Worth v Turner & Anor [2004] EWHC 1096 (Ch)

Case No HC03C01502

[2004] EWHC 1096 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London WC2A 2LL

Date Tuesday 4 May 2004

Before

Mr GEORGE BOMPAS QC

sitting as a Deputy Judge of the Chancery Division

Between

ROSEMARY WORTHClaimant

JOHN FREDERICK TURNERDefendant

CAROLE SANDRA TURNERDefendant

Robin Green (instructed by Downs) for claimant

Roger Smithers (instructed by Lyons Davidson) for defendants

Hearing Hearing dates : Monday 22 March — Thursday 25 March 2004

Judgment

The Deputy Judge:

[1]This action concerns a claimed right of way to several acres of land known as Betchworth Fort (“the Fort”). At issue is the extent of the land over which the right of way exists. This is in the context of a claim by the claimant that certain works carried out by the defendants have amounted to an actionable interference with the claimed right of way. The claimant asks for declaratory and injunctive relief against the defendants, who have responded with a claim for relief mirroring that claimed against them.

[2]My conclusion is that the claimant has made out the substance of her claim and is entitled to relief against the defendants.

[3]In order to explain my reasons I shall first describe the line of the claimed right of way; I shall then make some comments on the evidence before giving my conclusions as to the extent of the right of way and as to the defendants’ interference with it. The present position in outline

[4]The Fort lies on the brow of the North Downs, just to the east of Dorking and Box Hill. The land immediately to the South of the Fort drops away steeply. Indeed, below the Fort to the southwest are chalk cliffs and disused quarries. However, the Fort itself is flat, as is the land to the north of the Fort.

[5]On the Fort is an old ammunition store and strong point. This was built in the last decade of the Nineteenth century as part of a short-lived programme to develop a line of defensive positions to the south and east of London. There is also a house, constructed as semi-detached caretakers’ cottages before 1914, in which the claimant lives with her husband. For the rest the Fort is used, as it has been since at least the 1930s, as a site for chalets and caravans. There are approximately 60 spaces. In the 1950s there were some 42 chalets and 18 caravans. Later the number of caravans dropped to about 14, and there are today a few vacant spaces. These chalets and caravans belong to licensees or tenants, and are used mostly as holiday or weekend homes, the greatest use being between Easter and the late autumn. The caravans, I should add, are for the most part permanently or semi-permanently at the Fort. The Fort has not been used to any great extent by touring caravans visiting the site for short-term stays: for the most part caravans moving in or out of the Fort have been on replacement or relocation.

[6]The business of using the Fort as a site for chalets and caravans was started by the claimant’s father, Mr Cheston, in about the 1920s and was continued by the claimant and her husband. It was at its height in about the 1950s. In about 1995 a Mr Nutt acquired an interest in the Fort and the business carried on there. He is now the person who runs the business. In the period since 1995 Mr Nutt has been seeking to restore and improve the site at the Fort. He explained that there were several vacant plots for chalets or caravans, that he had been upgrading the services at the Fort, and that he was aiming to replace some of the older chalets and all the caravans with mobile homes. He said that for this purpose heavy lorries had on occasion been visiting the Fort in the period till May 2001. These lorries were lorries with double steering axles carrying gravel or low-loaders delivering machinery.

[7]The Fort lies about 200 metres from the nearest highway. This is Box Hill Road to the north of the Fort and running east to west. The Fort is approached by a lane leading off Box Hill Road at a right angle. This lane is known as “Fort Road”. It is the only way to the Fort, which is otherwise landlocked. I shall call the junction of this lane with Box Hill Road “Point A”. After passing about 140 metres between a field on one side and a strip of vacant land with shrubs on the other Fort Road meets the top of a bridle way known as “Red Road”. Red Road curls away down the face of the Downs, providing access on foot to Betchworth Station. The junction of Fort Road and Red Road I shall call “Point B”.

[8]At Point B Fort Road bends about 45 degrees towards the east leading about 60 metres to the Fort. About where Fort Road arrives at the Fort I shall call “Point C”.

[9]Along its length Fort Road is unmade. Between Point A and Point B the surface of Fort Road is marked out by a track. The surface of this comprises two strips of mud, stone and occasional infill where vehicle wheels pass, and a central thin line of grass. On either side of that surface are verges, with bushes and small trees coming close to the track. I was not told the exact width of this part of Fort Road, excluding the verges, but the evidence suggests that it is likely to be less than 4 metres.

[10]So much of Fort Road as lies between Point A and Point B was in about 1990 classified by Surrey County Council in accordance with the National Parks and Access to the Countryside Act 1949, the Countryside Act 1948 and the Countryside Act 1981 as a by way open to all traffic. The evidence is that the width of this “BOAT”, as it has been referred to, is 14 foot (a little less than 4.3 metres).

[11]To the north of Fort Road between Point B and Point C is a property called “the Nook”. This is now owned by Mr Allingham. He has lived there since 1986. Along the north edge of Fort Road, between the Nook and the useable part of Fort Road, is a large hedge consisting of leylandii at the northwest end and laurel at the southeast end.

[12]To the south of Fort Road between Point B and Point C there are two properties. The first, furthest from the Fort, is called “Hilltop”. The owner, Mr Nutt, has lived there since he bought it in 1991. The second, which shares its eastern boundary with the Fort, is called “Wendy’s Cottage”. Wendy’s is owned by the defendants. They have lived there since they bought Wendy’s in 1980.

[13]The claimant’s house lies immediately inside the Fort at its northwest corner, by Point C. The claimant has lived there ever since she was born in 1921.

[14]At Point C, where Fort Road arrives at the Fort, it swings a further 45 degrees to the east, so that within the Fort the lane continues due east immediately along the north side of the claimant’s house. There is at Point C a gate. This, I am told, is always open. The distance between the posts is about 3.8 metres (about 12 foot 6 inches).

[15]The surface of Fort Road between Point B and Point C is now unmade, but shows signs of having in the past been made or patched with asphalt, road scalpings or concrete: Mr Worth gave evidence that he had put down asphalt some 25 years ago. Without interfering with the hedge on the north of this part of Fort Road, the present useable width of the track between Point B and Point C is not much wider than 3 metres at any point. Indeed at one point in front of Wendy’s it is now no wider than 2.8 metres. It should be noted that towards the western end the way lies between two hedges. There is little visible verge at the foot of any of the hedges lining the track at this part of Fort Road.

[16]The dispute which I have to decide concerns works which the defendants carried out to the front of Wendy’s during May 2001. So far as material these consisted of placing four large posts (numbered, for the purposes of this case, from 4 in the west to 1 in the east) along what the defendants said was the northern boundary of Wendy’s fronting Fort Road, and hanging gates from the three posts (Posts 3 to 1) nearest to the Fort. Between the two western posts (Posts 4 and 3) the defendants placed a kerb into the ground.

[17]It is said by the claimant that these posts and kerb have interfered with the right of way along Fort Road between Points B and C in that(a) the way has been narrowed by Post 4 and the kerb, and

(b) the way has been narrowed by the remaining posts and gates which prevent vehicles approaching the Fort from swinging to the right in order to clear the corner at Point C and to enter the gate into the Fort.

[18]Travelling from the west between Points B and Point C the first relevant solid feature on the south of Fort Road is the north end-post of a comparatively modern larch/lap fence which separates Hill Top from Wendy’s. This fence was constructed before about 1991 but after 1975, as the Ordnance Survey sketch referred to below describes the boundary feature at the time as consisting of a hedge. The north end of this fence projects at least half a metre into Fort Road beyond what has been identified by the expert Surveyor, referred to below, as the “root line of hedge” in the vicinity of the Hilltop-Wendy’s boundary. Between the post now at the end of this fence on the one side and the hedge on the opposite side of Fort Road the useable width of the track is some 2.9 metres. However, about 0.7 metres within the hedge to the north is a telegraph post: between the end of the larch/lap fence and this telegraph post the space is about 3.6 metres. This telegraph post is set on the line of an old post and wire fence which runs along parallel to Fort Road. For reasons which I explain later, this fence is likely in the past to have marked the boundary between the Nook and Fort Road.

[19]Proceeding east the next solid feature on the south of Fort Road is Post 4. The distance between this post and the hedge bounding the track to the north is about 2.7 metres; and the distance to the line of the post and wire fence is at most about 3.4 metres.

[20]As mentioned earlier, between Post 4 and Post 3 there is now a kerb. Post 3 lies about 3 metres away from the hedge to the north of the track, so that between Post 4 and Post 3 the useable width of the track widens slightly. On a line to the south of the kerb by about 0.9 metres are two silver birch trees. These particular trees must have been present before about 1990, although they may not have been present in the 1970s. But if they were not, other trees were in about the same places: there is some suggestion in the evidence that the two trees survived the October 1987 windstorm because they were young, but that they were on the same line as older trees which were destroyed in the storm.

