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 BRIGHTON COUNTY COURT
(HHJ KENNEDY QC)

		Royal Courts of Justice Strand London, WC2
		11th October 2004

Monday, 11th October 2004
1. LORD JUSTICE CARNWATH: This is an appeal from a decision of His Honour Judge Kennedy on 19th November 2003.

Background

The disputed 'wedge'

2. The issues relate to a small section of land, the 'wedge', which lies on the boundary between various properties in the area of Heathfield in East Sussex. To the west is a holding called Greenwood Farm, which is owned by Mr and Mrs Clements. To the south and east is a holding called Glendale Manor, which is owned by Mrs and Mrs Bush. In between them, and immediately north of the wedge, is a 'lozenge-shaped' area of land which is owned by Mr Goodacre. In relation to the wedge, the central question is whether, as Mrs and Mrs Bush and Mr and Mrs Clements claimed, their respective holdings abut at that point, or whether, as Mr Goodacre claimed, they are separated by a wedge of land which belonged to him and provided access to the 'lozenge' area.
3. The key features are shown on a plan which the judge refers to as C/1/2. This was apparently prepared and agreed by the parties' surveyors to show the features of the relevant point. I will come back to the precise status of that plan.
4. There is a public highway called Upper Greenwood Lane which runs from the southwest. The wedge adjoins that and would provide access from Upper Greenwood Lane to the lozenge. According to the plan there is a line shown in blue, A to C, I will refer to that as "the blue line". As I understand it, that was based broadly on the surveyors' interpretation of the Ordnance Survey plans rather than any feature on the ground.
5. At this point it may be convenient to read the judge's description of the blue line since it is of some importance to the issues in the case. He referred to the fact that the Ordnance Survey markings were not shown specifically on this plan. He went on to say this:

"Mr Witherden, who was the surveyor to the claimants... told me that the source of the postulated boundary markings on this plan was what was on the Ordnance Survey plans, what was on the registered titles and all the physical features they could see on the land. If I may say so, that is a perfectly understandable approach. Putting all of those together, it would be... quite surprising if he and Mr Zara, then instructed for Mr Goodacre, had not come to the conclusion that it looked as if the true boundary between the Clements' land and the Bushes' Land was anything other than the blue line A to C which roughly represents the line of the field boundaries on all the Ordnance Survey plans and all the Land Registry documents."

6. Going back to the plan C/1/2, to the south of that blue line there is a line marked in red and notated "PRF", or post and rail fence. That is a line which the judge found was a line of a fence placed there in about 1973 by Mr Goodacre with the agreement of the then owner of Glendale Manor, Mr Lewis. The judge found that this was a "boundary agreement" and the agreed line defined the extent of the Glendale Manor land. I will call that line, that is the post and rail fence line, the "Lewis boundary".
7. So, if one bases oneself simply on that plan one can see there is some support for the idea that there is, notionally at least, a strip or wedge between the Glendale Manor holding, now belonging to Mrs and Mrs Bush, and the Greenwood Farm holding now belonging to Mr and Mrs Clements. Indeed, if one had no further information one might infer that the purpose of that strip was connected in some way with providing access to the lozenge. However, before returning to that issue I need to outline the history.

