Chadwick and Others v Abbotswood Properties Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewison |
| Judgment Date | 17 May 2004 |
| Neutral Citation | [2004] EWHC 1058 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: WC 029016 |
| Date | 17 May 2004 |
[2004] EWHC 1058 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Lewison
Case No: WC 029016
Kathryn Purkis (instructed by Bolitho Way) for the Claimant Philip Glen (instructed by Paris, Smith & Randall) for the Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr. Justice Lewison
Mr Justice Lewison:
In Alan Wibberley Building Ltd v. Insley [1999] 1 W.L.R. 894 Lord Hoffmann said (at 895):
"Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army."
This is another such dispute.
Professor and Mrs Chadwick live at Park House, St Giles Close, Winchester. Park House is a new house, built in 1996. It was built by Abbotswood Properties Ltd, which is a company run and owned by Mr and Mrs Hauser. Mr Hauser is a builder, although trained as an architect, and Mrs Hauser is an architect. They live at Greenwood House, St Giles Close, Winchester; next door to the Chadwicks. Greenwood House is also a new house, also built in 1996 as part of the same development scheme as Park House. Greenwood House is at a lower level than Park House. It is approached by a curving drive, which curls round the plot on which Park House is built. Because of the difference in levels between Park House and Greenwood House, there is a steep bank between the south eastern edge of the drive leading to Greenwood House and the flat area of the garden belonging to Park House. The difference in levels is of the order of four metres. On the top of the bank there is a close boarded fence. At the bottom of the bank there is a dwarf retaining wall. The question I have to decide is: who owns the bank?
The story begins in 1995. At that time the Chadwicks lived at 12 St Giles Close, which is next door to Park House. They owned land adjoining 12 St Giles Close which had development potential. That land fell away from the back garden at 12 St Giles Close; and the rear of the back garden was marked by a post and rail fence. In July 1992 they obtained planning permission to develop part of the land by building three detached and two semi detached houses. That plan shows five plots. It also shows the post and rail fence at the rear of 12 St Giles Close. The western boundary of plot 1, as shown on that plan, projects to the north of the post and rail fence. This northward extension was called "the dog-leg" in evidence. It is probable that the intention of the draftsman of the plan was that plot 1 should include the bank, although the positioning of a hedge shown halfway along the western boundary of plot 1 is a slight indication to the contrary.
However, by early 1994 the Chadwicks had agreed in principle to sell the development land to Abbotswood Properties Ltd (then called Hauser Greenwood Ltd, the name by which I shall call it from now on). The development land amounted to about 1.2 acres. Hauser Greenwood had put in their own planning application, and the agreement in principle was subject to the grant of planning permission in the revised form. The revised planning permission was granted on 9 May 199The plan by reference to which the planning permission was granted also showed five plots. It was the Chadwicks' intention to live in a new house to be built on plot 1 (which subsequently became Park House) and the Hausers' intention to live in a new house to be built on plot 5 (which subsequently became Greenwood House). The plan showed the curving drive leading to plot That plan is much less clear in the area of the boundary between plot 1 and 12 St Giles Close. It is possible to read it as including the dog-leg; and it is possible to read it as excluding the dog-leg. The reason is that the draftsman of that plan has shown a number of trees at the junction line, so that the boundary line has to be extrapolated.
