Wood v Waddington [2015]
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Wood v Waddington [2015] EWCA Civ 538 is significant case in property law, particularly in relation to the acquisition of easements under Section 62 of the Law of Property Act 1925 (LPA). The Court of Appeal, led by Lewison LJ, reversed the earlier decision of Morgan J in Wood v Waddington [2014], allowing the appeal of Mr and Mrs Wood, who claimed two rights of way over Mr Waddington's land.
The first argument presented by the Woods was that clause 12.3.3 of the transfer document expressly granted them the right of way. The clause stated that the property was sold "subject to and with the benefit of all liberties, privileges, and advantages of a continuous nature now used or enjoyed by or over the Property". However, the court rejected this argument. Lewison LJ clarified that rights of way are not "continuous" easements because they require human activity, unlike continuous easements such as rights of light or support. Therefore, clause 12.3.3 could not be interpreted as granting the rights of way claimed.
The Woods' second argument, relying on Section 62 LPA 1925, was successful. Section 62 operates to pass certain rights that have been exercised over retained land unless a contrary intention is expressed. In this case, the court found that visible signs of tracks and vehicular use were sufficient to establish that the rights of way were both "continuous and apparent" in the sense required by the rule in Wheeldon v Burrows. The use of the track once per month was considered sufficient to show apparent and regular use.
The court rejected Mr Waddington's argument that Section 62 should not apply due to a contrary intention being expressed in the transfer. Specifically, although certain rights of way had been expressly granted or reserved, the court held that this did not exclude the operation of Section 62 to confer additional rights that were not limited to those explicitly stated in the conveyance. This emphasised that Section 62 can operate to grant broader rights than those contained in the written terms of the conveyance.
The court considered the scope of the rights acquired under Section 62. For the first route, while vehicular use was proven, the right extended to use on foot and horseback, although not to driving animals. For the second route, although vehicular use was proven, the right claimed was only for use on foot and with animals. The court upheld these distinctions.
Finally, the court addressed the question of whether the rights to use the ways on horseback were limited to domestic use, given that no commercial livery business was operating at the time of the conveyance. The court held that there was no limitation to domestic purposes, and intensification of use for commercial purposes (e.g. a livery business) did not inherently amount to excessive use or create grounds for objection by the servient owner.
Wood v Waddington [2015] highlights the broad application of Section 62 LPA 1925 in the acquisition of easements, especially in cases where rights are continuous and apparent. The decision indicates that Section 62 can operate to grant rights not expressly mentioned in the transfer, provided that the exercise of those rights is visible and regular, even if limited in frequency. It also clarifies that changes in the nature of use (from domestic to commercial) do not necessarily infringe upon the granted easements, provided the intensity of use remains within reasonable limits.
