Wood & Anor v Waddington

A right of way may pass under section 62 of the Law of Property Act 1925 even where there was no prior diversity of occupation. The relevant advantage must have been enjoyed with the land conveyed and must be continuous and apparent in the sense developed for the rule in Wheeldon v Burrows. Visible physical features and a regular pattern of use may establish those requirements; a made-up road is not essential. Section 62 is excluded only by a sufficiently clear contrary intention. Expressly granted rights, maintenance provisions, or references to continuous rights do not by themselves exclude it. A right enjoyed with vehicles includes use on foot and on horseback, but not the driving of animals. A change from domestic to commercial use is not necessarily excessive use where it does not radically change the dominant land.

Mr and Mrs Wood succeeded to land formerly conveyed to Mr and Mrs Sharman by Mr Crook. They claimed rights of way over land retained by Mr Waddington, concerning access to Old Dinton Road and to a public bridleway. Morgan J dismissed the claims, holding that the rights were not created by express grant, section 62 of the Law of Property Act 1925, the rule in Wheeldon v Burrows, or common intention. The appeal concerned the construction of the transfer, the requirements and scope of section 62, and the effect of subsequent commercial use connected with a livery business.

The Court of Appeal allowed the appeal. Lewison LJ gave the leading judgment, with Richards and McCombe LJJ agreeing. It declared that Mr and Mrs Wood were entitled to the claimed rights by virtue of section 62 of the Law of Property Act 1925.

1. Express grant. Clause 12.3.3 of the transfer was confined to easements of a continuous nature in the conventional conveyancing sense. A right of way requires human activity and is not a continuous easement. The claim based on that clause therefore failed.
2. Section 62. The absence of diversity of occupation was not an absolute bar. The question was whether each advantage had been enjoyed with the land conveyed, so that it would become appurtenant to that land. The relevant considerations included the actual use and whether the benefit to the conveyed land and burden on the retained land were apparent. The visible tracks, gaps, wheel ruts and surrounding features were sufficient to make both routes continuous and apparent. Use of the first route once a month established a regular pattern of enjoyment. No use at all during a reasonable period before conveyance would have been insufficient.
3. Contrary intention. Section 62(4) requires an express contrary intention. Detailed rights of way, maintenance obligations, and references to continuous rights did not exclude the wider statutory grant. The expressio unius principle had no application.
4. Scope and intensity. A right proved to have been enjoyed with vehicles included passage on foot and on horseback, though not driving animals. The description of a right as presently enjoyed concerned the manner, not the purpose, of use. Applying the two-question approach in McAdams Homes Ltd v Robinson [2004] EWCA Civ 214, the livery business did not radically change the dominant land; the increased use was only an intensification.

The rule in Wheeldon v Burrows and the common-intention claim did not require determination.

• Court of Appeal (Civil Division) allowed the appeal and declared that the claimed rights of way arose under section 62 of the Law of Property Act 1925.
• High Court Morgan J dismissed the claims in [2014] EWHC 1358 (Ch) .