Adrian Gott (as personal Representative of the Estate of the Late Walter James Gott) v John Lawrence and Others
| Jurisdiction | England & Wales |
| Judge | Recorder Halliwell |
| Judgment Date | 14 January 2016 |
| Neutral Citation | [2016] EWHC 68 (Ch) |
| Docket Number | Claim No A5QZ4796 |
| Court | Chancery Division |
| Date | 14 January 2016 |
[2016] EWHC 68 (Ch)
IN THE LANCASTER COUNTY COURT
Recorder Halliwell sitting at Preston on
Claim No A5QZ4796
Mr Clifford Darton (instructed by Lyons Davidson, of 51 Victoria Street, Bristol BS1 6AD) for the Claimant.
Mr Jonathan Smith (instructed by Progression Solicitors Limited of 121 Queen Street, Ulverston, Cumbria) for the Defendants.
Hearing Dates: 2 nd–4 th and 11 th December 2015.
These proceedings involve a dispute about the title to a strip of land ("the Disputed Strip") near the village of Nether Kellet in a rural part of Lancashire. The Disputed Strip forms the site of an old occupation road. The Claimant is the personal representative of the estate of his father, the late Walter James Gott ("the Deceased"), who passed away on 10 th July 2013. In that capacity, he is the freehold owner of the land to the western side of the Disputed Strip. The Defendants are the freehold owners of the land to the eastern side of the Disputed Strip.
Over the years, the occupation road fell into disuse. It is apparent from the historical photographs that, at its northern end, it became overgrown with grass and dense foliage. There are also signs that, at one point, the remains of an old tree and other vegetative detritus were placed across the site of the road to impede access (3/12/208).
During the Summer of 2009, the Deceased applied for planning permission for the construction of a large agricultural shed for free-range hens. It was envisaged that, whilst the shed would be constructed on land to the West of the Disputed Strip, it would be accessed from a newly constructed road on the Disputed Strip itself. Although planning permission was apparently obtained in September 2009 or thereabouts, preliminary works were commenced prior to the grant of planning permission, including the removal of a hedge (3/8/39).
The works were substantially completed during 2010. Land was excavated in preparation for the construction of the new shed, spoil was deposited on the Disputed Strip and the site of the old road was re-surfaced with compacted hard-core. A gate was installed on the new road and secured by lock. During the works, the Deceased's contractors caused damage to the dry stone wall on the eastern side of the Disputed Strip.
In April 2012, the parties entered into correspondence in which the First Defendant requested a key and evinced an intention to carry out works of repair to the wall with a request for a financial contribution from the Claimant. No such works were commenced. However, following the Deceased's death, the Claimant arranged for the re-construction of part of the wall. He also embarked on the removal of a long section of the wall and, in its place, the construction of a stock proof fence. This culminated in the dispute which has given rise to these proceedings.
Suing as "the executor of the estate of WJ Gott Estate", the Claimant initially brought these proceedings against the First Defendant only. Having obtained a limited grant of representation, Messrs Gardner and Jump were substituted as claimants. In due course, the Second, Third and Fourth Defendants were added as defendants. Having obtained a grant of representation himself in substitution for the earlier grant, the Claimant was formally re-substituted as claimant under a court order dated 6 th March 2015.
The case was tried before me on 2 nd–4 th and 11 th December 2015. On the opening day of the trial, I visited the site in the presence of the Claimant, the First Defendant and Third Defendants and their legal advisers. At the end of the trial, I heard counsel's oral closing submissions. However counsel also provided me with additional written submissions dated 18 th December and 23 rd December 2015 for which I am grateful. I am also grateful to them for their help during the trial and, more specifically, for the skill and discretion with which their submissions were presented.
The Claimant gave evidence himself as a witness. On his behalf, I also heard evidence from some five other witnesses of fact, Suzanne Pearson, Glenn Haggart, Peter Gott, Derek Bull and Matthew Gott.
