Leven Holdings Ltd v Johnston & Ors

This is my judgment on a claim brought, as the claim form puts it, for a “declaration as to the existence of a right of way over the claimant’s land, to include an order preventing use.” The claim form was issued on 18 December 2015, accompanied by particulars of claim dated the day before. The claimant is the registered proprietor of the fee simple estate in certain land in Chipping Norton, Oxfordshire, known as the Enstone Industrial Estate. That land forms part of land previously occupied together, and known, as RAF Enstone Aerodrome. Other parts of that land now belong to a sister company, called Lomond Holdings Ltd, and also to a Mr and Mrs Markham. But a small part to the north-east forms part of a large landed estate known as the Great Tew Estate. This estate extends to the north of the aerodrome, and is divided into two sections, north and south, bisected by a public highway, the road from Ledwell to Little Tew (“the Ledwell Road”), running east to west. From the Ledwell Road a local authority maintained road, called the New Road, leads south towards what used to be known as Tracey Farm, and is now known as Soho Farm, in the heart of the Great Tew Estate.

The southern part of the Great Tew Estate (ie to the south of the Ledwell Road) is divided into some 12 parcels of land, each of which is owned in fee simple by one or more of the first four defendants. Three of the parcels (known as plots 2, 3 and 5) are now owned by the third defendant, who has no connection with the other defendants, has made no claim to any right of way, and consequently has taken no part in these proceedings. I need not and do not address any issues in relation to those three parcels. But I mention that plot 2, now known as Soho Farmhouse, and formerly known as Tracey Farm, is important in what follows. The first defendant is a co-owner of all the remaining parcels, and the second and fourth defendants (corporate vehicles) are variously the co-owners of those other parcels. The first defendant controls the second, fourth and fifth defendants. The fifth defendant has a lease of plot 4. Plot 4 is that part of the Great Tew Estate which forms part of Enstone Aerodrome. Plot 1 is farmland, and occupies the major part of that part of the southern part of the Estate which lies to the west of the New Road. Plot 6 (known as Beaconsfield Farm) occupies the major part of the part to the east of the New Road. The sale of plots 2, 3 and 5 has practically separated plot 4 from plot 1. Plots 7 to 12 lie to the north of these plots, and border the Ledwell Road. They play little part in this story.

As I have said, the Great Tew Estate is contiguous on its southernmost side partly with the Enstone Industrial Estate. The Enstone Industrial Estate comprises the south east part of the land of the former RAF Enstone Aerodrome. On its southern side, it borders the public highway running east to west, the B4030. Running through the Enstone Industrial Estate from that public highway, in approximately a north easterly direction until it meets plot 4 of the Great Tew Estate, is an estate service road (“ESR”). This is the road which is the subject of the claim for a declaration that it is not subject to a right of way in favour of the defendants, except in a very limited sense. The land to the west of the industrial estate, comprising the central part of the aerodrome is owned by a sister company (“Lomond”).

The so-called Green Lane runs from the B4022, to the west of the airfield, to the B4030 at Cookold's Holt Farm, Gagingwell, to the south-east of the airfield. It is divided into two parts (west and east) by the main runway ("runway 1"). For part of its length it forms the boundary between land belonging to the Great Tew Estate and land belonging to the claimant. This road is a public right of way, owned by the local authority, but not maintained by it. The Estate workers maintained it a little, but, until it was cleared in 2013, brambles and other other overgrowth made it difficult to use. But the evidence is that even before 2013 you could at least walk from one end to the other. Certainly, it is now easily accessible to motor vehicles.

This claim is framed in a negative way. The defendants have long claimed to enjoy a right of way over the claimant’s land, but have never taken any proceedings to vindicate their claim. As a result, the claimant has finally made the running, and has issued the claim. The particulars of claim say that the Great Tew Estate as such claims a right of way over the ESR for all purposes. The claimant admits that the owners of plots 2 and 4 (only) have a right of way, by prescription, for agricultural purposes only.

The defence and counterclaim dated 10 May 2016 says that the wartime British Government constructed an aerodrome on the land, partly belonging to the claimants and partly to the defendant’s predecessors in title. It says that this land was requisitioned from the then owners and was returned to them in the 1950s, when the ESR was constructed. It invites the court to infer that (though none has been found) there was a conveyance of the land in plot 4 to the owners of the Great Tew Estate, which moreover contained an express right of way granted to them over what is now the Enstone Industrial Estate. Subject to that, it asserts that section 62 of the Law of Property Act 1925 applies to convert rights or permissions exercised in relation to that Estate into rights of way, or that such a right would be a usual and apparent easement within the rule in Wheeldon v Burrows. If all of that fails, then the defence and counterclaim asserts that the defendants have acquired a right of way either by prescription or by the doctrine of lost modern grant. There is then a counterclaim for a declaration. The claimant then served a reply and defence to counterclaim dated 13 June 2016. This denies a number of important allegations, including those that an express right over the ESR was ever granted, expressly or impliedly, by any conveyance to the owners of the Great Tew Estate. Indeed, it puts in issue the existence of any conveyance by the government to such owners, as well as its effects.

At the trial before me Mr Alexander Hill-Smith appeared for the claimant, instructed by BrookStreet des Roches LLP, and Mr Nigel Thomas, instructed by Wansbroughs, appeared for all the defendants, except the third defendant, who neither appeared nor was represented. I am grateful to them for all their helpful submissions.

I heard evidence from the following witnesses. For the claimant were called Andrew Robson, senior partner of Sidleys surveyors, who managed the Enstone Industrial Estate for its then owners between 1990 and 1996, and Samantha Symons, a director of Ocarian Ltd, the company which is one of the two corporate directors, and the administrator, of the claimant company, incorporated in Jersey. For the defendants were called Richard Davies, Robert Cartwright, Paul Snell and Robin Vipond, who work now or worked in the past on the Great Tew Estate, the first defendant Nicholas Johnston, Paul Keyte, a quarry manager for the Great Tew Estate, Andrew Moss, a person who works in the motorsports industry, and Michele Nutt, formerly a director of the fifth defendant. In addition, I received a written statement made by the father of the first defendant, James Johnston, dated 30 April 2007, who has unfortunately died since it was made, and before these proceedings began. The latter statement was received with the benefit of a hearsay notice dated 22 June 2017.

I set out here my impressions of the witnesses. Samantha Symons was clear, calm, unflustered, and professional. She spoke quietly and had a straight answer for everything. Cross-examination made no impression on her whatever. I have no hesitation in accepting everything she said as true. Similarly, Andrew Robson, was clear, entirely professional, and (especially considering that he was only involved in the administration and management of the estate for 6 years between 1990 and 1996) had no axe to grind. Again, cross-examination made no impression, and I accept what he says as true without reservation.

Paul Keyte, a quarry manager, gave evidence in a straightforward and honest way. I had no doubts about his evidence, but he had a limited role.

Michele Nutt was a director of Vision Motorsports at the material time. She gave evidence in a clear, businesslike and straightforward way. I am satisfied that she was telling the truth.

Andrew Moss was involved in the motorsports industry and worked for Prodrive. He was intelligent, clear and straightforward in his evidence. He thought about his answers, although he was somewhat vague about dates. So far as it went, I accept his evidence.

Robert Cartwright was an estate worker based at the quarry to the west of Great Tew. He unfortunately could not remember important details of his evidence. In particular he could not remember where he had done particular work, although he remembered that time, because it was his first job. I must therefore treat his evidence with some caution.

Robert Vipond, a farm manager from 1963 for Major Robb, retiring in 2005, was an elderly witness who gave evidence to the best of his ability. He was based in a different part of the Estate. He was doing his best to help the court and I accept his evidence as far as it went. But there were some matters that he could not recall, and some where his evidence was too vague to be much use.

Richard Davis was a building and maintenance worker, employed by Major Robb, but taking his orders from James Johnston. He was based in the timber yard at Great Tew, just across from Court Farm. His evidence was limited, but I am satisfied he was telling the truth.

Paul Snell, who ran a syndicate shoot on the estate from 2000 to 2013, was an earnest witness but his witness statement had a number of mistakes in it and he had to correct them, including one important one concerning public access. I did not find his evidence particularly helpful, though I am sure he was trying to be helpful.

Nicholas Johnston gave an initial impression of being firm and quick to answer. He was certainly quick to answer the question when the answer was in his favour. But he became belligerent or blustering when it was not. He was unable to give a straight answer to many questions, instead launching into lengthy circumlocutions and historical descriptions. He sought to respond to difficult questions by insisting on giving what he called “context”, but which frequently constituted mere verbiage without any substance. He tried to explain one difficult letter (that from his father’s agent to the claimant’s predecessor’s agent of 5 July 1991) as to do with the improvement of security rather than the existence of a right of way, even though an earlier letter in the same correspondence (dated 28 May 1991) made absolutely clear that the question had “nothing to do with security”.

He confessed to minor mistakes in his evidence whilst ignoring more serious matters. For example, when it was put to him that in an email in August 2014 he had referred to a transaction establishing the right of way in his side’s favour in 1958, he accepted that the date was wrong (probably because, as he said, he was not around at the time), although he was then completely unable to point to any document or other transaction, whether in 1958 or any other time, which could have established the right of way in question. When he put forward a story to explain this or that point of difficulty, and it was pointed out to him that this was inconsistent with another contemporaneous document, he frequently fell back on the fact that he was only a boy at the time or was otherwise not there. He said that his errors did not show a casual attitude towards the truth. I disagree. Nicholas Johnston said whatever he thought was most likely to advance his case, without regard to the truth. Even in the witness box it was plain that he was making things up as he went along.

He wrote an email dated 13 August 2014 to the claimant’s solicitors which gives a flavour of the way in which he gave his oral evidence, belligerent and blustering by turns. In it he declared roundly that it was not for the defendants to prove that they had a right of way, but for the claimant to prove that they had not. He went on:

“Any attempt to block the right of way will immediate [sic] result in us cutting the lock or remove the obstruction. Any cost for any type of obstruction to our businesses will be costs that your client will have to bare [sic]. We will not be entering into any license [sic], we will not discuss any license …”

Then he said:

“In fact, just so we are completely clear on this issue, there is nothing I would love more than for you to litigate against the Estate on this issue. We have several existing statutory declarations on this matter from the first time it was raised … ”

So far as I am aware, the defendants did not disclose in the proceedings a single one of the “several existing statutory declarations on this matter from the first time it was raised”, although each of them would plainly be a disclosable document.

Nicholas Johnston accepted that Farm Aviation had been granted an express licence to use the ESR. But he saw no inconsistency with his position that the Great Tew Estate had a right of way and could sub-grant to its tenants. He also insisted that the Estate did not know about the licence between Tom Miller and Enstone Enterprises discussed below. Yet, after being taken to the correspondence he was constrained to accept that it did.

