England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th July 2006

1. Both titled actions, which were ordered to be tried together, concern disputed rights and liabilities over Crane Road, a private roadway leading south of Bedfont Road, Stanwell. The issues range from disputes over liability to contribute to the costs of making up the road, removal of rubbish and installation of security gates to complaints of obstruction or infringement. The properties with access rights over the road are close to the cargo terminal at Heathrow Airport and eminently suitable for warehousing, use by commercial transporters and the like. As will be explained later, Crane Road has now been made up to highway standards, wide enough for heavy goods vehicles to pass and with a 1.5 metre footway on the west side along its entire length.
2. Crane Road Properties LLP ("CRP") are the freehold owners of Crane Road together with certain adjoining land under title no. SY 668994. Access over the road is enjoyed by Scania (Great Britain) Ltd ("Scania") who acquired the land on the east side from CRP's predecessors, Ravenseft Industrial Estates Ltd ("Ravenseft"); and by Mr and Mrs Hundalani who own the land to the south under title no. SY 543256.
3. Forming part of the Hundalani land is a narrow north/south strip connecting their main area of land to the southern end of Crane Road. This strip ("the Hundalani roadway") is only approximately 5 to 5.5 metres wide, inclusive of rough unkept verges on each side. On the east side of the Hundalani roadway, running its full length is a strip of land ("the ransom strip") retained by CRP when they sold their land on the eastern side to Scania. CRP also own a triangular wedge of land at the north west end of the Hundalani roadway; thereby preventing the Hundalanis from widening their roadway on either side. Although the Hundalanis currently use their land for storing and selling used commercial lorry parts, that business has steadily declined over recent years. The Hundalanis wish to obtain planning permission and either develop their land or sell it on for commercial development. However it is likely that to obtain planning permission they will need to be able to widen their roadway, to which CRP hold the key. CRP would like to purchase the Hundalani land themselves for redevelopment and have from time to time attempted unsuccessfully to persuade the Hundalanis to sell. But the price they were prepared to pay was not acceptable. Attachment A to this judgment is a plan (not to scale) to provide a better understanding of the site position.
4. CRP and their predecessors have taken a tough commercial position with Mr Hundalani over a number of issues affecting his use of Crane Road. Although the background to much of the falling-out is Mr Hundalani's belief that CRP are out to exert pressure by one means or another on him to sell his land and, on his side, a reluctance to accept that he may have to give up part of the development profit to secure better access, the proceedings raise a number of discrete issues.
5. As will be explained later, Crane Road has been considerably widened and reconstructed since the Hundalanis acquired their right of way in 1979. Then the road was a dirt track, probably surfaced at some time in the past with a thin layer of tarmac. Under the terms of their transfer dated 22 February 1979 from the owners A. T. Chown & Co Ltd (CRP's predecessors in title) Mr and Mrs Hundalani, as transferees, were granted an express right of way in the following terms.

"A right of way in common with all others entitled thereto for the Transferees and their successors in title with or without vehicles over and along the roadway coloured yellow on the said plan subject to the terms of Clause 11 of an Agreement made on the 22^nd day of December One thousand nine hundred and seventy eight between the parties hereto a copy of which Clause is bound up herewith and such right of way shall be subject to the Transferees and their successors in title using the said roadway in a reasonable manner and not causing any obstruction thereon or any nuisance annoyance or inconvenience to the Transferor or its successors in title or their tenants or occupiers of adjoining or neighbouring land or others using the said roadway and subject to the payment of one half of the cost of maintaining repairing and re-surfacing the said roadway coloured yellow".

6. In the main body of the Transfer the Transferees also covenanted the following:-

"(b) To contribute on demand (for so long as the Transferees have a right of way over the same) one half of the cost of maintaining and repairing the roadway coloured yellow on the said plan

(c) To use (for so long as the Transferees have a right of way over the same) the roadway coloured yellow on the said plan in a reasonable manner not causing any obstruction thereon or any nuisance annoyance or inconvenience to the Transferor or its successors in title or their tenants or occupiers of adjoining or neighbouring land or others using the said roadway."

7. Finally so far as material, the Transfer contained an express agreement and declaration:-

"that the Transferees shall not be entitled to any express or implied easement whether of light or air or to any other easements over or in respect of the adjoining land retained by the Transferor which would restrict or interfere with the free use by the Transferor or any persons deriving title under it for building or any other purpose of such adjoining land whether intended to be retained or sold by the Transferor".

