Property Point v Kirri
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE VOS,Mr Justice Vos |
| Judgment Date | 20 November 2009 |
| Neutral Citation | [2009] EWHC 2958 (Ch) |
| Date | 20 November 2009 |
| Court | Chancery Division |
| Docket Number | Case No: CH/2009/PTA/0390 |
[2009] EWHC 2958 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Vos
Case No: CH/2009/PTA/0390
Mr James Harris (instructed by Protopas Solicitors) for the Appellant
Ms Joanne Wicks (instructed by David Vlahos) for the Respondent
Hearing date: Friday 13 th November 2009
Approved Judgment
Mr Justice Vos:
Introduction
On 10 th November 2006, the Appellant, PropertyPoint Limited (“PropertyPoint”) applied to H.M. Land Registry in Form AP1 to alter the Register by the removal of an entry on the Charges Register of its title number AGL87839 (“Title 839”) dated 20 th September 2006, recording a prescriptive right of way (the “Entry”). Unfortunately that application is not before the Court, but it appears that the Respondent, Mrs Angela Kirri (“Mrs Kirri”) was given notice of the application on 1 st December 2006, and that she duly objected later in December 2006 to PropertyPoint's application.
Mrs Kirri is the freehold owner of title number MX302952, which comprises a dwelling-house and garage at 1A, Spencer Avenue, Palmers Green, London N13 (“No 1A”). Mrs Kirri acquired No 1A in August 1982 and became the registered proprietor on 17 th December 1982.
On 28 th September 2007, the Land Registry notified PropertyPoint's solicitors that, since it had not been possible to deal with Mrs Kirri's objection by agreement, the matter (meaning the application for an alteration and the objection to it) was to be referred to the Adjudicator under section 73(7) of the Land Registration Act 2002.
On 4 th February 2009, Mr Owen Rhys, sitting as Deputy Adjudicator, ordered that the Chief Land Registrar should cancel PropertyPoint's application dated 10 th November 2006. He thereby refused the application for alteration of the Register by removal of the Entry.
On 4 th June 2009, the Deputy Adjudicator refused PropertyPoint's application (which was in fact out of time) for permission to appeal on 4 specific grounds. But on 30 th July 2009, Proudman J granted PropertyPoint's renewed application for permission to appeal on the 4 th ground only. The application for permission to appeal on the first three grounds was renewed before me. In addition, Mr James Harris, counsel for PropertyPoint has sought, in oral argument, to extend and elaborate the existing grounds.
I should say at the outset, however, that it was common ground between the parties that, insofar as factual matters are being appealed, I am bound to follow the guidance set out in the well-known judgment of Clarke LJ (as he then was) in Assicurazione Generali SpA v. Arab Insurance Group [2003] 1 W.L.R. 577 x at pages 580–1. In short, I have to be satisfied that the decision below was wrong and lies outside the bounds within which reasonable disagreement is possible, giving full weight to the fact that the Deputy Adjudicator had the advantage of seeing the witnesses at first hand.
I shall, wherever possible, use the same abbreviations as the Deputy Adjudicator.
PropertyPoint's Titles
PropertyPoint was registered proprietor of Title 839 on 30 th May 2006. It has little knowledge of the use to which its land was put prior to that date.
Title 839 comprises three main parts that are important for this appeal:-
(1) First, there is the rectangular area of land coloured yellow on the title plan towards the South of the title (which I shall call the “Yellow Land”). I was told that the Yellow Land measures approximately 9.9 metres by 5.6 metres.
(2) Secondly, there is the chair shaped area of land (without front legs) coloured blue on the title plan to the North of the title (which I shall call the “Blue Land”).
(3) Thirdly, there is an uncoloured area (the “Garage Land”), which was previously the site of 3 garages, but is now clear land, to the far South of the title, and just below the Yellow Land.
A copy of Title 839 is appended to this Judgment.
The first entry on the Charges Register to Title 839 records that “the land tinted blue on the filed plan is subject to rights of way”. This relates to the Blue Land, which forms part of the Alleyway (defined below) along which all the occupants of the houses from No 1A to No 13 Spencer Gardens pass to access the rear of their properties. This entry is not challenged on this appeal.
