REFS/2011/766 to 770

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

1.       PATRICIA ANN TURNER

2.       JACQUELINE STELLA PHYLLIS MORRIS

3.       MICHAEL PATRICK HYLAND

4.       JOAN HYLAND

5.       BHARAT BHUSHAN MITTAL

6.       KAMLA DEVI MITTAL

7.       WILLIAM CHARLES PEACOCK

8.       MOLLY MADELINE PEACOCK

 

APPLICANTS

 

and

 

KELOBRIDGE LIMITED

 

RESPONDENT

 

Property Addresses: 20, 24 and 50 Castleview Road and 24 and 30 Blenheim Road, Slough

Title Numbers: BK309906, 358970, 422593, 309594, 309820, 309686 and 310498

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Victory House

On: 2, 3 and 17 October 2012

 

Applicant Representation: Mr. Richard Sable and Mr. John Jurkiw

Respondent Representation: Mr. Toby Watkins, counsel

___________________________________________________________________________­

 

 

Claims to prescriptive rights of way along the edge of a field where the owners of adjoining properties had made gates onto the field without objection is established except in the case of one Applicant who was aware that the owner of the servient land objected to her use of the route in question.

During period that land was let to tenants the registered proprietor held on the facts to have become aware of the use of the route and been in a position to take steps to prevent it.

In all the circumstances, occasional ploughing and harrowing of the field to the edge, and once or twice deepening a ditch and temporarily extending it across the path held not to be enough to make user by force or to constitute clear objection to the use of the route.

 

Cases referred to:

Taylor v Betterment Properties (Weymouth) Limited , [2012] EWCA Civ 250;

Williams v Sandy Lane (Chester) Limited , [2006] EWCA Civ 1738;

Diment v N.H. Foot Ltd ., [1974] 1 WLR 1427;

Union Lighterage Co v London Graving Dock Co , [1902] 2 Ch 557

1. For the reasons given below, I shall direct the Chief Land Registrar to give effect to the Applicants’ applications dated 30 November 2010 for rights of way on foot other than the application of the First Applicant, which he should cancel.

 

2. In 1930, Frank Arthur Barker (F.A. Barker) purchased Riding Court Farm, Slough. In 1952, he granted a tenancy of it to his four sons. On 23 April 1954, part of the farm, including the field with which this case is concerned (the field), was compulsorily acquired by the Minister of Works, in connection with the operation of an adjoining research station. The land so acquired continued to be farmed by F.A. Barker’s four sons under a tenancy from the Minister of Works. One of those sons, Walter John Barker (W.J. Barker) gave evidence at the hearing. The northern boundary of the field was also the northern boundary of the farm and in 1930 there was a barbed wire fence on that boundary. When the field and the other land was acquired in 1954 by the Minister of Works, a formal tenancy was granted to the four brothers which included a term prohibiting them from allowing anybody else onto the field. No copy of the tenancy was now available but W.J. Barker was clear as to this provision, and I accept his evidence as to it and as to the old barbed wire fence. In particular, the Ministry of Works was concerned to keep the field free from undesirable electrical interference with the radio research work being conducted on neighbouring land belonging to the Minister (trial bundle, p.358a).

 

3. Crops were grown on the field throughout the period from 1954 to 1989 when the four brothers were farming it, apart from some years when it lay fallow. F.A. Barker died in September 1983. In 1984, three of the four brothers purchased the land back from the Research Council to which it had been transferred some years earlier. In 1989 the three brothers retired and the running of the farm was handed over to Robert George Barker (R.G. Barker), the son of W.J. Barker, who farmed it under an oral tenancy until 2011. In 1999 the field was sold to the Respondent, Kelobridge Limited, which wished to develop it by building houses on it.

 

4. Meanwhile, in 1956 and 1957 the land to the north of the field was acquired and then developed by a company called Abbey Homesteads Ltd. It built in particular two streets of houses, Castleview Road and Blenheim Road, with gardens backing onto the field. In doing so, it put up its own chain link fence between the development and the field. I accept the evidence of Mr. W.J. Barker that that fence was between a few inches and about 2 feet to the north of the old barbed wire fence. Mr. W.J. Barker recalled that the barbed wire fence was still in place at that time, although not in very good condition. That may be so, but, as will appear, I am satisfied from the evidence on behalf of the Applicants that, at least at the north-eastern end, it had disappeared by the late 1950’s when the Morris and Hyland families moved into their respective houses at 20 and 24 Castleview Road, and that it had all disappeared (apart from pieces that turned up occasionally when the field was ploughed), either by that time or within a short time thereafter.

 

5. While W.J. Barker understood the fence to be the boundary of the farm, since Abbey Homesteads erected their own fence, it would seem that both the Barkers and the various occupants of the houses have treated the boundary of the farm as reaching to but not including the Abbey Homesteads fence and the various other fences and hedges that have since replaced it.

 

6. The present proceedings concern claimed prescriptive rights of way on foot only between five of the properties on Castleview Road and Blenheim Road and a public park, Upton Court Park, along the northern edge of the field to its north-east corner, where it adjoins that park. There is now a cycle track leading from the highway and going along the western edge of the park where it borders the gardens of Castleview Road and then the field. The track leads onto a foot and cycle path leading to Eton and Windsor. The track is divided from the field by trees and two ditches which now start some feet from Mrs. Morris’s fence. One of those ditches is within the park, close to its boundary with the field and plays no real part in these proceedings. The other runs along the eastern side of the field. There was a brief period when that ditch was deepened and extended across the route of the claimed prescriptive way, and it has been contended on behalf of Kelobridge that that made subsequent user of the route forceful so as to prevent time from continuing to run.

 

7. Until the early or mid-1990’s a broad farm track ran along the eastern half of the northern edge of the field and then turned to run from north to south right through it. That track led to the southern boundary of the field, where there was once access to a sports ground. There was evidence of user of the farm track to reach that sports ground, but no rights are claimed to do this. The farm track went at the other end to the end of Blenheim Road, where there was a locked gate, at least once Blenheim Road had been constructed, and also ran south from that entrance to a lake and to Ditton Park, which appears to have been part of the Ministry of Works land on which its research was conducted. W.J. Barker stated in his witness statement in 2004 that this track was to enable vehicular access for farm workers to the vegetables, for irrigation purposes and for collecting vegetables from the fields.

 

8. Both W.J. and R.G. Barker gave evidence that people were always using the edge of the field. W.J. Barker claimed that he was always chasing people off the field if he saw them, and he was aware of all the gates leading onto to the field from the houses adjoining it, but could only give one case, he said in the mid-1980’s when he went to somebody’s house after seeing him on the field and told him not to walk on it. He claimed to have been threatened with violence by the man, who was not any of the parties to these applications. There was no evidence as to who this man was and it was not suggested that any of the parties were aware of this or, except in the case of Mrs. Turner’s sons, that anybody using the path from any of their addresses had ever encountered W.J. Barker or any other member of the Barker family, or that any member of the Barker family or any employee or anybody else had ever told them not to go along the north side of the field.

 

9. In the case of Mrs. Morris at 20 Castleview Road, the distance to the park is a short one. It is only a little longer in the case of Mr. and Mrs. Hyland at 24 Castleview Road. It is significantly longer for Mr. and Mrs. Peacock at 50 Castleview Road and much longer, some 300-400 yards or more, for Mr. and Mrs. Mittal and Mrs. Turner at 24 and 30 Blenheim Road.

 

10. Each of the Applicants claims to have used the way along the edge of the field openly and without interruption for about 50 years in the cases of Mrs. Morris, Mr. and Mrs. Hyland and Mr. and Mrs. Peacock and for 25-30 years in the cases of Mr. and Mrs. Mittal and Mrs. Turner. Each of them, or in the cases of Mrs. Turner and Mr. Mittal, their predecessor in title, has at some stage placed a gate in their back garden fence giving access onto the field to enable them to access the field.