8. By Clause 11 of the 1978 Agreement (referred to in the second schedule) Mr and Mrs Hundalani had agreed to apply for planning consent for an alternative access route over the Globe land on the west, which they already owned through an off shore company. If successful they were to relinquish their rights over Crane Road. In the event consent was refused.
9. It appears from the plan attached to the transfer that the actual carriageway shown coloured yellow in the plan may only have been about 4.5 to 5m wide at its southern end where it joined the Hundalani roadway, widening as it approached Bedfont Road. A site survey of the position in the 1970's shows Crane Road somewhat wider on the western side presumably because there was an unused and unkept verge. The carriageway was for the most part an unmade but perfectly driveable track, except at its entrance to Bedfont Road where it may have been concreted.
10. Also in about 1979 Arup & Arup Ltd ("Arup") bought from A. T. Chown both Crane Road and the land lying to the east, which now belongs to Scania. At that time the most northerly part of what is now the Scania site had a bungalow which Arup later sold on to a Mrs Clarke. On the land to the south of the bungalow were office buildings and an ancillary shed and yard which Arup used for its crane hire business. There were gates leading into the Hundalani roadway and the Arup site at right angles to each other at the southern end of Crane Road and a short distance to the south of the office building.
11. As Arup were using very heavy vehicles, they undertook, at their own expense, major works to Crane Road in the early 1980s; widening and concreting the bellmouth at the north end at its junction with Bedfont Road and at the south end to provide a larger and firmer access for lorries turning into the Arup site. In addition the entire length of Crane Road was widened along its Western Boundary, the existing overgrown verge and bushes were cleared, the widened section concreted and kerbed with the middle part of the old road between the two concreted sections tarmaced.
12. The effect of the Arup works was to widen Crane Road by about 2 metres, so that two heavy goods vehicles could easily pass, except as at the point where the Arup office protruded, where the width of the road was effectively too narrow to allow for more than one lorry. The western boundary of Crane Road and the fence to the Hundalani roadway continued in a straight line south from Bedfont Road.
13. The Hundalani roadway remained in the same condition as it is in today, an unmade dirt track, approximately 5.5 metes wide from fence to fence, with an unkept grass verge on each side. In practice it was and is only sufficient for one lorry to enter or leave the Hundalani land at any one time.
14. Evidence was given as to the state of Crane Road during Arup's ownership by Mr Peter Arup, a former director, and by Messrs Lewis and Swain, former Arup employees. Mr Arup explained that as the work had been done solely to benefit Arup, Mr Hundalani was not asked to contribute to the cost, nor towards the cost of maintaining and repairing the carriageway during the whole period when Arup owned it. Every year until Arup sold the site and roadway in 1997, Arup employees repaired the road as necessary, filling in potholes and where necessary re-tarmacing worn sections. At some time during Arups occupation, it let part of the yard and offices to a number of different companies, mainly involved in plant hire. All three witnesses said that throughout the period of Arup's occupation and despite its heavy use by Arup and their tenants, the road remained in a reasonably sound condition.
15. Because the Hundalanis had been running their business from the Globe land before purchasing the Hundalani land from A. T. Chown, they were for a time in the process of relocating to their new site. They did not in fact start using Crane Road as their main access until after the Arup works were completed. Thereafter they used the widened road as their right of way; without differentiating between what had been granted by the 1997 Transfer and the areas added to the roadway by Arup and without, as I say, being asked to contribute anything towards the works or repair. Relations between the Hundalanis and Arup were always cordial.
16. At this juncture I should say something about the BAA strip identified on Attachment A. As shown, a small section of land at the junction of Crane Road and Bedfont Road over which the Hundalanis express right of way extended, was in fact owned by the British Airways Authority and not A. T. Chown. After Arup had purchased Crane Road in 1979, they acquired an unqualified right of way from the British Airways Authority over the BAA strip. Much later in 2003 the current owners of Crane Road acquired the freehold of the strip. Whether or not the Hundalanis acquired access rights over the BAA strip by prescription, (which is likely) CRP accept that as successors in title to the right of way granted to the Hundalani Transfer it would be a derogation from grant for them to seek to prevent the Hundalanis from using it. The Hundalanis in turn rightly accept that it should be treated as part of Crane Road for which they are liable to contribute to the costs of maintenance repair and resurfacing on the same basis as applies under the 1979 Transfer.
17. In 1997 Ravenseft, now known as Slough Industrial Estates Ltd, bought Crane Road and all the land to the east from Arup; as well as the bungalow from Mrs Clarke. This was as a prelude to redeveloping the whole site once it had been removed from green belt. At the same time Ravenseft also negotiated to try and buy the Hundalani land together with an option over the Globe land on the west side of Crane Road.
18. Arup left their site in about 1997, the tenants remaining over until some time in 2000. It seems that after Ravenseft bought Crane Road it was left to fall into disrepair, no doubt because they were waiting to rebuild the entire road as part of the redevelopment.
19. All of the Arup and Clarke land was in due course removed from green belt along with the northern part of the Hundalani land. Even though unsuccessful in persuading the Hundalanis to sell their land, Ravenseft, through an associate company, applied for planning consent, with the Hundalanis approval, to redevelop the northern part of the Hundalani's land for warehousing, together with the land bought from Arup and Mrs Clarke. In October 1999 Ravenseft's associate made an unconditional offer of £1.6m for the Hundalani land as well as seeking an option over the Globe land at £1.1m per acre. The price was not acceptable to the Hundalanis. Planning consent was obtained for all of the land applied for. Despite what may have been an increased offer the Hundalanis could still not be persuaded to sell.
20. Ravenseft had appointed Salmon Developments as joint partners to redevelop their site. Mr Douglas Stewart, the development director, who gave evidence, was the individual charged with the negotiations to try and acquire the Hundalani land as well as putting the redevelopment together. Mr Stewart obtained various options for dealing with Crane Road ranging from simple infilling the potholes which had been allowed to occur, no doubt exacerbated by the former Arup tenants heavy plant, at a cost of £5,206, to applying a layer of dense bitumen at a cost of £22,390 through to rebuilding the whole roadway to adoptable standards at a cost of £112,460 (each exclusive of VAT).
21. On 13 December 1999 Mr Stewart wrote to Mr Hundalani to inform him that they planned to go ahead and rebuild Crane Road; however the costed schedule sent to Mr Hundalani omitted from it that it was the option to "rebuild to adoptable standard"; but instead he stated in the letter that as the road was in a "very poor state of repair" – "immediate repairs are in our view essential to prevent further deterioration so the works are quite extensive". No mention was made of either of the other two options. Having it seems refused a revised offer to sell, Mr Hundalani was sent a further letter from Mr Stewart on 7 August 2000 explaining that the so called "repair works" had been costed at approximately £150,000, inclusive of construction design fees, finance and VAT and that as the Hundalanis were liable for 50% they would have to pay approximately £75,000. Not surprisingly Mr Hundalani replied on 6 August 2000 stating that they would not contribute towards "these repair costs as alleged by you"; and going on to say that he felt that the repair works to Crane Road should cost just a couple of thousand pounds. Pressure was increased by Mr Stewart, with him threatening to close the road and prevent them from gaining access if the Hundalanis did not pay. This was in August 2000. On 6 September 2000 Mr Stewart wrote again stating this time that the works were to start in October; and that if the Hundalanis did not pay they would not be allowed to use the road. Even though the work had not started, Mr Stewart sent the Hundalanis an invoice for payment of 20% on account; which they refused to pay. The Hundalanis suspected that this was in part to pressure them in agreeing to sell their land.
22. On 24 October Mr Hundalani wrote saying they should have been consulted about the scope of the works and gave an assurance that they would always abide by their legal obligations, stating that the Arup tenants were the cause of the deterioration to the road. The letter went on to object to what was described as confrontation and harassment; complaining that under the guise of repairs and maintenance they were trying to pressure the Hundalanis into paying half of what are "extensive works". In the event the works were postponed until 2002; in part due it seems to further unsuccessful attempts to buy the Hundalanis land. The eventual cost of the 2002 works exceeded £270,000. By letter dated 31 March 2003 Mr Stewart asked for payment of 50%, amounting to £160,275.87 inclusive of VAT, followed up by a series of solicitors' demands.
23. To complete those matters which led up to CRP's claim in the first action; after Ravenseft bought the Arup and Clarke land, they demolished the bungalow, forming a bund of rubble between Crane Road and the vacant bungalow site to prevent travellers squatting there. The vacant site and rubble bund was a magnet to fly-tippers. Large amount of rubbish were illegally dumped against the bund on Crane Road. Mr Hundalani complained. In his letter to Mr Stewart of 23 April 2001 he wrote:-

"Since the demolition of the bungalow you have created lot of problems for us. The whole of Crane Road has become a dumping ground for tyres, bricks, grass, bottles being dumped on the road. Please send one of your local representatives to come and have a look at the site and do something urgently because our access is being blocked. This is a serious problem and we hope you will take immediate action."

24. Ravenseft then erected wooden gate at the junction of Bedfont Road, but the locks were broken and gates forced. Fly-tipping got worse. Ravenseft had the rubbish pushed off the road on top of the bund which it seems encouraged further fly-tipping. By September 2001 Mr Kuntze, who had been handed responsibility for managing the Crane Road works, decided that to prevent it further a chain link and barbed wire fence should be erected down the east side of Crane Road; but for whatever reason this was never done. Fly-tipping continued. The bund including the large quantity of illegally dumped rubbish was then pushed on to the derelict site to enable the Crane Road to be reconstructed, it seems in the hope that Scania, who were going to redevelop their newly acquired land, would remove it themselves. Scania refused. Eventually Ravenseft had to pay for 49 lorry loads of illegally dumped rubbish to be removed, at a cost of £24,225 and are seeking to recover half the cost from the Hundalanis.
25. In 2002 permanent metal security gates were installed at the entrance to Crane Road at a cost of £3,839. CRP claim that there were requested by Mr Hundalanis and that in any event they fall with the definition of maintaining Crane Road. As such CRP claim 50% of the cost from the Hundalanis together with an appropriate sum for professional fees incurred in respect of designing and supervising the 2002 works. These four elements namely the cost of the 2002 works, the removal of fly-tipping, installation of the gates and professional fees are the subject of the first action.
26. As explained Ravenseft had been unable to persuade Mr Hundalani to sell them his land and so had excluded the ransom strip from the sale to Scania. On 28 September 2004 Ravenseft transferred Crane Road along with the ransom strip and the western triangle to L. S. Portfolio Investments Ltd and on 25 October 2004 assigned to it the claims in the first action, giving notice to the Hundalanis on 5 November 2004. On 27 April 2005 L. S. Portfolio Investments in turn transferred the land together with the assigned claims to CRP, giving notice to the Hundalanis on 13 May 2005.
27. Returning to the 2002 works carried out to Crane Road, Mr Hundalani complains that the footpath installed down the western side of the newly constructed roadway not only encroaches on the existing carriageway but extends in front of the entrance to his own roadway. Although Crane Road has been widened and much improved by the 2002 works it has in the process been realigned slightly eastwards. He maintains that this not only causes a 'kink' in the road at its junction with the Hundalanis roadway, impeding use of his roadway but the visual impact of the footpath and a sign announcing the ransom strip beside the entrance to his roadway causes any prospective developer interested in buying his land to believe that the planning authorities will insist on the footpath extending up to his site, with the need for his carriageway to be extended eastwards on to CRP's ransom strip. He says his right of way has been infringed and brings his claim in the second action for a mandatory injunction requiring removal of the footpath, alternatively damages. CRP have made it clear that if there has been any infringement entitling the Hundalani to an injunction or damages in lieu, they will remove the offending part of the footpath.
28. As a number of the matters in dispute on the pleadings were no longer in issue by the time the actions came on for trial, the parties have helpfully agreed a list of issues which define all those matters calling for a Court decision.
29. FIRST ACTION

Issue:

(a) In relation to CRP's claim for half the costs of repair and resurfacing works to Crane Road, is CRP entitled, on the proper construction of the Transfer dated 22^nd February 1979, to recover any contribution in respect of this item?

