Zoe Claire Bucknell v Alchemy Estates (Holywell) Ltd
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 04 April 2023 |
| Neutral Citation | [2023] EWHC 683 (Ch) |
| Docket Number | Case No: PT-2021-000083 |
| Court | Chancery Division |
[2023] EWHC 683 (Ch)
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: PT-2021-000083
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Richard Clegg (instructed by Hewlett Swanson) for the Claimant
Nicholas Isaac KC and Robyn Cunningham (instructed by Veale Wasbrough Vizards LLP) for the Defendant
Hearing dates: 29 November – 6 December 2022
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.
Introduction
This is my judgment on the trial of an action for declaratory and injunctive relief relating to the alleged increased use of a right of way over the claimant's land by reason of the construction and intended occupation of two houses on the defendant's adjacent land. The claimant is the owner and occupier of a property known as Holywell Farmhouse, Hodsoll Street, Sevenoaks, Kent (“the Farmhouse”). On its eastern side, this abuts the public highway in the village of Hodsoll Street. The defendant is a company incorporated for the purpose of developing its property, known for present purposes as “the Yard”. This is to the west of the Farmhouse, and has no direct access to the public highway. It is landlocked. That is where the two new houses have now been built. One is already occupied. The plan below (the top facing north) illustrates the relationship between the properties.
Also shown on the plan, along the southern boundary (but forming part) of the Farmhouse, a metalled driveway runs from the public highway in a westerly direction to the Yard. It is either 53 or 55 metres long (both values were given, but it does not matter which is right). It is a single track road with no passing places. The west end of the driveway is some 710 mm higher than the east end, so there is a slight fall from west to east. There is a public footpath along the driveway to the Yard, and indeed beyond. In addition, it is common ground between the parties that in 1972 there was an express grant of a vehicular and animal right of way over the driveway for the benefit of the Yard. The present claim is framed in terms of both (i) excessive user of that right of way and (ii) nuisance.
The claimant herself uses part of the driveway to access not only the Farmhouse itself, but also an open courtyard to the west of the Farmhouse, and its adjacent buildings. These include a former stable block at the boundary with the Yard, which is now converted to use as a workshop. In addition, the claimant uses the whole length of the driveway in order to exercise an express right of way granted over the Yard to access more easily other land which she owns behind the Yard. Other neighbours, apart from the defendant, including the occupiers of Plum Cottage (to the south of the Farmhouse) and Kalamunda (to the south-west of the Farmhouse) also use the driveway to access their adjacent properties. These two properties are both on the south side of the driveway, and are also shown on the plan.
Procedure
I understand that thereafter there was a mediation between the parties on 7 December 2020, but unfortunately this was not successful. The claim was commenced by claim form issued on 29 January 2021. On 1 February 2022 the claimant applied to the court for an interim injunction to prevent vehicles needed for the construction of the two houses on the Yard from passing over the driveway. That interim injunction was granted by Mann J on the same day, over until 11 February 2021. On that day, the injunction was continued by Zacaroli J, until after final order in the claim, with limited exceptions: see [2021] EWHC 1544 (Ch). It is to be noted that the interim injunction does not itself prevent use and habitation of the houses once constructed. As I say, one of the two is already complete, and is occupied. As at the date of reserving judgment, it was thought that the other would be completed shortly, and thereafter might be occupied.
Zacaroli J's order relevantly provided:
“(1) Until after final judgment in this Claim, and except as set out in paragraph (2) below, the Defendant must not:
(a) use or permit the use of the Driveway to access the Yard with Vehicles, plant and/or machinery for the purpose of any works of clearance, removal, demolition and/or construction in relation to the dwelling houses that are the subject of the [Planning] Permission;
(b) use or permit the use of the Driveway to access the Yard with any Vehicle travelling at a speed in excess of 5 miles per hour.
(2) The order at paragraph (1)(a) above shall not prevent the following:
(a) The Defendant, its servants or agents, attending at the Yard by vehicle to inspect the Yard;
(b) The Defendant, its servants or agents, filling in the foundations that have by the date hereof already been dug on the Yard with concrete only (not including building any basement) provided that any damage caused to the tarmac surface of the Driveway is made good by the Defendant.”
