Leven Holdings Ltd v (1) Nicholas Matthew Middlemass Johnston
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 09 February 2018 |
| Neutral Citation | [2018] EWHC 223 (Ch) |
| Date | 09 February 2018 |
| Court | Chancery Division |
| Docket Number | Case No: D30BS285 |
[2018] EWHC 223 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: D30BS285
Alex Hill-Smith (instructed by BrookStreet des Roches) for the Claimant
Nigel Thomas (instructed by Wansbroughs) for the Defendants other than the Third Defendant
The Third Defendant did not appear and was not represented
Hearing dates: 14–17 November 2017
Judgment Approved
Introduction
This is my judgment on a claim brought, as the claim form puts it, for a “declaration as to the existence of a right of way over the claimant's land, to include an order preventing use.” The claim form was issued on 18 December 2015, accompanied by particulars of claim dated the day before. The claimant is the registered proprietor of the fee simple estate in certain land in Chipping Norton, Oxfordshire, known as the Enstone Industrial Estate. That land forms part of land previously occupied together, and known, as RAF Enstone Aerodrome. Other parts of that land now belong to a sister company, called Lomond Holdings Ltd, and also to a Mr and Mrs Markham. But a small part to the north-east forms part of a large landed estate known as the Great Tew Estate. This estate extends to the north of the aerodrome, and is divided into two sections, north and south, bisected by a public highway, the road from Ledwell to Little Tew (“the Ledwell Road”), running east to west. From the Ledwell Road a local authority maintained road, called the New Road, leads south towards what used to be known as Tracey Farm, and is now known as Soho Farm, in the heart of the Great Tew Estate.
The southern part of the Great Tew Estate ( ie to the south of the Ledwell Road) is divided into some 12 parcels of land, each of which is owned in fee simple by one or more of the first four defendants. Three of the parcels (known as plots 2, 3 and 5) are now owned by the third defendant, who has no connection with the other defendants, has made no claim to any right of way, and consequently has taken no part in these proceedings. I need not and do not address any issues in relation to those three parcels. But I mention that plot 2, now known as Soho Farmhouse, and formerly known as Tracey Farm, is important in what follows. The first defendant is a co-owner of all the remaining parcels, and the second and fourth defendants (corporate vehicles) are variously the co-owners of those other parcels. The first defendant controls the second, fourth and fifth defendants. The fifth defendant has a lease of plot 4. Plot 4 is that part of the Great Tew Estate which forms part of Enstone Aerodrome. Plot 1 is farmland, and occupies the major part of that part of the southern part of the Estate which lies to the west of the New Road. Plot 6 (known as Beaconsfield Farm) occupies the major part of the part to the east of the New Road. The sale of plots 2, 3 and 5 has practically separated plot 4 from plot 1. Plots 7 to 12 lie to the north of these plots, and border the Ledwell Road. They play little part in this story.
As I have said, the Great Tew Estate is contiguous on its southernmost side partly with the Enstone Industrial Estate. The Enstone Industrial Estate comprises the south east part of the land of the former RAF Enstone Aerodrome. On its southern side, it borders the public highway running east to west, the B4030. Running through the Enstone Industrial Estate from that public highway, in approximately a north easterly direction until it meets plot 4 of the Great Tew Estate, is an estate service road (“ESR”). This is the road which is the subject of the claim for a declaration that it is not subject to a right of way in favour of the defendants, except in a very limited sense. The land to the west of the industrial estate, comprising the central part of the aerodrome is owned by a sister company (“Lomond”).
The so-called Green Lane runs from the B4022, to the west of the airfield, to the B4030 at Cookold's Holt Farm, Gagingwell, to the south-east of the airfield. It is divided into two parts (west and east) by the main runway (“runway 1”). For part of its length it forms the boundary between land belonging to the Great Tew Estate and land belonging to the claimant. This road is a public right of way, owned by the local authority, but not maintained by it. The Estate workers maintained it a little, but, until it was cleared in 2013, brambles and other other overgrowth made it difficult to use. But the evidence is that even before 2013 you could at least walk from one end to the other. Certainly, it is now easily accessible to motor vehicles.