For all these reasons, I am afraid that I formed a negative view of Mr Nicholas Johnston’s willingness to give reliable evidence. As a result, I cannot put any weight on anything he says unless it is independently corroborated and from a reliable source.

As to the witness statement from the late Mr James Johnston, that is of course hearsay, but admissible under the modern law of civil evidence. I have to consider what weight to give it. Some matters are obvious. It is not made in or for the purpose of these proceedings, which were not even contemplated, let alone in existence at the time it was made. It was made pursuant to a request from the claimant that Mr Johnston should back up his claim to an easement over the ESR. So it was not made as a statutory declaration, or under oath, and no court sanction could ever have been applied if it turned out to be deliberately false in any particular. Secondly, Mr Johnston’s demeanour in making or confirming it could not be observed by me, unlike the other witnesses. Thirdly, Mr Johnston could not be cross-examined on his statement, again unlike the other witnesses. Fourthly, Mr Johnston was not an independent or disinterested witness. The existence of the right of way he claimed made a big difference to him because of the enhanced ability it would afford to exploit the lower parts of the estate through commercial activities.

These points must go to lessen the weight to be placed on his witness statement. In addition, the other evidence given at the trial made clear to me that, in certain material respects at least, Mr Johnston’s statement was incorrect, and it is hard to avoid the conclusion that either he knew it to be so, or he put it forward not caring whether it was correct or incorrect, because it served his interests. For example, in paragraph 33 of his statement he says this:

This paragraph attempts to explain away the inconvenient fact that one of his tenants obtained a licence to use the ESR from the claimant’s predecessor in title. Yet there is contemporaneous correspondence in 1991 between his agent and the claimant’s predecessor’s agent, between his agent and third parties, and between his agent and him, which demonstrates that he knew perfectly well that he had no claim to a right of way out of which he could licence his tenants to use the ESR. On the contrary, his agent told the flying club that Mr James Johnston was unable to grant a licence and that they must apply to the claimant’s predecessor in title for it (which they did, successfully). I will deal with this in more detail at the appropriate point.

Another example is in paragraph 8 of the statement, where Mr Johnston says that there were no complaints from the claimant's predecessor in title (Enstone Enterprises) regarding use of the ESR by Farm Aviation Ltd. But he omits to mention that Farm Aviation Ltd was granted a licence to use the ESR in 1972, which was terminated in 1990, and that (if he was not previously aware) Mr Johnston’s land agent, Steven Richards, was informed of this by letter from Enstone Enterprises’ land agent Andrew Robson, dated 28 May 1991. So it is not surprising that Enstone Enterprises did not complain.

A third example is this. Mr Johnston says in his statement (at [7]) that “over the years since 1961, use important to the Estate both generally and for farming, has been made of [the ESR] onto the airfield from the B4030 to the Estate area”, and (at [34]) that “all of our staff and family have always been free to pass through the industrial estate to access our land, visit tenants, shoot, view agricultural activities etc”. However, when Enstone Enterprises was concerned in 1991 to try to limit use of the ESR, it wrote to Mr Johnston’s agent Steven Richards to suggest that a licence be granted to Mr Johnston so that he could sub-license his tenants and their visitors, but the agent replied that, apart from two tenants (Mr Miller of the Enstone Flying Club and Mr Williams of Outdoor Action) Mr Johnston “has no other call on your access road hence his reason for not wanting to get directly involved with any licence which your client will grant” (emphasis supplied).

The difficulties I have with the evidence of Nicholas Johnston and that of his late father mean that greater reliance must be placed on the evidence contained in the contemporary documentary material available, in addition to taking into account the evidence of other witnesses that I did feel able to rely on, and also the inherent probabilities of the situation. On the basis of all the evidence and other admissible material before me, I find the following facts.

Before the First World War the Great Tew Estate formed part of the real property belonging to one Matthew Boulton, a bachelor. By his will dated 13 December 1912 he appointed various persons, including two of his four sisters and the Public Trustee, to be his executors and trustees, on various trusts, primarily for the benefit of his four sisters (Marianne, Ethel, Clara and Pauline) for life, with gifts over to their issue, successively. In the events that happened, however, all those trusts failed, and the trust fund was held for the benefit of named cousins of the testator alive at the date of the death of the last of the sisters or their issue. The three named cousins were Frederick Robb, Montagu Robb and Geoffrey Sturt.

The testator died on 14 July 1914. His will was proved in September 1914. In 1923 the residuary estate was conveyed to the testator’s sister Marianne and the Public Trustee as joint tenants on the trusts of the will. Ethel died unmarried in 1924. After Marianne’s death (also unmarried) in 1934, Geoffrey Sturt was appointed a trustee of the will together with the Public Trustee, and thereafter the residuary real estate was conveyed into the names of the Public Trustee and Geoffrey Sturt.

Frederick Robb died in 1948, leaving Major Eustace Robb as his only child. Two sisters of the testator were still alive, but the position if they died without issue was being considered. There was obviously some doubt over the validity of the gift over to the cousins and their issue. In December of that year the Chancery Division of the High Court declared that it was valid, and that, on the death of the last sister to die without issue, the surviving cousins and the issue of any pre-deceasing cousins should take an equal share (per stirpes) of the trust fund. Geoffrey Sturt died in 1952. Clara died unmarried in 1958. The last sister, Pauline, died unmarried on 4 May 1959. At that point the interests of the cousins or their issue, as remaindermen, fell in. Accordingly, Major Eustace Robb, being the only child of one of the three named cousins, now pre-deceased, took a one third share of the real estate. The Public Trustee, as sole trustee of the will of Matthew Boulton, acting under statutory powers on 7 February 1963 appropriated the mansion house at Tew Park and the Great Tew Estate to the share of Major Robb and conveyed it to him.

James Johnston appears to have trained and then been employed as a solicitor with Messrs Payne Hicks Beach of London, who acted as the Estate’s solicitors at some time. He does not explain (and there is no other significant evidence) how he came to form a partnership with Major Robb in relation to the Estate. Nicholas Johnston says that he must have moved to Great Tew in 1961-2. Perhaps more remarkably, there is no evidence as to how he became the owner of the Estate on the death of Major Robb (which is not even mentioned in James Johnston’s 2007 statement). There is no evidence of any sale (or gift) during Major Robb’s lifetime, and no evidence of any family relationship, such that he might inherit on intestacy, so I assume that the Estate was left to him by will. Why Major Robb should have done this is not explained. James Johnston is described by Richard Davis in his statement (at [2]) as “estate manager” when he started to work there in 1963.

Nicholas Johnston first became involved in the affairs of the Estate when he was a student at the London School of Economics in 1993 and 1994. In 1995 he became the day to day manager of the Estate. He appears to have inherited his father’s ownership of the Estate, and now makes all the decisions in relation to it. He claims to have handled all problems relating to access to the Great Tew Estate since the mid-1990s. The relevant parcels of land concerned in the present case are vested jointly in him and the second or fourth defendants, being companies which appear to be under his control, and they are registered as proprietors of the parcels at HM Land Registry.

It is clear that there was and is an aerodrome at the site. Yet there is virtually no material before me relating to the construction of the airfield. Nearly all the evidence I have is that of Ms Symons. In her witness statement she gives hearsay evidence of what the claimant was told by Air Historical Branch 1A (RAF) of the Ministry of Defence. This was that the land was requisitioned in the early 1940s by the Government as part of the war effort. This included a small part of the Great Tew Estate. Photographs made available to me show that the runways were constructed after December 1941. The site was named RAF Enstone and opened in 1942 as a satellite station for No 21 Operational Training Unit (Bomber Command). In 1945 it was transferred from Bomber Command to Maintenance Command, and then in 1946 to Flying Training Command. In 1948 it was deemed to be an “inactive retention station”, and in 1955 reduced further to “inactive status”. I have seen a plan dating from 1945 which shows the aerodrome in what appears to be its most developed state, with the longest runway extending at its north-east end into land which according to the conveyance of 1963 formed part of Great Tew Estate.

At some point, possession of the land requisitioned from the Estate had been returned to it. There is however a question mark as to exactly when. In the email of 13 August 2014 from Nicholas Johnston to the claimant’s solicitors, to which I have already referred, he asserts that the land was returned in 1958. He cites no source for this information. He has disclosed no document in these proceedings which gives that information, though if it existed it would plainly have been relevant. The source is unlikely to have been his father, for it is to be noted that James Johnston in his 2007 statement said he became directly involved in Estate affairs in 1960. On the other hand, he also said that the airfield had “recently been sold” ([2]), and that the handing back to the Estate was “at the time of the sale” ([3]). But that actually took place on 2 May 1961. Mr Vipond in his statement ([3]) however says it was “around 1959 or 1960” when the RAF left. I think Nicholas Johnston is simply mistaken about the date. He was not born then, and must have obtained the information from someone else. James Johnston may not have been there at the time, but he certainly came shortly afterwards, while memories were fresh. He also says “at the time of the sale” which is quite precise. But he cites no source of his own. Mr Vipond evidently was living locally at the time and would have been aware of the RAF’s giving up the site. On the whole, I prefer the evidence of Mr Vipond on this issue.

I must say something about the title to the major part of the aerodrome, that is, the land later conveyed to Enstone Enterprises Ltd, the predecessor in title of the claimant. This land was conveyed to the government as 3 separate parcels, in 3 separate conveyances, only in December 1950 and February 1953. In other words, the Government only acquired title to the land after the Second World War was over. None of the vendors was connected with any other. The recitals in each of the conveyances (being unregistered conveyancing) show unbroken title in the vendors and their predecessors going back well before the war. There is no evidence whatever that title to any of this land was ever acquired by the government before or during the war. On the other hand, each of the conveyances refers to the price being paid (by the Government) as being paid in part satisfaction of any claim which the vendors might have to compensation for the exercise of statutory powers of requisition. So it is clear from these documents that the Government constructed the aerodrome on land which it had requisitioned from the various landowners, but which it never acquired until after the war. Then, in May 1960, the Government sold all of these parcels to a Mr Horace Mole, who subsold to his company Enstone Enterprises Ltd. That company developed the south-east part, along the ESR, as an industrial estate in the early 1960s.

The evidence before me of the farming activities carried on at the Great Tew Estate mostly does not pre-date 1963, when Major Robb became owner on the conveyance from the Public Trustee. But Mr Vipond says that, after the RAF gave up the airfield site (which I have found to be around 1959-60), that land (ie plot 4) was farmed by someone called Jack Bury, who leased it from the Estate on a ‘Lady Day’ tenancy for arable farming until the 1970s. James Johnston says that in 1961 he set up Great Tew Farms as a partnership with Major Robb to farm Estate land. That obviously relates to land elsewhere on the Estate, not plot 4. It is not however explained how Mr Johnston could have entered a partnership with Major Robb to farm Estate land two years before Major Robb became owner. It is possible that Major Robb was allowed by the Public Trustee into possession of the Estate land after the death of the last sister of the testator in 1959, before the Trustee formally appropriated the land to him. But there is no evidence of this. Alternatively, “1961” could be a mistake for a later year, such as “1963”.

