Wood v Waddington [2015] EWCA Civ 538 and Section 62 LPA 1925 - “Continuous and Apparent” rights in the Court of Appeal

The Court of Appeal decision in Wood v Waddington [2015] EWCA Civ 538 confirms (as did the High Court, Wood v Waddington [2014] EWHC (Ch) 1358) the controversial approach of Platt v Crouch ([2003] EWCA Civ 1110) with regards to the operation of section 62 LPA 1925 in relation to the creation of easements.

The consequence of this is that as long as a deed of conveyance is used, and no contrary intention appears in that conveyance, there will be no need to resort to the alternative rule in Wheeldon v Burrows ((1879) 12 Ch. D. 31). The judgment also considers the meaning of continuous and apparent for these purposes. It represents a welcome clarifiction of the law on these matters. Finally, the court discusses the meaning of “contrary intention” for the purposes of the operation of this section. It is perhaps this aspect of the judgment which may prove the most contentious since it is at odds with the Law Commission’s suggestion that the operation of section 62 should be limited, not expanded. It remains a “trap for the unwary” (Law Commission Report, no. 327: “Making Land Work”, at [3.59]). Nevertheless, the judgment should be welcomed as a rationalisation of the rules relating to the creation of easements, even though the shape of the current law may not be to everyone’s liking.

Firstly, on the question of the operation of section 62, Lewison LJ, (at [25]) cites with approval the comments of Morgan J in relation to the requirements for the operation of this section: 

A right, such as a right of way, can pass under section 62 even where there has been no diversity of occupation, provided always that the right was continuous and apparent.
— Wood v Waddington (HC), [2014] EWHC (Ch) 1358 at [131]

This approach was also supported by the Court of Appeal decision in Alford v Hannaford ([2011] EWCA Civ 1099, [236]) albeit that these comments are obiter since in that case contrary intention was found to be present in the deed of conveyance, [40]. The Court of Appeal decision in Wood therefore represents the best authority as to the operation of this section. 

Thus, section 62 will have the result of “expressly” granting any quasi-easements where either there was prior diversity of occupation, or the quasi-easement was continuous and apparent:

Where there has been no diversity of occupation, all that is necessary to establish is that the exercise of the relevant rights has been continuous and apparent in the sense developed for the purposes of the rule in Wheeldon v Burrows
— Wood v Waddington, at [35]

This confirms that in cases where a deed of conveyance is used, there is no reason to consider the rule in Wheeldon v Burrows. As Lewison LJ reasons: 

In this respect section 62 differs from and is broader than the rule in Wheeldon v Burrows.
— Wood v Waddington, at [36].

This means that considering the “methods of creation for easements”, it will be better to begin not with the traditional list (easements arising by necessity; easements arising by common intention; Wheeldon v Burrows; and section 62), but rather with the now most important questions:  does the case involve an implied grant or an implied reservation; and was a deed used? Only then should the “methods” be considered.

Secondly, the court gives guidance as to what is meant by continuous and apparent for these purposes. Lewison LJ highlights that the test will be the same whether under Wheeldon v Burrows or section 62, i.e. there must be sufficient signs of the continued use of the claimed easement prior to the transfer ([32] and [48]). In the case of a right of way, whilst this does not mean that a “made road” is required, [33], there must be physical signs so as to distinguish between the sole freeholder simply using the land as he wishes, and use which is “enjoyed with the land” prior to transfer. 

It seems to me, therefore, that there were sufficient signs on the ground for the claimed route to have been continuous and apparent for the purposes of the rule in Wheeldon v Burrows.
— Wood v Waddington, at [48]

Finally, Lewison LJ discusses what must be included in the deed in order to show sufficient evidence of a contrary intention so that section 62 does not operate in the way described above. This requires, as the court highlights, very clear evidence within the deed, [66]. In this case, the deed of transfer contained quite precise descriptions of the easements which were to be created on the division of the land, including provisions as to maintenance. It was suggested by counsel that this would be enough to prevent the operation of section 62, [61]. The court concluded that it was not. Similarly, the conveyance deed specifically referred to the passing of all “continuous rights”. This does not cover rights of way like those in this case, but rather rights such as rights to light, or to ventilation, [18]. In this sense, continuous here denotes different characteristics than it does in the test for the operation of section 62 and Wheeldon v Burrows. As a result, Lewison LJ concluded that: 

In my judgment neither singly nor cumulatively do the points on which Mr Gaunt relies “express” the requisite contrary intention with sufficient clarity.
— Wood v Waddington, at [66].

This means that section 62 will continue to operate unless very clear intention appears in the conveyance. The Law Commission has been critical of this impact of the section. 

Section 62 is a trap for the unwary, as well as being uncertain in its effect and in the extent to which it overlaps with Wheeldon v Burrows.
— Law Commission report no. 327, at [3.59]

It might therefore have been hoped by some that not only would the Court of Appeal here clarify the law (which it has done), but also limit the operation of section 62 in this area. That has not happened. 

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