 

11. Their claims are disputed by Kelobridge on a number of grounds. It was argued at the hearing that any user was by force as the Barkers demonstrated their objection to the use of the field in this way by chasing off the field anybody they saw on it; by ploughing right to the edge of the field, and on two occasions by deepening and extending their ditch across the edge of the field where it gave access to the park. There have also been suggestions by R.G. Barker that there was a fence across the exit to the park at one point and that he had put up signs which quickly disappeared. It is also denied that the route was used nearly as often as claimed by the various Applicants and it is said that until 1984 the field was owned first by the Minister of Works and then by the Science Research Council, later the Science and Engineering Research Council (“the Research Council”), and that neither knew of the use of the route. It was also contended at one stage that even had the freeholder known of that use, it could have done nothing about it because of the tenancy, but following W.J. Barker’s evidence, it has been accepted that if the freeholder had known of the use, it was within its power to take steps, or to require the Barkers to take steps to put an end to it.

 

12. In addition to evidence given by 19 witnesses, including the parties, in support of their respective claims, I heard evidence from W.J. Barker and R.G Barker and from Mr. Niall Lawless for Kelobridge in addition to the expert evidence of Mr. Bud Young interpreting aerial photographs of the field and the various properties over the years from the 1970’s.

 

The claim of Mrs. Morris

13. Mrs. Morris and her late husband, who died in 1998, acquired 20 Castleview Road and moved in there in September 1957, having purchased it in July of that year. It is a corner house and the southern fence of the back garden adjoins a corner of the field. There is also an eastern fence which adjoins the park. There has never been a gate leading directly onto the park. At that time in 1957 there was also no access to the field from the back garden, but in the early 1960’s Mrs. Morris and her sons gave evidence that a stile was placed in the fence, followed by a gate in the mid-1960’s. A gate can be seen in a photograph taken in the winter of 1974. The purpose of the stile and the gate was so that the family could reach a path which was said to run around the northern boundary of the field and from that gain access to the park a few steps away.

 

14. The family had a succession of dogs between 1951 and 1997, and evidence was given by Mrs. Morris and her sons, Philip and Martin (born in 1952 and 1953), that they and the late Mr. Morris had all regularly walked the dogs in the park, using the stile and gate. Philip and Martin had both also made model aircraft and used the route to get to the park to fly them and generally to play there. Mrs. Morris also produced a photograph of her late mother in her garden, which she stated, and I accept, was taken in 1974, showing the gate then in place leading from her garden to the corner of the field. Philip left home in 1976 and Martin left home in 1985, although they both returned to visit regularly and stated that they both made regular use of the gate and the path to the park. The path from the park leading towards Eton and Windsor was also used at times by Martin when he was living in Eton in the early 1980’s but using his parents’ home as his base.

 

15. Mrs. Morris is now too frail to attend court to give evidence and I took her evidence at her home following a site view of the whole length of the northern boundary of the field and of the adjoining park. When they moved into the property in 1957, her two sons were aged 4 and 5. The cycle track had yet to be made up. Mrs. Morris recalled posts on the boundary but there was no fence. They did not want to put a gate leading directly onto the park because there were children in the park who threw stones and it was less secure than one leading onto the field. I accept this. It is plain that there never was a gate directly onto the park and there was one for many years onto the corner of the field, and I am satisfied that it was considered safer to put it there. Mrs. Morris and her husband had dogs throughout until 1997 and I accept that the gate was put there because it enabled them to take the dogs directly into the park without going on the local roads and it enabled the two children to get to the park directly as well. I am also satisfied that they were happy for brambles to grow by the fence between the gate and the park to conceal the gate from those using the park, although its presence was clear to anybody in that part of the field.

 

16. I also accept the evidence of Mrs. Morris and her two sons that they would take the dogs to the park regularly using that gate. It was the natural way to get there once it had been installed. In 1981 and 1985 respectively, the two sons, Philip and Jonathan, left home. I also accept her evidence that other members of her family, including her grandchildren and her brother would also use the gate and path to the park when they visited, and that she herself would go to the park not only to walk with the dogs but also to collect elderflowers and dandelions to make wine with.

 

17. I am also satisfied that the use made of the route from the garden gate to the park was quite open, and carried out at times in the presence of employees of the Barkers working in the field and without objection from them. The track was worn more heavily as it got closer to the boundary with the park and it must have been clear to anybody using the field that the Morris family was regularly using the route.

 

18. I note that there is no sign of any gate in the 1971 aerial photograph produced by the Respondent’s expert witness, Mr. Young. However, the 1976 aerial photograph also, according to Mr. Young, shows no visible exit from the garden despite the fact that one is visible in the 1974 photograph of Mrs. Morris’ mother, and Mr. Young has acknowledged that it is very difficult to see a gate from an aerial photograph if the gate is shut. I am faced with a choice between finding that there was no garden gate until after the 1971 aerial photograph was taken or that it was there, as deposed to in some detail by Mrs. Morris and her two sons. Bearing in mind the obvious benefits for a family with two children and a dog in having a gate so close to the park while the children were growing up, and the weight of their evidence compared with that of a single aerial photograph described by Mr. Young as of moderate quality and his own qualification as to the reliance that could be put on it, I have no hesitation in finding that from the early 1960’s there was first a stile and then a gate in the hedge dividing the garden of 20 Castleview Road from the field and that it was used throughout the period since to gain access along the field, close to its edge, to the park and beyond.

 

19. I also accept the evidence of Martin and Philip that the gate had been replaced on 4 or 5 occasions over the years and that Martin was told by a farmhand working on the field that Mr. Barker (it is not clear which one) would not like the gate to open outwards so it was made to open inwards. It is unnecessary to make any finding as to their difference in recollection as to the way that the first gate opened. This also indicates clear acquiescence to the use of the gate to access the field by at least one member of the Barker family.

 

20. I would add that I have no reason to doubt the evidence of Martin and Philip that they also used the gate from time to time to access the outside of their garden hedge and shrubs for maintenance purposes. It may be that they have acquired a right of access to do this as well, but that is not something with which I am concerned on this application.

 

21. There is no suggestion that any member of the Barker family, or any of their employees, or anybody else, ever told any member of the Morris family that they should not use the path to the park with or without dogs.

 

22. Unless there is any defence to Mrs. Morris’s claim, she and Mr. Morris will have acquired a prescriptive right of way under the doctrine of lost modern grant by about 1982. The principal defence is that the freeholder of the servient land, the field, had let the land in 1954 and was not in a position to prevent the user, so that time could not start running against the freehold until the Barker family acquired the freehold in 1984. I shall return to that defence.

 

23. The other pleaded defences are that in about 1900 [sic] “to prevent access from Upton Court Farm onto the Respondent’s land, RG Barker Farms dug a ditch north south along the strip to a depth of approximately 5 feet.” “1900” would appear to be a misprint for 1990 as that was the date given in the witness statement of W.J. Barker where it was said to have been dug in response to trespassers entering onto the field, and paragraph 4.2.5 of the Statement of Case also refers to 1990 as the date the ditch was dug. R.G. Barker also confirmed in his evidence that he dug the ditch soon after he took over the farm in 1989. I accept their evidence as to the date when the ditch to which they refer was dug and I consider that the recollection of Philip and Martin that it had been dug by 1985 was mistaken. R.G Barker in particular had good reason to remember the date as it followed his taking over the farm, which Philip and Martin had no good reason to remember although they were doing their best to do so 20-25 years after the event.

 

24. According to W.J. Barker the ditch restricted unlawful access to the Barkers’ land from Upton Court Road for a couple of years without any complaint. The ditch may have been effective in restricting access for that length of time other than onto the path, but I am satisfied from the other evidence I have heard that it was quite quickly filled in where the path had been and that it did not restrict access by the claimants for more than two or three weeks. In particular, R.G. Barker, who dug the ditch stated that he had left the spoil beside the ditch and it had been put back by people using the access. In cross-examination he stated that the edges had been pushed back in again within a couple of weeks, after which it had been possible to walk across again, and it could not be dug out again until the following year because the crop had been planted. I accept R.G. Barker’s evidence as to this, and find that the ditch was dug twice in about 1990 and 1991 and the spoil was on both occasions left on the side of the ditch and was rapidly pushed back into that part of the ditch which extended across the path, making it passable again insofar as the ditch had previously been effective to prevent passage. R.G. Barker was not in a position to say who had filled in the ditch on each occasion although he was plainly entitled to assume that in the area of the path it was some person or persons wishing to use the path without obstruction.