On 23 August 1985 the Chadwicks entered into a contract with Hauser Greenwood for the sale of the development site. The development site was referred to in the contract as "the Property" and was described as:
"the land at St Giles Close Winchester and shown edged red on Plan No 1"
Plan 1 appears to have been based on the Ordnance Map scale 1:1250. By clause 3 of the contract Hauser Greenwood agreed to build a new five bedroom house on "Plot 1" by 31 July 1996. "Plot 1" was defined as:
"the land edged blue on the Plan 2"
Plan 2 was a larger scale plan than Plan 1, although it is not possible to tell, simply from looking at it, what its base map was. It showed a roughly trapezoidal area of land. The north western boundary of the land edged blue forms a slight concave curve, and there are T marks along it pointing inwards into Plot 1. Inside the boundary shown on that plan there is a hatched area. The hatched area represents the bank. At the corner of the plot, where the north western boundary meets the western boundary is a point marked "B", and just to the south of point "B" is another point marked "A". Point "A" is placed where the then existing fence at the rear of 12 St Giles Close stood. Thus from the plan it appears that the intended boundary of plot 1 extended to the north of the fence at the rear of 12 St Giles Close. This plan, therefore, showed the dog-leg. The plan was annotated as follows:
"1. Boundary positions A, B, C to D may be varied subject to planning but not so as to vary the flat areas of Plot 1
2. Area shown hatched to be landscaped by purchaser."
Despite Mrs Hauser's suggestion to the contrary, I consider that the phrase "subject to planning" would have been understood to refer to the requirements of the town and country planning process, rather than to the discretion of the architect to plan the development as she thought fit. Clause 3 also gave the Chadwicks the option of repurchasing Plot 1 once the new house had been completed. If the option were exercised, Plot 1 was to be transferred by a transfer set out in the Second Schedule to the agreement. The plan attached to the draft transfer follows the form of Plan 2, except that the colour in which Plot 1 was edged was red rather than blue, and the remainder of the development site was shown edged blue. But the essential features of the plan, including the T marks, the dog-leg and the annotations, were the same.
On 11 September 1995 Hauser Greenwood's solicitors wrote to the Chadwicks' solicitors proposing changes in the arrangements for transfer. Their letter was accompanied by a plan. That plan showed the remainder of the development site split into two plots (Plot A and Plot B). Plot A eventually became the site of Greenwood House. What was proposed was that Plot A should be transferred direct to the Hausers, while Plot B should be transferred to Hauser Greenwood, as originally envisaged. The plan also showed a curving area, hatched vertically on the plan, which was to be included in Plot A. This area follows the delineation of the driveway to Plot A. In response to a query from the Chadwicks' solicitors, Hauser Greenwood's solicitors said on 14 September that the diagonal hatching "relates to some land which is to be landscaped by our client and is not relevant to the boundaries of the plot." The diagonal hatching appears to include the bank. However, the Chadwicks did not accede to the request to split the transfers in that way, for fear of adverse tax consequences.
So when the contract was completed on 20 September 1995, there was only one transfer in favour of Hauser Greenwood; and it related to the whole development site. However, on the same day Hauser Greenwood transferred Plot A and the hatched area to the Hausers personally. That transfer has, unfortunately, not survived. Mr and Mrs Hauser personally paid £50,000 to Hauser Greenwood for the transfer to them.
The two parcels were separately registered at the Land Registry. The parcel transferred to Hauser Greenwood was registered on 10 November 1995 under Title No. HP 508640. The parcel transferred to the Hausers was registered on 25 April 1996 under Title No. HP 516031. It consisted of what would become Greenwood House, together with a strip of land in the rough shape of a serpentine U, which was the intended site of the access way.
On 27 October 1995 Hauser Greenwood were granted an amended planning permission. The approved amendment related to the position of the access drive. The amended permission was subject to conditions. Condition 2 required the approval by the local planning authority of a landscaping plan. That plan had to show not only the trees to be planted on the site but also:
"the alignment, height and materials of all walls fences and other means of enclosure".
Construction began in the spring of 1996. The construction of the driveway leading to Greenwood House necessitated a lot of excavation and earth moving. However, by the end of May 1996 it had become apparent that the position of the driveway as actually laid out was further to the east than the contract plan had envisaged. This had the effect of reducing the site of Park House, and, in particular, reducing the amount of flat land at the top of the bank. The Chadwicks, through their solicitors, complained to Hauser Greenwood. As a result, a meeting was arranged for Tuesday 4 June 1996.
By this time Hauser...
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