England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRISTOL COUNTY COURT
(Mr Recorder Barnes)

		Royal Courts of Justice Strand London, WC2
		8th July 2003

1. LORD JUSTICE PETER GIBSON: This appeal is brought by the claimants, Jack Partridge and his wife Ann and their sons Ian and Mark, from the order of Mr Recorder Barnes on 23rd October 2002 in the Bristol County Court. By his order the Recorder resolved in favour of the defendants, Peter Lawrence and his wife Beryl, a dispute between the claimants and the defendants as to the width of a right of way reserved to the claimants over the defendants' land. The Recorder also determined further disputes between the parties as to the preconditions to be satisfied before the right of way could be exercised, and he granted the defendants certain injunctions relating thereto. On 2nd January 2003 the Recorder ordered the claimants to pay the defendants' costs of the claim and of the defendants' counterclaim.
2. There is no dispute as to the facts. The claimants had farmed at Yetminster in Dorset for many years, and they still own land there. In 1993 they obtained outline planning permission for a housing development on part of their land, known as Chapel Meadow, on which a small estate of eight houses was to be built. Chapel Meadow adjoins on its north side fields owned by the claimants and used for agricultural purposes. On its east side Chapel Meadow is bordered by a highway, Chapel Lane, and the development required an estate road running from Chapel Lane and serving the houses to be built on Chapel Meadow. The claimants naturally wanted to preserve the potential development value of the land which they were retaining to the north of Chapel Meadow, and so when they sold Chapel Meadow to developers, as they did in 1994, they reserved a right of way over Chapel Meadow so as to be able to connect up with the estate road in Chapel Meadow.
3. The transfer dated 8th November 1994 ("the 1994 transfer") of Chapel Meadow by the claimants to the developers reserved to the claimants a right of way in the following terms:

"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.

4. Before I come to that, I should briefly describe the relevant parts of the detailed planning permission. Permission was granted for the development in accordance with the details given in the application for planning permission as modified by various documents. The documents which are referred to include drawing number 1642A dated 27th June 1994 ("plan 1642A"). That shows the layout of the development. It shows on the northern boundary a wire and post fence running along the whole extent of that boundary and a parallel hedge immediately to the south. The documents included the developer's proposals relating to the landscaping, such as the planting of shrubs and trees. The developers prepared a list of what plants or shrubs would be used for the hedge.
5. Planning permission was given subject to 18 conditions, which were specified. It is only necessary to refer to one condition, condition 6, which reads:

"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.

6. On 20th January 1995 a deed ("the 1995 deed") was entered into between the developers and the claimants. It is the construction of this deed which is at the heart of the dispute between the parties.
7. The first recital to the deed contains definitions. They include:

"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.

8. The plan annexed to the 1995 deed bears on it the legend "layout plan" and also "drawing number 1642A." It shows Chapel Meadow with eight houses and an access road from Chapel Lane to each of the houses. The estate road contains a spur ("the spur road"), running north to provide access for No.7 Chapel Meadow. The spur road stops between No.7 and No.6, which lies to the west of No.7. Between the end of the road and the northern boundary of Chapel Meadow there is an area cross-hatched black, the Field Access. The area is shown as being, at its southern end, of the same width as the spur road if, in addition to the width of the carriageway of the spur road shown by solid lines on the plan, one takes into account the narrow strip on each side of the road between the solid line and what is shown as a broken line, presumably a narrow verge. The area cross-hatched black is slightly wider at its northern end than at its southern end where it is co-extensive with the spur road in width. It is agreed between the experts for the claimants and the defendants that that plan is an extract from plan 1642A and that the latter plan is the architect's layout plan for the development which was drawn to scale 1:500. However, it appears that before the extract was copied and annexed to the 1995 deed the cross-hatching was put onto plan 1642A, because it is a photocopy of the layout with the cross-hatched area on it. The experts agree that the width of the spur road, including the verges, when measured on plan 1642A is 5.5 metres at its northern end. The extract is agreed by the experts to be distorted and having no recognisable scale on it. From the original of the extract attached to the 1995 deed one can faintly discern some writing below "layout plan" and, by comparison with plan 1642A, one can see that that writing was "scale 1:500". However, it is evident that the 1995 deed plan is a reduced copy of plan 1642A, so that the scale of plan 1642A would, in any event, not have been a reliable guide to measuring the width or the length of the Field Access on the 1995 deed plan. In order to determine that, one would have to go to plan 1642A.
9. By the operative part of the 1995 deed the claimants released to the developers the rights which they had under the 1994 transfer in consideration of the grant to them by the developers of the rights, which were called 'the new rights', set out in the schedule to the 1995 deed. That schedule provided:

"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".

10. The developers then sold Chapel Meadow to other developers, who proceeded to develop the site. The judge found that the development was completed about the time that the defendants purchased No.7 Chapel Meadow. That finding is challenged by the defendants. It is common ground that the estate road has been adopted. The Field Access is the western portion of the garden of No.7 where it abuts onto the garden of No.6. No.7 was transferred to the defendants on 23rd April 1997. The plan attached to the transfer to them and the file plan for their title at the Land Registry accords with drawing 1642A in that they both show the Field Access to have a width of no more than 5.5 metres. However, when the estate road was built, the spur road was built with a carriageway having a width of 4.88 metres. To the east of the carriageway was a pavement and service strip of 1.7 metres in width, and there was a gap of 0.91 metres to the west of the carriageway, that is between the edge of the kerb and the boundary of No.6. There is no pavement at that point. A pavement was built on either side of the estate road for the first part as it comes from Chapel Lane, but not continuing all the way round the estate road. Looking south from the north-eastern point of the spur road, one sees that there is grass and then a paved drive to No.7, and it is only further on that the pavement starts.
11. The defendants in about September 1997 copied their neighbour, Mr Hill, at No.6 in erecting a close-boarded fence on the northern boundary of their garden to replace the post and wire fence. Mr Hill showed Mr Lawrence a letter dated 2nd June 1997 from the planning authority authorising that change.
12. In the autumn of 1997 Mr Lawrence spoke to the area planning officer, Mr Hughes, about the hedge. Mr Lawrence was told that the planning authority would have no objection to land owners putting in better and more expensive varieties of plants, trees and hedges which would produce a similar landscaping effect to those in the landscaping conditions attached to the planning permission. Mr Hughes visited No.7 in the summer of 1997, inspected the northern boundary and was satisfied that an escallonia hedge would be appropriate. Mr Lawrence then caused such a hedge to be planted in July/August 1997. No written variation of condition 6 was obtained.
13. The claimants did not assert any rights over the field access until 29th May 2000, when Mrs Partridge wrote to the defendant saying:

"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."

14. The defendants were unhappy at the prospect of losing part of their garden in this way. On 10th June 2000 they erected another fence across the north end of the spur road. They removed it in May 2002, after the proceedings commenced. The claimants requested the removal of both fences and the hedge so that they could exercise the right of way. The defendants refused.
15. Proceedings commenced in 2001. By their particulars of claim the claimants claimed to be presently entitled, as owners of the retained land, to a right of way on foot or with vehicles, but not agricultural vehicles, and not with animals, other than domestic pets, to and from the boundary of the retained land over the Field Access. They claimed that the Field Access had a width of 7.5 metres by virtue of the definition in the 1995 deed and the 1995 deed plan. They claimed injunctions requiring the defendants to remove the fences obstructing the field access and all vegetation and plantings restraining, obstructing or interfering with the right of way. They claimed damages for nuisance.
16. The defendants accepted in their defence that the claimants had a right of way, but denied that it was 7.5 metres wide. They asserted it was of a maximum width of 5.5 metres. They also pleaded that the claimants required planning consents or approvals before they could exercise the right of way. They denied the claimants' entitlement to any injunction. They counterclaimed for a declaration that the width of the field access was no more than 5.5 metres. They sought the following injunctions:

"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.