 

25. In any event, the date the ditch was dug was irrelevant to Mrs. Morris’ claim provided that she had established a right under the doctrine of lost modern grant before the earliest date it was dug, and I am satisfied that she has established 20 years open user as of right and without any licence before that date. As a result, she and others exercising that right of way were entitled to fill in the ditch to make the route passable again as before.

 

26. The reference to Upton Court Farm in the Respondent’s Statement of Case is also plainly to Upton Court Park. A further pleading in that Statement of Case is that access was only possible by vandalising a fence across the route which originally prevented access to the park. This was not pursued at the hearing as there was no evidence that any such fence existed following the development of Castleview Road across that corner of the field. In relation to Mrs. Morris, the claim that the use had not been sufficient to amount to the continuous exercise of a defined way as of right capable of giving rise to a prescriptive right of way also fails for the reasons I have given.

 

27. It was also pleaded that when the Barkers their servants and agents have encountered people on the field they have been told that they are trespassing and in some cases such people ran away. There is no evidence that any member of the Morris family was so informed or ran away and there is evidence, which I accept, that one member was told by an employee that a gate in the hedge should be constructed to open inwards, rather than that it should not be constructed at all, which one would not expect if the Barkers had really adopted the attitude that they claim throughout, as it served no purpose except to let the Morris family onto the field.

 

28. There was also no evidence that any member of any other family claiming rights in these proceedings ran away or was so informed, other than Mrs. Turner’s sons. There was one member of the Hyland family who sought at some point between 1976 and 1980, and was refused, specific permission to use a short cut across the field to get to Churchmead School, Datchet, but that was in the opposite direction from the route in respect of which the Applicants are presently claiming rights and involved cutting through the field rather than going along the edge. I conclude that although the Barkers were well aware that the route along the edge of the field was in regular use, they acquiesced in that use at least so far as the Morris family was concerned going between their gate and the park at least until the ditch was dug, by which time Mr. and Mrs. Morris had already acquired a prescriptive right of way.

 

29. The only other suggestion of any obstacle or objection to the use of the route by the Morris family is that evidence was given (although the point was never pleaded) that the field was ploughed right to the edge on occasions. There is no pleading as to this, and nothing in the witness statement of W.J. Barker dated 9 August 2004 about it. There is a brief reference in paragraph 6 of the witness statement of R.G. Barker dated 7 September 2004 that he then ploughed right up to the northern boundary of the field and that there was no track there. Where there was a track, he ploughed up to the track. I note that no witness statement of either Mr. Barker was ever provided other than those two 2004 statements which had obviously been prepared for another purpose, apparently in relation to a claim by residents of Castleview Road and Blenheim Road that all or part of the park was a village green.

 

30. However, in cross-examination W.J. Barker stated that they had ploughed right up to the fence on the northern boundary of the field all the time and that those going on the field close to the northern boundary were walking through ploughed land and crops. He also stated that there was a fence on the western side (the park side) which those using the path were getting through, although counsel for Kelobridge made it plain that he was not contending that any fence was a physical barrier and I am satisfied from the other evidence I have heard that by the time the Morris and Hyland families started to use the field to get to the park, there was no fence to stop them at any point.

 

31. I have no doubt that on occasions the field was ploughed and planted by R.G. Barker very close to the edge of the field after he took over in 1989 to the west of where the farm track turned south across the field. I have more doubts about the ploughing and planting before then. There is a well defined path along the northern side of the field in the 1989 aerial photograph, and although the 1988 aerial photograph is said by Mr. Young to show harvesting up to the garden boundaries, the image is also said by him to be diffuse and to lack precision. In addition, there appears to me to be a line which could well be a track close to that boundary. Similar comments apply to the 1987 aerial photograph, which also appears to show a track linking the farm track to the path. The image here is clearer. I accept that in the 1986 photograph the field appears to have been ploughed or harrowed to the very edge or close to that edge of the northern boundary, but this does not appear to have been the case in the 1981 photograph and earlier photographs.

 

32. R.G. Barker has explained in his witness statement that until 1984 the field was used for market gardening. Because the topsoil was thin and did not hold moisture, in most years only poor crops could be grown. For this reason it had often been used for compulsory government set aside. Under the relevant rules, which applied from 1 January to 31 August in each year, the land had to be allowed to grow a suitable cover, or if there was no such cover one had to be seeded and then cut after 15 July. That cover would grow almost a metre high in summer. The rough cut height was about 20cm. A schedule exhibited by him shows that from 1984 to 1998 the field was used to grow, in different years, barley, wheat, rape and beans. From 1999 to 2004 it was set aside. I accept this evidence.

 

33. Mr. Young has commented on the 1986 photograph that the field has just been harrowed and that in the west there is no room for a footpath behind the Castleview Road houses. While I see the force of this in relation to most of those houses, there is in fact a pale line just behind 20 Castleview Road which in my judgment could be a path and I am not satisfied that in that area, in the very corner of the field, the land was harrowed to the boundary. All that he is able to say in relation to the 1981 photograph is that there is no observed path. Even in the 1979 photograph, while Mr. Young is unsure whether there is a path along much of the boundary, he comments that there is more obviously a path which extends, worn, the length of no.20’s south boundary.

 

34. Both Mr. Barkers gave evidence that there was no point in taking certain steps, such as erecting signs which trespassers would pull down or fences which would, they said, be vandalized. Yet I am asked to accept that, despite the fact that there is no pleading to that effect, and the point was not put to the Applicants or their witnesses, they regularly ploughed to the edge of the field over a path which in 2004 Mr. R.G. Barker said was not there. Such ploughing, if it took place, plainly did not inhibit use of the track, despite the effect one would have expected it to have. Further, as it plain from the Barkers’ evidence and from the aerial photographs that the track, if it was destroyed by ploughing, was regularly recreated, it would have been obvious to them that it was pointless, without taking further action, to plant crops at the edge of the field where people were walking.

 

35. I do not find the evidence of either Mr. Barker convincing in this respect and I conclude that on the balance of probabilities they did not plough to the very edge of the field but left an area which could be walked on and which could be seen as a worn track at least part of each year. I have come to the conclusion that harrowing or ploughing took place only occasionally before 1990 up to the very edge of the field. I am also of the view that so far as the Morris family were concerned, in the very corner of the field, this did not interfere with their use of it to access the park.

 

36. The Barkers were very well aware of the gates onto their field and can hardly have failed to be aware that they had been put there to allow access onto the field. I am also satisfied that they and those working for them in the field will have been well aware that the Morris’ gate was being used to give access to the park along a track which was always clearer outside and beyond their home to the park. Nothing they did gave any indication that they objected to such use by the Morris family and their visitors. There has been no application to amend the Respondent’s Statement of Case to allege that the ploughing constituted an interference with the route along the edge of the field sufficient to make user forceful. Nor has any amendment been sought to allege that it drew sufficiently to the attention of the various parties (to whom it had never been put) that the user was opposed by the Barkers. Had any such application been made, I would not have been disposed to allow it, except perhaps upon terms as to costs including the costs of the recall of the witnesses in the different application. As, however, I find that there was no such interruption by ploughing, the question does not arise.

