This is an appeal from an order made on 11 January 2006 by His Honour Judge Wyn Williams QC, sitting as a Judge of the High Court in the Chester District Registry of the Chancery Division, in proceedings brought by the appellants, Mr Trevor Williams and Miss Rita Hibbitt, as owners of freehold property known as 20 Sandy Lane, Chester, for declarations that they are entitled to rights of way over neighbouring land in the ownership of the respondent company, Sandy Lane (Chester) Ltd. The judge dismissed that claim. The appellants appeal with permission granted by this Court (Lord Justice Neuberger) on 13 March 2006.

Sandy Lane is a public road running from north to south on the outskirts of Chester, parallel to and to the east of the River Dee. The two properties lie between the road and the river. The respondent’s land is immediately to the north of the appellants’ property, 20 Sandy Lane. It was formerly owned by Chester City Council. At the south-west corner of the respondent’s land – abutting the river and part of the northern boundary of the appellants’ property – there is a boat house. A track leads from Sandy Lane, across the land now owned by the respondent, to the boathouse. Vehicular access can be gained from Sandy Lane to the appellants’ property by passing over that track and across hardstanding immediately to the east of the boathouse. In these proceedings that has been described as “the primary route”.

The land upon which the boathouse now stands – or, at the least, part of that land – was let by the City Council (or, more accurately, by its predecessor in title, the Mayor, Aldermen and Citizens of the City and County of the City of Chester) to Mr William Williams under a memorandum of agreement dated 31 December 1908. That letting included a right of way from Sandy Lane. It is clear from the memorandum that there was then a wooden shed on the land which was used as a boathouse. By 1950 (if not earlier) the shed was used by the Williams Boat Company; which, I assume (although nothing turns on the point) was the name under which business carried on (or formerly carried on) by the original tenant, Mr William Williams.

In the early 1950’s Mr Trevor Williams began to work for the Williams Boat Company. In 1957 he met, and within the year became engaged to be married to, Miss Hibbitt. Together they became friendly with Mrs Clara Crawford, who lived at 20 Sandy Lane. That property had been conveyed to Mrs Crawford and her husband, the late Mr Thomas Crawford, in or about 1937. At that time the back door to the dwelling house on the property was on the north side. It was possible to gain access to the back door from Sandy Lane by walking down the track over the Council’s plot and across the common boundary – which, it seems, was not then fenced. That was described, in these proceedings as “the secondary route”. In the course of his judgment (at paragraph [21]) the judge made the following finding of fact, which is not challenged on this appeal:

Use of the secondary route ceased in 1976. That followed three events which are of importance in this context. First, on or about 30 September 1974, Mr Trevor Williams became the owner of the business carried on by the Williams Boat Company. There were no documents in evidence to record that transaction; but the judge accepted that Mr Trevor Williams became tenant under the 1908 agreement. He placed two rows of flagstones along the line of the track leading to the boathouse. Second, on 18 November 1975, the property at 20 Sandy Lane was conveyed to the appellants by Mrs Crawford. Miss Hibbitt moved to live there. Mr Trevor Williams did not (and does not) live at 20 Sandy Lane; but, as the judge found “he is a very frequent visitor and has been since 1975”. Third, the appellants began works of improvement to 20 Sandy Lane. Those works are described by the judge at paragraph [14] of his judgment:

From 1976 the claimants used the primary route to gain access to the (repositioned) back door of 20 Sandy Lane and to that part of the garden which lay between the house and the river. After holding, at paragraph [21] of his judgment, that all use of the secondary route ceased in 1976 and that “there has been no use since that time”, the judge went on to make the following findings of fact (ibid):

There was no evidence that the City Council had ever objected to the use made of the track (whether in conjunction with the secondary route before 1976 or, thereafter, in conjunction with the primary route) as a means of access to 20 Sandy Lane. On 27 May 1984 Miss Hibbitt wrote to the Council to express opposition to a proposal to develop the plot to the north of 20 Sandy Lane (which she described in that letter as “Rasbottom’s site” or “Rasbottom’s land”). Her primary concern was, I think, with the possible re-routing of the sewage system; but she went on to say this:

As I have said, in 1974 Mr Trevor Williams had become tenant under the 1908 agreement of the land on which the boathouse stands. In 1990 he was granted a new lease by the City Council. The lease - which is dated 27 July 1990 - was for a term of three years from that date; but it has continued after the end of the contractual term under the provisions of Part II of the Landlord and Tenant Act 1954. The land demised by the 1990 lease appears (from a comparison of the respective plans) to be rather more extensive than the land held under the 1908 agreement. In particular, the land demised by the 1990 lease included the hardstanding immediately to the east of the present boathouse. The judge made findings to that effect. At paragraphs [25] and [26] of his judgment he said this:

The 1990 lease contained a covenant by the Council to allow the tenant (Mr Trevor Williams) “to cross and recross the Council’s land shown in blue on the plan attached to this lease for so long as this agreement subsists between the parties”. The land shown in blue on the plan is (at least approximately) the land over which there runs the track leading from Sandy Lane to the boathouse. It extends up to the northern boundary of 20 Sandy Lane; and it abuts the land demised by the 1990 lease at the south east corner of that land – that is to say, at a point on the common boundary between that land and the back garden of 20 Sandy Lane.

The lease required the tenant to erect a close boarded fence along the boundaries of the demised premises (clause 3.3.5). The demise expressly excluded “any boathouse constructed upon the land” (clause 2.1); but required the tenant “to erect upon the premises a boathouse in accordance with plans approved by the Council” (clause 3.3.6). It is not clear from the evidence (and the judge made no finding) whether whatever structure had been on the land in 1908 had been replaced over the years, or whether, after 1990, Mr Trevor Williams did construct a new boathouse. Nothing turns on that point.

Clause 3.7.3 of the lease contains a covenant by the tenant in these terms:

The ground falls from the public road (Sandy Lane) towards the river. The effect is that the track (at least at its western end) descends towards the hardstanding at the eastern end of the boathouse. The judge found that, in 1976, Mr Trevor Williams had erected a gate at the bottom of the track, at or about the point at which it reached the hardstanding. The position can be seen on the photographs which were in evidence; and the judge took advantage of the opportunity to visit the site. His conclusion was that, in order to use the primary route to gain access from Sandy Lane to the back garden of the claimants’ property (at 20 Sandy Lane), it was (and had always been) necessary to pass over some part of the land which was subject to the boathouse tenancy. At paragraph [27] of his judgment he addressed the position immediately following the acquisition by Mr Trevor Williams of the Williams Boat Company business in 1974:

The plot to the north of 20 Sandy Lane (including the land subject to the 1990 lease and the blue land referred to in that lease) was sold by the Council to the defendant company in 2003. It is common ground that the defendant intends to develop the land which it has acquired by erecting houses on that land. It is said by the defendant (at paragraph 17 of its pleaded defence) – and there is no reason to doubt – that Mr Trevor Williams has agreed to give up the tenancy of the boathouse land when the defendant acquires planning consent for its proposed development. That may reflect Mr Williams’ perception of the position which would then arise under section 30(1) of the 1954 Act. Be that as it may, it is not, I think, in doubt that a right of way over the track (whether in conjunction with the primary or the secondary route) to gain access to the garden at the back of 20 Sandy Lane would be likely to impede the defendant’s proposed development.

It was in those circumstances that these proceedings were commenced by the issue of a claim form in or about August 2004. The claimants sought a declaration that, as owners of 20 Sandy Lane, they were entitled by virtue of a lost modern grant to pass and repass on foot (with or without a wheelbarrow or similar implement) over the track in conjunction with the secondary route. Further, or in the alternative, they sought a declaration that they were entitled under section 2 of the Prescription Act 1832 to pass and repass by vehicle or on foot over the track in conjunction with the primary route. And they sought an injunction restraining the defendant from erecting any building on the track or otherwise interfering with the exercise of those rights.

The judge held that the claimants had established on the evidence that, prior to 1976, there had been upwards of twenty years uninterrupted enjoyment of an easement of way on foot over the track in conjunction with the secondary route. He reminded himself of the exposition in this Court, in Tehidy Minerals Ltd and another v Norman and others [1971] 2 QB 528, at 552A-B, of the circumstances which, in the light of Dalton v Angus & Co (1881) LR 6 App Cas 740, should lead the court to adopt the fiction of lost modern grant. He said this, at paragraphs [30] and [31] of his judgment:

The judge then turned to the claim in respect of the primary route. He reminded himself that, in order to rely on section 2 of the Prescription Act 1832, a claimant must establish user as of right for the full period of twenty years immediately preceding the action in which the right is called into question. He directed himself that “the easement is established only if the servient owner acquiesced in the user”. He went on to say this (at paragraph [34] of his judgment):