Some of the Estate was let to tenant farmers. One was Park Farm, let to members of the Tustian family. That farm (like most of the tenanted farms on the Estate) had its own access to the public highway, and plays no part in this story. Another was Beaconsfield Farm, let to the Parker family, and I deal with it below. The Estate’s own farming activities in the southern part of the Estate were based at Tracey Farm, before it was sold to the third defendant in 2013 (who makes no claim to any right of way in respect of its land). Access to Tracey Farm from the public highway was generally via the New Road. Nonetheless, it is clear from the evidence of Mr Vipond, as well as that of James Johnston, which in this respect I accept, that large agricultural vehicles, such as combine harvesters, intermittently used the ESR to access at least some of the farmland in the south of the Estate attached to Tracey Farm. But in my judgment it was not proved that this use was either constant or very significant, let alone that Enstone Enterprises or the claimant was aware of it. Indeed, in July 1991, James Johnston’s agent told Enstone Enterprises’ agent that Mr Johston had “no call” on the ESR apart from for two prospective tenants, and, although this was challenged by the agent for Enstone Enterprises, it was not because of agricultural use, whether for plot 1 or otherwise (see further [50]-[53] below).

A tenancy of Beaconsfield Farm (in the south-eastern part of the Estate) was granted in December 1961 by the Public Trustee to one Gilbert Parker. There is some suggestion that his family had been farming the land at Beaconsfield since 1942, but they have continued to farm that land ever since. In 1999, Richard Parker claimed a prescriptive right of way over the ESR for the benefit of Beaconsfield Farm. Of course, they were tenants and not owners of the fee simple. This claim was resisted by the claimant, who sought evidence in support of the claim. After correspondence between solicitors for both sides, the claim to a prescriptive right must have been dropped, for in 2001 Mr Parker entered into a licence agreement with the claimant at an annual fee of £250. It appears to have expired a year later without being renewed. In December 2005 the claimant’s solicitors wrote to the Parkers informing them that the claimant intended to close off access to the ESR from the Great Tew Estate. In fact that did not happen. There was further correspondence in 2006. Finally, in December 2006 the claimant’s solicitors informed the Parkers of their intention to install new gates at the boundary with the Great Tew Estate to prevent unauthorised access to the ESR, but offered them a licence to use the access by way of electronic card on certain terms. So far as I am aware, the material before me does not show what happened after that.

I have already said that, when the Government sold most of the airfield in 1960, the purchaser was Horace Mole, who in fact procured a conveyance of the land to his company, Enstone Enterprises Ltd. It developed the part of the airfield along the ESR as an industrial estate. At that time, the entrance to the site from the B4030 was further to the west of where it now is. In 1970, planning permission was sought and obtained to construct a new entrance to the estate further to the east. The evidence does not disclose exactly when it was constructed, but it must have been in place by 1978. The old entrance was stopped up in around January 1979, as a result of planning consent granted to Enstone Enterprises in October 1978 in relation to the holding of open markets on the airfield on each Sunday of the year throughout 1979.

Throughout the period of its ownership, Enstone Enterprises attempted to control use of the ESR by persons not belonging to or visiting the industrial estate on its land but passing across it to reach the Great Tew Estate. It did this by means of granting (and sometimes terminating) licences, and also by installing gates. I deal with this aspect in more detail below.

Enstone Enterprises sold the northern part of the airfield land to a Mr and Mrs Markham in May 1986. Their title to the rest of the land was registered at HM Land Registry in March 1994. In October 1996 Enstone Enterprises divided and sold all their remaining land to (1) Lomond Holdings (the airfield itself) and (2) the claimant, Leven Holdings (the industrial estate). Lomond Holdings and Leven Holdings are sister companies, controlled by the same persons.

Farm Aviation Services Limited was a company which ran a commercial crop spraying enterprise for farms. This company was based in East Anglia, but was invited by Mr Johnston to use the airfield to carry out crop spraying and seeding of Estate farmland in the 1970s and 1980s. This was a seasonal activity, and not a constant one. But during the summer there were two aircraft running all day. Fertiliser was delivered to the airfield on large flatbed lorries which accessed the airfield over the ESR. Others involved in the work (including the pilots and fuel delivery lorries) also used it.

However, the company did not use the ESR as of right. It was granted a licence to use the ESR in 1972, at an annual rate of £64, including the use of water. The licence was terminated as from 30 September 1990, by letter from Enstone Enterprises’ then agent, Harris Evans, dated 21 May 1990. A letter in May 1991 to Mr Johnston’s land agent, Steven Richards, from Enstone Enterprises’ land agent Andrew Robson reminded him of the licence and its revocation.

From 1978 to 1981 most of the Estate’s elm trees were attacked by Dutch Elm disease. Thousands of trees had to be felled, and the airfield was used for storage. The tree trunks were moved from where they had stood on the estate onto the airfield. The farmworkers used the ESR to access the airfield because of the size of vehicles used. In 1981 a mobile band mill was brought in to saw and plank the trees so that they could be dried. The timber was sold to and collected by furniture companies during 1982 and 1983. They too had to access the airfield via the ESR. There is no record of any licence being granted by Enstone Enterprises to use the ESR, nor indeed that Enstone Enterprises even knew about it.

In 1990 there was an incursion onto the airfield by travellers, who in the contemporaneous correspondence are also referred to as "hippies". A first incursion had been dispersed in June. However, they had returned by November. James Johnston had a correspondence with Mr Mole of Enstone Enterprises about them. Mr Mole put Mr Johnston in touch with Andrew Robson as the company’s agent. He attended a meeting of interested persons at Mr Johnston's house in December 1990. In January, notices to leave the site were distributed and a court order was obtained which was executed on 1 February 1991. The police escorted the travellers and their vehicles from the Great Tew Estate over the ESR to the B4030 public highway.

Having cleared the site, Mr Johnston and Enstone Enterprises considered what security ought to be provided to prevent the further incursion. Mr Johnston suggested that the main entrance from the public highway should be protected with fencing and gates, which even when open, would indicate that it was an entrance to private property. Enquiries were made therefore to different companies for the provision of barriers and gates. In the short-term, security staff were employed at the site to prevent a recurrence. However, by November 1992 Enstone Enterprises had decided that automatic gates with associated fencing should be placed inside the main entrance to the industrial estate. The gates were intended to be open during the day but closed at night. Those who were authorised to use the ESR would be issued with a card to operate the gate at night. The main gate was installed in early 1993, and became functional from 1 March 1993. Mr Robson arranged for cards to be provided to those authorised to use the ESR. This list included the tenants of the industrial estate, and Mr Miller and Mr Biggs (referred to below) but did not include Mr James Johnston. At Christmas 1993 the usual opening of the gate during the day was suspended until 4 January 1994, and access was by card only.

However, problems were encountered with the gate. Sometimes unauthorised persons simply broke open the gate (held closed by a magnetic strip) with the bumpers of their vehicles. Sometimes the gate did not work properly, and at other times it was vandalised. Mr Robson had frequent contact with the security firm who patrolled the site from April 1994 (every night during the week and all day at weekends), and who occasionally had to warn trespassers off. It is clear that, during the time that Mr Robson acted as agent for Enstone Enterprises, he made considerable efforts to attempt to restrict passage along the ESR to those who were authorised by Enstone Enterprises Ltd. When incidents of trespass were reported to him, he took appropriate action to deal with it, rather than simply acquiescing. It must have been obvious to anyone entering the main entrance to the industrial estate, as Mr James Johnston had suggested, even when the gate was open, that it was a private estate and that entry was subject to control, even if there was no one present to exercise control at that time. It would have been even more obvious at night, when the gate was closed. In addition to the main gate at the entrance to the industrial estate on the B4030, a second gate was erected towards the northern end of the ESR by unit 21 on the industrial estate. There was another gate at the boundary between the industrial estate and the Great Tew Estate but at this time that gate was broken and never functioned until the claimant took over as owner of the industrial estate.

Tom Miller, of the Enstone Flying Club, on 4 March 1991 had written to Andrew Robson, on behalf of Enstone Enterprises, saying that he hoped to take over the hangar on the airfield formerly occupied by Farm Aviation, and enquiring about the possibility of obtaining a licence to use the ESR to pass from that part of the airfield forming part of the Estate to the public highway. I will return to Mr Miller shortly.

But this and other approaches to Mr Robson prompted him, on 28 May 1991, to write to Mr Johnston’s agent, Steven Richards, to suggest that Mr Johnston should obtain a general licence from his client for all his own and his tenants’ use of the ESR:

“My reason for writing to you today has nothing really to do with security, but more with formalising an informal agreement by way of right of access through the industrial estate and on to the Great Tew Estate's land. You will be aware that there is in fact a double gate on the boundary [between the industrial estate and the Great Tew Estate] but that this is broken down every time it is locked. I understand that you do have one or more tenants up in the hangers there, and they do use the estate road without any formal consent or payment being made by the Great Tew Estate for such licence. They also have free use of water from Enstone Enterprises Limited.

This matter really should be tied up and I think some form of licence to Great Tew Estate allowing them to grant licence to their tenants to go over this land, should be formalised. I also understand that you have are talking to a firm called ‘Outdoor Action’ who have also been in consultation with us. We are not prepared to lease them an area of land for motor vehicular activity, but we will lease them an area of land should they require it, for an archery field. They have led us to believe that they are talking to you about a site at the top of the airfield and that the access would be through the industrial estate.

You will be aware that there was a licence agreement with Farm Aviation Services in relation to access and to the use of water. This has now ceased although the water supply is still running! I would suggest, therefore, as mentioned above, a licence agreement direct with Great Tew Estate giving you powers to grant access through the industrial access and allowing you to charge for that. Perhaps you would be good enough to give this some thought and let me have your opinion."

This letter was sent on by Mr Richards to James Johnston on 13 June 1991. On 5 July 1991 Mr Richards on behalf of Mr Johnston replied to Mr Robson. His letter included the following:

As can be seen, Mr Johnston declined to enter into a licence agreement with Enstone Enterprises, on the basis that only two tenants, actual or potential (Messrs Miller and Williams) needed to be able to use the ESR and that he had “no other call” on it. Mr Robson replied to Mr Richards’ letter on 16 July 1991.

He pointed out that there were more than two persons using the ESR to get to the Estate:

“We would hold that there are considerably more users on your client side of the airfield then you at present claimed there to be. For instance, at a recent visit there were at least 4 microlight aircraft outside the new farm aviation hangar which is sited on your clients land. The only access to that site is through the industrial estate and therefore one presumes that either they are using this hanger without your permission or that they are in fact already licensees of yours and are using our access without permission. Also, you have a woodman operating out of one of the sheds up there and he is certainly using the access through the industrial estate without consent.

