EASEMENT (long use since 1988) upheld by the UTLC Appeal Judge on 27/7/2023
Dr Gillian Reed longtime resident of 42 Wimborne Gardens won her legal Appeal case on all 3 grounds of appeal yesterday at the Upper Tribunal (Lands Chamber) Hearing in Court No.21 at the Royal Courts of Justice in The Strand. Dr Reed's usage of land immediately adjacent to her house for inspection, maintenance and repairs of her north-facing house wall, plinth, drains and gutters, etc since 1988 created an easement recognised in law as against the neighbouring landowner.Please see part of Andrew Skelly's (Dr Reed's barrister) summary note of the proceedings on 27th July 2023 below. The full Judgment in favour of Dr Reed is to follow in September 2023."1. The hearing was before Judge Elizabeth Cooke, sitting in Court 21 of the Royal Courts of Justice.2. There were three grounds of appeal. By an order dated 21st October 2022 the FtT granted permission to appeal on Ground 3. The Appellant applied for permission to appeal on Grounds 1 and 2. By an order dated 7th November 2022 the Deputy Chamber President directed that the appeal and the application for permission to appeal on the additional grounds will be determined by the Tribunal at a single hearing.3. The hearing today was thus the combined hearing of the appeal / permission to appealthe order of the FtT dated 15th July 2022. As a matter of practicality, therefore, theTribunal heard all arguments on all grounds.4. The Grounds were such that if the Appellant succeeded on Ground 1, that would be conclusive and it would not be necessary to consider Grounds 2 or 3. Likewise, if unsuccessful on Ground 1, but successful on Ground 2, that would be conclusive and it would not be necessary to consider Ground 3.5. The Grounds were as follows:i) Long UserThe FtT erred in law and/or procedure in concluding that the Appellant relied only on the Prescription Act 1832 to put her case, and that the claim was therefore governed only by section 2 of the 1832 Act. The FtT should have dealt with the claim also on the basis of the doctrine of lost modern grant. Had the Judge properly done so, he would have held that the right had been established by 2008. Noting that happened after that – by way of permission or interruption – would have any relevanceii) PermissionThe FtT erred in law and/or in fact in finding that the Appellant had sought and obtained permissioniii) Effect of PermissionThe FtT erred in law and/or in fact in finding that as a result of permission held to have been given in 2010 for a specific purpose, the Applicant’s user for every purpose thereafter remained permissiveRESULT6. The Judge heard argument from Counsel on behalf of the Appellant, and from Mr Outten in person. At the conclusion of the hearing she explained that it is usual for the Tribunal to reserve judgment. However, she decided to take the less usual approach of telling the parties her decision immediately, and following up with the written decision in due course.7. The appeal succeeded on Ground 1, and the Judge said that it also succeeds on Grounds 2 and 3 if it was necessary to go that far....."Ealing Planning Department had granted a planning permission to the adjacent landowner that would have obstructed this easement - now this cannot go ahead unchallenged!
Victor Mishiku ● 282d1 Comments