Perkins v Nieuwenhuizen

In construing an easement, the court must identify the parties’ objective intention from the words of the conveyance, read in their factual and commercial context. Where the grant refers to existing tracks, contemporary physical features may identify the route. The court should not enlarge the grant by implication where the conveyance contains no provision for substantial works needed to create the claimed access. Non-user alone does not establish abandonment. Abandonment may nevertheless be inferred from lengthy non-user combined with circumstances showing that the dominant owner no longer had a useful destination and intended to relinquish the right.

The Appellant appealed from an order of HHJ Charles Harris QC following a two-day trial in the County Court at Oxford. The order declared the extent of a northern right of way reserved by a 1967 conveyance and declared that a southern right of way had been abandoned. Permission to appeal had been refused by the trial judge. Rose J refused permission on the papers but allowed the Appellant to renew the application orally.

The appeal concerned whether the northern right of way extended to Croughton Road and permitted motor vehicles to pass through a boundary wall, and whether the southern right of way remained effective after the sale of adjoining land in 1968 and nearly 50 years of non-user.

The application for permission to appeal was dismissed in relation to both rights of way.

1. Northern right of way. The phrase in the 1967 conveyance referring to “the tracks the approximate position of which” naturally referred to existing tracks, rather than a notional line on the plan. The trial judge was entitled to rely on near-contemporaneous photographs and evidence of use to identify the route. The fact that some paths had been made by trespassers did not prevent them from being existing tracks capable of falling within the conveyance.
2. The reference to passage “with or without vehicles” did not create a realistic prospect that the parties intended motor vehicles, articulated lorries or HGVs to pass through woodland and emerge through a substantial opening in the northern boundary wall. The conveyance contained detailed provisions for fencing and gates elsewhere, but no provision for such an opening, its design or its materials. That strongly confirmed that no right requiring such works had been intended. A grantee may imply a right to form an access where reasonably necessary, but that principle depends on the nature and extent of the right actually granted.
3. The court accepted that the grantee’s failure to use the northern way was not probative of the parties’ objective intention. Removing that consideration did not affect the trial judge’s essential conclusion. There was no real prospect of success on the northern appeal.
4. Southern right of way. Non-user alone was insufficient to establish abandonment. The applicable approach required lengthy non-user combined with circumstances adverse to use and an act clearly indicating a firm intention that the right should no longer be used. The sale of Lime Tree Walk removed the only useful destination identified by the evidence, and, combined with nearly 50 years of non-user, supported the inference that the predecessors in title intended to divest themselves of the right.
5. The limited rights reserved in the 1968 conveyance did not demonstrate an intention to retain the southern right of way. The possibility that neighbouring owners might later permit access, or that the route might have led to a nearby footpath, was conjectural and did not establish a real prospect of success.

• High Court (Chancery Division): dismissed the renewed oral application for permission to appeal.
• County Court at Oxford: HHJ Charles Harris QC’s order dated 19 January 2017 declared the northern right of way to run to a pedestrian gate adjoining a public footpath and declared the southern right of way abandoned.
• High Court: Rose J refused permission on the papers on 7 April 2017 but permitted renewal at an oral hearing.