British Waterways Board v (1) Pritpal Singh Toor (2) Navtaj Kaur Toor
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 2006 |
| Neutral Citation | [2006] EWHC 1256 (Ch) |
| Docket Number | Case number HC 05 01640 |
| Court | Chancery Division |
| Date | 12 May 2006 |
[2006] EWHC 1256 (Ch)
IN THE HIGH COURT OF JUSTICE
HANCERY DIVISION
ST DUNSTAN'S HOUSE
NEW FETTER LANE
LONDON
Her Honour Judge Frances Kirkham sitting as a Judge of the High Court
Case number HC 05 01640
Mr Mark Warwick of Counsel (instructed by Addleshaw Goddard) for the Claimant
Mr James Harris of Counsel (instructed by Debidins) for the Defendants
British Waterways Board seek a permanent injunction to restrain the defendants from trespassing on their land and they claim damages for the defendants' trespass.
The defendants deny that they have trespassed. They say that the claimant's title to the land in question was extinguished by the end of September 2000 by reason of the defendants' adverse possession of the land from the early months of 1987. The claimant denies that their title has been so extinguished.
The defendants contend that, even if their claim for adverse possession does not succeed, the claimant should not be granted a permanent injunction.
There are also issues concerning the damages which the claimant claims.
I am obliged to Mr Warwick and Mr Harris, counsel for the claimant and defendants respectively, for their assistance with this case.
Background
This case concerns land in Brentford, close to the Grand Union Canal. The claimant now owns a substantial area of land on which are sited old commercial buildings. Many of these buildings are occupied by short-term tenants or licensees. The claimant has applied for planning permission for redevelopment, which they describe as a plan for regeneration of the area. The proposed development comprises about 1,000 houses, buildings for retail and business use, community facilities and services including a doctor's surgery, a crèche, a health and fitness centre; an existing bus station will be rebuilt. Planning consent has not yet been granted. The matter is to go to appeal, in July of this year.
The defendants own land adjacent to the claimant's land. They run a motor repair business, M P Motors, from their premises. The defendants suggest that they are the odd man out, and by inference, a nuisance to the claimant in relation to the regeneration plans. This is not the impression I have gained. Mr Pope, speaking on behalf of the claimant, said that the defendants' business would fit in well with the claimant's proposal for mixed use, and I see no reason to take a different view.
It is necessary to give a detailed description of the relevant properties and some of the history of their acquisition by the respective parties.
In 1987, the defendants became registered proprietors of 4a East Street, Brentford. They run their motor repair business from this property. To the south western side of these premises is an alleyway. The defendants acquired title to part of the alleyway.
In 1999 the claimant acquired title to two buildings (numbers 2 and 3 Commerce Road) on the other side of the alleyway. The claimant also acquired title to part of the alleyway.
The claimant and defendants do not agree where the common boundary lies within the alleyway. That is not material to this dispute. It is, however, accepted that each has title to part of the alleyway and that there is a common boundary.
The alleyway itself is wide enough for two cars to pass side by side. It runs at 90 degrees from East Street for some distance, then turns 90 degrees to the south west and runs for a similar distance and opens into Commerce Road. At the point where the alleyway turns to the south west, is a building on the far side of the alleyway, which juts out into the alley, reducing its width at that point.
At the rear of 2 and 3 Commerce Road are doorways through which the occupants of those buildings have been able to enjoy access to and egress from the alleyway opposite the defendants building. Fire regulations require these doors to be maintained as part of fire exit routes.
On 5 March 1987, Falcon Pipe Group Ltd transferred to the defendants 4a East Street and part of the alleyway. By deed dated 23 March 1987, between the defendants and Falcon Pipe Group Ltd, Falcon granted to the defendants some limited rights of access to the alleyway.
On 28 August 1997, by deed entered into between Show Presentation Services Ltd ("SPS") who were owners of 2a East Street, and the defendants, as owners of 4a East Street, the defendants surrendered some rights over the rear part of the alleyway.
