Scott v Martin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE NOURSE |
| Judgment Date | 04 March 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0304-2 |
| Docket Number | 87/0206 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 March 1987 |
and
[1987] EWCA Civ J0304-2
Lord Justice Nourse
Lord Justice Balcombe
87/0206
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL
ON APPEAL FROM THE PETERBOROUGH COUNTY COURT
(JUDGE YOUNG)
Royal Courts of Justice
MR. BARRY PAYTON (instructed by Messrs. Hegarty & Co., Peter-borough) appeared for the Appellants (Plaintiffs).
MR. HENRY HARROD (instructed by Messrs. Day & Son, St. Ives, Huntingdon) appeared for the Respondents (First Defendants)
MR. MICHAEL HOPMEIER (instructed by Messrs. Greenwoods, Peter-borough) appeared for the Respondent (Second Defendant).
This is an appeal from a decision of His Honour Judge Young given in the Peterborough County Court on 18 June 1986 in a dispute between neighbours as to the extent of a right of way. Does it extend only to the metalled carriageway of a private road or to verges on either side as well?
Since 1984 the plaintiffs, Mr. and Mrs. William Scott, have been the freehold owners of 5, Allerton Garth, Alwalton, near Huntingdon. On 26 April 1962 the plot of land on which their bungalow now stands was conveyed to a predecessor in title of theirs by the personal representatives of a Mr. P. J. Kingston who, it seems, had previously owned four other adjacent building plots as well. It was by that conveyance that the disputed right of way was granted over a private road leading in an easterly direction from Church Lane, Alwalton to all five properties. That road is known as Allerton Garth. The plaintiffs' property stands at its eastern end.
The first two defendants, who are known, rather curiously, as the first defendants, are Mr. and Mrs. Jack Martin. They are the freehold owners of one of the neighbouring properties, 1 Allerton Garth, which stands on the north side of the road. They also own the soil of the land over which the metalled carriageway runs and any land on either side of it which has not been sold off to any of the adjoining owners.
The remaining defendant, who is known as the second defendant, is Mr. Roy Banham. He is the freehold owner of a property known as the Old Chapel, Church Lane, which stands to the south of Allerton Garth on the corner with Church Lane. The entrance to that property is in Church Lane. Its original boundary with Allerton Garth was a post and wire fence standing back from the carriageway at a distance of about 6'3" at its westerly end and about 4'6" at its easterly end. At that time the intervening strip between the fence and the carriageway, as the judge put it, supported a vigorous growth of scrub and bushes through which no pedestrian would wish to pass. But, on 14 January 1985 the first defendants conveyed that strip to the second defendant, who has since enclosed it into his garden with a stout close boarded fence which runs along the southern boundary of the carriageway. It was that action which prompted the plaintiffs to start these proceedings. They claim that their right of way extends over that strip of land and also over a 3 feet strip or verge adjoining every other part of the carriageway. Against the second defendant they claim a declaration and an injunction requiring him to remove the new fence. They also claim a declaration against the first defendants, who have contended and asserted that the right of way extends only to the carriageway and does not include any verges on either side.
The only remaining feature of the present state of the land which I should mention at this stage is that, at the north-west end of Allerton Garth, opposite the new close boarded fence on the other side, there is another growth of scrub and bushes. However, no particular point is taken on that. In other words, the plaintiffs do not ask that any of those growths should be removed.
The earlier history of the matter is as follows. At the end of 1957 the then owner of the land, a Mr. Nutt, who appears to have been Mr. Kingston's immediate predecessor in title, applied for planning permission for residential development. The original proposals were not altogether satisfactory to the planning authority and on 26 February 1958 we find that the County Planning Officer for the county of Huntingdonshire, the then planning authority, was writing to Mr. Nutt's building surveyor as follows:
"In reply to your letter of the 4th instant, I note that your client is agreeable to increasing the width of the proposed carriageway from 12 feet to 13 feet as required.