17. In their reply and defence to the counterclaim the claimants denied the defendants' entitlement to any relief. The evidence before the Recorder included, in a witness statement from the third claimant, that they wanted to use their fields immediately to the north of Chapel Meadow for car parking for a sports day held once a year by a local children's nursery, and that it was not the claimants' present intention to resurface the right of way.
18. There were two issues for the Recorder to decide: (1) the width of the right of way, and (2) whether the exercise by the claimants of their right of way was subject to any, and if so what, conditions.
19. The Recorder came to the firm conclusion that the width of the Field Access was 5.5 metres, as contended for by the defendants. He said that the definition of the Field Access in the 1995 deed referred him directly to the 1995 deed plan, and that the plan was intended to be the key to the width of the right of way. The Recorder considered that extrinsic evidence was admissible to establish what was meant by the cross-hatched area on the plan and that the evidence was that the 1995 deed plan was a copy of part of the plan used for the detailed planning permission and which was a scaled plan. Although finding that the circumstances in which the spur road came to be built to a width of about 7.5 metres was shrouded in mystery, he thought it probable that the highway authority insisted on that width before being prepared to accept the road as a public highway, but he noted that that took place after the execution of the 1995 deed.
20. On the issue of the preconditions to the exercise of the right of way the Recorder described the dispute as "most unfortunate" and "arid", in my view a correct description. He was not persuaded that the claimants had any real need to use the right of way pending development of the retained land. He said that the claimants plainly enjoyed an entitlement to the potential exercise of a right of way, but that it was subject to a condition precedent that the claimants obtained all requisite planning and all other relevant approvals and consents. He thought it plain that for the right of way to be exercised a section of the fence and hedge would have to be removed, but that before they could be permanently removed to allow for the exercise of rights of way there had to be an appropriate application to the planning authority. He thought it made no difference that the hedge was not of a specified approved variety, or that the fence was close-boarded rather than post and wire. He found that the planning authority had effectively consented to the escallonia hedge and to the close-boarded fence. He said that the fence and hedge could not be removed without obtaining appropriate relaxations of the condition for planning permission from the local authority. He rejected the claimants' submissions that they were entitled immediately to exercise a right of way, without obtaining consent to a permanent change in the fence and hedge, and that they were entitled to remove the hedge and fence without consent. He held that that was so notwithstanding that such removals were not developments requiring planning permission.
21. The Recorder granted the defendants the declaration they sought as to the width of the field access. He also granted the defendants injunctions IIA and IIB, to which I have referred, subject to a proviso that, subject always to the claimants having obtained the necessary planning consents or approvals, they may enter upon the Field Access for the purposes of making it up to highway adoption standards in accordance with clause 1.2 of the 1995 deed. He also granted injunction IID, but refused any further injunctions.
22. The Recorder gave the parties permission to apply in case of difficulty. The parties appear to have had a remarkable amount of difficulty in agreeing the terms of the order. The Recorder gave a separate judgment awarding costs to the defendants, and a further judgment on 10th February 2003 on the outstanding points of dispute on the order. He considered that the 1995 deed permitted the exercise of the right of way over the Field Access with no works to the surface, provided that planning consent had been obtained to remove the hedge and fence barring the right of way. He said he had not decided on the defendants' appropriate entitlement, with appropriate planning consents or approvals, to build a surface less than one to highway adoption standards and that that issue would have to be left for negotiation or further litigation.
23. The Recorder's decisions have not left either side wholly satisfied. Although he refused permission to appeal, the claimants applied to this court for permission, and that was granted by Arden LJ on paper. The defendants also sought permission to appeal against that part of the Recorder's decision which limited the conditions for exercising the right of way only to obtaining the planning consents or approval to removing the fence and hedge and obtaining such consent or approval for building a road on the Field Access. The defendants seek an injunction prohibiting the exercise of the right of way until three additional preconditions have been satisfied:

(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.