The judge was satisfied from the evidence that, “since 1976 at the latest”, Miss Hibbitt had walked the primary route on a frequent basis, openly and “probably at various times of the day and evening”. From 1978 she had driven her moped along the primary route on a daily, or virtually daily, basis until her retirement in 1994. That, too, had been done openly. Within months of ceasing to use her moped she had acquired a car “which she then drove along the track to and from her house”. He said this, at paragraphs [36], [37] and [38] of his judgment:

Nevertheless the claim in respect of the primary route failed. At paragraph [43] of his judgment the judge observed that, but for the terms of the 1990 tenancy, he would have regarded it “as finely balanced as to whether the Council had acquiesced in the use by [Miss Hibbitt] of the track”; but, on balance, he would have held that it had not done so. But he reached “the clear conclusion” that “once the tenancy was granted in 1990 its terms were such that the Council could not be acquiescing in the user”. The judge stressed that, in his view, it was not the grant and existence of the 1990 tenancy which led him to that conclusion: rather, it was the terms on which that tenancy had been granted. It is clear from paragraph [42] of his judgment that he found the covenant in clause 3.7.3 of the 1990 lease determinative. He said this:

On the basis of the conclusions which he had reached as to abandonment (in relation to the secondary route) and as to the absence of acquiescence on the part of the Council (in relation to the primary route) the judge dismissed the claims made in the proceedings. In granting permission to appeal Lord Justice Neuberger observed that this Court might wish to take the opportunity to revisit the principles which underlay its decision in Pugh v Savage.

The claimants challenge the judge’s conclusion that the effect of clause 3.7.3 of the 1990 lease was that the Council could not be said, after 1990, to have acquiesced in the use which Miss Hibbitt was making of part of the land demised by that lease: that is to say, in her use of the hardstanding to cross from the bottom of the track to the back garden of her property at 20 Sandy Lane. Further, it is said that the judge ought to have held that no part of the primary route fell within the land held under the 1908 agreement; and, yet further, that, if the land held under the 1908 agreement did include any part of the primary route – that is to say, any part of the hardstanding – the judge failed to give any, or any sufficient, reason for his conclusion that (absent the 1990 lease) the Council had not acquiesced in the use made of that route after 1976. On that latter point, the respondent seeks to uphold the judge’s conclusion on the basis of additional reasons (set out in a respondent’s notice). And it is said, at paragraph 3 in section 6 of the respondent’s notice, that (in any event) Mr Trevor Williams (together with, by extension, Miss Hibbitt) should not be allowed to take advantage of his own wrongdoing in failing to observe the covenant in clause 3.7.3 of the 1990 lease.

In addressing these contentions it is necessary to have in mind the principles which underlie the acquisition of a right of way by prescription. The classic statement of those principles is found in the advice given to the House of Lords by Mr Justice Fry in Dalton v Angus (supra, (1881) 6 App Cas 740, 773-4. The passage is conveniently set out in Diment v N H Foot at 1433B-D:

It is trite law that, for the purposes of prescription, the relevant owner of the servient tenement is the owner of the freehold interest. The presumption or inference of a grant, to which long uninterrupted user of the right claimed may give rise, is a grant by the freehold owner. If authority for that proposition be needed, it can be found in the observation of Lord Justice Lindley in Wheaton v Maple & Co [1893] 3 Ch 48, at page 63:

In Pugh v Savage the trial judge had found that there had been uninterrupted user of the servient tenement (field 457) from 1932 to 1966; but that for a period of ten years – between 1940 and 1950 – the field had been subject to what Lord Justice Cross described as “some sort of oral tenancy”. The trial judge had held that the interruption of the period of prescription by the tenancy was fatal to the claim. Lord Justice Cross (with whom the other members of the Court agreed) took a different view, as appears from the remainder of the passage which I have set out:

In my view it is possible to derive from the decision of this Court in Pugh v Savage the following principles applicable to cases where the servient land is, or has been, subject to a tenancy. First, in a case where the grant of the tenancy of the servient land predates the user by or on behalf of the owner of the dominant land, it is necessary to ask whether, notwithstanding the tenancy, the freehold owner of the servient land could take steps to prevent user during the tenancy. The answer to that question is likely to turn on the terms of the tenancy. Second, if (notwithstanding the tenancy) the owner of the servient land could take steps to prevent the user, then it is necessary to ask whether (and, if so, when) the freehold owner had knowledge (actual or imputed) of that user by the owner of the dominant land. The fact that the freehold owner of the servient land was out of possession when the user began and throughout the term of the tenancy may well lead to the conclusion that knowledge of that user should not be imputed. But if, on the facts, the owner of the servient land does have knowledge of the user and could (notwithstanding the tenancy) take steps to prevent that user, but does not do so, then (prima facie) acquiescence will be established. Third, in a case where user of the servient land by the owner of the dominant land began before the grant of the tenancy, it is necessary to ask whether the freehold owner of the servient land had knowledge (actual or imputed) at or before the date of the grant. If so, then it is likely to be immaterial whether the terms of the tenancy are such that the owner of the servient land could (or could not) take steps to prevent that user. That is because if (with knowledge of the user) the owner of the servient land grants a tenancy of that land on terms which put it out of his power to prevent that user, he can properly be said to have acquiesced in it. Fourth, if the owner of the servient land did not have knowledge of the user at the date of the grant, then the position is the same as it would be if the grant had pre-dated the user. It is necessary to ask whether (notwithstanding the tenancy) the freehold owner can take steps to prevent the user; and, if so, whether (and if so when) the owner had knowledge of the user.

With those principles in mind, I turn to the facts in the present case. Although, in deference to the submissions made to us, I will address the question whether there was a tenancy of the land immediately to the east of the boathouse before execution of the 1990 lease – and the question whether the judge was right to take the view which he did as to the effect of the 1990 lease – it seems to me that, on a proper analysis of the facts, neither of those questions actually arises. The reason is that, whether or not there was a tenancy of the land immediately to the east of the boathouse – and whether or not the terms of that tenancy were such that the Council could have prevented user of that land in conjunction with the primary route – there is no doubt that the Council could have prevented user of the track for that purpose. If the Council had knowledge that the primary route was being used by Miss Hibbitt for the purpose of gaining access from Sandy Lane to her property, it could have put a stop to that use. It seems to me fanciful to suggest that it could not be held to have acquiesced in the use of the primary route if it were shown that there was one small part of that route (the land immediately to the east of the boathouse) in relation to which it could not have obtained an injunction. Plainly, it could have stopped her from using the track; and without the ability to use the track she could have made no use of the land immediately to the east of the boathouse for the purpose of gaining access from Sandy Lane to her property. That is not, of course, to say that, without the use of both the track and the land immediately to the east of the boathouse, she could have established a right by prescription: it is only to say that, given that she was using the whole of the primary route, her claim to have acquired a right by prescription cannot be defeated by showing that there was some part of that route in relation to which no injunction could have been obtained. The real question on the appeal, in so far as it relates to the primary route, is whether the Council had knowledge of the use.

I should add that the judge seems to have accepted that analysis. At paragraph [46] of his judgment he said this:

The judge referred, at paragraph [39] of his judgment, to two points advanced on behalf of the claimants. First, it was said that:

It is, perhaps, unclear whether the judge accepted the two points which the claimants had made to him. But, at the least, it can be said that he did not reject them. At paragraph [43] of his judgment, after referring to the defendant’s submissions, he said that, although (but for the terms of the 1990 lease) he would have regarded the point as “finely balanced”, he would have held that the Council had not acquiesced in Miss Hibbitt’s use of the track in conjunction with the primary route. But he observed that that conclusion was influenced “by my finding that a tenancy existed over part of the servient tenement throughout the period of use from 1976”.

It is pertinent, therefore, to note the judge’s summary (at paragraph [40] of his judgment) of the argument put to him on behalf of the defendant. It is founded on the submission that: “at all material times . . . part of the land was let to [Mr Trevor Williams]. The Council, as a reasonable landowner, would have no reason to investigate land which was let”. As to the remainder of the servient tenement:

It seems to me that, given the judge’s observations (i) that (but for the terms of the 1990 lease) he would have regarded the point as “finely balanced”, and (ii) that his conclusion (that the Council had not acquiesced in Miss Hibbitt’s use of the track in conjunction with the primary route) was influenced by his finding that a tenancy had existed over the land immediately to the east of the boathouse from 1976, the better view must be that he did accept the two points which the claimants had made to him. That is to say, he accepted – as facts which had been established - (i) that had the Council inspected the land in the vicinity of the boathouse it would have realised (from the physical features on the ground) that there was the distinct possibility that the appellants were using the track to gain access to 20 Sandy Lane and (ii) that the information in Miss Hibbitt’s letter of 27 May 1984, if followed up, would have alerted the Council to the user of the primary route. For my part, I find it difficult to see how the judge could have thought that the point was finely balanced - turning on the existence of a tenancy over part of the route since 1976 - unless he did accept (as facts which had been established) the two points advanced by the claimants.

