Wood v Waddington [2014] EWHC 1358 examined the scope and application of the implied grant of easements under Section 62 of the Law of Property Act 1925 (LPA 1925), departing from the precedents set in earlier cases such as Long v Gowlett and Kent v Kavanaugh.
In the High Court, Morgan J, in delivering the judgment, elucidated the interpretation of Section 62 LPA 1925, highlighting that it does not mandate that an easement must be necessary for the reasonable enjoyment of the land. This distinction from the rule in Wheeldon v Burrows makes Section 62 broader in its application.
Morgan J noted that Section 62 typically applies in cases where there is diversity of occupation, as it helps distinguish between cases where a quasi-easement exists and cases where the landowner has full discretion over their property. However, it can also be applied in cases of common occupation, provided the right is continuous and apparent.
Contrary to the precedent set in Long v Gowlett, Morgan J asserted that the judgment in that case is not applicable to scenarios where there is a made road or where the right is continuous and apparent, which Sarjant J himself argued to have excluded.
Regarding the term "continuous and apparent", Morgan J provided clarification, stating that "continuous" refers to uninterrupted and unbroken use, and it is the use of the ways, not the ways themselves, that must be continuous. Moreover, a regular pattern of usage before the conveyance is necessary to establish continuity.
Morgan J also discussed the significance of visible indications of a right of way, such as signs of a visible track or road, but emphasised that their absence does not preclude the existence of a right of way if other indications are present.
Furthermore, Morgan J highlighted that Section 62 can be excluded by express contrary intention, but the express grant of a narrower easement does not necessarily exclude the operation of section 62 to grant a greater right.
In summary, Wood v Waddington clarified the interpretation and application of Section 62 of the LPA 1925, providing guidance on when implied easements may be granted and how they may be excluded.
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