Andrew Mark Metson Parker v Jamie Trevor Roberts
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Coulson,Lord Justice Lewison |
| Judgment Date | 07 February 2019 |
| Neutral Citation | [2019] EWCA Civ 121 |
| Docket Number | Case No: A3/2018/1479 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 February 2019 |
[2019] EWCA Civ 121
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
PROPERTY, TRUSTS AND PROBATE LISTS
Mr Hollington QC, sitting as a Deputy Judge of the High Court
[2018] EWHC 1206 (Ch)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
Lady Justice King
and
Lord Justice Coulson
Case No: A3/2018/1479
Adam Rosenthal (instructed by Sydney Mitchell LLP) for the Appellants
John Antell (instructed by Direct Access) for the Respondent
Hearing date: 18th December 2018
Approved Judgment
Mr Jamie Roberts (the Respondent) wishes to build a substantial property on land he owns to the rear of a house he owns in Surrey (“the yellow land”). The Respondent has planning permission to build the house, but the plan will have to be aborted unless he can establish: (i) that there is no effective restrictive covenant preventing him from building on the site notwithstanding that he has planning permission and (ii) that he can provide access to the plot by establishing that there is a right of way over a private road (the private road) owned by his neighbours, Mr and Mrs Parker (the Appellants) which road runs alongside part of the Respondent's garden, but does not connect with the yellow land, the proposed building site.
By a judgment dated 21 May 2018, the judge found in favour of the Respondent, holding (i) that a restrictive covenant prohibiting building on the land had not been properly entered on the register within the meaning of s32(1) of the Land Registration Act and is not therefore enforceable (Land Registration Act s.29(1)), and (ii) that the Respondent, as the owner, has a right of way across the private road allowing access to the yellow land. The judge's findings, if upheld, mean that there is nothing now standing in the way of the Respondent proceeding with his planned development of the yellow land.
The Appellants accept the finding of the judge that the restrictive covenant (which was undoubtedly intended to prevent the land from being built upon) is in the event, unenforceable. They maintain their appeal however against the decision of the judge that the owner of the yellow land has a right of way over the private road. Should the Appellants succeed in their appeal, the effect will be that the Respondent's plan to build on the land using the private road as access to it will be frustrated.
In order to decide if the judge was wrong in law in reaching the conclusion that he did, it is necessary to trace (and understand) the convoluted conveyancing history in relation to the land in question.
The Conveyancing History
The plan below shows the land as it is presently held and readily identifies the issue between the parties. It is best understood if seen in colour. The Respondent owns the land edged in red (No 40) and he wishes to build a house on the yellow land which, it can be seen, is within the curtilage of the land edged in red. The Appellants' land is No 38 and includes the private road, which is owned by them and coloured brown. The private road goes along the side of No 40 and continues beyond the Respondent's land, to a forecourt in front of the Appellants' house at No 38. There is insufficient space to create an entrance to the yellow land through the front part of the Respondent's land at No 40 and, it follows therefore that, unless there is a right of way along the private road, from which to gain access, the yellow land will become inaccessible if treated as an entity separate from the rest of No 40.
As of 17 February 1923, a Julius Fredrick Gems owned all the land in the vicinity, including the private road. In that year, Mr Gems conveyed the land now owned by the Appellants and the Respondent to a Gladys Muriel Hird. Mr Gemms retained ownership of the private road but granted a right of way over it to Mrs Hird.
There is then a gap in the conveyancing history, but by 1950 some, or all, of the land that had been conveyed to Mrs Hird (and which had the benefit of a right of way over the private road) was owned by a John Leslie Smith. Mr Smith in due course sold off the land piecemeal, although the private road itself continued to be owned by Mr Gemms and subsequently by his descendants. It is the subsequent transactions of Mr Smith that are the focus of the present dispute.
By a conveyance in 1950 (“the 1950 Conveyance”) Mr Smith conveyed part of the land that he owned to a Caroline Mildred Anne Bruce (“Mrs Bruce”). That land (“the land sold”) included what is now No 38 (the Appellants' land) and No 40 (the Respondent's land) but did not include the yellow land (called “the ponds” in the conveyance). The private road remained separate and stayed in the ownership of Mr Gemms, although the land sold by Mr Smith to Mrs Bruce was conveyed to her together, once again, with a right of way over the private road.
