Sinclair v Kearsley and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Sullivan,Lord Justice Laws |
| Judgment Date | 24 February 2010 |
| Neutral Citation | [2010] EWCA Civ 112 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2 2009/1975 |
| Date | 24 February 2010 |
[2010] EWCA Civ 112
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
District Judge Obodai
Before: Lord Justice Laws
Lord Justice Lloyd
and
Lord Justice Sullivan
Case No: B2 2009/1975
Case 7SF03028
Stephen Sauvain Q.C. instructed by Boote Edgar Esterkin) for the Appellants
David Manley Q.C. (instructed by Walker Morris) for the Respondent Mr Sinclair
The Respondent Salford City Council was not represented
Hearing date: 15 February 2010
Lord Justice Lloyd:
Introduction
In this appeal, from an order made by District Judge Obodai in the Manchester County Court on 12 August 2009, the point at stake is whether the Claimant, Mr Sinclair, who lives at 9 Victoria Crescent, Eccles, can open up and use a vehicular access between the back of his property and a private road called Ellesmere Road. If he can, then he may be able to put up a garage at the back of his house and would be able to use it, whereas at present, though he has access with vehicles to and from Victoria Crescent at the front of his house, the space at the front is limited, and there is no room for a garage there.
That may seem to be an innocuous desire on his part. However, in order to achieve his object he has to be able to take vehicles over the land immediately outside his curtilage at the back. That land belongs to the appellants, Mr and Mrs Kearsley, and they are not willing to allow him such access. Therefore he has to show that their ownership of the land is subject to a right of which he can take advantage. Since there is no question of his having a private right of the necessary kind, he seeks to show that the relevant land is subject to public vehicular rights as a highway.
In the county court Ms Frances Patterson Q.C., who appeared for him then, was able to persuade the District Judge that the relevant piece of land was part of a public highway usable by vehicles. Ms Patterson having been appointed as a Law Commissioner, Mr Manley Q.C. took her place in representing the respondent before this court, but he failed to convince us that the judge's judgment was correct, in the face of the criticisms mounted by Mr Sauvain Q.C. by way of the appeal. Having heard both Counsel, we announced that we would allow the appeal, but that we would deliver our reasons in written form. This judgment sets out my reasons for having come to that conclusion.
The facts
Ellesmere Park was laid out in the 1870's by the Duke of Bridgewater's trustees. In the Eccles & Patricroft Journal on 3 August 1878 it was described in glowing terms as the “well-known and now very popular residential estate” in an article which described newly announced plans to extend the estate by some 50 acres. The estate as it then stood is shown on an Ordnance Survey map dating from 1876. The changes since then in and around the area relevant to this appeal are limited and fairly recent.
It is common ground that, when originally laid out, all the roads in Ellesmere Park were privately owned and were not public highways. Access to the estate was restricted by gates. The roads which were and are relevant for present purposes are as follows. Victoria Crescent is and always was a highway. Ellesmere Road lay within the estate and was not a highway. It runs north-west to south- east through the estate. At the south-eastern end it ends at or near Victoria Crescent, and at that point it is a cul-de-sac. That is the area which is directly in issue in these proceedings. Going north-west up the road from there, it is crossed by Sandwich Road, also one of the estate roads, and then further on by other former estate roads. I will call the part of Ellesmere Road which lies between Sandwich Road and Victoria Crescent the Cul-de-sac.
There is an old public footpath which was already shown on Ordnance Survey maps before Ellesmere Park was laid out. So far as relevant, this runs along the line of Ellesmere Road and comes out at Victoria Crescent. Photographs from the early 20th century or earlier show this path to have been clearly marked out and paved, unlike the areas either side of it along Ellesmere Road. They also show that, along Victoria Crescent at the end of the Cul-de-sac, there was a picket fence across the space between the curtilages of the two houses on either side, and an opening in the fence, with a metal post in the middle of that opening, so that pedestrians (and no-one else) could pass between the footpath and Victoria Crescent. The metal post is still there, as is the footpath. Photographs which we were told dated from 1958 and 1961 show that the layout of the part of Ellesmere Road with which we are concerned was still the same in 1958, with the picket fence, the paved footpath and an unmade up area to the west of the footpath, which was quite wide at its north-western end (judging by the photograph) but got progressively narrower as the grass verge got wider, and was eventually quite narrow, as it went to the south- east.
