Serchem Ltd v David Leslie Barnett (Respondent/Plaintiff)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 29 March 1995 |
| Judgment citation (vLex) | [1995] EWCA Civ J0329-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 March 1995 |
| Docket Number | CCRTF 93/1487/C |
[1995] EWCA Civ J0329-4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TELFORD COUNTY COURT
(Miss Recorder Hindley QC)
Before: The Master of the Rolls Lord Justice Hirst and Lord Justice Aldous
CCRTF 93/1487/C
MR. J. MASON (instructed by Messrs Halsteads, Telford, Shropshire) appeared on behalf of the Appellant/Defendant.
MR. S. EYRE (instructed by Messrs Espley & Co., Telford Shropshire) appeared on behalf of the Respondent/Plaintiff.
( )
LORDJUSTICE ALDOUS: This is an appeal by leave of this court against the orders of Miss Recorder Hindley sitting at the Telford County Court on 2nd December 1992, and 5th April 1993. In those orders the learned Recorder declared that the plaintiff was the owner of certain land on which the defendant had built a factory warehouse, and ordered that the defendant should pay to the plaintiff damages for that encroachment of £1,500 and interest. Upon this appeal the defendant did not dispute the conclusion of the learned Recorder that the warehouse encroached upon the plaintiff's land, but submitted that the plaintiff was estopped from contending to that effect.
The plaintiff, Mr. David Barnett, purchased in 1964 a property known as Midfields at Arleston near Telford. He had known the property for some years as his grandmother had lived there before the last war. At the time when he purchased Midfields it consisted of a house and garden with store sheds on its northern side. It was bounded on its northern edge by a field owned by Mr. Griffin and on the south by a road. To the east was a factory consisting of a factory building and a workshop, and beyond that there was another house and garden known as Heatherset. In 1981 Mr. Barnett purchased from Mr. Griffin a strip of land adjoining the western edge of the garden which he incorporated into his garden.
The defendant, Serchem Ltd., was described by the learned Recorder as the alter ego of Mr. Arnold and, for the purpose of this judgment, it is not necessary to differentiate between them. Mr. Arnold purchased Heatherset in 1973, and at that time the factory and workshop were separately owned. In 1983 Mr. Arnold purchased the factory and subsequently, in 1985, Mr. Barnett purchased the workshop together with a concrete strip which provided access from the road to the workshop and ran between his property and the factory. That concrete strip was subsequently conveyed to Mr. Arnold in April 1988, but Mr. Barnett retained a right of way to enable him to gain access to his workshop.
Before the learned Recorder a number of complaints were aired by Mr. Barnett against Mr. Arnold and vice versa. The learned Recorder said that there had been a long and unhappy dispute between the parties as neighbours, not only concerning the issues the subject of the proceedings, but also concerning other matters. This court has not had to concern itself with most of those issues and matters as they are no longer in dispute.
As of 1985 Mr. Barnett's property, Midfields, consisted of a house, garden and a workshop. Its extent is shown edged in red on the plan attached to the Notice of Appeal and is bounded by the line denoted by the points M, N, O, W, T, U, F, G, M. Mr. Arnold's property, Heatherset, consisted of a house, garden and the factory premises. It is shown edged blue on the plan and is bounded by the lines denoted by the points M, N, O, W, T, U, C, B, M. Thus the two properties had a common boundary denoted as M, N, O, W, T, U.
In about October 1985, Mr. Barnett returned home to find a 30' strip of land to the north of his property pegged out with pegs. On enquiry he found out that Mr. Arnold had approached Mr. Griffin, the owner of the field which ran along the northern boundary of the two properties, with a view to purchasing part of the field for an extension to the factory. Mr. Barnett was concerned as to the effect that the building of an extension to the factory would have on his house. There was a dispute as to what happened and what was agreed, but the learned Recorder had the advantage of hearing the evidence of a Mr. Daborn who was the agent who acted for Mr. Griffin. With the assistance of that evidence and looking at the subsequent conveyances, the learned Recorder was able to conclude that Mr. Griffin agreed to sell land to Mr. Barnett and Mr. Arnold with the result that the borders of the two properties were extended to the north by some 60'. The parties were to have as much land as they wished to purchase extending east and west from the dividing line between the two properties. The learned Recorder held, and it is now accepted, that Mr. Griffin sold a total area of 60' by 292'. Mr. Barnett purchased 60' by 110' and Mr. Arnold purchased 60' by 182'. The boundary between the two areas was the continuation of the dividing line between the properties, namely continuation northwards of the line M, N shown on the plan which is denoted by the line M, V. It was contemplated that Mr. Arnold would build an extension of the factory on part of the land that he purchased, but to safeguard the effect of that upon Midfields, the conveyance to Mr. Arnold contained a restrictive covenant preventing erection of any building upon the land within 12' of the boundary. That was referred to by the learned Recorder as the 'buffer zone'.
