Roberts v Parker & Anor

A right of way may be extinguished by permanent abandonment inferred from the parties’ conveyancing arrangements; abandonment need not consist of mere non-user. The scope of a later grant is determined by construing the instrument in its factual context. An obligation imposed on retained land to contribute to maintenance may support an implied easement benefiting that land. A restrictive covenant is not protected by registration merely because it appears on the register. The entry must identify clearly the part of the registered estate affected. An entry stating that the relevant land does not affect the title is not a notice within the meaning of the Land Registration Act 2002.

The claimant owned No. 40 Fairmile Lane, adjoining a private road forming part of the defendants’ property. He wished to build a house on part of his garden known as the yellow land. The parties disputed whether the yellow land benefited from a right of way over the private road and whether a restrictive covenant in the 1968 Transfer prohibited building on it.

The claimant relied on a 1923 right of way and, alternatively, the right granted by the 1968 Transfer. The defendants relied on the intervening conveyances, the Harris v Flower doctrine, and the covenant. The court also considered a claim concerning a yew tree and damages.

1. The 1923 right of way. The right of way granted by the 1923 Conveyance had been extinguished by operation of law. Clause 2(iii) of the 1950 Conveyance, read with the physical separation created by the 1950 and 1951 transactions, showed a permanent abandonment by the owner of the dominant land. The court did not need to recognise a new method of extinguishment. Abandonment need not be proved by non-user.
2. The 1968 Transfer. Construed in its context, the Transfer granted an easement benefiting the yellow land as well as the transferred land. The obligation imposed on the yellow land to contribute to maintenance of the private road would otherwise lack a coherent legal basis. The right was not limited to ancillary access while the yellow land remained part of the existing garden. The absence of a covenant against subdivision, and the use instead of a covenant against building, supported that conclusion. The principles concerning the scope of rights of way discussed in Gore v Naheed and the Harris v Flower doctrine did not prevent this construction.
3. Registration of the restrictive covenant. Under sections 29 and 32 of the Land Registration Act 2002, read with rule 84(2), a notice must identify clearly the part of the registered estate affected. Entry C7 stated that the land edged green and the land edged purple did not affect the title. Although the covenant was entered on the register, that wording meant that C7 was not an entry in respect of the burden of an interest affecting the registered estate. The covenant therefore did not bind the claimant.
4. The alternative prescription claim did not arise. In any event, the evidence did not establish 20 years’ qualifying use, and use consistent with the 1968 right could not have created a wider prescriptive right. The defendants were entitled to no more than nominal damages for the yew tree. The parties were invited to agree the minute of order.