History

8. In the past, in the beginning of the 1950's, Mr Goodacre came to own all of the land which now comprises the three holdings. The only one which had a registered title at that stage was the lozenge which had been registered, apparently as part of a larger holding, in 1946. Mr Goodacre acquired, first, the Greenwood Farm Estate in 1958 and then the woodland to the east in 1960. In 1972 the land which became the Glendale Manor holding was sold to Mr Lewis who built the house which became Glendale Manor. Mr Goodacre also sold Greenwood Farm to Mr Lewis, but in October 1973 he took a conveyance back of the Greenwood Farm holding, together with the lozenge. None of the documents relating to that sale were available to the judge or to us.
9. Thereafter, Mr Goodacre was the registered holder of the lozenge, but Greenwood Farm and Glendale Manor were still unregistered. About that time, as I have said, there was the boundary agreement, and I will come back to that.
10. In 1978 Mr Lewis sold Glendale Manor to a Mr Capel, and at that point the title of Glendale Manor was first registered. The registered plan was by reference to the boundary shown in the Ordnance Survey map. If one treats that as equivalent to the blue line, it did not correspond to the Lewis boundary as agreed in 1973.
11. Mr Goodacre, meanwhile, had charged some of his land to Barclays Bank, but nothing turns on that. In 1984 he raised a loan from Lloyds Bank, secured by a charge of Greenwood Farm. Somewhat confusingly, the charge document defines the land subject to the charge as Greenwood Farm, but does so by reference to a conveyance dated 18th October 1973 said to be from Messrs Levett to Mr Goodacre. That, it seems clear, was a mistake, since Messrs Levett, who had been earlier involved in the property had dropped out of the picture long ago, having sold to Mr Goodacre in 1958. The 1973 conveyance was in fact the conveyance from Mr Lewis. The judge also found that the charge to the bank did not include the lozenge.
12. Unfortunately problems arose in relation to that loan which resulted in the bank taking possession by virtue of an order made in the County Court in 1990 (proceedings in which, coincidently, Judge Kennedy was also involved). Mr Goodacre relies on that order. He says that at that stage the land which was recovered by the bank did not include the wedge because the order was made by reference to the Ordnance Survey plan boundary and not to the Lewis boundary. Unfortunately, we do not have any documents relating to that order. However, it seems likely that the proceedings, including any order, would have been drawn by reference to the Ordnance Survey boundaries which had been used in all the documents until then.
13. In the meantime Mr Capel had sold Glendale Manor to Mr and Mrs Rumsey in April 1988. Subsequent to that Mr Goodacre became bankrupt, although he has since been discharged. The trustee disclaimed any interest in the lozenge land. He did not disclaim any interest in the strip, assuming that to be part of Mr Goodacre's title. That is a further complication in the case which, in view of the view I have taken of the other issues, it will be unnecessary to investigate.
14. The next point of significance was in April 1998 when the bank's title to Greenwood Farm was registered. The registration was made by reference to a plan based on the Ordnance Survey boundaries, and therefore, at the critical point, appeared to follow the blue line. Then, in August 1999, the bank sold Greenwood Farm to Mr and Mrs Clements. That, of course, did not include the lozenge which had never been part of the bank's interest. Mr and Mrs Bush, in the meantime, had acquired Glendale Manor from Mr and Mrs Rumsey.
15. The present dispute began in 2000 when Mr Goodacre began to take steps to assert his alleged right to use the wedge as an access to the lozenge, which was the only piece of land by now in his ownership. He made some excavations and moved parts of the fence. This resulted in Mr and Mrs Clements, and later Mrs and Mrs Bush, taking proceedings against him. Mr Goodacre gave an undertaking not to do anything pending the resolution of this issue.

The hearing below

16. The judge heard the case over two to three days and gave an ex tempore judgment. He covered the issues in great detail, and if I may say so, very fairly. He concluded that the fence erected in 1973 represented the boundary as then agreed. To that extent he accepted Mr Goodacre's case that Mr and Mrs Bush's boundary land was to the south and east of that boundary and did not include any part of the wedge.
17. However, he also held that all the land on the other side of the fence, including the wedge, belonged to Mr and Mrs Clements. He inferred that in 1973 the intention of the parties would have been that the owner of Greenwood Farm, then Mr Goodacre, should have the use and benefit of all the land north and west of the fence. Accordingly, when that land was charged to the bank in 1984, and again when it was sold to Mr and Mrs Clements, it would, by implication, have included the wedge. The fact that the registration was by reference to the Ordnance Survey Survey plan did not preclude a more precise definition of the boundary by reference to that agreement.
18. On that basis he decided that the land was certainly not land to which Mr Goodacre was entitled, and that therefore there had been a trespass. He accordingly gave judgment against Mr Goodacre and made a small award of damages to both claimants for the limited trespass that had taken place.

The appeal

19. Mr Goodacre appeared for himself on the application to me for leave to appeal. The notice of appeal raised three points. Two are no longer pursued. The one point which remained was expressed as follows in the notice of appeal:

"The trial judged erred in that he failed to consider the effects of issue estoppel (on account of the principles of res judicata) on the ability of the claimants [in the 1990 actions] which would thus restrict their right to bring the actions".

