Commission for New Towns and Another v J. J. Gallagher Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Neuberger |
| Judgment Date | 16 December 2002 |
| Neutral Citation | [2002] EWHC 2668 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BM 130237 |
| Date | 16 December 2002 |
[2002] EWHC 2668 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
From the Birmingham District Registry
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Neuberger
Case No: BM 130237
Mr Kim Lewison QC and Mr Jonathan Karas (instructed by DLA) for the Claimants.
Mr John Randall QC and Mr Conrad Rumney (instructed by Messrs. Wood Glaister, Birmingham) for the Defendant.
Hearing dates: 25th to 29th November 2002
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
INTRODUCTION
Outline
The Commission for New Towns ("the Commission") owns freehold land in Worcestershire and Warwickshire known as the Wynyates Triangle ("the triangle"). As its name suggests, it is an area of land roughly triangular in shape, with its base in the north, and its (flattened) apex in the south. The triangle is bounded by the Coventry Highway to the north, the Birmingham Road to the west, and an overgrown and muddy lane known as Beoley Lane to the west. With the exception of a very small section in the northwest (which is in Worcestershire) the triangle is in Warwickshire. The Commission and its statutory successor, English Partnerships, wish, in due course, to develop the triangle for housing.
The defendant, JJ Gallagher Limited, contends that it is the freehold owner of Beoley Lane, and that the Commission, as owner of the triangle, has no rights over Beoley Lane, other than as a bridleway. If that is right then, although it has little, if any, apparent significant intrinsic value, Beoley Lane would be potentially worth a lot to the defendant as ransom land. That is because it is not practicable to obtain vehicular access to (or egress from) the triangle from (or onto) the Coventry Highway or the Birmingham Road, and it is not practicable to obtain access to (or egress from) the triangle across the short southern boundary.
The Commission contends that Beoley Lane is not ransom land as the defendant contends, for one or more of the following three reasons:
i) It is in fact the Commission, and not the defendant, which owns the freehold of Beoley Lane,
ii) If the defendant owns the freehold of Beoley Lane:
(a) The Commission, as owner of the freehold of the triangle, has a right of way for all purposes over Beoley Lane; and/or
(b) Beoley Lane is a public highway for all purposes – i.e. a public carriageway.
Worcestershire County Council is the second claimant in these proceedings; it is only interested in the third of the three issues, in respect of which it supports the Commission's case. It should be emphasised that the defendant accepts that the public has the right to use Beoley Lane as a bridleway, but contends that there is no public right to use it as a carriageway. In other words, the third issue is not whether Beoley Lane is a highway, but whether the public have the right to drive vehicles along it.
The first issue turns mainly on the effect of a conveyance pursuant to which the Commission's predecessor in title, Warwickshire County Council ("the Council"), acquired the triangle in 1971. The second issue can be dealt with comparatively shortly. The third issue requires consideration of the effect of various maps, awards and other documents prepared over the period between 1722 and 1942, with the assistance of expert evidence. Before turning to the three issues, I propose to summarise the position on the ground.
The Position on the Ground
Until about 1973, when the Coventry Highway was constructed across Beoley Lane, about one-third of the way along its route from the south, Beoley Lane was a lane of over 9 metres or 30 feet in width and about one and a half miles long. It runs, in the main, in a north-south direction. At its northern end, it meets the southern side of a public carriageway running east-west in a village called Holt End, which is the parish of Beoley, in Warwickshire. Towards its southern end, after it has passed the triangle to its east, Beoley Lane turns east and joins the western side of the Birmingham Road. To the immediate east of this end of Beoley Lane, on the eastern side of the Birmingham Road, is a village called Mappleborough Green, in the parish of Studley, Worcestershire. Until around 1960, the only buildings adjoining Beoley Lane were a farmhouse and associated farm buildings, being Lower House Farm, on the western side of Beoley Lane, very near its southern end.
