Robert Ian Stuart Smith & Anor v Joanne Patricia Jones & Anor [2026] UKFTT 768 (PC)
[1]The matter that has been referred to the Tribunal is the Applicants’ application to register the benefit and note the burden of an express right of way.[2]The Applicants are the registered proprietors of the property known as The Hide, 20 Woodlands Avenue, Rhos on Sea, Colwyn Bay LL28 4RG, registered under title number CYM485276 (“the Hide”), extract from the title plan below. The Hide[3]The First Respondent is the registered proprietor of the property known as 18 Woodlands Avenue, Rhos on Sea, Colwyn Bay LL28 4RG, registered under title number CYM159178 (“Woodlands”), extract from the title plan below. I note for completeness that the building contains an upper floor flat (18A), which has a right of way across Woodlands for access. Woodlands[4]The matter concerns a strip of land running east to west from Woodlands Avenue at the boundary of the two properties (“the Strip”). The photograph below is taken from Woodlands Avenue looking down the Strip. The left side of the Strip forms part of The Hide; the right part of Woodlands. Two outbuildings, which appear on the title plans, can be seen at the far end. I note for completeness that I had the benefit of a site visit the afternoon before the hearing. The StripThe legal framework
[5]The Applicants’ case is that they have the benefit of an express right of way over the Woodlands’ side of the Strip. The issue in this case, as identified by the Tribunal in its order of 24th February 2025, is not as to the validity of the express right of way, but whether it is binding on the Respondents.[6]It is helpful to begin with a chronology of the key dates, at least as far as conveyancing and registration is concerned. 20th July 1951 Conveyance including express grant of right of way over the Woodlands’ side of the Strip 13th October 2003 Land Registration Act 2002 comes into force 5th January 2004 First registration of Woodlands 19th March 2010 First registration of The Hide 22nd April 2010 Disposition of Woodlands from David Llewellyn to EJ Davies 15th November 2011 Disposition of The Hide to the Applicants 5th June 2017 Disposition of Woodlands from EJ Davies to the First Respondent[7]Woodlands was first registered in 2004, after the Land Registration Act 2002 (“the Act”) came into force. Paragraph 3 of Schedule 1 of the Act provides that a legal easement is an unregistered interest which overrides first registration. Therefore, first registration of Woodlands was subject to the right of way.[8]However, there have since been two registered dispositions of Woodlands, first in 2010, and then the disposition to the First Respondent in 2017.[9]The position as to whether legal easements override registered dispositions is more complicated. It is governed by paragraph 3 of Schedule 3 of the Act, which provides that a legal easement overrides registered disposition:(1) … except for an easement… which at the time of the disposition— (a) is not within the actual knowledge of the person to whom the disposition is made, and (b) would not have been obvious on a reasonably careful inspection of the land over which the easement or profit is exercisable.(2) The exception in sub-paragraph (1) does not apply if the person entitled to the easement or profit proves that it has been exercised in the period of one year ending with the day of the disposition.[10]The burden is on the Respondents to satisfy subparagraph (1), that is, to show that, at the time of the relevant disposition, the right of way was not within the actual knowledge of the transferee, and it would not have been obvious on a reasonably careful inspection of the land.[11]The burden is on the Applicants to satisfy subparagraph (2), that is, to prove that the right of way was exercised in the period of one year ending with the day of the relevant disposition.[12]If the Respondents fail to satisfy subparagraph (1), and/or the Applicants satisfy subparagraph (2), the right of way will override the relevant registered disposition.[13]In order for the Applicants to succeed, the right of way must override both the 2010 and the 2017 dispositions.[14]The upshot of this analysis is that the Tribunal’s focus is very much on two periods: the 12 months prior to April 2010, and the 12 months prior to June 2017.[15]There are two preliminary observations arising from this.Firstly, as the Applicants did not purchase The Hide until 2011, and the First Respondent did not purchase Woodlands until 2017, neither can give direct evidence as to the first of the two periods.[16]Secondly, I am aware that a variety of allegations have been made in relation to what has been happening on the Strip in recent years, with the result that relations between the parties have completely broken down. However, as I explained at the start of the hearing, these matters do not assist me in determining whether the right of way is an overriding interest or not. I am grateful to everyone for taking this on board and largely refraining from straying into matters that could potentially have been inflammatory without being relevant to my decision. I urge the parties to try and use this decision as an opportunity for a fresh start, regardless of what has gone on before, and to co-operate in respect of any consequential matters that may arise.Conveyancing history
