Jonathan Read & Anor v Duncan Fidler

Key words: Easement – right of way – express grant – overriding interest - abandonment Cases referred to: Swan v. Sinclair [1925] AC 227 Dwyer v The Lord Mayor and Citizens of the City of Westminster [2014] EWCA Civ 153 Snell & Prideaux Ltd v Dutton Mirrors Ltd [1994] EGCS 78 Cook v. Mayor and Corporation of Bath (1868) LT 6 Eq 177 Parties and titles

1. The Applicants, Mr. and Mrs. Read, are the owners of Greenacres Farm, Burnt House Lane, Newport, on the Isle of Wight. Although I understand their farm to be comprised within more than one title, one of those titles is now numbered IW 92601, to land described as “Land on the north side of Burnt House Lane, Newport”. An extract from its filed plan is shown below. Applicants’ title filed plan

2. The Respondent, Mr. Fidler, owns and operates a caravan and camping site on land to the north of the Applicants’ land. This is likewise comprised within more than one title, but one of those titles is IW 39785, described as “Land on the south side of Long Lane, Newport”. An extract from the filed plan of that title is shown below. It can be seen that this land is an approximate rectangle which separates the northern extent of the Applicants’ land from the highway Long Lane to the north. Respondent’s title filed plan

3. There is already, on the Property Register of the Applicants’ title, a note of the benefit of easements said to have been expressly granted in 1973, as follows: “The land tinted pink has the benefit of any legal easements granted by a conveyance of 8 March 1973 made between (1) George Arthur Green and (2) Donald Finlay Campbell.”

4. By that 8 th March 1973 conveyance, Mr. Green conveyed to Mr. Campbell some 30.957 acres of fields within OS parcels 116, 117 and Pt. 99, for £6000. Those fields were described as being part of Mr. Green’s lands “formerly held with Durton Farm” and are coloured pink in the filed plan of the Applicants’ title.

5. Mr. Green also granted the following rights for the benefit of that land:- “AND TOGETHER ALSO with a right of way at all times but for agricultural purposes only along and upon the access roads or ways twenty feet wide situate on the western side of the eastern fence of Ordnance Survey Number 122 and the eastern side of the western fence of Ordnance Survey 99 respectively as indicated on the said plan and thereon coloured brown.” An extract from the plan is attached below. It can be seen from this that one of the two rights granted provided access to the fields from the north – from Long Lane – and the other from the south (from Burnt House Lane). The northern right of way is the one situated on “the eastern side of the western fence of Ordnance Survey 99”. The width measurement of 20 feet is marked above it, and a length measurement of 236 feet alongside it. 1973 conveyance plan showing (in brown) rights of way granted

6. There is no dispute that Mr. George Green was, as at 8 th March 1973, a capable grantor of both of those rights. He then owned the land including OS 99 on which the northern right of way was situated, which is now comprised within the Respondent’s above title.

7. The 1973 purchaser, Mr. Donald Campbell, continued to own and farm the land conveyed (and other land) until very recently. Looking at an historic office copy, it appears that he obtained first registration on 12 th October 2020 of a title IW 90119 to a much larger area of land then described as Little East Standen Manor. This included the land conveyed to him in 1973.

8. On 30 th May 2022, by what must have been a transfer of part of that title on a form TP1, he sold the 1973 land (which forms an approximate “C” shape”) to the Applicants for £348,000. They were then registered, with effect from 1 st June 2022, of the title as shown above under the new number IW 92601.

9. Although the full conveyancing history was not in evidence, it appears that Mr. George Green sold off what is now the Respondent’s above title in 1997 to a Mr. and Mrs. Gifford, to whom he had previously sold the adjoining house and property in 1987. The title was then subject to first registration with effect from 3 rd June 1997.

10. The Respondent Mr. Fidler purchased both of Mr. and Mrs. Gifford’s titles from them for £300,000 on 2 nd November 2012. The application and objection

11. By an application on form AP1 dated 23 rd March 2024 (dated 26 th March 2024 by HM Land Registry), the Applicants applied to note the burden of the 1973 right on the Charges Register of the Respondent’s title. This would effectively be a ‘mirror’ entry to that of the benefit already noted on the Applicants’ title, albeit just in relation to the ‘northern’ right of way over the Respondent’s title.

