Jamie Trevor Roberts v Andrew Mark Metson Parker
| Jurisdiction | England & Wales |
| Judge | Mr. R. Hollington |
| Judgment Date | 21 May 2018 |
| Neutral Citation | [2018] EWHC 1206 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No. HC-2017-002491 |
| Date | 21 May 2018 |
[2018] EWHC 1206 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Mr. R. Hollington QC sitting as a Deputy Judge of the High Court
Claim No. HC-2017-002491
Representation:
Mr. John Antell, of Counsel (Direct Access), for the Claimant
Mr. Adam Rosenthal, of Counsel, instructed by Sydney Mitchell LLP, solicitors, for the Defendants
Hearing Dates: 18–20 th April 2018
The issues
This case has come on for trial expeditiously pursuant to the order of Mr Justice Marcus Smith dated 12 th October 2017.
That order contemplated that the principal issue to be determined was whether the Claimant had a right of way from a private road belonging to the Defendants to the whole of his back garden or only to part of it excluding the part the Claimant wants to build a new house on. A further major issue between the parties falls, however, to be determined at this trial, namely whether the Claimant is bound by a restrictive covenant not to build on the land in question: it is the Claimant's case that the covenant is unenforceable for want of registration. There are other issues of lesser importance to be determined, including whether the Claimant is liable to the Defendant in damages for having cut down a yew tree, which turns on the position of the tree in relation to the boundary between the two properties.
The Site
The plan below is taken from the registered title to the Claimant's property, No. 40 Fairmile Lane, Cobham, Surrey (SY737999) (“No. 40”). This Judgment is best read printed in colour, because it is otherwise almost impossible to follow what parcels of land are being referred to. The Defendants' property is No. 38. Fairmile Lane is the public highway to which the private road, coloured brown in the plan, connects. The main drive of No 40 gives directly on to the public highway, so the side access into its garden from the private road is only needed for access to the back of No. 40. A house and detached garage were built on No 40 in 1972, in such a way that the back garden is accessed through a relatively narrow side archway.
The Claimant's title to No. 40 is shown edged in red. The brown strip, immediately below (and to the south of) the red line is the private road which continues, as shown by the dotted line, into No. 38, running alongside the garden of No. 38 to a forecourt at the front of the house. The private road also affords access to No. 36, owned by Mr and Mrs Farrer, on the right at the end of the private road – the number 36 appears in tiny print on their house.
The private road is within the title to No. 38, owned by the Defendants.
The roughly rectangular parcel of land coloured yellow in the above plan bounded by the letters A to D (the “yellow land”), which forms part of the registered title to No 40, is the land on which the Claimant now wishes to build a new house with a frontage on to the private road. As will appear below, the “yellow land” and the rest of what now forms part of the registered title to No. 40 came into common ownership, of a “wheeler and dealer” John Leslie Smith, by a Transfer dated 15 May 1968 (“the 1968 Transfer”). I was not told the date of first registration of that title but Mr. Monks bought the land comprised in the title in 1990. I will come in due course to what the registered title shows as to the covenants and rights affecting the property. The Defendants dispute that the Claimant has a right of way which enables a house to be built on it and sold off as a separate parcel with access from the private road, and they further rely upon a restrictive covenant which they say prohibits him from building on it.
The conveyancing history
It is important to know the conveyancing history in order to understand the right of way issue. I take this largely from the submissions of Mr. Rosenthal, counsel for the Defendants, which Mr. Antell, counsel for the Claimant, accepted as accurate. I pay tribute to Mr. Rosenthal for his mastery of this history, as well as of the authorities he took me through with such care. I interpolate some comments on the respective cases of the Claimant and Defendants.
February 1923
Julius Frederick Gems owned all of the land in the vicinity and the private road.
He conveyed land which included what is now the Claimant's Property and the Defendants' Property ( except the private road which he retained) to Gladys Muriel Hird:
In this 1923 Conveyance, Julius Frederick Gemms granted a right of way over the private road, which he retained, in common with others. The Claimant relies upon this right of way.
