Pamela Susan Cardwell Mills v The Estate of Philip John Partridge (Deceased) (represented by Lynette Alaine Partridge)
| Jurisdiction | England & Wales |
| Judge | Simon Barker |
| Judgment Date | 05 August 2020 |
| Neutral Citation | [2020] EWHC 2171 (Ch) |
| Date | 05 August 2020 |
| Docket Number | Claim No. D30BM405 |
| Year | 2020 |
| Court | Chancery Division |
[2020] EWHC 2171 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
JUDGE Simon Barker QC
Claim No. D30BM405
Representation
Mr David Mitchell, instructed by mfg solicitors LLP, for the Claimant
Mr David Holland QC and Mr Matthew Haynes, instructed by Shakespeare Mar-tineau LLP, for the Defendants
Trial: 22–25 and 28–29 October 2019, 29 November 2019, 2 December 2019 and 5 August 2020
I direct that pursuant to CPR 39APD6 paragraph 6.1 no tape recording shall be made of this judgment and that copies of this version shall stand as authentic and be treated as the official transcript.
Judge Simon Barker QC:
Introduction
. These proceedings principally concern rights and obligations relating to three parcels of land at Iverley in the parish of Kinver, Staffordshire. For some years, until 35 to 40 years ago, this land was in the common ownership of a Mr Tolley. The three parcels of land are defined below and referred to in this judgment as ‘C's land’, ‘the Nursery’, and ‘the Field’.
. Mrs Pamela Mills, the Claimant, (‘C’) owns the freehold land and premises, including more than 100 acres of surrounding fields, known as Iverley House Farm, Sugar Loaf Lane, Iverley, Staffordshire (‘C's land’). The plan to the registered title of C's land, SF538646, is attached to the Amended Particulars of Claim (‘the AP/C’) 1. Iverley House Farm itself is served by a track leading from the public highway known as Sugar Loaf Lane.
. C's land includes another track, (referred to by the parties and in this judgment as ‘the Track’ 2) which runs in a north westerly direction from a junction some 500 metres to the south west further along Sugar Loaf Lane and over which rights of way were granted by Mr Tolley to the Nursery and the Field and other land adjacent to the Track and sold off by Mr Tolley. The Track provides the only means of access to and from the Nursery, the Field, and other land (other than C's land) referred to in this judgment.
. Mr Tolley conveyed C's land to C's mother on 11.10.85 and leased it back from her during his lifetime for a peppercorn rent. Mr Tolley died in 1987 and C's mother and C then moved into Iverley House Farm. C moved out in about 1995. C's land was transferred to C by her mother on 10.4.08. C returned, with her family, to live with her mother
. Mrs Lynette Partridge, the Second Defendant, (‘D2’) also represents the estate of the First Defendant, her late husband Mr Philip Partridge, (‘D1’; collectively with D2 ‘Ds’). D1 died of heart failure on 21.12.18; D2's evidence is that in his later years D1 also suffered from vascular dementia and diabetes. Ds moved to Iverley in 1975 and rented 1 Highdown Cottages from Mr Tolley. Ds purchased 1 Highdown Cottages from Mr Tol-ley on 2.7.85. 1 Highdown Cottages is accessed via a right of way over the Track and is on the west side of the Track just beyond the Field (with a turning area forming part of the Track dividing the two parcels of land).
. The Nursery is about one third of the way along the Track on its east side (right heading from Sugar Loaf Lane). It is about 2.87 acres in area and roughly triangular in shape. Its south eastern boundary adjoins the Track.
. By a conveyance dated 14.3.79 (‘the 1979 Conveyance’) D1 purchased the Nursery. The nursery business was started by D2 in about 1980 and carried on by D2 from the Nursery, and later also the Field, The business is known as Highdown Nursery. For convenience I shall use the term ‘the Nursery’ interchangeably when referring to the land purchased in 1979 and/or the business. By a conveyance dated 8.3.78 (‘the 1978 Conveyance’) Mr Tolley sold the Nursery to predecessors in title to D1. Ds registered the title to1 Highdown Cottages and the Nursery together in their joint names in 2008 under title number SF540781.
. The Field is on the west side of the Track opposite the Nursery. It is about 2.66 acres in area, four sided, and its north eastern border runs along the Track. In these proceedings it was referred by the parties as the Unregistered Field, albeit that title to the Field is now registered at HM Land Registry.