12. There was no dispute over the following legal analysis:- i) the 1973 grant of a right of way over part of OS 99, in a deed of conveyance, created a legal easement , and was validly granted by a capable grantor. ii) if that right still subsisted, and had not been abandoned (see below), its burden bound Mr. and Mrs. Gifford on first registration of title IW 39785 on 6 th June 1997, as an “overriding interest” under sections 5 and 70(1)(a) Land Registration Act 1925. By definition, it was irrelevant to the binding effect of an overriding interest whether it was noted on the title or otherwise discoverable by a purchaser. iii) Schedule 12 paragraph 9 of the Land Registration Act 2002 had the effect of preserving the unqualified “overriding” status of overriding interests which subsisted and bound a registered title prior to the coming into force of that Act on 13 th October 2003. Such interests therefore bind subsequent proprietors of that title without more. The qualifications introduced by Schedule 3 paragraph 3 of that Act to the binding effect on transferees of unregistered legal easements (such as whether they were “obvious on a reasonably careful inspection of the land”) do not therefore apply to established pre-2002 Act legal easement overriding interests. They remained, after 13 th October 2003, binding ‘full stop’. iv) unless the 1973 right had been abandoned, it would have bound the Respondent upon his acquisition of his title in 2012, and would bind him now. Neither the Respondent’s lack of knowledge of such a right, the absence of any entry or reference to it on the title, nor its non-disclosure when he purchased the title would be of any relevance to that conclusion.

13. Although by his original objection and Statement of Case the Respondent raised a number of other points and issues, by the time of the hearing his sole argument (through counsel) was that of abandonment. His case is that the 1973-granted right of way over OS 99 should be found to have been abandoned, and so terminated by operation of law. Although one of the submissions in support of this argument, by reference to the case of Swan v. Sinclair [1925] AC 227 , was that the right was never “established” or exercised, it was accepted at the hearing that the initial 1973 grant was valid. Abandonment: the law

14. Subject to a difference of emphasis on Swan v. Sinclair and its application to the present case, counsel were largely agreed on the relevant law on abandonment of easements. The summary given by Briggs LJ (as he then was) in Dwyer v The Lord Mayor and Citizens of the City of Westminster [2014] EWCA Civ 153 at paragraphs 10 and 11 cannot be significantly improved upon:- “10. The law on abandonment of rights of way is well settled, relatively straightforward, and was not in dispute before the judge. For present purposes it is sufficient for me, as it was for the judge, to take those principles from the summary in Gale on Easements (19th ed.) at paragraph 12-104, judicial approval for which the editors attribute to an unreported part of the judgment of Silber J in Odey v Barber [2006] EWHC 3109 (Ch) [2008] Chancery 175 , at paragraph 103, which itself relies on an earlier edition of Gale : “(a) whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such; (b) abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement; (c) abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it; (d) non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.” 11. To those principles it is only necessary to add, as the judge again did, that where the non-user is explicable by reference to the absence of any need of the owner of the dominant land to use the right of way for the time being, this will fortify a conclusion that there has been no abandonment of the right for all time: see Benn v Hardinge (1993) 66 P&CR 246 , per Dillon LJ at 257.”

15. Mr. Nickless, for the Applicants, also referred to and relied upon the observations of Stuart-Smith LJ in Snell & Prideaux Ltd v Dutton Mirrors Ltd [1994] EGCS 78, that there was a further reason why a court or tribunal should not lightly infer from non-use and acquiescence in acts of the servient owner on the land- namely, the undesirability of penalising the “good neighbourliness” of a dominant owner in so acquiescing, at a time when he has no need to use the way himself.

16. On the facts of Dwyer , Benn v. Hardinge and Snell there were very long periods of non-use of the right, combined with obstructions to its exercise. In Benn , famously, the right did not appear to have been exercised for over 130 years since its grant, and the way was largely overgrown and impenetrable. It is clear, however, that mere non-use will not suffice as abandonment.

17. As Mr. Gifford for the Respondents submitted, however, there are examples in the case law of successful arguments of abandonment. He referred to Cook v. Mayor and Corporation of Bath (1868) LT 6 Eq 177, but that was a case in which the bricking up of a back door entrance was in fact held not to amount to an abandonment. The main example cited, however, was Swan v. Sinclair (supra). The facts and ultimate decision of the House of Lords in that case repay careful reading. Quoting from the headnote:- “In 1870 a row of houses was put up for sale by auction in eleven lots. One of the conditions was that a strip of land 15 feet in width, running the entire length of the lots and being the rear portions of the back gardens of the houses, was intended to form a right of way from the back garden of each house into Church Road, which bounded the side of lot 1 on the south, and that the lots would be sold subject to and with the benefit of such right of way, and that the respective purchasers should at the earliest possible moment remove the 15 feet of end garden wall and form the said right of way. This condition was recited in each of the conveyances.”

18. In short, that never happened. None of the purchasers of the plots ever removed their sections of garden wall so as to allow the proposed right of way to be used. Over 50 years had passed from the original sales by the time the plaintiff sought to assert a right of way, by pulling down part of a wall, erecting gates and driving his car along the strip.

