Waterman and Another v Boyle and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Moore-Bick,Lord Justice Waller |
| Judgment Date | 27 February 2009 |
| Neutral Citation | [2009] EWCA Civ 115 |
| Docket Number | Case No: B2/2008/2009 & (A) |
| Court | Court of Appeal (Civil Division) |
| Date | 27 February 2009 |
[2009] EWCA Civ 115
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Collins Cbe
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of the Court of Appeal, Civil Division
Lady Justice Arden and
Lord Justice Moore-bick
Case No: B2/2008/2009 & (A)
Duncan Kynoch (instructed by Messrs Austins LLP) for the Appellants
Philip Jones (instructed by Messrs Debenhams Ottaway) for the Respondents
Hearing date: 3 February 2009
1, 2 and 3 Hog Lane Farm, Ashley Green, Bucks HP5 3PY are adjoining properties. Before 1993, they were known as Hog Lane Farm and were all owned by the appellants, Mr Boyle and Ms Gwilt. They developed Hog Lane Farm and divided it into three dwellings. They retained 1, Hog Lane Farm, but sold on 2 and 3, Hog Lane Farm. The respondents to this appeal, the Watermans, now own 2, Hog Lane Farm.
A brief description of the three properties is necessary for understanding this judgment. The three properties can be briefly described as follows. Hog Lane runs from north to south, and the three properties lie on the east side of that lane. They form part of a farm originally owned in its entirety by Mr Boyle and Ms Gwilt. The dwelling houses at 1, 2, and 3, Hog Lane Farm are connected buildings. They run from east to west so that 3, Hog Lane Farm abuts Hog Lane, and 2, Hog Lane Farm is in the centre. The three properties face north. They are approached by a long entrance drive from the north. The drive arrives at the front of 1 and 2 Hog Lane Farm. Immediately in front of those properties there is a traffic island with a yew tree and an old ice well and other vegetation on it. The entrance drive on the east side of the traffic island leads to 1, Hog Lane Farm and on the west side to 2, Hog Lane Farm. At the rear of the property is a private lane which leads from Hog Lane eastwards past the rear of the three properties. Starting from Hog Lane, the features of the north side of this lane are, first, 3, Hog Lane Farm, with a walled garden and an entrance in the centre, and then a double garage belonging to 2 Hog Lane Farm. Then there is a gate and immediately after that, set back from the line of the garage, a concrete hard standing which was probably a farmyard. In front of that is a trench for a new wall. On the south side of the lane is a paddock or garden now forming part of a property known as Grooms Cottages which has a wall running down the side of the lane. No other feature of this rear lane is relevant.
The disputes all arise in connection with the parking of vehicles, often a contentious issue between neighbours. I shall have something to say about disputes of this kind at the end of this judgment. One of the issues with which I shall deal is whether in this case the right to park is to be implied from a right of vehicular access. That issue was the subject of the recent decision of the House of Lords in Moncrieff v Jameson [2007] 1 WLR 2620, relied on by the judge. Although Moncrieff was a Scottish appeal, Lord Scott and Lord Neuberger held that there was no material difference between English and Scots law on implication of a right to park. This is the first occasion on which this court has had to consider Moncrieff.
Naturally, Mr Boyle and Ms Gwilt wished to limit the access and parking rights of 2 and 3, Hog Lane Farm when they sold those properties. Thus, when they sold 2, Hog Farm Lane, the transfer gave 2, Hog Lane Farm a shared right of access and egress with or without vehicles at the north end of the property via part (only) of the entrance drive to 1, and 2, Hog Lane Farm. In addition, the transfer gave 2, Hog Lane Farm the right to park private cars on two designated parking spaces to the left of the front door. The transfer also gave 2, Hog Lane Farm a shared right of access to and egress from, with or without vehicles, that part of the rear of 2, Hog Lane Farm on which a double garage now stands (but not the adjacent concrete hard standing, which was rendered landlocked by the construction of the garage by the original purchaser of 2, Hog Lane Farm). Mr Boyle and Ms Gwilt provided the plans used (for identification purposes only) in the transfers by them of 2 and 3, Hog Lane Farm. Ms Gwilt's employment background was in cartographic and topographical mapping. She said in her witness statement (and this is relevant to the issue about the southern boundary of 2, Hog Farm Lane) that she found it pleasing to the eye to line things up in straight lines.