24. There are, therefore, two questions before this court:

(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

25. Mr Jeremy Callman, for the claimants, submits that the Recorder erred on this issue. He says that the court must construe the actual unscaled plan attached to the 1995 deed. He points to the Field Access being drawn on the plan in a way which shows the northern edge of it to be 0.5 metres wider than the southern edge of it. He says that it does not permit of any precise scaled measurement. He also points to the fact that the site is shown on the plan for identification purposes only. He relies in particular on the fact that the cross-hatched area was shown on the plan to be of the same width as the estate road where they meet. He urges a purposive construction of the 1995 deed to give effect to that feature so that we should hold that the field access is to be of the same width as the estate road when it was ultimately built. He says that it cannot be right to construe the deed in such a way as to prevent the adoption of the Field Access as a highway or to create a bottle neck between the estate road and any road built on the Field Access. He drew our attention to a Dorset County Council publication, Highways in Residential Estates, Technical Design Guide. Paragraph 10.4 relates to minor access roads. He says that that is the appropriate class of road to which the estate road belongs and that such a road must provide a carriageway with a minimum width of 4.1 metres, with a footway of a minimum width of two metres along one side with services located underneath, and a margin of 0.5 metres on the other side. If that is the wrong guidance, because that publication was not published until after the 1995 deed, he points to guidance in a 1988 publication, Highway and Planning Guidance for Residential Roads, also published by Dorset County Council, and submits that the requirements for minor access roads in that document, although slightly less severe than in the 1997 document, would not be satisfied by a road over the Field Access of a width of only 5.5 metres. He also relies on a letter dated 18th July 1997 from the Estate Roads Manager of the Council in which he tells Mr Lawrence:

"... 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.

26. Mr Callman further submits that if he succeeds on the issue of width, the claimants would seek rectification of the Register in that the file plan attached to the defendants' title at the Land Registry would need amending to show a wider Field Access. Initially he urged us to exercise the discretion conferred by section 82(1) of the Land Registration Act 1925 to order rectification, but in his reply he accepted that the question of rectification would need to be remitted to the High Court.
27. The defendants, through Mr Peter Harrison, submit that the Recorder was right for the reasons he gave. Mr Harrison says that the definition of the Field Access by reference to the cross-hatched area on the plan is not qualified by the words qualifying the use of the plan for the site, that is to say for identification purposes only. He maintains that there is no requirement that the Field Access should equate in width to the estate road to whatever width it was eventually built. He relies on the agreed fact that the 1995 deed plan is a copy of part of plan 1642A, and he submits that the identification of the plan with that drawing is expressed on the document. He further points out that the area cross-hatched black on the plan does not represent the width of a carriageway plus a footpath, but is only the width of a carriageway and a narrow strip on either side. He challenges the use originally sought to be made by the claimants of the 1997 publication. He relies on the 1988 publication, being the publication giving guidance at the relevant time when the 1995 deed was executed, as showing that for roads to be capable of adoption there was a variety of tests. In particular, he submits that what is appropriate in the present case is the lowest category of residential road capable of adoption, the shared service road, serving up to 20 dwellings and designed so that pedestrians and vehicles may share the use of the carriageway. There are three such shared surface roads which are specified in the publication. The first of them only requires a carriageway width of a minimum of three metres with a pedestrian margin of 1.5 metres delineated by a row of sets. He submits that at the time when the 1995 deed was executed it would have been within the contemplation of the parties that a road on the Field Access could have been adopted with a width of only 5.5 metres. He also points to the fact that on plan 1642A there is an express reference to shared surface roads as being applicable to that plan.
28. There is little or no dispute between the parties as to the approach to the construction of the 1995 deed as a contractual document. As Sir John Pennycuick, giving the judgment of himself, Russell and Orr LJJ in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No.2) [1975] 1 WLR 468 at 476, said:

"...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 [1998] 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.

29. Mr Callman placed some reliance on the remarks of Griffith LJ in Scarfe v Adams [1981] 1 All ER 843 at 851, where the Lord Justice said this:

"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 [1915] 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.