[21]Posts 3, 2 and 1 are not in an exactly straight line. Post 1 is just to the south-west of the southern gate post at Point C. Post 2, about 3 metres away, is displaced some 15 centimetres to the south of the straight line between Posts 1 and 3, Post 3 standing about 4.5 metres away from Post 2. Attached to the defence is a sketch prepared by the defendants which explains the displacement of Post 2 out of a straight line with Posts 3 and 1: according to an annotation on the sketch. Posts 2 and 3 form “a bend in road to allow dustcart and lorry’s (sic) through to Betchworth Site”.

[22]The line between Post 4 and Post 3 appears to bend somewhat to the south compared with the direction of Fort Road to the west of Post 4. The width of the track between Posts 3 to 1 on the southern side and the hedge on the northern side is between 3 metres (by Post 3) and 3.5 metres (by Post 1). However the direction of Fort Road, now necessarily following Posts 3 to 1 on the southern side bends slightly to the left, or north, as it arrives at Point C.

[23]An Ordnance Survey Plan, scaled at 1/2500, by reference to which the claimant’s title to the Fort was registered in about 1990, shows the southern edge of Fort Road within the Fort as continuing to the west of Point C outside the Fort for approximately 3.5 metres in a straight line to the west, while the northern edge of Fort Road bordering on the Nook bends towards the north west. Thus formed on the south of Fort Road to the west of Point C is a right-angled triangle of land, referred to as “the V”.

[24]The V is now separated from Fort Road by Posts 1 to 3. However, in evidence is an aerial photograph of the Nook taken in the early 1990s, probably in about 1992. This photograph clearly shows that at that time there was no barrier of any description between Wendy’s and Fort Road in the vicinity of the V, and the surface of the V appears to be much the same as the surface of Fort Road. At that time no part of the V was readily to be distinguished from the rest of Fort Road.

[25]The first defendant, Mr Turner, explained that the defendants had decided to erect Posts 1 to 3 together with the gates because in recent times, since Mr Nutt became involved with the business at the Fort, cars had been leaving the Fort at speed along Fort Road and on two occasions had nearly knocked down his grandchildren. The purpose of the posts and gates, he said, was to protect his property, this protection being given by the posts rather than by the gates, which are seldom closed. But the obvious result of placing Posts I to 3 was to restrict the available space useable by vehicles passing to and from the Fort. No complaint was first made to Mr and Mrs Worth or to Mr Nutt concerning the speeding problem. The issues

[26]The first question which I have to decide is the width of the land between Points B and C over which the claimant has a right of way. The second is whether any such right existed over any part of the V. The third is whether the defendants’ works have interfered with the claimant’s enjoyment of any such right. The fourth is the relief which should be granted, assuming the claimant to have succeeded on the various issues.

[27]So far as the first and second issues are concerned, the defendants’ pleaded case is that although the claimant does have a right a way along Fort Road, that right is only over land which is not owned by the defendants and comprised in their registered freehold title. It is asserted by the defendants that all the various works carried out by the defendants in 2001 were carried out on the defendants’ land. It is particularly denied that the claimant has any right of way over the V, which is said by the defendants to be included in their land.

[28]I should add that, as to the first and second issues, there is no serious dispute as to the quality of the claimant’s right of way, insofar as the claimant has one along Fort Road: the right includes access for vehicular traffic to and from the Fort for the purposes of a chalet and caravan site there.

[29]The claimant in presenting her case has been content to assume that the defendants’ works have all been carried out on their land, whether or not that is in fact the case. Nevertheless, it is argued for the claimant, the present width of Fort Road between point B and point C as a result of the defendants’ works imposes a practical, and unjustified, restriction on the traffic which may use Fort Road to reach the Fort, the claimant having a right of way over the land, whether or not owned by the defendants, along Fort Road.

[30]Evidence, referred to below, given by an expert surveyor, Mrs Karen French MRICS, appears to be that the defendants’ works in their entirety do indeed lie within the area shown on the plan, referred to by Mrs French as “Plan F”, by reference to which the defendants’ title is registered: this is what is said in one of Mrs French’s reports. However this evidence is at odds with the detailed survey plan (Plan H) attached to Mrs French’s first report, and is in my judgment mistaken. i) Plan F depicts an indentation on the northern boundary of Wendy’s, overlapping with part of the V. According to Mrs French’s main survey plan (Plan H), Post 2 is placed within that part of the V and thus outside, and to the north of, the defendants’ land. ii) Further, Post 4 lies well outside the defendants’ land as depicted by Plan F, as does almost all the kerb between Post 4 and Post 3: what is, according to Plan F as reproduced by Mrs French on her survey plan, the defendant’s land follows a line which is as much one metre behind Post 4.

[31]In view of the position taken by the parties at the trial it is not necessary for me to determine whether in fact Plan F correctly depicts the boundaries of the defendants’ land, or where those boundaries lie.

The evidence and witnesses

[32]I was able to reach my conclusions, described above, from what I saw at a view on the afternoon of the first day of the trial, and also from the clear and helpful reports and plans provided by Mrs French, supplemented by oral evidence given by her as well as by the other witnesses mentioned below.

[33]There has been written and oral evidence directed to the way in which the features in the vicinity of Fort Road have changed over the years since the early part of the twentieth century, the use of the way over that time, and the present position. This evidence has included a letter dated 25 July 2002 from the Land Registry (a letter detailing some of the conveyancing history of the relevant land and describing various maps and plans made since 1914), as well as the testimony of occupants of the four dwellings, namely(a) the claimant, Mrs Worth, and her husband,

(b) Mr Nutt,

(d) Mr Allingham. I also heard evidence from four individuals (namely Mr Cunningham, Mr Godwin, Mr Dyson and Mr Harrington) who have had a connection with the Fort for various periods (15 to 20 years, 12 or 13 years, 10 years and about 50 years respectively), and a further witness (Mr Cook) who was born in 1939 and has lived near by since his childhood. His family had had a house approached down a lane leading off Fort Road between Points A and B, this lane not however having been shown on the 1935 Plan referred to below or any earlier plan and probably having been formed during the late 1930s.

[34]In general the witnesses I have just referred to appeared to me to be doing their best to give accurate evidence within the limitations necessarily imposed by the long lapse of time in relation to some of the matters which they described. I should nevertheless record that I had misgivings about the evidence of Mr Turner and Mr Allingham. On several issues their evidence was at odds with that of witnesses called on behalf of Mrs Worth, particularly that of her husband. Where their evidence differs from that of Mr Worth I prefer the latter’s: he impressed me as a careful and measured witness, while for the reasons I explain I think that Mr Turner and Mr Allingham have allowed their feelings to cloud their vision.

[35]Mr Turner and Mr Allingham are strongly critical of Mr Nutt. Suspicion and dislike of him and his perceived plans for the Fort has, I am sure, contributed to this dispute.

[36]Mr Nutt had been a refuse collection contractor until he retired in about 1993 a couple of years after moving to Hilltop. In that line of work he had experience of driving heavy vehicles. The yard from which his work was carried on was two or three miles away from Hilltop.

[37]Particular grievances against Mr Nutt which Mr Allingham described included among others an allegation that in the early 1990s Mr Nutt had kept a refuse collection vehicle at Hilltop for several months when he first moved there; that he “used to hose down his dustcart outside his house creating a terrible stench”; that he had affected “the peace and quiet of the area ... using chain saws and other power tools at all hours”; that he pruned back foliage on either side of Fort Road between Point A and Point B; and that he “even took it upon himself to prune” the hedge on the north side of Fort Road between Point B and Point C without permission.

[38]I did not understand the allegation about the cutting of the hedge between Point B and Point C to be more than that Mr Nutt had worked on the hedge from the Fort Road side; and I doubt whether any of Mr Nutt’s pruning can have involved any trespass by Mr Nutt onto Mr Allingham’s land, if Mr Nutt was working on the hedge outside the post and wire fence.