Initially, there was little difficulty in practice over parking between the parties. Mr Boyle and Ms Gwilt gave permission for temporary parking on their land. However, in about 2003, this admirable spirit of neighbourliness broke down and disputes erupted over parking. About this time, Mr Boyle and Ms Gwilt altered the layout of the traffic island in the northern drive, and in 2004 they built or permitted the building of a wall near the southern boundary of the lane, which it is now accepted was not built on the lane itself. This wall (“the Grooms Cottages wall”) made it impossible for the Watermans to continue to turn their cars from the lane into their garage. The Watermans complained of a breach of their right of access along the lane.
Mr Boyle and Ms Gwilt also prohibited parking by visitors to 2, Hog Lane Farm in the northern entrance drive, unless they were simply loading or unloading or parked in one of the two parking spaces to which 2, Hog Farm Lane was entitled. In addition, Mr Boyle and Ms Gwilt began to lay out a wall to the south of the concrete hard standing, and for this purpose they dug a trench for its foundations. This wall would divide that part of 2, Hog Lane Farm from the lane. They have not completed this wall because the Watermans threatened to seek an order restraining them from doing so.
The Watermans began these proceedings in 2007 in order to determine disputes between the parties about the location of the southern boundary of 2, Hog Lane Farm, the rights of access to the Watermans' garage from the lane and parking rights over the appellants' drive. Mr Boyle and Ms Gwilt sought declarations confirming their contentions about the Watermans' parking rights. At trial, HHJ Collins CBE, sitting in the Central London County Court, determined the principal areas of dispute in favour of the Watermans.
The pleadings and statements refer to a snowstorm of incidents and issues, but by the time the matter reached this court the issues had been reduced. It is not the function of the court to determine which of the parties has been the more unneighbourly. Its function is sensibly to determine the parties' rights and enforce them. I will start with the issues arising from the southern boundary, and then move to the parking and other issues connected with the drive to the north.
Southern boundary issues
There was an issue as to where the southern boundary lay. Mr Boyle and Ms Gwilt contended that the garage at the rear of 2, Hog Lane Farm encroached on to the lane. Mr Waterman in his witness statement contended that, when Mr Boyle and Ms Gwilt gave the original purchaser, Mrs Wordsworth, permission to build her garage, they gave her permission to build across the southern boundary and accordingly, she became the owner of an extra strip of land beyond the southern boundary of the garage. Indeed the Watermans also contended that the edge of its overhanging gutters became the southern boundary of 2, Hog Lane Farm. In their witness statements, Mr Boyle and Ms Gwilt gave evidence (in identical terms) that there was an oral agreement between them and Mrs Wordsworth's husband that she could build her garage on the appellants' land to avoid disturbing an underground water tank and inspection chamber. They stated that they gave her permission “but the legal boundary remained on the line A-B on the [transfer] plan”.
The Watermans' response was twofold. First, they said that Mr Boyle and Ms Gwilt must have given land to Mrs Wordsworth for the purposes of a garage. Secondly, they contended that the southern boundary of 2, Hog Lane Farm, according to the transfer to Mrs Wordsworth, in fact lay at the line at which she subsequently built a garage. Indeed, they went further and claimed that the overhanging gutters marked the boundary line. They relied on the earlier transfer (in 1993) by Mr Boyle and Ms Gwilt of 3, Hog Lane Farm to a Mr and Mrs Zukas. The plan used to identify 3, Hog Lane Farm (for identification purposes only) in that transfer showed some measurements, including one of 24 ft 6 ins from western edge of the dwelling house at 3, Hog Lane Farm to the lane. The plan also showed some small trees or shrubs: but there was also in fact a conifer, which remains and is now large. (There may originally have been other conifers there as well). This plan was later used as the basis for a plan to be attached to the transfer of 2, Hog Lane Farm to Mrs Wordsworth. This showed that the southern boundary to 2, Hog Lane Farm formed a straight line with the southern boundary to 3, Hog Lane Farm.
The Watermans relied on an agreement made between Mr Boyle and Ms Gwilt and the Zukases after the transfer. The transfer to the Zukases required a wall to be built on the Zukases' southern boundary. The evidence showed that, subsequently to the transfer in 1993, the Zukases and the appellants had agreed that the wall to 3, Hog Lane Farm, could be moved a small distance south so...
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