On 21 August 2024, the Court handed down an ex tempore judgment in which the Claimant, JD Wetherspoon PLC, was successful in a long running right of way dispute.
Trowers and Rupert Cohen of Landmark Chambers acted for JD Wetherspoon PLC ("JDW") in the case, which saw JDW awarded a declaration that it benefitted from the right of way being sought, as well as a prescriptive right to park cars, load and unload and store bins. Instructions were received from Erina Kourtis, Senior Property Counsel at JDW.
Background
In September 2022, Everitt Road Properties Limited purchased 101 Streatham High Road and Shrubbery Road ("the Neighbouring Property") which had planning permission for a residential development. Soon after, Everitt installed metal security gates which prevented deliveries and refuse lorries from gaining access across the Neighbouring Property to the rear of JDW's pub, The Holland Tringham ("the Pub") which access JDW had enjoyed since 1998.
In 1963, the previous owners of the Neighbouring Property and the Pub agreed that a parcel of land (now forming part of the Neighbouring Property) would be transferred to the owner of the Pub and, in exchange, a deed would be executed granting "a right of way for all purposes" for the Pub over the Neighbouring Property. Although the transfer of land took place, that deed was never executed.
Those same original parties entered into a subsequent deed in 1986 ("the 1986 Deed") which referenced the earlier deed, acknowledged that the deed was never executed and that the 1986 Deed "declares and confirms the existence of the Right of Way [as defined in the 1986 Deed] for the Landlord the Tenant and their respective lessees and assignees for all purposes".
The Right of Way was not, however, noted on the title documents for the Pub or the Neighbouring Property. As a result, Everitt's position was that JDW was not entitled to access the Pub via the Neighbouring Property, whether pursuant to the Right of Way or otherwise. This caused significant operational issues for the Pub and increased costs in varying the mode and route of deliveries and collections.
To mitigate the ongoing losses to JDW, temporary access arrangements across the Neighbouring Property were agreed between the parties while they sought to resolve matters amicably. However, when this proved un-successful and given the additional costs and inconvenience JDW was suffering in having to comply with these temporary access arrangements, JDW issued injunctive proceedings in June 2023. JDW claimed:
- A right of access with and without vehicles for all purposes.
- A right to load, unload and park.
- A right to store bins over part of the land owned by Everitt pursuant to an express grant or a specifically enforceable contract to grant an easement or an estoppel or a prescriptive easement under the doctrine of lost modern grant or the Prescription Act 1832.
An undertaking securing JDW's ongoing temporary access arrangements was given by Everitt at the hearing of JDW's interim injunction, with directions handed down to trial.
The issues for the Court to determine at trial were:
- The extent of the right of way granted to JDW by the 1986 Deed.
- Whether a right to load and unload was implied into the 1986 Deed.
- Whether the size of JDW's delivery lorries would amount to an excessive user in the context of the proposed re-development of the Neighbouring Property.
- The extent of prescriptive rights acquired by JDW.
- Whether signs erected by a previous occupier of the Neighbouring Property could prevent prescriptive rights from being acquired by JDW.
- Whether damages were payable.
The trial was heard by HHJ Hellman at Central London County Court (sitting at the County Court at Mayor's and City of London Court) in June 2024.
Decision
On the question of whether a right to load and unload was implied into the 1986 Deed, the Court was satisfied that it must have been as "otherwise, a core purpose for which the right of way was granted…would be defeated".
Everitt's submissions around excessive user were discounted on the basis, the Court found, that "it was an implied term that delivery vehicles would park as close to the rear entrance of the [Pub] as reasonably practicable".
As to whether signs erected by a previous occupier prevented prescriptive rights from being established, the Court favoured JDW's "clear and obvious interpretation" rather than the "strained construction" advanced by Everitt.
Turning to the extent of prescriptive rights acquired by JDW, the Court considered JDW's extensive witness evidence (9 witnesses covering the period from 1998 to date) as well as 3 witnesses on behalf of Everitt.
Ultimately, it found JDW's evidence more persuasive. JDW was therefore granted a declaration that it benefits from a right to park vehicles for the purpose of loading and unloading (in the event that the Court was wrong and this was not implied into the 1986 Deed), plus rights to park and store bins.
In view of the declarations given by the Court, no injunction was necessary. Damages were also awarded to JDW plus costs to be assessed.
Conclusion
This case acts as a reminder of the importance of thorough due diligence being carried out as part of property acquisitions, as well as the need to act swiftly where injunction applications are being considered.
Where prescriptive rights are concerned, evidencing the exercise of those rights is key. Here, JDW had the knowledge in the business for the requisite period, but that won’t always be the case. Questions around the evidential threshold and whether this can be met should therefore be considered at the earliest opportunity.
The case was dealt with by Charlotte Brasher and Emma Barnfield along with support from other team members across the firm's Real Estate Disputes and Planning & Environmental departments.