(b) if the answer to (a) is yes:

(i) in respect of what works, and

(ii) over what area of road, and

(iii) in what amount?

There is no doubt that by 2002 Crane Road was in need of repair. Mr Kuntze, a quantity surveyor employed by Salmon Developments on the redevelopment of the site and the reconstruction of Crane Road, took photographs in July 2001. As he explained in evidence and as the photographs show, the road surface had broken up in parts and was badly potholed. Mr Maccloughlan, the project manager for the redevelopment, confirmed this, although he thought, again as the photographs show, that the two concrete areas laid down by Arup at the junction of Bedfont Road and the entrance to what was the Arup yard were still in a reasonable state of repair. This evidence, which I accept, was not really disputed by the Hundalanis.

30. Taking Issue 1(a) first, Mr Nicholas Dowding QC, Counsel for Mr and Mrs Hundalani submits that CRP is not entitled to be paid anything for the cost of repairing or resurfacing the roadway. He says that at the time of the 1979 Transfer and indeed even by 2002, before the start of the 2002 works, Crane Road was a basic tarmac road laid over brick and clinker hard core with only the two end sections and the widened western edge concreted. He says that the works carried out by Ravenseft in 2002 were a complete reconstruction, which was not necessary or advisable in order to put the road into a good state of repair. He submits that the works were undertaken by Ravenseft because they wanted to rebuild the road to an adoptable standard, in part because this is what they had contracted with Scania to do when selling them the land on the east side for redevelopment, and in part because this would enable Crane Road to be adopted if further development took place.
31. There is no doubt that these works went far beyond that which was reasonably necessary to remedy such lack of repair as existed, whatever allowance one afforded Ravenseft, as owners, to decide on the appropriate remedial course to take.
32. Mr Timothy Moore, the joint highways expert, described the work carried out, which involved extending the carriageway to a minimum of 6 metres, digging down to provide a construction depth for the new road of 1200mm, comprising 600mm of capping material, 150mm sub base, 250mm of cement bound lower base, 100mm of dense bitumen macadam upper base, a 55mm macadam base course, on top of which was then laid 45mm of rolled asphalt. Surface water drainage gullies were connected to soakaways. A 1.5m wide footway was included on the west with street lighting and substantial kerbing on both sides. Having estimated the traffic use, Mr Moore stated in unequivocal terms that the 2002 works were neither necessary nor advisable in light of the condition of the road in 2002 and its identified and anticipated usage. Although repair work was necessary, it would not have necessitated replacement of the roadway with a new construction to highway authority adoption standards; nor would the level of pedestrian usage have warranted the provision of a footway without street lighting.
33. Recognising that on no stretch of the imagination could the 2002 works be classified as "repair and maintenance", CRP no longer contend that the Hundalanis should have to pay 50% of the cost of these works, despite having sent demands for this with the threat of closing the road if the Hundalanis did not pay up. When the proceedings were issued in December 2003, CRP instead reduced its claim to 50% of £37,066.30 for repairing and resurfacing the road and 50% of £39,358.00 for dealing with alleged poor ground conditions. To explain the figure of £37,066.30; faced with Mr Hundalani's blanket refusal to pay for the reconstruction of the road, on 12^th August 2003 Salmon Developments instructed Berkley Consulting, quantity surveyors, to advise on what it would have cost at 2001/2 prices to refurbish the road to a condition suitable for heavy goods vehicles and a life to first maintenance of 15 years. Berkley Consulting provided three options, ranging from cutting out, reinforcing and then applying 100mm type 1 base and 150mm concrete to all defective parts at a cost of £71,960, with a life expectancy of 5-10 years (Option 1); removing the defective material from potholes and infilling with concrete at a cost of £27,250, with a life expectancy of up to 5 years (Option 2); to excavating and removing defective parts and laying concrete over the whole road at a cost of £37,066.30 with a life expectancy of 15 years (Option 3).
34. As Mr Dowding points out, the work involved in Option 3 bears little relationship to the 2002 works actually done and is a purely notional sum, not representing the cost of any works actually undertaken. In the event that CRP are entitled to claim for the notional cost of what would have been necessary or advisable to repair the road, the parties jointly instructed Mr Moore, an expert highways engineers to provide a report on what works would have been necessary or advisable to repair and resurface Crane Road in 2002. Mr Moore reported that although it would only have been necessary to remove and repair the potholes, it would have been advisable to provide a 320mm thick bitumen and asphalt surface or concrete the whole road with a new concrete slab around 180mm thick with surface water gullies; so as to have provided a longer-lasting low maintenance road, which would be marginally more expensive than Option 3. Mr Moore concluded that no further work was required to the underlying ground to support this. Mr Nigel Dight, FRICS, was jointly instructed to report on amongst other things, the cost of the works which Mr Moore reported would have been advisable. His costings were £65,500 for a bitumen and asphalt surface and £57,600 for concrete. Again it should be stressed that these were notional costs; neither specification was even undertaken.
35. In its written Opening Submissions, and without amending the Particulars of Claim, CRP raised its claims for repairs to £70,956.80 (i.e. the cost of Option 1), whilst dropping any claims for remedial works to the subsoil. In its Closing Submissions it claimed in the alternative 50% of £70,956.80, £65,000, £57,600 or £37,066.30; the latter being the only claim pleaded. Both parties recognised that these figures were for what it would have cost in carrying out such works to the whole of the area of the new roadway, including the extensions to the existing roadway added in 2002 and the digging up replacing of the two existing concrete areas which were still in reasonably good condition.
36. As foreshadowed, Mr Dowding submits that all the work being claimed for is notional work and the cost is a notional cost. He says that the 1979 Transfer does not require the Hundalanis to pay half the costs of works which were never carried out. This he submits is clear both from the language of the Transfer and commercial common sense.
37. On the other hand Mr David Holland for CRP whilst accepting that the 2002 work went beyond what can reasonably be described as "repair maintenance and/or resurfacing", says that the undoubted disrepair had been remedied. Crane Road, required resurfacing. He submits that whatever works were carried out, provided those works have in fact remedied the need to maintain repair and/or resurface the road, CRP is entitled to the reasonable costs, notional or not, of those works which would have been required to put the road in the required condition. He says that it cannot have been the intention of the parties to the 1979 transfer that the Hundalanis could avoid paying anything simply because CRP chose to upgrade the road. He further submits that it is not right to regard the costs being claimed for as notional. CRP has in fact incurred substantial costs. He says that it cannot be disputed in the light of Mr Moore's report that the road needed to be resurfaced, which it has been.
38. Although the work covered by these alternatives was not carried out, CRP disputes that it is claiming for the costs of "notional" or "hypothetical" work but submits that it is simply that the cost actually incurred by them to which the Hundalanis are liable to contribute is capped at the level of the notional reasonable cost of repairs. CRP submits that it cannot be disputed in the light of Mr Moore's report that Crane Road had to be resurfaced and that in the course of the 2002 works it was resurfaced.
39. What is the correct principle? Is it that CRP can only recover for the cost of work covered by the Transfer if the work was actually carried out and the cost incurred? Or is it that it can recover for what those costs would have been when, instead of carrying out the work it has carried out more costly improvements rendering the "repair" work unnecessary?
40. Mr Dowding referred to two early authorities: Mayor of London v. Barnes [1896] 12 TLR 135 and Moore v. Todd [1903] 68 JP. 43 which he submitted were in point. Mayor of London v. Barnes concerned a covenant by the lessee to pay a proportion of the costs of putting and keeping a flint road in proper repair and condition, such proportion to be certified by the City Architect. Instead of repairing the road as a flint road, the landlord macadamised it, with the City Architect then certifying the tenant's share of the costs of that work. The jury found that it was not reasonably necessary to macadamise the road. The Court of Appeal held that the cost being claimed for amounted to turning the road into something wholly different and as such did not fall within the covenant. Mr Dowding points out that the Court did not award any lesser sum to reflect for the cost of repairing the road. However it is not only unclear from the report what if any repairs would have been necessary if the road was to have been maintained as a flint road, but the only claim there was for the certified proposition of the cost of macadamising the road. Nothing less was claimed as a fall-back
41. In Moore v. Todd, likewise a short report, the Defendant had covenanted with the Plaintiff, each of whom were co-frontagers to the roadway, that he rather than the Plaintiff would be responsible for the cost of maintaining and repairing the roadway unless and until taken over by the local authority. In that case the local authority took upon itself to make up the road to adoptable standard and apportioned the costs among the frontagers, including the Plaintiff, who, having paid his share, claimed to recover it from the Defendant under the terms of the covenant. It was held by the Court of Appeal that the work carried out by the Local Authority could not be said to amount to maintaining and repairing the roadway as then constructed and therefore did not fall within the covenant. The covenant did not extend to sums expended by the local authority in converting the roadway into a street. Again there is no suggestion from the report that the road as originally constructed was in disrepair. The only issue was whether the covenant extended to paying for upgrading the road to a public street.
42. Of greater assistance is the Court of Appeal decision in Scott v. Brown [1904] JP.89, where the headnote reads:-