 

37. The same point arises in relation to the signs which R.G. Barker stated in his evidence at the hearing were twice erected around 1990 by the entrance from the part saying something to the effect of “Private Property. No Trespassing.” Again these emerged after the Applicants had closed their case and without any attempt to amend or have the Applicants’ witnesses recalled. There is abundant evidence of use of the field by others, including both other residents with gates onto the field and outsiders who would come both on foot and with motor bikes. I am satisfied that if these signs were indeed erected they disappeared very quickly and did not come to the attention of any of the Applicants. If they had come to the attention of any of the Applicants, a sign in those terms would not necessarily have been taken to apply to them, particularly where they had been using the edge of the field for many years without objection and had still not received any communication from any of the Barkers. Anybody who had used the land for 20 to 40 years at that stage without objection, and who would normally be entitled to a right of way by prescription, would also be entitled to assume that it did not apply to them, subject only to any question that might arise as a result of its combination with the digging of the ditch to which I shall return. In the case of No.20, if a right of way had already been acquired then the sign would be ineffective even if it came to the attention of Mr. and Mrs. Morris.

 

38. In Taylor v Betterment Properties (Weymouth) Limited, [2012] EWCA Civ 250, Patten LJ, giving the leading judgment of the Court of Appeal, reviewed the authorities as to what a landowner must do to take reasonable steps to bring to the attention of those using his land his opposition to them doing so (para.49). As Patten LJ put it at paragraph 52, “the landowner is not required to do the impossible. His response must be commensurate with the scale of the problem he is faced with.”

 

39. In considering whether the response of the Barker family was commensurate with the scale of the problem, It was apparent from the site view that very many more gates had been created over the years from back gardens onto the field than I am dealing with on these applications. These were presumably used to access the edge of the field to walk to the park or elsewhere, and to tend their garden hedges and shrubs from the field. There was also evidence of others who did not own adjoining properties using the edge of the field to walk to and from the park. It is also apparent that the Barkers never (with one alleged exception in relation to a different property) made direct contact with any of these home owners or occupiers other than the sons of Mrs. Turner.

 

40. They claim to have chased off trespassers over the years but there is no evidence as to how often they, as opposed to their workers, who took no such action at least as regards the current Applicants, were on the field to observe any such activities other than such inferences as may be drawn from the fact that they did not know any of the Applicants and none of the Applicants had had any encounter with them. There is evidence from several of the Applicants and their witnesses as to the presence of workers on the field when they were using the path but all are clear that the workers did nothing in any way to indicate that they should not be using it, and I am satisfied that they had no instructions to stop anybody from using the north side of the field to access the park. Nor did the Barkers, prior to 1989 attempt to cut off the route to the park in any way. The absence of any attempt at direct communication is remarkable if the Barkers did not want their field used in this way.

 

41. In my judgment, occasional ploughing or harrowing close to the edge of the field was not such as to be by itself, and in the absence of these other steps that could easily have been taken, sufficient to bring to the attention of those using the edge of the field in this way their opposition to such use. It should have been obvious to the Barker family that they were not doing enough for this purpose, but nothing else happened until R.G. Barker took over the farm in 1989. Nor did it make any such user use by force just because the users walked through the area that had been ploughed, preventing crops from growing on that route or trampling such crops as may have started to grow. It would have been a simple matter for the Barkers, if they wished, to have delivered notes to the occupants of each of the properties in Castleview Road and Blenheim Road, for example, telling them that they had no right to walk on their field and if they are doing so, then they should stop. So too, they could have instructed their employees, who appear to have been on the field far more often, or at least for more time, than the Barkers themselves, to stop and turn around anybody they found walking on the field. It appears to me that, having done nothing in relation to almost everybody involved, they did not take reasonable steps in respect of those whom they did not contact to bring to their attention their opposition to their using the field.

 

42. I then turn to the position of the Minister of Works as freeholder. The law is conveniently set out by Chadwick LJ in Williams v Sandy Lane (Chester) Limited, [2006] EWCA Civ 1738 at paragraph 24, where he stated

 

        “In my view it is possible to derive from the decision of this Court in Pugh v Savage the following principles applicable to cases where the servient land is, or has been, subject to a tenancy. First, in a case where the grant of the tenancy of the servient land predates the user by or on behalf of the owner of the dominant land, it is necessary to ask whether, notwithstanding the tenancy, the freehold owner of the servient land could take steps to prevent user during the tenancy. The answer to that question is likely to turn on the terms of the tenancy. Second, if (notwithstanding the tenancy) the owner of the servient land could take steps to prevent the user, then it is necessary to ask whether (and, if so, when) the freehold owner had knowledge (actual or imputed) of that user by the owner of the dominant land. The fact that the freehold owner of the servient land was out of possession when the user began and throughout the term of the tenancy may well lead to the conclusion that knowledge of that user should not be imputed. But if, on the facts, the owner of the servient land does have knowledge of the user and could (notwithstanding the tenancy) take steps to prevent that user, but does not do so, then ( prima facie) acquiescence will be established. Third, in a case where user of the servient land by the owner of the dominant land began before the grant of the tenancy, it is necessary to ask whether the freehold owner of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, then it is likely to be immaterial whether the terms of the tenancy are such that the owner of the servient land could (or could not) take steps to prevent that user. That is because if (with knowledge of the user) the owner of the servient land grants a tenancy of that land on terms which put it out of his power to prevent that user, he can properly be said to have acquiesced in it. Fourth, if the owner of the servient land did not have knowledge of the user at the date of the grant, then the position is the same as it would be if the grant had pre-dated the user. It is necessary to ask whether (notwithstanding the tenancy) the freehold owner can take steps to prevent the user; and, if so, whether (and if so when) the owner had knowledge of the user.”

 

43. In the present case, it became clear from the evidence of W.J. Barker that the tenancy from the Minister of Works did contain a provision preventing the tenants from allowing anybody access onto the land or over it. In re-examination he confirmed that there was a definite document which stated what the Minister of Works would let them do. They were on secret research, Mr. Barker stated, and needed to protect their position. It is clear that the Minister of Works was in a position to enforce compliance with this if the Barkers were permitting others to go over the land.

 

44. Secondly, there is the question whether The Minister of Works, and later the Research Council, had actual or imputed knowledge of the user by the Morris family, and in respect of the other claims by the occupants of the other properties. They had a research building nearby and put up a hut close by on adjoining land also let to the Barkers. In this case there is no direct evidence as to what the Minister of Works and the Research Council knew or did not know from 1961 onwards. However, this is a case in which the restriction in the lease had been imposed for a specific purpose connected with the freeholder’s use of neighbouring land which use had not changed. The presence of the gates onto the land, once they were erected, would have been an obvious indication that the occupiers of the relevant properties were coming onto the demised field. Further given the user, at least by the Morris family, I am satisfied that there would from 1961, or very soon thereafter, have been a distinct path leading to the park from outside their gate. It appears to me that on the balance of probabilities the Minister of Works, who had a relevant presence close to the field, would from time to time have inspected their tenanted land to ensure that there was nothing happening on the land that may have caused problems to their research. I consider it likely that this would have happened at least once every three years. In addition I consider it likely, in view of the terms of the lease, that one or other of the tenants would have contacted the Ministry once gates started to appear, to check if they needed to do anything about them. In practice, as W.J. Barker stated in evidence, the Minister was not interested. No doubt this was because this sort of incursion did not affect the research being carried on.

 

45. The position is different from a case where all that is happening is that people are walking across land in that the fact that the land was being used by the Morris family and route used would have been apparent on inspection even if there was nobody on it at the time. I conclude therefore that the Minister of Works knew of the use or is to be imputed with such knowledge by 1964.

 

46. The third and fourth principles do not arise as the use of the route along the edge of the field only began after the grant of the agricultural tenancy.

 

47. For the reasons given, it appears to me that Mrs. Morris is entitled to a right of way on foot between her gate and the park for the benefit of 20 Castleview Road under the doctrine of lost modern grant.

 

The claim of Mr. and Mrs. Hyland

48. Mr. and Mrs. Hyland have lived at 24 Castleview Road since October 1957. Their evidence is that they fitted a gate into their rear boundary in 1962 or 1963, the year after the Morris family created a stile from their garden to the field. Their Statement of Case states that they would go through the gate from then until the present time in order to access the park, which is described as a few steps west along the path at the northern unploughed edge of the field. They also claim to have accessed the field to tend their hedge but again, as with Mrs. Morris, this is not part of the claim before me. They state that the distance between their boundary and the path is about 3 metres.