On 20 th September 2006, the Entry was registered on the Charges Register of Title 839 as follows: “the land tinted yellow [the Yellow Land] on the filed plan is subject of a right of way with or without vehicles over the Access-way at the side and rear leading into Spencer Avenue. This right has been acquired through long user”. One might observe that it is by no means clear from the face of the title what precisely is meant by the words “over the Access-way at the side and rear leading into Spencer Avenue”. Mrs Kirri's statutory declaration dated 1 st August 2006 (which is also referred to in the Charges Register) supporting her entry on Title 839, read together with the plan attached to it, made it clear, however, that the “Access-way” was the Alleyway (as defined below) together with the Blue Land and the Yellow Land.
PropertyPoint was also registered with title absolute to Title Number AGL87840 (“Title 840”) on 30 th May 2006. As appears hereafter, Title 840 relates to the tiny site of a fourth garage adjoining the Garage Land to the East. All four garages were destroyed by fire in 1995. Title 840, however, lies directly South of what will be referred to later in this judgment as the Stub.
The relevant physical features
I gratefully adopt paragraphs 3 and 4 of the Deputy Adjudicator's decision describing the relevant physical features of the properties concerned in this appeal as follows. Although these passages go over some of the ground that I have covered above, they should assist in understanding the somewhat complex physical layout: -
“3. The relevant physical features of the site are as follows. The Respondent is the registered proprietor of a dwelling-house known as 1A (otherwise known as “The Corner House”), Spencer Avenue, Palmers Green, London N13. I shall refer to this property, which has the Title Number MX302952, as “No 1A”. No 1A is situated on the south side of Spencer Avenue, close to its junction with High Road, otherwise Green Lanes, a short distance to the east. No 1A consists of a house, a rear garden, and a quadrilateral-shaped garage which occupies the full width of the plot at its southern end (“the Garage”). A tarmaced alleyway runs south from Spencer Avenue along the eastern side of No 1A for its whole length, approximately 3.5 metres in width. I shall refer to this section, together with the section to the west of the dogleg mentioned below, as “the Alleyway”. Just to the north of the Garage there is a barred blue metal security gate (“the Blue Gate”) which is hinged on the eastern side of the Alleyway, i.e. opposite No 1A. When open, this gate lies alongside the fence on the eastern side. According to the Respondent, the Blue Gate was erected in 1997. The entrance to the Garage consists of a steel roller shutter some 3.3 metres wide, which is situated on the east side, thus opening into the Alleyway and more or less directly opposite the Blue Gate when in the open position. The Alleyway continues past the entrance to the Garage, and then takes a sharp turn to the west, the angle of turn being some 75 degrees (based on Mr Johnson's plan). The bend has been described as the dogleg. The Alleyway is at this point enclosed to the south by a tall fence or hoarding (“the Hoarding”) which runs along its length as it passes the end of the Garage and the garage of the adjoining property No 1 Spencer Avenue. Just past No 1 there is a red barred metal gate which closes off the western end of the Alleyway, which in fact continues along the rear of the houses on Spencer Avenue as far as Number 13. Due to the presence of the Hoarding opposite the garages at No 1A and No 1, the Alleyway is too narrow to permit turning (except perhaps by a very small vehicle).
4. Two separate easements are noted against the title to the Servient Land. First, the entry relating to the Yellow Land as set out in Paragraph 1 above. Secondly, an entry in these terms: “The land tinted blue on the filed plan is subject to rights of way”. The land tinted blue (which I shall call “the Blue Land”) consists of a section of Alleyway that I have described above. The section in question forms the southern part of the Alleyway (to the south of the blue metal security gate) and the part that turns west through the dogleg to run along the south of No 1A and No 1 as far as the red metal gate. It also includes a further small section (“the Stub”) which is a continuation of the north-south section of the Alleyway (i.e. before it turns west past the dogleg). The Yellow Land, which is tarmaced, is situated to the south of the Hoarding (i.e. separated by this feature from the Alleyway itself) and to the west of the Stub as described in the preceding sentence. The Servient Land consists of: (a) the Blue Land, (b) the Yellow Land and (c) a tarmaced area to the south of and adjoining the Yellow Land which previously formed the site of the three lock-up garages which were destroyed by fire in 1995. There were in fact four such garages, but the site of the most easterly of these garages forms a separate title number, namely AGL87840, also registered in the Applicant's name. The Stub forms the access to this title from the alleyway. There is now a gap at the eastern end of the Hoarding which...
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