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Profits a prendre

No “significant benefit” test

Polo Woods Foundation v Shelton-Agar
[2009] EWHC 1361 (Ch)

Summary

In order to ascertain whether there is a profit a prendre, it is not essential to show that the relevant right that has been granted gives an appreciable benefit to the dominant land. The question of whether a right can be a profit depends upon the nature of the right and its connection to the dominant land.

Facts

This dispute concerned land known as “the Triangle”, which adjoined a cottage owned by the respondents. The Triangle could also be accessed from a field known as “the Common”, which formed part of a farm owned by the appellant. The appellant’s farm was used for rearing ponies and varying number of the ponies sometimes went onto the Triangle.

The appellant’s application to establish a profit a prendre to allow it to graze a number of horses on the Triangle was rejected by the Land Registry adjudicator on the basis that the Triangle provided no real or appreciable benefit to the farm. This followed her factual conclusion that the Triangle was incapable of providing enough grazing for even one horse. The adjudicator also found that an indefinite number of ponies (never more than 10 and often less than 5) had entered onto the Triangle between the hours of 5.30pm and 6am during the period of March-October.

On appeal, the appellant sought to show that the adjudicator had taken an incorrect approach and that it had established a profit a prendre by lost modern grant, allowing it to graze a up to 10 horses on the Triangle between the hours of 5.30pm and 6am during the period of 1 March and 31 October each year.

Held

In applying the conditions required in order to establish a valid profit, the court examined the requirement for a profit to “accommodate” the dominant tenement, as set out in Re Ellenborough Park [1956] Ch 131. The court noted that “accommodation depends on a connection between the right and the normal enjoyment of the dominant tenement.” The court accepted that it would be difficult to show any accommodation or connection between a right claimed and dominant land where there is no benefit at all to the dominant land, but it emphasised the need for careful use of “benefit”, since this “can mean different things in different contexts”. The court concluded that the appellant did not have to satisfy a test of showing “real or appreciable benefit” to the dominant land in order to demonstrate that the right which it sought accommodated - or had the necessary connection with - that land.

The court pointed out that a profit must be limited and that the relevant limit must be assessed according to the “needs of the estate”. However, it emphasised that assessing such needs is a separate exercise from analysing whether a profit “accommodates” the dominant land. With a profit of grazing, the court felt that there was no automatic rejection of a claim for a profit merely because a farm could manage without the relevant land and that the land therefore gave very little – or even no – practical benefit. However, it accepted that it would be difficult to claim a right as reasonably necessary if an estate did not need it at all.

The court found that the necessary connection existed in this case between the right claimed by the appellant and its farm since the grazing rights were used in connection with the normal use of the farm. Warren J stated that the profit
    “in the form of the taking of grass, is enjoyed by the grazing of ponies; arguments about whether a benefit to the pony is also a benefit to the Farm or whether the ponies are rendered happy and content are beside the point.”
Despite disagreeing with the adjudicator’s approach to assessing whether a profit could exist here, the court emphasised that its findings did not necessarily mean that the appellant had established the right sought; the actual use of the Triangle had to be examined. Since a judgment on the extent of any right enjoyed by the appellant required a decision concerning the maximum number of ponies grazing on the Triangle and the adjudicator’s conclusions on this issue of fact were unclear, the court remitted the case to the adjudicator for a finding on this point and overall determination of the application.

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