When Ellesmere Park was originally laid out, there was a house in Victoria Crescent on either side of the end of the Cul-de-sac: one (5 Victoria Crescent) which seems from the plans to have been large and in a large plot, to the west, and another (9 Victoria Crescent) to the east which seems to be the same as that which the Claimant now owns, which is smaller and is on a smaller plot. Behind these, which may not have been part of the Ellesmere Park estate, there were two other houses which were part of the estate, each with its principal access on Sandwich Road, or at the junction of Sandwich Road and Ellesmere Road. In this case, the house to the east (Brackley House) was large, and lay in a large plot, whereas the house on the west was smaller and in a smaller plot. There may have been a side access via a garden gate or the like from either or both of these to Ellesmere Road, but there was at that stage no house which depended on access directly on to that part of Ellesmere Road.
By 1936, however, Brackley House had been sold and its land had been divided so as to permit the building of five smaller houses, of which two fronted only on to Ellesmere Road, and a third may also have had vehicular access from Ellesmere Road to a garage.
Salford City Council (the highway authority) considers that it was in or about 1957/8 that the other roads within Ellesmere Park were adopted as highways under the Street Works Code, including Sandwich Road and that part of Ellesmere Road which lies to the north of Sandwich Road. The southern end of Ellesmere Road, the Cul-de-sac, was not dealt with in this way. It may well be that the reason for this difference of treatment was the very fact that this part of Ellesmere Road is a cul-de-sac, not leading anywhere, and with no particular reason for the public to want to use it, other than as pedestrians along the long-established footpath. At all events, the neighbouring roads were made up and adopted, but the Cul-de-sac was not. It remained private and not a highway.
In 1987, the then residents of houses abutting the Cul-de-sac (or some of them) paid for the roadway to be widened and made up with a metalled surface. A recent photograph shows that there is a metalled surface, now 16’ 6” wide, whereas, from the position of a gully, it is possible to deduce that, at the end nearest Sandwich Road, it was originally some 13’ 8” wide. There is a sign “Private Road No Parking”, and the state of the carriageway is less good than that of an adopted public highway (or at least, that which such a highway ought to have). Another recent photograph taken from across Sandwich Road and looking south- east shows the difference in standard between the surface of the adopted Sandwich Road and that of the Cul-de-sac lying beyond it.
In 1987 the appellants bought part of the garden of 5 Victoria Crescent in order to build a new house, which is called Earksley Lodge. In 1988 they also bought from Peel Estates Ltd the land lying between that which they had already bought, formerly part of 5 Victoria Crescent, and 9 Victoria Crescent, that is to say the end of the Cul-de-sac. They then incorporated the western part of that land (up to about a metre from the footpath) into the garden of their new house. They have vehicular access from Ellesmere Road, not from Victoria Crescent, with gates for cars and for pedestrians at the end of the metalled part of the Cul-de-sac.
Planning permission was required in order to incorporate this extra land into the garden, and thus to turn it to residential use. In September 1987 agents on the appellants’ behalf, Springwish Design Services, submitted a planning...
To continue reading
Request your trial
-
R Malek Hossein Abdollahi v Secretary of State for the Home Department
...R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, and R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 112, and a number of first instance decisions, for example R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, R (Mahfoud) v Se......
-
The Queen (on the application of AC (Algeria)) v Secretary of State for the Home Department
...as there is a realistic prospect of removal (within a reasonable period of time) – see MH v Secretary of State for the Home Department [2010] EWCA Civ 112 per Richards LJ at [65] and R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 per Lord Dyson JSC at 53 A material......
-
R Abdollahi v The Secretary of State for the Home Department
...the date when removal can reasonably be expected to occur or to predict with certainty that removal will take place ( MH v SSHD) [2010] EWCA Civ 112 at paragraph 65). 28 Beatson J sets out the numerous cases which have applied the Hardial Singh principles over 20 years since they were first......
-
ASD v Secretary of State for the Home Department
...where judicial comments have been made as to the length of the detention, Bashir [2007] EWHC 3017, Wang [2009] EWHC 1578, MH v SSHD [2010] EWCA Civ 112 and DZ [2017] EWCA Civ 14. I have also been referred to authorities that make it clear that the risk of harm to the public and of abscondin......
-
Highway Authority
...Easton v Richmond Highway Board (1871) LR 7 QB 69. 10 Belmore (Countess) v Kent County Council [1901] 1 Ch 873. 11 Sinclair v Kearsley [2010] EWCA Civ 112. 12 Hale v Norfolk County Council [2001] 2 WLR 1481, qualifying Attorney General v Beynon [1970] 1 Ch 1. 13 Hinds and Diplock v Breconsh......
-
Table of Cases
...New Docks and Gloucester & Birmingham Navigation Co v Attorney-General [1915] AC 654, 13 LGR 563, 79 JP 305, HL 90 Sinclair v Kearsley [2010] EWCA Civ 112, [2010] 2 P & CR D23, [2010] All ER (D) 270 (Feb) 85 Slough Borough Council v Secretary of State for Environment, Food and Rural Affairs......