None of the Claimant's witnesses could be characterised as independent witnesses. They each have a family or employment connection with the Claimant. It is also an unfortunate aspect of the case that, although solicitors were instructed on his behalf, the Claimant took it upon himself to obtain the witness statements, introducing the witnesses to the issues and liaising with them in connection with the preparation of the witness statements themselves. Initially, the Claimant denied, in cross examination, that he liaised with the witnesses for this purpose but this was difficult for him to maintain when referred to his witness statement dated 19th May 2015 (1/2/174). Once referred to the witness statement, the Claimant accepted that he "briefed" the witnesses on "the situation". Whilst, in cross examination, the Claimant sought to minimise the extent of his involvement, it is difficult to avoid the conclusion that he discussed at least some issues of evidence with the witnesses-in particular with Peter Gott, Derek Bull and Matthew Gott. This is reflected in the contents of their witness statements and it is an aspect of the case to which I shall refer later.
The quality of the evidence of the Claimant and his witnesses was mixed. The Claimant himself was at times evasive and prone to argument. With the exception of Glenn Haggart, they were unwilling to make factual concessions however implausible their evidence.
On behalf of the Defendants, I heard the oral evidence of the First Defendant only. The First Defendant was at times prepared to make concessions where he perceived it right to do so. However, he was also an obstinate witness whose perceptions were by no means infallible and, at times, his recollection of events was unreliable.
In these circumstances, I have reluctantly come to the conclusion that it is necessary for me to regard all the oral evidence before me with a measure of caution and to look for corroborative evidence, where available, on the more contentious factual issues.
I have read the witness statement dated 7 th July 2015 of the Third Defendant (1/5/318). Unfortunately, having attended the first two days of the trial, he was taken ill during the third day suffering from heart palpitations and was thus unable to give evidence orally. It is not suggested his absence was without good reason. However, in view of the fact that his evidence was not tested in cross examination, I shall give only limited weight to the aspects of his evidence that are in issue.
I also heard expert evidence from Messrs Michael Mashiter and Simon Mair, chartered surveyors on behalf of the Claimant and the Defendants. In addition, I was provided with expert reports from Mr Andrew Lynch, a chartered land surveyor, Dr Ralph Sibley, an engineering geologist, and Mr Alistair Johnston, an expert veterinarian.
(1) Documentary title and Rights of Way
The Disputed Strip and its surroundings were once part of an extensive area of common land. There was a manorial waste and the lord of the manor was one Alexander Butler. However, by 1810, other landowners had acquired interests in the land. In 1810 a private Inclosure Act was enacted providing for the appointment of Commissioners to divide, allot and procure the inclosure of the land with a view to improving the agricultural yields. In the preamble to the Act, Alexander Butler was named as lord of the manor; Thomas Green and Joshua Lodge were named as two of the landowners.
On 20 th August 1815, the Commissioners' Award was proclaimed. The Commissioners divided and allotted the land with reference to a plan on which they made provision for roads and highways. Allotment 22 was allotted to the devisees of Thomas Green and Allotment 30 was allotted to Joshua Lodge. To the South, Allotment 52 was allotted to the Trustees of Haversham School and Allotment 48 was allotted to Thomas Croft.
To the North, Allotments 22 and 30 were bounded by a road to be called and known by the name of Hornby Road. In order to provide Allotments 52 and 48 with access to Hornby Road, an occupation road-to be known as Latrigg Road-was to be created between Allotments 22 and 30. The operative provisions were as follows.
"…we the said commissioners do set out and appoint one other private or occupation road or way of the width of twenty feet as the same is delineated in the said general map or plan annexed to this our award and deposited herewith branching from the said Hornby Road hereinafter by us the said commissioners and set out and appointed in a southerly direction to the north east corner of an allotment by us the said commissioners allotted and set out to the Trustees of Haversham School which said private road we the said commissioners have and do order and direct shall be called and known by the name of Latrigg Road and we do award order and direct that the same private or occupation road shall be forever hereafter used by the owners and proprietors of the land adjoining thereto the Trustees of Haversham School and Thomas Croft their Heirs Successors and Assigns and no other persons and by the said Devisees of the said Thomas Greene and the said trustees of Haversham School and Thomas Croft, their Heirs and Assigns shall be from time to time repaired and kept in repair in the proportions following namely eighty yards thereof commencing at the Hornby Road aforesaid by the Devisees of the said Thomas Green one hundred and ten yards thereof by the Trustees of the Haversham School and one hundred...
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