"A covenant to contribute a proportionate part of the expenses of repairing and maintaining a road until undertaken by the local authority, does not extend to contributing a proportion of the expense of an entire reconstruction of the road. In construing such a covenant regard must be had to the standard of the condition of the road at the time when the covenant was entered into, and the obligation is to contribute a proportionate part of the expense of putting it into a state of repair corresponding to the standard contemplated or existing at that time. Where the road is reconstructed for the purpose of its being taken over by the local authority, the covenantor is liable to contribute a proportionate part of such expenses as would have been incurred in putting it into that state of repair, but is not liable to contribute to the expenses of such work as amounts to reconstruction."

43. It is necessary to analyse the report. The Plaintiff there sought to recover a little over £300 from the Defendant as the apportioned part of the expenses of repairing or maintaining a private road. The Defendant denied liability, asserting that the sum had not been spent on repair and maintenance as required by the covenants. As the report makes clear, the road was in much need of repair. The Local Council agreed to take it over as a public highway provided it was first put in a proper state of repair suitable for adoption. The specification of work required by the Local Authority included (as the report states) – "a great deal of new work as well as repairs – including a new gradient and new manholes to the services and different materials." The Plaintiff having paid for the work, his surveyors then apportioned the amount payable by the Defendant. The Defendant refused to pay claiming that these sums did not fall within the covenant; although admitting liability to contribute towards the costs of repairing and maintaining the road. The Claimant lost at first instance; Joyce J. holding that in construing the covenant regard must be had to the nature of the road as originally constructed and to its general condition when the covenant was entered into. He held that it did not extend to paying a proportion of the cost of creating what was an entirely new road.
44. On appeal, the Defendants' Counsel acknowledged that the Defendant had always been willing to pay his apportioned share of any repairs and suggested there ought to be an enquiry as to how far the sum was expended in putting the road into repair. Collins MR, delivering the only reasoned judgment stated this:-

"The obligation was certainly not that which the plaintiff sought to put upon the defendant, and therefore obviously the sum the plaintiff claims is not the sum he can recover in this action. On the other hand, the defendant is not entitled to go scot-free. Therefore what has to be ascertained is, what was the sum which, having regard to the standard of the condition of the road at the time when the covenant was entered into, ought reasonably to have been expended by the defendant in bringing the road into such condition as corresponded to the standard contemplated or existing at the date of the covenants – the reasonable costs of bringing the road by repair, and not by reconstruction, up to the standard, having regard to the condition of the road at the time when the covenant was entered into. This is the standard to which the road ought to be brought up. What was the cost of making it up to that standard? And What share of that cost is it that the defendant is liable for? That must be calculated on the basis I have explained. The specification of the surveyor has nothing to do with it at all. That was not the standard on which the defendant's liability to repair was originally based. When that amount has been ascertained we shall be able to deal with the costs of this appeal. If the parties cannot agree on the amount, the case must go to an official referee to award the amount on the lines laid down."