[17]As explained, the dispute turns on Schedule 3 of the Act and the 12 month periods prior to the dispositions in 2010 & 2017. The key dates have already been set out above.[18]However, it became clear that the First Respondent wanted to argue that Applicants do not in fact own The Hide’s side of the Strip, that is, that The Hide’s side of the Strip is not part of The Hide at all, and/or to argue about the extent of the right of way.[19]There are several obstacles to this argument. The extent of the registered title to The Hide includes The Hide’s side of the Strip. The register is conclusive (see section 58 of the Act). There is no application to alter the extent of The Hide’s title. The Respondents’ objection to HM Land Registry was accepted on the basis that it challenged whether the express right of way was binding on successors in title (that is, whether it overrides the registered dispositions). The Tribunal has dealt with it on the same basis, as explained in the order of 24th February 2025 and above. In any event, I struggle to see why the ownership of The Hide’s side of the Strip has any bearing on whether there is a binding right of way over the Woodlands’ side of the Strip.[20]Furthermore, insofar as there may be an argument about the extent of the right of way, the parties are reminded that the title plans show general boundaries only, and that these proceedings are not the forum for precisely determining the extent of the right of way or indeed the boundary between the properties. Nor are they the forum for determining whether there has been any actionable nuisance or trespass. The parties are again urged to co-operate insofar as such issues may remain or arise following this decision.[21]Nonetheless, it is helpful to set out the available conveyancing history as a background to the issues that I do have to determine. Having reviewed this, particularly the original documents provided at the hearing by the Applicants, it is tolerably clear that the Applicants do own The Hide’s side of the Strip, as I explain below.[22]By a conveyance dated 20th July 1951, Reginald William Sawney, the then owner of Woodlands, sold a plot of land corresponding to what is now The Hide to Sydney Herbert Cutler. The conveyance grants a right of way as follows: Together with a right of way to the Purchaser and his successors in title for all tenantly purposes (in common with the Vendor and all other persons having the like right) to pass over and along the driveway from Woodlands Avenue shown on the said plan to the garage of the Vendor’s house ‘Woodlands’ aforesaid also shown on the said plan and thence turning southerly and over and along the land of the Vendor between the points marked A and B on the said plan the site of the said right of way being cross hatched on the said plan 1951 conveyance plan[23]This appears to relate to the Woodlands’ side of the Strip. It is not in dispute that, as at 1951, the “driveway”, to use the term in the conveyance, was not as wide as the Strip is now. The hatching runs to the outbuilding within the Woodlands’ title, before turning south.It is notable that the hatching does not extend to the solid black line to the south.[24]A deed of rectification from 1962 made provision for the cost of maintaining the right of way from Woodlands Avenue to point B, the cost of maintaining the right of way from A to B having already been dealt with in the conveyance itself.[25]In 1962, Woodlands was sold to the Smith family. The parcels clause does not provide much by way of description, describing it as a plot of land fronting to Woodlands Avenue, “for the purpose of identification only more particularly delineated” on the attached plan. It is said to be subject to a right of way coloured brown, with reference to the 1951 conveyance. By this point, it appears a second outbuilding has been built. 