Jacklin v Chief Constable of West Yorkshire
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Rix,Lord Justice Buxton |
| Judgment Date | 16 February 2007 |
| Neutral Citation | [2007] EWCA Civ 181 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2005/0371 & A3/2005/0371(A) |
| Date | 16 February 2007 |
[2007] EWCA Civ 181
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
(MR RECORDER HIRST)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Rix and
Lord Justice Lloyd
Case No: A3/2005/0371 & A3/2005/0371(A)
MR P HILL (instructed by The Force Solicitor) appeared on behalf of the Appellant.
MR W HANBURY (instructed by Messrs Green Williamson) appeared on behalf of the Respondent.
This is an appeal from an order made by Mr Recorder Hirst in proceedings which were commenced in the Wakefield County Court, but heard in the Leeds Combined Court Centre in 2004, concerning a dispute about a right of way.
At the first hearing, which I believe lasted some three days and was followed by a reserved judgment, the judge held that the claimants, Mr and Mrs Jacklin, were entitled to a right of way, not only on foot, but also with vehicles, over a 20-foot wide road, which is in some of the plans referred to as Back Road, the soil of which is part of the premises of the headquarters of the West Yorkshire Police in Wakefield.
The police challenged the claimant's entitlement to a vehicular right of way on a number of grounds, including that they did not have a proper paper title to it and that even if they did, it had been abandoned long since. He held that they did have the right of way and that it had not been abandoned.
There was then a subsequent hearing to determine what remedy the claimant should have as a result. The principal debate at this hearing was whether the judge should grant an injunction to restrain the Chief Constable from obstructing the right of way or rather to leave the claimants to a right in damages so far as the future is concerned. He decided to grant an injunction and against that, with permission from Chadwick LJ on that issue only, the Chief Constable appeals.
The claimants own a house, 8 Cardigan Terrace, Wakefield, which is the last house in the road called Cardigan Terrace, which runs off Northgate. They derive title from a conveyance dated 1 October 1875, under which the whole site of Cardigan Terrace was conveyed, together with a free and uninterrupted right of foot horse and carriage road at all times and on all occasions to pass and re-pass across and along every part of the road or way, 20 feet wide, then laid out, shown on the plan as extending from the area which is now Cardigan Terrace, as far as a road, then called Back Bond Street, which is now called Laburnum Road.
In 1894 a subsequent owner, Clara Stoney, conveyed the site at number 8 to a Mr Tom Lee, with a right of way over the whole distance between Northgate and Back Bond Street, shown on the plan annexed. Separately, also in 1894, she conveyed the land opposite number 8 to a JF Ianson and that conveyance also referred to Back Road.
The devolution of the title to these two parcels of land is in part described in the judge's first judgment. By 1984 they were in the same ownership again and they are both now registered at the Land Registry, the claimants being the proprietors. The claimants have also since then acquired some land, as it were on the garden side of Cardigan Terrace, opposite number 6, but that is not particularly relevant for present purposes.
The judge found that the claimants had satisfied him of their entitlement to a right of way on foot and with vehicles between their property and Laburnum Road, over Back Road, shown on the early deeds as being 20 feet wide. Nor had they lost the benefit of this by abandonment of the right by themselves or their predecessors in title.
The judge noted that, after an order for specific disclosure which he made during the trial, the defendant had for the first time disclosed its title documents which start from another deed dated 1 October 1875, by the same grantor as had conveyed to the claimants' predecessor in title. This conveyance refers to the land conveyed by the other conveyance, which became Cardigan Terrace, and is made expressly subject to “such rights of road as had been granted” by the other conveyance.