19. The judge at first instance, and the Court of Appeal, held that the rights of way purportedly granted in the plot conveyances had been abandoned. It appeared to have been common ground before them that rights of way had in fact been granted. The House of Lords, however, analysed the position differently. They treated the auction conditions as mere contractual terms rather that immediate grants of rights of way, and held that the plaintiff and his predecessors were out of time in attempting to enforce such contracts: see per Viscount Cave LC at p237: “The effect of the transactions was at the most to create a contractual relation between the several purchasers and the vendors, under which the purchasers might perhaps have been called upon within a reasonable time after the execution of the conveyances and the determination of the existing tenancies, to clear the land and form the road; but until that had been done there could be no effectual creation of the easement of passage. In these circumstances it appears to me that the lapse of time is fatal to the appellant's claim.” See also per Viscount Finlay at p240 (“..early in the argument in your Lordships' House it became apparent that no right of way had, in fact, ever come into existence.”), Lord Shaw at p242 (“I am of opinion that these conveyances did not purport to create de plano the incorporeal hereditament of an easement. The conveyances in my view contain a grant sub conditione .”) and Lord Wrenbury at p245 (“it was a condition precedent to the existence of the way that something should first be done affirmatively. There is, for the present purpose, an important difference between an obligation to do something affirmatively and an obligation to suffer something passively.”)

20. The most which can be said of the House of Lords’ decision in Swan is that some of their Lordships expressed the view that the decisions below on abandonment would have been correct had there actually been grants of rights of way (see e.g. Viscount Cave LC at p237), but that is as far as they go. All of the references to “common consent” and the way not being “established” must be read in the light of their Lordships’ essentially contractual analysis of the facts in that case, and not as additional elements in the law of abandonment of actually granted rights.

21. With these principles in mind, I now consider the facts of this case, and the evidence which I heard. Evidence i) Mr. Campbell

22. Mr. Donald Campbell - the original 1973 purchaser, and owner of the Applicants’ property until 2022 – is alive and well, and gave evidence before me. It is not every case in which an original party to a 53 year old conveyance is available.

23. Mr. Campbell was also in the unusual position of having provided separate witness statements for each of the parties, at different times. First in time, he made and signed a statement dated 27 th May 2025 at the behest, and on behalf of, the Respondent. Then, on 10 th July 2025, he made and signed a statement for the Applicants too. It is trite law to say that “there is no property in a witness”, but even so it is rare for this to happen.

24. Even more unusually, it later emerged that Mr. Campbell’s witness statement in support of the Respondent’s case followed on from a meeting with the Respondent on 17 th May 2025, which the Respondent surreptitiously recorded on his iPhone. The Respondent later obtained a transcript of this recording – to rebut, he said, the claim made by the Applicants (and Mr. Campbell’s daughter) that Mr. Campbell had been coerced or pressurised into giving a statement. An “official” transcript was eventually produced by a specialist company.

25. Whether the Respondent regards allegations of coercion or duress as worse than his confession of recording Mr. Campbell without his consent is perhaps a matter for him. In any event, there was in the end no objection to the admission of the official transcript in evidence. This should not be taken, however, as an endorsement or condoning of such methods.

26. Mr. Campbell was therefore subject to cross-examination, and gave oral evidence in relation to, these three sources of his written evidence. I permitted the Applicants first to call him as a witness, and confirm his statement provided for them. I then permitted Mr. Gifford for the Respondent to put Mr. Campbell’s earlier statement, and the transcript, to him in cross-examination.

27. Although he is elderly, and occasionally had some hearing difficulties, I was satisfied that Mr. Campbell fully understood the questions put to him, and gave his evidence clearly. He was plainly an honest witness, doing his best to recall matters stretching back 53 years. His evidence was as follows.

28. He remembered when Mr. Green sold him these fields in 1973. It was agreed and confirmed that there would be a right of way from the north, to allow access to the fields from Long Lane over Mr. Green’s retained land. In the transcript of the conversation which the Respondent recorded, Mr. Campbell recalled Mr. Green saying “You’ll need access”. There was a gate onto Long Lane at the northern entrance to the right of way. Indeed, that gate remains there today, and I saw it on the site visit (see the photograph below). He remembered walking the boundaries of the land being sold, including the right of way area. Old gate at entrance to Long Lane

29. In his statement provided for the Applicants, he said that there was also a gate at the southern end of the right of way, at the entrance to his fields. In oral evidence, but also in other documents to which he had previously put his name, he said instead that he planted trees and a hedge along that boundary, and at least one stock fence, to provide a solid boundary in that location. He placed the date of the planting of the trees and hedge as “about 20 or 30 years ago”. He could not now recall a gate being there. He accepted that he had in recent years refused the Respondent permission to cut or trim the hedges and trees on that boundary, as state in signed letter of 5 th June 2025, because he liked to maintain this as a solid boundary.