The claim
This claim is framed in a negative way. The defendants have long claimed to enjoy a right of way over the claimant's land, but have never taken any proceedings to vindicate their claim. As a result, the claimant has finally made the running, and has issued the claim. The particulars of claim say that the Great Tew Estate as such claims a right of way over the ESR for all purposes. The claimant admits that the owners of plots 2 and 4 (only) have a right of way, by prescription, for agricultural purposes only.
The defence and counterclaim dated 10 May 2016 says that the wartime British Government constructed an aerodrome on the land, partly belonging to the claimants and partly to the defendant's predecessors in title. It says that this land was requisitioned from the then owners and was returned to them in the 1950s, when the ESR was constructed. It invites the court to infer that (though none has been found) there was a conveyance of the land in plot 4 to the owners of the Great Tew Estate, which moreover contained an express right of way granted to them over what is now the Enstone Industrial Estate. Subject to that, it asserts that section 62 of the Law of Property Act 1925 applies to convert rights or permissions exercised in relation to that Estate into rights of way, or that such a right would be a usual and apparent easement within the rule in Wheeldon v Burrows. If all of that fails, then the defence and counterclaim asserts that the defendants have acquired a right of way either by prescription or by the doctrine of lost modern grant. There is then a counterclaim for a declaration. The claimant then served a reply and defence to counterclaim dated 13 June 2016. This denies a number of important allegations, including those that an express right over the ESR was ever granted, expressly or impliedly, by any conveyance to the owners of the Great Tew Estate. Indeed, it puts in issue the existence of any conveyance by the government to such owners, as well as its effects.
At the trial before me Mr Alexander Hill-Smith appeared for the claimant, instructed by BrookStreet des Roches LLP, and Mr Nigel Thomas, instructed by Wansbroughs, appeared for all the defendants, except the third defendant, who neither appeared nor was represented. I am grateful to them for all their helpful submissions.
Witnesses
I heard evidence from the following witnesses. For the claimant were called Andrew Robson, senior partner of Sidleys surveyors, who managed the Enstone Industrial Estate for its then owners between 1990 and 1996, and Samantha Symons, a director of Ocarian Ltd, the company which is one of the two corporate directors, and the administrator, of the claimant company, incorporated in Jersey. For the defendants were called Richard Davies, Robert Cartwright, Paul Snell and Robin Vipond, who work now or worked in the past on the Great Tew Estate, the first defendant Nicholas Johnston, Paul Keyte, a quarry manager for the Great Tew Estate, Andrew Moss, a person who works in the motorsports industry, and Michele Nutt, formerly a director of the fifth defendant. In addition, I received a written statement made by the father of the first defendant, James Johnston, dated 30 April 2007, who has unfortunately died since it was made, and before these proceedings began. The latter statement was received with the benefit of a hearsay notice dated 22 June 2017.
The claimant's witnesses
I set out here my impressions of the witnesses. Samantha Symons was clear, calm, unflustered, and professional. She spoke quietly and had a straight answer for everything. Cross-examination made no impression on her whatever. I have no hesitation in accepting everything she said as true. Similarly, Andrew Robson, was clear, entirely professional, and (especially considering that he was only involved in the administration and management of the estate for 6 years between 1990 and 1996) had no axe to grind. Again, cross-examination made no impression, and I accept what he says as true without reservation.
The defendants' witnesses
Paul Keyte, a quarry manager, gave evidence in a straightforward and honest way. I had no doubts about his evidence, but he had a limited role.
Michele Nutt was a director of Vision Motorsports at the material time. She gave evidence in a clear, businesslike and straightforward way. I am satisfied that she was telling the truth.
Andrew Moss was involved in the motorsports industry and worked for Prodrive. He was intelligent, clear and straightforward in his evidence. He thought about his answers, although he was somewhat vague about dates. So far as it went, I accept his evidence.
Robert Cartwright was an estate worker based at the quarry to the west of Great Tew. He unfortunately could not remember important details of his evidence. In particular he could not remember where he had done particular work, although he remembered that time, because it was his...
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