Frank Dickinson and Another v Mojgan Cassillas
| Jurisdiction | England & Wales |
| Judge | Lord Justice David Richards,Lord Justice Longmore |
| Judgment Date | 11 August 2017 |
| Neutral Citation | [2017] EWCA Civ 1254 |
| Docket Number | Case No: B5/2015/1406 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 August 2017 |
[2017] EWCA Civ 1254
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT MANCHESTER
RECORDER KHAN
3SK00787
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
and
Lord Justice David Richards
Case No: B5/2015/1406
David Nicholls (instructed by the Bar Pro Bono Unit) for the Appellants
Joshua Shields (instructed by Stephensons Solicitors LLP) for the Respondent
Hearing dates: 20 July 2017
The parties to this appeal are neighbours. Mr and Mrs Dickinson, the appellants, live at 98 Bexhill Road, Davenport, Greater Manchester, and Mrs Casillas, the respondent, lives at 96 Bexhill Road. Both properties are detached houses on a housing estate developed in the late 1980's. Mrs Dickinson and Mrs Casillas respectively are the registered freehold owners of these properties.
The parties have been at loggerheads since about 2003. The flank wall of Number 96 is built along the boundary line with Number 98. Oddly, the gas and electricity meters for Number 96 are set into that wall, so they can be read only from the property of Number 98. A narrow drive runs beside the wall on Number 98's side of the line. Mr and Mrs Dickinson consider that Mrs Casillas has no right to go on to their land either to read the meters or to inspect the flank wall to see if any repairs are needed and they also object to the gutters on a short extension to the porch of number 96 overhanging the airspace to their property. Although Mrs Dickinson alone is the registered proprietor of Number 98, Mr Dickinson has been at least as much involved in this dispute as his wife and I will for convenience refer to Number 98 as their property.
To resolve the dispute, Mrs Casillas issued proceedings in the County Court at Manchester in May 2013 for declarations of her rights, as she saw them, and an injunction to prevent Mr and Mrs Dickinson interfering with them. The claim was tried before Recorder Khan, with both sides represented by counsel. After a two-day hearing, in which the parties and other witnesses gave evidence, the recorder gave a reserved judgment. He found in favour of Mrs Casillas on all points and made declarations and injunctions accordingly. On issues of disputed fact, he preferred the evidence of Mrs Casillas. He was highly critical of Mr and Mrs Dickinson, as regards both their conduct before the proceedings were issued and their evidence at the trial.
Permission to appeal was refused by the recorder and by Patten LJ on the papers, but granted on a renewed oral application by Gloster LJ following submissions by newly-instructed counsel. At the hearing of the appeal, Mrs Casillas was represented by Mr Shields, who appeared at the trial, and Mr and Mrs Dickinson were represented by Mr Nicholls who did not appear below and who took the case on a pro bono basis. I am grateful for the careful submissions of both counsel.
The issues turn largely on the terms of the transfers of two properties from the developer of the estate to their original owners. As would be expected, their terms for the most part mirror each other. The developer owned the entire estate and sold the individual properties as each house was built.
Number 96 was the first of the two properties in question to be transferred. By a transfer dated 6 April 1988, the developer E. Fletcher Builders (Midlands) Limited transferred the freehold title in Number 96 to Mr G.M. Duval and Miss C.A. Rains, who in turn transferred the property to Mrs Casillas in 2002. Number 98 was transferred by a transfer dated 15 April 1988 from the developer to Steven Dickinson, one of Mr and Mrs Dickinson's sons. It was bought to be their home and they moved into it on completion of the house, where they have lived ever since. Title to the property was transferred to Mrs Dickinson in about 2002.
The transfer of Number 96 was expressed to be of the land comprising the particular plot and "the house and buildings erected or in the course of erection thereon". At the date of the transfer, the house was still in the course of construction. The transfer also carried the rights set out in the first schedule to the transfer for the benefit of the transferees and their successors in title (including, therefore, Mrs Casillas) and it was subject to the rights and easements set out in the second schedule in favour of the developer and its successors in title of the adjoining property which included what became number 98. Mr and Mrs Dickinson therefore have the benefit of those rights and easements. There were "restrictions and stipulations" set out in the fifth schedule imposed by clause 2 of the transfer on the transferees and their successors in title.