[39]I am sure that Mr Allingham has lost his sense of proportion in relation to his various complaints against Mr Nutt. i) Mr Nutt was asked about the storage and hosing down of the refuse vehicle, but not about the power tools or chain saws. He agreed that he had on occasion had such a vehicle at Hilltop: this, he said, was for the most part when he first moved to Hilltop and was clearing Hilltop. He also accepted that he had on occasion hosed one down there. But he said, and I accept, that he did not keep a vehicle there for several months at a time, that his washing of vehicles was primarily at his yard where he had the proper equipment, and that all this stopped as long ago as 1993 when he retired. He also pointed out that no complaint to him had been made until after the present dispute was under way, although the events had happened long ago. ii) Mr Nutt agreed that he had trimmed vegetation along Fort Road between Point A and Point B, pointing out that he did this because otherwise it would become overgrown and also that he was continuing to do what Mr Worth had done before him, evidence which was supported by Mr Worth. What I saw of the Fort Road between Point A and Point B was of verges which were by no means bare of vegetation; on the contrary, it had the appearance of a narrow, single-track, country lane with plenty of vegetation and foliage. I can understand that pruning and cutting would be essential in order to keep the way reasonably open and accessible to the traffic which, unquestionably, had the right to pass to Hilltop and to the Fort. iii) Most importantly, I have no doubt that the hedge to the north side of Fort Road contributes materially to the dispute between the claimant and the defendants. Mr Allingham is zealous in his protection of this hedge. The hedge has in my judgement encroached over what used to be the verge to the north of Fort Road, and has diminished the space which is conveniently used for access to the Fort. iv) In evidence is a photograph, taken since mid-2001, of a 17 ton refuse lorry some 7 foot 6 inches (2.3 metres) wide manoeuvring into the Fort via the entrance gate at Point C. I am satisfied that for such a vehicle it is an awkward manoeuvre to enter into the Fort at this point. This conclusion I have reached without relying on the photograph. The photograph shows no more than is to be expected. What it does show, in particular, is that the hedge on the north side of Fort Road contributes to the difficulty of the manoeuvre. Mr Allingham, nevertheless, commented that the photograph had been staged by Mr Nutt. I do not accept that suggestion, which was denied by Mr Nutt. Having seen the entrance to the Fort I have no doubt that as matters are at present driving any large trade vehicle into the Fort is challenging. v) As to Mr Allingham’s complaint about the elimination of the verge in front of the hedge the explanation is in my judgment simple. Over time the hedge has grown over the verge. That there was at one time such a verge I accept, there being evidence that in the past Mr Turner had on occasion mowed it. But I cannot accept, as Mr Allingham’s complaint would imply, that the width of Fort Road passable by vehicles was at one time no more than about 2.5 metres. This however is what would be necessary if one sought to allow for a 0.5 metre verge before the hedge on the north side of the lane in its present form.

[40]In the case of Mr Turner the position is similar. For example, he accuses Mr Nutt of having widened the road “by cutting down trees and bushes and driving very close to the edge of the road so that it erodes further”. He also accuses Mr Nutt of having “caused criminal damage by cutting back my live hedge to expose my posts”. i) For reasons which I explain, I do not accept that Fort Road has been materially widened, whether by Mr Nutt or by anyone else. ii) The “criminal damage” allegation seems to me to be unfounded. Mr Nutt had cut back one side of the hedge between Hilltop and Wendy’s at its northern end by the larch/lap fence; but the cutting was on the Hilltop side of the larch/lap fence, and in any case appeared to me to be outside the Wendy’s boundary as represented by Mrs French by reference to Plan F (the end of the fence projecting, according to Mrs French’s survey plan, to the north of the defendants’ registered title and into Fort Road).

[41]I give two further examples of Mr Turner’s evidence having turned out to be unsatisfactory, when examined. i) He asserted in his written evidence that along the front of Wendy’s he had had, at a time before the defendants’ recent works were carried out, a series of large stones, painted white, to stop drivers from driving onto the grass verge. Exhibited to his witness statement was a photograph of a large stone with traces of white paint: the sense of the witness statement was that the photographed stone was one of the relevant stones. In fact the photographed stone had nothing to do with the front of Wendy’s: it was a stone which always was, and still is, at Point A, beside the entrance to Fort Road. ii) His written evidence was that three posts had been at the front of his property from before about 1980, one of which is still in position as it has been for over 24 years, the other two having been at about the V in approximately the position of two of Posts 1 to 3. The surviving post the written evidence appeared to identify as Post 4, which had in fact been put in place by Mr Turner in May 2001. Mr Turner’s oral evidence was that he had really intended to convey that Post 4 was in the place where there had been a post 24 years ago. In fact, contrary to what he had stated in his written evidence, none of the three supposed original posts “is still in position”.

[42]There are two final points. First, I reject Mr Turner’s evidence that in 1980 there were wooden posts where any of Posts 1 to 3 now are. The previous owner of Wendy’s, a Mr Smith, had cleared away from the front of Wendy’s any fencing, and the front was open. This I explain later.

[43]Secondly, I have referred earlier to the north end of the larch/lap fence dividing Wendy’s from Hilltop. Mr Turner’s evidence was that this had been in place from before the time when he acquired Wendy’s. Whether or not that is correct, I do not think that the post now at the end of this fence was the same as a wooden post noted by the Ordnance Survey on a sketch of the area made in 1975 as marking the northwest corner of Wendy’s: in my judgment it is more likely that the post was put in place at some time after 1975, when the larch/lap fence was constructed to replace the hedge shown on the 1975 Ordnance Survey sketch. There are three reasons. i) First, the post noted by the Ordnance Survey was described as being 30 years old. The post which is present today does not have the appearance of dating from 1945. ii) Secondly, the sketch marks the width of Fort Road at one end as 4.8 metres and as 4.0 metres at the other. It depicts the lane as straight, with the V being shown as the only irregularity. Had the way narrowed materially at the position of the post it is likely that this would have been noted on the sketch. iii) Thirdly, Plan F does not include the position of the post within the boundary of the defendants’ land, if as I think, Mrs French’s main plan (Plan H) is correct in representing what is encompassed within the defendants’ land as shown by Plan F; and both Plan F and the Ordnance Survey Plan by reference to which the claimant’s title was registered in 1990 depict Fort Road as running straight for its full length, the V being the only irregularity.

The paper position

[44]In my judgment the claimant has by express grant a right of way along Fort Road from Box Hill Road to the Fort, being a right:

“at all times ... and for all purposes with or without horses sheep cattle and other animals carts carriages wagons steam motor or other vehicles agricultural and other machinery...”

[45]In about 1921 the Fort was conveyed by the then owner, to the claimant’s father and predecessor in title, Mr Cheston. The actual conveyance was lost at some date after about 1971. However there is positive evidence about the content of the conveyance which satisfies me that by that conveyance there was an express grant of an easement of way over Fort Road in the terms I have just quoted. This evidence is as follows: i) The Fort was in the early years of the twentieth century comprised in land which formed part of the Deepdene Settled Estate. All the surrounding land on three sides, to the west and north and east, formed part of this estate. There is a plan from the 1914 edition of the County Series Sheet, scaled at 1:2500 (“the 1914 Plan”), showing the Fort as being approached by a track following the line of Fort Road. ii) The claimant was given by her solicitor in about 1972 a document similar to, but probably a little older than, the 1914 Plan. She was told that it was a plan of the property. This plan showed the Fort outlined in red and also depicted a track roughly, but not exactly, along the line of Fort Road, coloured yellow and with Points A, B and C marked along it. My reason for thinking that this plan is an earlier representation of the land at and around the Fort is that it does not show, as the 1914 Plan does, the small addition on the north side of the semidetached caretakers’ cottages. iii) An abstract of title in the possession of the defendants dating from about the 1940s, being an abstract relating to the conveyancing of Wendy’s, describes a conveyance made in December 1921 of the land surrounding the Fort on the north, this land being conveyed to a Mr Thompson. It is from Mr Thompson that both the defendants and Mr Nutt derive their title, the length of Fort Road and the land on either side having been conveyed by the December 1921 Conveyance. A plan with the abstract, being a copy of the conveyance plan, marks approximately the line of Fort Road and also points A, B and C. iv) The abstract describes the December 1921 Conveyance as having been made subject to an existing easement of way in favour of Mr Cheston to the Fort along Fort Road between points A, B, and C, the terms of the easement of way being as set out above.

[46]Nevertheless, as Mr Smithers, the defendants’ counsel, rightly submits, the extent of the way granted expressly to Mr Cheston in 1921 is likely to have been affected by the state of affairs at the Fort and the width of Fort Road in 1921, when the grant was made. The plan provided to the claimant in 1972, although scaled, does not itself give any firm indication as to the useable dimensions of Fort Road. The only indication which the documents provide as to what was set out in the deed granting the right of way is the 1972 copy plan and the description given in the abstracted December 1921 Conveyance.

[47]It is fair to infer, in my judgment, that Fort Road was used in the construction of the strong point in the Fort; and it is the claimant’s evidence that during and shortly after the Great War her father used the Fort as a chicken farm and tea rooms, for which purpose access would have been needed to Box Hill Road, and that it was in about 1921 that the use of Fort for chalets began. I set out later my conclusions as to the width of the way expressly granted.

