Wall v Collins and another
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Hodge QC |
| Judgment Date | 11 August 2009 |
| Neutral Citation | [2009] EWHC 2100 (Ch) |
| Date | 11 August 2009 |
| Court | Chancery Division |
| Docket Number | Case No: 7MA30680 |
[2009] EWHC 2100 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
Before:
His Honour Judge Hodge Qc
Sitting As A Judge Of The High Court
Case No: 7MA30680
The Claimant in person, with Mrs Wall as his McKenzie friend
Mr Ian Foster (instructed by Widdows Mason, Bolton) for the Defendants
Hearing dates: 3 rd, 4 th, 5 th, 6 th, 11 th August 2009
His Honour Judge Hodge QC:
Introduction
This is the trial of a claim by Mr Keith Wall, the registered owner of 231 Leigh Road, Westhoughton, Bolton BL5 2 JG, against his neighbours, Mr Brian Collins and Mrs Jennifer Collins, who are the registered owners of the adjoining semi-detached house at 233 Leigh Road. The claim form was issued on 20 th November 2007 in the Manchester District Registry of the Chancery Division seeking “(1) legal remedies to permanently protect the claimant's rights of way over the defendants' land from the defendants' continuing refusals to fully accept them; (2) damages (aggravated, punitive vor otherwise) for loss of amenity by intermittent obstructions, loss of property value, personal suffering; and (3) costs”. This trial is effectively the sequel to an earlier trial between the same parties that took place before His Honour Judge Pelling QC, also sitting in the Manchester District Registry of the Chancery Division, under claim number 5BL01209, over 4 days in February and March 2006, with judgment being handed down on 6 th March 2006. Part of that judgment was then the subject of a successful appeal by Mr Wall to the Court of Appeal (Mummery, Carnwath and Hooper LJJ), heard on 4 th April 2007, with the appeal court's reserved judgment (delivered by Carnwath LJ) being handed down on 17 th May 2007: [2007] EWCA Civ 444, reported at [2007] Ch 390. On 17th July 2007, the Court of Appeal handed down a supplementary judgment (also delivered by Carnwath LJ) dealing with the form of relief and costs: [2007] EWCA Civ 724. The Court of Appeal's decision established the existence of Mr Wall's property interest (in the nature of a right of way); and, since then, it has never been in issue. The present case raises one or two minor, but not really contentious, issues of law (addressed at paragraph 33 below); and also involves consideration of the circumstances in which a property owner may be entitled to resort to discretionary equitable remedies in the perceived vindication of his established property rights.
Background
The background to this sad dispute between neighbours is as follows: The defendants have owned and occupied No 233 since about September 1986. Mr Wall (who is now 72 years of age) and his wife, Helen, have owned and occupied No 231 since February 1999. Nos 231 and 233 are semi-detached properties lying on the east side of Leigh Road. No 231 lies to the north of No 233. Both properties have access, not only to Leigh Road at the front, but also to a road which runs along the rear of the properties, parallel to Leigh Road, and known as Back Street. Leigh Road and Back Street are both public highways. Immediately to the south side of No 233 is a passageway (referred to in the judgments in the earlier litigation as “south road”) which provides a link between Leigh Road and Back Street. This passageway forms part of the defendants' title as the registered owners of No 233. Immediately to the south of the passageway is No 235 Leigh Road, which is owned by Mr John Hurst. The passageway varies in width from about 8 feet at its eastern end (where it emerges into Back Street) to about 9 feet for most of its length. On 8 th April 2009 Mr Hurst began rebuilding the boundary wall separating his property from the passageway. This took about two weeks, and has resulted in a slight widening of the passageway at the western end. There the passageway emerges into Leigh Road within an area controlled by traffic signals, which have been installed within the last couple of years to control the T-junction formed by the intersection of Leigh Road (running in a north-south direction) with Washacre (running east-west). The traffic lights also incorporate a push-button facility designed to enable pedestrians to cross Leigh Road and/or Washacre in (relative) safety. Unusually, the passageway is not itself regulated by the traffic lights: a driver emerging from the passageway into Leigh Road has to wait for a convenient break in the flow of traffic regulated by the signals (and also has to watch out for, and avoid, any pedestrians who may be crossing). The junction is shown on the plan at 3/850; and relevant photographs are at 3/833–5 and 838–9. (The photographs at 3/900–1 show the position before the traffic signals were installed.)