The rights conferred for the benefit of the owners of Number 96, central to this appeal, are contained in paragraphs 3 and 4 of the first schedule.
Paragraph 3 contains the right relevant to the issue of the overhanging gutters. It provides:
"3. To erect and maintain roof verges eaves gutters and downspouts on buildings for the time being erected on the property transferred so that the same overhang and discharge surface water onto adjoining land included in the said estate and to have the foundations of the property hereby transferred underlying the said adjoining land."
Paragraph 4 is relevant to Mrs Casillas' claim to be entitled to go on to the land of Number 98 to inspect the state of her property and to read her gas and electricity meters. It provides:
"4. To enter with workmen tools and materials on adjoining land included in the said estate for the purpose of effecting such maintenance repair and decoration of the property transferred as may with more convenience be dealt with by access from the said adjoining land."
The second schedule contains rights in favour the owners of Number 98 as regards both gutters and rights of entry as follows:
"2. To erect and maintain roof verges eaves gutters and downspouts on buildings for the time being erected on adjoining land so that the same may overhang and discharge surface water onto the property transferred and to construct and maintain under the property transferred foundations of buildings constructed or to be constructed during the perpetuity period on the said adjoining land of the vendor.
The right to enter with workmen tools and materials on such parts of the property transferred as shall not for the time being have been built upon for the purpose following:-
(a) To erect buildings and boundary walls or fences on any adjoining land now or formerly of the company.
(b) To construct inspect repair and replace sewer drains in and under the property transferred and to connect thereto and by means thereof to drain any roads or buildings now constructed or hereafter to be constructed during the perpetuity period in or on any adjoining and adjacent land now or formerly owned by or hereafter to be acquired by the Company or its successors in title.
(c) For the purpose of effecting such maintenance repair and decoration of the buildings erected on the said adjoining land as may with more convenience be dealt with by access from the property transferred and of erecting buildings and boundary walls or fences on any part of the said adjoining land."
I will take each of the issues in turn, referring as appropriate to the judgment of the recorder and the submissions on behalf of the parties.
I start with the "inspection issue", that is, Mrs Casillas' claim to go on to the property at Number 98 to inspect her house to see if any works are needed. Mr and Mrs Dickinson accept, as they must, that Mrs Casillas is entitled by the express terms of paragraph 4 of the first schedule to the transfer "to enter with workmen tools materials and workmen….for the purpose of effecting such maintenance repair and decoration of the property transferred…". They submit that this does not include a right to enter to inspect the property to see if maintenance, repair or decoration is required or to enable builders and others to provide estimates for any works.
The recorder held that Mrs Casillas was entitled to have access for the purposes of inspection, because it was an ancillary right that was reasonably necessary to the exercise of the express right of access for the purpose of maintenance, repair and decoration. The only reasonable reading of paragraph 4 was that it included a right to access for inspection. The contrary interpretation, requiring the owner of Number 96 to arrive with tools, materials and workmen in case work was needed to be done, was absurd.
On this appeal, Mr Nicholls has submitted that, applying the principles of the construction of documents stated in Arnold v Britton [2015] AC 1619, paragraph 4 does not extend to a general right of inspection. Paragraph 4 does not in terms refer to any such right nor is it encompassed in the natural and ordinary meaning of the words of paragraph 4. The words of paragraph 4 are clear and unambiguous and do not extend to a right to inspect the condition of Number 96. By contrast, paragraph 2(b) of the second schedule confers a right on the owners of Number 98 to gain access to Number 96 to 'construct inspect repair and replace sewers drains in and under the property' (emphasis added). Further, any disrepair would at the date of the transfer have been visible from the road, if not from Number 96 itself. In addition, if there were deterioration to the brickwork which caused damp ingress, it would become visible on the interior wall.
In my judgment, the recorder was plainly right on this issue. A right of inspection to determine whether works of maintenance, repair or decoration are required is necessary to make effective a right of access to carry out those works. The...
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