1962 conveyance plan[26]In 1967, various plots, including The Hide, were sold firstly to a Miss Lewis and then on to a Mr Charlton. The Applicants brought the first conveyance, to Miss Lewis, to the hearing; an electronic version is not available. It is said to convey four plots, edged blue, green, brown and red, but the plan in fact shows two plots edged blue (as well as one each edged green, brown and red). The blue plot is said to to be 353 square yards or thereabouts.[27]A copy of the subsequent conveyance to Mr Charlton is in the bundle. This conveys two plots of land shown edged blue on the plan attached to the previous conveyance, being 353 square yards or thereabouts, and furthermore explains that this is the residue of a larger plot, the other part of which was conveyed from Mr Sawney to Mr Cutler in 1951. One of the blue plots is a strip to the east, corresponding with the part of the right of way from A to B, and the other is a strip to the south. The conveyance also contains a note that the right of way between A & B is no longer applicable, as the site of the right of way and the land to which it gave access are in the same ownership. It therefore appears that the 1951 conveyance separated the ownership of the part of the right of way from A to B from The Hide, hence the right of way being granted, but the two parcels then came back into the same ownership in 1967.[28]By a conveyance dated 11th April 1980, Woodlands was sold to Clifford & Amy Fallows. The parcels clause is more detailed, describing the building, the garden to the front, and “ALL THAT garage drive and roadway leading thereto more particularly described in and shown respectively edged green and coloured brown and blue on the plan annexed hereto”. What is notable is that it does not include the area between the right of way and the solid black line as seen on the 1951 conveyance plan. 1980 conveyance plan[29]This accords with a Memorandum on the front page of a copy of the 1962 conveyance, which excepts and reserves to Jane Elizabeth Smith “the land edged red coloured blue on the plan annexed hereto being the portion of land retained… within a conveyance dated [10th April 1980] between the said Jane Elizabeth Smith… and Clifford Fallows and Amy Fallows” (I assume that the dates being out by one day is an error).[30]The thrust of the Respondents’ argument is that The Hide’s side of the Strip was sold to the Fallows, meaning that it could not have then be sold on to ultimately end up in the ownership of the Applicants. However, the above would tend to suggest that The Hide’s side of the Strip was retained by them and did not form part of the land sold to the Fallows.[31]In 1981, the Smith family sold a parcel of land to the Charltons for £1. The parcel is described as “ALL THAT piece or parcel of land shown for the purpose of identification only coloured blue on the plan annexed hereto and forming part of the garden belonging to [Woodlands]”. An extract from the plan contained in the bundle and relied upon by the Applicants is below. The Applicants brought the original to the hearing. 1981 conveyance plan[32]The Respondents disagree that this is the correct plan. They have provided an alternative, which they have annotated, but which I am unable to reproduce as it was not in the electronic bundle. The area coloured blue is a narrow strip which corresponds with the part of the right of way from A to B.[33]This plan is, in fact, the plan to the 1967 conveyance to Miss Lewis. The area coloured blue is one of the two plots edged blue, as described above.[34]I do not accept that the Respondents’ plan is the plan referred to in the 1981 conveyance. The 1967 conveyances suggest that the part of the right of way from A to B was returned to the same ownership at that time. Moreover, it is not clear why the part of the right of way from A to B would be described as part of the garden belonging to Woodlands.[35]In 1984, the Charltons sold a plot of land at the bottom of Woodlands Avenue/to the east of The Hide to Stephen Williams. The conveyance also granted a right of way to Mr Williams from the end of Woodlands Avenue to the plot, which appears to cross part of The Hide’s side of the Strip. In 1985, the Charltons sold Mr Williams another plot further south with the same right of way.[36]The 1981 conveyance is a conveyance of The Hide’s side of the Strip from the Smiths to the Charltons, since when it has formed part of The Hide. The other conveyancing is entirely consistent with this. I cannot see anything to suggest it was ever in the ownership of the Fallows.[37]Finally, I note a plan in the Respondents’ bundle on which the two sides of the Strip are hatched red and blue: the red is marked “1951 Right of Way”, and the blue “Extent of permissible use by Flats 18”. There is no evidence or explanation as to the provenance of the plan. The Respondents argue that it means Flats 18 granted permission for The Hide’s side of the Strip to be used, thus supporting their argument that The Hide’s side of the Strip does not in fact form part of The Hide. However, it could equally be read as owners of The Hide’s side of the Strip giving Flats 18 permission to use that part. This does not alter my view.History of the Strip
