Bradley & Anor v Heslin & Anor

An informal arrangement between adjoining landowners may establish or modify boundary rights where it is proved or properly inferred from the parties’ conduct. Proprietary estoppel may arise from an implied representation and need not depend on an express agreement. A right to hang and close gates across a driveway is capable of being an easement. Intermittent use establishes a prescriptive right only where its character, degree and frequency indicate assertion of a continuous right of the claimed measure. Where an arrangement gives rise to an equitable right, the right may be qualified so that its exercise does not substantially interfere with the servient owner’s reasonable enjoyment of the land.

The claim concerned the ownership and use of pillars and gates at the entrance to adjoining properties in Formby. The claimants owned No. 40 Freshfield Road and the defendants owned No. 40A. The properties had originally been separated from a single plot, and the claimants’ predecessor had constructed frontage works, including gates, partly on or beside land serving No. 40A.

The claimants sought declarations that they owned the relevant pillar and gates and had rights to close them. They relied on boundary agreement, adverse possession, proprietary estoppel, prescription and lost modern grant. The defendants denied those rights and contended that the gates were ornamental or belonged exclusively to No. 40A. The central issues were ownership, whether a right to close the gates had been acquired, and the extent of any equitable right.

1. Ownership. The southern pillar formed part of No. 40. Alternatively, an informal boundary demarcation agreement or understanding supported that conclusion. The northern pillar also belonged to No. 40. The claimants’ predecessor had possessed it with the intention of excluding the paper owner, and possession passed successively to the Fields and the claimants. The claimants acquired title by adverse possession by the beginning of 1992. Alternatively, proprietary estoppel established their ownership because the construction and use of the frontage conveyed an implied understanding which it would be unconscionable for the original owner or successors to deny.
2. The gates belonged to the owners of No. 40. A right to hang and close a gate over a driveway was capable of being an easement. It was not essential that the servient owners also be obliged to close the gates after passing through them.
3. No unrestricted easement to close the gates at all times and for all purposes had been acquired by prescription or lost modern grant. Although intermittent use was sufficient in principle, the use had a permissive and neighbourly quality and did not demonstrate assertion of a right of the claimed measure.
4. The original arrangement nevertheless gave rise to an equitable right. The owners of No. 40 were entitled to open and close the gates for purposes connected with the reasonable enjoyment of No. 40, provided that doing so did not substantially interfere with the reasonable enjoyment of No. 40A. The relevant standard was the likely understanding of reasonable owners when the arrangement was created, not the parties’ personal needs when the dispute arose.
5. The defendants were not entitled to padlock the northern gate open. The claimants were not entitled to the wider declaration sought. The court indicated that closure between 11.00 pm and 7.30 am, during absences, on some heightened-risk occasions and for particular security purposes would not ordinarily constitute substantial interference until adequate remote opening arrangements were installed.