In April 1999, SPS transferred numbers 2 and 3 Commerce Road to the claimant under title AGL4087. Paragraph 22 of the charges registrar of title AGL4087 reads as follows:
"The land tinted yellow on the filed plan [i.e. part of the alleyway] is subject to the following rights granted by a deed dated 23 March 1987 made between (1) the Falcon Pipe Group Ltd (grantor) and (2) [the defendants] (grantee):-
The grantor hereby grants to the grantee the right of ingress in the case of emergency only on to over and along the access way … together with the right to enter the said access way from time to time when necessary with or without workmen and apparatus to carry out repairs and maintenance to the [south-western] wall and roof of the property comprised in the above title but not further or otherwise".
I refer to this as the paragraph 22 rights.
There may be a difference between the parties as to the meaning of paragraph 22. However, there is no issue before this court as to the construction, i.e. the true meaning, of that wording. I make no findings as to that matter. It did, however, become apparent that the defendants are concerned about what they consider to be potential breaches by the claimants of the defendant's rights to use the alleyway. The claimants acknowledge that the defendants have the rights set out in paragraph 22. The defendants contend that the claimant's behaviour, actual and threatened, in relation to the defendants' paragraph 22 rights is relevant to the question whether (if the defendants adverse possession claim fails) the injunction should be made permanent. I deal with that later.
The claimant has leased both 2 and 3 Commerce Road. The leases included grants of rights of way over the front part of the alleyway, but using different wording. Variations in the wording of those grants will have relevance, if at all, to any dispute between the parties as to the scope of the defendants' paragraph 22 rights but not to the issues in this case.
I heard evidence from the following:
Mr John Vokins, a chartered surveyor, and senior partner of Messrs Vokins, a firm which was retained by the claimant in connection with the land the subject of this dispute.
Mr Graham North a chartered surveyor and partner in Anstey Horne & Co, party wall specialists retained by the claimant in connection with the relevant land.
Mr Wayland Pope, a director of ISIS Waterside Regeneration Ltd, a company responsible for the development of the Commerce Road area.
Mr Robert Parnell who was, until mid 2000, employed by the claimant as senior surveyor in their Estates Department. He managed the Brentford site on behalf of the claimant and had some dealings with Mr Toor.
I heard evidence from Mr Toor himself and from Mr Richard Knights, general works manager for the defendants.
The defendants filed a witness statement by Mr Paintal. He was abroad at the time of the trial and did not give evidence. I have read his statement. The evidence which it contains does not add to the evidence given by others. Mr Paintal was not here to be cross-examined. I do not rely on the matters contained in his statement.
Mr Richard Symonds, a solicitor employed by Messrs Addleshaw Goddard the claimant's solicitors in relation to this matter, did not give evidence. His witness statement deals with the claimant's title and the events from February 2005 onwards, including the application made by the claimant for an interim injunction in June 2005.
I found all those who gave evidence to be helpful and straight forward in their evidence. It was, however, clear that Mr Toor had a poor recollection of events and at times was incorrect in his recollection, for example as to the dates of some events.
Mr Toor had been in partnership running a motor repair business in Ealing. That partnership was dissolved and Mr Toor decided to acquire 4a East Street and run his motor repair business from there. He took some of the partnership customers with him. He bought 4a East Street from the Falcon Pipe Group, who had used the premises to manufacture pipes for smoking tobacco. The defendants acquired their title in 1987 and began work to the interior of the building to make it suitable for a motor repair business. Initially, Mr Toor worked on his own. He built up the business and began to employ others from 1988.
In January 2004, a fire damaged the building at 4a East Street. The damage was so extensive that complete rebuilding was needed. In January 2004, the claimant offered the defendants alternative premises, on a short-term lease. Nothing came of that proposal.
The defendants applied for planning permission to rebuild the damaged property. Inadvertently, the claimant was not notified of this application.
Work to the defendants' new building began in October 2004. The defendants demolished the old building and erected a new building in its place. The new building involved deep excavation and construction of a basement. It now appears that the new building has been built on an almost identical footprint to that of the old building. There are issues concerning that, to which I return in due course.
The claimant began to raise concerns about the new building and its design from about the beginning of December 2004. By letter dated 1 December 2004, Mr Vokins...
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