Further, I am satisfied that the judge would have been right to accept those two points. It is important to keep in mind that Miss Hibbitt’s letter of 27 May 1984 made an unequivocal claim to an easement over the Council’s land, acquired by user since 1956. It would have been obvious, from the most cursory knowledge of the land, that the easement claimed would be likely to relate in some way to the track. It would not have been obvious, without inspection or inquiry, whether the easement was claimed in relation to the primary route or some other route. But, on inspection in or after 1984, it would have been obvious that it was the primary route that was then in use. And there is no reason to think that, if asked, Miss Hibbitt would not have explained the circumstances in which the former use of the secondary route - to which, with knowledge of the historical facts (but not otherwise), it can be seen that she was referring in her letter - had been supplanted by use of the primary route.

The points made on behalf of the defendant – to which the judge referred at paragraph [40] of his judgment – carry no weight once it is appreciated that the hypothetical council official, going on to the land to carry out an inspection in response to Miss Hibbitt’s letter of 27 May 1984, must be taken to know that it was (at the least) likely that she was claiming a right to use the track in some way to gain access to her property at 20 Sandy Lane. In that context it was immaterial that the track was also being used to gain access to the boathouse. The council official might well not observe actual use by Miss Hibbitt: her use was not so frequent that he would be bound to observe it. But, in the light of her letter of 27 May 1984, it could not be assumed (without enquiry) that the track was not being used for that purpose. Inspection of the land in the vicinity of the boathouse would have suggested that it was. And, as I have said, there is no reason to think that, if inquiry had been made, the use of the primary route would not have been disclosed.

For those reasons, as it seems to me, the judge – applying the guidance which he had identified in Union Lighterage Co v London Graving Dock Co (supra) – was bound to reach the conclusion that, from 1984 (if not before), the Council had knowledge that the primary route was being used, on foot and with vehicles, to gain access from Sandy Lane to the claimants’ property. As Sir John Pennycuick, Vice-Chancellor, explained in Diment v N H Foot Ltd (supra, 1433E) knowledge, in this context, includes imputed knowledge: that is to say, knowledge of such facts as an ordinary owner of the servient land, diligent in the protection of his interests, would have become aware.

It follows, as it seems to me, that the judge’s conclusion that, even without the 1990 lease, he would have held that the Council had not acquiesced in the user of the primary route, does (as I think he recognised) depend on his finding that, at all material times from 1974, part of the primary route was over tenanted land. For the reasons which I have sought to explain earlier in this judgment, I would hold that, on a proper analysis, the question whether or not the Council had acquiesced in the user of the primary route does not depend on whether or not there was a tenancy of the land immediately to the east of the boathouse. The relevant question – on the facts in this case – was whether or not the Council had knowledge of the use from 1984. I would hold that the only answer which the judge could have given to that question was that the Council did have knowledge of the use: that knowledge was to be imputed following receipt of Miss Hibbitt’s letter of 27 May 1984. And so I would hold, also, that the judge’s conclusion that, even without the 1990 lease, the Council had not acquiesced in the user of the primary route was wrong.

I should add, for completeness, that – for the reasons which I am about to explain – I would hold that the judge was wrong to conclude that the land immediately to the east of the boathouse was subject to a tenancy from 1974. It follows that, on that ground also, I would hold that the judge’s conclusion that, even without the 1990 lease, the Council had not acquiesced in the user of the primary route was wrong.

It is, I think, clear from the plan annexed to the 1908 agreement that no part of the land immediately to the east of the “present wooden shed erection or building now used as a boat house” referred to in that agreement (and shown hatched on the plan) was included in the demise. The judge accepted that that was the position in 1908. As he put it, at paragraph [23] of his judgment: “It does appear probable . . . that the boundaries of the land demised [in 1908] on the southern and eastern side, essentially, were the walls of the boathouse”.

It is clear, also, that the shed or building used as a boathouse in 1908 was treated (under the 1908 agreement) as a tenant’s fixture. The agreement provided that the tenant should be entitled to remove “the said wooden Shed” at the determination of the tenancy. That, no doubt, is why the 1990 lease excludes “any boathouse constructed upon the land” from the demise. Further, under the 1908 agreement, the tenant was not at liberty “to rebuild enlarge or otherwise alter the said erection” without first obtaining the Council’s written consent. At paragraph 14 of his witness statement (dated 4 February 2005) Mr Trevor Williams described how, after acquiring the business in 1974, he “set about immediately repairing the Boatshed by renewing the east and west ends and erected a new roof”. Although there was no direct evidence on the point, there is no reason to think (and the judge did not hold) that the shed or building used as a boathouse in 1974 was not the same shed or building as that which had been used in 1908. The better view, as it seems to me, is that the eastern boundary of the land held under the 1908 agreement – as defined by the plan to that agreement – continued in 1974 to be represented, on the ground, by the eastern end (or wall) of the boathouse.

