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Posted on 19th April, 2018

Following strenuously contested proceedings before the Property Chamber of the First-tier Tribunal, Jacksons Law Firm successfully defended a claim for a right of way in favour of Mr Kitching against Middlesbrough Council (Clifford Kitching v The Council of the Borough of Middlesbrough REF/2016/1042).

In order to access the rear of his property, Mr Kitching had enjoyed a right of way over an entrance yard and rear lane for the majority of his life. The Council advised that the entrance yard was to be developed and Mr Kitching would be provided with an alternative route. Mr Kitching advised that the alternative route was not suitable as it would entail him having to walk twice as far and the route over the other side of the rear lane was unsuitable for vehicles.

Mr Kitching initially applied for his right of way over an entrance yard and back lane on 21 March 2016. The Council objected claiming that Mr Kitching had not been able to establish a right by prescription.

The matter came before Judge Colin Green on 4 August 2017. The Judge found that Mr Kitching’s father started to rent 4 West Side in 1926. The Council purchased the land in 1947. The freehold was sold to Mr Kitching, his wife and his father in 1979.

The Council contended that no easement arose as Mr Kitching had enjoyed access under a licence for adjoining buildings used by him as a workshop, as a result, no user (“as of right”) had arisen.

At Trial, the Council raised a new claim that Mr Kitching could not obtain an easement while he was a Tenant against his Landlord; as a prescriptive easement could not be acquired in respect of land in common ownership.

That argument was countered by claiming an easement had arisen by way of an implied grant.

Mr Kitching and his witness provided evidence to confirm the usage of the right of way.

The Council’s witness was unable to provide any direct evidence to counter Mr Kitching.

The Judge found that Mr Kitching had been able to evidence use of the route for more than the minimum period required under the Prescription Act 1832.

The Judge confirmed he did not consider the licence for the adjoining premises enabled Mr Kitching to also access the rear of his property, as the quality and nature of the user differed.

Finally, the Judge outlined that the practice of the Tribunal, where appropriate, was to make findings to support the same or similar right on an alternative basis, to avoid matters being re-litigated on the same evidence. The Judge considered the arguments for an implied grant arose out of the same factual matrix and, had he not found for a prescriptive easement, or if he was wrong as to that, he was willing to also rule on the claim for an easement by implied grant.

The Judge confirmed that he did not consider the rule in Wheeldon v Burrows applied as the land had not been in single ownership and occupation before the sale.

The Judge noted there was no such bar under Section 62 of the Law of Property Act 1925 and it was recognised where a Tenant acquired the freehold, Section 62 could operate to convey easements enjoyed at the time leading up to the conveyance.

The Council were also ordered to pay Mr Kitching’s costs.

Mr Kitching’s perseverance and refusal to succumb to the pressure from the Council to withdrawn his claim paid off. Mr Kitching is able to continue to enjoy a right of way over the entrance yard and rear lane that he and his father have enjoyed since 1926.

Should you have any similar property issues, please do not hesitate to contact Inderjit Gill or any other member of our dispute resolution team.

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