If your client does not wish to deal directly with Enstone Enterprises Ltd then it will be necessary for us to grant individual licences to all the users at that end of the airfield. Accordingly, I would be most grateful if you could provide me with any information you have concerning any licences/leases which you may have with other users and who may be using the estate road as access."

Mr Robson then mentioned an alternative possibility, which was for Enstone Enterprises to buy the top end of the airfield from Mr Johnston.

Mr Richards sent this letter on to Mr Johnston on 19 July 1991, together with a copy of his own reply to Mr Robson. In that reply, Mr Stevens mentioned Mr Williams and Mr Miller again. Then he said:

“Mr Biggs [the “woodman”] is a separate case. He does not pay any rent and he is allowed to occupy the Nissen hut for sawing logs. Mr Johnston finds him a useful person to have around as he keeps an eye on everybody and everything. I hope your clients can tolerate Mr Biggs using the estate road from time to time, but if they cannot do so then Mr Biggs will have to make his way over the Great Tew Estate.

Apart from these 3 occupiers, there should be no one on the Great Tew Estate making use of the private road through the industrial area...

I will mention the possibility of selling the top end of the airfield to your clients to Mr Johnston, but I can tell you now that he is unlikely to show any interest regardless of how big a figure may have in mind."

So in that letter Mr Richards introduced a third person using the ESR (Mr Biggs), confirmed once more that no one else on the Great Tew Estate should be using it, and all but dismissed the possibility of Mr Johnston wishing to sell his part of the airfield. It is interesting to compare that letter with a letter sent some years later, on 1 April 1999, by Mr Richards to Mr Robson's successor as agent, Mr Seares of Cluttons. He was acting for the claimant as successor to Enstone Enterprises. The claimant by this time was intending to stop all access to the Great Tew Estate along the ESR, and not just at night.

In that letter, Mr Richards said this:

Mr Biggs and his son occupied a Nissan hut on that part of the airfield forming part of the Great Tew Estate during the 1980s and early 1990s. They collected wood from around the Estate, prepared it for sale, and sold it on to the public. Both they and their customers accessed the hut via the ESR. They were not paid by the Estate, but neither were they charged for the use of the hut or the taking of the wood. In effect, they were tolerated trespassers, so far as the Estate was concerned. As Mr Stevens said, Mr Biggs was a useful person to have around.

Mr Robson on behalf of Enstone Enterprises, having become aware of Mr Biggs’ existence, dealt with him initially in the same negotiation as Mr Miller. I deal with Mr Miller below. But by 1993 Mr Robson was dealing with Mr Biggs on his own. They agreed terms for the grant of a licence to him to access his hut on the Estate through the industrial estate. However, Mr Biggs did not pay his licence fees on a regular basis, and ultimately in July 1994 Mr Robson terminated the licence and instructed the security services who were retained to control access to the industrial estate not to allow Mr Biggs to use the ESR any more. He apparently left for some time, although he returned later.

Nicholas Johnston in his witness statement says that when he "returned from University and started managing the Estate on a full-time basis in 1995, [he] ended [the ] arrangement [with Mr Biggs] and the Biggs moved on." But I find that Mr Biggs’ position had already become untenable because he no longer had any right of access to the hut on the Estate. At all events, Mr Biggs (and his customers) were no part of the business activities of the Great Tew Estate, and did not use the ESR as of right, but only by licence of Enstone Enterprises, which was ultimately withdrawn.

There were also two other persistent trespassers at this time, whose names appear in the documents as simply Richard and his son Philip. They had lived in a caravan by the hangar on the airfield for many years. Eventually Richard moved away, but by April 1999 Philip was still there and the Great Tew Estate wanted to move him on. However, by May 1999, he had gone too, together with the caravan.

One of the two cases mentioned by Mr Richards was Richard Williams of Outdoor Action. Mr Williams appears to have become a licensee of the Great Tew Estate in July 1991 in respect of an area on their land for the purpose of carrying on outdoor activities. He also entered into a licence agreement with Enstone Enterprises on 18 July 1991 for the use of unit 6A on the industrial estate (for storage) for the period 1 August to 28 September 1991, and a licence to use the ESR from then until 28 September 1992. But when the latter expired it was not renewed, although a new licence had been proposed. In fact Outdoor Action had already stopped trading.

The other licence agreement entered into at this time was with Mr Miller, of Enstone Flying Club. As already mentioned, in March 1991 Mr Miller contacted Mr Robson, as agent for Enstone Enterprises, to say that he was trying to acquire a 20 year lease of the hangar formerly occupied by Farm Aviation. But he also needed a right of access from the public highway, and wanted to know if Enstone Enterprises could assist. Mr Robson responded saying that his clients had instructed him to try to agree terms with Mr Miller for access via the ESR, in the form of a licence annually renewable. Mr Miller was happy with this, but still had to finalise his agreement with the Great Tew Estate for the use of the hangar. These negotiations went on for some considerable time, and it was not until November 1992 that the matter was ready to proceed.

In a letter dated 9 November 1992 from Mr Johnston's agent, Steven Richards, to the estate's solicitors, Payne Hicks Beach (ie Mr Johnston’s former firm), discussing the proposed lease by the Estate to Mr Miller, Mr Richards said this:

This letter demonstrates quite clearly that Mr Johnston was well aware that there was no right which he enjoyed and which he could sub-grant to his tenants to pass over the ESR to the public highway. Moreover, it demonstrates that Mr Johnston was well aware that there was in fact another route to the public highway, via the so-called "Green Lane". But it is odd that in the lease granted to Mr Miller by Mr Johnston there was a provision purporting to give access to the B4030 via the ESR, although it was couched in terms of "in so far as the landlord can grant the same". Yet in a letter written to Mr Miller on 5 July 1991 Mr Richards (on behalf of Mr Johnston) says that his principal “cannot offer you access through the adjoining industrial estate".

The terms of the licence granted to Mr Miller by Enstone Enterprises were documented in a letter of 11 November 1992 from Mr Robson. Enstone Enterprises had decided to install a gate at the top end of the ESR and provide keys to its licensees. This letter dealt with access both for Mr Miller and also for Mr Biggs. Mr Miller replied by letter dated 14 November 1992 accepting the terms set out in the letter of 11th November both on his own behalf and on behalf of Mr Biggs. He had some queries on the details of how access would work in practice for his clients, but in principle he agreed.

When the claimant bought the industrial estate from Enstone Enterprises in 1996 it considered what to do about the use made of the ESR by visitors to and tenants of the Great Tew Estate. Its agent Mr Seares recommended that notice be given to bring licences such as that of Mr Miller to an end and that work be done to upgrade the non-functional gate at the boundary between the industrial estate and the Great Tew Estate so that it was permanently locked. Evidently nothing happened for a while. But in early 1998 the agents obtained quotations for two sets of gates: one by unit 21 of the industrial estate (at the north end) and the other on the boundary with the Estate. The gates were erected by the summer of 1998, but at this stage not yet locked. When one of them was damaged Mr Miller was asked to repair the damage and he did so. However, it is clear that the suggestion had been made to Mr Miller that the claimant would terminate the licence that he enjoyed. Representations were made on his behalf by Mr Richards (by his letter of 1 April 1999, referred to above) but in July 1999 the claimant's solicitors wrote to Mr Richards amongst others to say that the "informal access to the Great Tew Estate over our client’s industrial estate will be closed with effect from 1 September 1999".

This provoked correspondence from Mr Miller by letter dated 28 July 1999 to Mr Seares, asking the claimant to reconsider its decision. It also provoked a letter from Nicholas Johnston to Mr Seares on 12 July 1999 (headed "without prejudice") in which he said that he had passed the letter from the solicitors "to our solicitors, Payne Hicks Beach, who will be advising us on this matter. Suffice to say that the Great Tew Estate and its tenants have enjoyed this permanently unhindered access for many years." Mr Seares passed this letter on to the claimant’s solicitors, commenting, in relation to the claim to have enjoyed "permanently unhindered access for many years", that "I am not aware of this and I am not sure that they are able to prove their case", and that he had asked Nicholas Johnston to write further setting out his argument. But Mr Johnston never did.

The claimant subsequently agreed a licence with the Parkers of Beaconsfield Farm. It also appears that the licence to Mr Miller for the flying club was allowed to continue for the time being. However, in December 2005 the claimant’s solicitors served notice to terminate the licence from March 2006. New gates were installed at the north end of the ESR and locked with padlock and chain.

In September 1985 Enstone Enterprises (first through its directors, and later by its agents) gave permission to motorcar clubs to carry out occasional rallies, driving tests and other special events featuring motorcars on that part of the airfield which is owned. A large number of different organisations held such events. By May 1991 Enstone Enterprises had interest from at least three different organisations for more or less permanent events. These were Tom Walkinshaw Racing, Drive-It-All and Outdoor Action. By the end of May Enstone Enterprises had agreed to negotiate with Drive-It-All.

One of the other companies which sometimes used Enstone was Pro-Drive. They carried out power testing on the runway. In 1992 and 1993 Andrew Moss of ProDrive organised small events through Tom Miller at the flying club. Andrew Moss walked around the Great Tew Estate and thought it would be perfect for rally events. In 1994 Andrew Moss was introduced to Nicholas Johnston. They agreed to organise an event on the Estate. This was successful, so another followed. There were more and bigger events in 1995. Nicholas Johnston did not tell his father about this activity (although his father was the owner of the land) as Nicholas felt that his father would not approve. Thereafter, there were up to 12 days of rallying per annum. A large number of vehicles (including hospitality and catering, radio operators, marshals, a recovery vehicle, ambulances, engineers and so on, as well as the drivers and their guests) would access the airfield using the ESR, although access was also available from the north, on the (local authority maintained) road to Tracey Farm from the Ledwell Road. This latter access was significantly improved in the 1990s, and was used in particular by clients. James Johnston was approached about the rallying activities in 1996 and in the event supported it. In about 1998 – 99, the hub of the rallying operations was moved to Tracey Farm although the rallying itself was still carried out on the airfield land. This lasted until 2001, when ProDrive decided to concentrate its efforts elsewhere because of an outbreak of foot and mouth disease.

ProDrive was replaced by Vision Motorsport. It ran driving events from 2002, developing the existing routes on the land. Initially their offices were at Tracey Farm. Mostly Vision Motorsport accessed their offices from the north, without using the ESR. But staff would use the ESR to go to a café on the industrial estate for lunch. Also, guests would be taken by minibus to a public house in Church Enstone via the ESR, until May 2014, after which they were taken via the Green Lane. Customers were told to come in along the Green Lane, but would often use the ESR instead. This was problematic because in this way the customers were not able to access the parking that had been made available for them. They would have to go back down the ESR and go round to the Green Lane. In 2013 the Estate sold Tracey Farm to the third defendant. So Vision Motorsport’s offices were moved to the airfield, and a new lease was granted to it in May 2013. Thereafter instructors, photographers and staff started to use the ESR on a regular basis. But I find that the claimant was not aware of this. There were no regular security guards during the day and it was therefore very hard to police the use of the ESR during this time.