30. Mr. Campbell was clear, in both of his witness statements, that he personally had never exercised the right of way in this location. In his statement for the Respondent he said that this was because he had “never needed” to do so.

31. In his statement for the Applicants, however, he said that: “During my ownership of the Fields, I did not use the Right of Way personally. However, I did engage third party contractors, such as the Symes Brothers, to complete works on the Fields. I confirmed that they could use this Right of Way during this time, which they did.” I had earlier heard evidence from Mr. Nick Symes, who provided a witness statement and was cross-examined on it. Mr. Campbell was not in court during this evidence. I shall return to this evidence below.

32. In the transcript, Mr. Campbell said at one point “…I’ve never used it, or anybody actually used it”, and it was put to him in cross-examination that this was correct, with which he appeared to agree. It was not, however, put to him specifically that his statement above as to use by the Symes Brothers was incorrect. At the close of cross-examination, I took care to ask Mr. Campbell the open question of whether he knew a Mr. Nick Symes. I said nothing about Mr. Symes or his earlier evidence. He said that he did know Mr. Symes, as a “farm contractor” who had done work for him about 20 or 30 years ago. He said that Mr. Symes had done such work in the “fields” to which he had referred, and on other parts of the land sold to him.

33. Mr. Campbell accepted that he had not been “coerced” into signing the statement in support of the Respondent, and that he had given this and a signed letter of 5 th June 2025 freely. He had not, however, known that he was being secretly recorded when speaking to the Respondent on 17 th May 2025.

34. Some parts of the transcript were put to him in cross-examination. It is clear to me, simply from reading the transcript, that the Respondent’s purpose was to elicit responses from Mr. Campbell supportive of the Respondent’s case. The Respondent was by this time clearly familiar with the law on abandonment, and had already specifically referred to Swan v. Sinclair in his self-drafted statement of case. Had this been an examination in chief in court, it would have been stopped for being excessively “leading” – for example, in the following exchanges (“R1” is the Respondent; “R2” is Mr. Campbell): “R1: I,I, I, I ju-, I’m just trying to get me head round why the easement was never put in, in 1973 R2: I haven’t a clue. You see, the person who built the bungalow, I think he sold me the land. R1: Yeah. R2: And he said “You’ll need access”. R1: Right. R2: So he put an access into the main road. R1: But it was never established. R2: I would’ve thought probably not ‘cause I’ve never used it or anybody actually used it. …. R1: But – and nothing..So would you say you were – you’d abandoned it? R2: Abandoned it? R1: Was, was… R2: I never, I never used it [laughs]. R1: Yeah, so therefore it was abandoned. R2: Yeah, no, I could happily say that.”

35. Another part of the transcript was, however, confirmed by Mr. Campbell in oral evidence. The point being put by the Respondent to Mr. Campbell at this point, again in a somewhat leading fashion, was that he had not objected to various works carried out by the Respondent on this land, or to any of his planning applications. As will be discussed below, these included the construction of a toilet and shower block in about 2014 or 2015, at least part of which stands on the route of the alleged right of way. What Mr. Campbell actually said in response, however, was that he had briefly objected on that occasion: “R2: I did actually when you put a shed up on the boundary… R1: Right. R2: ..to say that, ‘Look, you’re putting that on my access’. R1: But you don’t – you, you didn’t say…Nothing was mentioned like that to me. R2: No, probably not. No, I said to the people who were levelling off the land at the time, or building it then.” Evidence of Mr. Nick Symes

36. In a signed witness statement, which he confirmed in court, Mr. Symes stated that he had operated a business “Symes Brothers” with his brother Robert in the 1970s, 80s and 90s. He recalled carrying out work for Donald Campbell in the 1980s. This included making hay, straw baling, combining and tending to crops, for which they had to bring specialist agricultural equipment onto the land. He said that Mr. Campbell specifically asked them to access the land via the entrance and right of way from Long Lane, and they did so – a number of times, with vehicles and goods – as did other third party contractors whom they engaged.

37. In oral evidence, under cross-examination, he said that this was the “best access” for agricultural machinery. He said that they used it “frequently”, and gave the specific evidence that the view of traffic in both directions at this point, when driving a tractor in or out, was better than elsewhere. Various photographs of the land were shown to him, including a Google satellite photograph from 1995, and it was put to him that this area was overgrown with trees and foliage that access through it would have been “impossible”. He did not accept this. He did recall shrubs and trees growing in that area, and that they made it “not that easy” to manoeuvre at times, but he also observed that agricultural vehicles were generally smaller in those days than they are now, and could pass under overhanging branches and foliage more easily. He could not recall there being an additional gate to the south, at the entrance to the fields.

