Automated Summary
Key Facts
The incumbent of St James' Church in Saul claimed a prescriptive easement over a track used for vehicular access to the church and its grassy parking area. The track, adjacent to the former school site (sold in 2012 and 2015), was used by clergy and visitors for decades, including weekly access by Rev Spargo (2006–2016) and occasional use by others. The First-Tier Tribunal (FTT) accepted evidence of 'routine' use sufficient to put the servient owner on notice, rejecting the argument that this use was merely occasional. The appeal challenged this conclusion but was dismissed.
Issues
- The second issue involved whether the FTT erred in not explicitly determining if the use of the track was enough to carry to the mind of a reasonable servient owner that a continuous right to enjoyment was being asserted, as per the legal test in Mills v Silver [1971] Ch 281.
- The court examined whether the incumbent's occasional use of the track over many years was sufficient to establish a prescriptive easement by lost modern grant, considering the requirement for use to indicate a right is being asserted.
Holdings
- The Upper Tribunal dismissed the appeal, affirming the FTT's decision to register the easement. The FTT's findings on the sufficiency of use and the completion of prescription prior to the Wests' purchase were upheld, with no grounds for overturning the original ruling.
- The first ground of appeal fails because the use of the track by the incumbent and their visitors was sufficient to put the servient owner on notice that a right was being asserted, despite being described as 'occasional.' The evidence of routine and regular use, including weekly access by Rev Spargo and others, meets the requirements for a prescriptive easement under the doctrine of lost modern grant.
- The second ground of appeal is also dismissed. The FTT's decision explicitly addressed the requirement that use must carry notice to a reasonable servient owner, concluding that the evidence satisfied this standard. The argument that declarations in 2011 and 2012 precluded notice is moot, as prescription was completed before the Wests' 2012 purchase.
Remedies
The Upper Tribunal dismissed the appeal and confirmed the First-tier Tribunal's decision to register the easement over the track for the church's benefit. The easement was found to bind the appellants as an overriding interest under section 29 of the Land Registration Act 2002, having been used during the 12 months before their 2015 purchase.
Legal Principles
The court applied the doctrine of lost modern grant to determine whether the incumbent's use of a track constituted a prescriptive easement. The FTT found that the use was sufficient to put the servient owner on notice, despite being described as 'occasional', because the evidence demonstrated routine access for church services, funerals, and community events over many years.
Precedent Name
- Ecclesiastical Commissioners for England v Kino
- Tehidy Minerals Ltd v Norman
- Mills v Silver
Cited Statute
- Tribunals, Courts and Enforcement Act 2007
- Prescription Act 1832
- Land Registration Act 2002
Judge Name
Elizabeth Cooke
Passage Text
- "...where there has been upwards of twenty years' uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless, for some reason such as incapacity on the part of the person or persons who might at some time before the commencement of the twenty-year period have made a grant, the existence of such a grant is impossible, the law will adopt a legal fiction that such grant was made, in spite of any direct evidence that no such grant was in fact made."
- "In the context of a country church serving a small congregation, it is my judgment that enough had been done by the Applicant and its lawful visitors to suggest to a reasonable servient owner that a right was being exercised and ought to be resisted if not accepted."
- "I have concluded that the evidence shows, on the balance of probabilities, that occasional use has been made by the church by the Incumbent from time to time and its visitors of the tarmac path owned by Mr and Mrs Hughes since at least 1992, being 20 years before 2012, and into 2015."