45. The report does not reveal what the resultant figure was nor how it was arrived at. Mr Dowding makes three points. First, he says that in that case what the Court was stating that the defendant had to pay was simply for those items of the work actually carried out which constituted repair and not a notional sum which would have had to be spent to put the road into the required state of repair. In other words, if all the work was reconstruction the Defendant would not have been liable for anything, irrespective of the fact that in carrying out the work, the road was put in a state of good repair. Second, he says that if that is not right and the Court was requiring the official referee to determine what would have been the cost of putting the road in a proper state of repair in accordance with the covenant, this was because it was conceded by the Defendant's Counsel. Third, he says that in any event liability has always to be governed by the terms of the particular covenant, and that in the current case, he says, the covenant is only to contribute to the actual costs incurred in maintaining and repairing the roadway.
46. As to his first point, although the report is short, there is some support for the submissions that some part of the works carried out should be classified as repair, separate and distinct from the new work for which the Plaintiff was no entitled to charge. However Mr Holland submits that the language used by Collins MR goes somewhat wider than requiring the Official Referee just to identify which of the works actually carried out constituted repairs, when the Judge said that – "What has to be ascertained is what was the sum which having regard to the standard of the condition of the road at the time when the covenant was entered into ought reasonably to have been expended in bringing the road into such condition as corresponded to the standard contemplated or existing at the date of the covenant."
47. It is unclear in my view whether the Judge was there referring to money which was actually expended on repairs or was saying that the Defendant should have to pay a notional sum reflecting what would have been spent if all that had been done was to have repaired the road to the required standard.
48. Apart from Scott v. Brown, Mr Holland referred to Fluor Daniel v. Shortlands [2001] 2 EGLR 103 @ pp. 110-111; Postel v. Boots [1996] 2 EGFLR 60 @ p. 64 and Scottish Mutual Assurance plc v. Jardine Public Relations Ltd 1999 EGCS 43. In Fluor Daniel, the passage relied on from the judgment of Blackburne J is that if a landlord wishes to carry out repairs that go beyond those for which the tenants, given their more limited interest, can be fairly expected to pay, then, subject always to the terms of the lease, the landlord must bear the additional costs himself. However that case was concerned with whether the landlord would be entitled to recover by way of service charge for the costs of a series of proposed works yet to be carried out. As I read the judgment the works were either ruled in or out. There was no issue of charging a lesser notional sum for works otherwise outwith the covenant. In Postel v. Boots one separate identifiable item in the costs sought to be recovered by the landlord under the service charge was held not to be recoverable. Again there was no question of the landlord seeking to charge a notional sum for repair work which could have been done but was not because the landlord chose replacement rather than repair or maintenance.
49. In Scottish Mutual Assurance plc v. Jardine Public Relations Ltd the landlord sought to recover by way of service charge for extensive long term, rather than short term, repairs to a flat roof, which the Deputy Judge found were not reasonable and proper, having regard to the tenant's interest. It appears from the judgment that the Deputy Judge allowed the landlord to charge for those elements of the works undertaken which were short term. I do not read the judgment as allowing the landlord to charge a notional sum for short term repairs which were never carried out but obviated by the more extensive works undertaken.
50. Why, it may be asked should it make any difference to the issue of whether any costs can be recovered, if CRP was to have decided to dig up the whole road and sub base before laying a new surface rather than apply a new surface after cutting out and filling in the potholes? In both cases the disrepair has been remedied. The answer, in my view, lies in part in the terms of the particular covenant itself, which here, in my view, presupposes that repair and maintenance costs have actually been incurred. It is for this that there is a liability to contribute. If nothing has been incurred for what can fairly be described as "repair maintenance and resurfacing" within the terms of the covenant then I do not see how the obligation arises. In other words the liability does not arise just because work has been done which has avoided the need to repair the road. Covenants of this sort are intended to operate in a way which other parties can apply, without the necessity to have to engage expert quantity surveyors. The owner of the dominant tenement may ordinarily expect to see and satisfy himself of the repair work carried out, and the invoices for the work and satisfy himself that the work being charged for was appropriate and to standard. If he were to be liable for a notional sum for work which was never carried out and for which there will have been no invoice and no opportunity to inspect the work the owner of the dominant tenement will have no means of satisfying himself of this. Instead, there will be every inducement on the owner of the servient tenement to inflate the notion sum to recoup as far as possible to cost of the new works. A good illustration in the context of landlord and tenant would be where although the roof was in disrepair for which the tenant was liable to contribute, the landlord decided to remove it and build an additional storey. Can the landlord charge the tenant for what it would have cost to repair the existing roof? I think not.
51. In my judgment in answer to the question raised by Issue 1(a), CRP can only charge for those elements of the work actually undertaken which would have been incurred if the road had merely been repaired in accordance with the covenant, and not for work which would have had to have been done had the road been so repaired, but was avoided by its upgrading.
52. To answer issue 1(b), it is necessary first to determine what "repair maintenance or resurfacing works" were necessary or advisable in 2002; and then to see what elements of the 2002 works as undertaken were such.
53. "Repair" like "maintenance" is an ordinary English word. It is distinct from improvements. In determining whether work is repair or maintenance regard is to be had to the general character and condition of the roadway at the date of the 1979 transfer and its then anticipated use as showing what the parties are likely to have had in mind as the sort of work for which the Hundalanis were to be liable to contribute. Maintenance in the context of this covenant involves anticipatory and likely less costly work to prevent the roadway falling into disrepair, attending to the verges and the like to facilitate its use. The inclusion of the word "resurfacing" in the 2^nd Schedule does not give it any wider effect to that encompassed by clause 1(b). It does however make it clear, if there were any doubt, that Crane Road had been surfaced and that maintenance and repair may well require the road to be resurfaced from time to time.
54. Mr Moore, as well as concluding that the 2002 works were neither necessary nor advisable, was instructed to consider what repairs and/or resurfacing was necessary in 2002 for its continued use by heavy goods vehicles. He observed that not only had the repair and maintenance works carried out by Arup in 1980 proved effective for over 17 years, with the concrete areas being in a reasonable state after 20 years, but from examining the 2001 photographs there was no evidence of any deep seated failure in the underlying ground. Although it might be said that all that was necessary in 2002 was to clean out all potholes and roll in tarmac, Mr Moore, rightly in my judgment, concluded that this would only be short-lived unless combined with a programme of ongoing maintenance; and that, instead, it would have been advisable to have carried out the repairs to a greater specification by concreting the full length of the Crane Road apart from the existing concreted areas, without any necessity to excavate the ground beneath. Mr Moore takes the view that these repair works should have been slightly thicker and with a 150m type 1 sub base than that encompassed in Berkeley Consultants Option 3. Mr Moore favours this in preference to the more simple repairs envisaged by Option 2 because, as he says, future maintenance "could be problematic", whatever this means. However Mr Dight explains in his report that if one takes into account the need to repeat the more simple repairs at the end of 5 years any prudent landowner would select Option 3 with a life expectancy of 15 years. The same reasoning will apply to Mr Moore's slightly more expensive specifications. The test is, in my view, one of what a prudent landowner would fairly and reasonably undertake if he had to bear the costs himself (see Plough Investments Ltd v. Manchester City Council 1989 1 EGLR 244 @ p. 248). There is no absolute requirement for concrete as Mr Moore explains. Those parts which he says should have been resurfaced could equally well have been repaired by a layer of bitumen and asphalt, slightly less thick than the top layers applied to Crane Road in 2002, but sufficient for its continued use by heavy goods vehicles.
55. Mr Dowding submitted that if the Hundalanis are liable for any repair costs the amount should be capped at what as reasonable landlords CRP and their predecessors would have spent if they had maintained the road in the period after Arup left, rather than let it fall into disrepair. He says that the overall costs of repairing the road by 2002 will have increased by the failure to maintain it in the interim. There is however no obligation on the owner of a servient tenement to repair the right of way, absent, as here, any positive covenant to do so (see eg. Carter v. Cole Court of Appeal transcript 11 April 2006). If £X was fairly and reasonably spent on repairing the road in 2002 in the light of its then condition, there is no basis for reducing this because of any omission by the landowner to have repaired it previously.
56. Since the 2002 works in fact included resurfacing with asphalt and bitumen CRP should in my judgment be entitled to recover 50% of the cost of that element of the 2002 works; allowing for Mr Moore's recommendation of a slightly thinner layer if all that had been done was to have "repaired and resurfaced it" in accordance with the 1979 Transfer.
57. The area in respect of which the Hundalanis can be charged cannot include the areas of the roadway extended by the 2002 works nor, it seems to me, the two concreted areas, unless because of differential heights with other resurfaced parts or for other reasons it would have been more practical and cost effective to have resurfaced those areas at the same time. It should however in my judgment, otherwise include the area extended by Arup's 1980 works, which the Hundalanis had for over 20 years always regarded as part of their right of way and accept should be treated so far as their financial obligations in the same way as the area covered by their express grant. It should be possible, with the assistance, if necessary of Mr Dight, for the parties to agree the appropriate figure.
58. Issue 2:

What, if any, sum is CRP entitled to recover in respect of the removal of fly tipping?

CRP are claiming 50% of £24,255.00, being the actual costs of removing 49 lorry loads of fly tipped rubbish dumped down Crane Road after the Clarke bungalow had been demolished in 2001 and the site left vacant. CRP say that fly tipping had been endemic in the area well before the bungalow was demolished and the site left open. Whilst accepting that fly tipping increased from April 2001, CRP say that there was no actionable wrong in Ravenseft leaving the site unattended, such that third parties might unlawfully trespass to dump rubbish, particularly so having unsuccessfully attempted to stop it by installing wooden gates. They submit that no nuisance was created and that there is no evidence that the Hundalanis' right of way was ever impeded. So far as the right to charge for its removal, they say, first, that it was removed at Mr Hundalani's specific request; and second that its removal was a prerequisite to the road being repaired, or was necessary "maintenance" of the right of way to facilitate its use and enable the roadway to be repaired, and that therefore under the terms of the 1979 transfer the Hundalanis must pay 50% of the expenses as "repair and maintenance" costs.

