Karan Dyer v Charlotte Woodman

(2) 2 Graig Yr Helfa Cottages aforesaid WA128171 Title Numbers: Dominant Title Number CYM837400 Servient Title Number WA128171 Hearing at Cardiff Civil Justice 23 and 24 September 2025 Representation: Mr Charles Archer instructed by David W. Harries solicitors Mr Philip Morris instructed by Berry Smith Ll.P. Key Words: Acquisition of easement of right of way- pedestrian right of way only- acquisition by prescription-alternatively Wheeldon v Burrows and/or s. 62-considered- permission of user alleged-was user by right or as of right. Cases referred to: Welford v Graham [2017] UKUT 297 Re Ellenborough Park [1956] Ch 131 Pugh v Savage [1970] 2QB 373 Wood v Waddington [2015] EWCA Civ 538 DECISION

1. The Applicant (now Ms Evans) is the registered proprietor of 3 Graig Yr Helfa Cottages, Pontypridd (No.3) under the above mentioned title number whilst the Respondent is the registered proprietor of the adjoining property namely 2, (No.2) Graig Yr Helfa Cottages (“the Cottages”). The said properties are the dominant and servient tenements respectively.

2. The Cottages comprise a terrace of three properties situate on the side of a hill, high above the town of Pontypridd; they abut another property Graig Yr Helfa Farm (“the Farm”) so they may, at one time, have housed agricultural workers, or possibly miners employed in the pits in the valley below.

3. I carried out a site view on 22 September, when weather conditions were favourable being a dry and sunny day. I am grateful to the parties for facilitating the site view. The Cottages lie at right angles to a narrow lane or road, which I believe is a public highway. It is this road leading from Graig Yr Helfa Road which allows vehicular access to the Cottages and beyond. Nowadays vehicles are parked in an area behind the Cottages immediately below the Farm. No 1 is the property nearest the road followed by No 2 and then No 3.

4. The evidence which I heard from various witnesses, which was not contradicted, is that one accessed the Cottages off the road and then proceeded along a path (the rights, if any, over this being the subject of the dispute) which crossed in front of Nos 1, 2 and 3, and at one time allowed entry to the Farm via a stile although that has long since disappeared. I shall refer to this path as “the Path”

5. Mr Wayne Rowsell, whom I regarded as a reliable and admirably clear witness gave evidence as to the layout of the Cottages. Mr Rowsell was the nephew of a John Rowsell who in the early 1990s owned both Nos 2 and 3. Mr Rowsell is a cousin of the Applicant and he lives at a property known as Brookfield which lies at the end of the garden of No 3. He purchased his property in the 1980s off his brother who built it in the 1970s. No 1 belongs to the Applicant’s parents and it is evident that a number of members of the family live or have lived in the immediate vicinity. I take these relationships into account in making my findings. I do not know Mr Rowsell’s age but he is retired and has known the area over many years.

6. He told me that the Path in front of the Cottages was like a pavement which ran along their length to the wall which divides the Farm from them at the north eastern end. The stile, to which I have referred, was in the Farm wall and was, he said, removed by the farmer. In front of each cottage was a forecourt enclosed by a wall. The Path ran immediately in front of, i.e. outside, these walsl. People at one time used it to go to the Farm to purchase milk. He had used the Path many times over the years and prior to 1993 it was the only means of access to No 3 and is still the only route by which No 2 can be accessed from the road.

7. In 1991/1992 the Applicant and Mrs Wilson her mother (who now lives at No 1) said an extension was built onto the back of No 3 at a time when it was owned by John Rowsell. That extension allowed an outside door to be installed at the rear of the property which gave access from the parking area into No3. Neither Nos 1 nor 2 have such an access. It is therefore the case that since 1993, No 3 has a separate access via the rear of the property from the car parking area.

8. At the site view a number of photographs were taken by the Applicant’s Counsel which show the current layout of the Cottages. Counsel had the photographs printed and put together as a bundle, which was available at the hearing, for which I am grateful. The photographs show the Path in its current manifestation which has a gravelled surface topped with slabs placed there by the Respondent, proceeding from No 1 to the fence between Nos 2 and 3 in which there is a gate. Since this dispute blew up due to the making of the Application, the Respondent has placed a heavy planter with a plant on a slab in front of the gate making it difficult if not practically impossible to use the gate to enter No 3. The photographs also show that the walled forecourt of No 1 has been retained but that the wall of No 2’s forecourt has been demolished so that the forecourt is now open to the garden.