Particulars of claim were served on 16 February 2021, and a defence on 13 March 2021. On 3 September 2021 Deputy Master Arkush gave directions to trial. The matter was tried before me between 29 November and 7 December 2022. On the second day of the trial, I carried out a site visit, in the presence of counsel from both sides, which was of considerable assistance.
The particulars of claim relevantly say:
“10. There is a right of way for the benefit of the Yard over the tarmacked way on the Driveway as set out below (‘the Yard Right of way’).
11. There is a right of way for the benefit of Holywell Farmhouse over the Yard, the route of which connects the western end of the Driveway, across the Yard and between the two barns thereon, with the land forming part of Holywell Farmhouse to the north (‘the Holywell Farmhouse Right of way’). …
12. The reservation and/or grant of the Holywell Farmhouse Right of way, and the terms thereof, is contained in the Yard Conveyance and/or Holywell Conveyance (both defined below). …
13. There is a public footpath along the Driveway.
14. A conveyance of Holywell Farmhouse dated 29 September 1972 made between (1) Nigel Fraser Neilson as Vendor and (2) William James Bryen as Purchaser (‘the Holywell Conveyance’) reserved the right of way in the following terms:
‘ A right of way at all times and for all purposes with or without animals and vehicles over the roadway coloured brown on the said plan for the purpose of access to and egress from the adjoining premises of the Vendor the person exercising such right paying to the Purchaser or his successors in title on demand Fifty per cent of the cost incurred in maintaining the same to such reasonable standard as shall be determined by the Purchaser or his successors in title’
[ … ]
16. The benefits and burdens of the Holywell Conveyance form part of the Property Register of the title to Holywell Farmhouse but are not registered on the title to the Yard.
17. A conveyance of the Yard and other land, also dated 29 September 1972, made between (1) Nigel Fraser Neilson as Transferor and (2) Colin Machlachlan Russell Stoneham and Ivor Robin Russell Stoneham as Transferees (‘the Yard Conveyance’) included a right of way in the following terms:
‘a right of way at all times and for all purposes to pass and repass over the roadway coloured brown on the said plan with or without animals and vehicles the Transferees or their successors in title paying unto the Transferor or his successors in title 25% of the cost incurred in maintaining the same to such reasonable standard as shall be determined by the Transferor or his successors in title’
[ … ]
19. The benefits and burdens of the Yard Conveyance form part of the Property Register of the title to the Yard but are not registered on the title to Holywell Farmhouse.
20. In the premises the Claimant will contend, so far as relevant to these proceedings, that the Yard Right of Way, and the terms thereof, is that contained in the Holywell Conveyance as aforesaid; in the alternative, that it is that contained in the Yard Conveyance.”
The defence relevantly says:
“15. As to paragraph 10, it is admitted that there is a right of way for the benefit of the Yard over the tarmacked way on the Driveway. However, the said right of way, which for convenience is nonetheless hereinafter still referred to as ‘the Yard Right of Way’, extends over the full width of the Driveway, which at its narrowest points is approximately 4.10 metres wide.
16. Paragraphs 11 and 12 are admitted, but their relevance to these proceedings is doubted.
17. Paragraph 13 is admitted.
18. Paragraphs 14 to 19 are admitted.
19. For the avoidance of doubt it is the Defendant's case that the Yard Right of Way extends to the full width of the Driveway as shown on the plan attached to the Yard Conveyance, i.e. extending from the physical boundary feature on the north of the Driveway to the physical boundary feature to the south of the Driveway.
20. As to paragraph 20, and insofar as it makes a material difference, the Defendant's case is that the Yard Right of Way is that granted expressly in the Yard Conveyance …”
No Reply was filed or served by the Claimant. CPR rule 16.7(1) provides:
“(1) If a claimant does not file a reply to the defence, the defendant must prove the matters raised in the defence.”
CPR Practice Direction 16, para 12.2, provides:
“A party may in a statement of case –
(1) refer to any point of law;
(2) give the name of any witness they propose to call,
and may attach to it a copy of any document necessary to their case (including any expert's...
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