Sweet and Another v Sommer and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr. Justice Hart |
| Judgment Date | 25 June 2004 |
| Neutral Citation | [2004] EWHC 1504 (Ch) |
| Docket Number | Case No: CF320186 |
| Court | Chancery Division |
| Date | 25 June 2004 |
[2004] EWHC 1504 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Cardiff District Registry
The Honourable Mr. Justice Hart
Case No: CF320186
Mr Jeffrey Littman (instructed by Charles Blacklock & Co.) for the Claimants.
Mr John Sharples (instructed by Messrs. Darwin Gray) for the Defendants.
Hearing dates: 9, 10 February & 21, 22 April 2004
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 Hart:
This is a dispute about rights of way between the claimants, the owners of a dwelling-house and land known as Forge Meadow, Osbaston, and their neighbours at the property known as the Old Forge, Osbaston.
The issues in the case can only properly be understood by reference to a plan. In order to aid the narrative in this judgment, I shall assume that the reader has access to the plan annexed to the Particulars of Claim, marked "Plan A" (A14 of the trial bundle) and to the plan drawn up by the single joint expert (Plan B) with agreed markings made on it by counsel for the purposes of their closing submissions. Plan A shows the relative locations of three buildings, namely the Old Forge (owned by the first defendant), Forge Meadow (owned by the claimants) and the property known as Meadowgate. To the front of Old Forge there is, first, an area of enclosed garden land, and beyond that an expanse of tarmac. That area of tarmac is itself divided by a line of edging stones set into its surface. The area to the west of that line belongs to the Old Forge. Although the term was not used in the course of the case, it is convenient to call it "the Old Forge Yard". The tarmac area to the east of the line forms the driveway to Meadowgate ("the Meadowgate driveway"). At the point at which it reaches Forge Lane the Meadowgate driveway is about 3.5 metres wide (see A-B on Plan B). Where the Old Forge Yard abuts Forge Lane, the width of the Old Forge Yard is about 7.5 metres wide (see E-F and F-A on Plan B). Save where the context otherwise requires references in this judgment to the Old Forge can be taken to refer to the Old Forge together with the Old Forge Yard.
The only physical route by which vehicular or pedestrian access can be obtained from Old Forge Lane to Forge Meadow is by the use to some degree of the Old Forge Yard: as matters currently stand, access can, physically be obtained anywhere between the points marked E to B on Plan B, but whatever line is taken to Forge Meadow inevitably involves the use at some point of Old Forge Yard. The principal issue in the case is whether the claimants have any vehicular right of way over any part of Old Forge Yard. The formal position of the defendants is that there is no such right of way, although the first defendant in her evidence seemed to say that she would in practice have no objection to the claimants using Old Forge Yard for that purpose provided that the use was limited to the northern part. It is, however, clear that the claimants have no right to use the Meadowgate drive. It follows that, if the defendants are correct, they are in a position to prevent the claimants from enjoying any vehicular access to their property. The defendants accept that the claimants have pedestrian rights of way over the Old Forge Yard, but contend that this is only by virtue of the fact that there happens to be a public footpath which can serve this purpose.
The ability of the defendants to argue for these contentions arises out of a conveyancing mistake made in 1988 by solicitors acting for a Mr Lovering. By 1988 Mr Lovering had become the freehold owner of the following blocks of land at and around the Old Forge:
i) A block of land comprising the Old Forge itself, the land which later became Forge Meadow, and the whole of the Old Forge Yard together with what became the Meadowgate driveway: this block can be identified by the plan annexed to the conveyance between Warwick Miles and Mr Lovering dated 30 th March 1984 (Trial Bundle p. C195);
ii) A block of land behind the Old Forge originally used as a motor workshop with ancillary land. This included a strip of land along the southern boundary of what became Forge Meadow. It is not entirely clear when Mr Lovering acquired the parcel or parcels comprising this block, but the shape of the block of which he was subsequently registered as proprietor can be seen on the plan attached to the office copy entries of his title at page C218C. It is convenient to call this "the green land" since that was the colour by which it was edged in the plan by reference to which he eventually contracted to sell it to the first defendant ("the Sommers' contract plan" – see E310);
iii) A further block of land to the west of the green land, consisting of a paddock. This is edged yellow on the Sommer's contract plan and I will call it "the yellow land". It is not clear exactly when, but it is common ground that before March 1988 the yellow land was vested not in Mr Lovering alone but in himself and his wife Mrs Lovering.