9. I need to refer to the fence between Nos 2 and 3, which divides the properties. As with No 2 the old walls surrounding the forecourt of No 3 have been demolished thus opening up the garden to the house. The fence runs the length of the Nos 2 and 3 garden boundaries. A substantial fence was erected in 2016 by the Respondent and she accepts that there was a gate in the fence leading to No 3. I understand the Respondent was responsible for the erection of that fence in order to pen her dogs. The current fence was erected by the Applicant in about 2021/2022 and similarly has a gate in it which is the one where the planter is now positioned. These two fences replaced an older low post and rail fence, photographs of which are in the bundle, which gave no privacy but appears to have been in place for some time and again, the Respondent accepts, that there was a gate or gated opening allowing access from No 2 to No 3.

10. I should perhaps mention that the Applicant, who is 46, purchased No 3 from her parents in 2021, they having bought it in May 1995 from John Rowsell, although the family had lived there since circa 1992. She spent her teenage years there and moved out in 2003 when her son was born but returning in 2019. The Respondent purchased No 2 in 2000 and had no knowledge of the Cottages prior to that date. The Applicant’s parents now live in No 1.

11. The Applicant, her mother and the Applicant’s sister Mrs Wilson and Ms Walton, who gave oral evidence, and Mr Wayne Rowsell said that at all material times, to their recollection, the Path was in place along the edge of the old forecourts. At one point it was concrete but the Respondent subsequently had it made up with a surface of stone and slab. The Respondent agreed with that evidence for the period when she knew the Cottages that is, 2000 onwards, that the Path was there at that time and that it was used to access all the Cottages.

12. The Respondent also accepted the evidence of the Applicant and her witnesses that at all material times there was a gate or opening between Nos 2 and 3.

13. I therefore find as a fact that from a time before 1990 the Path was in situ, that it was used as a footpath to access No 3 and that for those periods of time when a fence was in place there was a gate or opening in it allowing persons to access No 3. I also find that the Path and the gate/opening were clearly visible and apparent to anyone on site.

14. There was no evidence as to when precisely the Cottages were built but in my judgment it is a reasonable assumption to suppose that it was a considerable time ago, perhaps more than 100 years ago. I formed this view from the architecture, look and layout of the Cottages. During the whole of this period access to No 3 could only have been obtained over the Path and I so find.

15. Counsel for the Applicant drew my attention, in his Skeleton Argument, to the case of Welford v Graham [2017] UKUT 297 where it was held that a party claiming a right by prescription can rely upon a rebuttable evidential presumption that an easement used openly for the necessary period was enjoyed as of right.

16. Mr Morris, Counsel for the Respondent, in his supplementary Written Submissions dated 29 th September (for which I had given permission) argued that a photograph in the bundle said to have been taken in 1958 may have shown an alternative footpath to No 3. I have looked at the photograph but can see no evidence of such but in any event and more significantly this point was not put to Mrs Wilson (born in 1952) and possibly Mr Rowsell as well and although I do not know his age I suspect he would have been around at the time. I therefore reject the suggestion.

17. I turn now to the quality and nature of the user of the Path. In this regard I heard evidence on the Applicant’s side from the Applicant, Mrs Wilson, Mr Rowsell, Rhys Vranch, a builder, Ms Rhiann Walton, David Walton, and Andrea Wilson. For the Respondent evidence was given, in addition to her own, by Ross Edwards who lives in the Farm, her son John Shaddick-Woodman, brothers Richard and John Roberts and John Roberts’ wife Diane, and Mrs Holland.

18. There was general agreement between the witnesses that the Path was used by persons passing onto No 3. The question was whether the user of the Path was permissive in the sense that permission was sought and/or given to use it.

