IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(Mr Recorder Barnes)
B e f o r e :
LORD JUSTICE MAY
LORD JUSTICE DYSON
|PARTRIDGE AND OTHERS||Claimants/Applicants|
|LAWRENCE & OTHERS||Defendants/Respondents|
Smith Bernal Wordwave Limited
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MR PETER HARRISON (instructed by Lansdowne Solicitors, London N5 2UT) appeared on behalf of the Respondents.
Tuesday, 8th July 2003
Crown Copyright ©
"A right of way of a width capable of adoption as a Highway on foot or with vehicles (other than agricultural vehicles) but for the avoidance of doubt not with animals (other than domestic pets) at all times and for all purposes to and from the Retained Land or any part thereof across the Property from Chapel Lane to the Retained Land along the route of the estate roads and footpaths shown on Plan A or along such other route as the Transferees may reasonably designate but so long as such route gives convenient uninterrupted access from Chapel Lane to the Southern boundary of the Retained Land between the points marked W and X on Plan A."
The property conveyed is shown for identification purposes only edged red on Plan A. Plan A is an unscaled plan showing the northern boundary of Chapel Meadow, being the southern boundary of the retained land, between point W to the west and X to the east, and the estate road is shown running from Chapel Lane towards the centre of Chapel Meadow and dividing into two spurs, one providing access for the house in the north-east corner of Chapel Meadow, No. 7, but going past that house and ending on the northern boundary of Chapel Meadow. From that description of the right of way one can obtain no indication of the actual width of the right of way in the 1994 transfer, save that it should be capable of adoption. The wording of the 1994 transfer is somewhat surprising in that on 6th July 1994 the developer's architectural surveyor had written to the planning authority, in response to that authority's indication that the estate road for the development for which detailed planning permission was sought should not extend as far as the northern boundary of Chapel Meadow but should stop at what was to be house No.7. The architectural surveyor told the planning authority that it had been agreed by all parties that the strip of land up to the boundary over which the estate road was shown should not be part of the application but should become part of the garden to No.7. When detailed planning permission was granted on 8th August 1994 it reflected the content of that letter. Nevertheless, as I have indicated, the 1994 transfer did not show the estate road as stopping short of the north boundary. A variation of the 1994 transfer was soon agreed.
"All planting seeding or turfing comprised in the approved details ... of landscaping shall be carried out in the first planting and seeding seasons following the occupation of the buildings or the completion of the development, whichever is the sooner; and any trees or plants which, within a period of 5 years from the completion of the development, die, are removed or become seriously damaged or diseased shall be replaced in the next planting season with others of similar size and species, unless the Local Planning Authority gives written consent to any variation."
The plants or shrubs for the hedge which were proposed by the developers did not include escallonia. Approval was given by the planning authority to those proposals.
"1.1.2 'the Site' shall mean the land transferred by the Covenantees [the claimants] to the Covenantors [the developers] under the 1994 Transfer shown for identification purposes only edged red on Plan A annexed hereto and therein more particularly described.
1.1.7 'the Planning Permission' shall mean the grant of planning permission dated 8th August 1994 in respect of Application Number 1/N/94/0119F and any variation or modification thereof approved from time to time by the requisite Planning Authority and any further planning permissions granted in respect of the residential development of the site.
1.1.8 'the Estate Road' shall mean the road as designated from time to time in writing by the Covenantor and constructed or to be constructed on the site in conjunction with the residential development of same in accordance with the Planning Permission.
1.1.9 'the Field Access' shall mean such piece or parcel of land of a width no greater and no less than the land shown cross hatched black on the Plan annexed hereto or along a route as shall be designated from time to time by the Covenantors Provided always that the route of the same shall give (insofar as it is reasonably possible) equally commodious access between the Estate Road and the Boundary.
1.1.10 'the Retained Land' shall mean the land shown for identification purposes only edged blue on Plan A annexed to the 1994 Transfer.
1.1.11 'the Boundary' shall mean the southern boundary of the Retained Land between the points marked W and X on Plan A annexed to the 1994 Transfer."
Then there are definitions of "the Covenantees" and "the Covenantors" which include their respective successors in title.
"1) Subject to and conditional upon the Covenantees obtaining all requisite planning and other relevant approvals licences and consents therefore and subject further to and conditional upon the Covenantees fully and effectively indemnifying the Covenantors from and against any costs expenses or other amounts or liability whatsoever and howsoever arising from the exercise thereof and subject further to and conditional upon the Covenantees paying a fair and reasonable contribution towards the reasonable costs of the upkeep thereof and only until the same shall have been adopted:-
1.1 A right of way on foot or with vehicles (other than agricultural vehicles) but for the avoidance of doubt not with animals (other than domestic pets) at all times and for all lawful purposes to and from the boundary over and along the Estate Road and the Field Access.
1.2 A right to enter upon the Field Access for the purposes of making up to highway adoption standard (and for the avoidance of doubt the Covenantors will join in an Agreement with the Highway Authority for adoption thereof as a public highway if so required by the Covenantees) Provided that (and without prejudice to the generality of the foregoing) the Covenantors shall be indemnified by the Covenantees from and against any costs expenses or other amounts payable under the said Agreement for Adoption the persons entering causing no avoidable damage or inconvenience and making good at his or their expense or paying reasonable compensation for all damage occasioned by such entry."