30. It is plain from the 1995 deed, when compared with the 1994 transfer, that the parties intended by entering into the later deed to achieve greater specificity for the reserved right of way and, in particular, its width. Instead of the width of the right of way being defined by what was capable of adoption as a highway, which width was capable (as can be seen from the 1988 guidance) of being of varying measurements depending on the type of road, the parties intended to define that width. By the words of clause 1.1.9 -- "of a width no greater and no less than the land shown cross-hatched black on the plan" -- they stress that the width is specifically so limited. The parties must be taken to have intended that the precise width was capable of ascertainment from the land shown cross-hatched black on the plan. It is not in dispute that by looking at the 1995 deed plan alone it is not possible to determine the width. It does not show, or does not show clearly, any scale, and I have already drawn attention to the vestigial traces of scale 1:500 appearing on the 1995 deed plan and the scale's inappropriateness for that plan. It is common ground that the 1995 deed plan is a reduced copy of plan 1642A, with additions to it, so that that scale is inapposite. There may well have been a deliberate attempt on that account not to include the scale in the 1995 deed plan. However, in my judgment, it is obvious from that plan that one can use plan 1642A to assist in the interpretation of the 1995 deed. The parties must be taken to have known of the existence and contents of plan 1642A, though I accept that the words "drawing number 1642A" on the 1995 deed plan may be explicable by clause 2.5 referring to that drawing. I accept that the area cross-hatched black on the plan has been somewhat crudely delineated, so that the northern boundary of the area is drawn slightly wider than the southern boundary. But that does not detract from the fact that the southern boundary is co-extensive with the spur road where the area cross-hatched black and the spur road meet. By going to the scaled plan 1462A, the width is readily ascertainable. In my judgment, therefore, the width stipulated for in clause 1.1.9 is 5.5 metres. I would not treat the greater width of the northern boundary shown in the cross-hatching, not being tied to any feature like the spur road, as determinative.
31. I cannot accept Mr Callman's submission that the definition of "field access" is plain by itself or that a purposive construction requires the width of the field access to be determined by whatever width the spur road should eventually turn out to have. That would entail positing the governing purpose of the 1995 deed in this regard to be that the field access must match the spur road to whatever width it turns out to be built. That cannot, in my view, be extracted from the language used. Mr Callman sought to derive assistance from the proviso to clause 1.1.9 with its reference to equally commodious access. But that only refers to an alternative in the route, and, in any event, "equally commodious access" means equally commodious as the area cross-hatched black. I cannot derive from that provision an indication that the parties intended the width of the field access to be greater or less than the width of the land shown cross-hatched black if the spur road subsequently happened to be built to a different width. For the purpose suggested by Mr Callman to be the intended governing purpose, different language would surely have been used.
32. Mr Callman said that his interpretation accorded with the 1994 transfer, but, as Mr Harrison rightly pointed out, that (if anything) tells against Mr Callman's submission in view of the obvious intention of the 1995 deed to vary the provision in the 1994 transfer governing the right of way. It would be very surprising if the parties, having used language of such precision as they did in the first limb of clause 1.1.9, should have intended that the width of the right of way should be governed by subsequent events which might be wholly outside their control, such as a change in the requirements for the adoption of roads. Mr Callman also sought to rely on the fact that by clause 2.5 the site was shown for identification purposes only shown edged red on the 1995 deed plan, but the same limiting words are not to be found in the definition of "Field Access", and, in any event, even if a plan is annexed for the purposes only of identifying land, it does not fall to be ignored and may be used for whatever assistance can be derived from it. Moreover, by the proviso in clause 1.1.9 reference is made to the estate road, and the definition of "the Estate Road" refers to the planning permission, which in turn refers to plan 1642A.
33. For all these reasons, therefore, I am satisfied that it is permissible to have regard to plan 1642A in order to obtain assistance on ascertaining the width of the Field Access. I conclude that the Recorder reached the correct decision on the first issue.

(B) Current Entitlement to Exercise Right of Way

(i) Planning Consent for Removal of Fence and Hedge.

