Philpott v Bovisand Park Limited

Adam Boyle appeared for the Respondent in the recent case of Philpott v Bovisand Park Limited before the FTT, Property Chamber, Land Registration division. The case addressed whether a use can be “nec precario” if the user is wholly unaware of the permission…

The case concerned an application for the registration of an easement over a portion of the Respondent’s land. The basis for the claim was over twenty years’ user. In other words, the Applicant asserted that he had the benefit of an easement which he had prescriptively acquired.

The analysis of this matter can neatly be divided into two: the story on the facts, and the story on the law.

The Facts

The Respondent owns a large parcel of land which it uses to provide holiday accommodation. The Applicant is the owner of a nearby house, the said house being situated on a nearby estate (think houses not pheasants…).

The Applicant claimed that for over twenty years he had used a small portion of the Respondent’s land (“the Land”) to access a coastal path and that he had thereby acquired an easement over the Land. The Respondent had no first-hand knowledge regarding whether the Applicant had in fact used the Land in the manner alleged, however its primary defence was that the relevant user could not have been “nec precario”, or without permission, as consent had expressly been given. In other words, the main line of defence for the Respondent was that any relevant user was permissive. For the avoidance of doubt, permissive user does not enable prescriptive rights to be acquired.

To be specific, the Respondent relied on an informal agreement (historically described by the parties as a “gentleman’s agreement”) which was in place for virtually the whole of the alleged user period. The said agreement was between the Respondent and the Residents Association (“the RA”) of the residential estate (“the Estate”) which the Applicant lived on. It was a reciprocal / mutually beneficial agreement, the Respondent’s residents also deriving an advantage from it.

Through the gentleman’s agreement with the RA, which was evidenced in writing, the Respondent maintained that it had granted all the residents of the Estate permission to walk over the Land. Further, it asserted that as the Applicant was a resident of the Estate, he was naturally to be included in the class of individuals who had been given consent to use the Land.

The plot thickened somewhat, as the Applicant denied any knowledge of the gentleman’s agreement, denied ever being given consent to use the Land and denied knowing it was used with consent by others. Thus the issue of permission in this matter was an interesting one, centring around whether valid permission can be given if the recipient is wholly unaware of it.

The Factual Quirk

As it turned out an answer on the law was not required to decide the case. The Applicant had stated in his application that the 20 years’ user he relied on began in 2000 when he bought his house. That kind of assertion is par for the course in this kind of case.

However, events took an unexpected twist when under cross-examination the Applicant disclosed that after buying the property in 2000 he had in fact knocked it down (in circa 2000/2001) and then become embroiled in a planning permission battle – which lasted until 2005. The building of the (second) property which he came to reside in on the site was not commenced until 2006, and not completed until 2008. Though the Applicant attempted to offer explanations and assertions to the effect that he had still used the Land while not residing in any nearby property for circa 8 years, there was no mention of the same in his written documents and the Judge found that as a matter of fact his evidence (even taken at its highest) did not amount to 20 years’ uninterrupted user.

However, the Judge proceeded to deal with the interesting legal point in any event.

The Law – Permission & Communication

To further set the scene for the legal analysis: the Judge found both that the Respondent had attempted to give permission to everyone who resided on the Estate, and that it had communicated this permission to the RA. However, the Judge also found that the Applicant never became aware of the permission.

The Judge’s analysis of this matter began from the start-point that permission must be communicated in some form – i.e. a landowner cannot simply decide to grant permission by thinking of it, but that is perhaps pretty unsurprising. The Judge then went on to state that permission can be granted to a group of people, if reasonable steps are taken to make the group aware, such as by using a sign or contacting a representative of the group.

Also of relevance was the fact that, in addition to sending the permission to the RA, the Respondent received in return a letter stating that all “shareholders and residents” had agreed to the mutually beneficial deal giving rise to the permissive use. As a result, the Judge found that the Respondent reasonably believed that the Applicant’s user (and that of all Estate residents) was permissive.

The reasoning applied by the Judge drew from the following passage in Dalton v Angus (1881) 6 App. Cas. 740 at 743, where prescription was analysed from the perspective of the acquiescence of the landowner:

“I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power.”

The Respondent had stressed in argument that fundamental to the law of prescription is that the person claiming the right must by their conduct, ‘bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespasser off or eventually finding that they have established the right asserted against him’ –  R. (Lewis) v Redcar and Cleveland Borough Council 2010 2 AC 70 at [30] per Lord Walker of Gestingthorpe.

The Judge, placing emphasis on the Dalton passage, decided that where a landowner “reasonably believes that it has communicated permission to the Applicant” it cannot be said that they have the power to stop the acts of the trespasser, or that they have “willingly” abstained from the exercise of such power.

Looking through the lens of Dalton, that appears to be broadly correct, though it might be truer to say that while the landowner still has the power, they have no reason to suspect there is any need to use it. Further, and perhaps more accurately, looking through the lens of Redcar the conduct of the trespasser will not bring home to the landowner that a right is being asserted against them if the Respondent reasonably believes that he has already given permission to the said individual. As a result, the choice referred to expressly in Redcar, and implicitly in Dalton, either to take the necessary steps to stop the trespassing acts or to suffer the consequences, simply does not arise.

Finally, the Judge found additional support for his conclusions from the cases of Becket v Lyons [1967] Ch 449 and Odey v Barber [2006] EWHC 3109 (Ch) which are authority for the proposition that where there is ambiguity or uncertainty about the status of an applicant’s user, the user cannot be said to be “as of right”. That principle was relied on by the Respondent as it seemed clear that on the facts of this case the Applicant’s user was inherently contentious in nature. The Judge agreed, finding that the Applicant’s user was indeed uncertain and that this weighed against the prescriptive claim.

The Applicant’s case was therefore dismissed both on the facts and the law. As should be clear from the above there are a few interesting takeaways for property lawyers, centring on exactly what constitutes validly granted permission. Shortly put: no subjective knowledge on the part of the grantee would seem to be required.

Adam was instructed by Lee Stutt and Thomas Jane of Nalders Solicitors.

The case’s citation is Philpott v Bovisand Park Limited REF/2021/0153.

The full Judgment is expected to be uploaded to the Land Registry’s Decisions Database, which can be accessed here, in due course.

Adam is an experienced specialist in chancery and real estate. He is a go-to barrister for difficult property cases and is ranked in Chambers UK and The Legal 500. Read more here.