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 IMPLICATION
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 footpath, 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.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
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 claimants abandoned their existing right of way over Section 2?
Decision/Outcome
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, the use must have been without force, secrecy or the owner’s permission 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 for agricultural and recreational uses, including passage by vehicles and animals for those purposes. The court left the choice between an injunction and damages for a later hearing.
