Hale v Norfolk County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Chadwick |
| Judgment Date | 17 November 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J1117-10 |
| Date | 17 November 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CCRTF 1999/0973/B3 |
[2000] EWCA Civ J1117-10
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIS HONOUR JUDGE LANGAN QC
NORWICH COUNTY COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Chadwick and
Lady Justice Hale
Case No: CCRTF 1999/0973/B3
Mr Nicholas Caddick (instructed by the Bar Pro Bono Unit for the for the Appellant)
Mr Graham Sinclair (instructed by Norfolk County Council for the Respondent)
This is an appeal against an order made on 3 September 1998 by His Honour Judge Langan QC in the Norwich County Court in proceedings brought by the appellant, Mrs Margery Hale, against the Norfolk County Council. Permission to appeal was granted by this Court (Lord Justice Roch and Mr Justice Wilson) on 30 July 1999.
Mrs Hale is the owner of property known as "Hviskende Traer" at Tivetshall St Margaret in Norfolk. The property fronts onto a roadway, known as Green Lane, in respect of which the respondent Council is the local highway authority. Mrs Hale occupies a detached single storey dwellinghouse on the property. The house, which was built in or about 1968, stands some way back from the roadway, in its own garden. The dispute between Mrs Hale and the Council concerns that part of her garden, to a depth of 30 feet 6 inches or thereabouts at its widest point, which is immediately next to the made up carriageway over Green Lane. That part of the garden is shown coloured blue on the plan annexed to the particulars of claim and it is convenient to refer to it as "the blue land".
It is common ground that the blue land is in the ownership of Mrs Hale. The dispute is whether, as the Council contends, the blue land has been dedicated for use as part of the public highway. The dispute came to a head in April 1992, when Mrs Hale erected several low posts and a chain along the boundary where the blue land meets the carriageway. The Council served a notice under section 143 of the Highways Act 1980 requiring her to remove the posts and chain; and, upon her failing to do so, did so itself. That led to the present proceedings, in which Mrs Hale claimed a declaration that the blue land does not form part of the highway, an order requiring the Council to replace the posts and chain and some boundary stones (which, also, she had placed on the blue land) and an injunction restraining the Council from entering upon the blue land. The Council counterclaimed for a declaration that the blue land (or, in the alternative, so much of the blue land as lay within 36 feet of the opposite, or far, edge of the carriageway) does form part of the public highway and for an injunction restraining Mrs Hale from obstructing the blue land (or such part of it as might be part of the highway) by erecting posts or placing boundary stones upon it.
The action was tried by His Honour Judge Langan QC on 2 and 3 September 1998. Mrs Hale conducted her case in person. At the conclusion of the argument the judge gave judgment against her. He observed that she seemed to be under a serious misapprehension as to her rights in law and as to what it was that the Council were seeking to establish. He dismissed her claims; he declared that the whole of the blue land formed part of the public highway; he awarded the Council damages in the sum of £112.82, to reflect the cost of removing the posts and chain; and he ordered Mrs Hale to pay the Council's costs on scale 2. Mrs Hale appeals against the whole of that order.
The Council's claim to highway rights over the blue land is founded on an alleged act of dedication by Mrs Hale's predecessor in title, Mr Arthur Wright, at or about the time that he built the dwellinghouse in which Mrs Hale now resides. Mr Wright conveyed the property to Mrs Hale and her late husband, Mr Sidney Hale, in 1970. It is not suggested that anything done by Mr or Mrs Hale in relation to the blue land could amount to the dedication of that land for use as part of the public highway.