34. Mr Callman submits that the Recorder wrongly held that the claimants were not immediately entitled to exercise a right of way in the absence of planning consent for the removal of the fence and hedge obstructing the right of way. He says that the removal of those obstructions would not be development for planning purposes and that they can be removed without planning consent. He further says that the fence was never the subject of a planning condition at all, and that the hedge does not comply with the planning condition and so can be removed without breach of the condition. He also says that the hedge can be removed for a further reason, that five years have expired since the completion of the development so that condition 6 has no effect.
35. Mr Harrison accepted that the removal of the fence was not development and that the fence was not subject to a planning condition. We have been taken to the provisions of the Town and Country Planning Act 1990, the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 and the General Permitted Development Order 1995, and I am satisfied that the removal of the fence is not development. Although the approved plan 1642A shows a post and wire fence, that was not one of the specified conditions to which the grant of detailed planning permission was made subject. Accordingly, I conclude that the judge was wrong to hold that the fence could not be removed without first obtaining planning consent.
36. It is common ground that condition 6 did apply to the hedge and that no written consent was given to the variation of the condition by planting the escallonia hedge. Pursuant to condition 6, that hedge could not be permanently removed within five years of the completion of the development without the prior obtaining of a variation in the planning consent. But the evidence of the date when the development was completed is far from satisfactory. The judge held in his judgment that that date was about the time when the defendants acquired No.7, in April 1997. If that is right, the five-year period has already expired and condition 6 has no application. Mr Harrison, however, has drawn our attention to a number of matters. He has pointed to evidence from Mr Lawrence that the development continued after April 1997. Mr Lawrence says that the last house was not completed for another six months after that date and, further, that the final surface of the estate road was not put on until October 1998. On that footing condition 6 has not expired, though it will expire this autumn.
37. This provides a good example of why the judge might well have felt frustrated that the parties were choosing to litigate such points. Even if the defendants are right, come October of this year condition 6 would have no further application. But, in any event, the material before us does not satisfy me that I can safely conclude that the judge did not have material on which he could find that completion of the development occurred in April 1997. There is a document in the bundle which is dated 19th May 1997, is headed "West Dorset District Council certificate of completion" and which has a description of the work for the development as being related to eight dwellings. Confusingly there is also a reference to No. 7 alone and there is force in Mr Harrison's submission that the certificate is only of the completion of No. 7. It may be that the judge took that certificate of completion as evidence for his finding of the completion date. I do not know, and counsel who appear before us did not appear before the judge. We have no transcripts of evidence and, in this unsatisfactory situation, I reach the conclusion that it is not possible to say that the judge was wrong on this point. Accordingly, on that basis, condition 6 has no application.

