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Odey v Barber [2006]

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Odey v Barber [2006] EWHC 3109 (Ch); [2008] Ch 175;

[2008] 2 WLR 618; [2007] 3 All ER 543

EASEMENT, RIGHT OF WAY, PRESCRIPTION, LOST MODERN GRANT, UNSOLICITED PERMISSION, OBSTRUCTION, ABANDONMENT BY IMPLICTION

Facts

The claimant – Odey, was a landowner. He sought a declaration that he had a right of way over a track which belonged to his neighbour Barber – the defendant. The track, a public foothpath, ran from a road, past the back entrance to Odey’s property and up a field belonging to him. The section of the footpath from the road to the back entrance of Odey’s property (Section 1) had been used by the previous owners of his property, for the movement of livestock. The section between Odey’s property and the field (Section 2) had been used for agricultural and recreational purposes, in particular motorbike scrambling events. From 1994, Section 2 was often blocked by Barber’s heavy machinery and a new track was built to the field.

Issues

(1) Was a right of way over Section 1 acquired by prescription under the doctrine of lost modern grant?

(2) Did an unsolicited permission to use the track prevent the right of way from arising by prescription?

(3) Had the right of way over Section 2 exist been abandoned by implication by the claimants?

Held

Odey’s claim was partially dismissed.

(1) Applying R v Oxfordshire CC Ex p. Sunningwell Parish Council [2000] 1 AC 335, in order to have a right of way of prescription, there needs to have been use nor by force, nor stealth, nor the licence of the owner and if there is no evidence absolutely inconsistent with lost modern grant, then a prescriptive right can be established. As the previous owners of Odey’s property received a permission to use the track for agricultural purposes, despite the fact that this was an unsolicited permission, this prevented the right of way from arising by prescription.

(2) A high threshold had to be reached so that the court could conclude that the right of way had been abandoned by implication. Odey and the previous owner of his property did not use Section 2 of the track because of obstructions, the previous owner complained of obstructions while the new track was being built and both the previous owner and Odey complained of the obstructions until 2004. Therefore, Odey’s right of way over Section 2 was still in force.

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