38. Although some effort was made to suggest that Mr. Symes might have coloured or exaggerated his evidence because he is a friend of Mr. Read from their Isle of Wight motorcycle club, I considered him to be an entirely honest and straightforward witness. He gave clear evidence of use of the right of way during at least one period – the 1980s – as access to Mr. Campbell’s fields. The fact that he could not recall a gate does not mean that he was unable to access that land. The most likely inference is that there was then a sufficient gap on that boundary to do so. Mr. Campbell’s evidence of his planting of shrubs and trees to form a more solid boundary was from a later time (“about 20 or 30 years ago”). It is significant that Mr. Campbell made specific reference to Symes Brothers, both in his statement provided for the Applicants, and in his oral evidence in response to my question. The Respondent (Mr. Fidler)

39. As set out above in the title history, the Respondent purchased his two registered titles in 2012. In oral evidence he explained how, by a series of planning applications, he rebuilt the house within the other title, and eventually opened a campsite. He carried out various works to his land to facilitate this, including the construction of a soundproofing bank along the Long Lane side. He confirmed that the gate pictured above was there when he purchased, albeit that it was “old and rusty”.

40. In 2014, he applied for and obtained planning permission for a new toilet and shower block, which he then built. He later added a “lean-to” extension to this. This is pictured below. As stated above, it is likely that at least some part of this lies on the land over which the 1973 right of way was granted. Respondent’s toilet and shower block

41. He later erected a chalet on another part of his land, in about 2018. Although this is not the subject of these proceedings, he appeared to accept that this was not built in a location for which he had obtained planning permission. In any event, it has remained there since (see below in other photographs).

42. It is clear, and I accept, that the Respondent had no knowledge or notice of the existence of any right of way over his land in this location, at the time of his purchase or at any time until the matter was first raised by the Applicants following their purchase in 2022. He was aware of the gate beside Long Lane, but I accept (and it is not disputed) that there was no use of the alleged right of way at any time during his ownership, prior to this dispute.

43. I also accept the Respondent’s evidence that the area of the alleged right was largely overgrown and impenetrable in this time, and that – as stated above, in Mr. Campbell’s evidence – the boundary with Mr. Campbell’s fields to the south was a solid one, formed of trees, hedging and a fence. He said in his statement that “Mr. Campbell came onto my land on many occasions uninvited sometimes to herd escaped sheep back down the bank into his field….and to tell me on at least 3 occasions that the Southern border was his and he didn’t want it cutting.”

44. I accept that the photograph below (ignoring the red arrow drawn on it by the Applicants) of the alleged right of way land, shortly before the clearance works carried out by the Applicants in August 2023 which preceded this dispute, gives a fairly accurate picture of how this land would have appeared during most of his ownership. As was also discussed in evidence, there was a significant drop in level from Long Lane down to the Applicants’ land. Alleged right of way route looking north from Applicants’ land, prior to clearance (new chalet top right) The First Applicant’s and Respondent’s evidence as to the works on 30 th August 2023

45. It is not in dispute that on the above date, the First Applicant and contractors entered the Respondent’s land and carried out substantial clearing and other works to it, one of whose purposes was to clear the land to enable the alleged right of way to be exercised.

46. In this as in nearly all such cases, I am not particularly concerned with “who said what to whom” on such occasions, while not downplaying the strong feelings which they generate. I will not therefore make any findings on such matters as whether the Respondent initially welcomed the contractors on site. Whatever was initially said, the Respondent clearly now disputes and protests over what the Applicants have done.

47. Further, I am not particularly concerned with the precise physical nature and extent of the works. It is clear that quite a lot was done. The foliage and growth visible in the photograph above were largely cleared. Overhanging branches of trees were cut. Some levelling and clearing out of an intended way was carried out: see the photographs below, which give some flavour of this. A statement was provided by a Mr. Ferrier, the digger driver. While he was not called to give evidence, there is no particular reason to doubt his account of the actual work he did. Clearance works carried out in August 2023

48. Although there was at times extensive cross-examination on issues such as whether the Applicants had “removed tons of soil” and dumped it in their field, or how many tree branches they cut, I am not persuaded that these are of particular relevance to the issue I have to decide, for these reasons.

49. First, if the right of way still exists as claimed, then the Applicants as dominant owners would have the ancillary rights to enter the servient land to clear obstructions to exercise of the right, and to make it ready for their permitted use: see e.g. Gale on Easements (22 nd edition, paragraphs 9-110 and 9-111). Any disputes over whether they had acted in excess of such rights, and so committed trespass, would be matters for the County Court.