[48]On 17 January 1922 the parcel of land on which Wendy’s and Hilltop came to be built was conveyed by Mr Thompson to a Mrs Johnson. The evidence for this conveyance is, again, the abstract of title referred to above. The conveyance gave a right of way along Fort Road to Hilltop (Point A to Point B) in similar terms to that quoted above; but it excluded the part of Fort Road between Points B and C from the area of land conveyed, and gave no right along Fort Road to Point C. The abstract includes a scaled plan (“the 1922 Plan”) from this 1922 conveyance, the scale in the trial bundle being at about 1 inch to 200 feet. The width of Fort road depicted on the 1922 Plan, according to Mrs French, varies between 3.6 metres and 4 metres along its length. The defendants by their amended defence include this plan as one to which reference should be made in determining the extent of any way expressly granted to the claimant’s father.

[49]On 5 October 1933 Mr Thompson’s widow conveyed to Mr Allingham’s predecessor in title the land on which subsequently the Nook was constructed. Included with this conveyance is a scaled plan (“the 1933 Plan”) showing the land conveyed, and also the length of Fort Road. The scale is at 1 inch to 100 feet. If the 1933 Plan correctly depicts the width of Fort Road, between Points A and B Fort Road was some 15 foot 6 inches wide (almost 4.8 metres) and between Points B and C was possibly a little more than 18 foot wide (approximately 5.5 metres). In addition Fort Road appears to have continued in a straight line from the Fort past Point C for several feet before swinging north/west towards Point B: this seems to be indicated by a line on the plan which seems to mark the separation of the Fort from Hilltop/Wendy’s.

[50]There is no indication as to the ownership of Fort Road itself after the January 1921 Conveyance. So far as the documents go, Fort Road still is in the ownership of Mr Thompson’s estate. Nevertheless, each of the defendants, Mr Nutt and Mr Allingham, deriving their title to their land from Mr Thompson, would hold their land subject to the easement of way in favour of the claimant, if and to the extent that Fort Road lies on their land.

[51]The 1935 edition of the County Series Sheet (“the 1935 Plan”) confirms that by that time Hilltop and Wendy’s had been laid out and built. However, it was not until about 1942 that the two plots were conveyed into separate ownership, a Mr Fallek purchasing Wendy’s. That same 1935 Plan also shows that the Nook had not yet been built, Most significantly, it corresponds with the 1933 Plan in depicting Fort Road between Points B and C as being of several metres width, certainly much greater than 3 metres and indeed greater than 4 metres. This depiction was by means of solid lines on the 1935 Plan. According to the Land Registry’s letter of 25 July 2002, these lines show physical boundaries separating buildings from surrounding land.

[52]As the 1935 Plan showed the width of Fort Road from Point B to Point C outside the Fort as being much wider than Fort Road within the Fort, but with the northern edge of Fort Road connecting at Point C, the effect was to show that at Point C, approximately in the vicinity of the V, there was a considerable area outside the Fort on the south side of Fort Road which could be used as turning space for any traffic swinging wide to gain a clear entrance to the Fort through any gate at Point C.

[53]There is a plan attached to the 1942 Conveyance of Wendy’s. This 1942 Plan is scaled at 1 inch to 100 feet. It seems that Fort Road between Point A and Point B has been represented on the 1942 Plan by lines one-eighth of an inch apart (that is, lines suggesting a width on the ground of 12 foot 6 inches, or 3.8 metres approximately). Between Point B and Point C the plotting of Fort Road appears somewhat reduced, in particular tending to taper slightly from Point B to Point C. However, I doubt whether this was intentional or was aiming to represent anything other than a width of approximately 12 foot 6 inches: to my mind this depiction of the width of the way at this point does not appear to have been carried out with a view to precision.

[54]In about 1946 a Mrs Unwin acquired Wendy’s. Later, in 1974, Mrs Unwin made a statutory declaration in which she claimed a prescriptive right of way to Wendy’s along Fort Road from Point B: the 1922 Conveyance had only given a right of way From Point A to Point B, and not on towards Point C. Interestingly this prescriptive right could not have included a right of vehicular access, if the submission made by Mr Smithers for the defendants concerning the effect of Massey v Boulden

[2002] EWCA Civ 1634

[2003] 2 All ER 87

, referred to below is correct.

[55]Mrs Unwin’s statutory declaration was made at the time when Wendy’s was sold by Mrs Unwin to Mr Smith and the freehold title of Wendy’s came to be registered. At the time of the sale the 1971 National Grid Map scaled at 1:1250 (“the 1971 Plan”) showed the width of Fort Road between Points B and C to be in the order of four metres (just over 13 feet). More particularly, that 1971 Plan showed the V quite distinctly.

[56]In 1975 the Ordnance Survey prepared a sketch of the area. On this sketch were marked several of the features along Fort Road between Points B and C. What is notable is that in front of Hilltop near Point B the width is noted as “4.8 m” with an annotation “edge of tarmac”. Further along the V is distinctly shown. The south part of the V is marked as “wooden gate 30 yrs” and next to that “traces of hedge 15 yrs” and “2 strands of barbed wire on wooden posts 10 yrs”. The width at Point C is marked as 4 metres.

[57]The claimant’s title to the Fort came to be registered in 1990 by reference to an Ordnance Survey Plan scaled at 1:2500. The date of this plan is not known. However it appears similar, if not identical to, the 1971 Plan. Broadly it appears to accord with what was recorded on the 1975 sketch.

[58]Meanwhile the defendants’ title to Wendy’s came to be registered by reference to Plan F, referred to above, which is shown as Crown copyright 1975. This appears to have placed the V further to the west than any of the 1971 Plan, the 1975 sketch or the plan by reference to which the Fort was registered.

[59]I doubt whether Plan F was as accurate, as a depiction of the position of the V, as these last three plans and sketches. The appearance of the V in the 1992 aerial photograph accords much more with what appears in the 1971, the 1975 sketch and the plan by reference to which the Fort came to be registered. What is more, the 1933 Plan and the 1935 Plan both indicate a space to the west of Point C which coincides with the V as placed on the 1971 Plan.

[60]Mrs Worth’s evidence was that in the early days the land around Fort Road was open and bare of trees. The 1914 Plan, the 1933 Plan and the 1935 Plan all suggest that that description is likely to be correct.

[61]Mrs Worth gave evidence that the Nook was built in the 1930s and that initially it was separated from Fort Road by a post and wire fence. This would be consistent with the 1933 Conveyance which had required the purchaser to erect a fence to enclose the site of the Nook. It is probable that the fence now within the hedge on the north of Fort Road is the remains of this same fence. Mr Cook explained that he recalled a small live hedge planted inside, that is to the north of, the fence.

[62]So far as necessary I conclude that the boundary of the Nook follows the line of that fence for the length of Fort Road south-east to a feature (probably a post) marked by Mrs French on her main survey plans (Plans H and H1) with a cross, and from there to the northerly of the two gate posts at Point C. This more or less coincides with the line depicted by Mrs French as possibly representing the boundary of the land conveyed by the 1933 Conveyance. When determining the width of the land along Fort Road over which the claimant has a right of way I consider that the line of the fence along to the marked feature, and from there to the gate post, provides a convenient base for measurement.

Conclusions as to extent of way expressly granted

[63]I am now able to set out my conclusions as to the width of the way expressly granted to Mr Cheston along what is now the front of Wendy’s between Point B and Point A.

[64]I have already described the submission made on behalf of the defendants by their counsel, Mr Smithers. Mr Green, the claimant’s counsel, submitted that the 1935 Plan could be relied upon as depicting the width of Fort Road between Point B and Point C, and hence of the way granted, between those points back in 1921.

[65]I do not accept that the 1935 Plan, nor even the 1933 Plan, can be used as a starting point when deciding upon the width of the track in 1921. By 1935 the land comprising Hilltop and Wendy’s had been built on, and the site of Nook had been fenced off. At most they are consistent with, and perhaps to some extent support, a conclusion that the grant was over a track which was wider than the 3 metres or so suggested (according to Mrs French) by the 1914 Plan.

[66]For the applicable principles in reaching a conclusion as to the width of the way expressly granted in 1921 I was referred to Gale on “Easements”, 17th edition, paragraphs 9-14 to 18 and 9-70. The principles are summarised in paragraph 9-14, which includes on page 329 the following statement:

“In the absence of any clear indication of the intention of the parties, the maxim that a grant must be construed most strongly against a grantor must be applied. But a question of construction is a question of law in respect of which no burden of proof lies on either side. In particular in construing a grant the court will consider (1) the locus in quo over which the way is granted; (2) the nature of the terminus ad quem; and (3) the purpose for which the way is to be used.”

[67]I have set out earlier in this judgment the evidence concerning the state of the land in 1921 over which the way was granted, and also of the nature of the Fort and use to which it was then being put.