[38]It is necessary to consider how the Strip came to be as it is now. It is accepted that access to The Hide was originally over Woodlands’ side of the Strip only, as the driveway did not include what is now The Hide’s side, but this changed in the early 1980s.[39]The Applicants rely on a written statement from Mr Stephen Williams. which explains that he built three properties (19, 21 & 22 Woodlands Avenue, 21 being his own residence), on land he purchased from the Charltons between 1983 and 1985. Mr Williams states that he “set out a second driveway to The Hide at the request of Mr Charlton on land which was owned by him and partially on land earmarked for building. I believe this area had at one time been a hedgerow which Mr Charlton had removed. Mr Charlton wanted to make access to The Hide easier. This new drive was for use as well as the original driveway to The Hide. Its construction gave The Hide wider, therefore easier access. It is my belief that both drives have continued to be used by the subsequent occupants of The Hide”.[40]Before the “second driveway” was set out, the Strip looked as depicted in the photograph below (the original large-scale version was available at the hearing). The Respondents accept that The Hide’s side of the Strip was at this point grass, and that the junction between the grass and the driveway coincides with the join in the middle of the Strip that is visible on the photograph at paragraph 4 above. Pre-second driveway[41]In terms of width at least, it now looks as depicted in the photograph below. Post-second drivewayThe 2010 disposition
[42]There was a disposition of Woodlands on 22nd April 2010 from a David Llewellyn to a Ms EJ Davies. Mr Llewellyn had been the owner of Woodlands since 2003.[43]Returning to the legal framework, and paragraph 3 of Schedule 3 to the Act:(a) the Respondents aver that the right of way was not within the actual knowledge of Ms Davies and would not have been obvious on a reasonably careful inspection of Woodlands’ side of the Strip;(b) the Applicants aver that they can prove the right of way was exercised in the period of one year ending with the day of the disposition.[44]The relevant evidence is as follows. On the Applicants’ side, there is written and oral evidence from Mr Llewellyn, and also a small part of the First Applicant’s witness statement may have a bearing. On the Respondents’ side, there is no evidence from Ms Davies, who passed away in 2016, but there is some written evidence from her son Iwan Davies. They also rely on written evidence from Mr Grundy from 18A, who has lived there since 2006.[45]Mr Llewellyn gave evidence (remotely) on behalf of the Applicants and was questioned by the First Respondent.[46]Mr Llewellyn’s written evidence was that he was aware of “a documented right of way in a deed for 18, 18A and 20 Woodlands Avenue”. I pause to note first that it does not matter whether the right of way was within Mr Llewellyn’s actual knowledge, save insofar as that may be relevant to whether it was within Ms Davies’ actual knowledge, she being the transferee.[47]In any event, when asked about how he knew, it appeared that he was in fact talking about the right of way in favour of 18A (the flat). Moreover, when he later referred to the right of way, it appeared that he may in fact have understood it to be more like a public right of way. He said that the “whole purpose” was that it was there for “anyone who needs to cross it”, “anyone and everyone”, or words to that effect.[48]In this sense, Mr Llewellyn’s evidence was a little confusing. What was clear was that he knew there was a right of way over Woodlands, and he had no issue with The Hide using Woodlands’ side of the Strip, but I am not persuaded that he knew The Hide had been expressly granted the right to do so.[49]He also gave evidence about the use of the right of way. In his written evidence, he explains that, initially, there was a gate at the end of “my drive”, that being the Woodlands’ side of the Strip, until he removed it to make access easier. He recalls seeing Carol Charlton walking down his drive and opening the gate. He asked her about this, and she said she was doing that to maintain the right of way.