(ii) Other planning pre-conditions

38. Mr Harrison submits that there would be a material change of user of the Field Access for the fence and hedge to be removed and for the claimants to start using the right of way even if no work was done to the surface. He said it would change the user from that of a garden to the mixed user of a garden and right of way and that planning permission was needed for such development. No authority was given for that bold and bald proposition, which I am unable to accept in its unqualified form. The removal of the fence and hedge seems to me to be immaterial for planning purposes. It must be a matter of fact and degree whether the user of a right of way is such that there is development of the servient tenement as a result of a material change of use. I find it hard to believe that if the claimants merely used the right of way on foot from time to time there would be a material change of use of the Field Access. It would be quite different if the user was prolonged and frequent and with vehicles.
39. Mr Harrison submitted that, when read as a whole, the 1995 deed shows that it was clearly envisaged that there would be development of the retained land and that the Field Access would be made up into a road and that planning permission would be obtained before the right of way was exercised. For my part, I accept that the primary purpose of the reservation of the right of way was to enable access to be enjoyed by the retained land when it came to be developed. But the difficulty with Mr Harrison's submission is that the 1995 deed does not provide that any exercise of the right of way was conditional on that development occurring or the road being made up. Paragraph 1 of the Schedule is explicit that it is the obtaining of all requisite planning and other relevant approvals, licences and consents which forms the condition for the exercise of the right. If no planning or other approval, licence or consent is needed for an exercise of the right of way conferred by the Schedule to the 1995 deed, then I cannot see why the claimants cannot avail themselves of their right. Paragraph 1.2 undoubtedly confers a right which will require the obtaining of planning permission before it can be exercised, but I do not see that the same can be said for the quite separate right conferred by paragraph 1.1 of the Schedule. That allows the claimants to have a right of way, on foot or with vehicles, subject to the qualifications to which I have referred, at all times and for all lawful purposes, to and from the boundary over and along the estate road and the Field Access. In these circumstances it seems to me plain that it would not be right to import into the schedule the pre-conditions which Mr Harrison has urged on us.
40. Mr Callman submitted that the injunction in paragraph IIB of the prayer to the counterclaim is unnecessary and should be discharged. But the judge, on the evidence before him, was entitled to conclude that there was a threat that the claimants might wish to put an all weather surface on the Field Access, the claimants' evidence being only that there was no present intention, when Mr Ian Partridge made his witness statement, to do that act. The threat had been made by Mr Partridge's letter. However, I would accept that an undertaking provided by all four claimants, if proffered, could replace that injunction. Further, the judge appears to me to have gone a little too far in granting an injunction against entering into or upon the Field Access for the purpose of constructing not only a hard-standing and/or all weather track but also "and/or any other surface". It is only a construction of a surface which would require planning permission that could properly be restrained until such time as that permission had been obtained. Accordingly, if the language of the injunctions were recorded so as to take account of that point and were put in the form of an undertaking, I would be prepared to discharge the injunctions which the judge has granted and to accept such an undertaking.
41. I cannot conclude without urging the parties to adopt what might be thought to be a more neighbourly attitude to each other, now that the questions of law have been resolved. Like the judge, I find it hard to understand why the claimants should want to insist on the removal of the escallonia hedge and fence at a time when it seems that their need to use the right of way is so very limited. I would hope therefore that the parties would try to reach a sensible agreement. The claimants now have the security that this court is pronouncing that they have a right of way which is not subject to the pre-conditions for which the defendants had argued. That means that if the claimants wish to sell any part of the retained land together with the benefit of the right of way the purchaser will know where he stands.
42. For the reasons which I have given, therefore, I would dismiss the appeal on the point relating to width, but I would allow the appeal relating to the preconditions to the exercise of the right of way.
43. LORD JUSTICE MAY: I agree that this appeal should be allowed in part but otherwise dismissed to the extent which Peter Gibson LJ has set out and for the reasons which he has given. I gratefully adopt his account of the facts and the circumstances of the appeal and the respondent's notice.
44. The first issue raised by the grounds of appeal, that is the issue relating to the width of the field access, is substantial. I am not persuaded that the second main issue is substantial and I fear that here the parties have been at loggerheads over questions which have assumed a proportion which they do not deserve. Sensible give and take on each side could have avoided much trouble and expense and I trust may yet do so by mediation perhaps, if that is really necessary. Of course the Lawrences are anxious to know the extent to which the right of access may affect the enjoyment of what is otherwise their garden. Of course the Partridges are anxious to know the full extent of their right of access and to be sure that it is not affected or diminished by any failure on their part to assert it.
45. As to the second issue, I agree with Peter Gibson LJ that the right of way provided for in paragraph 1.1 of the Schedule to the deed dated 20th January 1995 is a presently subsisting right of way capable of being exercised in accordance with its terms to any extent which does not require planning permission or other approvals, licenses or consents. This is not dependent on the Partridges obtaining planning permission for the development of the retained land. The present extent of that right of way would be determined under planning legislation and law. It is not, I think, appropriate to determine its precise extent as a theoretical exercise in this court. It is sufficient to say that the exercise of the right which does not require planning permission cannot be extensive, and I do not believe that the Partridges have any serious intention of or interest in exercising such a right other than to assert it as an adjunct to maintaining their much larger commercial interest, if and when planning permission is obtained, to develop the retained land. I agree with Peter Gibson LJ that there is no planning impediment to removing the relevant part of the fence between the Lawrence's garden and the retained land, and I agree that removing the escallonia hedge would not now, on the judge's finding as to the date when the development was complete, which I would not disturb, constitute a breach of any condition attached to the grant of planning permission dated 8th August 1994; but I sincerely trust that the good sense of the parties may avoid needless destruction of this kind. As to the main point, it is accepted that planning consent is necessary for other than relatively minor use of the right of access, and it is accepted that, if planning permission is obtained, the right of access thereupon subsists to enable advantage to be taken of the planning permission. There is thus no substantial issue on this second ground of appeal.
46. The short point is that the Partridge's have in substance a right of access which is, subject to the terms of paragraph 1.1 and 1.2 of the Schedule to the 1995 deed, co-extensive at any time with any use of the access itself of the retained land which is permitted under planning law.
47. As I have said, the first ground of appeal is substantial. Mr Callman submits that the width of the field access is to be derived from the 1995 deed and the plan annexed to it without reference to other evidence. Although the photocopied plan may possibly, contrary to the parties' agreement and the finding of the judge, on close inspection have a scale written on it, it is a reduced, distorted photocopy from which scaled measurements cannot be taken. The hatched area is tapered, which is another indication that scaling was not intended. The one indication on the plan of the width of the field access is that it is of the same width as the small length of the estate road to which it joins. At the time the deed was entered into the road details, including the width of the estate road, had not been determined. The parties must therefore have intended that the width of the field access was to be the same as the width of the estate road, as it eventually came to be built.
48. In agreement with Peter Gibson LJ and the judge, I reject this construction of the 1995 deed. The main relevant provision of the deed is the definition of the field access in clause 1.1.9. This provides:

"'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.

49. Thus, the width of the field access is stipulated to be "no greater and no less than the land shown cross-hatched black on the plan". The plan by itself cannot supply that width, but the plan is, and was known to be, a reduced photocopy of part of plan 1642A, one of the plans submitted with the outline planning application. It is agreed that on that plan the width of the estate road at the point where, on the plan annexed to the deed, it joins the hatched field and access, scales as 5.5 metres. The existence of the plan submitted with the planning application is, in my view, one of the surrounding circumstances which the court can and should take into account to determine the width of the field access which is shown cross-hatched on the plan annexed to the 1995 deed. Mr Callman's route to the construction of the deed and its plan begs the question what is the width of the relevant part of the estate road and derives no substantial support from the provision that a possible differently designated route should give equally commodious access. If that could refer to its width, it was to be equally commodious with a width no greater and no less than the land shown hatched black on the plan, so we are back to where we were. In the light of the words of clause 1.1.9, I am unable to construe the deed as stipulating a width to be derived from subsequent events. It can readily and legitimately be derived in the way that I have described as being 5.5 metres. Further, since the width of the hatched access depends on the width of the estate road as shown on the plan, and since the estate road is defined by reference to the planning permission, is it legitimate, in my view, to look at the terms of the planning permission in so far as they help. They do help, because drawing 1642A is expressly referred to in the document by which outline planning permission was granted on 8th August 1994. Thus, since the estate road had to be constructed in accordance with the planning permission, and since the planning permission supplies the relevant width of the estate road for which permission was granted, drawing 1642A is again available to supply the answer. I also agree with Peter Gibson LJ that the width of the field access should be taken as 5.5 metres throughout its length, the slight apparent taper being in my view obviously unintended.
50. In agreement with Peter Gibson LJ, I do not consider that the potential standards for the adoption of roads affect the determination of the width of the field access as provided in the 1995 deed so as to enlarge it. The stipulation in the first Schedule to the transfer of 8th November 1994 that the right of way there provided for should be "of a width capable of adoption as a highway" was not reproduced in the 1995 deed, by which rights in the 1995 deed were substituted for rights in the 1994 transfer. However that may be, Mr Callman did not persuade me that 5.5 metres was a width incapable of encompassing a road which in 1995 Dorset County Council would adopt. This is especially so when drawing 1642A explicitly shows that the roads were to be shared surfaced roads. These are residential roads without footways with a minimum width of 4.5 metres.
51. LORD JUSTICE DYSON: I agree with both judgments.
52. Order: Appeal allowed in part.