[68]As to the purpose for which the way was to be used, this was covered by the express terms of what I find to have been included in the 1921 Conveyance, namely that the grant was for all purposes, that is for any purpose for which the several acres of land at the Fort might be put; but of course, that purpose might be subject to a practical limitation imposed by any restriction on the size of the traffic which could use the way, subject nevertheless to the circumstance that the grant contemplated vehicular traffic of a kind which in 1921 could be regarded as heavy. There is also some evidence that by about 1921 development of the area around Box Hill Road for residential purposes was in prospect. Specifically the 17 January 1922 Conveyance as described in the abstract, referred to above, contained a plan which showed the land to the west of Fort Road divided into several plots of land and depicted a “building line” parallel with Box Hill Road. The Conveyance also dealt with the connection of Hilltop/Wendy’s to a public water supply, and contemplated that Fort Road between Point A and Point B could become “a public highway maintainable by the inhabitants at large”.

[69]The width of Fort Road as it existed in 1921 from Point A along to Point C was in all likelihood already sufficient for vehicular access to the Fort, given that that was almost certainly the way used when the Fort was being built some 20 years before and was the way used by Mr Cheston for his chicken farm and tea room and, from about 1921, for the chalet business. When the 1921 conveyance granted a right of way with agricultural machinery or other machinery and with steam motor or other vehicles, I conclude that it was granting a right which could be exercised over the existing track without further widening.

[70]What then was the width of that track between Point B and Point C? I have come to the conclusion that the track’s width was 12 foot 6 inches (3.81 metres) extending southwest from the line on the northeast side which I have identified above. There are two principal reasons for this conclusion. i) First, I have already made reference to the 1922 Plan. That, it seems to me, is the nearest there is to contemporary documentary evidence of the width of the way in 1921. It labels Fort Road as “roadway”. At the scale used one-sixteenth of an inch represents 12 foot 6 inches (3.81 metres); and so far as I can judge it the draftsman of the plan has attempted to represent Fort Road by lines one-sixteenth of an inch apart. ii) The second reason concerns the width between the gateposts at Point C at the entrance to the Fort. This width is about 12 foot 6 inches. The way between the posts is likely to have been more or less the width of the track leading up to and beyond the posts. The existing posts have been in position since about 1970. According to the claimant these replaced much older wooden ones which had been in exactly the same position.

[71]I should record at this juncture that Mr Cook’s written evidence was that before 1950 “the entrance to the [Fort] was slightly narrower than the lane itself’. This evidence would be consistent with the depiction on the 1935 Plan. It would also be consistent with the 1975 Ordnance Survey sketch, which recorded the width of Fort Road at Point C as having been 4 metres in 1975 (that is, slightly wider than the width of the gate).

[72]When cross-examined, however, Mr Cook said that his written evidence was wrong. I think he was mistaken about that, and that his earlier evidence, supported as it is by the documents was correct. I was not convinced by his explanation, that his memory had become clearer with the passage of time. I think, rather, that since he made his statement his memory on the point is likely to have become confused by what he has heard others say in relation to this case.

[73]My conclusion concerning the width of the way expressly granted would place Post 4 and most of the kerb leading towards Post 3 within the southern edge of that way, measuring 3.81 metres from the line of the post and wire fence. However, Posts 3 to 1 would be outside that way.

[74]I should confirm, lest there be any doubt, that in my judgment there was no express grant of any right of way over the V. The V lies outside the 3.81 metres. The plan given to the claimant by her solicitor in 1972 shows Fort Road as being marked out by parallel lines, without any deviation for the V. Neither the 1914 Plan nor the 1922 Plan shows any sign of deviation. And there is no evidence before me which could lead me to conclude that the parties to the 1921 Conveyance contemplated that the traffic for which the right of way was being granted along Fort Road was such as necessarily to require “elbow room” beyond 3.81 metres to negotiate the turn at Point C into the Fort. Prescription

[75]This then brings me to the claimant’s case based on prescription. As regards the width of the way by Post 4 and the kerb, this case is only necessary to consider in case my conclusion as to express grant is found to be wrong. But the claimant’s case in relation to the V and Posts 3 to 1 can only succeed, in my judgment, if the prescription claim is made out.

[76]Before considering the facts any further, I should comment on the applicable principles.

[77]I have referred above to the case of Massey v Boulden

[2002] EWCA Civ 1634

[2003] 2 All ER 87

in the Court of Appeal. In that case Simon Brown LJ said (at para 9) that the fact that “a prescriptive right of way cannot be acquired by a user in breach of a criminal statute is well established ...". By reference to that case Mr Smithers submitted that it was not open to the claimant to acquire by prescription any easement of way with vehicles along Fort Road between Points B and C, or over the V, unless the way in question was along “land forming part of a road”. This was because the driving of vehicles along those parts of Fort Road would involve the commission of an offence under section 34(l)(a) of the Road Traffic Act 1988 and its predecessor provisions going back to the Road Traffic Act 1930, unless those parts of Fort road were a public highway or “any other road to which the public has access” (that being the defined meaning of “road” within section 192 of the 1988 Act). Thus Massey v Boulden is Court of Appeal authority that it is not possible to acquire by prescription an easement of way with vehicles where the activities relied upon to establish that prescriptive right involved the commission of an offence under section 34(l)(a) of the 1988 Act and its predecessor provisions.

[78]While Mr Smithers accepted that the relevant parts of Fort Road could be a road, if the public had access to them within the meaning of section 192 of the 1988 Act, he submitted that on the evidence the public did not have such access. For this the relevant access had to be by the public using the road “as a road” (see per Simon Brown LJ at para 23; contrast the dissenting judgment of Mantell LJ at para 101).

[79]As a matter of fact any member of the public could walk or drive along Fort Road between Point A and Point B. There has never been anything at Point B to restrict anyone passing on from there to Point C. Only at Point C was there a gate; and only at Point C is there any indication that what lies beyond is “Private”, this indication being a sign on the gate at Point C. It seems, however, that this may not be enough to satisfy the section 192 definition. According to the submission made by Mr Smithers, it has to be shown that members of the public have in fact been accessing the road, not having “obtained access either by overcoming a physical obstruction or in defiance of prohibition express or implied” (per Lord Sands in Harrison v Hill 1932 JC 13 at 17). This is what is meant by the expression “road to which the public has access”. It is not enough that the land in question has the appearance of what a layman might call a “road” and is readily accessible by any member of the public who might choose to pass along it.

[80]Although for many years a wide variety of people have used Fort Road to travel over to the Fort for a wide variety of purposes, none of these qualify, submits Mr Smithers, as members of the public, because they are all of “the special class of members of the public who have occasion for business or social purposes to go to” the Fort (cf per Simon Brown J in DPP v Vivier

[1991] 4 All ER 18

at 2lj).

[81]I find it difficult to justify the conclusion that such a large and diverse group of people using Fort Road between Point B and Point C could fail to qualify as “the public”. They are hardly a “special class”. They would include everyone visiting Wendy’s for whatever reason; they would include anyone who drove along the BOAT between Points A and B and then passed on to Point C with a view to turning around; they would include the occupants of the chalets and caravans at the Fort and anyone visiting any of those people for any reason; they would include the Fire Service when coming up to the Fort for exercises (as they did) or for dealing with emergencies at the Fort or on the Downs beyond the Fort. If necessary I would hold that Fort Road was used by the public as a road, and that this use included each and every part that was for the time being available for use.

[82]In the event it is unnecessary to reach a conclusion on this point. This is because following the conclusion of the trial of this action the House of Lords gave judgment in Bakewell Management Ltd v Brandwood

[2004] UKHL 14

[2004] 2 WLR 955

. In that case the House of Lords rejected the proposition that user of a way in breach of a criminal provision is a bar to the acquisition of a right of way by prescription. The particular provision at issue in Bakewell was section 193(4) of the Law of Property Act 1925 rather than section 34(1)(a) of the 1988 Act. However, Lord Scott of Foscote at para 26 of his speech said that there was no material distinction between the two provisions, and said that Massey was wrongly decided.

[83]The basic principle, as I understand it, is that a provision such as section 34(l)(a) of the 1988 Act is irrelevant in any case where it would only render criminal the relevant activity (driving a vehicle off-road) in the absence of lawful consent from the person or persons against whom the prescriptive right is claimed, being the person or persons qualified to grant by deed the claimed right.

[84]Lord Walker of Gestingthorpe explained (at para 49) that the basis of the law of prescription of easements and profits is that long-continued open and peaceful enjoyment of an apparent right should if possible be ascribed a lawful origin. But one of the requirements, if the presumption or inference of lawful origin is to be made, is that the apparent right should be capable of being created by an express grant made by deed. It is therefore necessary to be able to identify the supposed grantor and grantee. In contrast with the case of Neaverson v Peterborough RDC

[1902] 1 Ch 557

, to which Lord Walker made reference, in the present case, as in the Bakewell case, the supposed grantor is readily identified: it is the freehold owner of the land over which the track ran and which was crossed by the claimant and, before her, her father. With a grant of an easement of way for vehicles there could have been no offence committed under section 34(l)(a) of the 1988 Act. To borrow Lord Walker’s comment at para 60, “... it is the landowner’s unfettered power of dispensing from criminal liability, exercisable at his own discretion and if he thinks fit for his own private profit, which is the key ...”.