19. The Applicant’s witnesses gave broadly consistent evidence that the Path was used, even after 1993, for purposes such as going to school, taking out a baby in their pram, carrying the lawn mower to the garden from the shed where it was kept on the road or simply visiting family members in other properties comprising the Cottages. Each of them said that they were not challenged when using the Path, never asked permission and had always believed there was a right of way on foot over the Path and in Mr Vranch’s case he said he had moved building materials over the Path when constructing a patio in the garden, without challenge. No one had ever encountered a blocking of the Path until the commencement of this Application.

20. As for the Respondent her evidence was far less certain than the impression given in her witness statement. Indeed she was in something of a quandary as having admitted that she knew the Path led to the gate in the fence between Nos 2 and 3, which she had replaced in 2016, and that the Path was used for going to No 3 she could not without difficulty logically argue that such user was precarious and indeed under cross examination she more or less accepted the point that it was not. Mrs Holland was able to say that on one occasion outdoor furniture belonging to the Respondent had been positioned so as to obstruct the path but did not claim it had actually prevented anyone from going to No 3 and as to the other witnesses no one was able to say that they were personally aware of permission being obtained to use the Path, with the exception of Mr John Roberts who had lived at No 2 for a period of 3 or 4 years in the early 2000s during the Respondent’s ownership but when she lived elsewhere. I did not find him a satisfactory witness given as he was to making a bold claims only to retreat when cross examined. He claimed he had told the Applicant’s father he could not carry the lawn mower over the Path, but as that contradicted the express evidence of the Applicant’s witnesses and implicitly the evidence of the Respondent as well, I do not accept his recollection.

21. As for the other witnesses what they had to say was in substance matters which they had been told of by the Applicant. That was particularly true of Mr Edwards

22. I have no doubt that from time to time users of the Path would mention that they would be using it in a certain way and that in consequence would be walking across No 2. I consider such exchanges to be a manifestation of neighbourliness and not in any sense a request for permission to use the Path. In the same way as Mrs Holland told me the Respondent’s furniture was once placed on the Path that was no more than the give and take between close neighbours and who at that time were good friends as well.

23. I find that there was no objection to the use of the Path, as I have described it, raised by or on behalf of the Respondent until the Application was made in 2022.

24. Furthermore I find that, for the same reason, no objection was raised by Mr and Mrs Wilson to the use of the Path as it crossed the land within the title of No 1. The fact is that the oral evidence shows everyone knew that there was a right of way which accommodated both Nos 2 and 3 and no one ever sought to deny that.

25. The Respondent raises an initial objection to the application arguing that the claimed right of way must fail because the Path does not meet one of the four fundamental requirements of an easement namely that it must accommodate No 3 as the dominant tenement: see Re Ellenborough Park This is because the Path leads nowhere in the legal sense as it is said there is no right of way over that portion of the Path where it traverses land within the title of No 1. No 1 is the property of the Applicant’s parents Mr and Mrs Wilson. The Path crosses over their land and onto the highway but does No 3 have a right of way over it and is it necessary that it should? [1956] Ch 131 .

26. In pragmatic terms there is no present problem with this arrangement given the family relationships. However what is the position if successors in title to the Wilsons of No 1 object to the user? In my judgment, for the findings and reasons, which I set out above any challenge to a right of way as it crosses the land of No 1 will almost certainly fail either because 20 years user as of right can be proved or alternatively if it be the case that the titles of No 3 and No 1 were both vested in Mr and Mrs Wilson then upon the sale of No 3 to the Applicant in 2021 the effect of Wheeldon v Burrows or section 62 would result in the creation of an easement at that date.

27. There is some evidence in the papers that No 3 and No1 at one time might both have belonged to Mrs or Mr and Mrs Wilson during some or all of the period 2015 to 2021. I do not have any direct evidence as to the ownership of No 1 except that it belonged to Mrs Wilson’s mother until her death in or around 2015-2016. It seems now to belong to Mrs Wilson either solely or jointly with her husband. She either jointly or solely owned No 3 until 2021 when she sold it to the Applicant.