 

49. Mr. and Mrs. Hyland gave evidence in these proceedings by a joint witness statement. In it they state that they have only to pass two properties, 20 and 22 Castleview Road, before reaching the park. No crop extended as far as the path next to the hedge and none of the family had ever been told not to use it. Mr. Hyland refers to a ditch dug across the path in the 1980’s which left a ledge of about 18 inches only by Mrs. Morris’s fence. Mr. Hyland stated that they could still get through but needed to cling onto Mrs. Morris’s fence for balance from time to time. He assumed that the ditch was to keep motorbikes and cars off the farmer’s fields.

 

50. Mr. and Mrs. Hyland had four children, the youngest of whom was born in 1965. Mr. Hyland stated in a letter dated 21 August 2011 that he and his wife planted a rose hedge in 1958 or 1959 between the field and their back garden. This was later changed to a privet hedge leaving a gap at the right hand corner so that they could trim the hedge from the farm side. About 1962 or 1963 they fitted a wooden gate in the gap.

 

51. They state that their children used to play in the park and Mrs. Hyland would summon them home with a whistle for meals and at bedtime. They state that if they were to access the park by foot using the highway it would take about ten minutes, while along the field it takes about 20 seconds. They have exhibited photographs from the 1990’s showing the gate in their hedge, but none earlier. They refer to letters from their son, Paul, and his children confirming the use of the path, but in their Statement of Case, somewhat curiously, they give no evidence of their own personal use of it. Paul’s letter, dated 24 August 2011, addressed to the Land Registry, and also signed by his children, Philippa and Matthew, describes where the access is and states that Paul lived at 24 Castleview Road between 1957 and 1981 and regularly used the rear access to go to the park to play and for recreation, and since then his children had used the access with their grandparents to play in the park. There was also a letter from a great-grandduaghter of Mr. and Mrs. Hyland that she and her brother used the route regularly with their bicycles and to go to the park to play when they visited their great-grandparents. The whole family would also go for strolls to the park that way. When they visit they rarely come in through the front of the house.

 

52. Similar written evidence was also given by another son, John, who was born in 1963 and lived at the property until 1988. I have already referred to his attempt to obtain permission from one of the Barker family to use a different route to school. He had continued to visit at weekends during his student days and later until he moved to Switzerland in 1993. He had been a special constable at Slough Police Station and would sometimes access the park through the field in police uniform to attend functions. He did not give oral evidence because he is now living and working in Switzerland and the Applicants’ representative, Mr. Sable, was unable to arrange video conferencing facilities for him to give evidence by videolink.

 

53. Oral evidence was given by Mr. and Mrs. Hyland, who are now infirm and who, like Mrs. Morris, gave their evidence at home following the site view. Mrs. Hyland stated that there was no intention to go through to the field when they planted the thorny rose hedge but when the privet hedge replaced it in 1959 or 1960, there were gaps between the plants through which they could initially get. No hedge was planted where the gate now is. Mrs. Hyland explained that this was to allow them to get to and from the park with the children – they had four children, the oldest of whom was 8 when they moved in 1957 and the youngest, Jane, was born in 1965. Mrs Hyland had suffered badly from asthma and bronchitis since shortly after she married and at times could not walk, but she had also pushed a push chair and a tricycle along the path.

 

54. Mrs. Hyland insisted that it was not an exaggeration to say that it took 10 minutes to get to the park using the road. It seems to me that this was an exaggeration, even with small children, but it was undoubtedly far quicker using the path along the field. Again 20 seconds for this trip was an exaggeration, but it was only about 60 or 70 metres to the edge of the park using the field compared with about 200 metres using the highway or over 300 metres using the highway to the point at which the path along the field reached the park. It was also traffic free and was thus far safer for small children, who could also be allowed to run ahead along the field.

 

55. Mrs. Hyland could also watch the children in the park from her home. The hedge and trees were so low then that she could stamd in the garden and see them. She also gave further evidence of her use of a whistle to call them home. She would also take picnics to the park. Her son, John, had not used the path significantly since going to university in 1981. The workers in the field had also invited them onto it at times.

 

56. Mrs. Hyland’s evidence was rather confused at times, but I am satisfied that her references to the workers inviting them onto the field referred to their going onto the field to collect left over potatoes and not to using the path at the edge either to get to the park or to tend her hedge.

 

57. Mrs. Hyland also stated that her daughter, Jane, had bought her a bicycle and they used to go to Windsor regularly. She had not used the path much recently but her husband had continued to do so.

 

58. Mr. Hyland, who was now ill but gave the impression of having been much fitter than his wife until recently, gave evidence that he had used the path to get to the park 3 or 4 times a week in the summer but less in the winter. On Sundays he used it in the past to get to the park to cycle to Eton. He now used the path about twice a week, and had been to Eton once or twice this year. He would go and sit on a bench in the park still.

 

59. Harrowing was done to about 2 metres from their hedge and the Barkers would plough up the line of where people walked. He had removed the old chain link fence soon after moving in and planted the rose hedge and then replaced it with the privet hedge. A fireguard had been used as a barrier in the gap. The first gate had been a primitive one and string had been used to hold it shut. The first gate was in 1964 or 1965. They had never been told not to use the path.

60. Despite exaggerations in places, and some confusion on their part, I broadly accept the evidence of Mr. and Mrs. Hyland. I accept that, as counsel for the Respondent pointed out, much of what was said by them when giving oral evidence went beyond what they had stated in their Statement of Case and witness statements. However, this case has involved activities extending over half a century. It is natural that they would not remember everything at once and that incidents and uses of the path would come back to them from time to time. It is also natural, particularly given their age and infirmity, that there would be errors and inconsistencies in their recollection of events. Nevertheless, it appears to me that their claimed use the park from an early stage with their children and the types of use described, including the use of the whistle and watching the children from the garden and house, are not invented and are typical of the sort of use one would expect the path to be put to once an opening had been created from their garden onto the field.

 

61. Their evidence is also supported by their son, John, in his letter, and by their youngest child, Jane, who provided a witness statement and gave oral evidence at the hearing. Jane, now Jane Tooze, who was born in 1965. She stated that she and her siblings would use the path daily during summer although less frequently in winter. They would ride bikes in the ditch or dell at the end of the path where it entered the park, and she described things she did and could remember in the park. In July 1974 she took a cycling proficiency badge on the course which by then had been laid out in the park close to the path and says that she used the path to get to it each day. She also described using the path in the opposite direction to visit friends, and using the path and farm track with her brother, John, to go in a different direction, but that does not form part of this claim. From about the age of 13 until she was 18, she would also use the path to get to the park with her bike and would then cycle to Eton and Windsor.

 

62. Jane’s evidence in this respect would take one to about 1983, after which she makes no mention in her witness statement of using the path until she returned to live in Castleview Road with her parents accompanied by her 10 year old daughter in 2001. She then gave similar evidence as to the use of the path and park by her daughter over the ensuing two years period. She visited her parents often and during family gatherings the path would be used to reach the park. This continued until 2011. She was aware that it might have been naughty to use other parts of the farm, as she did, but understood the use of the path to the park to be allowed and encouraged.

 

63. She confirmed that she had been at home until 1983 and again when she returned with her daughter, Elodie. She confirmed that she and her siblings had played alone in the park with limits on how far they could go, that their mother would watch them from their home and that they had used the path to go to and from the park. They had used the park throughout the year, if it was not raining, but less in winter.

 

64. In addition, Jane stated that from the age of 13 until she was 18, she had belonged to an athletics club and used the path and park to get there about 3 times a week. She was also going to Windsor through the park on Saturdays and Sundays as a teenager, and from 16 to 18 was working there at weekends and would cycle to work through the park. She had not included much of this information in her witness statement because she had not remembered it when she wrote the statement one afternoon. She had also not understood as clearly then as now how much needed to be included in her evidence. Some of the new evidence she was giving was of things of which she had been reminded by her brother since she wrote the statement.