[85]Under the circumstances counsel are agreed that I am not bound to follow the decision in Massey v Boulden, but may instead apply the principles laid down in Bakewell and disregard section 34(l)(a) in considering whether the claimant’s claim for a prescriptive right of way with vehicles over the disputed land is made out.

[86]The claimant rests her claim for a prescriptive right of way in the alternative on the doctrine of lost modern grant and under the Prescription Act 1832. The distinction between the two bases for the claim is that in the former case the claimant can rely on any 20 year period of uninterrupted enjoyment of the claimed way since 1921, whereas under the 1832 Act the relevant period, whether 20 or 40 years, is that ending in April 2003 when this action was started. For the defendants Mr Smithers accepts that the period of any interruption in the enjoyment between May 2001 and April 2003 caused by the defendants is to be disregarded for a claim based on the 1832 Act, as the interruption was objected to by the claimant: in practice therefore the required minimum period of uninterrupted enjoyment under the 1832 Act is 18 years or so from March 1983.

[87]Subject to that distinction, the claimant must in each case prove, in relation to the relevant period, open and peaceful enjoyment of the claimed right, the activities relied upon not being authorised by some licence or permission (as distinct from acquiescence) on the part of the landowner. Further, the enjoyment of the right must be definite and continuous.

[88]As to this Mr Smithers, citing the text of Gale, “Easements”, 17th edn, p 228, para 4-103, accepts that in the cases of an easement of way, which is enjoyed by repetitive acts, this requirement will be satisfied where what is shown is of such a nature, and takes place at such intervals, as to afford an indication to the landowner that a right is claimed against him.

[89]But, submits Mr Smithers, such an indication will not be afforded by mere accidental or occasional exercise. This submission is of particular importance in relation to the V. Mr Smithers urges that such use as was ever made of the V by those travelling to the Fort was so infrequent and irregular as to be consistent with the landowners’ “mere tolerance of the unimportant” (to quote from the judgment of Russell LJ in Alfred Beck v Lyons

[1967] 1 Ch 449

at 476); and he cites Ironside, Crabb and Crabb v Cook, Cook andBarefoot

(1981) 41 P&CR 326

as supporting the proposition that in the present case the acts relied upon did not have the requisite frequency and regularity. I shall return to this point after setting out my findings as to the state of the track between Points B and C and the use made of it over the period since 1921.

[90]In my judgment the area of Fort Road between Points B and C which I have held to have been the subject of an express grant of an easement of way (ie the whole width of the land extending 3.81 metres (ie 12 foot 6 inches) from the line on the northeast was used, throughout the whole period, continuously by pedestrians and vehicles passing to and from the Fort. The traffic would have been of the volume and nature consistent with up to 60 domestic units at the Fort: that is, frequent journeys by individuals on foot and by wheeled vehicles including private motor cars, vans and trade vehicles. No doubt the volume of traffic was greater in the summer months than in the winter; but seasonal fluctuation in the volume of traffic does not necessarily prevent the use having the requisite frequency and regularity, a point established by the case of Mills v Silver

[1991] Ch 271

, to which Mr Smithers made reference.

[91]I should say, in case there were any doubt, my conclusion is that throughout the relevant period, until at any rate the construction of the disputed works, the way fronting Wendy’s was open for traffic at least to the distance of 3.81 metres measured from the line on the north-east. The question, however, is whether any greater width was open measured from that line, and if so whether and to what extent it was used for traffic passing to and from the Fort. The V is, of course, of particular importance.

[92]The evidence of the state of Wendy’s frontage is as follows.

[93]In relation to the period down to about the 1940s there is the claimant’s testimony together with the 1922, 1933 and 1935 Plans. During this period I have no doubt that the way was open to a width of some 12 foot 6 inches along the front of Wendy’s. I have mentioned earlier the claimant’s evidence about the land being open; but at some time silver birch trees grew up along the line of the two silver birch trees which remain: these trees are likely to have been at least a couple of feet outside the used way.

[94]From 1946 to 1974 Mrs Unwin lived in Wendy’s. In her time there came to be a wire fence of some description fastened on, or immediately in front of, silver birch trees on the line of the present trees. There was also a path leading to the cottage itself, there being a small gate in the fence. What is not clear, however, is what lay between Fort Road and Wendy’s at the northeastern frontage. At some stage a small garage was constructed on the Fort side of Wendy’s. This is depicted on the 1971 Plan and Plan F, and was in existence long before 1975 and certainly during Mrs Unwin’s ownership of Wendy’s. The way from this garage to Fort Road lay north along the eastern boundary of Wendy’s to the southern edge of the V. It is possible that at the southern edge of the V Mrs Unwin had a wooden gate separating the way to the garage from Fort Road. None of the relevant witnesses, namely Mr and Mrs Worth, Mr Harrington or Mr Cook recalled this feature; but the 1975 Ordnance Survey sketch plan identifies there as being at that place a “wooden gate 30 yrs”. To my mind the likelihood is that there was such a gate.

[95]Whether or not there was such a gate ultimately is of no consequence. What is important is that the V was open. This much is established by the evidence of Mr and Mrs Worth and of Mr Harrington. No doubt leaving the V open was convenient to allow turning room from the garage onto Fort Road. Gates on the southern edge of the V would not affect this. But it is of importance that there were no gates along the northern edge of the V to divide the V from Fort Road. Further, given the evidence (which I accept) about Mrs Unwin’s fence, the line of the southern edge of Fort Road to the west of the V was likely to have been closer towards the line of the birch trees than it is today, and was probably no more than a couple of feet away, say about 0.6 metres.

[96]From 1974 until 1980 Mr Smith lived in Wendy’s. Mr Worth’s evidence was that Mr Smith was very happy-go-lucky and uninterested in maintaining his boundaries: he commented that Mr Smith was highly amused when his garage blew down in the late 1970s. The defendants’ pleaded case is that by the time they purchased Wendy’s the fence on the front had been removed. During this period Mrs Unwin’s fence was removed from the front of the birch trees: and the same must have happened to any gates on the southern edge of the V: for the whole period of the defendants’ ownership of Wendy’s until 2001 the V was open to Fort Road and there was no fence or gate on its southern edge.

[97]By 1980 a turning circle was created to allow vehicles to pass into Wendy’s at its north-west boundary and out again at the V. This had been done by Mr Smith before the time the defendants acquired Wendy’s. The effect of the turning circle was to leave a grass area around the birch trees.

[98]Earlier I have referred to Mr Turner’s written evidence that when the defendants acquired Wendy’s there were two wooden posts placed into the V in approximately the same position as two of the posts put up in 2001. I do not accept this. Any wooden posts which were in the vicinity of the V before 1980 would have been roughly along the southern edge of the V and by Post 3, and were removed by Mr Smith when he removed Mrs Unwin’s fencing.

[99]After 1980 Mr Turner placed, on the island of grass immediately in front of the birch trees formed-by Mr Smith’s-turning circle and Fort Road, a line of ornamental small white posts joined with plastic chain-linking. He has dated this line of posts variously to about 1986 and the early 1990s. This line ran from somewhere by, but behind, Post 4 along to somewhere by Post 3. Later the chain-linking was removed as it tended to break when Mr Turner was mowing. Next, during the late 1990s, Mr Turner planted a row of small firs in between the white posts. These are still present. Finally, when Mr Turner carried out the disputed works the white posts were removed.

[100]The precise distance of the white posts from the post and wire fence on the other side of the track cannot now be measured; but the distance is likely to have been about 4 metres. My reason for this conclusion is that Post 4 can be seen from photographs taken during the course of the works to be about 20 or 30 centimetres in front of the line of the white posts; and another photograph showing the line of posts suggests that they were about that same distance in front of the line of the birch trees.

[101]There is a conflict of evidence as to whether or not Mr Turner had at one time had large painted stones along the grass in front of the birch trees. Any such stones were, as I conclude, along the line followed by the small white posts: that was where Mr Allingham recalled the stones as having been placed.

[102]Mr Turner’s evidence was to the effect that extending some two foot in front of the small white posts was a grass verge. This I believe to be exaggerated. One of the photographs in the trial bundle shows only a small verge before the line of white posts. As I have said, about two foot would have been the distance between the line of the birch trees and the part of Fort Road travelled by vehicles.

[103]In the vicinity of Post 4, before that post was put in place, there was a tap fixed to one of the white posts. Mr Turner gave oral evidence to the effect that this tap had been at one time on a standpipe which lay further into Fort Road, that post having been put in place by Mr Smith, and that it was in the early 1990s that the tap was moved back onto the white post, when the line of white posts was put in place. This evidence is at odds with Mr Turner’s written evidence, which seems much more convincing, that he had kept the water supply in the same place for the entire time that he had lived at Wendy’s.

