John Anderson Colquhoun and Another v Maureen Harris
| Jurisdiction | England & Wales |
| Judgment Date | 19 March 2010 |
| Judgment citation (vLex) | [2010] EWHC J0319-1 |
| Docket Number | CH12009/PTA/0675 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 March 2010 |
[2010] EWHC J0319-1
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
CH12009/PTA/0675
On Appeal from the Adjudicator to H.M. Land Registry
In the matter of the Land Registration Act 2002
And in the matter of Croydon District Land Registry Title Nos. TGL61304 and SGL311965, 16 and 18 Alexandra Road, Mitcham, Surrey CR4 3LT
Mr Christopher Spratt appeared for the Appellants
Mr Andrew Short appeared for the Respondent
Hearing date:
Approved Judgment
I direct that pursuant to C.P.R. 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.
Jonathan Guant QC
Mr Jonathan Guant QC (sitting a Deputy Judge of the Chancery Division)
1. This is an appeal from the Adjudicator to H.M. Land Registry, Mr Edward Cousins, brought by permission of Mr Justice Floyd. The facts giving rise to this appeal are as follows:
2. In 1926 the Urban District Council of Mitcham acquired some 14 acres of undeveloped land bordering the Tooting, Merton and Wimbledon railway line and subsequently developed it as a housing estate. One of the roads on that estate was Alexandra Road. In those days car ownership was not as common as it has later become and the houses were built without garages. The houses in Alexandra Road were built in semi-detached pairs with narrow passages between each pair leading to the back gardens of the houses. For the most part the passages were not wide enough to accommodate the passage of vehicles but the passage between No.16 and No.18 was somewhat wider – wide enough to accommodate the passage of a small car, albeit that it was probably not intended for this purpose since both houses had side entrances to the passage with external steps jutting out into the passage which would have made the passage of a vehicle somewhat tricky.
3. Until the end of the 1970s both No.16 and No.18 were occupied by Council tenants. Mr and Mrs Pratt became the tenants of No.16 in about 1977 and in 1980 exercised the right to buy conferred upon them by the Housing Act 1980. At that time the boundary between the two tenanted properties ran down the middle of the passageway between them and then straight on between the rear gardens. In each rear garden, a little way back from the rear of the houses and next to the boundary fence was a shed. The
position of the sheds is shown on the plan attached to the 1980 Transfer to Mr and Mrs Pratt by two rectangles, the one in the garden of No.16 being slightly smaller than the one in the garden of No.18. The evidence before the Adjudicator did not suggest that the shed in No.16 had ever been used as a garage but the evidence was, and the Adjudicator found, that the shed in the garden of No.18 had been used to garage a mini-van owned by the elderly gentleman who was the tenant of No.18 and whose name, appropriately enough, was Mr Tenant.
4. Merton transferred No.16 to Mr and Mrs Pratt by a Tranfer dated 17 th November 1980. The land conveyed was coloured pink and brown on the Transfer Plan. The pink land was the house and garden and the brown land was that half of the passageway between Nos.16 and 18 which adjoined No.16. Also granted was the right to pass and repass at all reasonable times and for all lawful purposes over the strip of land coloured blue on the Plan. That was the other half of the passageway. The words ‘ on foot only’ were deleted from this grant and the deletion was initialed by the parties. Reserved out of the Transfer was the right for the Corporation and their successors in title to No.18 to pass and repass at all reasonable times and for all lawful purposes over and along the strip of land coloured brown on the Plan, i.e. that half of the passageway next to No.16. Again the words ‘ on foot only’ were deleted and initialed.
5. The unexpected feature of this Transfer was that included in the land coloured pink was a triangle of land which had almost certainly previously been part of the garden of No.18 formed by drawing a line from the rear corner of No.18 to the corner of the shed on No.16. I will call this ‘the Triangle’. The inclusion of the Triangle in the land transferred had the effect
of cutting off access from the passageway to the rear garden of No.18 unless rights were reserved to cross the Triangle. Indeed, since the base of the Triangle was only half the width of the passageway (which itself was only about 10 feet wide), in order to preserve vehicular access to the garage in the garden of No.18 it would have been necessary to reserve a vehicular right of way not only over the Triangle but also over the congruent triangle formed by drawing a line from the rear corner of No.16 to the corner of the garage on No.18. No such right was reserved in the Conveyance of No.16.
