Sweet and Another v Sommer and Another

JurisdictionEngland & Wales
JudgeThe Vice-Chancellor,Lord Justice Clarke,Lord Justice Jonathan Parker
Judgment Date10 March 2005
Neutral Citation[2005] EWCA Civ 227
Docket NumberCase No: A3/2004/1800 EOT; A3/2004/1800B
CourtCourt of Appeal (Civil Division)
Date10 March 2005

[2005] EWCA Civ 227

[2004] EWHC 1504 (Ch)

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE HART

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

the Vice-Chancellor

Lord Justice Clarke and

Lord Justice Jonathan Parker

Case No: A3/2004/1800 EOT; A3/2004/1800B

Between
Sommer & Another
Appellants
and
Sweet & Another
Respondents

Ms Elizabeth Sommer 1 st Appellant/Defendant, Acting In Person

Mr. Brian Neanor 2 nd Appellant/Defendant, Acting In Person

Mr. Jeffrey James Littman instructed by Mr and Mrs Sweet

The Vice-Chancellor

Introduction

1

The first appellant, Ms Sommer, is the owner and occupier of The Old Forge ("the Old Forge") Osbaston, Monmouth. Her title is registered in HM Land Registry under title no:WA480928. The respondents, the Sweets, are neighbours of Ms Sommer. They own and occupy a property adjoining the Old Forge to the north called Forge Meadow ("Forge Meadow"), Osbaston. Their title is registered in HM Land Registry under title no:WA508839. The Sweets also own another property adjoining to the north of Forge Meadow called Northern Field, the title to which is registered under Title no:CYM48571. The fourth property which features in this appeal is Meadowgate which lies to the east of Forge Meadow, the south- east of the Northern Field and the north- east of the Old Forge.

2

Vehicular access to all four properties is gained from the public highway to the south called Forge Road. In the case of Meadowgate access is over a strip of land ("the Meadowgate Access Strip") the title to which is registered in HM Land Registry in the names of the owners of Meadowgate under title no:WA434915. In the case of the other three properties vehicular access is obtained from Forge Road over a part of the Old Forge, known as the Old Forge Yard lying immediately to the west of the Meadowgate Access Strip. In the case of Forge Meadow and the Northern Field the vehicular access runs from Forge Road to the north-west so as to link up with those two properties. What I have described is shown on the plan marked Plan A appended to this judgment.

3

In the case of Forge Meadow the right to such access had apparently been granted to a Mr and Mrs Martin, the predecessors in title of the Sweets, by a transfer dated 31st October 1988 and made by Mr T.E.C.Lovering. In the case of the Northern Field vehicular rights of access had been reserved out of an assent made on 23rd December 1983 and were noted on the title to the Old Forge. But all was not as it seemed. For reasons which will become apparent later Ms Sommer challenged the vehicular rights of way on which the Sweets relied.

4

On 7th February 2003 the Sweets instituted proceedings against Ms Sommer and Mr Neanor ("the Appellants") in the Newport County Court seeking declarations as to their entitlement, the insertion of the appropriate entries on the respective titles, injunctions and damages. In due course, the Appellants served a defence and, in the case of Ms Sommer alone, a counterclaim seeking declarations that the Sweets were not entitled to the rights they claimed. The proceedings were transferred to the High Court and came before Hart J sitting in Cardiff. After a four day hearing he gave judgment on 25th June 2004. He upheld the claims of the Sweets to be entitled to vehicular rights of way over Old Forge Yard as appurtenant to both Forge Meadow and the Northern Field, granted appropriate declarations, ordered the rectification of the relevant titles to reflect the conclusions to which he had come, enjoined the Appellants from obstructing any such rights and awarded the Sweets £300 in damages. In addition he awarded costs of the proceedings to the Sweets to be assessed on the standard basis up to 6th June 2003 and an indemnity basis thereafter and dismissed the counterclaim. The Appellants now appeal with the permission of the judge.

5

Their appeal raises the following points:

(1) Whether the judge was right to conclude that the Sweets were entitled to the vehicular access from Forge Road over Old Forge Yard to Forge Meadow they claimed as either

(a) a way of necessity the reservation of which is to be implied into two transfers dated 15th April 1988 and made by Mr T.E.C.Lovering in favour of himself and his wife, and/or

(b) a right arising by way of proprietary estoppel from the dealings between Mr and Mrs Lovering and the Martins after the transfer in their favour made on 31st October 1988.

