Sebastian Rupert Vance v Carol-Ann Collerton
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 08 November 2019 |
| Neutral Citation | [2019] EWHC 2866 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH-2018-000330 |
| Date | 08 November 2019 |
[2019] EWHC 2866 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
CHANCERY APPEALS
ON APPEAL FROM HIS HONOUR JUDGE PARFITT
SITTING AT THE COUNTY COURT AT CENTRAL LONDON
Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London, EC4A 1NL
THE HON Mr Justice Kerr
Case No: CH-2018-000330
Jonathan Gaunt QC (instructed by Kidd Rapinet LLP) for the Appellants/Claimants
Kerry Bretherton QC (instructed by Gardner Leader LLP) for the Respondents/Defendants
Hearing dates: 15th–16th October 2019
Approved Judgment
Introduction
This is an appeal and cross-appeal by permission of Snowden J against decisions of His Honour Judge Parfitt sitting in the County Court at Central London. He decided in a reserved judgment handed down on 19 October 2018 to dismiss a claim and partially allow a counterclaim in a dispute mainly about a right of way which had arisen between neighbours at Taplow, near Maidenhead.
He made declarations on the following matters: where the boundary lies between the two neighbouring properties; on ownership of and obligation to maintain a fence dividing the properties; on restoration of the fence and a gate, which had been removed; and requiring rectification of the register of titles at the Land Registry. The judge also made certain monetary orders relating to restoration of the fence and gate and in respect of costs.
I shall refer to the parties by their names. The appellants, the claimants below, are the Vances. The respondents and cross-appellants, the defendants below, are the Collertons. The Vances are the owners of Queen Anne's Cottage (the Cottage). Mrs Collerton owns Queen Anne's House (the House).
The Properties
The House has six bedrooms. It lies to the south west of the Cottage which, therefore, lies to the north east of the House. As approximations, I will refer to these compass directions as north and south rather than, more accurately, north east and south west. The Cottage was converted from stables in the 1950s. It is smaller than the House and was formerly part of the same title.
Access to both House and Cottage is via a tarmac driveway running up the side of the House, approximately perpendicular to the adjoining public road. The driveway belongs to the House and is wide enough for two cars to pass only at the road end, where it widens into a “bell mouth” shape. The rest of the driveway is not much more than the width of a large car or van.
At the northern end of the driveway lies what has been called a garage, behind which is a small outhouse belonging to the Cottage. The garage is not currently suitable for parking as it has low beams. At present it is used for storage of equipment. It is within the curtilage of the House. At the back of it is a party wall (called the X-Y party wall on relevant plans) between the garage and the Cottage outhouse. Behind the outhouse there is a small strip of garden belonging to the Cottage.
Between the House and the Cottage a narrow alleyway runs from east to west. On the House side it is overlooked by windows set into the north facing wall of the House. On the Cottage side it is bordered by what has been called a “close boarded” wooden fence running up to the south east corner of the Cottage, behind which lies the southern border of the Cottage garden.
From a point slightly west of the Cottage, about half way along its western face (at point A on relevant plans), a hedge (called the A-C hedge) runs a short distance to the west and then (at point B) turns in a right angle to the north, running to a point (point C) at the northern end of a narrow strip of land west of the Cottage.
Running diagonally between the south west corner of the garage and the north east corner of the House there was at one time a single structure comprising a white painted shoulder-high wooden picket fence with a gate at each end. Both gates opened outwards onto the driveway. The gate at the House end, removed some years ago, used to close across the narrow alleyway. The gate at the garage end is still in place and provides pedestrian access to the Cottage through its front garden.
I shall refer to the fence as the “white fence” including where appropriate the pedestrian gate giving access to the Cottage. For descriptive purposes (though not appearing on any conveyancing plan), the point where the gate on the House side joins the white fence has been called point “F”, while the point where the gate post of the access gate to the Cottage meets the south west corner of the garage has been called point “G”.