During this time, there were a number of occasions when the company's activities were alleged to constitute a trespass on other parts of the claimant's land or that of its sister company Lomond, or that normal business activities of the lessees of those companies were disrupted. It is not necessary to deal with these separately, but undoubtedly they contributed to a feeling of distrust between the claimant and the Estate and its tenants.

Many of the company's activities required planning permission. An application was made in 2004 but refused. A further application was made in 2005 which was granted subject to conditions. A further application was made in 2007 but later withdrawn. That application was in effect renewed in 2008, making clear that access from the public highway would be from the north. In 2010 a further application was made to vary some of the conditions that had previously been imposed by an earlier planning permission, so as to increase the number of days on which motorsport activities could take place to a maximum of 90 days. This application was granted.

A yet further application for planning permission was made in 2013. The latter application included an intimation on behalf of the applicant that there would be

Vision Motorsport held events at other sites as well. In 2012 it used a car transporter to take cars to those sites. Because the transporter was a large vehicle it used the ESR. If Vision Motorsport wanted to use the ESR at night they would need to contact the security guard on duty to let them through the main gate. So Vision Motorsport were aware that access was controlled. But in about November 2012 the transporter was sold and no longer used the ESR. In 2013 Vision Motorsport was approached by the claimant to negotiate a licence for use of the ESR. Ms Symons says in her statement, and I find, that one reason for doing this was to try to prevent the dispute escalating to litigation. However, when Vision Motorsport contacted Nicholas Johnston it was told that the Estate had a right of way over the ESR and therefore it did not need a licence, and neither did its tenants. Vision Motorsport accordingly did not enter into a licence agreement with the claimant.

As a footnote to this part of the story, Michele Nutt said in oral evidence (and I accept) that the company was sold on 12 December 2016 to a company called GT 2016 Ltd, belonging to Nicholas Johnston. She and her fellow director resigned their directorships in May 2017. Nicholas Johnston is now a director of Vision Motorsport, as well as its beneficial owner.

I also add that Paul Snell also rented out the rally course from Vision Motorsport on a commercial basis on some Saturdays in the period 2011 to 2014. About 70 people would access the site on the Estate over the ESR. The vehicles included a car transporter, a hospitality unit, mobile toilets and a first aider.

Richard Davies gave evidence in his witness statement that the hunt which ran on the estate would take place perhaps a couple of times a month during the season from the 1960s until the early 2000's when shooting started to happen on the estate. He said anyone following the hunt would use the ESR to get onto the airfield, and that no one was ever stopped from using this route for hunt purposes. Mr Vipond also confirmed that when the local hunt came through the estate people following the hunt would use the ESR to get onto the airfield to see the hunt. He also said that he would be told when the hunt was coming, because it was recognised locally that you needed consent to cross someone's land, and he was the farm manager.

From 2000 to 2013 a syndicate shoot on the southern parts of the estate was organised by Paul Snell as a commercial activity of his own, rather than as an employee of the Estate. This included the land around the airfield. There was pheasant shooting from July to February and rabbit shooting in September. Mr Snell also shot foxes on the airfield. On most occasions that he went to the airfield for this purpose he would use the ESR.

Robert Cartwright gave evidence in his witness statement that in 2002 he and others carried out quarrying operations on the east side of the area used by Vision Motorsport on the Estate. The digging machine had to come in via the ESR as the only suitable access. Holes were dug to a depth of about 7 m, although no block limestone was found. Small stones that would be useful for construction were taken away from the site on lorries using the ESR. In summer 2003, when work was being done on buildings at Tracey Farm, they went back to the airfield to quarry for more limestone. They used 20 tonne 8 wheel lorries to collect the limestone aggregate from the quarry site. There would be multiple journeys made back-and-forth via the ESR. The drivers and workers were not stopped or questioned about their use of the ESR. Also during the Tracey Farm work in 2003 the airfield was used as a place to crush stone in order to make a road. The lorries would have used the ESR to go back and forth, because there was no more suitable route.

For up to 4 years after May 2008 a manufacturing company specialising in block paving called Marshalls used the airfield to store palettised stone. It would be brought to the airfield from the quarries, then taken away, processed and returned to the airfield for storage. Articulated lorries were used to move the stone, and their route was via the ESR. The drivers use of this route was not questioned or stopped.

In relation to all these various activities, there was no evidence that the claimant was aware of the use of the ESR. In each case it was for limited periods, two, one and four years at most, and was not constant.

In July 1999, as already mentioned, the claimant was intending to close the ESR as a means of access to the Great Tew Estate, and there were discussions between Mr Miller of the flying club, Mr Parker of Beaconsfield Farm, the Johnstons and their agent, and the claimant and their agent. Nicholas Johnston in a letter told Robert Seares (the claimant's agent) that he had referred the matter to the Estate's lawyers

In October 2004 Nicholas Johnston took up the matter again. He wrote to the claimant's solicitors stating

“We have an established right of way over your clients land on the Enstone Airfield which we and our agents have used on an uncontested basis both prior to the airfield construction and since the airfield's construction. The access route from the end of the industrial estate to the boundary of our land has deteriorated over the years and it is our intention, at our cost, to repair and improve this right of way. We propose to do this shortly, before the onset of winter."

The assertion that there was an established right of way was challenged by a reply from the solicitors of 21 December 2004, which also refused permission or consent to carry out any works to the ESR:

“We write with reference to your letter dated 12 October 2004 and apologise for the delay in responding. We note in your letter you state that you have 'an established right of way over [the claimant]’s land on the Enstone Airfield which we and our agents have used on an uncontested basis both prior to the airfield's construction, and since the airfield's construction'.

This statement is of course entirely incorrect and you may recall that there was correspondence between us dating back to 1999 and which, looking at our file, culminated in a letter to you dated 21 June 2001 where we asked you to answer a number of questions but which you subsequently refused to deal with and simply responded on 22 June 2001 referring us back to previous correspondence.

In the circumstances it is clear that our client does not accept that you have any prescriptive rights over their land and therefore the statement that you have made in your letter of 12 October is both factually and legally incorrect.

In the circumstances, you do not have our client's permission or consent to carry out any works to the access route referred to in the second paragraph of the letter of 12 October and any attempts which are made by you to carry out works will be seen as a trespass. As a trespass, our client then has the right to instigate legal proceedings against you to seek an injunction and/or damages."

There is no evidence that the repairs or improvements proposed by Nicholas Johnston were ever carried out, and I find that they were not. A year later, in December 2005, the claimant's solicitors wrote again to the Great Tew Estate, to inform them that

Payne Hicks Beach replied on behalf of the Great Tew Estate in February 2006, apologising for the delay in responding, and for the fact that they would not be able to deal with the letter for some time, because the person concerned was busy with other matters. In the event, they responded substantively on 21 March 2006, threatening that

On 22 March 2006 the claimant’s solicitors responded referring to the correspondence that had already passed between the respective clients and complaining that

On 8 December 2006 the claimant’s solicitors wrote again to Payne Hicks Beach to say that they had not had a reply to their letter of 22 March 2006 and to inform them that the claimant would be

Payne Hicks Beach replied on 22 December 2006 They referred back to the letter of March 2006 and stated that

Payne Hicks Beach replied on 1 February 2007 to say that they were gathering evidence, having visited the estate and inspected the roadway in question, having seen historic plans and having interviewed and discussed the matter with a number of people. Based on their investigations they considered it

On 30 April 2007 Payne Hicks Beach sent to the claimant's solicitors the statement by Mr James Johnston which has been admitted in these proceedings. They asked the claimant solicitors to admit the right of way. The claimant solicitors responded on 21 June 2007 denying that this statement substantiated the allegation of a right of way, at least for non-agricultural purposes. They reserved their position in relation to agricultural purposes, which they said the claimant was currently investigating. Accordingly, pending the further investigations, the claimant would not prevent access for those purposes, but it would close the gates to prevent general access. They invited Payne Hicks Beach to provide details of persons requiring access for agricultural purposes. I have not been able to find any continuation of this correspondence.

In August 2009 Nicholas Johnston once again wrote, to inform the claimant's agent that he proposed to exercise what he called

In October 2009 Nicholas Johnston again contacted the claimants agent "to confirm details of the repairs we propose to undertake at our expense under our common law rights to the access road leading onto the Great Tew Estate at the far end of the Enstone Industrial Estate". There is no evidence before me that these repairs were ever carried out. I find that they were not.

On 24 October 2013, the claimant's solicitors wrote to Vision Motorsport about the planning application which they had made for change of use of premises, and as part of which it was proposed that access be gained to their premises over the ESR. The letter said in part:

In July 2014 the claimant’s solicitors wrote again to Vision Motorsport complaining that their staff and visitors were using the ESR to gain access to their new offices at the eastern end of the airfield, and requiring them to desist from doing so. This prompted an email from Nicholas Johnston dated 28th of July 2014, maintaining that the Great Tew Estate has had

Finally, on 8 December 2015 a letter before action was sent by the claimant’s solicitors to Nicholas Johnston, with a copy to Vision Motorsport.

As a general proposition, I find that the claimant and its predecessor Enstone Enterprises were not aware of specific use of the ESR by the Johnstons and the Great Tew Estate’s tenants and visitors at any time of the day or night before the main gates were installed in 1993 after the travellers’ incursion. Since the industrial estate would receive authorised users all day long, there would be no easy way for them to distinguish these others from such authorised users unless there was something exceptional. Before the travellers’ incursion, there were no security guards at the site. Even after security staff were employed at night during the week and over the weekend and the gates were installed, it would not have been practical to stop and interrogate every vehicle seeking to enter the industrial estate. And Mr Johnston via his agent had assured Enstone Enterprises’ agent that, with the exception of two specific prospective tenants, he had “no call” on the ESR, so there was no reason why they should be looking out for his use of it. Mr Vipond told me in evidence (and I accept) that he never had any contact with Enstone Enterprises or Mr Mole.

However, both the claimant and Enstone Enterprises were aware of incidents of use when something happened, such as damage being caused, or reports of rally visitors driving along the ESR at speed, or specific use by specific persons or for the purposes of specific businesses such as Mr Miller's flying club, and Mr Williams's Outdoor Action. As I have said, when specific incidents of trespass were reported to Mr Robson, he would take appropriate action, eg by instructing the security guards to move trespassers on. There was no ‘acquiescence’ on his part.