50. Second, it was common ground that whatever the Applicants and their contractors did, they did it in a day, or perhaps even less. On the Respondent’s evidence, the “devastation” of which he complained actually took place in half a day, in the afternoon after he had left the site.

51. Third, if the right still exists, then in addition to any issues as to trespass, any issues as to any further works or relief required to remove obstructions to or interferences with the exercise of the right would likewise be matters for the County Court. This applies to matters such as the removal of any structures such as the chalet, or (as mentioned below) a fence which may now have been erected across part of the route.

52. There is therefore little need to make any detailed findings on the evidence of the First Applicant (Mr. Read) and the Respondent on this incident, and these matters generally. Mr. Read in fact had little to add by way of relevant factual evidence, since he and Mrs. Read only bought their property in 2022. Their property either has the right of way claimed or it does not. Their motives for now wishing to exercise it are irrelevant, as is their commentary on old photographs or documents.

53. The only point from Mr. Read’s evidence with which I will deal is his speculation – which it was – that there was previously a gate at the southern end of the right of way. As stated above, neither Mr. Campbell (who owned the land for 49 years) nor Mr. Symes could recall such a gate. Mr. Read based this speculation on little more than photographing a rusty metal post in the ground prior to his commencement of clearing works in 2023 (to which his red arrow in the photograph above points). In oral evidence, he then rather surprisingly claimed for the first time that he had also found the remains of a five barred metal gate lying on the ground, of which i) no photograph apparently exists and ii) he claimed to have disposed. I found this evidence unsatisfactory, and prefer the direct evidence of Mr. Campbell and Mr. Symes on this point. As found above, it was more likely that there was some other opening or gap at this point through which Mr. Symes obtained access. Ms. Diana Jones

54. Ms. Jones has been the owner of and lived at “Keepers Cottage”, Long Lane since 1973. I understand that she also looks after rescue dogs there. This is the property immediately adjacent to the Respondent’s property, to its west. She provided a brief statement in support of the Respondent, simply stating that she had never seen anyone use the gate entrance from Long Lane into what is now the Respondent’s land (and was previously called “Everland”) in all that time.

55. That evidence in itself does not take matters much further, since:- i) in this as in any case involving use of a right of way, a neighbouring owner cannot be expected to have been watching the way all of the time. ii) in any event, mere non-use, even for a long period of time, would not suffice to amount to abandonment. iii) as already found above, I am satisfied that some use was in fact made of this way in the 1980s by Mr. Symes and his fellow contractors.

56. Ms. Jones has, however, potentially involved herself in this dispute, by her actions in December 2025, when these proceedings were well advanced. She instructed contractors to erect a post and wire fence running north to south through, and approximately three feet into, the area cleared by the Applicants in 2023. As can be seen in the photograph below (taken on the site visit with the parties’ permission), the fence bisects that area, leaving a relatively small gap near the Respondent’s toilet block. This means that vehicles could not currently pass through the gate on Long Lane and proceed south to the Applicants’ property. New fence erected by Ms. Jones

57. By her voluble presence on the site visit, to which she had not been invited, it is clear that Ms. Jones feels very strongly about the Applicants’ actions and the right of way alleged. She stood on her side of her new fence, but repeatedly sought to intervene and make comments during the site visit, from which I had to ask her politely to refrain.

58. The Applicants were, and are, concerned that this fence has been erected on part of the servient land subject to the right of way. Whether or not it has been would depend on the precise location of the boundary between the Respondent’s and Ms. Jones’s properties. The Respondent was asked about this in oral evidence. He was somewhat non-committal, saying that Ms. Jones alone had erected this fence, and that as a compromise (“I didn’t want to fall out with anybody”) he was content that it stayed where it currently is.

59. I do not need in these proceedings to make findings on whether, as the Applicants put to the Respondent (but he denied) the erection of this fence is a ploy to make the right of way impassable. Ms. Jones claimed in evidence that she genuinely believes this to be the correct boundary line. On 8 th January 2026 the Tribunal refused an application made by the Applicants on 18 th December 2025 to join Ms. Jones as a party, on the alleged basis that there was an informal agreement by the Respondent to sell the servient land to her. She failed to respond to a letter from the Applicants’ solicitors inviting her to join the proceedings.

60. The issue of the boundary between Ms. Jones’ and the Respondent’s land cannot be resolved in these proceedings. The right of way, if it still exists, lies on a 20 feet width of land within the Respondent’s title. So if, as he seems presently to accept, Ms. Jones’ fence is in the correct position and represents the historic legal boundary between the properties, the right of way would run in a 20 feet width immediately to the east of that fence. That would take in rather more of his land than he previously appeared to assume, including potentially the whole of the toilet block.