 

65. She described the path outside her garden gate as being well defined, of compacted mud, about a foot wide or more. The field was used a lot at the time for the cultivation of potatoes and similar crops. Later, after she left home, taller crops were grown.

 

66. From 1983, when she went to university, she would come back for holidays and various celebrations. There was a large extended family. She would have used the path on occasions, perhaps seven or eight times a year. She would always go back for Easter, Christmas, birthdays, parents’ days and similar occasions. She would often visit friends in Eton and Windsor using the path. Whole extended family groups would also occasionally use the path. Jane herself, her father and her brothers and their children would use it most. Her daughter would stay with her grandparents during school holidays between the ages of 4 and 13, as she was a single parent working and needed somebody to look after her daughter in the holidays. Her daughter told her at the time how she spent her days including using it with them.

 

67. Between 2001 and 2003 they were living at the property, and her daughter would use the path to get to and from the park on the way to and from her school.

 

68. Jane was also criticised by counsel for Kelobridge for raising new matters in cross-examination that had not been mentioned before in her witness statement. Once again the explanation, which I accept, was that she had not fully recalled her activities using the path so many years ago or appreciated the need to give such full information as was sought in cross-examination at the hearing. I found her evidence clear and convincing.

 

69. I am satisfied that the route along the path to the park was used regularly by Jane from the late 1960’s until she left home in 1983 and on most of her visits home from then on. It was also used regularly by her and her daughter when living at home again from 2001 to 2003 and was also used by her daughter when staying with her grandparents as a child. Overall, I have no doubt that the user by the various members of the Hyland family was more than enough to give rise to a presumed lost modern grant of a right of way on foot by at the latest 1985 for the benefit of 24 Castleview Road subject only to the various contentions by the Respondent as to why such a grant should not be presumed. Such user does not need to be nearly as frequent as the use claimed by the Applicants. In Diment v N.H. Foot Ltd., [1974] 1 WLR 1427, for example, the user was only 6 to 10 times a year. As pointed out in that case, citing Romer LJ in Union Lighterage Co v London Graving Dock Co, [1902] 2 Ch 557 at 570, the question was whether the user was of such a character that an ordinary owner of the land, diligent in the protection of his interests, would have, or must be taken to have, a reasonable opportunity of becoming aware of that enjoyment.

 

70. As to these grounds, I am satisfied that on the balance of probabilities, for the reasons already given, the Minister of Works would have had, or must be taken to have had, sufficient knowledge of the use of the path before 1968, and certainly had a reasonable opportunity of becoming so aware, and that he was in a position to insist on action being taken to stop such user if he had seen fit. So too, the Barkers has such an opportunity and must be taken to have known of the use.

 

71. The arguments relating to ploughing to the edge of the field and to the digging of the ditch in 1989 or 1990 also fail for the reasons already given. The permission sought by John Hyland to ride across the field in a different direction contrasts with the attitude of the Hyland family and others to the use of the path along the edge to the park, or indeed for other purposes.

 

72. I note the evidence of Mr. Young as to the apparent presence or absence of a gate or opening from the back garden of 24 Castleview Road onto the field, and in particular that he could see no sign of any gaps in the box hedge in the 1994 aerial photograph although photographs on the ground that year clearly show such a gate. There are similar problems comparing his evidence with the photographic evidence of Mr. and Mrs. Peacock showing three different gates leading from their back garden to the field. While I have no doubt that Mr. Young was doing his best to describe what he could see, I am unable to place any great weight on his conclusions from the photographs when they are in direct conflict with clear evidence of the witnesses, particularly where that would involve a finding of dishonesty on the part of any witness, a finding that I am not prepared to make in relation to any of the witnesses I have heard on both sides.

 

73. I accept that John and Jane both cycled to the park during their childhood and adolescence, but given that the elder of them, John, was only born in 1963, so would not have started cycling until some years later and there is no evidence of either of them cycling that way after they had left home, their user was for well under 20 years and could not by itself give rise to any right to cycle along the path, even though Jane and her daughter also cycled for about 2 years nearly 20 years later.. There was also some evidence that Mr. and Mrs. Hyland also cycled. However, the right of way claimed by Mr. and Mrs. Hyland is on foot only, and I need only make it clear that no right of way by cycle over the path has been claimed or proved in these proceedings. At least on those occasions, of which there must have been some each year, when a cycle was wheeled over the path, the user would, however, count towards the establishment of the right of way on foot.

 

The claim of Mr. and Mrs. Peacock

74. Mr. and Mrs. Peacock bought and went to live in 50 Castleview Road early in 1958. They claim to have installed a gate into their rear fence in the spring of 1964, and state that they have since changed the gate and rear fence twice, most recently in November 2010. They also claim to have used the gate to access the route along the edge of the field to the park as well as to tend the far side of their boundary fence. In cross-examination, they would also appear to have negotiated the wire fence before the gate was installed, but I discount any use in this way as I do not consider that in the time in question it would have come to the attention of the freeholders that they were so acting, and in any event there was no such claim in their Statement of Case or written evidence. They owned four dogs in succession from December 1963 until 2003 and would use the path to exercise the dogs on the way to the park as well as for their own exercise. They claim that it would take them 30-40 seconds to reach the park from their rear gate as opposed to 10-15 minutes by road. Once again, I find the claim exaggerated in this respect for the reasons already given in relation to the Hylands claim.

 

75. All three of the gates are shown in photographs exhibited to Mr. and Mrs. Peacock’s Statement of Case, and I accept that they were installed and replaced as described. The timing of the installation of the first gate is also explained by the acquisition of a dog for the first time in December 1963.

 

76. In their witness statement they also claim to have walked the path daily for 49 years since 2004 (paragraph 8.1) and that Mrs. Peacock had continued to walk to the park at least twice weekly since they stopped having a dog (paragraph 10).

 

77. In cross-examination, Mr. Peacock stated that they had had dogs from 1963 until 2003. His evidence as to their first dog derived from a diary entry which had not previously been disclosed, but which, when produced the following day, confirmed that they had bought a dog in 1963. He had worked out from the time that they got their first dog, that they put in their first gate in 1964. At first he thought that they had probably put it in with a low fence that replaced their original wire mesh fence, which contrasted with his original evidence that the gate had been installed into the wire fence in the spring of 1964, a gate which he had said was shown in photo A at p.61 of the trial bundle.

 

78. Mr. Peacock said that they had walked the edge of the field to the park twice daily while their dogs were alive but since then only 2-3 times a week. He now had mobility problems but he and his wife continued to use it. He recalled the ditch being dug out but did not find that that caused him any problems when walking. He insisted that he did continue to use it even after it had been pointed out to him that in the joint witness statement of himself and his wife, it was expressly only his wife who said that she had continued to walk to the park at least twice a week and he had said nothing of this. He then changed his account of how often he used the path from two or three times a week to once every two or three weeks.

 

79. Like other witnesses, Mr. Peacock had an exaggerated view of the time it would take to walk to the park on the public pavements yet was able to get to the park along the path on the field at great speed. His witness statement, dated 21 June 2012, also showed signs of not being read, thought through and understood, as exemplified by paragraph 8.1 where he deals at length with an objection by the Respondent’s solicitors, Coole & Haddock, to a village green application in 2004, yet in cross-examination he stated that he had never heard of Coole & Haddock. He also denied ever having seen a document (p.276 in the trial bundle) to which he had referred in his witness statement. Mr. Peacock also asserted that, although when younger he had had no problem with walking, he would walk faster along the edge of the field than on pavements. I consider that I must treat his evidence with considerable reserve.

 

80. Mrs. Peacock started her oral evidence by disclaiming part of her witness statement, alleging that it was put in without her knowledge. I am unimpressed by this. She signed the witness statement stating that she believed the facts in it were true and it should have been obvious to her that if she was to say that the facts in the witness statement were true, it was her job to read the witness statement first.