The issues which arise are the following. First, was there a conveyance by the government to the former owners of the Great Tew Estate of land forming part of Elstone Aerodrome? If there was, did it contain, expressly or impliedly (whether by virtue of section 62 of the 1925 Act or the rule in Wheeldon v Burrows), any grant of a right of way over the ESR in favour of the Great Tew Estate or any part of it? If not, has a right of way been acquired by prescription in favour of any part of the Great Tew Estate? If yes, what is its extent? If no, has such a right of way been acquired by the doctrine of lost modern grant? If yes, what is its extent?

The first question is whether there ever was a conveyance by the government to the former owners of the Great Tew Estate of land forming part of Enstone Aerodrome? There is a chain of conveyances from the wartime owners of most of the airfield to the Air Ministry, and then to the claimant’s predecessor in title (Enstone Enterprises) of the land. But there is no corresponding chain of conveyances from the trustees of the family settlement which owned the Great Tew Estate before the war to the Air Ministry (or any other government department) and then to the first defendant’s predecessors in title of the land. Yet, according to the statement of the first defendant’s father, Mr James Johnston, this part of the Estate was compulsorily acquired during the war from those trustees and subsequently returned to them after it. I remind myself that the third defendant, which now owns part of the land comprised in the Great Tew Estate south of the Ledwell Road (known as Plots 2, 3 and 5), plays no part in these arguments. Its solicitors, Macfarlanes, wrote on 5 January 2016 that it made no claim to a right of way over the estate road. Although the claim was issued against the third defendant among the others, it was never served on that defendant.

The disclosure on the part of the other defendants is, at least by comparison with that given on behalf of the claimants, lamentably thin. No convincing explanation was given as to why there should have been so few relevant documents found and disclosed by those defendants compared to those which the claimants disclosed. There is no evidence of any catastrophe befalling the records of the defendants and their predecessors in title. On the contrary, there seems to be an uninterrupted progression from one generation of the defendant’s predecessors in title to another and nothing to prevent full access to records being made available. Nicholas Johnston said records were limited because others had been retained by the Public Trustee. Even if it were true that the Public Trustee retained documents, it would still have been possible for the defendants to inspect them. So I reject Mr Johnston's explanation.

Only one conveyance of the land concerned is available from the defendants’ side. This is that of 1963, by the Public Trustee in favour of Major Eustace Robb. Indeed, the strange thing about this conveyance is that it entirely omits to mention any question of requisitioning, or compulsory or even voluntary acquisition, of the land by the government at all. It shows a clear chain of title dating back to 1914. If there really had been any compulsory acquisition of the land and then any return of any of the land to the trustees, then one would have expected to see documentary evidence of it, and moreover one would not have expected to see a conveyance dating back in its recitals to events occurring in 1914 without referring to such acquisition or requisitioning.

Mr Thomas for the defendants (except the third) argues that in the wartime period the government built and occupied a military aerodrome at Enstone, which extended at its north-east end to land which according to the conveyance of 1963 formed part of Great Tew Estate, and some time after the war returned this land to the possession of its previous owners. I accept that the plans of the land dating from 1945 show that part of the longest runway of what was then known as RAF Enstone extends from the land of the claimant’s predecessors in title into the land of the defendants’ predecessors in title, and I have found that the aerodrome itself was built during the war years. I also accept that the defendants are now in possession of the land concerned, under the 1963 conveyance. Mr Thomas further says it would be unusual for a wartime government to construct a military aerodrome without taking ownership of the land concerned. However, it is clear from the conveyancing documents in the bundle, and to which I have already referred, that the government only became the owner of the major part of the aerodrome site (to the south-west of the Great Tew Estate) in 1950 and 1953, and then sold it to Mr Mole and his company Enstone Enterprises Ltd in 1960. So that is exactly what the Government did.

Mr Thomas nevertheless asks me to infer from these primary facts that (i) the government nonetheless acquired the ownership of the north-east corner of the aerodrome from the Great Tew Estate during the war, and (ii) reconveyed it some time in the 1950s. Mr Thomas asks me further to infer that (iii) the inferred reconveyance was before the date of the conveyance to Enstone Enterprises in May 1960.

It is a further odd feature of this case that there is no clear evidence before me of the date when the possession of the land was given by the government back to the trustees of the Estate. One might have thought that there would be some documentary evidence of this important event, but there is none. I have already commented on the unsatisfactory nature and extent of the defendants’ disclosure in this case. Mr Vipond says in his statement that it was “around 1959 or 1960”. However, one might have expected that Mr James Johnston, who after all was a solicitor with Payne Hicks Beach, the trustees’ solicitors, during the 1950s, and who provided a witness statement in 2007 in support of his own claim to a right of way across the industrial estate, would have recorded this important fact in that witness statement, but he, a trained solicitor, did not do so. Instead he simply says that it was “at the time of the sale” to Enstone Enterprises, which was in 1960.

It is well-known principle of our procedural law that, where a party could give or call relevant evidence on an important point without apparent difficulty, a failure to do so may in some circumstances entitle the court to draw an inference adverse to that party, which will be sufficient to strengthen evidence adduced by the other party or weaken evidence given by the party so failing: see for example Thames Valley Housing Association v Elegant Homes (Guernsey) Ltd [2011] EWHC 1288 (Ch), [19]. If it were necessary (though in my judgment it is not) I would be prepared to apply that to the evidence adduced by Mr James Johnston and his son the first defendant.

On this evidence, without resort to that principle, the only conclusion to which I can properly come, on the balance of probabilities, is that, although there was requisitioning, there never was any acquisition or retransfer of title to the land belonging to the defendant’s predecessors in title. I know that the first defendant’s father, Mr James Johnston says in his witness statement that

“3.

The Air Ministry, at the time of the sale [to Enstone Enterprises in 1960], handed back to the Great Tew Estate Trustees in accordance with the Crichel Down rules, that part of the airfield which had formed part of the Estate before it was compulsorily acquired in or around 1940."

But as I have said he cites no evidence for his statements, and exhibits no documents at all. I accept that possession of the land was given back to the trustees at some time, but I do not accept what Mr James Johnston says about that part of the Estate having been “compulsorily acquired in or around 1940”. If the Government saw no need to acquire (compulsorily or otherwise) the greater part of the land needed for the aerodrome, there is no reason at all why it should have done so in relation to the north-east tip of runway 1. In my judgment, the material before me demonstrates that the land now in the possession of the defendants continued throughout the war to be in the ownership of the relevant trustees, and was never acquired at all. It appears to have been requisitioned, and occupied, by the government, but that is all.

But even if I were wrong in my conclusion, and I should have inferred the existence of an acquisition and reconveyance of the land concerned, there are further problems. In the absence of any documents there is, naturally, no evidence that any such reconveyance contained an express right of way over the rest of the aerodrome, or at least the perimeter road which later became the industrial estate road. Mr Thomas relies on the rules as to implied easements, under section 62 of the Law of Property Act 1925 and the rule in Wheeldon v Burrows. As I have said, Mr Thomas asks me to infer (and the burden lies on him) that the reconveyance took place before the conveyance to Enstone Enterprises in 1960. But there is no material whatever upon which I can make such an inference. In my judgment, if there were such a reconveyance as Mr Thomas argues for, it could as well have been after that conveyance as before it. Mr Thomas accepted that his argument for an implied easement would fail, unless he showed that the reconveyance (if any) must have been before the 1960 conveyance. This is because there is no reservation of any right of way in favour of the Air Ministry in the 1960 conveyance, and the Air Ministry cannot on reconveying the rest of the airfield to the trustees conjure such a right out of thin air. (I add only that there is no question of an easement of necessity here, as the Great Tew Estate has other access to the public highway.)

Even if that were wrong, and the lost reconveyance in fact dated from before the 1960 conveyance, it would be necessary to show what the terms of that reconveyance were, and in particular whether they contained any provision negativing or modifying the effect of the rules on implied easements. I pointed out to Mr Thomas during the course of the argument that the parcels of land which went to make up RAF Enstone came from different landowners, and, if the government intended (as apparently it did) to return those parcels when they were no longer needed to their respective landowners, or otherwise to sell them, it seemed to me to be highly unlikely that the government would seek to restore them to their respective landowners other than in exactly the same legal condition (so far as may be) as they were when they were taken away. In other words, I could not see why, if there was a reconveyance of the north-east part of the airfield to the trustees before the 1960 conveyance, the government would have sought to enhance the legal position of the new owners of that land at the expense of the (past and) future owners of the remaining part of the airfield. In my judgment, the presumption must be that the government would have sought to return the land in exactly the same condition as it was taken. Accordingly, if I am to infer anything, it must surely be that the provisions of any such reconveyance would have been such as to ensure that the land reconveyed obtained no greater rights than were enjoyed before it was taken away. Mr Thomas had in substance no answer to this point.

There is a yet further point. If Mr Thomas is right, and I am wrong, then not only must I infer the existence of the lost reconveyance, and moreover that it dated from before the 1960 conveyance, and that it contained no provision interfering with the implied easement rules, with the result that a right of way was granted across the land which later became the industrial estate, but then, in the 1960 conveyance the government’s lawyers entirely omitted to refer to this grant, made only a short time before, in conveying away what would have become the servient tenement.

I am afraid that this is all far too much. In circumstances where none of the other land requisitioned for the airfield was acquired by the government until after the war, there is neither documentary nor live evidence of any acquisition from or (re)conveyance by the Government to the trustees, nor of the date that such reconveyance is supposed to have happened, nor even of the date on which possession was reacquired by the trustees, nor of any of the provisions of the supposed reconveyance relating to easements, and there is a complete failure in the 1960 conveyance to refer to rights which would have burdened that land in favour of the reconveyed land, I entirely decline to find that there was a reconveyance prior to the 1960 conveyance which expressly granted an easement or which did not modify or exclude the rules relating to implied easements. In my judgment, the case based on a right of way expressly or impliedly granted on the reconveyance to the trustees is hopeless, and fails completely. In the state of the evidence which the defendants had at their disposal and put before the court, I am surprised that it was ever made.

I turn therefore to consider the question of an easement by prescription. I was referred to the well-known passage in the judgment of Peter Gibson LJ in London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31, 36H:

“It is of the essence of an easement that (1) there must be both a dominant and a servient tenement; (2) the easement must confer a benefit on the dominant tenement as such; (3) the dominant and servient tenements must not be both owned and occupied by the same person; and (4) the easement must be capable of forming the subject matter of grant.”

Accordingly, in due course I will have to consider what is the dominant tenement for the purposes of any right of way such as is claimed. In my judgment it must be one or more of the various plots forming part of the Great Tew Estate. It cannot be the whole Estate, or even the whole of the southern half of the Estate. Use of the ESR could not reasonably benefit the northern half of the Estate, nor even the northern parts of the southern half.

