In Hughes v Incumbent of the benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne & Framilode  UKUT 184 (LC), the incumbent of St James’s Saul, one of the churches in the Severnside group of parishes in Gloucestershire, applied to HM Land Registry in 2018 for a vehicular right of way for the benefit of the church over land belonging to the neighbouring property, a former school site next to the church. It was claimed that the track had been used by successive incumbents and their visitors – visiting clergy, people tending graves, and the funeral director – for more than twenty years for access to the grass where vehicles parked to gain access to the churchyard and church . The neighbouring owners, Mr and Mrs Hughes (who had bought the property from the previous owners, Mr and Mrs West), objected, the matter was referred to the First Tier Tribunal pursuant to s.73(7) Land Registration Act 2002, and the FTT directed the registrar to register the easement . Mr and Mrs Hughes appealed.
There were three ways to claim an easement by prescription: by establishing use from “time immemorial” (ie 1189), by meeting the requirements of the Prescription Act 1832, or by satisfying the requirements of the doctrine of “lost modern grant”. Because the track could not be shown to have been in use since 1189 and because it had not been used since 2016, the only option for the claimant was lost modern grant , which depends on a fiction whereby the court finds that the facts of the case are such that there must have been an express grant of an easement in the past which has now been lost .
Before the FTT, Mr Wood, a funeral director, and The Revd Dr Anne Spargo, who had been a churchwarden from 1996 to 2002, curate from 2006 and the incumbent from 2010 to 2016, gave evidence that they and other visitors had driven vehicles along the track to the church over many years. Mr and Mrs Hughes and their witnesses, however, claimed that the track had been used for access to the school until it closed and, since then, for the maintenance of land to the north-west of the track known as “The Pound”. That use of the track had stopped when the Wests bought the property and thereafter it had been used only with the Wests’ permission. The FTT had accepted the evidence of the incumbent’s witnesses and had ruled that the claim to a prescriptive easement was made out .
The FTT gave permission to appeal on two grounds:
- Ground 1: In light of the Tribunal’s finding that the Incumbent’s use was occasional, the Tribunal was bound to find that the use was not sufficient to give rise to a right of way by lost modern grant.
- Ground 2: In the alternative to Ground 1, if it was not inevitable that occasional use would be insufficient, the Tribunal erred in making no finding as to whether the occasional use was enough to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted.
Before the Upper Tribunal, the appellants argued on the first ground that the finding of fact made by the FTT about the use of the track was such that the incumbent could not have succeeded because the use claimed as the basis of a prescriptive easement was of insufficient intensity or frequency to indicate that a right was being asserted [17 & 18]. While there had been some use of the track in the past for access to the grassy patch, it had been merely occasional and therefore insufficient to found a claim in prescription. Occasional use is precisely what the FTT had found and it was not enough [19 & 20]. The respondents claimed that the use was “a matter of routine” . However, the Upper Tribunal accepted that the use had been more than merely “occasional”, and on that basis, the first ground of appeal failed [27 & 28].
As to the second ground, the FTT had said at paragraph 230 of its decision:
“In the context of a country church serving a small congregation, it is my judgment that enough had been done by the Applicant and its lawful visitors to suggest to a reasonable servient owner that a right was being exercised and ought to be resisted if not accepted” .
The Upper Tribunal dismissed the argument that Mr and Mrs West would have been aware in 2012 that “no right was claimed over the track and therefore could not possibly have been put on notice, after their purchase, that the use of the track was a prescriptive use and would be relied upon to claim a legal easement” . The FTT had found that twenty years’ use had been completed before 2012 – and the Wests had purchased in July 2012 and therefore after prescription was complete . It was clear on the facts found by FTT that prescription was completed before the first moment of 2012 . Appeal dismissed .