28. There may therefore have been unity of ownership of Nos 1 and 3 during this period of time meaning any easement of a right of way over the Path would have been extinguished. However on a sale of No 3 in 2021 an easement would have been implied in its favour over the Path within the curtilage of No 1 either under the rule in Wheeldon v Burrows or s. 62 Law of Property Act 1925 . The Path was apparent at all times and continuously in use in that it was regularly used and in my judgment it was necessary for the reasonable enjoyment of No 3 as it was the only feasible way to access the front of the house for deliveries of bulky items, and gardening equipment or building materials. The evidence of the Applicant was that the new (1993) door at the rear of No 3 was inadequate in regard to these requirements. Access could be obtained from the Brookfield end of the garden but that was entirely permissive.

29. At the time of the completion of the sale of No 3 in 1995 it was and had been in the occupation of Mrs Wilson and her family, which included the Applicant, since 1991 although upon what terms I do not know. The Applicant told me that a part payment for No 3 had been made to Mr Rowsell in about 1993.

30. It seems to me that it would be quite artificial to ignore the possibility of an express grant of a right of way over the Path by the Wilsons or a successful action for the establishment of a right of way and in my judgment the requirement of accommodating the dominant tenement thus met. Additionally Counsel for the Applicant argues in his supplementary written submissions that the fact that part of a right of way may be permissive only is not fatal : Pugh v Savage[1970] 2 QB 373

31. I turn now to consider the claim to a right of way over the Path as it crosses over No.2. As mentioned above John Rowsell owned both Nos 2 and 3 and he sold both in 1995. At the hearing no one was able to tell me in what order the sales were completed either one before the other or simultaneously, however Mr Archer for the Applicant with his Supplementary Submissions submitted a Land Registry report which showed that John Rowsell sold No 3 in May 1995 and No 2 in December 1995.

32. As John Rowsell disposed of the dominant tenement first namely No 3 then easements were granted over No 2 by reason of the rule in Wheeldon v Burrows or s. 62 Law of Property Act 1925 .

33. It has been said that the rule in Wheeldon v Burrows determines what easements are implied in favour of the grantee of one part of the holding against the owner of the remainder. The rule applies to easements or quasi easements over the retained land which were: i)) continuous and apparent, ii) were necessary for the reasonable enjoyment of the land granted and iii) had been and were at the time of the grant used by the grantor for the benefit of the part granted. In my view all three requirements have been met.

34. Quasi easements are also converted into easements by the effect of section 62 LPA 1925 . In this case I have found that in 1995 the Path was in use for accessing No 3 and it was used regularly. The Path was there for all to see. There was prior diversity of occupation of the dominant and servient tenement as No 3 was occupied by the Wilson family and No 2 was not: Wood v Waddington [2015] EWCA Civ 538

35. S. 62 does not require that the easement should be necessary for the reasonable enjoyment of the dominant tenement.

36. Counsel for the Respondent objected to the application of the rule and/or the section on the basis that there could be no easement in existence in 1995 due to unity of ownership so these principles did not apply upon the sale of No 3 in May 1995, but that with respect is to misunderstand the purpose of the rule and section which is to convert quasi easements into easements. Secondly he says that it is wrong to think of Nos 2 and 3 as being one property owned by the same person. They were always to be regarded as two freeholds. I cannot agree with that proposition because as a matter of common sense when two parcels are owned by the same person then when one is sold the object of the doctrine of non-derogation from grant is to ensure relevant easements are deemed to be granted over the other. Indeed if Counsel is correct the ownership by Mr Rowsell of Nos 2 and 3 would not nullify any existing easements over the properties.

37. I therefore hold that as Mr Rowsell sold No 3 first in May 1995 the easement of a right of way along the path was deemed to be granted at that date pursuant to s. 62 . Therefore use of the Path after May 1995 was by right

38. I need to consider the alternative claim to a prescriptive easement as of right notwithstanding that it is now not in point given my findings that an easement was implied upon the transfer of No 3 in May 1995.

39. As to this claim that that a prescriptive right of way was established by 20 years user as of right, then on the basis of my findings set out above I find that there was user of the Path over No 2 from 1995 until the date of this application and that user was openly and without force or permission sufficient to establish an easement by prescription or lost modern grant.

40. I shall therefore direct the Chief Land Registrar to give effect to the Application.

41. As to costs if there is an application for the same this should be made in writing to me within 21 days of the date of delivery of this Decision. DATED this 6th day of October 2025 Nigel Thomas BY ORDER OF THE TRIBUNAL