59. The Hundalanis on the other hand say, first, that the cost of removing fly tipped material cannot be classified as "repair and maintenance", which is only concerned with remedying physical defects in the roadway itself. Second, in any event, they say it was created by Ravenseft leaving the site derelict, thereby inviting rubbish to be dumped. They say that this amounted to or would, if not removed, have amounted to a nuisance or derogation from grant for which Ravenseft was liable. In any event, they say, that even if the cost of removing fly tipped material could come within the terms of the 1979 covenant, such costs had to have been reasonably and properly incurred (see Morgan v Stainer [1993] 2 EGLR 73) and that these costs were not; having arisen from Ravenseft leaving the site derelict, without taking sufficient steps to stop the dumping. Finally, they say that there never was any suggestion when Mr Hundalani objected to the fly tipping that he would bear half the costs of its removal and no basis for Ravenseft believing that he would. Ravenseft had simply pushed the rubbish left on the road back on to the bund, later pushing it all back further on to the Scania site, in the hope that Scania would pay for its removal when they cleared the site for redevelopment. The Hundalanis say that Ravenseft's decision in 2002 to have it removed from the Scania site when Scania refused had nothing to do with them.
60. Although, as explained by a number of the witnesses, there was a general problem of fly tipping in the area, and indeed there had been some fly tipping on Crane Road when Mrs Clarke lived in the bungalow and the site appeared from Bedfont Road to be occupied and tidy, the problem bore no resemblance to what happened after April 2001 when the bungalow had been demolished and the site left derelict, with the rubble from the bungalow used to form a bund to stop travellers. I have had the advantage of seeing photographs taken in June or July 2001, which show a filthy state, with large amounts of rubbish, including old tyres, dumped against the bund and spilling down onto Crane Road.
61. By March 2002, when the rubbish was removed, 49 lorry loads of fly tipped material had been dumped. Such fly tipping as had occurred in the past was nothing like this. Mr Stewart accepted that no fly tipping had been reported to him until after the bungalow had been demolished.
62. By April 2001 the situation was becoming intolerable for Mr Hundalani. On 23 April 2001 he wrote to Mr Stewart in the following terms:-

"Since the demolition of the bungalow you have created a lot of problems for us. The whole of Crane Road has become a dumping ground and there are tyres bricks, glass, bottles, being dumped on the road. Please send one of your local representative to come and have a look at the site and do something urgently because our access is being blocked.

This is a serious problem and we hope you will take immediate action."

63. I have no doubt that Mr Hundalani was fully justified in what he wrote. Although judging by the later photographs he could still use the roadway, it was becoming constricted. Dumped rubbish was spilling on to the road. Before long, unless dealt with, the road was likely to become blocked. Mr Stewart said that it was only because Mr Hundalani complained that they took any action. Had it been left to Ravenseft they would have left the fly tipping to continue until they were in a position to fully develop the site.
64. Mr Hundalani's letter is also relevant in showing in my view, that he was not envisaging having to pay for its removal. Not only was he there complaining that Ravenseft had created the problem, but this part of the letter followed on from an earlier paragraph asking for confirmation that they were not paying for the 2002 work to Crane Road itself.
65. I do not accept Mr Dowding's submission that the covenant to pay 50% of the costs of maintaining the road is confined to dealing with physical defects in the roadway itself. In principle removal of dumped material on the road could be classified as maintenance, just as much for example as the cost of clearing drainage gulleys or, in the case of a building, clearing gutters. Removal of rubbish in an appropriate case can be fairly regarded as necessary work to facilitate use of the access way.
66. However, where as here the site was left derelict, with Ravenseft deciding that rather than put up fencing the better course was to leave it for the time being, knowing it would be used as a dumping ground, in the hope that the developers would remove it at their own expense, then I do not see why the Hundalanis should have to pay for its removal from the Scania site when the latter refused to. Mr Hundalani never agreed to this. Nothing was said or done by him which could have justified any belief that he would.
67. Ravenseft must have appreciated soon after the fly tipping increased that this was not a one-off occurrence and that the derelict site, coupled with visible bund of rubble from the demolition of the bungalow would be a magnet for illegal fly tipping. Although they made an unsuccessful attempt to stop it by installing wooden gates which were simply forced open, nothing further was done to prevent it. Quite the reverse, piling up the rubbish against the bund in a way which was visible from Bedfont Road would have attracted more fly tipping. Mr Kuntze, who was at that time responsible for overseeing the site, gave instructions on 13 September 2001 for a chain link and barb wire fence to be erected along the eastern side of Crane Road to prevent further fly-tipping. I have no reason to suppose that this would not have been effective. Fly tippers would no longer have been able to dump their rubbish against the existing rubbish piled up on the bund. However nothing was in fact ever done, no fence was put up. Mr Kuntze could not provide any explanation for why not. It may be that it was decided not to incur the expense and leave matters as they were, simply piling the rubbish on to the bund, with a view to removing it all, along with the other rubbish when the site was cleared up for redevelopment; a cost which, as I said Ravenseft hoped would be picked up by Scania.
68. To have left a derelict site in this way knowing that large amounts of rubbish would be continually and probably increasingly dumped on the Hundalanis right of way would in my judgment have constituted an actionable nuisance by Ravenseft once the right of way became impeded. The well known House of Lords decision in Sedleigh–Denfield v. O'Callaghan [1940] AC 880, shows that a landowner can be liable for continuing a nuisance caused by trespassers, if, with knowledge, he fails to take any reasonable means to bring it to an end; see particularly the speeches of Viscount Maughan at pages 887 and 894, Lord Atkin at page 897 and Lord Wright at pages 904-5.
69. Hilton v. James Smith & Sons (Norwood) Ltd [1979] 2 EGLR p. 44, applying Sedleigh-Denfield, concerned a case of a landlord being sued by a tenant for derogation from grant and nuisance by the obstruction of a right of way caused by other tenants of the landlord which the landlord could prevent by enforcement of covenants taken from those tenants. In the course of his judgment Ormrod LJ said this:-

"However the matter is framed in law, it seems to me to be plain that there comes a stage when an occupier of land, who is well aware that his tenants, or his licensees, are behaving in such a way as to obstruct a private road and thus to interfere with the rights-of-way that he has granted to other tenants, when the occupier of the roadway comes under a duty to act in the matter."

70. Although in that case the landlord was in a position to prevent the right of way being obstructed by enforcing the covenant against co-defendants, I can see no reason in principle why, similarly, an owner of land cannot be sued by the grantee of a right of way if he leaves his land in such a state as will continually attract large quantities of fly tipping, thereby obstructing the right of way and does nothing to prevent it. To have simply pushed the rubbish off the road and on to the bund from time to time was only a temporary measure. In the process this would have simply made it more attractive for further rubbish to be dumped, as must have happened judging by the amount which had to be removed in less than 12 months. The 1979 covenant does not in my judgment permit Ravenseft to pass on part of the expense which they had to incur in what amounted to abating a nuisance for which they as landowners had become liable.
71. I also agree with Mr Dowding's submission that for any maintenance costs to be chargeable under the 1979 covenant they had to be reasonably and properly incurred (see Morgan v. Stainer). It was not in my judgment reasonable to allow such large quantities of rubbish to be continually dumped knowing, as Ravenseft must, that it would likely block the road and expect the Hundalanis to contribute to the costs of its removal later from the Scania site, after Ravenseft had pushed it there in the hope that Scania would take it away. The Hundalanis are not in my judgment liable for this cost.
72. Issue 3:

What, if any, sum is CRP entitled to recover from the Hundalanis in respect of the installation of gates?

CRP are claiming 50% of £3,839 being the cost of installing metal gates at the entrance to Crane Road. The only pleaded claim is that they were installed as part of the costs of repairing and maintaining the road. However Mr Stewart said that they were placed there only at the insistence of Mr Hundalani, that he was the only person who benefited from them, that he was told in advance what they would cost and did not object. Mr Kuntze said that the request was made orally to Mr Stewart and also he understands to Mr Whittle the site manager. Mr Whittle did not give evidence.

73. There were no such gates at the Bedfont Road end at the date of the 1979 Transfer or at any time prior to 2002. Installing new gates where none existed cannot be regarded as "maintaining or repairing" the roadway.
74. As to whether the Hundalanis are liable for having requested the gates, they say that when the evidence is examined there is very little detail as to when Mr Hundalani requested these gates, said to have been in around January 2002, that the ensuing correspondence does not support this, that the decision to install the gates was taken by Ravenseft independently of the Hundalanis and that, not only had Mr Hundalani not agreed to pay for the gates, but Mr Stewart knew at the time that he had not.
75. The contemporary documents provide the best and in my view most reliable insight into what happened. There is no doubt that at some point and it may well have been in January 2002 Mr Hundalani raised the installation of gates as a means of stopping any further fly-tipping. Mr Stewart it seems contacted Mr Maccloughlan. Mr Maccloughlan's note of a meeting or conversation with Mr Kuntze on 13 February 2002 refers to the possibility of two sets of gates for which quotes were awaited. A record of a meeting on 14 February 2002 at Denis Wilson Partnership with the contractors carrying out the 2002 works, refers to Mr Hundalani having requested that gates be positioned on Crane Road just past the Scania access. Quotes for two sets of gates were sought by Mr Kuntze on 25 February 2002. Although not entirely clear, it may well have been that only one of the two sets of gates, if installed, was being regarded as for Mr Hundalani's benefit, since in a letter from Mr Kuntze to Mr Maccloughlan dated 1 March 2002 he wrote as follows:-

"Site Security

I am of the view that the Contractor will remain responsible for site security during the currency of the Works. Once those Works are completed, responsibility will pass to Scania (UK) Ltd and Ravenseft industrial Estates Ltd as regards Plots 4 & 5 and Crane Road respectively. Fletcher King Howard will have to advise S(UK)L. As you know, I have asked you to obtain a price from the Contractor for gates to be installed across the road."

