Terence Graham Denty & Sharon Jane Denty v Meten Hussein (1999)


Plaintiffs' claim to benefit of prescriptive rights of way with or without vehicles over defendant's property successful only as to non-vehicular rights and only as to part of the allegedly servient tenement.


Plaintiffs' action for declaratory, injunctive and consequential relief arising out of the defendant's alleged interference with their vehicular and pedestrian rights of way over his property. The plaintiffs and the defendant owned adjoining properties at North Mimms. The two properties stood in the middle of a row of detached houses which faced the Great North Road ("the highway"). All the houses were separated from the highway by an area of grass and also by what was described as a service road, which ran between the grass area and the houses, and parallel with the highway. There were four exits onto the highway from the service road, one of which ("the exit") was opposite the defendant's property. The defendant owned that part of the service road which ran in front of his property. Shortly after moving in, the defendant erected fences on both sides of the front of his property and across the service road. The plaintiffs claimed to have the benefit of a right of way with or without vehicles over the whole length of that part of the service road which ran in front of the defendant's property, not only for the purpose of securing access to the exit but also for the purpose of securing access to the houses in the row which lay beyond the defendant's property. They therefore sought the removal of both fences. The issue at trial was as to whether the plaintiffs could avail themselves of the provisions of the Prescription Act 1832 by demonstrating user over a continuous period of twenty years from 1978. In this regard several former owners and/or occupers of properties in the row (including those now owned by the parties) gave evidence as to the nature and extent of the service road and the use allegedly made of it from 1954 onwards.


(1) The only evidence as to vehicular use related to access to the exit; there was no evidence of any vehicular use to gain access to the other properties. Even accepting the evidence in relation to use of the exit, the relevant use appeared only to have begun in 1988. Accordingly, the claim to a vehicular right of way failed in its entirety. (2) There was clear evidence of pedestrian user of the service road to and from the exit for the requisite period: consequently, the fence which had been erected between the plaintiffs' property and the exit was an interference with that right of way. However, there was no or no sufficient evidence of pedestrian user to and from the houses further along the row, with the result that the plaintiffs' claim to a right of way on foot along the service road and beyond the exit also failed.

Order accordingly.