specified evening and night hours.

The Adjudicator found that ponies had entered the land for many years, usually as part of their movement and exercise on adjoining fields, and had occasionally grazed there. She rejected the claim principally because the benefit to the dominant farm was too slight. The appeal concerned the correct accommodation test, the extent of any prescriptive right, ouster, and related objections to validity.

1. Accommodation. The Adjudicator had applied a single test requiring a real or appreciable benefit. That was incorrect. The relevant question, derived from Re Ellenborough Park [1956] 1 Ch 153, is whether there is a connection between the right and the normal enjoyment of the dominant tenement. The ordinary use of the farm for rearing ponies was capable of supplying that connection.
2. Needs of the estate. The requirement that a profit be related to the needs of the estate concerns the maximum extent of the profit. It is not a test of practical necessity and is distinct from accommodation. A farm need not be practically dependent on additional grazing for a grazing profit to exist. However, a right for an excessive number of animals cannot subsist as a profit appurtenant.
3. Prescription and extent. The scope of a prescriptive profit depends on the actual user proved. Under White v Taylor (No 2) [1969] 1 Ch 160, user must be of such character, degree and frequency as to indicate an assertion of a continuous right and of the measure claimed. The evidence did not establish that the maximum occasional number of 10 ponies regularly used the land, and the Adjudicator had not determined the maximum number for which a right was actually established.
4. The court was not satisfied that the objection based on ouster defeated the claim. Although the proposed right would substantially restrict the respondents’ use during the grazing season, some reasonable daytime and seasonal uses remained. The objections based on lack of utility, lack of user as of right, and want of judicial control also failed.
5. The appeal therefore did not establish the claimed right. The matter was remitted to the Adjudicator to determine whether the factual user satisfied the prescription test and, if so, the number of ponies covered. Any further amendment of the claim and the admission of further evidence were left to her.

• High Court (Chancery Division): appeal from the Deputy Adjudicator to HM Land Registry. The Adjudicator’s legal test was held to be wrong, but the claim was remitted for further factual determination.