This suggests that Ravenseft regarded one of the sets of gates, presumably at the Bedfont Road end, as their responsibility.

76. Having obtained the quotes Mr Kuntze wrote to Mr Hundalani on 19 March 2002 as follows:-

"As you know, significant fly-tipping has occurred on the site and the risk of further fly-tipping will remain after the current construction work has been completed.

We have obtained a Quotation from our Contractor for a set of gates to be installed across Crane Road at the back of the Bedfont Road bell-mouth. I enclose a copy of the Quotation for your information.

I understand that you have suggested that a set of gates should also be installed to the south of the entrance into Plots 4 and 5. Would you please advise whether or not you require these gates to be installed as well as the Bedfont Road set.

Your prompt response would be appreciated, as our Contractor will only be on site for a few more weeks."

77. Mr Hundalani never replied. As a result on 25 March 2002 Mr Kuntze only gave instructions for one set. On 28 March, that is three days after instructions had already been given for these gates, Mr Stewart wrote to Mr Hundalani as follows:

"The road works contractors will be moving off site in about 4 weeks time and so we need to take a decision very soon on whether or not to install the gates across the entrance of Crane Road to prevent any reoccurrence of fly tipping. Scania will be gating their own site, so these gates are really only for your benefit. Do you wish us to arrange for the installation of these gates, the cost has been quoted at £3,840 plus VAT, if so would please let me have a cheque payable to Ravenseft Industrial Estates Limited for the above sum shortly.

In the long run I think this is a very sensible measure as the cost of removing fly tipping has run into many thousands of pounds."

78. Formal instructions were then given on behalf of Salmon Developments for the gates to be installed at the entrance to Crane Road where the bellmouth narrows into the road itself.
79. No cheque was provided by Mr Hundalani. It appears that on 9 April Mr Stewart spoke to him about where the gates were being erected; since on 10 April 2002 he wrote to Mr Hundalani enclosing a plan with a suggested position for the gates in which he said – "following our conversation yesterday, is this where you would like the gates installed? If so please confirm and let me have the appropriate cheque as per my letter of 28 March". The plan shows a point south of where the contractors had been instructed to install them. Mr Stewart said in evidence - "I surmise from this letter that Mr Hundalani agreed to the provision of gates, at the cost stated in my letter dated 28 March 2002 in a conversation with me on 9 April 2002". Mr Hundalani never provided a cheque or replied in writing to the letter. As can be seen from the photographs the gates were not positioned where it was said Mr Hundalani had wanted them but at the entrance to Crane Road, where the contractors had been previously instructed to position them.
80. Mr Stewart was throughout trying to get Mr Hundalani's agreement to install the gates at his sole cost. It is, I think clear, from the contemporary correspondence that he never agreed to pay. This is, in my judgment, supported by the fact that the pleaded claim is only for 50% of the costs of the gates on the basis that they relate to the repair and maintenance of the road not on the basis of any specific agreement to pay. The original Defence stated that the Defendants were not liable as the gates were not situated on any part of Crane Road at the time of the Transfer and the costs did not relate to repair and maintenance of the right of way. The Amended Particulars of Claim did not raise any alternative claim based on any express or implied promise to pay.
81. I agree with Mr Dowding on this point. There is no basis for treating the installation of these new gates, where none existed before, as a cost of "maintaining, repairing or resurfacing" the roadway.
82. Issue 4:

What, if any, sum is CP entitled to recover in respect of fees?

The Hundalanis agree that CRP is entitled to a reasonable sum for professional fees if reasonably incurred in relation to repair maintenance or resurfacing work for which CRP is entitled to recover 50% of the costs. The current claim is for 50% of the total fees incurred for the entirety of the 2002 works as reduced by the contractor to £11,500.

83. I have been provided with little guidance for what if any fees would need to be incurred if all that was required was to resurface the road with a layer of bitumen and asphalt. Mr Maccloughlan said that even if one were only repairing potholes in a road of this length and of this importance, being used regularly by heavy goods vehicles, most developers would probably take professional advice. I accept this, although the amount of any fees is likely to be substantially less than the amount being claimed.
84. To assist the parties in reaching agreement over an appropriate sum for CRP to recover in respect of the repair work which I have allowed for it would in my view have been reasonable to have engaged a professional to assess the conditions of the road and the necessary resurfacing to put it in good repair according to the standard of Crane Road at the time, to obtain and vet the estimates, to select the contractor and certify the work when completed.
85. THE SECOND ACTION

Here the Hundalanis have brought proceedings objecting to the footpath and the realignment of Crane Road to the east in 2002. As with the First Action, the parties have agreed a list of issues, necessarily starting with determination of the extent of the Hundalani's right of way immediately prior to the 2002 works.

86. Issue 5:

(a) What was the extent of the right of way over Crane Road to which the Hundalanis were entitled by express grant or prescription immediately prior to the new road works in 2002?

(b) Insofar as the Hundalanis were entitled to such right of way by prescription, for what purposes were they entitled to use it?

In 1980, as I said, Arup widened Crane Road to the west by clearing the vegetation and laying a concrete strip and kerb as well as concreting an area at the bellmouth with Bedfont Road and at the entrance to the yard. From that point on the Hundalanis used the widened road extending up to the kerb on the west as their right of way. Because of the protruding Arup office building at the southern end immediately to the north of the entrance to the Arup yard, the Hundalanis did not drive over the area to the east of a line between the north east corner of the Hundalanis roadway and the projecting corner of the Arup office building. With that exception I am entirely satisfied that the Hundalanis have used the extended carriageway as of right for well over 20 years. The fact that Arup knew that the Hundalanis were using the extended road and did not object cannot amount to the uses being by permission. Indeed by the conclusion of the evidence CRP had effectively accepted this, conceding that there is no evidence to contradict the Hundalanis prescriptive claim.

87. As to 5(b), there is no longer any Issue. The parties accept, in my view correctly, that any prescriptive right is to be treated as an adjunct to the express right, exercisable for the same purposes, on the same terms and subject to the same obligations as set out in the 1979 Transfer. This means that that area of the roadway for which the Hundalanis must contribute towards the repair element in the 2002 works should extend to those parts of the current carriageway over which they already had an express or prescriptive right of way.
90. Issue 6

Did the Hundalanis consent to the carrying out of the 2002 road works or have they otherwise lost any right to complain about such work by estoppel, laches or acquiescence?

The issue here relates to the installation of the footpath down the western side of Crane Road which the Hundalanis claim is an actionable interference. Clearly if the Hundalanis consented to it before the 2002 works were carried out this claim must fail. CRP said they did at a meeting on site on 11 January 2002. The Hundalanis say they did not.