[50]When questioned, he said it was “comical” that she would come through the closed gates when the other side of the Strip was completely open. He was evidently unbothered by this – as explained above, he knew of a right of way, and seemingly had no issue with The Hide using it.[51]When asked, he was unable to say when this happened. He did, however, say that the gate was removed not long after he purchased Woodlands, meaning it would not have been during the final 12 months of his ownership.[52]He also referred to putting up a chain link fence. He said Mrs Charlton would not have been agile enough to skip over it, and that he could not specifically remember her unlinking it, but said that it was “not novel anymore”, that he just accepted she would be coming down the drive.[53]I also note the First Applicant’s evidence. She resided at 11 Woodlands Avenue prior to purchasing The Hide. She says that, on more than one occasion, she saw Mrs Charlton walking down the drive and exiting near the wall at the front of Woodlands. Given the lie of the land, I am not satisfied this is clear enough evidence of her using the Woodlands’ side of the Strip. Moreover, she also says that Mrs Charlton moved out at some point in 2009, which might affect whether the right of way was used in the 12 months prior to the disposition.[54]Mr Davies provided two written statements, and Mr Grundy one, but neither attended to give oral evidence. The weight I attach to this evidence is therefore limited as there was no opportunity for cross-examination. In any event, the evidence itself is somewhat limited.[55]Mr Davies says that, during his mother’s ownership of Woodlands, no right of way or access was granted or permitted, other than the rights granted to the owners of 18A, and that any use there may have been from time to time was without consent or permission. He also says that, to the best of his knowledge and belief, his mother had no knowledge of any claimed right of way via the conveyancing documents or disclosure, and that no-one from The Hide tried to establish or claim a right of way. He says this means they had no reason to disclose a claimed right of way when they sold Woodlands (as his mother’s executors).[56]Mr Grundy says that he was unaware of The Hide having a right of way, and that he also believes Ms Davies was unaware “as all parties appeared to enjoy their own driveways”.[57]Both parties face the difficulty of having no clear unambiguous evidence in relation to the 2010 disposition.[58]The Applicants essentially ask me to infer from Mr Llewellyn’s evidence that Mrs Charlton used the right of way in the 12 months before the disposition, because she had made a point of using the right of way some time earlier. She may, however, have not felt that she needed to once it was established that Mr Llewellyn would not object. I am not satisfied the Applicants can discharge the burden of demonstrating on the balance of probability that the right of way was used in the 12 months prior to the disposition.[59]The Respondents essentially ask me to infer from the right of way’s absence from the registered title/Mr Davies’ evidence, Mr Grundy’s evidence that each property used their own driveway, and the overall appearance of the Strip, that Ms Davies did not have actual knowledge of the same. I will address these in reverse order.[60]Firstly, the overall appearance is essentially the same as whether the right of way would not have been obvious on a reasonably careful inspection of the Strip. There are no photographs of the Strip at the time of the 2010 disposition, but it is not in dispute that it looked largely the same as the photograph at paragraph 4 above – there is a definite join in the middle, each side of which leads to its own outbuilding, and each side of which is wide enough for vehicles (albeit not larger ones). Given these particular features, I am not satisfied it would have been obvious that there was a right of way over the Woodlands’ side of the Strip.[61]Secondly, it is not surprising that the parties kept to their respective sides of the Strip, but I am not satisfied that this is sufficient to infer that the right of way was not within Ms Davies’ actual knowledge.[62]Finally, there is the lack of registration/Mr Davies’ evidence. Insofar as Mr Davies avers his mother had no knowledge from the conveyancing documents or disclosure, he does not provide any detail or supporting evidence as to what she was or was not provided with or made aware of. Reading between the lines, Mr Davies’ evidence is little more than him saying he was not aware of the right of way, and so he assumes his mother was not either.