61. If, however, Ms. Jones has erected a fence partly on the Respondent’s land in this area, and so on part of the right of way, that would be an actionable interference with it, which the Applicants would have to pursue against her in court if they so wished. Abandonment: application of law to findings of fact

62. My key findings can be summarised as follows:- i) there was undoubtedly a valid right of way expressly and immediately granted in 1973. It was not conditional in any way. It was actually discussed between the parties to that conveyance, as Mr. Campbell confirmed, and he walked its route before purchase. ii) as I have found, it was in fact used some of the time – in the 1980s, by Mr. Symes and his fellow contractors, but on the instructions and with the authority of Mr. Campbell. I am satisfied as to this evidence, and as to the availability of access from the way to the fields to the south. iii) after this, on a date not known but probably some time in the 1990s or early 2000s, Mr. Campbell added further trees and hedging to the boundary in this area, in addition to an existing fence, which would have made use of the way and access at this point either very inconvenient or impossible. No further use was in fact made after this date. iv) the main reason for this was that Mr. Campbell had no need for access in this area. He was content to access these northern fields from the rest of his surrounding land, rather than directly from Long Lane. v) he did, however, mention the right of “access” which he understood that he had when he spoke to contractors erecting the Respondent’s toilet block in 2014 or 2015 (“you’re putting that on my access”). vi) the way was not however used or asserted for the next 8 years or so after that, until the present dispute arose.

63. I do not consider, applying the legal principles summarised above, that from these facts a reasonable person would have concluded that Mr. Campbell “[made] it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement.”

64. This instead appears to me to be a classic case of mere non-use through lack of need. Until his sale of part to the Applicants in 2022, Mr. Campbell owned these fields as one part of a much larger holding within Little East Standen Manor. It is objectively clear that, while all these lands were in common ownership, an owner of the whole might well have found it more convenient to access these fields from within the rest of the holding. While that remained the position, acts of closing off and securing other possible entrances, from other land or the public highway, would, would be explicable on that basis; and by a desire to have additional security and privacy at those points.

65. That is how, in my judgement, Mr. Campbell’s actions in the 1990s in “planting across” the entrance to this land from this right of way, to create the “solid boundary” to which he referred, should be objectively construed. Creating such a boundary by planting, and even fencing, on agricultural land is a far less permanent and significant action than e.g. building a solid brick structure which obstructs the access. I note, however, from the cases referred to above (in particular Dwyer and Snell & Prideaux ) that even in industrial or urban settings, the erection of solid structures such as walls or buildings may not by itself be sufficient material from which to infer abandonment.

66. Although as I have already pointed out that the House of Lords decision in Swan v. Sinclair rested on their contractual analysis of the facts in that case (as opposed to it being a case of abandonment of a fully granted legal easement), the facts of that case are very far removed from the present. Even if (as the trial judge and Court of Appeal found) there had been initial grants of easements in that case, they were from the outset obstructed not just by one but multiple walls and gardens across several plots for 50 years, in which time the physical conditions for the exercise of the right therefore never even came “into existence”. That was the parallel which the Respondent sought to draw when relying on this case, but on the facts as I have found, this right did come into existence and was in fact exercised, in the 1980s. It could be exercised again, subject to any issues as to obstruction. Little is required to ‘make up’ an agricultural right of way to a field.

67. Farmers and other occupiers of agricultural land may quite often close off field entrances, for the above or similar reasons. If they do so, such entrances can be very easily and quickly restored, as the Applicants’ actions in this in case on 30 th August 2023 demonstrate. Again applying the principles summarised above, abandonment is not to be “lightly inferred” in such circumstances. A mere lack of need for the access for the time being does not mean that the owner should be understood to “wish to divest themselves”, and their future successors in title, of an existing right of way through that access for all time. It would not be “to their advantage to do so, notwithstanding that they may have no present use for it”.

68. One very good reason for that is illustrated by the present case. It may well be, where a single owner owns a large expanse of land, there is no need to use every right of way which affords access to the whole or any of its constituent parts. If, however, s/he wishes later to dispose of part of that land, it may one day be very important – indeed, essential - that such a part has its own independent access. The vendor might wish, when disposing of part, not to have to grant additional rights of way over their own retained land. If the owner of part can have an independent right of way over third party land, directly to a public highway, that could be of considerable advantage and utility to both vendor and purchaser.

69. That is what has happened here. While the part sold to the Applicants does potentially have the benefit of the other 1973 (southern) right of way granted over the then OS 122, it has no other means or rights of access from any surrounding land. Although I did not hear expert evidence, it was Mr. Read’s evidence that access to these northern fields from that southern way is considerably more difficult and less convenient. Even just looking at the plan, the Long Lane entrance is far closer. The utility of having such an independent northern access to these fields, in the event (as happened) that they are one day sold off as part of the larger holding, provides an additional reason not to infer abandonment of such a right for all time; save in the clearest case. Acquiescence in erection of toilet block?