(2) Whether the judge was right to conclude that the Sweets were entitled to vehicular access from Forge Road over Old Forge Yard as appertaining or reputed to appertain to the Northern Field within Land Registration Rules 1925 r.258.

(3) Whether the judge was entitled to make the orders for rectification of title which he did in consequence of his conclusions, even if right.

(4) Whether, in the circumstances the judge was right to order that that the Appellants should pay the costs of the Sweets and whether the assessment of the costs of the Sweets incurred after 6th June 2003 should be on an indemnity basis.

6

The Appellants also applied for permission to adduce further evidence. This was opposed by Counsel for the Sweets on the grounds that it had been available at the time of the trial, no good reason had been given why it had not been adduced then and that it did not advance matters anyway. We indicated that we would look at the documents de bene esse and give our ruling as part of our judgments on the appeal. I would uphold the objections of Counsel for the Sweets in respect of documents m), n) and o) as specified in Ms Sommer's application notice. But I would admit documents a) to l). Many of them are not additional evidence at all but legible copies of what was in evidence already. The others are helpful in explaining some gaps in the chain of title to the various properties and cannot prejudice the position of the Sweets.

Vehicular Access to Forge Meadow

Implied Reservation

7

Both Ms Sommer and the Sweets have a common predecessor in title in Mr T.E.C.Lovering. By 1988 he had acquired the land now comprising the Old Forge, the Old Forge Yard, Forge Meadow and the Meadowgate Access Strip. In addition he owned alone or jointly with his wife other land in the immediate vicinity. The extent of those holdings is indicated on Plan D which is also appended to this judgment. At that time all the relevant titles were unregistered.

8

On 9th February 1988 Mr Lovering conveyed the Meadowgate Access Strip to Mr and Mrs Gunter, the then owners of Meadowgate. On 15th April 1988 Mr Lovering executed two documents in form 19 as prescribed by Land Registration Rules transferring into the joint names of his wife and himself the land now comprising the Old Forge and the Old Forge Yard. Then, as I have already recorded, on 31st October 1988 Mr Lovering executed a document described as a transfer of part in favour of Mr and Mrs Martin together with

"a right of way with or without vehicles (in common with the Transferor and all other persons who may have or who hereafter may have a like right) at all times and for all purposes in connection with the use of [Forge Meadow] over the driveway shown coloured brown on the said plan…"

The driveway coloured brown is reproduced on Plan A by the brown line.

9

The point was taken against the Sweets that the express right of way on which they relied had not been granted by the owner of the servient tenement because on 15th April 1988 Mr Lovering had transferred the Old Forge Yard into the joint names of himself and his wife but only he purported to grant the express right. The response of the Sweets was that the reservation of an equivalent way of necessity was to be implied into the transfer of Old Forge Yard dated 15th April 1988 for without it what became Forge Meadow had no access to Forge Road. The riposte of Ms Sommer was to point out that Forge Meadow was not without any access as there was a public footpath running from north of Forge Meadow over Old Forge Yard to Forge Road. In any event access could be obtained over other land of Mr Lovering to the south of Forge Meadow or by demolishing part of a workshop.

10

Hart J held that for the purpose of an implied reservation of a way of necessity Forge Meadow was to be treated as 'land-locked' as at 15th April 1988 because Mr Lovering could not as of right compel his wife to grant the easement to be impliedly reserved. Further he concluded that the implication was to be made notwithstanding that access might be obtained if part of the workshop were demolished or on foot along the footpath. Hart J summarised his conclusions in paragraph 32 of his judgment in these terms:

"Accordingly, my conclusion is that the effect of the April 1988 transfer was to create, by implied reservation, a vehicular right of way over the Old Forge Yard in favour of Forge Meadow for the purposes of constructing, and thereafter using, a dwelling-house thereon. That is, for practical purposes, the same right as Mr Lovering subsequently sought to confer on the Martins by the Martins' transfer (save that the latter was expressed to be for all purposes). The way so reserved will have been a legal easement, and the first defendant's acquisition of the Old Forge and the Old Forge Yard will therefore have been subject to it."

11

At the hearing of this appeal the Appellants accepted, as counsel for the Sweets had suggested in his written argument, that it would not be enough for them to succeed on the implied reservation of a way of necessity. They had to succeed on proprietary estoppel as well. It did not seem to us that this appeal was the proper vehicle for the consideration by this...

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