 

81. It became apparent from Mrs. Peacock’s evidence in cross-examination that their first dog, Lassie, which they had from 1963 to 1978, was afraid of guns and that she did not walk Lassie on the path when there was shooting in the area. I note that W.J. Barker stated that they were always shooting pigeons and what he described as other vermin on their land, which I take to mean that they were regularly trying to keep numbers down over the whole farm, not that they were constantly shooting on the field.

 

82. I have come to the conclusion that Mr. and Mrs. Peacock’s evidence as to the amount they used the route was exaggerated. Nevertheless they did put a gate in their old wire fence soon after acquiring their first dog, and I am satisfied that from that time on they would, at least part of the time when walking their dogs, walk them along the path to the park and back. I also accept that Mrs. Peacock has since 2003 continued to go walking along that route with other friends exercising their dogs. I note that there is evidence that at times, as in photograph 14 at p.73 of the trial bundle, taken in 2011, here as in relation to the other properties in respect of which a right of way is claimed, there is no sign of wear in the grass between their gate and the path, although at other times, as in photograph 13, and to a lesser extent in photograph 12, both taken in 2008, wear can be seen. I also note that the use of the path itself leaves little signs of wear, and on my site inspection for much of the length of the path it was hard to distinguish it from the area around it. There has been no expert evidence as to the amount of wear that it takes to make a path worn in different weather conditions and I am satisfied that the path was regularly but not heavily used by them. It may be that part of the reason why there is no clear signs of wear is that there was no clearly defined path along much of the northern edge and wear was spread out for much of the route until close to the western end. The absence of wear did not mean that the Minister of Works or the Barkers had no reasonable opportunity to learn of the user, or that they were not aware of it. They had also acquired a right of way before the ditch was dug. In the absence of any other form of communication, I do not regard the occasional ploughing and harrowing to the edge of the field as either an obstruction to their use of it or as notice that their use of the claimed route was objected to.

 

The claim of Mrs. Turner

83. Mrs. Turner has lived at 30 Blenheim Road since December 1981. She moved there with her two sons, Jonathan and James. She states that there was then already a gate in the fence at the foot of her back garden which had been put there by a previous owner, Mr. Wright, who, she stated, had bought the house from Abbey Homesteads. I note that it at least twice as far from her home to the park along the field as it is from Mr. and Mrs. Peacock’s home, involving as it does crossing the entire width of the field and a little more, that little more being by itself about as far as from the Hylands’ gate to the park. When she moved in, and for many years afterwards, the farm track covered most of the distance between her home and the park, as it had for many years before.

 

84. She and her sons walked their dog, Bess, from 1981 to 1987, between the gate and the park along the path. In addition, she states that Jonathan and James both used the path as a short cut to their school in Lascelles Road and also for exercise and in Jonathan’s case to get to Windsor and in James’ case to visit his grandmother on the other side of the park. Jonathan left to go to university in 1983 but returned regularly to visit every 6 to 8 weeks and used the path when at the house. James left in 1990 and initially returned home from university and still visited regularly. Again he used the path to get to the park when he was visiting. On a visit in the week the Statement of Case was signed, in September 2011, he and Mrs. Turner had taken his dog to the park. Otherwise, she stated only that she currently used the gate to access the field to harvest windfalls, blackberries and other fruits available there, but does not state that she goes to the park. Simply accessing the path to get around the field cannot assist in establishing a prescriptive right of way to the park. Although it is reasonable to infer that if he had a gate, Mr. Wright would have used it at some time for some purpose, there is also no evidence of any use of it by him to access the park.

 

85. Mrs. Turner has included in her witness statement a photograph which she stated to have been taken in her garden in 1983 in which the gate can be seen, and I accept that it was there when she acquired her house. I also accept her evidence as to the use of the path from 1981 to 1990. However, that includes her sons being told off for using the path by the farmer or the farm workers, as a result of which they would stop using the path for a little and then start again as it was a shorter and safer route to school. She points out that the fields were very often empty with no workers on them. She stated that she did not now go to the park as often as she once did, although she walked from time to time when her friends visited her.

 

86. Neither Jonathan nor James gave oral evidence. Jonathan, who now lives in London, provided a brief letter, verified subsequently by a statement of truth, that he had used the path to walk the dog and go to school as described; that he had left school in 1983 to go to Cardiff University and during vacations would occasionally walk along the path with friends or when walking the dog in the park; and that since then on visits to his mother, he occasionally walked the path to the park. He makes no mention of being told off by the farmer or workers. James, who now lives in Cardiff, also confirmed his mother’s account of his use of the path, but again made no reference to being told off.

 

87. Giving oral evidence, Mrs. Turner was unable to remember exactly when Bess died, although it was about 1987 to 1989. Another photograph which she had produced of a lodger and her friends, had been taken in the early 1990’s on the field, although there was no evidence as to what they were doing when photographed. The gate had been moved from the centre of the fence to the corner of it for security reasons when the fence was moved about eight years ago. She could not remember if the boys had used the field in the winter or if the farmer had ploughed it up. Her mother had died in about 2006 at the age of 92. She had a friend she used to walk in the path with about three or four times a week for a couple of years after her dog died. She did not use the path much now, perhaps two or three times a year. This year she had used it to pick blackberries. James had last come with his dog the previous May and had walked the dog on the path. The time before had been Christmas. Her ability to walk there depended on whether “they” had churned it up. It was not as it used to be. They used to leave a bit to walk on and did not come right to the fence. Now they came in as much as they could. That had been going on for the last five years. If a friend was with her, she would walk it. She had walked along the path about half a dozen times in the last year. When her son came with his Labrador they would walk about three times a day.

 

88. At the site view, it was apparent that the area between the gate and the path on the field had been cleared recently. Also when the fence had been replaced and the gate moved, the old path to the gate across the garden had not been moved and there was no path to the new gate.

 

89. On the basis of Mrs. Turner’s own witness statement, her sons were both warned off more than once from using the route along the edge of the field at an early stage and knew that they should not use it. Indeed they stopped using it for a time, and I suspect from Mrs. Turner’s comment about there usually being nobody in the field that they only started using it again when there was nobody there. Those facts were known to Mrs. Turner. It seems to me that in this case one of the Barkers, had made it plain to them that they should not use the path and that their use of it was not acquiesced in. It also seems to me in those circumstances that for a time at least their use was not only not acquiesced in, but, if they did ensure nobody was there when they used it (and neither came to give evidence) it was in a way secret.

 

90. In the circumstances, it appears to me that Mrs. Turner was well aware in the early 1980’s that she should not be using the path and that the farmer objected to her and her sons doing so. In addition, I am satisfied that her and her sons user of it over the years has been far less, at least since the late 1980’s, than the other Applicants’ user of it. Before the death of the dog, in my judgment, she should still have been aware that the Barkers objected to her and her sons use of the path, although it is right to say that the objection was made when the boys were using the path as a route to their school and must therefore have been in the early years of their occupation of 30 Blenheim Road.

 

91. I do not find it surprising that there was an objection to using the path in this case when there was none in relation to the three sets of Applicants from Castleview Road. Nor do I find it surprising that the user was far less frequent. It is one thing to walk a few yards to the park along the field. It is another to walk about quarter of a mile to get there along the field. Also, most of that distance was along the farm track and both the route and the time it took made it far more likely that they would be spotted and that their use of the track would be objected to.

 

92. I have considered whether there came a point when the relevant Barkers must be taken to have started to acquiesce in Mrs. Turner’s, and her family’s, use of the field. It appears to me that the initial clear objection, more than once, to the use to get to the park was sufficient to bring it to Mrs. Turner’s attention that the Barkers did not acquiesce in this, and I can find nothing that happened subsequently to change the position. Indeed, in relation to her, with her knowledge of their objections, the subsequent digging of the ditch across the path on two occasions, and the digging up of the path more than once should have led her to conclude that the expressed objections remained.

 

93. I have therefore come to the conclusion that Mrs. Turner’s application to register a prescriptive right of way fails.

