Kent and Another v Kavanagh and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Chadwick,Lord Justice Longmore,Mr Justice Lewison
Judgment Date02 Mar 2006
Neutral Citation[2006] EWCA Civ 162
Docket NumberCase No: B2/2005/0845

[2006] EWCA Civ 162

Before :

Lord Justice Chadwick

Lord Justice Longmore and

Mr Justice Lewison

Case No: B2/2005/0845

CHY04104

Between :
Kent and Another
Claimants/Respondents
and
Kavanagh and Another
Defendants/Appellants

Mr Charles Harpum (instructed by Skelly & Corsellis of 77 St John's Road, London SW11 1QZ) for the Appellants

Mr David Holland (instructed byLionel J Lewis & Co of 5 Tranquil Passage, London SE3 0BJ) for the Respondents

Lord Justice Chadwick
1

This is an appeal from an order made on 14 March 2005 by His Honour Judge Wakefield, sitting in the Central London County Court, in proceedings brought by John Martin Kent and his wife, Philippa Kent, against their neighbours Matthew Kavanagh and his wife, Marianne Morgan Kavanagh.

2

Mr and Mrs Kent are the owners and occupiers of a dwelling house known as No 56 Dovercourt Road, London SE22. Mr and Mrs Kavanagh are the owners and occupiers of the house next door, No 58 Dovercourt Road. The dispute relates to a path which runs between the two properties, giving access from Dovercourt Road to their back gardens. It is now common ground that the boundary between the two properties is along the mid-line of the path. Put shortly, the issue for decision in this Court is whether (as the judge held) Mr and Mrs Kent are entitled to a right of way over that half of the path not within their ownership. That issue raises questions of some general importance in relation to the rights inter se of owners of neighbouring properties, formerly let under building leases pursuant to a scheme of development, where the freehold interests have been acquired on enfranchisement pursuant to the Leasehold Reform Act 1967.

3

At the time of the enfranchisement of the two properties in 1976, the Dulwich College Estate of which they formed part was subject to a management scheme which had been approved by the High Court pursuant to section 19 of the 1967 Act – see In re Dulwich College Estate's Application (1974) 231 EG 845. But it has not been suggested – and I have not been able to identify – any provision in that scheme which is of relevance to the present dispute. The issue falls to be decided without recourse to the management scheme

The underlying facts

4

At the beginning of the last century the Governors of Alleyn's College of God's Gift (commonly known as Dulwich College) entered into a building agreement with, and subsequently granted 99 year building leases to, HJ and AH Williams ("Messrs Williams") for the development of that part of the Dulwich Manor Estate which lies between Woodwarde Road (to the south) and Townley Road (to the north). The building agreement – as recorded in minutes of the Executive and Finance Committee dated 11 April 1907—was for the erection of semi detached houses over a period of six years in accordance with plans to be submitted to and approved by the Governors.

5

The spine of the development was a new road. The even numbered plots lay to the west of the road; the odd numbered plots to the east. The road – to which (as reported to the Governors on 26 November 1908) Messrs Williams had given the name Dovercourt Road—was laid out in the form of a dog-leg; so that it ran north from its junction with Woodwarde Road for part of its length before turning to the northwest to join Townley Road. The building plots to the west of the road (other than that which became No 56 Dovercourt Road) were rectangular; having a frontage to the road of approximately 20 feet and a depth of approximately 150 feet.

6

The plot which became No 56 fronts onto Dovercourt Road at the point at which the road turns to the northwest. The long sides of the plots which lie to the south of No 56 (Nos 58 to 64) run from west to east: the long sides of the plots which lie to the north of No 56 run from southwest to north east. The effect is that the plot which became No 56 is wedge shaped. The point of the wedge is at its western end. From that point the long sides of the wedge run east and north- east to Dovercourt Road. The shape of that plot had the effect that, when built in or about 1910, the dwelling house at No 56 (which is aligned with the houses to the north) was set some way back from the common boundary between that plot and plot No 58.