[104]To the southeast of the line of white posts the V remained open. It is common ground that throughout the period of the Defendant’s occupation of Wendy’s, until May 2001, the position at the V remained unchanged from that shown by the aerial photograph taken in about 1992. This shows plainly the V as one would expect it from the 1985 Ordnance Survey Sheet.

[105]Disregarding the V for the moment, my conclusion is that subject to one point the width of Fort Road to the west of the V conveniently available for the time being for the passage of vehicles passing to and from the Fort has been of the order of 3.81 metres (12 foot 6 inches) measured from the line on the north-east side of the track. The one point is this. At some time between about 1975 and 1990 the larch/lap fence was constructed, and its end projected into Fort Road constricting Fort Road at that place and reducing its useable width there to about 3.6 metres.

[106]As to the V, my conclusion is that this was available for the passage of vehicles from before 1975; indeed I think it likely that it was available for long before that time, at least during Mrs Unwin’s period of ownership, as the gates on the southern edge of the V were described on the Ordnance Survey sketch as being 30 years old. I am unable to reach any conclusion as to the position before 1946. I should add that since 1980 at the latest the surface of the V appears to have been largely indistinguishable from the rest of the track in the vicinity of the V. Certainly the aerial photograph of about 1992 shows no material distinction, and there is no evidence that what was shown in that photograph was in this respect different from what had gone before during the defendants’ ownership of Wendy’s or from what continued until May 2001.

[107]In my judgment the area of Fort Road from time to time readily usable by vehicles has in fact been used by vehicles. As to the part of Fort Road leading up to, but excluding, the V, the position is straightforward. There is ample evidence of the use of Fort Road by motor vehicles of all descriptions from the 1920s on. There is no reason to suppose that this traffic confined itself to any particular part of the available carriageway.

[108]Therefore the use of Fort Road, apart from the V, was in my judgment clearly sufficient, being frequent and regular, to establish a right of way by prescription over the parts of Fort Road available for passage for the time being. This is so whether the prescription is under the 1832 Act or by application of an inference of lost modern grant. i) For the purpose of the 1832 Act I accept that there has been uninterrupted enjoyment between March 1983 and May 2001, when the defendants’ works were carried out. ii) In any case I accept that sufficient use has been demonstrated for the whole period from the 1930s down to May 2001, so that by an application of the doctrine of lost modern grant the existence of the right would be established, whatever period of 20 years one chose within that longer period.

[109]As to the V, the position is less straightforward. Not all vehicles would have needed to use any part of the V: in particular, smaller vehicles such as private motor cars, would not need to pass onto the V, and to do so other than to a small extent would have been a deviation from the direct line of a journey into or out of the Fort. Larger vehicles, such as trade vehicles or vehicles towing trailers, would only have been a comparatively small proportion of the total traffic.

[110]Nevertheless, each of Mrs Worth, Mr Worth, Mr Nutt and Mr Harrington gave evidence of having seen others use parts of the V, or (in the case of Mr Worth and Mr Harrington) of having themselves used or been in vehicles using the V. Mr Cunningham described how he drove into the Fort in a 3.5 tonne van and swung wide into the V to clear the entrance to the Fort; and Mr Godwin gave similar evidence of his use of the V with a Fort Transit type of vehicle, while Mr Harrington described similarly his journeys with a trailer, and Mr Dyson his journeys in large delivery vehicles. i) In an ordinary saloon car the purpose of using the V would be to gain a better sight line around what is otherwise a blind and narrow corner. ii) In the case of a trade vehicle, which could be wide and with a long wheel-base, or in the case of a vehicle towing a caravan or trailer, the purpose would be to assist entry to or exit from the Fort in a comparatively straight east-west direction along the line of Fort Road. This is an advantage (if not a necessity) for a large vehicle manoeuvring through the gate: the extent of the advantage for the vehicle would depend upon many variables such as length, width, position of wheels, number of axles with steering, etc, which would make the vehicle more or less capable of being turned in the limited space.

[111]In this regard evidence was given by Mr Turner, Mr Allingham and Mr Cook which tended to show that the restriction imposed by the width of Fort Road from Box Hill Road to Point B was such that until about 1990 no vehicles of more than about 3 tonnes could pass from Point B to Point C, and that in fact no such vehicles ever did pass on to Point C, and therefore that there were no vehicles having occasion to use the V during a sufficient period to allow the acquisition of a prescriptive right of way across the V. Thus: i) Mr Turner stated that for “the first 10 years of my occupation at Wendy’s Cottage ... heavy vehicles could not get up the lane and that dustcarts used to be the small type dust cart with flip-up panels”. He said that trucks of the 1 to 3 tonne range (that is, a Fort Transit type van or small delivery van) were the largest which could get up Fort Road. He added that he understood that in the 1980s there was a fire at the Fort and that only a specially small fire tender called “Nellie” could get to the Fort. Now, in contrast says Mr Turner, any dustcart or fire tender can easily reach the Fort. Mr Turner also gave evidence that the entrance to Fort Road was narrow and tunnel-like with trees pressing upon the track. ii) Mr Allingham also gave evidence of the narrow and tunnel-like appearance of the entrance to Fort Road, and explained how, when he first moved to the Nook (that is, in 1986), Fort Road was just about wide enough for a Sherpa van (a 1 tonne vehicle) and that until 1991 the only dust carts seen down Fort Road were small flip-up panel-sided vans. iii) Mr Cook gave evidence as to the width and use of Fort Road which was similar to that given by Mr Turner and Mr Allingham, saying that the narrow and tunnel-like appearance of the entrance went back into the 1950s.

[112]In contrast with this evidence is that given by Mr and Mrs Worth, as to the vehicles which over the years have had access to the Fort. i) Over the years mobile homes and caravans have reached the Fort. Mr Worth recalled a 22-foot caravan being brought up on a transporter. Over the years wide vehicles, including a London Tram Trailer measuring 7 foot 6 inches (approximately 2.3 metres) wide and caravans and mobile homes of upwards of 8 foot (approximately 2.5 metres) have come up to the Fort. ii) Mr and Mrs Worth also gave evidence about the visits of the fire services to the Fort over the years for a variety of reasons including exercises, rescue operations and attending to grass fires. Mrs Worth denied that in the 1980s the fire service had had to send a particularly small fire engine. The fire engines would unquestionably have been greater than 3 tonnes. iii) Although Mrs Worth agreed that there was a time when the dustcarts were of the van type, her evidence was that long ago, she thought in about 1974, these were changed to large ones. Mr Worth could not recall the time of the change, but his memory was mostly of the large ones coming up. The Transport and Facilities Manager of the Council has written to say that the use of the van type dustcarts had been discontinued from the late 1970s and was stopped in about 1980; and Mr Nutt recalls, and I accept, that in 1991 when he first arrived the dustcarts being used were the 16-tonne, 9-foot wide, variety. It was a dustcart of that type which he himself brought up to Hilltop in 1991. iv) Other trade vehicles greater than the 1 to 3 tonne range travelled Fort Road. Such vehicles included calor gas lorries, heating oil tankers, coal lorries and the tanker for emptying the septic tanks.

[113]The evidence given by Mr and Mrs Worth was supported by that of Mr Harrington, who used to visit the Fort as a child during the 1950s and who bought a chalet in 1968 which he still owns. He remembered that when he was a boy in the 1950s the way was clearer than it is today (a point made by Mr Worth who explained that he recalled the relevant part of Fort Road as having narrowed over the years), and that several times in the mid- 1980s he used to visit towing a trailer carrying a vintage motor car, the trailer having a wide wheel-base.

[114]In the event my conclusion is that there may have been some tendency, between the 1960s (following the height of the business of at the Fort) down to about the time of the 1987 windstorm, for the entrance to Fort Road between Points A and B to become more screened than previously with the growth of surrounding trees and shrubs; but this process did not materially diminish the useable way compared with what went before or what came afterwards.

[115]I have already explained in general my reasons for preferring the evidence of Mr Worth to that of Mr Turner and Mr Allingham. As regards Mr Cook, I was not impressed by the change in his recollection concerning the width of the gate to the Fort relative to the width of the way leading to it. In addition he appeared to me to have a tendency to give evidence about matters which he could not really remember. For example, he said that in his boyhood (he was born in 1939) there were no caravans at the Fort, only chalets; but this evidence was wholly at odds with that given by Mr and Mrs Worth as to the numbers of caravans present in 1950, which under cross-examination he accepted. And he said in his written evidence that no touring caravans could gain access up Fort Road between Point A and Point B; while in cross-examination he described having seen a touring caravan passing up the lane in the 1950s.