Part of the earlier dispute between the parties concerned Mr Wall's claim that there were public rights of way over the passageway. That claim was rejected by Judge Pelling QC; and there has been no appeal from that part of his decision. Despite Mr Wall's attempts to do so, it is not open to him to contend that the passageway is a public highway. Another part of the earlier dispute concerned Mr Wall's claim to a private right of way over the passageway. That private right of way was said to have arisen under the terms of an assignment of the long leasehold interest in No 231 on 25 th February 1911. In the previous year, the freeholder had granted a 999 year lease over the undeveloped site of the two properties that later became Nos 231 and 233 (including the passageway). It is clear from the terms of that long lease that the parties to it expressly contemplated that a street 6 yards wide would be constructed at the rear of those properties: the lease refers to the property thereby demised as being bounded on the most easterly side by the centre line of a back street 6 yards wide; and it also contains a covenant by the tenant to “leave and maintain vacant open and unbuilt upon a space of land 3 yards wide out of and along the whole length of the most easterly side of the plot of land hereby demised in order to form one half of a back street 6 yards wide on that side”. As the Court of Appeal noted, the passageway did not exist at the time of the 1910 lease; and there was nothing to indicate that it was within the contemplation of a further provision in that lease which declared that “the streets so far as the same be opposite to or extend over the said plot of land hereby demised may at all times during the said term be used as foot carriage and drift ways by the lessee and his tenants, lessees and others deriving title through him… and any person or persons in going to or returning from the said premises hereby demised…”. Following the construction of Nos 231 and 233, by the 1911 assignment the unexpired lease in respect of No 231 was assigned “Together with the right for the purchaser his executors administrators and assigns and tenants and occupiers for the time being of the premises hereby assigned and conveyed to pass and repass on foot or with horses carts and other vehicles over and along the road coloured yellow on the [plan annexed thereto] for the purposes of the convenient use and enjoyment of the premises hereby assigned and conveyed and for no other purpose whatsoever”. The “land coloured yellow” included the passageway and the western half of Back Street, which were retained by the assignor together with No 23(Carnwath LJ appears to have misunderstood the true position in paragraph 5 of his principal judgment when indicating that the “land coloured yellow” included the whole, rather than merely the western half, of Back Street.) In the earlier litigation, it was not in dispute that from 1911 until 1986 the occupiers of No 231 had enjoyed an express right of way over the passageway; but it was said by the defendants (and Judge Pelling accepted and held) that that right of way had been extinguished when the leasehold interest in No 231 had merged with the freehold estate in 1986. It was that part of Judge Pelling's decision that was reversed by the Court of Appeal; and it is now clearly established by the Court of Appeal's decision that Mr Wall, as the owner of No 231, enjoys the express right of way over the passageway (and the western half of the section of Back Street to the rear and north of the passageway) that was granted by the 1911 assignment. The Court of Appeal further held that that express right of way was exercisable for the benefit of a double garage that had been constructed on additional land owned by Mr Wall to the rear of No 231, on the footing that it was ancillary to the ordinary residential use of that property.
The second action
At the time when the defendants acquired No 233 in 1986, gates had already been erected at both ends of the passageway, but not so as to prevent its use on foot by the owner of No 231. However, the gates effectively prevented the use of the passageway by vehicles. It is common ground that the gate and fencing at the eastern end of the passageway (at the junction with Back Street) were removed by the defendants towards the end of April 2007, after the hearing in the Court of Appeal. (Although judgment was not formally handed down until 17 th May 2007, it was common ground before me that the likely outcome of the appeal was apparent to the parties at the hearing on 4 th April.) It is also common ground that the gate and fencing at the western end of the passageway (at the junction with Leigh Road) were removed by the defendants on Sunday 18 th November 2007, two days before Mr Wall attended personally at the Manchester District Registry to issue his present claim form (on Tuesday 20 th November 2007). Mr Wall had written to the defendants on 17 th October 2007 enclosing a draft of the...
To continue reading
Request your trial
- Wall v Collins and another
-
Graham Gore v Kishwar Naheed and Another
...described as ancillary to its use for the purposes of Whiteacre. This ground of appeal accordingly fails." 37 The other relevant case is Wall v Collins [2007] Ch 390. As in the present case, one of the issues was whether a right of way could be used to access some adjoining land which had b......
-
Martin Harry Bradley and Another v Peter Greenwood Heslin and Another
...means of reducing the inconvenience to something less than substantial can be found (as was done in Siggery v Bell [2007] EWHC 2167 or Wall v Collins [2009] EWHC 2100). That, of course, is the reverse of the case before me, where it is the owner of the dominant tenement who has gated the wa......