20. As I understood the argument, it was that by reason of the proceedings and orders in 1990, there was, in effect, a binding decision that the land which the bank was acquiring was defined by reference to the Ordnance Survey boundaries and did not include the wedge which therefore remained with Mr Goodacre.
21. For reasons given in my judgment at the time, I found the attempt to base such an argument on issue estoppel difficult to follow. However, I remained concerned that I had not fully understood the full legal implications of the difference between the two boundaries.
22. This concern was given some force when Mr Goodacre drew to my attention a statement by Mr Capel who, as I have said, owned the Glendale Manor up until 1988. That statement was not referred to by the judge, and its evidentiary status is not entirely clear. We have been told by Mr Camp, who appeared today for Mr and Mrs Clements, that the statement was in the court bundle for the hearing, but that Mr Capel was not in fact called as a witness and no hearsay notice had been served. On the other hand, the statement seems to have been referred to by both sides in submissions. For present purposes I will assume it was in evidence in some form before the judge.
23. Mr Capel, as I have said, was the owner at the time the Glendale Manor holding was registered, and also at the time that Mr Goodacre charged his property to Lloyds Bank. In his statement he referred to his recollection of the position on the boundary. He says that at no time did he lay claim to the land which lay beyond the post and rail fence, thus, as I understand it, confirming the effect of the Lewis agreement.
24. He referred to a sketch plan attached to his statement, which showed what appears to be a post and rail fence, and I infer that that is intended to follow the Lewis boundary. Of the land immediately beyond it, he says this was planted with rhododendrons, but, he adds, a cleared pathway close to the post and rail fence ran from the road at the western extremity to the corner of the lozenge. If one looks at the plan it is apparent that there is what appears to be a rhododendron hedge parallel to the line of the post and rail fence but also, between the hedge and the fence, there is what appears to be some form of path.
25. That evidence, which, as I say, was not referred to by the judge, seemed to me to give some possible credence to the view that the wedge in that period had acquired what I might call an independent life of its own as an access to the lozenge, and that there might be some support for the view that one of the purposes of the Lewis agreement was to enable such an access to be provided.
26. I was conscious, as I said, that the matter would need to be investigated in further detail, but I thought that it was sufficient to justify the grant of permission to appeal so that that could happen. In doing so, I encouraged Mr Goodacre, who was appearing in person, to seek qualified legal advice. Happily, today, we have been assisted by Mr Price on behalf of Mr Goodacre. I am very grateful for his assistance being given on a pro bono basis. I am conscious that he appears to have been instructed somewhat late in the day. However, he has been of great assistance in clarifying matters. He having done so, I am satisfied that there is no basis for upsetting the conclusion reached by the judge.
27. Mr Price puts the argument in this way. He says that in essence we should take the documents relating to the bank's possession proceedings in 1990, and the subsequent registration title, at face value, with the boundary following the blue line. If that view is taken, Mr Clement, as successor to the bank, must have the same boundary. It follows, therefore, that the judge having found that Mr and Mrs Bush's boundary is defined by the Lewis agreement, neither Mr and Mrs Clements, nor Mrs and Mrs Bush, can claim any title to the intervening wedge and the trespass claim should accordingly have failed.
28. I interpose that for this argument it does not really matter whether the true title is in Mr Goodacre or in his trustee in bankruptcy.
29. However, the difficulty with this argument is, as I think Mr Price fairly recognises, that registered boundaries are not definitive unless specifically declared so to be. They are normally treated as what is called "general boundaries" which do not fix the precise line (see Land Registration Rules 1925, Rule 278, which was in force at the material time). The boundary will only be fixed definitively if it becomes necessary to do so for any particular purpose, and appropriate proceedings are taken to achieve that.
30. Thus, the blue line, as inferred by the surveyors from the registered title on the Ordnance Survey documents, in itself proves nothing. The acid test is what would have happened if, quite apart from these proceedings, Mr and Mrs Clements had learned of the Lewis agreement and relied on it in proceedings to determine that their registered boundary should be adjusted accordingly to extend to the post and rail fence, that is the Lewis boundary. That would be based on the natural view that the boundaries were always understood to be intended to join at that point.
31. To counter that natural inference, the court would need some objective evidence that there was an intention, at the time of the Lewis agreement or thereafter, to create a separate strip for the purpose of access to the lozenge, and that this was deliberately reserved from the land transferred to the bank.
32. Unfortunately for Mr Goodacre, there is no such evidence. This is particularly striking since he would be the best person to have given such evidence, had that indeed been what he intended to do at the time. In fact, at the time of the Lewis agreement he had no need to define a separate holding on the wedge since he owned all the land to the north and west, and no one else was claiming it.
33. The first time this might have mattered was when he charged Greenwood Farm to the bank in 1984, which was the first time when he potentially separated the title to the lozenge from the title to Greenwood Farm, but there is no indication in any of the contemporary documents, or indeed in his evidence, of any intention to separate the wedge at that time. The only evidence, as Mr Price I think concedes, is the Capel statement, but that says nothing about title. It simply indicates that there was physically a path along the post and rail fence, which would, of course, have been quite consistent with Mr Goodacre simply doing something on his own land.
34. Accordingly, one is faced with the judge's clear findings about the nature of the boundary agreement in 1973. His conclusion, based on the documents and what he heard, was that the intention was that the two holdings, that is Glendale Manor and Greenwood Farm, would adjoin at that point. It would have been for Mr Goodacre to produce material to upset that conclusion. As I have said, the only matter which was not referred to by the judge is the Capel statement. But properly analysed, along with the other material in the case, that is not in any way sufficient to upset the judgment.
35. Accordingly, on the issue on which permission was given, I would dismiss this appeal.
36. Finally, I should comment on a point which Mr Price sought permission to argue for the first time in this court. This was an entirely new point, as he conceded. The point, in summary, was that at the time of the charge to Lloyds Bank, or, at the latest, when the bank acquired title, the lozenge became, effectively land-locked. On this basis he says the court would be obliged, in appropriate proceedings to declare that there was an easement of necessity over the wedge.
37. It is sufficient, to explain the legal context, to refer briefly to the latest edition of Megarry & Wade, 6th edition, paragraph 18-098 which says this:

"If a grantor grants a plot of land in such circumstances as to cut himself off completely from some other part of his own land (eg if a plot retained in the middle is completely surrounded by the part granted) there is implied in favour of the part retained a way of necessity over the part granted, for otherwise there would be no means of access to the land retained."

38. Later on in the same paragraph there is this:

"Nor will there be a way of necessity if the other way is merely inconvenient, as where the land abuts on a highway in a cutting 20 feet below; for the principle is that an easement of necessity is one 'without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property'."

39. Those last words are a reference to a statement by Stirling LJ in Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 at 573.
40. In this case the lozenge is not, and never has been, land-locked in that sense. Even after the title to Greenwood Farm was acquired by the bank, there was always access by a footpath, a public footpath running from the lane, from a point somewhat further north than the disputed wedge. Indeed, the judge referred to some earlier proceedings under the Highways Act, relating to the status of that footpath, during the course of which Mr Goodacre protested against suggestions that the footpath might be closed on the basis that it was, "the only access to my land."
41. Now, admittedly that access is by foot only and therefore would not enable Mr Goodacre to use a lozenge to the fullest extent, or give him vehicular access. However, as the law as outlined in Megarry & Wade makes clear, that is not enough. Provided there is some access, the fact that it is not the fullest access does not make any difference.
42. Mr Price referred us to a Privy Council case, Manjang v Drammeh, where he sought to gain some comfort from a statement of principle by Lord Oliver. I do not see how that assists in any way on this point. Lord Oliver was dealing with a different issue. In any event, in that case, it was held that the alternative access by river was quite sufficient to displace any suggestion that there was an easement of necessity over land. Thus, it seems to me that this point, even if permission were to be granted to raise it, is misconceived, at least without a major rewriting of the law of easements of necessity.
43. In any event, I think it would be quite wrong to allow such a point to be raised so late in the day when there has been a full hearing in which many points were raised. As the judge commented, this was a case where there had been many shifts of direction, and in that respect Mr Goodacre had led the field. At least without a very clear cut prospect of success, it would be quite wrong to allow another shift of direction at this late stage. Far from there being a clear-cut prospect of success, the point appears to me to be misconceived.
44. For these reasons I would dismiss this appeal.
45. LORD JUSTICE GAGE: For the reasons expressed by my Lord, I agree that this appeal should be dismissed. So far as the application to amend the statement of case is concerned, in my judgment it is far too late for that to be done now. I also have considerable reservations that, in any event, it would have any prospects of success at all. Accordingly, I agree that the application to amend the statement of case should be refused.
46. LORD JUSTICE BUXTON: I agree that the appeal should be dismissed for the reasons given by my Lord, Carnwath LJ. I also would dismiss the application. I would add my voice to what has been said, both by my Lord, and by my Lord, Gage LJ, that not only was this application made far too late (not, of course, through any fault of Mr Price), but also it is, on the material that we have seen so far, extremely doubtful whether the application, even if pursued, would have any chance of success. The appeal is accordingly dismissed, the application is refused.

ORDER: appeal dismissed; the costs of the first respondents to be paid by appellant summarily assessed in the sum of £13,000; costs of second respondents to be paid by appellant summarily assessed in the sum £7,500, both figures inclusive of VAT.