[116]I am therefore satisfied that the use of the V was sufficient to establish a prescriptive right of way with vehicles over the V, this use having been for the whole period from 1950 at the latest down to May 2001. I have described earlier in this judgment the evidence which I have accepted concerning the use made of the V.

[117]In my judgment this conclusion is consistent with the Ironside case referred to earlier. There the use put forward as establishing a prescriptive way was the occasional pulling over of vehicles from a narrow, single-track, way onto the verge to one side of the way in order to permit other vehicles to pass. The leading judgment of the Court of Appeal was given by Goff LJ. He commented ((1981) 41 P&CR at 337) that the fact that the use was occasional would not by itself have been enough to prevent the acquisition of a right.

[118]However, in that case what was being claimed was a right of passage along the whole of the verge, not simply the right to have vehicles occasionally pull up onto the verge to permit passing. Goff LJ concluded that on the facts the use made “can best be explained by tolerance” and could not justify a conclusion that the owner of the servient land was put on notice that a claimed right was being asserted. He appears to have attached weight to what he described as the “unusual circumstances”, that the relevant verge was “outside” the servient owner’s “land and beyond her ditch” and thus unlikely to have been noticed or known about by the servient owner. Buckley LJ (at 339) formulated the point in a similar way, saying that:

“the user relied upon was not a user asserting a right, but a user relying upon the neighbourly good nature of the owner of the verge to tolerate the sort of use which the evidence discloses.”

[119]The Ironside case is explicable on the ground that the claimant was claiming a right of passage over the verge which would, if established, have resulted in the verge becoming indistinguishable from the rest of the carriageway. The Court of Appeal was saying that it is one thing for a vehicle occasionally to trespass onto a verge by pulling out of the way of oncoming traffic; it is another, and different thing, for occasional trespass of that sort to establish a right to pass up and down the verge and thus to include the verge into the way, or even to give a right which would be tantamount to a right to pass up and down the verge.

[120]This, it seems to me, is not the present case. The relevant user was user of the area in question as part of the carriage way for passing to and from the Fort. It would have been obvious to the owner of Wendy’s. Indeed, in order to recognise that the V was probably being so used it would not have been necessary to stand and watch vehicles passing over the V to gain entry to or egress from the Fort. This is because the surface of the V itself was not obviously distinguishable from the remainder of the track, and there was no obvious feature to lead a driver to attempt to keep his vehicle altogether clear of the V.

[121]Indeed, it seems to me that the defendants have in effect conceded that user of the V for the purposes of access to the Fort was obvious, and obviously necessary: this follows from their pleading, referred to above, that Post 2 was set back from the edge of the V and from what they claim to be the edge of their land in order to allow dustcarts and lorries through to the Fort.

[122]Given my conclusion about the claimant’s right of way over the V, the defendants have placed obstructions which appear to affect that right. Specifically, Posts 1 and 2 stand in the V, as depicted by Mrs French on her main survey plan (Plan H). On the other hand Post 3 stands on the very corner of, and just outside, the V, as well as being just outside Fort Road measured from the line of the post and wire fence, and is not on the face of it any obstruction of the way.

[123]There are therefore two areas where the defendants’ works may have given rise to actionable interference with the claimant’s right of way to the Fort. The first is in the vicinity of Post 4. The second is in the vicinity of the V, where the defendants have placed Posts 2 and 1 and have hung their gates. The question in each case is whether the interference with the enjoyment of the right is substantial, or whether practically and substantially the right of way can be enjoyed as conveniently as before. It is to be noted that the test is of convenience, not necessity or reasonable necessity (B&Q Plc vLiverpool & Lancashire Properties Ltd

[2001] 1 EGLR 92

at 96 per Blackburne J).

[124]There was evidence given on behalf of the claimant as to the practical effects of the restrictions caused by the defendants’ works. i) Mr Worth explained that since the completion of the works the deliveries of heating oil to his house have had to be by a special, small tanker, in contrast with the larger tanker which used to be able to deliver the oil. He doubted whether a touring caravan could now be readily towed by a vehicle through the entrance without having to be unhitched and manhandled. ii) According to Mrs Worth there was also an occasion in 2002 when the driver of a van making a delivery to the Fort failed to get into the Fort. iii) Mr Nutt explained that heavy vehicles which had once been able to gain access to the Fort with materials or equipment for maintaining or improving the site there could no longer do so. iv) Earlier in this judgment I have referred to the photograph of the refuse collection lorry manoeuvring through the gate at the Fort: for such a vehicle access is plainly made awkward by the restricted space available at Point C. v) Mr Dyson described an occasion when he was recently having double-glazing installed in his chalet and the van carrying the glass (a van of the type that is adapted for carrying glass on racks outside the vehicle body) had great difficulty in negotiating the turn into the Fort.

[125]There was evidence concerning the ability of fire engines to access the Fort. Mr Nutt gave evidence that he had had the fire service visit, that entry to the Fort had been difficult, and that the fire officer who attended told him that the position was unsatisfactory. Against this Mr Turner had in 2002 obtained a letter from a fire safety officer, one R Easton, of the Surrey fire service which stated that “following the recent visit by the operational crew the access arrangements were found to be satisfactory”. It therefore appears that the Surrey fire service would feel able to deal with a fire in the Fort. Nevertheless, I accept Mr Nutt’s account of the visit he had arranged, and conclude that the arrangements are not ideal.

[126]Were it not for the fact that Mr Allingham is so protective of the hedge on the north side of Fort Road, and that that hedge unquestionably affects the north edge of the useable way, I would have hesitated before concluding that the placing of Post 4 and the attendant kerb has caused a substantial interference with the enjoyment of the right of way along Fort Road. Post 4 only reduces the available width by a modest amount, a little less than a foot or so, compared with the reduction caused, apparently without any complaint or difficulty, by the north end of the larch/lap fence.

[127]However, having regard to the growth of the hedge into the way, the available space in the vicinity of Post 4 now is no more than about 2.6 metres (just a little more than 8 foot 6 inches), compared with available space of about 2.9 metres (about 9 foot 6 inches) in the vicinity of the larch/lap fence. What is left by Post 4 is barely sufficient for a modern 17 tonne dustcart of 7 foot 6 inches width, much less for any vehicle of 8 foot or more.

[128]As regards the V, in my judgement Posts 1 and 2 do cause a substantial interference. It may still be possible for a 16 tonne or 17 tonne trade vehicle to gain access to the Fort: but this access is made more difficult by the driver’s inability to swing any part of the vehicle’s body over the V. The problem is similar, if not worse, for any vehicle pulling a caravan or trailer any longer than a few feet.

[129]Given the purposes for which the Fort is used, it is in my judgment clear that long and wide vehicles and vehicles towing long and wide trailers will from time to time have occasion to pass to or from the Fort. The defendants’ works have restricted the available space for such vehicles and have thus restricted the vehicles which would otherwise be conveniently able to pass to or from the Fort.

[130]Mr Nutt explained that he had been planning to bring up to the Fort mobile home sections measuring some 10 foot by 36 foot. There is no doubt that these sections could not be towed along Fort Road once the defendants’ works had been put in place. There is an issue as to whether or not they could ever have been towed along Fort Road. Mr Nutt says they could. It seems that the contractor who had been engaged for the task thought they could, provided that the V was available for use. Mrs French on the other hand made an experiment using a model, and reached the conclusion that the sections could not have been towed up to the Fort. There is no indication that Mrs French’s model had precisely the same characteristics as the equipment to be used by the contractor, or that her experiment reproduced what would have been experienced by the contractor. But whether or not the 10 by 36 foot sections could have been brought up, there is no doubt in my mind that smaller sections, which could otherwise be brought up in the absence of the defendants’ works (specifically Post 4 with its attendant kerb, and Posts 1 and 2), are precluded by those works. Relief

[131]The claimant seeks declarations concerning the extent of the land over which she has a right of way, and also injunctive relief to prevent interference with the right, including mandatory injunctions requiring the defendants to remove so much of their works as interfere with the right of way.

[132]In principle it seems to me that the claimant is entitled to the relief claimed, including the mandatory injunctions. I remind myself that the remedy of an injunction is a discretionary equitable remedy available only in cases where it is just to grant it, and not usually to be granted in cases of trivial or temporary infringements or where there is no continuing interference or where damages are an adequate remedy (cf West v Sharp

(1999) 79 P&CR 327

at 333 per Mummery LJ). Nevertheless, it has not been suggested on behalf of the defendants that in the present case the remedy is not available or should not be granted if, as in my judgment they have, the defendants have caused a substantial interference with the claimant’s right of way. And in my judgment this is a case where the injunctive relief is appropriate.

[133]Nevertheless, the defendants should be allowed a reasonable time for complying with the mandatory injunctions.

[134]I shall, if the parties are unable to agree, hear argument as to the precise form of order which will give effect to this judgment.