Private rights of way – a recent successful decision and a helpful costs award.Posted: August 5, 2019
One aspect of our practice which we have developed from our specialism in public rights of way is private access, as the two issues often come together. It can also be the case that a client has both public and private rights of way issues and that was the situation for our farmer clients in Nottinghamshire.
We had successfully defeated a claim for a public right of way across their land so when a neighbour sought to claim a private right to access the rear garden of his house over our client’s farm track they came to us.
After a false start when the neighbours claimed and then withdrew their application to the Land Registry, the matter was referred to the Land Registry Tribunal and after an exchange of written cases and documents which we settled, a final hearing was arranged to hear the oral evidence of the parties.
The facts were intriguing as the neighbours’ house had originally been owned by our clients’ family before being sold off. The house had an access from the road and no rights over the adjacent track had been granted when the house had been sold. The neighbours case relied on use over a 20 year period. In order to have a full 20 years of use they were reliant on use by their predecessors.
Our clients’ case was that the owners of the house before the current neighbours purchased had been given permission to use the track. The current neighbours denied this and recited a conversation they claimed to have had before they purchased. The oral evidence was that the neighbours had been told that the track had been used “freely without objection or challenge”.
The Judge addressed this alleged conversation in his written judgment, saying this “did not ring true” and “was the language of a lawyer, not a lay man”. He concluded “I cannot accept this evidence.”
A twist came when it was established at trial that the permission had been given by our clients’ predecessor family member, and so this did not extend to the period after our clients had acquired the land. This may have meant that there had been 20 years of use without permission.
We were able to adduce evidence and argue that the level of the alleged use had been exaggerated, and that the use had frequently been after the neighbour discovered the padlock code, or had acquired a key to the replacement padlock.
The Judge agreed with our case and refused to grant the right of way. He ordered the neighbours to pay our clients’ costs.
The Judge assessed the costs and his award was issued on 1 August. He addressed arguments made by the neighbours’ counsel that our fees should not be payable as we are a consultancy. He found that the Land Registry Procedure Rules made it clear that a party was free to engage a consultant. He said:
“In relation to ET Landnet’s fees… the hourly rate (£200) is, in my judgment, reasonable and I am satisfied that it was reasonable to engage ET Landnet and that the costs incurred in doing so were reasonably incurred”.
We instructed Philip Noble of Counsel to represent our clients at the hearing. His fees in full were also awarded to be paid by the Neighbours. The total costs award was £12,684.
The full case details are:
Thomas Bradley and Karon Leslie Birchall v R J Howard Farming Limited REF/2018/0260
For further details or advice on private rights of way issues, contact Michael Wood.