Site Developments (Ferndown) Ltd and Others v Cuthbury Ltd and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE VOS,Mr Justice Vos |
| Judgment Date | 13 January 2010 |
| Neutral Citation | [2010] EWHC 10 (Ch) |
| Docket Number | Case No: HC07C02970 |
| Court | Chancery Division |
| Date | 13 January 2010 |
[2010] EWHC 10 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: Mr Justice Vos
Case No: HC07C02970
Mr John Dagnall (instructed by Coles Miller) for the Claimants
Mr Christopher Wilson (instructed by Rawlins Davy) for the Defendants
Hearing dates: 1 st to 4 th, 7 th to 11 th, 14 th to 16 th December 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Vos:
Introduction
Cuthbury Limited (“Cuthbury”), the first Defendant, was incorporated on 24 November 2005. It acquired title number DT336589 by a transfer from the Canford Estate dated 23 December 2005. The title includes a stretch of Mannings Heath Road, Poole, Dorset (the “Green Land”) and a small area of adjoining land shown on Plan A (one of the three plans attached to this judgment), referred to in these proceedings as the “Blue Land”. The owner of Cuthbury, Mr Derek Simester (“Mr Simester”) bought title number DT336589 in order to be able to create visibility displays that he expected the local planning authority to require to allow him to develop a site he had yet to purchase. In the result, Cuthbury never managed to buy the development land in question, and has instead claimed to own two ransom strips and the benefit of some restrictive covenants affecting the site, which adjoins both the Blue Land and Mannings Heath Road.
The main questions in this litigation are whether Cuthbury has indeed acquired title to the two ransom strips controlling access and surface water disposal to the development site, and whether Cuthbury is entitled to the benefit of certain restrictive covenants. As the trial has progressed, it has become apparent that Cuthbury asserts these rights as a result of Mr Simester's extreme indignation at the treatment that he feels he received from the owners of the first and second Claimants, Messrs Colin Burridge and Bill Riddle. Mr Simester had been negotiating with them for some or all of the adjoining development site at the same time as he was acquiring title DT336589, but in the event Messrs Burridge and Riddle decided to proceed without him.
It is not suggested that Cuthbury has anything commercially to gain from the asserted rights, except a ransom position. Cuthbury will not be able to develop any land even if it succeeds. This whole unfortunate litigation is, therefore, something of a grudge match.
The pieces of land in question are shown on Plan A, which is attached to this judgment, and which was exhibited to the Particulars of Claim. I shall refer to the whole area in issue, being the Orange, Purple, Brown and Blue Land, as hereafter defined, as the “Site”.
I should say at the outset that I have studied, in the course of the trial and afterwards, numerous plans, maps, titles, photographs and other contemporaneous materials. All of them have some bearing on the issues I have to decide. I could not possibly mention all these materials in this judgment without intolerable prolixity. It should not, however, be thought that I have ignored materials, just because I have not mentioned them expressly. What I have sought to do in this judgment is to summarise my reasons as briefly as clarity will permit, not to deal with every document and every aspect that has been rehearsed in argument.
The relevant titles
The first Claimant, Site Developments (Ferndown) Ltd. (“SDF”), is now the owner of title number DT25799 registered at HM Land Registry (the “New Orange Land”). This title was previously larger and was the site of a family home built by Mr Reginald Rogers in about 1926. It amounted to some 1
The second Claimant, Canford Renewable Energy Ltd. (“CREL”), is now the owner of the following titles registered at HM Land Registry:—
(1) Title number DT177157 (the “New Purple Land”); and
(2) Title number DT31967 (the “New Brown Land”).
These two titles were also previously larger, amounting together to some 4 acres. The original areas are referred to in this judgment as the “Purple Land” and the “Brown Land” respectively. They were originally registered together in 1927 under title number P26534, but that title was later divided. A filed plan dated March 1939 shows the division and the new title numbers recorded above (DT177157 and DT31967).
The third Claimant, Mr Stephen Allen, is now the owner of title number DT353127 registered at HM Land Registry (the “Yellow Land”), having acquired parts of the Orange, Purple and Brown Land for development purposes on 6 and 19 July 2007.