The judge took the view that the position changed when Mr Trevor Williams took over the business of the Williams Boat Company in 1974. At paragraph [27] of his judgment - in the passage which I have already set out – he held that “there probably came a time when the area immediately to the east of the boathouse was incorporated into the demise for no better reason that this was the most natural state of affairs”. It is, perhaps, unclear from that passage whether he thought that incorporation had taken place before or after Mr Trevor Williams took over the business; but I think that he was referring to a time after the transfer. That is consistent with his observation that “That is why [Mr Trevor Williams] erected the gate where he did in 1976”.

The appellants challenge the judge’s conclusion that the land immediately to the east of the boathouse ever became incorporated into the 1908 demise, whether “by virtue of the doctrine of accretion to lease or otherwise”: ground 6 of the grounds of appeal set out in the appellants’ notice. It is said that there was no evidence to displace the boundaries defined by the plan to the 1908 agreement. The respondent accepted, in this Court, that no part of the primary route fell within the original demise under the 1908 agreement. But, it is said, the judge’s finding that the hardstanding (or forecourt) immediately to the east of the boathouse was always within the land demised to Mr Trevor Williams does not depend on a finding (which the judge did not make) that the hardstanding was within the original demise. The point is put at paragraph 27 of the respondent’s skeleton argument:

That submission, as it seems to me, fails to confront or overcome a number of difficulties. First, it is inconsistent with the respondent’s pleaded case. The plan attached to the defence is a copy of the plan annexed to the 1990 lease. The land edged red on that plan is the land demised by the 1990 lease. It is that land which is referred to in the defence as the “Boathouse Premises”. Paragraph 7 of the defence is in these terms:

The judge’s finding was that “there probably came a time when the area immediately to the east of the boathouse was incorporated into the demise”. That suggests, perhaps, that the judge had in mind that the premises demised by the 1908 agreement had become enlarged by encroachment. The authorities on encroachment were reviewed by Sir John Pennycuick, Vice-Chancellor, in Smirk v Lyndale Developments Ltd [1974] 2 All ER 8, and are noted in Halsbury’s Laws of England (4^th Edition, volume 27(1) (Reissue) at para 165). But there was no plea of encroachment; and the point was never put to Mr Trevor Williams in those terms. He was asked, in the context of his acquisition of the business, what land he thought he was renting as part of the tenancy:

The judge’s finding in paragraph [27] of his judgment rests, as it seems to me, on his view that enlargement of the premises occupied with the boatyard “was the most natural state of affairs” and that that was the reason why Mr Trevor Williams erected the gate at the bottom of the track. When Mr Trevor Williams was asked why he had put the gate at the bottom of the track, rather than at the edge of the Sandy Lane property, his answer was: “That seemed a sensible place to put it”. The gate was to keep people out of 20 Sandy Lane and the boathouse: “It did two jobs”. In drawing an inference from that answer that Mr Trevor Williams intended to incorporate the hardstanding into the premises demised by the 1908 agreement, the judge seems to have overlooked that the topography – which must have been apparent to him on his visit to the site and which is shown clearly in the photographs which were in evidence – really dictated the position in which a gate had to be erected if it were to serve the dual purpose which Mr Trevor Williams had in mind.

As I have said, it is now accepted that the land immediately to the east of the boathouse was not within the land originally demised by the 1908 agreement. The respondent did not advance a case at trial that Mr Trevor Williams had acquired a new lease in 1974. That case was never pleaded; and never put to Mr Trevor Williams in cross-examination. Nor did the judge find that a new lease had been acquired in 1974. The respondent did not advance a case at trial that the premises demised by the 1908 agreement had been enlarged by encroachment. That case was never pleaded; and never put to Mr Trevor Williams in cross-examination. In my view it was not open to the judge to make the finding that he did in paragraph [27] of his judgment. The conclusion which he should have reached was that it had not been established that the land immediately to the east of the boathouse was occupied by Mr Trevor Williams as tenant of the Council prior to the grant of the 1990 lease.

