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Farrer & Co | A case law buffet

Fencing covenants – Churston Golf Club Ltd v Haddock (2019)

Many practitioners assume that fencing covenants contained in transfers will be enforceable against successors in title. However, a recent Court of Appeal case has shaken up that view by holding that a fencing covenant did not take effect as an easement. A 1972 conveyance of the land contained a familiarly worded covenant by the purchaser to “maintain and forever after to keep in good repair…stock proof boundary fences walls or hedges along such parts of the land…as are marked T inwards on the plan”. This obligation was held to be merely a positive covenant (and not an easement) with the result that it did not bind successors in title. The lesson here is that where it is important that a fencing covenant binds successors, lawyers must include necessary mechanisms.

Occupier’s waste

The Environment Agency has successfully prosecuted and fined a landowner whose tenants illegally stockpiled waste wood. This reflects a recent enforcement trend against landowners whose tenants have committed waste-related offences. In this case, the landowner leased part of his site to a tenant who claimed to run a wood recycling business. A large quantity of wood arrived on site, but none ever left, resulting in a
stockpile of approximately 10,000 tonnes of wood waste. The tenant did not have an environmental permit and shortly afterwards the tenant was imprisoned for another offence. The business ceased trading and the gates were locked with the wood being left on site. Following the tenant’s vacation of the site, the waste wood was destroyed in a fire which burned for five days. The Environment Agency prosecuted the landowner for knowingly permitting the keeping of controlled waste on land where there was no environmental permit in force. The landowner pleaded guilty and was fined.

If a tenant is operating illegally, the risk for landowners is that they may find themselves accused of ‘knowingly permitting’ those activities. ‘Knowingly’ means knowing that the waste activity is taking place; it does not matter that the landlord was unaware that the activity was unlawful. There are several steps a landowner can take to minimise this risk. The most important being to carry out due diligence on the occupier and obtain copies of the necessary environmental permits and planning permissions prior to letting them on site. It would also be prudent to check that the business is established and financially solvent. This due diligence should continue throughout the tenant’s occupation. 

Water flow rights – Fearon and another v The Environment Agency (2019)

The Upper Tribunal has rejected a claim by mill owners for compensation under the Water Resources Act 1991 (1991 Act). The actions of the Environment Agency in raising penning boards did not interfere with the mill owners’ right to the natural flow of water.

Tickenham Mill spanned a watercourse which divided in two. A sluice (formed of weir and penning boards which can be raised and lowered) was created in 1968 at the mouth of one channel. The EA raised the boards from December to April and lowered them from April to December to manage flooding risks; a practice supported by other interested parties.

The mill owners succeeded in refurbishing an inherited turbine and started generating electricity from the flowing water in September 2015 to take advantage of the Feed in Tariffs Scheme. When the EA raised the penning boards several months later the change in water flow rendered the turbine ineffective.

Both parties agreed that the EA’s actions fell within its statutory powers under the 1991 Act. Therefore to gain compensation the mill owners needed to show that, but for the EA’s statutory powers, the EA would have been liable in damages at common law for their financial loss.

The Upper Tribunal held the natural state of the water flow was without the penning boards (or with the penning boards raised); the penning boards had only been introduced relatively recently and had regularly been raised each year. The mill owners’ rights had not been interfered with and their compensation claim failed.

No right of way for adjoining land – Parker and another v Roberts (2019)

A recent Court of Appeal case serves as a useful reminder to beware the complexities of rights of way. Mr Roberts owned a house (House) and wished to build a house on immediately adjoining land that he also owned (Building Land). However, to do so he needed to establish a right of way for the benefit of the Building Land over a private road owned by his neighbours.

A previous conveyance of the House granted a right of way for all purposes for the benefit of that land over the private road; it did not include the Building Land which was already owned by Mr Roberts’ predecessor. Mr Roberts contended for a variety of reasons that the conveyance should be read as also giving the Building Land the benefit of the right of way.

The Court of Appeal allowed the neighbours’ appeal. The Building Land did not form part of the conveyance and so did not benefit from the right of way granted notwithstanding that Mr Roberts accessed the Building Land from the House whilst he treated the Building Land as part of the House’s garden.

Adverse possession by paving – Thorpe v Frank (2019)

A homeowner has successfully claimed title by adverse possession by paving land.

It is settled law that to acquire land by adverse possession the claimant, here Mrs Thorpe, needs to prove uninterrupted factual possession for the necessary period (usually 10 years where the land is registered; 12 where it is not) and an intention to possess during that period. Mrs Thorpe’s intention to possess was not disputed but her factual possession was.

To evidence factual possession, the claimant must prove they exercised a sufficient degree of exclusive physical control over the land; this often brings fencing or other acts of enclosure to mind but what is sufficient depends on the nature of the land and how it is used. In this case the Court of Appeal broke new ground by recognising Mrs Thorpe’s repaving and altering the surface level of an area of forecourt as sufficient to establish factual possession. That the paper owner continued to pass and repass over the forecourt did not affect this.

If you require further information about anything covered in this briefing, please contact Louisa Passmore, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, July 2019

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