 

The claim of Mr. and Mrs. Mittal

94. Of the present claimants Mr. and Mrs. Mittal are the latest arrivals, having acquired and moved to 24 Blenheim Road in January 1984. Their claim is also for a right of way on foot between their home and the park although some of their evidence relates to cycling. I accept their evidence that when they moved in there was already a gate in the rear boundary fence which had been placed there by the previous owner, a Mr. Bailey. I also accept that when they moved to the house they had three daughters, born in 1970, 1971 and 1977, and that they brought with them their two year old German Shepherd dog.

 

95. The only evidence that there was no such gate was that Mr. Young was unable to see it on the aerial photographs. However, it is clear from the photographs produced by Mr. and Mrs. Mittal, and from their evidence, that the gate did exist but was probably not clearly visible from the air. It formed part of a complex including a swimming pool, boundary fence and changing rooms.

 

96. They claim that they would walk the dog along the path around the edge of the field and into the park. The dog died in 1993. The children would also use the path to get to the park on their way to school and would come back the same way.

 

97. In October 1987, the changing rooms and boundary fence were destroyed during the well known storm of that month and new changing rooms and a new fence and garden gate were built, with the gate in the same place as before.

 

98. After their dog died the family continued to use the path as before to access the park and in the case of the children to get to and from school. In his witness statement, made jointly with his wife, Mr. Mittal alone stated that he now went to the park about twice a week. Mrs. Mittal made no such claim. However, in cross-examination Mr. Mittal said that he and his wife would get up at 5am whether light or not and go to the park but now only did so twice a week. It was an oversight that they did not mention this in their witness statement. Mrs. Mittal said that it was not every day that they got up at 5am and also said that they both went to the park twice a week and she was sorry if she forgot to mention that she went although she also said that they went once or twice a week if the weather was nice. I cannot accept that this was an oversight. It was not an omission but a deliberate qualification to the statement that it said that only Mr. Mittal did this.

 

99. Of their daughters, Parita, who was born in 1971, lived with them until 1999 when she married and moved to Chicago. She now lived in America with her own three children but, according to their witness statement, visited a couple of times a year and used the gate to take her children along the path to the park to play. In giving oral evidence, however, Mr. Mittal stated that she only visited once a year, sometimes for one week and sometimes for two weeks, while her mother stated that her children were only 6, 5 and 2, so that any walks with them can only have been in the last 5 years or so.

 

100. Parita made a statement (trial bundle, pp.142-3) stating that until she left for Chicago she made extensive use of the path to take the dog for a walk and on family walks. She used it to avoid the traffic and for safety reasons. She also used it as a short cut to school. After the dog died in 1993 she continued to use the path with her bike and on foot to get about and to avoid the roads. She also used it when she returned on visits to her parents’ home. As with other witnesses abroad, attempts to get her to give live evidence by video link failed.

 

101. Poonam, the oldest daughter, still lives with her parents. She is now a teacher. She made a statement very much to the same effect as her parents and siblings, although she also stated that they were not allowed to use the main roads, which was not evidence that anybody else gave. She also stated that she still regularly used the path with her bike or running or walking to get to the park and she would take her nephews and nieces to the park that way when they were visiting from the USA. She also used the path to visit friends whose homes backed onto the field. Surprisingly, she did not attend the hearing to give oral evidence.

 

102. The third daughter, Angela, also provided a statement much to the same effect. She lived at home until 1995 when she went to university until 2001, only returning home for vacations. Following university she returned home, but left in 2004 when she went to live in Rotterdam for her work. She regularly returned for visits and whilst over, regularly used the path to get to the park for a morning walk with her husband. Again she did not attend to give evidence. According to her mother she married five or six years ago.

 

103. I am unimpressed by the total failure of any of the daughters to attend to give evidence, and treat their statements with considerable reserve. I see no reason why advantage could not have been taken of the opportunity for the two daughters living abroad to give their evidence by videolink, and I can see no good reason why Poonam could not have attended the hearing.

 

104. One of the problems which emerged from the site view and in cross-examination of Mr. and Mrs. Mittal was that it was not possible to get into the garden from the path if the door in the garden fence was closed without there being somebody to open it from the inside. Even when the old door had been there, it would be locked from the inside, so that although it had a handle on the outside, it could not be opened if locked. Mr. Mittal stated that when Parita took the dog for a walk she would leave the door open and she always left the door open when she went to the park. When the children went to school, they would leave the door open at the time school finished. While there was some confusion in the evidence of Mrs. Mittal, she stated that they never left the children alone in the house and that she would go and leave the back garden door open when they were due to return from school. She said that it was not for her to tell them which way to go, by park or road, yet she also said that she may have told the children not to go on the main road with their bikes.

 

105. I am satisfied that the Mittal family did not use the route along the side of the field as often as they claim. I find that it was natural, with a gate in the back fence, a route to the local park, and a dog and small children, that they should use the route along the edge of the field for walks to get to the park, and indeed to get to friends houses along the way, and as a short cut, or more pleasant route than the public highway, to get to places beyond the park. I am satisfied that the Mittals used the route in this way from soon after they arrived at 24 Blenheim Road. I am also satisfied that they did so from an early stage with sufficient frequency to bring it to the attention of a hypothetical owner of the field that they were doing so as of right.

 

106. It appears to me that, as in the other cases, the presence of a gate onto the path, the fact that a natural direction to go on the path was to the park and that the path was clearly being used to enable people to go to and from the park along it were sufficient, coupled with that actual user, for this purpose. It does not appear to me to be an answer for the Barkers, who by this time had re-acquired ownership of the field, to say that, although they were aware of the gate and of the use of the route to and from the park, they did not know which of the many people with gates onto the route were using it and which were not. They were clearly on notice, as I suspect that they had been before when Mr. Bailey was there, that a right to use the route was being asserted and they did nothing to inform the Mittals that their use of the path was objected to. It does not appear to me that the absence of any path at times from the back garden to the path sufficient to show up on some of the aerial photographs, meant that the Barkers had any reason to suppose that the right was not still being asserted and that the path was at times being used on that basis.

 

107. I find that the Mittal family did use the route in issue from their back gate to walk the dog to the park and for the children to get to the park and beyond reasonably frequently while they had the dog and the children were at school. I consider that such use was essentially when the weather was good and when there was a clear track to go on rather than one that had recently been ploughed or harrowed. After the children other than Poonam had left home, I find that the use of the route was far less frequent and that it probably declined further once the farm track ceased to exist. However, I am satisfied that the route continued to be used, albeit relatively infrequently, to get to the park and very occasionally beyond by Mr. and Mrs. Mittal and by their other daughters and their families when visiting. It is clear that the right to do so was still being asserted. There is no suggestion that the area outside the Mittal gate became overgrown at any time, in the way that that was asserted about the area outside Mrs. Turner’s gate. Nor is there any suggestion that it was kept clear by any of the Barkers. I am satisfied that on the balance of probabilities the route was used in both directions by Mr. and Mrs. Mittal and their family at least once or twice a month and on occasions when there were family visits, more frequently and that this was sufficient to maintain the user sufficient to give rise to a prescriptive right of way.

 

108. As with the other three successful sets of Applicants, I do not regard the occasional ploughing or harrowing to close to the edge of the field as an obstruction or as any indication that the use of the route to the park as objected to. Nor do I regard the digging of the ditch in this light. It was far longer than the path and was rapidly filled in where the path was by persons other than the Mittal family. They had no reason to know why or by whom it came to be filled in, or to suppose in the circumstances that it signified any objection to the use of the route to the park. Further, if and insofar as it constituted an obstruction to the use of the route, it was for too short a period to affect Mr. and Mrs. Mittal’s claim before it became easily passable again.

 

Costs

109. In the end, four out of the five applications before me have succeeded but I have found that evidence was exaggerated in some cases. In addition, too much of the written evidence and documentation produced by the Applicants was not relevant to the issues before me. Overall my present inclination is to make no order as to costs but if either side wishes to apply for any different order they should do so by 22 December 2012.

 

 

By Order of The Adjudicator to HM Land Registry

 

dated the 6 ^th day of December 2012