Finally, CREL acquired Title number DT352709 from SDF on 6 July 2007, giving CREL the remainder of the access road to Mr Allen's new development that was previously on the Orange Land, together with a strip of the Orange Land adjoining the Western boundary of the New Purple Land.
The two ransom strips claimed by Cuthbury were as follows:—
(1) First, Cuthbury claimed two adjacent areas called “ABCD” and “ABE” shown on Plan A, said to lie between the North Eastern boundary of the Orange Land and Mannings Heath Road. The whole strip is about 2.8 metres at its widest, but it extends for the whole length of the boundary. As appears hereafter, Cuthbury has modified the areas it claims in the course of the trial, so as to make two alternative claims to rather smaller areas.
(2) Secondly, a strip called “XYZ” shown on Plan D2, which is also attached hereto, and was originally exhibited to the Re-amended Defence and Counterclaim, said to lie between the North Eastern boundary of the Purple and Brown Land and Mannings Heath Road. The strip is crescent shaped, but is only about 2 metres wide in the middle of the crescent. It extends for some 45 metres alongside the Purple Land and for some 30 metres alongside the Brown Land.
In the broadest outline, the Claimants contend that these two ransom strips either never existed at all, because they were part of the areas originally transferred out of the Canford Estate in 1926 and 1927, or, if they did exist, rights of way were granted over them, and anyway, they were acquired by adverse possession, or have become part of the public highway by dedication, or when Poole Borough Council (“PBC”) made up Mannings Heath Road in 1987 and later adopted it in 1995.
The background and the outline chronology
The Canford Estate was purchased by the then Lord Wimborne in 1846. The Site was close to the edge of Canford Heath, an area of heath-land extending to some 8 square miles just outside Poole, Dorset. I was told that there have been several thousand transfers of land out of the Canford Estate since 1846, and that the estate now comprises only about 2,000 acres. In its earlier days, however, it stretched many miles to encompass much of North Bournemouth, Poole and its suburbs.
In the 19th century, the edge of Canford Heath had started to become industrialised and had been used for the establishment of brick works, and for quarrying sand, clay and gravel.
In the early 20th century, Mannings Heath Road was a track leading from Ringwood Road to the edge of Canford Heath. The area of heath that immediately abutted the end of the track was known as Mannings Heath. Mannings Heath was a highly contoured area, boggy in places, but seemingly always used (whether lawfully or not) by the local population and by travellers for recreation and other purposes.
In 1926, the Orange Land was transferred to Mr Reginald Rogers, and, as I have said, he built a house on it. In addition, he erected a low wall in front of the house to the South East of the Orange Land, and an entrance to the Orange Land adjoined the wall. Eventually Mr Reginald Rogers also established a hedge in front of the house to the North West of the wall and the entrance.
In 1927, the Purple and Brown Land was transferred to Omnium Manufacturers Limited (“Omnium”). I will return in due course to the details of this transfer.
At some stage, probably in the late 1950s or the early 1960s (but possibly earlier), a Mr William (Bill) Knott (“Mr Knott”) or a company owned or controlled by him, acquired the Purple and the Brown Land. Over time, Mr Knott or his various companies began to use the entirety of that land (and at times the Blue Land) to store caravans. The exact ownership has not been fully established, but Mr Knott or his companies undoubtedly occupied these areas for a number of years for the purposes of their various caravan businesses. I was told that, at its height, Mr Knott would have been manufacturing one caravan every day.
Eventually on 4 April 1986, the Purple and Brown Land came into the ownership of a Jersey company apparently owned by Mr Knott called Knott Trustees Limited (which later changed its name to Knott Investments Limited and is referred to in this judgment as “KIL”).
The aerial photographs show the following:—
(1) In 1948, the Purple, Brown and Blue Land was overgrown and hardly used.
(2) In 1959, the Purple and Brown Land was partly cleared and some of it seems to have been in use for caravans.
(3) By 1962, the whole of the Purple, Brown and Blue Land appears to have been cleared of vegetation, and at least the Purple land is occupied by caravans.
(4)...
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