As already mentioned, the ESR originally ran from the public highway B4030 at a point some hundreds of yards to the west of where it now accesses that road. It is clear from the material before me that at some point between 1970 and 1978 the present access to the B4030 was opened up and traffic which formerly ran to the more westerly access ran instead to the new one. What effect, if any, does the movement of the access point have on the question of prescription? The claimant says it is crucial. In effect, it says, it means that time stops running and the prescription period has to begin again. The defendants say that it makes no difference: it is legally irrelevant, because during the course of acquisition the right of way will have the characteristics of the easement. In this connection, the defendants relied on the decision of the Court of Appeal in Keefe v Amor [1965] 1 WLR 334.

That was a case where an express grant of a right of way over a strip of land eight feet wide leading from the public highway to a semi-detached house was granted by a conveyance on sale of that house by the owner of the other semi-detached house who also owned the strip. The gateway to the highway was however only four feet six inches at the time of the conveyance. Subsequently the owner widened the entrance to seven feet six inches, but kept a gate locked over the extra three feet, refusing to allow the plaintiff access to vehicles wider than four feet six inches. The Court of Appeal held that, on the true construction of the grant, the plaintiff was entitled to the right of way over the whole width of the strip, and that the refusal to open the gate to its full width was a substantial, and therefore an actionable, interference with that right.

It will be seen that this case had nothing to do with easements in the course of being acquired by prescription. It decided instead what was the test for an actionable interference with an existing right of way. It may be that it shows that, if a right of way already exists, and the servient tenement owner moves the access way so as to make use of the right no less convenient to the dominant tenement owner, that is not an actionable interference with the right. In my judgment is does not show that if, during the course of prescribing for a right some significant part of the course over which the right is exercised is blocked and another course opened, all the accrued prescriptive use can be transferred to the new course.

No other authority was cited by the defendants in support of their argument. In my judgment it is not the law. In my judgment, if the defendants can show twenty years’ user as of right over the ESR to the old access point, then the decision in Keefe may be of assistance to them. But if they cannot, then their period of user must begin again. Since there was no evidence before me of user of the ESR via the old access point after the construction of the new one in the period 1970-78, and there was no evidence of user of the ESR by the Great Tew Estate before 1958, it follows that twenty years’ user over the ESR to the old access point cannot be shown. Therefore, if the defendants are to succeed, they can only do so in relation to the ESR to the new access point. The burden is on them to show twenty years’ user, though (as already mentioned) there is no evidence as to when the access point changed in the period 1970-78. That means that they must show user up to at least 1998. However, as will be seen, this may not make much difference overall.

In order for the claim to an easement by prescription to succeed, it must have been reasonably apparent to an objective bystander that the right was being asserted. In Hollins v Verney (1884) 13 QBD 304, the plaintiff brought an action against the defendant for trespass on the plaintiff’s land. The defendant pleaded a right of way for carting timber and underwood from a wood of his own. It was claimed that the requirements of the Prescription Act 1832 were satisfied on the grounds that there had been user as of right for more than 30 years. The evidence was that the claimed rights had been exercised in 1851, 1852, 1853, 1866, 1867, 1868, and 1881. Lindley LJ gave the judgment of the Court of Appeal (including Brett MR and Bowen LJ).

In the context of prescriptive user under the 1832 Act, he said (at page 315):

“No user can be sufficient which does not raise a reasonable inference of such a continuous enjoyment. Moreover, as the enjoyment which is pointed out by the statute is an enjoyment which is open as well as of right, it seems to follow that no actual user can be sufficient to satisfy the statute, unless during the whole of the statutory term (whether acts of user be proved in each year or not) the user is enough at any rate to carry to the mind of a reasonable person who is in possession of the servient tenement, the fact that a continuous right to enjoyment is being asserted, and ought to be resisted if such rights is not recognised, and it resistance to it is intended. Can an user which is confined to the rare occasions on which the alleged right is supposed in this instance to have been exercised, satisfy even this test? It seems to us that it cannot: that it is not, and could not reasonably be treated as the assertion of a continuous right to enjoy; and when there is no assertion by conduct of a continuous right to enjoy, it appears to us that there cannot be an actual enjoyment within the meaning of the statute.”

The central point expressed here, that the conduct should carry to the mind of a reasonable person in possession of the servient tenement the fact that the right is being asserted, was reaffirmed by the Court of Appeal in the more recent decision of Loder v Gaden (1999) 78 P & CR 223, 232, per Hale J (with whom Brooke LJ agreed).

The elements of a prescriptive right of way include user “as of right”. This idea was well explained by Lord Neuberger in R (Barkas) v North Yorkshire County Council [2015] AC 195. That was a case about a village green, but the relevant legislation used the phrase “as of right”. At page 206 he said:

“14.

The origin of the expression "as of right" in the definition of "town or village green" in section 22(1) of the Commons Registration Act 1965, which is effectively for present purposes the statutory predecessor of section 15(2) of the 2006 Act, was authoritatively discussed by Lord Hoffmann in R v Oxfordshire County Council, Ex p Sunningwell Parish Council [2000] 1 AC 335, 349D-351H. As he said, it originates from the law relating to the acquisition of easements by prescription. Before examining what Lord Hoffmann said, it is, I think, helpful to explain that the legal meaning of the expression ‘as of right’ is, somewhat counterintuitively, almost the converse of ‘of right’ or ‘by right’. Thus, if a person uses privately owned land ‘of right’ or ‘by right’, the use will have been permitted by the landowner – hence the use is rightful. However, if the use of such land is ‘as of right’, it is without the permission of the landowner, and therefore is not ‘of right’ or ‘by right’, but is actually carried on as if it were by right – hence ‘as of right’. The significance of the little word ‘as’ is therefore crucial, and renders the expression ‘as of right’ effectively the antithesis of ‘of right’ or ‘by right’.

15.

In his discussion on the point in Sunningwell, Lord Hoffmann began by explaining that ‘[a]ny legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment’, and went on to explain that a combination of statutory and common law had resulted in such enjoyment having to be twenty years ‘nec vi, nec clam, nec precario; not by force, nor stealth, nor the licence of the owner’. He went on to explain that each of ‘these three vitiating circumstances’ would amount to ‘a reason why it would not have been reasonable to expect the owner to resist the exercise of the right’, namely, ‘in the first case, because rights should not be acquired by the use of force, in the second, because the owner would not have known of the user and in the third, because he had consented to the user, but for a limited period’. For the avoidance of doubt, I should interpose that the reference to ‘a limited period’ clearly includes an indefinite period (as would arise under an unlimited but revocable permission), and that the word ‘limited’ was meant to be contrasted with ‘permanent’. Lord Hoffmann ended his discussion by citing with approval Lord Lindley's statement in Gardner v Hodgson's Kingston Brewery Co Ltd [1903] AC 229, 239 that "the words 'as of right' were intended 'to have the same meaning as the older expression nec vi, nec clam, nec precario", a view also expressed by Lord Davey at [1903] AC 229, 238.

16.

In the subsequent case of R (Lewis) v Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, which was concerned with the 2006 Act, Lord Walker confirmed at para 20 that "'as of right' is sufficiently described by the tripartite test nec vi, nec clam, nec precario [as] established by high authority". [ … ] And at para 30, Lord Walker accepted as a "general proposition" that, if a right is to be obtained by prescription, the persons claiming that right "must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him".

17.

In relation to the acquisition of easements by prescription, the law is correctly stated in Gale on Easements (19^th edition, 2012), para 4-115:

‘The law draws a distinction between acquiescence by the owner on the one hand and licence or permission from the owner on the other hand. In some circumstances, the distinction may not matter but in the law of prescription, the distinction is fundamental. This is because user which is acquiesced in by the owner is 'as of right'; acquiescence is the foundation of prescription. However, user which is with the licence or permission of the owner is not 'as of right.' Permission involves some positive act or acts on the part of the owner, whereas passive toleration is all that is required for acquiescence.’

18.

The concept of acquiescence in this context was explained in the opinion delivered by Fry J (with which Lord Penzance expressed himself as being ‘in entire accord’ at p 803), in Dalton v Henry Angus & Co (1881) 6 App Cas 740, 774, where he said:

‘… I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: 1, a knowledge of the acts done; 2, a power in him to stop the acts or to sue in respect of them; and 3, an abstinence on his part from the exercise of such power. That such is the nature of acquiescence and that such is the ground upon which presumptions or inferences of grant or covenant may be made appears to me to be plain…’.”

As stated in this passage, the necessary qualities of user as of right are usually summed up in the Latin phrase “nec vi, nec clam, nex precario”: neither by force, nor in secret, nor with permission. As to the first of these elements, it was said by Kerr LJ (with whom Eastham J agreed) in Newnham v Williston (1988) 56 P & CR 8 at 19 that:

“[T]here may be ‘vi’ – a forceful exercise of the user – in contrast to a user as of right once there is knowledge on the part of the person seeking to establish prescription that his user is being objected to and that the use which he claims has become contentious. If he then overcomes the objections, and in particular if he overcomes them in a physical way, expressed by the word ‘vi’ or ‘force,’ such as by removing an obstruction, then that is sufficient evidence to show that on the one hand the owner of the servient land was objecting to the use, so that the user was no longer as of right, and on the other hand that the person who claims the right was aware that he was not exercising it as of right but in the face of objections by the servient owner.”

Thus it is clear that in modern times it is sufficient that conduct is both known and properly to be regarded as “contentious” between the parties for it to be regarded as not being as of right. In the recent case of Winterburn v Bennett [2017] 1 WLR 646, CA, both suppliers to and customers of the claimants’ fish and chip business had for more than twenty years parked in the car park belonging to a club next door, despite the presence of two signs during most of that time indicating that the car park was private and for the use of club patrons only. The defendants’ tenant eventually obstructed vehicular access from the road, and the claimants sought registration of an easement of parking on the grounds of 20 years’ continuous user “as of right”.

David Richards LJ (with whom Sharp LJ and Moylan J both agreed) cited (at [20]) most of the passage extracted above from Newnham v Willison, and referred (at [32]-[33]) to the decision of Pumfrey J in Smith v Brudenell-Bruce [2002] 2 P & CR 4. In that case 20 years’ open pedestrian and vehicular use by the claimant of a track through the defendant’s land, not explicable by reference to toleration of pedestrian use by members of the public, was user “as of right”. However, Pumfrey J had added that:

“12.

… It seems to me a user ceases to be user ‘as of right’ if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner’s knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.”

David Richards LJ observed (at [34]) that this statement by Pumfrey J was not necessary for the decision, referred (at [35]) to the subsequent decision of the Court of Appeal in Taylor v Betterment Properties (Weymouth) Ltd [2012] 2 P & CR 3, and said:

“36.

