We acted for the owners of a property over which a claim was made for grazing rights (profits à prendre). The neighbouring landowners own a farm used for rearing polo ponies. They claimed grazing rights over our clients' land during the spring and summer months. If the claim had been successful, our clients would have been severely constrained in the use of their land.
At first instance, the deputy adjudicator rejected the neighbours' claim. The case went to the Chancery Division of the High Court on appeal. Mr Justice Warren concluded that the adjudicator had applied the wrong test, as whether the farm needed to exercise the grazing rights over our clients' land was not relevant. Neither was the fact that the farm could manage perfectly well without using our clients' land. He helpfully explained the correct test to apply, which is that the adjudicator must consider 'the context of the entire factual matrix, including how and why the ponies grazed on the [land]'. He continued that 'the question is whether the use of [the land] has … been of such a character, degree and frequency as to indicate an assertion by [the neighbour] of a continuous right, and of a right of the measure of the right claimed'.
The matter was referred back to the deputy adjudicator so that she could make a fresh decision, applying the correct test. Whilst waiting for the deputy adjudicator to review the case, the parties managed to resolve the dispute by negotiating a settlement.
Polo Woods Foundation v (1) Michael Alan Shelton-Agar (2) Sarah Katherine Shelton-Agar  EWHC1361 (Ch)