Easements - watch out for Prescriptive Rights!

The recent High Court judgment in South Tees Development Corporation and another v PD Teesport Ltd and another [2024] EWHC 214 (Ch) touched on a number of interesting aspects of the law of easements. No new law but a very useful reminder of making sure potential rights for neighbouring land are always considered when acquiring land for development.  An easement (a right for the benefit of one parcel of land over another) can be created in a number of different ways and the case addressed:

• the express grant of an easement by Deed;
• claiming a right by prescription (broadly the continuous exercise of a right for 20 years); and
• obtaining an implied easement (a right of way).

The case concerns the former British steelworks on Teesside, the largest brownfield site in Europe which the claimant (the first Mayoral Development Corporation outside of London) has been tasked with regenerating and developing. So also high on the political agenda!

PD Teesport Ltd (the Defendant) claimed express and prescriptive rights over the Claimant’s land to access 3 areas which it owned and maintained.  It failed to establish the express rights but did establish these rights by prescription based on the documentary evidence available and testimony of witnesses at the former steelworks.  The Defendant was also successful on another prescriptive claim relating to a riverside road.

The claim for an implied right of way concerned access to and from Redcar Quay. To get to the highway from Redcar Quay the Defendant had to pass over the Claimant’s land. The High Court found a common intention in a 1971 Conveyance that Redcar Quay would be used as a quay and therefore a reasonable person would conclude there should also be access to operate Redcar Quay over the Claimant’s intervening land.

Some commentators have been critical over this matter ending up in the High Court due to the costs involved, especially with the Claimant being a publicly owned body. But others highlight that the decision has led to much needed clarity over what rights the Defendant has over the Redcar site which will enable the Claimant to accommodate them in their masterplan for the development.

The case emphasises that developers and their advisers should be vigilant when acquiring land. Neighbouring property may benefit from rights of way which may significantly impact the design and viability of a development. Such rights might not be discoverable on a mere title review and the site should be carefully inspected to discover any evidence of rights being exercised. The case also shows the effectiveness of witness testimony from locals in establishing a prescriptive right – 34 witnesses provided evidence to the court supporting the Defendant’s claim that it had multiple rights of way over the Redcar site. Gathering all this evidence would have been no mean feat but ultimately proved successful for the Defendant in the High Court.