7

As I have said, the building agreement provided for the erection of semi-detached houses. Effect was given to that intention by the erection of two pairs of semi-detached houses on the plots to the south of No 56 (plots 58 to 64). There was a passageway between No 60 and No 62, which gave access to the back garden of each. But the requirement was relaxed when plans for other houses were submitted to the Governors for approval in January 1908. The Surveyor reported to the Executive & Finance Committee on 9 January 1908 that: "these houses are not strictly semi-detached, that is to say they are all connected on the upper floor, but on that only. . . . In external appearance they appear to be semi-detached, and there is a clear way through from the front to the back gardens on the ground level." That revised proposal was approved by the Governors on 23 January 1908. Effect was given to the revised proposal when the houses to the north of No 56 were erected. They appear, on the Land Registry map dated 4 March 1910, as a terrace; but that, of course, is not inconsistent with there being "a clear way through from the front to the back gardens on the ground level" and the map gives some indication that there was a passage between each pair of houses.

8

The importance which the Surveyor attached to access to a rear or side entrance was emphasised in a report which he made to the Governors a year later, on 28 January 1909, in connection with Messrs Williams' request for approval of plans for two houses on the opposite side of Dovercourt Road (Nos 57 and 59). He advised that: "I think it very important that, even in small houses such as these, the main entrance to the street should not be used by tradesmen, street hawkers, etc; for the entrance of stores and fuel, or for carrying out dust, refuse, etc. As the front doors of each pair of houses are adjacent, the use of one of them for carrying in and out coal or dust might be distinctly objectionable to the occupant of the neighbouring house".

9

No 56 is the southern house in the row (or terrace) which fronts Dovercourt Road to the north of the point at which that road has turned to the northwest. Its pair is No 54. As I have said, the effect is that the plot on which No 56 has been erected is wedge-shaped. And it is clear from the 1910 Land Registry map that access from Dovercourt Road to the garden at the back of No 56 could readily be obtained over that part of the plot which lay between the dwelling house and the common boundary with No 58. Nevertheless, it is equally clear from that map that there was, at the date of that map, a defined passage between No 58 and No 56, equivalent to that between No 60 and No 62. The passage between No 56 and No 58 ran from east to west, along the flank wall of No 58. It was bounded to the north by a physical feature shown on the map; which, from other evidence, can be identified as a wooden fence. The features which I have described are evident, also, on the 1919 revision of the Ordinance Survey Map.

10

Access to the back garden of No 56 Dovercourt Road changed in or about 1930. The dwelling house on No 56 was extended to the south by the construction of a garage. Approval to the erection of the garage was obtained from the Governors on 13 March 1930. The Surveyor reported to the Executive and Finance Committee on that day that: "The alterations consist of removing a small single story annex containing the scullery and w.c., and building a new wall which will form part of the boundary between this house and No 58 . . . The boundary fence belongs to No 56." The report to the Committee was accompanied by (or, at least, prepared with the assistance of) plans which show the position clearly. The southern wall of the new garage was parallel to and about three feet from the northern flank wall of the dwelling house on No 58. A wooden fence extended the line of the garage wall eastward towards Dovercourt Road and westward towards the bottom of the back garden. The judge thought it likely that the fence had been there before the garage was constructed. He was right to take that view: the fence is in the position of the physical feature shown on the 1910 map to which I have already referred. But it is now common ground that the Surveyor was wrong to report that the new wall (and the fence) formed the boundary between No 56 and No 58. It is now common ground that the boundary lay along the mid-line of the pathway between the garage wall of No 56 (and the fence) and the northern flank wall of the dwelling house on No 58.

11

The position changed again in 1988. The garage of No 56 was then converted into an office and living space. The effect was that it then became impossible to gain access from Dovercourt Road to the back garden of No 56 without using the pathway. Access from the pathway to the garden was through a gate in the fence immediately to the west of the former garage. The judge found as a fact that the gate had been there when No 56 changed hands in August 1976. He went on to say (at paragraph 63 of his judgment) that he thought that "the gate did exist well before 1976" and that "it seems likely that the gate into the rear of number 56 was installed by some arrangement with the lessees after...

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