Easteye Ltd v Malhotra Property Investments Ltd & Ors

A public right of way cannot be established merely because a route was physically available or likely to have been attractive as a short cut. The claimant must prove qualifying public use, and under Highways Act 1980, s 31, must identify the date when the right was brought into question and prove 20 years’ qualifying use immediately beforehand. Closed gates, intermittent locking and express notices may demonstrate that use was permissive or that the owner had no intention to dedicate. Where land was held by a charity, s 31(8) preserves incapacity only where dedication would be incompatible with the statutory or public purpose. Easements implied under s 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows require relevant use or an equivalent reputed quasi-easement at the date of conveyance.

Easteye owned White Hart Yard and Ship’s Entry in Newcastle. The Malhotra companies claimed public rights of way over both routes by common-law dedication and under s 31 of the Highways Act 1980. They also claimed private rights over Ship’s Entry, including general access and fire-escape rights benefiting 11–13 Grey Street.

The court considered extensive historical documents, plans, photographs, highway records and oral evidence concerning gates, public use, permissive access, charity ownership and the 1991 conveyance of 11–13 Grey Street. The central questions were whether qualifying public use had been proved and whether private easements arose on the conveyance.

1. Public rights of way. The claims failed. The Defendants had not proved uninterrupted public use as of right for the necessary period. Both routes were controlled by gates at relevant times. White Hart Yard was generally available during business hours because businesses operated there, but use outside those hours was restricted. Ship’s Entry was narrower, commonly gated and used principally by occupiers, tenants and persons with particular rights.
2. Inference from indirect evidence. The court was entitled to infer public use from proved facts, but an inference required reliable evidence leading to a defined and warranted conclusion. A route’s location, its physical availability or the supposed propensity of the public to use a short cut did not establish actual use. Souch v East London Railway Co was not authority for inferring use merely from the opportunity to use a route.
3. Section 31. The Defendants had to identify the date when each right was brought into question and prove 20 years’ qualifying use immediately before that date. An ambulatory date could not cure the failure to prove continuous use. The locking of gates and the display of highway notices were capable of bringing the right into question and were evidence of an intention not to dedicate.
4. Charity land. Before 1959 the Moulton Charity lacked capacity to dedicate Ship’s Entry because the statutory restrictions on charity land extended to the disposal of rights over the land. After the Highways Act 1959, the issue under s 31(8) was factual incompatibility between the claimed highway and the charity’s purpose. That incompatibility was not proved.
5. Private rights. The claims under s 62 of the Law of Property Act 1925 and Wheeldon v Burrows failed because there was no sufficient use or reputed quasi-easement at the 1991 conveyance. The building had become derelict and there was no evidence of use of the western part of Ship’s Entry as a fire escape. No general right of way or fire-escape right towards the Cloth Market was implied.
6. Disposition. Judgment was entered for Easteye. The claimed public and private rights were not established.