70. I did not receive expert evidence on the precise form of construction of this block. There was some cross-examination of the Respondent on this topic, in which he said that it was a wooden structure built on brick foundations. He did not accept that the whole building could be “easily re-sited”, but did accept that the lean-to part of it – which was a subsequent addition not part of the original planning drawings – could be removed quite easily.

71. Nor do I have from either party a scale drawing showing, on either party’s case, the location of the right of way on the ground, and so by how much they say this toilet block structure extends on to the servient land. It did appear to be common ground that at least part of it did so. If the Respondent agrees to Ms. Jones’ fence as being the correct boundary between his and her properties, so that the right of way would be a twenty foot width to the east of that, then rather more (or possibly all) of this structure would sit on that land.

72. In the end, however, I do not consider that this toilet block, the circumstances of its construction, or Mr. Campbell’s failure to pursue its removal can generate an inference of abandonment of the right of way. I have in mind the observations of Stuart-Smith LJ in Snell & Prideaux , at page 7 of the report provided to me, on the “brick pier”, which was “a more substantial construction” than the fence or materials storage in that case. He noted that while “it would have taken little to remove it”, this would “undoubtedly” have involved the servient owner in “some inconvenience and expense”, although “the matter was not investigated at trial”. He concluded that since the onus was on the defendants to establish abandonment by this circumstances: “…if their case was that the obstruction could not have been removed without disproportionate or unreasonable expense and difficulty, such that the plaintiffs must be deemed to have intended never in the future to exercise their full rights, it was incumbent upon the defendants to establish this. They did not do so.”

73. That is the position here. Unless, perhaps, something so substantial and significant had been built across the right of way (such as an occupied dwelling or a large industrial building), such that it would be obvious and a matter of judicial notice that its removal would be hugely expensive and inconvenient, I do not consider that I can make such a finding in the absence of specific evidence. Simply from looking at it, and on such limited lay evidence as I have, the toilet block is a relatively modest structure. I cannot make the inference, simply from its presence, that the dominant owner must be taken to have abandoned the right of way simply by allowing it to be built.

74. I add two further points on this matter:- i) although of course the test is objective and not subjective, I have found that Mr. Campbell did in fact very briefly protest and assert his right of “access” when this structure was being built. He did not then, however, do anything further about it. ii) the issue of whether acquiescence in this construction generates an inference of abandonment of the right of way is an entirely different and separate issue from whether a mandatory injunction would later be granted by a court for removal of the structure, or if not, what if any damages would be awarded. The facts and outcome of Snell & Prideaux amply illustrate that distinction. That is yet another matter between the parties which would, if not agreed, be for the courts. Conclusion and disposal

75. For the above reasons, I find that the right of way granted in 1973 has not been abandoned, and remains binding on the Respondent’s title as a pre- Land Registration Act 2002 overriding interest, preserved by Schedule 12 paragraph 9 of the 2002 Act .

76. I have some sympathy for the Respondent in this regard. The 2002 Act changed the law on the circumstances in which legal easements will “override registered dispositions”, by introducing the more exacting test of Schedule 3 paragraph 3, under which the easement must have been “obvious on a reasonably careful inspection of the land”, be within the actual knowledge of the transferee, or else have been exercised in the year prior to the disposition. This might have been a more difficult case had that been the applicable test. The presence of the old rusty gate onto Long Lane would have been weighed against the generally overgrown state of the servient land, the Respondent’s lack of knowledge of any such right, and (as I have found) the lack of any exercise of the right for several years. Schedule 12 paragraph 9, however, provides that in the case of pre-existing legal easement overriding interests, paragraph 3 is read as if those qualifications are omitted.

77. The 1973 right of way is therefore a “legal easement” which binds the Respondent, full stop. Its benefit is already noted on the Applicants’ title, but I will now direct the Chief Land Registrar to note the burden on the Respondent’s title.

78. That leaves the issue of the costs of these proceedings. The Applicants have been the successful party, so the starting point would usually be that the Respondent should pay their costs of these proceedings. This is a “land registration case” under rule 13(1)(c) of the Tribunal rules, so it is not necessary to establish unreasonable behaviour as a threshold for a costs order. The Practice Directions of this Division, at paragraph 9.1, reflect the practice that the winning party will usually get their costs; although “the Tribunal may make a different order”.

79. I will however consider all representations made by the date stated in the order. After that date, any necessary costs order will be made, and further directions given for the assessment of any costs ordered to be paid. Judge Ewan Paton Dated this 24 th day of March 2026 By Order of The Tribunal