Mr and Mrs Lovering's intention was to re-develop the Old Forge as a dwelling-house, hoping to be able to exploit the Forge Meadow land and the yellow land as building plots. In February 1988, Mr Lovering conveyed to Mr and Mrs Gunter (the owners of Meadowgate) the Meadowgate drive. This was in return for an agreement with Mr Gunter that the latter would tarmac the surface both of the Old Forge Yard and the Meadowgate drive, which was duly done.
The mistake (or the first part of the mistake) occurred on 15 th April 1988 when Mr Lovering transferred to himself and his wife the property which is identified by the blue edging on Plan A, i.e. the Old Forge, the Old Forge Yard and a strip of land leading up to the field to the north ("the northern field"). This was done, Mrs Lovering told me, at the insistence of the building society from which they wished to raise money on the security of the land so transferred. The effect of this transfer (which was a Rule 72 transfer on first registration) was to leave Mr Lovering as sole owner of the Forge Meadow land and the green land. That transfer, however, reserved no rights of way in favour of the Forge Meadow land over the land transferred.
The second aspect of the mistake occurred later in the same year when Mr Lovering came to sell the Forge Meadow land to Mr and Mrs Martin. Mr and Mrs Martin were purchasing the Forge Meadow land for the purpose of building a house on it. There seem to have been delays in obtaining the necessary planning permission. Mrs Lovering told me that the Martins' agreement to purchase was conditional on the permission being obtained. It is probably for that reason that although the relevant transfer was dated 31 st October 1988, the Martins were not in fact registered as proprietors until 18 th October 1989 (see C216). The transfer (the Martins' transfer") granted the Martins certain rights over the Old Forge Yard. First, it granted them rights for water and electricity from points marked "A" and "B" on an attached plan ("the utility rights"); and, secondly, it granted them a vehicular and non-vehicular right of way for all purposes in connection with the land transferred "over the driveway shown coloured brown on the said plan".
The brown line on that transfer is a single crayon width describing a crude arc from the natural entrance to Forge Meadow across the Old Forge Yard and debouching into Old Forge Lane. It is plainly intended to be indicative of a vehicular right of way over the Old Forge Yard onto Forge Lane, rather than an attempt to delineate the exact route to be taken by that right of way. The latter construction would be at odds physically with what was intended: the crayon line is too narrow to take a vehicle, and its route takes one through the (then already enclosed) Old Forge front garden.
The mistake, however, was that insofar as Mr Lovering was purporting to grant such a right of way (or indeed the utility rights) he had no obvious power to do so. On the face of things, the persons who could do so were himself and Mrs Lovering qua owners of the Old Forge Yard. This mistake was not, however, noticed by HM Land Registry who, on 18 th October 1989, registered the Forge Meadow as "having the benefits of the rights granted by… the Transfer dated 31 st October 1988".
The Martins proceeded to build their house on the Forge Meadow land and in the course of doing so, and thereafter, used the rights purportedly granted to them by that transfer. There is, however, a complication to that simple statement. Mr and Mrs Lovering had installed gates and a stile between the Old Forge Yard/Meadowgate drive and Old Forge road. The gates were put there to deter commercial vehicles visiting a factory to the south from using the Old Forge Yard for parking; a phenomenon which decreased once the Old Forge had been re-developed and became more obviously a private space. Following his acquisition of the Meadowgate drive, Mr Gunter had, with the Loverings' encouragement, taken down the stile and welded one of the pre-existing gates to the other, so that the two gates together would, when closed, provide (unless opened) a complete obstacle to direct entry from Old Forge lane onto the Old Forge Yard. Either then, or subsequently, a smaller wooden gate was placed at the entrance to the Meadowgate drive, but this was in practice never closed (and Mrs Lovering told me that the bolt hole in the tarmac did not in fact ever take the bolt). The welded gates were heavy. If they were closed (which would not be always) it was...
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