The Defendants' case is that this right of way was extinguished by the subsequent conveyances of 14 August 1950 and 21 February 1951 (see below), as a result of which (so it is claimed) the dominant tenement, i.e. the “yellow land”, ceased to be accommodated by, i.e. to benefit from, the right of way. The Defendants argue that it was for this very reason that the 1968 Transfer (see below) contained a grant of a right of way over the private road for the benefit of that part of No. 40 which did not include the “yellow land”.
th August 1950
By 1950, some or all of land conveyed to Gladys Muriel Hird in 1923 had come into the hands of John Leslie Smith, who appears to have been a “wheeler and dealer”, who set about selling it off piecemeal.
By this 1950 Conveyance, he conveyed part of the land to Caroline Mildred Anne Bruce.
The parcels clause in the 1950 Conveyance records that the land conveyed formed part of a larger property known as Eaton Grange. The plan to the conveyance is not available, but it is possible to piece together the land which was conveyed in 1950 by considering the registered title plans and later conveyances. It is reasonably clear, and is common ground, that the 1950 Conveyance was of the whole of the land edged in red (numbered 1 and 2) in the title plan for No. 38 dated 11 December 1956, but excluding the private road:
I would note the following parts of the 1950 Conveyance:
• The recital: the Vendor (Smith) was seised of the property contained in the 1923 Conveyance—which contained the right of way over the private road
• The land sold to Caroline Bruce was conveyed together with the right of way over the private road
• Clause 2—it was “hereby agreed and declared”:
○ (i) The Purchaser was not entitled to any right of access to or use of the ponds, i.e. in effect, the “yellow land” —i.e. excluding any Wheeldon v Burrows easements in that respect
○ (iii) “The Vendor or other owners from time to time of the adjoining property [i.e. including the “yellow land” and the rest of Eaton grange retained by Smith] shall not be entitled to use the said private road.”
It can therefore be seen that, as a result of the 1950 Conveyance, the “yellow land” and the rest of Eaton Grange not purchased by Caroline Bruce in 1950, became physically separated from the private road. Clause 2(iii) could not have operated as a release of the right of way over the private road contained in the 1923 Conveyance because neither the vendor nor the purchaser was the owner of that road at the time of the 1950 Conveyance. It must have been inserted, as Mr. Antell submitted and I accept, because the parties to that Conveyance were aware of the right of way contained in the 1923 Conveyance and wanted to exclude any suggestion or implication that the vendor had any sort of right of way over the land purchased to access the private road given the physical separation effected by the 1950 Conveyance. Mr. Antell also submitted that Clause 2(iii) operated as a personal restrictive covenant not to use the private road, but I am not persuaded that is the best way to characterise it for present purposes.
st February 1951
Having taken a transfer under the 1950 Conveyance of part of the land which comprised Eaton Grange from John Leslie Smith, with the benefit of a right of way over the private road, the same Caroline Mildred Ann Bruce acquired the road itself, from a descendant of Julius Frederick Gemms, by a conveyance of 21 February 1951 (which is not available).
The title plan to No. 38 (copied above) is likely to be the plan filed on the first registration of the title following the 1956 Conveyance (see below). This application was made on 29 November 1956. The title plan was subsequently altered (see entry no. 2) when the land edged and numbered in green (but which has turned blue in photocopying, above) was removed from the title plan. That is likely to have been when this land (part of what is now the Claimant's Property, No. 40) was transferred on 15 May 1968 (see below).
It is common ground that the whole of the land edged red on the title plan is likely to be that which was held by Caroline Mildred Ann Bruce after the conveyances of 1950 and 1951.
It can therefore be seen that, as a result of the 1951 Conveyance, the land purchased by Caroline Bruce under the 1950 Conveyance, which was adjacent to the private road, and the private road came into common ownership. Mr. Rosenthal's principal submission was that, by the combined effect of the 1950 and 1951 Conveyances, the right of way granted by the 1923 Conveyance had permanently ceased to benefit the land for whose benefit it had been created and therefore was extinguished.
Mr. Rosenthal also submitted that the 1923 right of way must have been extinguished by unity of ownership.
He further submitted (although this is not distinctly pleaded in the Defence, Mr. Antell sensibly took no pleading point) that, by the combined effect of the 1951 Conveyance (whereby Caroline Bruce became the owner of the private road) and clause 2(iii) of the 1950 Conveyance (by which Smith acknowledged no right of way over the private road),...
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