Success for Charlotte Davies in the Land Registration Tribunal

Reserved judgment has been handed down in the matter of Privett v Runic Holdings Limited REF/2023/0456 following a hearing that took place in November 2024 before Principal Judge Michael Michell, sitting in the Land Registration Division, Property Chamber of the First Tier Tribunal.

Charlotte Davies represented the Applicant in the complex disputeinvolving the existence of a right of way which included arguments ofconstruction of the conveyances, and abandonment through loss of use and/orchanges to the topography/landscape.

The matter involved two conveyances dated 1935 and 1938respectively. The 1935 Conveyance granted a right of way along "the roads to be constructed by the Vendor", and the 1938 Conveyance granted a right of way "along the roads to be constructed by the Vendors and until such roads should be so constructed over the site of such roads which were shown on the said plan".

The Respondent's case was that no right arose under the 1935Conveyance as a matter of construction. Its case was that the right was a right arising only if and when a road was constructed and as no road was constructed, the right does not exist. As to the right under the 1938 Conveyance, the Respondent argued that the interim right granted by the 1938 Conveyance came to an end when some road was constructed, albeit that no right was granted over the relevant part of the land. Further, the Respondent argued that any right arising under the 1935 Conveyance or under the 1938 Conveyance was abandoned.

In applying Wood v Capita Insurance [2017] UKSC 24 and accepting the Applicant's submissions on construction, the judge found that the1935 Conveyance granted a right of way over the roads, meaning the strips of land identified as roads on the conveyance plan and not a right arising if and only if the roads were hardened by the vendor. As to the 1938 Conveyance, the judge found that there were no grounds to read into the words of grant words to the effect that there is to be a right of way over the site of the roads only until the vendor should have constructed some but not all of the roads.

In considering the argument of abandonment, the Respondent submitted that the right of way had been abandoned because it had never been used, and further because the Applicant's predecessor in title had made use of the right of way impossible by excavating the dominant land, creating a sheer cliff between the land and the right of way. Whilst the tribunal found that there was no evidence before it that the right had ever been used, the judge accepted the Applicant's position that this, in any event, did not amount to an intention to abandon the right (Dwyer v. The City of Westminster [2014]EWCA Civ 153), and was explained by the existence of other means of access. Furthermore, the judge found that the present state of the ground left by the excavation works would appear to any reasonable person to be a temporary one.

As such, the judge granted the Applicant's application to register the burden of the rights in the titles of the servient land. Charlotte continues to represent the Applicant in further county court proceedings relating to a different part of the same right of way.

Charlotte was instructed by Phil Weaver, Partner at Nalders LLP.

Charlotte has a busy and diverse civil practice, with specialist areas that include land and property matters.