The point is further emphasised in the deed of which we have, as the judge had, an abstract. After referring to the rights of road granted by the other conveyance, the abstract of the conveyance which is part of the Chief Constable's title says this:
“To the intent and purpose nevertheless that 20 foot in width, part of and to be taken from the south easterly of the said plot of land therein before described and thereby covenanted to be surrendered for the whole extent thereof on that side, might forever thereafter remain open and unbuilt on and to be used and enjoyed at all times and on all occasions as a foot, horse and carriage road by the said R.H.Shillito, his heirs and the signs and the owners, tenants and occupiers of the said hereditaments and premises thereby covenanted to be surrendered [and so on and also by the people entitled under the other conveyance of the same date].”
So, it is clear from this early deed in the police's title that that piece of land was to be subject, as regards the 20 foot wide strip, to a full right of way between what is now Cardigan Terrance and what is now Laburnum Road.
The claimants' paper title therefore is clear and, although their entitlement does not depend on it, the existence of the right of way is also clear from the defendant's title deeds.
Mr Hill, counsel for the Chief Constable, told us that the reason why the title deeds had not been produced before the trial was that in the course of local government reorganisations over the decades, the early title deeds, at any rate, the land having previously belonged to Wakefield Council, had been stored in a place other than that where one might have expected them to be stored and that it only came to Mr Bottomley, who was in charge of administration on behalf of the Chief Constable, to realise where they might be found, when the judge made the order for specific disclosure, and there they were indeed found. That seems to be an illustration of the value of orders for specific disclosure.
In 1997 or 1998 the Chief Constable carried out a number of alterations to the organisation and layout of the police headquarters site. The judge accepted that the police had obstructed the right of way over Back Road regularly from 1986 onwards, by the parking of police vehicles. He rejected evidence which had been given that a gate which now exists at the Laburnum Road end of Back Road had been padlocked before 1997; accordingly that gate, although it may have existed at that stage, was not then an obstruction of a substantial nature. The judge also rejected the contention that there was a physical barrier at the Cardigan Terrace end, at that stage, which prevented the exercise of the right of way.
However, as part of the re-organisation of the headquarters site in 1997, the gate at the Laburnum Road end of Back Road was regularly padlocked. More intensive parking began and a 20-foot container, which was used for storage, was placed partly across Back Road, leaving only about a metre unobstructed, which was sufficient for pedestrian access, but was a very effective obstacle to vehicular access.
I should say that the works that were carried out in 1997 were fairly substantial. As they were described to us, as they were no doubt described to the judge, the police demolished all or part of a building on the site, which in part abutted on Back Road. They demolished another small building which abutted on Back Road, as well as other smaller buildings elsewhere on the site. Perhaps more significantly they organised, or reorganised, the pattern of traffic flow within the site, so that the opening onto or off Laburnum Road, near the end of Back Road, which had been capable of being used both for access and egress, is now designated only as an exit from the Headquarters site with vehicles entering at another opening off Laburnum Road further South, so that there is a circulation system in at one point and only out at the exit near Laburnum Road.
If the claimants are entitled to the injunction which the judge granted, then they will have to be able to come in at that point off Laburnum Road and that will clearly cause some inconvenience to the no doubt carefully thought out plan to have that as an exit rather than an entrance. That is one consequence of the injunction if granted; another would be that it would be necessary to move the storage container.
Going back to 1997, the police contended that the claimants and all their neighbours in Cardigan Terrace were notified in advance by letter of the proposal to carry out works. The terms of the letter deserve note. Reading from a letter addressed to the owner/occupier at 2 Cardigan Terrace. the letter is as follows. It is headed “Land between Cardigan Terrace and Laburnum Road, Wakefield”. It says:
“I refer to the above matter and would inform you that West Yorkshire Police are considering proposals to improve security at force headquarters.
“In this connection, attention has been drawn to the pedestrian route which runs through or over land in the police ownership, as shown coloured green on the attached plan.
“I have been requested to determine the extent of any legal rights of way over the subject land and to ascertain whether there is any possibility of such rights being relinquished by respective beneficiaries.
“I shall therefore be obliged if you will advise me as to whether you do have a legal right of way of...
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