It can be seen by reference to the plan that, as a result of the 1950 conveyance, what is now the yellow land, became entirely separate from the land sold; it was not conveyed to Mrs Bruce by the conveyance, it remained in the ownership of Mr Smith and did not adjoin the private road. That separation was underlined by the fact that the conveyance specifically provided, at Clause 2, that it was “hereby agreed and declared”:
“(i) The Purchaser (Mrs Bruce) was not entitled to any right or access to or use of the ponds. ( the yellow land) and”
(iii) The Vendor (Mr Smith) or other owners from time to time of the adjoining land (including the yellow land) shall not be entitled to use the private road.”
It was agreed at trial that Clause 2(iii) of the 1950 Conveyance could not operate as a release of the right of way over the private road, because the descendants of Mr Gemms still retained ownership of the private road and therefore, neither Mr Smith, as vendor, nor Mrs Bruce, as purchaser, owned the road at the time of the 1950 conveyance.
In the following year, 1951, Mrs Bruce acquired the private road from a descendent of Mr Gemms. By a combination of the 1950 and 1951 Conveyances; (i) Mrs Bruce now owned No 38, the private road and No 40 which included the strip of land between the road and the yellow land (coloured in blue on the plan “the blue strip”); (ii) The right of way over the private road granted by the 1923 Conveyance was released.
On 31 October 1956, Mrs Bruce transferred all her land, including the private road, to a Mr Milne, who in turn sold it to Mr and Mrs O'Callaghan.
Twelve years later, on 6 May 1968, Mr Smith, who still owned land in the area including the yellow land, sold some of his remaining land bank to Enso Marketing. This land was on the north side of the yellow land, that is to say on the far side and furthest away from the private road. The yellow land was not at this time land-locked as it had the benefit of access through other land still retained by Mr Smith to the public highway at Fairmile Lane (which road can be seen on the plan running at right angles to the private road).
By the 6 May 1968 Conveyance, Mr Smith covenanted with Enso Marketing that he would not build on the yellow land. This covenant is of no direct relevance to the issues between these parties, as the benefit of the covenant was not annexed to land forming part of the land owned by the Appellants. Mr Rosenthal, counsel on behalf of the Appellants, submits that reference to the 6 May 1968 Conveyance and the restrictive covenant can however provide an aid to the construction of the crucial transfer with which this court is concerned, which transfer is dated nine days later on 15 May 1968 (“the 1968 Conveyance”) and which contains a mirror covenant.
In 1968, therefore, Mr and Mrs O'Callaghan owned No 38 and No 40, including the blue strip. The yellow land, it will be recalled, was still owned by Mr Smith.
By the 1968 Conveyance, Mr and Mrs O'Callaghan sold back to Mr Smith the land that is now the front part of No 40, adjacent to the private road and facing onto Fairmile Lane (“the West No 40 land”). Mr Smith now, again, owned both this parcel of land and the yellow land; which together make up the land known as No 40, edged in red on the plan. The O'Callaghan's, however, retained ownership of the private road. As of the 1968 Conveyance, therefore, Mr Smith owned the whole of what is now No 40, albeit held under two separate conveyances; the yellow land since before 1950, and the balance of the land that now makes up No 40, (“the West No 40 land”) by virtue of the 1968 Conveyance.
As a consequence of the 1968 Conveyance: (i) for conveyancing purposes, the yellow land and the blue strip which sits between the yellow land and the private road, were held under separate conveyances but owned by the same person and (ii) for the first time since 1951 (when Mrs Bruce had bought it) the private road was in separate ownership from the blue strip of land lying between the private road and the yellow land; and therein lies the difficulty with which the judge was faced.
The 1968 Conveyance:
The 1968 Conveyance (whose plan refers to the parcel of land that is called the “yellow land” in this judgment as “the green land”) described rights of way and restrictive covenants as follows:
“1.…the vendor as beneficial owners hereby transfer to John Leslie Smith (purchaser) the land shown and edged with red on the plan bound up within and being all that piece or parcel of land forming a part of Eton Grange Cottage… Together with full and free right and liberty for the purchaser and his successors in title and all persons authorised by him or them (in common with all other persons who have or may hereafter have the like right) at all times hereafter and for all purposes...
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