With regard to the other points i.e. footpath, satisfactory radius turning circles etc. it is essential that these are provided even though the County Council will not be required to adopt the road."
On 13 May following the surveyor wrote back, referring to the letter of 26 February and a subsequent meeting on the site and enclosing two prints of a revised scheme which was said to be based on the discussion which had then taken place. The print or plan of the proposed development has assumed some importance on this appeal. It showed a 13 feet pink metalled carriageway with 3 feet strips on each side which were coloured in dark green, to distinguish them from the adjoining areas in lighter green, the strips being described as verges. In fact, the verge adjoining the northern boundary of the second defendant's property was shown as being wider than that, consistently no doubt with the measurements which I have already stated. That letter and the enclosed prints were received by the County Planning Officer on the following day, 14 May 1958.
On 25 June 1958 planning permission was granted for a development described in the following terms:
"the layout and construction of an estate road and the erection of five dwellings at Church Lane, Alwalton, for H. Nutt, Esq. in accordance with the plan and application submitted to the Council on 11th December, 1957, as amended by plan submitted on 14th May, 1958, subject to the following condition(s):—".
I need not read or refer to the two conditions which were then set out.
Although that described itself as an outline permission, With further detailed applications being made later for approval of the plans and specifications of each of the houses, it is agreed that it remained the governing permission in regard to the road. Bearing in mind particularly the terms of the letter of 26 February 1958 and its insistence on what were described as "the other points including the footpath", I think it is clear that the effect of the planning permission was to require the road to be laid out and constructed in accordance with the revised plan, i.e., to consist of a 13 feet carriageway with 3 feet verges on each side. Whether you regard that as part of the permitted development or as an additional condition subject to which permission was granted does not seem to me to be a matter of any importance.
As I have said, the conveyance to the plaintiffs' predecessor in title was made on 26 April 1962. There was very little evidence as to the state of the development at that time. It is, however, agreed that the 13 feet carriageway had been constructed and also that no verges, let alone pavements, had been separated out or made up. The development is an open fronted one with grass now running down from the front of each of the houses to the edge of the carriageway, but it is not known whether that grass was already there, either in whole or in part, in April 1962.
The material provisions of the 1962 conveyance are these. Clause 1 contained a conveyance of the property described in the first schedule. Clause 3 contained a covenant by the then purchaser to observe and perform the covenants and conditions and stipulations set out in the second schedule. The first part of the first schedule was in these terms:
"All that piece of land situate in and having a frontage on the West to a private road called Allerton Garth at Alwalton in the County of Huntingdon which said property forms part of Ordnance Survey Number 38 and is for the sake of more particular identification only and not of limitation delineated on the plan annexed hereto and thereon edged red Together with a right of way at all times and for all purposes over and along the said private road leading into Church Lane…"
The first schedule then goes on to describe a right to use sewers and so forth, but it is agreed that that does not carry the question which arises in the present case any further. I must also read paragraphs 3,7 and 8 of the second schedule:
"3. To turf the portion coloured blue on the said plan (save where used for entrance purposes) and at all times to maintain the same unfenced and uncultivated (except as aforesaid) provided always that the Purchaser shall be at liberty if he so desires to plant small trees or shrubs fronting the said premises at a distance not exceeding four feet in front of the Building Line
7. To pay a fair and reasonable proportion of the expense of keeping the said road called Allerton Garth in good repair provided always that the Vendors shall make good any damage to the said road caused by building or development on any of the adjoining or neighbouring plots
8. To make good any repairs and reinstatement of the said road or grass verges occasioned by building work and builder's vehicles using the said road in connection with the development of the property hereby conveyed".
The action came on for hearing before Judge Young on 17 April 1986. Evidence was given for the plaintiffs by a chartered surveyor, Mr. Langford-Smith, who had prepared a large scale plan of the site, Mr. K. R. Hutchinson, the Principal Planning Officer of the Huntingdon District...
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