6. Mr and Mrs Pratt continued to live at No.16 until July 1987 when they sold the house to Mr and Mrs Colquhoun, the Appellants. It is not clear how long Mr Tenant continued to occupy No.18 – I will return to the Adjudicator's findings about his occupation below. At about the same time that the Colquhouns moved into No.16, a Mr and Mrs Emby moved into No.18 as tenants. In 1991 they bought the freehold. Although they were told in reply to enquiries before contract that they would be granted pedestrian/vehicular access to the rear garden over the shared passageway, the Transfer to them from Merton dated 24 th June 1991 simply granted them a right of way along the other half of the passage but no right of way over the Triangle. The Council's Solicitors had evidently realised that no such right could be granted since no such right had been reserved when No.16 was sold off.
7. Mr and Mrs Emby lived at No.18 until January 2005 when they sold the house to the Respondent, Ms Maureen Harris. During their time at No.18 Mr and Mrs Emby had not used the garage on No.18 to garage a car. There had, however, been no physical feature, fence or gate to prevent them getting from the passage to their rear garden and Mr and Mrs Colquhoun had seen no
reason to erect any such barrier. In November 2005, However, Mr and Mrs Colquhoun erected some locked double gates across the end of the passage where their garden began and a fence along the hypotenuse of the Triangle. The effect was to cut off the garden of No.18 from any access via the passage. The only access to the garden was through the house.
8. Ms Harris consulted solicitors. On 8 th November 2006 she applied to H.M. Land Registry to include in her title the benefit of a right of way over the Triangle and to note the burden on the Colquhouns” title. She claimed that she was entitled to those rights by reason of long user by herself and her predecessors. Notice of the application was served on the Colquhouns and they objected on the grounds that Ms Harris had not shown 20 years” use.
9. Subsequently, Ms Harris instructed new solicitors and she sought to amend her claim to present a quite different legal case. She abandoned the case based on prescription or long user and contended that the facts were such as to fall within one of the exceptions to the general rule that on a disposition of land, no reservation of any easement in favour of the part retained will be implied. Her case was now that on the Transfer to Mr and Mrs Pratt in 1980 there was to be implied a reservation either of an easement of necessity or of an easement arising by reason of the common intention of the parties, that the benefit of that easement passed on the sale of No.18 to Mr and Mrs Emby in 1991 and on the sale to her in 2005 and that the Colquhouns had taken subject to that reservation when they acquired No.16 in 1987.
10. The Learned Adjudicator accepted those submissions, held that the facts were such as to justify a finding of an implied reservation in the 1980
Transfer and directed the Registrar to give effect to Ms Harris” application by registering the benefit of a right of way for vehicular and pedestrian access over the Triangle on the title to No.18 and the burden of the same easement against the title to No.16.
11. The Learned Adjudicator made the following findings of fact (which I summarise):
(1) That since the 1960s until November 2005 access could be gained by both vehicles and pedestrians along the passageway between No.16 and 18 and across the Triangle;
(2) That to the rear of No.18 there used to be a building erected on the hardstanding which is still there; there was no restriction on access for vehicles along the passageway;
(3) The building erected on the hardstanding was a garage which was used for the purpose of parking a motor vehicle, as indeed occurred when it was used by Mr Tenant in the 1970s; the garage became increasingly dilapidated and was removed by the Embys, probably in the early 1990s, and was not replaced;
(4) The passageway served not only as vehicular access to the rear gardens of No.18 and No.16 and their garages but also provided pedestrian access to both gardens and to the side entrances which formerly existed in the side walls of each house;
(5) Merton had intended to provide a right of pedestrian and vehicular access to the garden of No.18 when they were selling it to Mr and Mrs Emby but could not do so because the Triangle had already been sold to Mr and Mrs Pratt.
12. In the Grounds of Appeal a number of criticisms were made of these findings to the effect that they were not sufficiently supported by the...
To continue reading
Request your trial