It is necessary to examine, in some detail, the circumstances in which Mr Wright acquired the property now known as "Hviskende Traer". The property was conveyed to him as a building plot by the Depwade Rural District Council under a conveyance dated 3 July 1968. The building plot (Plot 2) was identified by measurement and by reference to a plan annexed to the conveyance. The conveyance plan is itself derived from an earlier plan ("the 1967 plan") which appears on its face to have been prepared in April 1967 by the Engineer and Surveyor's Department of the District Council. Plot 2 is one of three plots shown on the plan; the three plots having together an area of 0.625 acres or thereabouts and being part of OS No.295. The area of the three plots is shown to be enclosed on the north and east sides by a barbed wire stock fence. The western boundary, which is shown to be unfenced, abuts the Green Lane carriageway. The land to the south of the three plots had already been developed by the erection of local authority housing. The local authority housing development is set back from the Green Lane by a service road in the form of a crescent. The service road lies to the east of the Green Lane and gives access to it. The south western corner of the area comprising the three plots shown on the 1967 land is formed by the northern end of the service road at the point where the crescent meets the Green Lane carriageway.
The 1967 plan identifies the three plots by measurement. Plot 3 comprises the eastern portion of the area to be sold off. Plot 1 comprises the north western portion. Plot 2 (which was to be acquired by Mr Wright) occupies most of the south western portion; but is separated from the southern boundary (where the land to be sold off abuts the local authority housing development) by a 15 foot strip which gives access from the service road to Plot 3. The plan shows the plots separated by a "post and wire fence 3'0" high", depicted as a broken line. It is, however, unclear whether, at the time when the 1967 plan was prepared or at the date of the conveyance of Plot 2 to Mr Wright (July 1968), the inter-plot boundaries were in fact defined by fences or other physical features on the ground. Paragraph 3 in the schedule to the 1968 conveyance required the purchaser, before commencing to build on the plot, to erect a three strand post and wire fence on the southern and eastern boundaries of the land conveyed. It is reasonable to assume, in the context of a sale-off of building plots evidenced by the 1967 plan, that the conveyances to the purchasers of Plots 1 and 3 will have contained similar fencing covenants; so that the inter-plot boundaries which were defined by measurement at the time of the sales would become defined on the ground as the result of fences to be erected by the respective purchasers. The only contrary indications are contained in material which was not, strictly, in evidence before the judge. Mrs Hale argued, in her closing submissions at trial, that the fences had been put up by "Edwards" for the District Council before the plots were sold off. She produced a document containing copies of extracts from the minutes of Depwade Rural District Council held in the Norfolk Public Records Office. The minutes record, on 17 October 1966: "Construction A provision of entrances, fencing to building plots at Tivetshall St Margaret. Edwards J Edwards Norwich". They record, also, on 14 November 1966: "Sale of Building Plots Committee Minutes no 7110(A)".
The 1967 plan includes two features which are of particular importance in the context of the present dispute. First, it shows, hatched, a strip 20 feet in depth along the length of the western boundary and immediately to the east of the Green Lane carriageway. That strip ("the hatched strip") is described on the 1967 plan as "claimed by N.C.C. for future c./w. improvements". The hatched strip extends along the whole of the western boundary of Plot 1; and extends along so much of the western boundary of Plot 2 as abuts the Green Lane carriageway – that is to say, along the western boundary of Plot 2 to the point where that boundary is formed by the service road. Second, the 1967 plan shows a further broken line extending from the northern boundary of Plot 1 to the southern boundary of Plot 2, orientated more or less north to south and set back some 30 feet or more from so much of the western boundary of those two plots as abuts the Green Lane carriageway. The position of that line (to which, for convenience, I shall refer as "the broken line") is identified by detailed measurement. The measurements show the point at which access to Plot 1 from the Green Lane carriageway is to be obtained over a driveway (with sight lines); and the point at which access to Plot 2 is to be obtained from the service road. The position of the broken line on the 1967 plan is such that it is aligned with (and could be regarded as a continuation of) the line of a hedge which is shown on the eastern side of that part of the service road which is in front of the local authority housing development. Again, it is unclear whether, at the time when the 1967 plan was prepared, that broken line was defined by any physical feature on the ground. If the plots themselves were not so defined, it is difficult to think why there should be anything in place on a line in that position. It is difficult to think of any reason why, before building had commenced on the area of land to be sold off, there should be a fence or hedge in that position; and identification of the position of the broken line by detailed measurement would have been...
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