The judge decided the case (in relation to the primary route) on the terms of the 1990 lease. As he put it, at paragraph [42] of his judgment to which I have already referred: “How can it be said that the Council was acquiescing in the acquisition of an easement when it extracted from the tenant of part of the servient tenement a promise to do all that he reasonably could to prevent the easement being acquired?” In reaching the conclusion that that could not be said, the judge confused the third and fourth elements of Mr Justice Fry’s statement of the principles governing the acquisition of rights by prescription.

The judge should have held that the Council did have knowledge that the primary route was being used to gain access from Sandy Lane to the appellants’ property. It had that knowledge as a result of Miss Hibbitt’s letter of 27 May 1984. That letter gave rise to an imputation of knowledge which could not be set on one side on the ground that, by imposing an obligation upon the tenant (in the 1990 lease) to prevent use of the primary route so far as he reasonably could, the Council had done all that the reasonably vigilant owner would do to protect its interests. The need for the Council to make its own inquiries arose in 1984. Had it made those inquiries at the appropriate time, it would have appreciated that it was quite unreal to think that, following the grant of the 1990 lease, Mr Trevor Williams would appreciate that he was expected to stop Miss Hibbitt’s use of the primary route.

Further, the judge should have held that the Council was, itself, in a position to prevent use of the primary route. I have already explained that the Council could have stopped Miss Hibbitt from using the track; and that, without the ability to use the track, she could have made no use of the land immediately to the east of the boathouse for the purpose of gaining access from Sandy Lane to her property. But the terms of the 1990 lease, themselves, gave the Council power to stop Miss Hibbitt from using the land to the east of the boathouse. The Council could have required Mr Trevor Williams to perform the covenant into which he had entered under clause 3.7.3: “to take all reasonable steps to prevent . . . the acquisition of any easement over the premises”. If he had failed to do so, the Council could have terminated the lease – by re-entry under the proviso in the lease, or by a notice under Part II of the Landlord and Tenant Act 1954, and reliance on section 30(1)(c) of that Act. And, having terminated the lease, the Council could have sought an injunction to restrain trespass on the land formerly held under it.

For those reasons it seems to me that the judge’s reliance on the 1990 lease was misplaced.

It is said, by way of respondent’s notice, that the judge’s decision in relation to the primary route should be upheld on the ground that, if the appellants were held to have acquired a right of way over that route by prescription, they would have done so “by virtue of a persistent and flagrant breach of covenant on the part of [Mr Trevor Williams], both in using the leased premises himself and in permitting [Miss Hibbitt] to use the same in such a way as to acquire an easement thereover”; Mr Trevor Williams should not be allowed to take advantage of his own wrongdoing in failing to observe the covenant in clause 3.7.3 of the 1990 lease; alternatively he is estopped from relying on his own breach of covenant and Miss Hibbitt can be in no better position than her co-owner. The point was taken before the judge – see paragraph [41] of his judgment – but he did not find it necessary to decide it. He observed (at paragraph [42] that, although the point might have considerable force, no authority had been cited to him to support it.

It is, I think, pertinent to keep in mind that, in addressing the question whether the Council had acquiesced in the use of the primary route, the judge paid no regard to the use of the track by Mr Trevor Williams. That is made clear in paragraphs [38] and [43] of his judgment. It follows that the judge can have paid no regard to use which Mr Trevor Williams may have made of the land immediately to the east of the boathouse to gain access from Sandy Lane to the appellants’ property. In my view he was right to ignore that use. A tenant cannot acquire a right in relation to the freehold of the tenanted land by prescription against his landlord. Had Mr Trevor Williams been the sole owner of 20 Sandy Lane, the claim to a prescriptive right to use the primary route to gain access to that property from Sandy Lane would have been misconceived. The covenant in clause 3.7.3 of the 1990 lease adds nothing to that analysis.

But, of course, Mr Trevor Williams is not the sole owner of 20 Sandy Lane. He owns that property jointly with Miss Hibbitt; and it is upon Miss Hibbitt’s use of the primary route that the joint owners rely. In that context, as it seems to me, it is immaterial that Mr Trevor Williams (as tenant of the land immediately to the east of the boathouse) permitted her to use the tenanted land to gain access to the track and that, in permitting her to use the tenanted land, he was in breach of the covenant in clause 3.7.3. As I have sought to explain, the relevant question is whether the Council had knowledge of that use. It is because (as I would hold) the Council did have knowledge of that use, could have taken steps to prevent it, but chose not to do so that it must be taken to have acquiesced. It is no answer to a prescriptive claim to assert that the user upon which the claimant relies is unlawful. Public policy does not prevent conduct which is unlawful (in the sense that it is tortious or in breach of contract) or which is illegal (in a criminal sense) from leading to the acquisition of property rights – see the observations of Lord Scott of Foscote in Bakewell Management Ltd v Brandwood and others [2004] UKHL 14, [46], [2004] 2 AC 519, 544.