. On an unknown date, but after 16.10.80 and, on D2's evidence, during 1980, D1 or Ds purchased the Field. Mr Tolley owned the Field prior to 16.10.80. The conveyance dated 16.10.80 (‘the 1980 Conveyance’) to Ds' predecessors in title contains the relevant covenants and easements affecting the Field. Ds registered the title to the Field in their joint names under title number SF633981 in 2018. C has asked in vain for disclosure of the conveyance of the Field to D1 or Ds.
. D2's evidence includes that from 1975 Ds or D1 also rented fields in the locality and a barn. D1 began by farming cattle but that was not a success and came to an end at or around the time of the BSE outbreak in the late 1980s. From about 1980 Ds also grew potatoes and other vegetables on the Field, with mixed success, and, from a later date, soft fruit. The vegetable and fruit farming was also phased out during the 1980s as the Nursery's business grew. On D2's evidence, from the early 1980s she began growing bedding plants from seed. D2 proved to have ‘green fingers’ and the bedding plant business grew quickly and, over the past 35 plus years, has expanded and diversified from bedding plants and is now a business with an annual turnover in the order of £1million. This evidence is not challenged.
. The documentary evidence includes a series of aerial photographs from 1981 to 2016, and even more recent (but undated) photographs. These photographs are, of course, only a snapshot at a particular time on a particular day but, as a series, they show development of the Nursery and the Field and neither side suggested that they were unrepresentative or presented a distorted picture of the period when each photograph was taken. These photographs show how the Nursery has been expanded by the installation of polytunnels, covered growing areas, a shop, additional outbuildings, and the erection of perimeter brick walls. Since about November 2017 what is referred to by Ds as a tea room (‘the tea room’) has also operated from a purpose built kitchen and dining area at the Nursery. The photographs also show how activity on the Field, including parking, has changed and increased over time.
. Ds had two children, Esther (‘EP’), who was born in 1976, and Christopher (‘CP’), who was born in 1982. EP now lives at 2 Highdown Cottages, a semi-detached dwelling attached to 1 Highdown Cottages, which D2, EP and CP purchased in 2017 and which is also accessed via a right of way over the Track.
. Also in 2017 D2, EP and CP purchased a 0.92 acre field (‘the 0.92 acre field’) which is on the opposite side of the Track to 1 and 2 Highdown Cottages and adjoins the north western boundary of the Nursery, and on which they currently keep chickens, goats and geese. Title to this field and to 2 Highdown Cottages were incorporated in the same registered title under title number SF467042 in the names of D2, EP and CP in 2017. The entrance to this field is set back from the Track. There are no issues concerning use of the Track for access to and from 1 and 2 Highdown Cottages or the 0.92 acre field.
. There is a dispute about the ownership of a triangular shaped area of land (‘the Disputed Land’) adjacent to the entrance to the 0.92 acre field. The approximate dimensions of the two sides of the Disputed Land sharing a 90 degree angle at the west corner of the Nursery are: width along the Track from an oak tree (‘the Oak Tree’) to the Nursery's west corner approximately 2.5 metres, and length along the Nursery's wall to the apex of the triangle approximately 8 to 10 metres. Thus, the area of the Disputed Land is some 10 to 12.5 square metres.
. EP and CP are involved with D2 in the main businesses carried on from the Nursery and the Field and were witnesses for Ds at the trial. On the unchallenged evidence EP has been involved in the Nursery's business full time for upwards of a decade and CP since about 2013. CP also runs a separate business from the Nursery and the Field selling logs as firewood. EP and CP became partners in the Nursery business some 3 to 4 years ago. EP is said to have inherited her mother's ‘green fingers’ and is responsible for managing the practical side of the Nursery and the employees; CP is responsible for the structures and maintenance; and, D2 manages the finances.
. It appears from the evidence that the partnership's accounts and accounting records are not maintained in a way to facilitate the provision of financial management information about the Nursery's business in any detail or to enable D2 to do more than give her own uncorroborated estimates as to component elements (income, costs and profitability) of the various aspects of the Nursery's trading activities. As became clear during cross-examination, D2's evidence as to certain building costs proved erroneous when disclosure finally surfaced and was analysed. Mr David Mitchell, C's counsel, made clear that he did not suggest, and I do not conclude, that there was a deliberate attempt to mislead, but I do conclude that uncorroborated or unsupported financial and business information about the Nursery should be received with some caution and cannot be taken as unquestionably reliable.
. The use of the Track to access the Nursery (including in particular the tea room on the...
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Nature Of Easements ' Part 2
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