Around the point that Beoley Lane turns east towards the Birmingham Road, and just to the south of Lower House Farm, Beoley Lane passes through what used to be a common ("the Common") which abuts the Birmingham Road. The Common was enclosed pursuant to the Studley Inclosure Act 1817 ("the 1817 Act") which led to an Inclosure Map and an Inclosure Award in 1824. The triangle itself formed part of a substantial estate to the east of Beoley Lane, known as the Gorcott Hall Estate, which existed under that, or a similar, name for a substantial time. It seems clear that the owners and occupiers of the Gorcott Hall Estate were not commoners so far as the common was concerned.
Beoley Lane has become more impassable and less used over the past six decades (and possibly over a longer period). The oral evidence establishes that, since 1940, there has been little use of that part of Beoley Lane, which is now to the south of the Coventry Highway, with the exception of the southern most 300 metres or so. I heard oral evidence from three witnesses of fact, who were cross-examined, and I have read evidence in the form of five statements from witnesses of fact who were not cross-examined. The evidence of three of these witnesses was not challenged; the other two witnesses did not attend for cross-examination. Between them, these various witnesses gave evidence from their own knowledge as to the state and use of Beoley Lane from 1930 to the present day. It seems clear that, at least up to the end of the Second World War, the southern part of Beoley Lane (i.e. that part which is now to the south of the Coventry Highway) was used by members of the public on foot and on horses, moderately regularly, but not intensively. There is also evidence to suggest that it was used "on a regular basis" by cyclists, at least during the 1940s and 1950s, but I am reluctant to place much weight on that evidence, because it was given only by the two witnesses whom the defendant wished to cross examine, but was unable to do so. However, there was evidence from another witness, whom the defendant chose not to cross examine, that, during the 1940s, the southern end of Beoley Lane was used by "an occasional cyclist" and by farmers "occasionally driv[ing] their tractors".
By the time one gets to the second half of the 1950s, the evidence of Mr Alan Turney, the Farm Manager of the Gorcott Hall Estate between 1954 and 1960, appears to me to paint an accurate picture. While he "did not have cause to pay [Beoley] Lane much attention" he described it as "always overgrown, usually waterlogged, and in many places impassable". During his six or seven years working on the Gorcott Hall Estate, he "never saw anybody using Beoley Lane".
It also appears that, during the 1930s, Beoley Lane was occasionally used for motor cycle rallying, although the evidence clearly established only that it was the northern section that was used for that purpose; it may be that the motorcyclists turned off before they reached the southern section. More recently, in the early 1970s, it appears that Beoley Lane was used by recreational motor cyclists, in groups of three or four around four times a year. The then Principal Estates and Valuation Officer of Redditch, Mr Derek Owen, walked the whole length of the route of Beoley Lane around 1989. He described it as "very overgrown in places" but he said that he could walk along it. He produced some photographs which show that, at least in a significant part, Beoley Lane was muddy and waterlogged.
It is also clear from the evidence that, over the past 60 years or so, a substantial part of the route of Beoley Lane has been under water, particularly, I suspect, in winter. For some of its length, the whole width of Beoley Lane has been under water, although that does not appear to have prevented passage, because the water has not been very deep. However, it does appear that, particularly in the north, the water was viewed as a sufficient problem for a diversion off Beoley Lane to have been used, at least before 1940. Elsewhere along its length, especially in the south, part of the width of Beoley Lane appears not merely to have been underwater, but to have been a significant stream.
In early December 2002, I visited the site and saw Beoley Lane in its present state. From the north, Beoley Lane starts as a wide path going south from Holt End village to the east of Beoley, although it is not easy to tell now where one village starts and the other village stops, both villages being just to the northeast of Redditch. As one progresses southwards, after about 50 metres, Beoley Lane becomes (on its eastern side) a relatively narrow and somewhat muddy bridleway, and (on its western side), a fairly full running stream. Approached from its southern end, Beoley Lane initially goes westwards off the Birmingham Road and, after about a hundred metres, it turns northwards. For the first 300 metres or so, Beoley Lane is covered with concrete and then tarmacadam. To its immediate west are Lower House Farm and other houses which have been constructed, to judge from their appearance, in the past thirty years.
The tarmacadam...
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