For my part, I do not think that the obiter statement of Pumfrey J provides much assistance. While relying on it in general terms, Mr Gaunt [for the claimants] felt constrained to submit that it was overstated in the two ways indicated above. In my judgment, the authorities do not support the proposition that a servient owner must be prepared to back his objection either by physical obstruction or by legal action or the proposition that the servient owner is required to do everything, proportionately to the user, to contest and to endeavour to interrupt the user. As it seems to me, the decision of this court in Betterment [2012] 2 P & CR 3 is inconsistent with these propositions. The court there accepted that the erection and re-erection of signs was all that the owner needed to do to bring to the attention of those using the land that they were not entitled to do so.”

The second element is that the conduct should not have been in secret. In other words, it must have been obvious. I have already discussed the cases of Hollins v Verney (1884) 13 QBD 304 and Loder v Gaden (1999) 78 P & CR 223.

The third and final element is that the conduct should not have been by permission. I have already set out in the extract from Lord Neuberger’s judgment in the Barkas case ([121] above) reciting with approval the passage from Gale on Easements, 19^th ed 2012, para 4-115. This distinguishes acquiescence on the one hand from permission on the other. User with the acquiescence of the owner is ‘as of right’ for the purposes of presecription. User with permission is not.

In Tehidy Minerals Ltd v Norman [1971] 2 QB 528, 552, Buckley LJ, referring to Angus v Dalton (1881) 6 App Cas 740, said:

So the doctrine of lost modern grant is based on enjoyment of the rights claimed for at least 20 years without any other lawful explanation. This gives rise to a presumption of the origin of the right in a deed of grant which has been lost. The advantage over a prescriptive right under the Prescription Act 1832 is that it is not necessary to show user for 20 years immediately before the launch of legal proceedings.

There is a question as to the extent of any right of way proved to exist by virtue of prescription or the doctrine of lost modern grant, as compared with any the subject of an express or implied grant. In Dewan v Lewis [2010] EWCA Civ 1382, Carnwath LJ (with whom Elias and Pitchford LJJ agreed) approved the following statement from Gale on Easements, 18th ed 2008, para. 9-03:

“Applying the general principle that every easement is a restriction on the rights of property of the party over whose land it is exercised, the real question appears to be, on the peculiar facts of each case, whether proof has been given of a right co-extensive with that amount of inconvenience sought to be imposed by the right claimed.”

See also Loder v Gaden (1999) 78 P & CR 223, 229-30. In other words, where a grant is prescribed by, or presumed to have been made because of, sufficient years’ user nec vi, nec clam, nec precario, what is prescribed or presumed is a right co-extensive with, but no greater than, the user, even if it would be reasonable for the dominant owner to exercise other rights for the benefit of his land.

Before I turn to consider the use proved to have been made of the ESR and relied upon by the defendants as proving the existence of a right of way over it, in relation to the various plots of land forming part of the Great Tew Estate, I make a general point. This is that there had been correspondence between the Estate or its agents and Enstone Enterprises and its agents over use of the ESR by the Estate and its tenants and licensees since the 1990s, hardening into positions, certainly by the end of that decade, on the one side that there was a prescriptive right, and on the other that there was not. Whether or not user by the Estate, its tenants and licensees became “contentious” within Newnham v Williston in the 1990s, in my judgment it had certainly become so by December 2004 at the latest, when the claimant’s solicitors squarely rejected the Estate’s claims and in effect threatened a claim for an injunction and damages. So from that point on all user of the ESR that was not licensed was “by force” for the purposes of prescription and presumed grant. As I have already said, plots 2, 3 and 5 now belong to the third defendant, who makes no claim to such rights in any event. Plots 7 to 12 are too remote from the ESR and have in any event their own means of access to the public highway such as the New Road, the Ledwell Road and the B4022. That leaves plots 1, 6 and 4.

Plot 1 consists of farmland. By no stretch of the imagination can it be described as landlocked. To the west there is the B4022, to the east there is the New Road, and to the south there is the Green Lane. Some of this land (to the north and west) is tenanted. As I have already said, farming activities on this plot would originally have been based on Tracey Farm, and would generally have used New Road for access to the public highway, until Tracey Farm was sold in 2013. The agricultural traffic along the ESR would have been sporadic and intermittent. In my judgment, given the constant authorised traffic on the ESR for the purposes of the industrial estate, agricultural use for the purposes of plot 1 would not have been sufficient to have been reasonably apparent to an objective bystander that the right was being asserted. It was, no doubt, a useful shortcut in some cases where the fields to be worked were in the south-east of the plot, and may have had easier manoeuvrability in other cases where the vehicle would have difficulty in negotiating parts of the access to the north. But that is all. I bear in mind that, when the Great Tew Estate was asked whether it wished to have a general licence from the claimant's predecessor in title Mr Johnston's response was that the Estate had no need of it, as there were only two prospective tenants who would use it, and they should negotiate with the owners of the ESR for the right to use it. It does not lie in the mouth of the owner of the Estate now to assert that all this time the ESR was being used, without permission, for agricultural purposes for plot 1, and a claim to a right of way based on 20 years’ user is now put forward. So in my judgment the defendants cannot establish the quality of user required to prescribe a right of way or to have the grant of one presumed. Even if they could, they cannot show 20 years’ user before 1978 of the original access point to the B4022, and they cannot show 20 years’ user from 1978 before Mr Johnston’s agent made clear in 1991 that the Estate had “no call” upon the ESR.

As to plot 6 (Beaconsfield Farm), this has been tenanted by the Parker family since the 1940s. In July 1999 the claimant indicated its intention to close the ESR as a means of access to the Great Tew Estate. The Parkers claimed a prescriptive right of way over the ESR, but after instructing their own lawyers, who corresponded with the claimant's lawyers, the Parkers dropped their claim and accepted the grant of a licence. In these circumstances, the necessary quality of user is not demonstrated, and there can be no prescriptive or presumed right of way for the benefit of plot 6. And any use of the ESR to access an industrial unit on the estate (eg Bibby’s Mill) would not be an exercise of the right of way now claimed.

Lastly, there is plot 4, consisting of that part of the Great Tew Estate which formed part of RAF Enstone aerodrome. As I have said, it was farmed by Jack Bury until the early 1970s. There is no evidence before me that Mr Bury used the ESR. But in any event he did not farm plot 4 for enough years for the question to arise. Thereafter, a part of this plot was leased to Farm Aviation Services, thereafter to Tom Miller for his flying club and then to Enstone Hangar Ltd carrying on the flying club. But it is clear that, from 1972 onwards, the lessees of this part of the plot were granted licences to use the ESR by Enstone Enterprises and later the claimant. It therefore follows that the necessary quality of user for such use as was made of the ESR for the purposes of this part of the plot was insufficient to establish a prescriptive or presumed right.

As to the remainder of plot 4, there were a number of uses made. First of all, there was ProDrive, which made limited use of plot 4, amounting to about 10 to 12 days per annum in the years from 1995 to 2001. I have found that James Johnston was not told about the activities of ProDrive until 1996. His witness statement (which on this point I accept) makes clear that he did not know about them until then. If the owner of the land on which the rallies were held was not aware that they were being held, I do not see why the absent owner of the industrial estate should have been aware that ProDrive made use of the ESR on those days when it held an event at the airfield. In my judgment, given, as I say, the constant flow of authorised traffic on the ESR, it was not reasonably apparent to an objective bystander that any right was being asserted. Moreover, by the time that ProDrive ceased to use the airfield for its events, the claimant had made clear (in 1999) that it intended to close the ESR except for those cases where a proper licence was granted. So the necessary quality of user cannot be established.

The position of Vision Motorsport is a little different. It is clear that the claimant eventually became aware of the use made by Vision Motorsport and its customers and staff of the ESR. But Vision Motorsport still cannot establish the necessary quality of user. It knew that the ESR was private land because of the gates that the claimant and its predecessor erected, and the security officers that they employed, and who had to be asked to let them through the gates when the gates were closed. It was not proved before me that Vision Motorsport used the ESR believing that it had a right to do so. It was asking for a favour every time it asked the security officer to open the gate. In addition, use of the ESR to access the café on the industrial estate would not be an exercise of the claimed right of way. Moreover, as I have already said, from December 2004 it was clear that user of the ESR by the Great Tew Estate, its tenants and licensees was “contentious”, and so could not satisfy the requirement that user be “nec vi”. Even if that were wrong, by letters sent to Vision Motorsport in October 2013 and July 2014, the claimant's solicitors asserted that Vision Motorsport's staff and visitors were trespassing by making use of the ESR and required them to stop. That means that, even adding together the periods of user by ProDrive and Vision Motorsport, there are less than 20 years in total, which is insufficient to establish a prescriptive or presumed right.

Another activity carried on in plot 4 was timber storage, after Dutch Elm disease attacked most of the elm trees on the Estate in the years 1978-81, and they were cut down and stored until 1982-1983, when they were sold to furniture makers. Large lorries collected the trees from other parts of the estate and brought them, via the ESR, to the airfield. They were cut up using a mobile band saw and seasoned there. Then they were taken away by purchasers, also via the ESR. This could have lasted a mximum of 5 years, far less than the 20 needed to establish a prescriptive or presumed right. But in any event there is no evidence that Enstone Enterprises was aware of the use made by the lorries of the ESR. There was a constant authorised traffic on the ESR. So in my judgment this user is not of the necessary quality nor the necessary length.

There was also quarrying (2002-03), crushing (2003), and also storing (2008 and following) of stone on plot 4. Each activity involved some limited use of the ESR. But each of these separate activities was for short periods (a maximum of four years in the case of the storage), and there would be even less reason than in the case of the trees taken to the airfield for the claimant to notice that this was happening, at any rate if it was done during the day. These users too were not of the necessary quality or length. And the stone storing falls after December 2004, when user became “contentious”.

As to shooting parties that were arranged from 2000 to 2013 by Paul Snell, he was not an employee or an occupant of the Estate and therefore any user of the ESR as a result was not on behalf of the Estate. So far as he himself was concerned, his user was sporadic and there is no reason to suppose that the claimant was aware of this activity. I am not satisfied, for the same reasons as before, that it would have been reasonably apparent to an objective bystander that the right was being asserted. User after December 2004 would have been “contentious”, and so cannot count. Moreover, and in any event, he did not use the ESR for 20 years.

Lastly, there is hunting across the Estate, which involved some use of the ESR by spectators and followers. But the Hunt was not kennelled on the Estate, and it cannot be regarded as an Estate activity. It is therefore irrelevant, as Mr Thomas recognised, when he told me in closing that he did not rely on it.

The conclusion to which I have come is that, on the material and evidence placed before me, the defendants have not made out their contentions that they have an express, implied, prescriptive or presumed right of way across the ESR for any purpose. I am aware that the claimant accepts some limited right in respect of plots 2 and 4, for agricultural purposes only, but that is a matter for it. The claimant is entitled to a declaration to reflect this judgment. I will discuss the exact terms when this judgment is handed down.