It follows that I would reject the respondent’s attempt to support the judge’s conclusion on this additional ground.

The claim in relation to the secondary route is advanced independently of the claim in relation to the primary route: that is to say, a conclusion that the appellants are entitled to succeed in their claim in relation to the primary route does not obviate the need to address the appeal in relation to the secondary route. In practice, however, if the appellants can use the primary route, it is unlikely that they will wish to use the secondary route. It is not in dispute that they ceased to use the secondary route in or about 1976 because they found the primary route more convenient. The short point, on this limb of the appeal, is whether, by ceasing to use the secondary route in those circumstances, the appellants must be taken to have abandoned the prescriptive right which (as the judge found) had, by then, been established by uninterrupted user since the early 1950s.

It is, I think, common ground that a right of way is not lost by non-user alone; even if the non-user has extended over many years. What is required is an intention on the part of the dominant owner to abandon the right. The principle is stated in the headnote to Ward v Ward (1852) 7 Ex 838, 155 ER 1189: “An immemorial right of way is not lost by non-user for upwards of twenty years, the user having been discontinued merely by reason of the party’s having had a more convenient way”. It was expressed, succinctly, by Baron Alderson in the course of the argument on that appeal:

The question for this Court is whether the judge was entitled to infer, from the evidence on which he relied, that the appellants intended to give up their right to use the secondary route. It can be seen from paragraph [32] of his judgment that he took six matters into account:

We have been provided with a transcript of the evidence given by Mr Trevor Williams. It is impossible to find, either in that transcript or in his witness statement, any passage which would support a finding that Mr Trevor Williams acknowledged that he, or Miss Hibbitt, intended to abandon whatever right they had to use the secondary route. His evidence was that they ceased to use the secondary route because the primary route was more convenient. And, of course, an intention to abandon the secondary route is inconsistent with Miss Hibbitt’s letter of 27 May 1984 – from which (with knowledge of the facts) it can be seen that she was asserting a right to use the secondary route. In my view the judge was not entitled to hold that the appellants, or either of them, acknowledged an intention to abandon a right to use the secondary route.

Of the six matters on which the judge relied, it seems to me that those which I have numbered [1], [2], [4] and [6] are incapable, in themselves, of providing a basis from which to infer intention to abandon a right to use the secondary route. Item [2] provides the explanation for the 30 years of non-use, item [1]. In relation to item [4] it is important to have in mind that access to 20 Sandy Lane over the secondary route was not limited to access to the former back door: the back door was not on the boundary. Properly understood, item [4] provides the reason why use of the primary route was more convenient: it was more convenient to use the primary route once the back door had been moved. Item [6] is no more than a consequence of non-use. The inference of intention to abandon really rests on items [3] and [5].

The evidence was that the earthworks carried out on the boundary adjacent to the north wall of the house at 20 Sandy Lane made it more difficult to use the secondary route; those works did not make use of that route impossible. The evidence suggested that the fence between 20 Sandy Lane and the Council’s plot to the north was insubstantial: Mr Trevor Williams described it as “old plywood and railings” sufficient to prevent Miss Hibbitt’s dogs getting out. There was no reason to think that the removal of the fence – if the appellants wanted to use the secondary route – would cause them any difficulty or even expense.

This Court should be reluctant to disturb an inference as to intent which the judge has made after hearing the evidence and viewing the site. But, as it seems to me, this is a case in which we should do so. The judge took into account matters which were incapable, in themselves, of supporting an inference of intention to abandon. It is not clear whether he appreciated that; or what weight he gave to those matters. He does not seem to taken account of the insubstantial nature of the fence; and he seems to have thought (wrongly) that the earthworks made the secondary route impassable. And he failed to take into account the clear evidence of intention to assert the right to use the secondary route which is found in Miss Hibbitt’s letter of 27 May 1984.

For those reasons, I take the view that, in holding that the appellants had abandoned the right to use the secondary route, the judge came to the wrong conclusion.

It follows that I would allow this appeal. I would declare that the appellants are entitled to the rights of way which they claim over both the primary route and the secondary route. If the parties are unable to agree how those routes are to be defined on a plan, I would remit the matter to the judge so that he can determine the precise extent of the land over which the appellants’ rights may be exercised.

I agree.

I also agree.