Mr. Arnold's application for planning consent for erection of the extension to his factory was not straightforward and was only granted upon appeal in February 1987. Work began on the building in April 1988. It was constructed so that its edge was to the west of the line M, V by some 24'. Thus, upon the finding of the learned Recorder, which is no longer challenged, it was built partly on Mr. Barnett's land and also in breach of the restrictive covenant. I shall have to go in detail into the reason why the factory warehouse was built in the place that it was, but it is sufficient to record at this stage of my judgment that it arose from the fact that Mr. Barnett had cultivated more than 110' of the field. This meant that the measurement from the most westerly end of Mr. Barnett's land of 110' ran out some 24' before the correct dividing line between the properties.
The factory was completed by about the beginning of 1988, and in the spring of that year Mr. Griffin realised that it had been built in breach of the restrictive covenant. Mr. Arnold entered into a fresh restrictive covenant preventing erection of any further buildings.
In April 1988 Mr. Barnett conveyed the concrete strip to Mr. Arnold which ran from the road to the new warehouse, and in June 1988 he started proceedings in the Small Claims Court to recover the cost of reinstating his land damaged during erection of the factory. The land referred to included a 24' X 60' plot at the west end which in fact was never purchased by him in 1985. In September 1988 Mr. Arnold erected a larch lap fence some 15" to 18" beyond the western edge of the factory. That prompted Mr. Barnett to complain and to check his conveyance. The result was that Mr. Barnett realised for the first time that the factory warehouse had been built upon his land and he contacted solicitors who wrote on 27th October 1988 alleging encroachment by some 24'. The dispute concerning restoration of the land came before the District Judge on 31st October, and despite knowing that he did not own all the land alleged to have been damaged, Mr. Barnett maintained his claim for the cost of restoration.
As I have said, the learned Recorder found that Mr. Arnold had built his factory warehouse in breach of covenant and partly upon Mr. Barnett's land. She adjourned the matter after judgment for further argument and made an order that Mr. Arnold should pay damages, but refused to order that the extension to the factory should be demolished.
Mr. Arnold submitted before the learned Recorder that, if the factory had been built upon Mr. Barnett's land, Mr. Barnett was estopped from so contending. The submissions made and the conclusions reached were explained by the learned Recorder in this way:
"By the Re-Amended Defence the Defendant alleges that an estoppel arises because the Plaintiff stood by knowing that the Defendant believed it had the right to construct the factory and the fence, and that the Defendant negotiated thereafter a deed of release from the restrictive covenant in reliance upon the belief that the Plaintiff had agreed the boundary to be at the location where the building of the new factory ended.
In order to succeed on that argument the Defendant must prove that the Plaintiff made an express or implied representation which was relied on by the Defendant to his detriment. The representation upon which the Defendant purports to rely is the alleged common understanding that the boundary line was at its current location and that the Defendant relied on that, and it is therefore unfair for the Plaintiff to deny the truth of that matter so far as that issue is concerned. As I have already stated, I do not accept the Defendant's evidence as to a common understanding to that effect. On the contrary, the Plaintiff was misled by the Defendant's assertions as to the location of the boundary. The Deed of Release did not in my view amount to a detrimental reliance, as the Defendant was in breach of the restrictive covenant and the obtaining of the Deed of Release was therefore necessary in any event. I am therefore satisfied that no estoppel arises in relation to this issue."
Counsel for the appellant submitted that the source of the modern law on acquiescence was the...
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