Wood v Waddington [2014]

Wood and another v Waddington [2014] EWHC 1358 (Ch) provided significant clarification on the 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 Long v Gowlett and Kent v Kavanaugh. However, this decision was overturned by the Court of Appeal in Wood v Waddington [2015].

This case involved a boundary dispute between Mr and Mrs Wood and Mr Waddington. The Woods, who intended to carry out equestrian activities on their land and over two bridleways that crossed Waddington's land, found themselves in conflict with Waddington's shooting business. The Woods argued that they had acquired rights of way over the Waddington's land, claiming that these rights had been expressly granted to their predecessors in title, the Sharmans, through clauses in a transfer deed.

Before September 1998, both Wood's and Waddington's lands were owned by Crook. In September 1998, Crook transferred part of the land to Mr and Mrs Sharman (the Woods' predecessors in title) and the other part to Waddington. In July 2009, the Sharmans transferred the majority of their land to the Woods. The transfer deed to the Sharmans included a provision granting them a right of way at all times and for all purposes, including with horses and other animals. A key clause in the transfer stated that the land was sold "subject to and with the benefit of all liberties, privileges and advantages of a continuous nature" enjoyed over the land.

The Woods based their right of way claims on three grounds:

1. The rights were expressly granted in the transfer to the Sharmans.
2. The rights were acquired under Section 62 of the Law of Property Act 1925 (LPA 1925).
3. The rights were implied under the rule in Wheeldon v Burrows (1879), or based on the common intention of the parties.

The Woods argued that the rights of way were expressly granted under the clause in the transfer deed, which referenced liberties, privileges, and advantages "of a continuous nature". However, the court found that rights of way are not considered continuous easements, as they require human activity. While a right of way can be "apparent", the court determined that the clause in question was restricted to rights of a continuous nature, and thus, the transfer did not encompass rights of way. As a result, the court concluded that the rights of way were not expressly granted.

The Woods also argued that the rights were acquired under Section 62 LPA 1925, which allows for the conveyance of liberties, privileges, easements, rights, and advantages enjoyed with the land. The court examined the application of Section 62 in situations where there had been no "diversity of occupation" prior to the transfer, meaning the land had previously been held in common ownership. Following the reasoning in Long v Gowlett [1923], the court held that for rights to be transferred under Section 62, they must have been enjoyed in connection with the land separately from the ownership of the burdened land. Since the claimed rights of way were exercised by Crook while she was occupying her husband's land, the court found that these rights did not create a legal burden. Consequently, the Woods' argument under Section 62 LPA 1925 failed.

The Woods further relied on the rule in Wheeldon v Burrows, which allows for the implication of rights of way if they are continuous and apparent, necessary for the reasonable enjoyment of the land, and not inconsistent with the terms of the transfer. The court focused on whether the claimed rights were necessary for the reasonable and convenient enjoyment of the land and concluded that the rights of way were not essential for this purpose. Therefore, the rights could not be implied under Wheeldon v Burrows.

The Woods also argued that the rights could be implied based on the common intention of the parties when the land was transferred. This requires evidence of a specific common intention at the time of the transfer. Although the Sharmans later used the land for a livery business, the court found no evidence of such an intention at the time of the transfer, nor any communication of this intention to the transferor. As a result, this ground also failed.

This case provides a valuable examination of the different legal bases for claiming a right of way, particularly in the context of property transfers. It confirms that under Section 62 LPA 1925, a right of way can still be established even where the land was in common ownership, provided that the right is continuous and apparent. However, this decision was appealed and overturned by the Court of Appeal a year later in Wood v Waddington [2015].