Behind the white fence, there was until spring 2016 a hedge, called the F-G hedge because it was thus marked on a plan prepared for these proceedings, though again not on conveyancing plans. The F-G hedge, until spring 2016, followed the line of the white fence before curving round, at the House end, and running behind the close boarded fence on the Cottage side.
The Dispute
A dispute arose after the Vances removed the white fence and began to park their car in the garden of the Cottage, using the driveway to reach it. The Collertons then started to park at the front end of the driveway, nearest the road. That is the only part of the driveway wide enough for two vehicles to pass each other. They could not park on any other part of the driveway without obstructing the Vances' vehicular access to the Cottage garden.
The Vances object to the Collertons parking anywhere on the driveway. They say it is difficult and dangerous to bring a car onto the driveway past the Collertons' car. They say the Collertons should park in the garage. The Collertons object that the garage is not fit for parking use and they are entitled to park on their own driveway, to whose upkeep the Vances do not contribute.
Background Facts
In the 1950s, the Cottage and House were part of the same land title and were owned by a Mr and Mrs Pope. They proceeded to convert what were then stables into what is now the Cottage, while living in the House. An aerial photograph taken in 1981 shows the two properties when they were part of the same title. The white fence with a gate at either end is in place and (though shielded by a tree canopy) it is agreed the F-G hedge was then behind it.
In 1990, the Popes decided to sell the House and live in the Cottage, splitting the title. They agreed with a Mr and Mrs Powell to sell the House to them. During negotiations before the sale certain enquiries were answered by the Popes' solicitors on the subject of boundary walls, fences, hedges and ditches. Certain responses given in November 1990 were mentioned in argument.
The House was transferred to the Powells, the Popes retaining the Cottage, by a transfer dated 14 February 1991 (the 1991 transfer). For the benefit of “the Retained Property”, i.e. the Cottage, the Powells entered into certain covenants. Only those relevant here need to be mentioned, along with other relevant provisions in the 1991 transfer.
The Powells, as purchasers, covenanted, by clause 3(b), not to make any windows doors or openings along the “boundary wall” without the written consent of the Popes. The “boundary wall” was not a boundary at all but the wall of the House overlooking the alleyway running between the properties. By clause 4 of the 1991 transfer, it was agreed that the “X-Y” wall behind the garage was a party wall maintainable and repairable at joint expense.
Clause 6 reserved to the Popes, for the benefit of the Cottage, certain matters. Clause 6(b), at the heart of this case, reserved to them:
“a right at all times by day or night with or without vehicles of any description and for all purposes in connection with the use and enjoyment of the Retained Land to pass and repass over along the driveway and pathway coloured yellow on the plan including a right to park vehicles on the driveway coloured yellow for the purposes of loading and unloading only and for no other purpose whatsoever”.
The land marked yellow on the accompanying plan included the garage. That, everyone agrees, was an error. There was no right of way over the garage land. Aside from that, the yellow colouring on the plan extended to the whole of the driveway and the whole of the alleyway running between the two properties.
Clause 6(c) reserved to the Popes a right of access over and onto the House land for the purposes of maintenance and decoration of the Cottage land. Clause 6(d) reserved to the Popes a right to “cut and maintain the conifer hedge along the boundary marked ‘A’ ‘B’ ‘C’ on the plan”. That was the A-C hedge, shown on the plan attached to the 1991 transfer.
Probably in 1991, at around the time of the 1991 transfer, the Popes and one of the Powells signed an undated plan which has been described as a “boundary agreement” (the boundary document). It shows a brown coloured line said to mark the boundary between the two properties. It is not very accurate but the brown colouring approximately follows the F-G line on plans prepared for these proceedings.
The possible significance of the boundary document is that it includes three small “T” shaped marks (the T marks) on the House side of the brown coloured line. The T marks were later considered by the judge below and were the subject of argument before me as they were later said to indicate, at least, that the owners of the House and not the owners of the Cottage bore responsibility for maintaining boundary features.
The Powells only stayed about four years before deciding to sell the House. They sold it to Mrs Collerton. During pre-contract negotiations, in a letter of 14 June 1995 Mrs Powell's solicitors...
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