[63]The difficulty facing the Respondents here is a lack of evidence. There is no evidence from Ms Davies, either directly, or indirectly through her son (he does not, for example, give evidence about anything she said or did). Nor is there any evidence of the conveyancing process itself. In this latter regard, I note that the Respondents have disclosed a DL form referencing the 1951 conveyance which forms part of Woodlands’ pre-registration documents. Woodlands was first registered after the transfer to Mr Llewllyn. Although Mr Llewellyn appears to have been confused about whether The Hide had an express right of way, his solicitors may not have been.[64]Taking all of this into account, I am not satisfied the Respondents can discharge the burden of demonstrating that Ms Davies did not have actual knowledge of the right of way.[65]Overall, this favours the Applicants, as the Respondents cannot show that the situation falls within the exception at paragraph 3 of Schedule 3.The 2017 disposition
[66]There was a disposition of Woodlands from Ms Davies’ executors to the First Respondent on 5th June 2017.[67]I can deal with this rather more shortly than the previous disposition. This is because the Applicants owned The Hide by the time of this disposition, and they adduce evidence of using the right of way themselves. If they can demonstrate on the balance of probabilities that the right of way was used within the 12 months preceding 5th June 2017, they will succeed.[68]The Applicants’ evidence is that they and their visitors have always used Woodlands’ side of the Strip for easier access to The Hide. The evidence presents a detailed and consistent picture of use over the years, although my focus here is on the 12 months prior to this disposition. The use was not really challenged by the Respondents, who accept that they have no direct knowledge prior to 2017.[69]Much of the evidence concerns delivery of equipment and materials that required the use of the full width of the Strip. I can well understand that larger vehicles would need to encroach onto the Woodlands’ side – each side of the Strip is relatively narrow, and it is rather a shame that the parties have been unable to achieve a resolution taking advantage of the wider width of the Strip as a whole.[70]This evidence includes a written statement from a builder Mr Peter Williams, who carried out significant building works in 2012/2013; photographs of equipment delivered by truck for landscaping and drainage in September 2015; the construction of a summerhouse in 2016; invoices for skip hire, including one dated 4th July 2016; and invoices for materials, including ones dated 26th July 2016 and 24th March 2017. These latter items fall within the relevant 12 months.[71]In addition, the Applicants themselves gave evidence of using the Woodlands’ side of the Strip, as did their friend Mr Jason Rogers, whose written evidence mentioned attending a hog roast at The Hide in August 2016, although in oral evidence he could not justify the date.[72]I am satisfied on the balance of probabilities that the right of way was used in the 12 months prior to this disposition. I therefore do not need to consider the question of actual knowledge or obviousness – even if the Respondents were to be successful on those points, they would still not come within the exception at paragraph 3 of Schedule 3 of the Act, as the Applicants have satisfied subparagraph (2).Conclusion
[73]For the reasons given above, I am satisfied that the express right of way is binding on the subsequent dispositions. I will therefore direct the Chief Land Registrar to give effect to the Applicants’ application dated 16th June 2023 as if the objection of the Respondents had not been made. I urge the parties to co-operate in relation to any consequential matters arising from this decision.[74]I turn to consider costs. Ordinarily, the unsuccessful party will be ordered to pay the costs of the successful party: see rule 13(1)(c) of the Tribunal Procedure (First-tier Tribunal)(Property Chamber) Rules 2013 and paragraph 9.1(b) of the Practice Direction. Here, that would be an order that the Respondents pay the Respondents’ costs, unless there is some good reason to make a different order. Costs are potentially recoverable from the date of the reference to the Tribunal, which took place on 18th September 2024.[75]Any application for costs should be sent to the Tribunal and the other side by 5pm on 19th May 2026, and should include an estimate of the amount of costs sought. Further directions will then be given as appropriate. Dated this Tuesday 21st April 2026 Laura D’Cruz By Order of The Tribunal