Paragraph 2 of the Schedule contained a further easement relating to services (water, soil, gas and electricity) and conferred a right on the Covenantees to enter on the site for the purposes of laying sewers and making connections. Clause 2.5 of the 1995 deed ended with these words in manuscript:
"... and for the avoidance of doubt the site is shown for identification purposes only edged red on drawing no.1642A".
"We wish to inform you that we intend to establish our right of access to our land north of Chapel Meadow. Out of courtesy we are giving you 14 days notice so that you can remove fencing, trees, and shrubs you wish to retain. We will be putting a gate and establishing an all weather track from the end of the road through the said gateway."
"II. Unless and until the Claimants have obtained the necessary planning consents or approvals, an injunction restraining the Claimants their agents workmen and/or contractors from:
A) erecting or attaching any gate to the Defendants' fence in or along the Northern boundary of No. 7 Chapel Meadow;
B) entering into or upon the Field Access or any other part of 7 Chapel Meadow for the purpose of constructing a hardstanding and/or all weather track and/or any other surface unless and until planning permission has been granted for the same;
C) from constructing any hardstanding and/or track and/or surface of any kind on the Field Access unless the same shall be approved by Dorset County Council as meeting one of its approved Highway Adoption Standards for a defined purpose;
D) from removing or causing damage to any trees and/or shrubs on the Northern boundary of Chapel Meadow unless or until the Claimants obtain consent from the Local Planning Authority or a relaxation of condition No.6 attached to Planning Permission ref No.1/N/94/0119F;
E) from driving any vehicles over the Field Access.
III. An injunction restraining the Claimants their agents workmen and/or contractors from driving agricultural vehicles over the Field Access."
The defendants also claimed a declaration that, in the event of the claimants being entitled to and exercising their right of way, the defendants were entitled to certain reimbursements and indemnities.
(1) that the right of way was conditional on planning permission being granted over the retained land for a change of use for a construction of a development required to be serviced by the Field Access;
(2) that the right of way was conditional on planning permission being granted for the change of use of the Field Access from a garden of a residential house to a roadway servicing other land and/or for planning permission being granted for the construction of a roadway to highway adoptable standards;
(3) that before the right of way could be exercised, the surface of the Field Access should be made up as a roadway to highway adoptable standards.
On considering the application by the defendants on paper, I gave them permission to argue these points raised by their Respondent's Notice.
(A) Is the width of the Field Access 5.5 metres or 7.5 metres?
(B) Do the claimants have a current entitlement to exercise a right of way?
The second question in turn breaks down into two questions: (i) Is planning consent required for the removal of (a) the fence and (b) the hedge, in each case where the same obstructs the right of way?
(ii) Is the exercise of the right of way subject to all or any of the three additional preconditions contended for by the defendants?
I shall consider these questions in turn.
(A) Width of Field Access
"... in this instance the approved drawing showed no footways at all. In order to satisfy adoption requirements I persuaded the developer to provide footways for the extent of the junction and the first few metres of the access road, which is all that can be justified on road safety grounds. These footways were further extended to the vehicular crossings of the first two plots in order to facilitate prams or wheel chairs."
Mr Callman says that it is plain from this that the estate road was made up in the way that did occur in order to satisfy adoption requirements.
"...one must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of surrounding circumstances."
Those are the surrounding circumstances at the time the document was executed. Further, as Lord Hoffmann emphasised in ICS Ltd v West Bromwich Building Society  1 WLR 896 at page 912:
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract."
Only if the court cannot ascertain the meaning does it have recourse to the presumption that the document is construed against the grantor.
"The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interest transferred, then extrinsic evidence is admissible so that the court may (to use the words of Lord Parker in Eastwood v Ashton  AC 900 at 913)'do the best it can to arrive at a true meaning of the parties upon a fair consideration of the language used'."
With respect to that judge, the way he expresses the principle may not do sufficient justice to the now recognised principle, as stated by Lord Hoffmann, that one construes a document against the background knowledge which would have been available to the parties. To that extent extrinsic evidence of what is the background is always admissible. I would add that in any event, contrary to the submission made by Mr Callman, I do not see that in this case the wording of the 1995 deed is so clear that one can simply confine oneself to that wording, referring, as it does, the 1995 deed plan. Indeed, as I shall indicate, it seems to me inevitable that one is taken outside the 1995 deed to look at the surrounding circumstances.
(B) Current Entitlement to Exercise Right of Way
(i) Planning Consent for Removal of Fence and Hedge.
(ii) Other planning pre-conditions
"'the Field Access' shall mean such piece or parcel of land of a width no greater and no less than the land shown cross-hatched black on the Plan annexed hereto or along a route as shall be designated from time to time by the Covenantors Provided always that the route of the same shall give (insofar as is reasonably possible) equally commodious access between the Estate Road and the Boundary."
Also relevant is the definition of "the estate road", which is defined to mean:
"The road as designated from time to time in writing by the covenantor and constructed or to be constructed on the site in conjunction with the residential development of the same in accordance with the planning permission."
The planning permission is defined to mean planning permission dated 8th August 1994, or/and any variation or modification of it.