England Environmental (Northern) Ltd & Anor v Arthur Jones & Sons (Contractors) Ltd

An easement may be acquired under the doctrine of lost modern grant where there has been at least 20 years’ continuous use of the land as of right. The use must be peaceable, open and not based on permission. Contentious use must be assessed in context: disputes or inconvenience do not necessarily establish that use was by force or contentious. Where the evidence establishes qualifying use, the court may grant declaratory and injunctive relief, together with modest damages if interference is proved but specific loss is not. In an encroachment claim, mandatory removal may be refused where it would be disproportionate, although removal may be ordered for separable structures that can readily be re-sited.

England Environmental (Northern) Limited owned 75 Eastgate Street, Cowbridge, and Arthur Jones & Sons (Contractors) Limited owned the adjoining 73 Eastgate Street. A lane on Number 73 provided access to Number 75 through a northern doorway and later through a gateway.

The claimants sought declarations and injunctions establishing and protecting a right of way, relying on the doctrine of lost modern grant. Arthur Jones denied that the use had been continuous or as of right. It also counterclaimed for encroachment by buildings, a pier and gates constructed on or beyond the boundary. The court had to determine whether the right of way had been acquired and what relief was appropriate for the encroachments.

1. Right of way. The claimants established a right of way over the lane under the doctrine of lost modern grant. The relevant period was the period between the 1974 deed and Arthur Jones’ re-taking of possession in September 2008.
2. Qualifying user. The evidence established continuous use to gain access to Number 75 through the Northern Doorway on foot from about 1974 to 2008, and use of the Gateway on foot and in vehicles from about 1985 until at least 2007. Applying the approach described by Lord Rodger in R (Lewis) v Redcar & Cleveland BC (No 2) [2010] UKSC 11, [2010] 2 AC 70, the use was nec vi, nec clam, nec precario: it was peaceable, open and not based on permission.
3. The existence of disagreements, vehicle obstructions and inconvenience did not make the use contentious. Pedestrian access remained undisturbed and uncontentious, and in any event more than 20 years’ qualifying use had already accrued.
4. Relief. Declaratory and injunctive relief was granted. Interference with the right of way was established, but no specific loss was proved, so damages were limited to £500 jointly.
5. Encroachments. Removal of the principal building encroachment and the smaller office-building encroachment would be disproportionate. The pier and gates at the Gateway were separable and could satisfactorily be re-sited within Number 75, so injunctive relief was granted for their removal or re-siting. Arthur Jones received £2,000 damages for the encroachments.