91. Mr Jonathan Maynard FRICS was appointed as joint expert to produce a series of site plans of Crane Road showing the limits of the roadway before and after both the 1980 and 2002 works. As Mr Maynard explains in his report, Crane Road has migrated slightly eastwards over time so that it no longer attaches to the Hundalanis roadway in the same configuration as it once did, although in the process it has become generally wider. Comparing the carriageway as it is today with the dimensions of the express right of way granted in 1979, it is wider throughout its length. Compared to the position immediately prior to 2002 works, that is after the roadway had been extended by Arup in 1980, there has been a net gain from the 2002 works of more than 66 sqm. However the greater part of this arises from widening the entrance from Bedfont Road, as is shown by Mr Maynard on his plan 5E. Although the width of the carriageway was increased by about one metre in the northern part it has decreased slightly in the southern part as a result of the footpath on the west being more extensive than the widening on the east.
92. Expert Transport planning evidence was given by Mr Howard Potter for the Hundalanis and by Mr Stephen Jones for CRP. Mr Jones was also able to provide factual evidence on the genesis of the footpath having worked as project manager for the Denis Wilson Partnership until August 2001 on traffic and transport issues relating to Ravenseft's planning applications, dealing primarily with the junction works at the Belmont Road entrance. In his discussions with the County and Borough Councils prior to granting the Section 278 consent it was decided to locate a footpath on the west side of Crane Road rather than the east. Mr Jones explained that whilst not a requiring it as a term of any consent, the County Council were fairly insistent on a footpath into Crane Road. Indeed a 1.5m footpath is shown on the section 278 drawing coming into Crane Road on the west side. The Section 278 drawing does not purport to show its intended length as its purpose was to show the Section 278 road works at the Bedfont Road end and not a plan of the site to the south. A reason for the footpath on the west side was to tie in with the bus stop on Bedfont Road to the west of the Crane Road entrance.
93. Mr Hundalani says that there was no purpose for it other than to raise the value of CRP's ransom strip. It serves no useful service to his site at present and was, he suggests, put there to make it more likely that the planning authorities would require it to be extended along the Hundalani roadway to his site, if he were to get consent to redevelop it. This would then make his existing roadway too narrow without a developers being able to acquire CRP's ransom strip. I do not accept this, having heard evidence from both Mr Jones and Mr Stewart. It was obvious if the Hundalani land was to be redeveloped for warehousing or the like, as the Hundalanis wanted, that full modern utility services would need to be provided. The cheapest and less destructive route for this would be down the line of the western footpath; avoiding the much deeper roadway itself having to be dug up or, if the footpath were to run down the east, cutting across the pipes and service ducts to the Scania site. Both experts agreed that the 1.5 metre footpath width was suitable for this. In any event traffic requirement to allow for heavy goods vehicles necessitated at least a 450mm width between the kerb and the western boundary fence to allow for vehicular overhang. I will return later consider how far the access to the Hundalani land has been affected by the footpath.
94. On 10 October 2001 Mr Hundalani received a full set of drawings of the planned upgrading of Crane Road, from which it was obvious that there were to be a footpath down the west side. Mr Hundalani said he did not notice this, that he was not concerned to study the drawings at that time, as he was still negotiating to sell his land to Ravenseft. I do not accept this. The plans were sent to him so that he could satisfy himself over the construction of the road. His concern at the time was not only to negotiate a price for his land, which was necessarily affected by the sufficiency of the access, but, importantly, to protect his access for redevelopment of his land if the sale did not go through and also negotiate access rights for the Globe land to the west, if the proposed option in favour of Ravenseft was not exercised. As was obvious from observing him giving evidence, Mr Hundalani is an astute person. The redevelopment of his land had been a major preoccupation of his for some considerable time. He regarded Ravenseft as tough commercial negotiators. I am sure that he would have examined these drawings. His solicitors, Payne Hicks Beach were also provided with the drawings. It is clear from the correspondence between Payne Hicks Beach and Ravenseft's solicitors, D J Freeman, that Mr Hundalani wanted the ability to lay on modern service facilities to his land if the sale did not go through.
95. A meeting was arranged with Mr Stewart and Mr Hundalani on site on 11 January 2002. As was made clear in Payne Hicks Beach's letter to D J Freeman of 10 January 2002, amongst other things, the meeting was to discuss the route of the new road and the services which were to be laid underneath; there being a concern at that time that as part of the redevelopment of the Scania site, Crane Road might be diverted to the east at its northern end. It was, as I have said, highly important to Mr Hundalani, if Ravenseft would not agree to his terms for the sale of his land that he would be able to secure full access and services rights both for his land and if possible the Globe land.
96. Mr Stewart said in evidence that

"Mr Hundalani was always kept informed of the plans for this development and acquiesced. Indeed, I recall a meeting on 11 January 2002 when this was discussed with Mr Hundalani. I recall the meeting went on for about five hours and although the majority of the time was spent discussing whether Land Securities might care to buy out Mr Hundalani's interest in the Hundalani land we also discussed the proposed works to Crane Road, In the course of these negotiations Mr Hundalani had asked if we might put services for his use under Crane Road. We were not prepared to permit this unless he picked up the bill and he declined to do so at the time. However, to enable him to put the services in cheaply at a later date and without having to pull up the whole of Crane Road which could be pulled up in the event that Mr Hundalani wished to place services under it and could be replaced at a lesser cost than would be incurred in pulling up and replacing the road. I recall that at our meeting I said to Mr Hundalani that he could perhaps put his services under the footpath at some time in the future and indicated where this would run. I also recall that Mr Hundalani agreed to the positioning of the footpath as recorded in my letter to him dated 14 January 2002.

I think it was also at the meeting in January 2002 that Mr Hundalani commented to me that the new road scheme was a very good idea and would enhance the value of his own property. I therefore never considered that Mr Hundalani was unhappy with the position of the footway until I received his defence in the first action and his particulars of claim in the second action".

97. Mr Hundalani denies that he ever agreed or consented to the footpath; though significantly he did concede that Mr Stewart had said to him at the end of the meeting in his portacabin that Ravenseft would lay a footpath under which Mr Hundalani would be able to negotiate a right to lay services without the need to dig up the road. This would have been important to Hundalani. He knew that it would add considerable value to his land if he could sell it with full access and service rights. Indeed by the end of the meeting it had become increasingly unlikely that Ravenseft would agree his terms for purchase of his land. Having observed Mr Hundalani when giving his evidence, I have concluded that what has driven his case is a reluctance to face up to the commercial realities of having to negotiate with CRP for better access and service rights to unlock the development value of his land and a belief that CRP, and Ravenseft beforehand, have adopted an unduly harsh position. He may have thought that litigation might put pressure on them to come to a more sensible arrangement; rather than it being the case of Ravenseft putting in the footpath without his express or tacit consent. I say this for a number of reasons.
98. It is fair to point out that Mr Stewart's recollection cannot be that good as he at one time stated that the meeting took place at Land Securities offices, later accepting that it must have been in Mr Hundalani's portacabin. Nevertheless within three days of the meeting he wrote to Mr Hundalani on 14 January in the following terms:-

"Following our meeting on Friday, I have this morning written to Mr Steere to advise him about the boundary encroachment and the need to replace fencing. I have asked him to speak with you directly on this matter.

The other site issue we discussed at our meeting related to Crane Road and for the record I confirm that your access rights will not be prejudiced following the reconstruction works. If anything the access way will be wider than it is at present. In order to minimise the costs of reconstructing Crane Road, it is not as we discussed on Friday our intention to put new service conduits under the roadway, the services for Scania are being taken directly from Bedfont Road.

In order therefore to avoid the need for digging up the road at some future stage should you wish to negotiate a services easement across Ravenseft's land we will as agreed with you on site allow sufficient room (probably 1.5 meters) along the western boundary adjacent to plot 3 (Globe), for the installation of services in future. Pending that eventuality this area would be maintained as a footpath. It was disappointing that after such a long period of time our negotiations have ended."

99. There is no reason to suppose this was not an entirely genuine letter to record the position as Mr Stewart understood it. Mr Hundalani never replied contradicting it. He gave a copy to his solicitor, Mr Berry and spoke to him about the meeting. There is nothing in Mr Berry's letter to D J Freeman of 18 January disputing what Mr Stewart wrote, even though this letter refers expressly to Mr Stewart's previous letter. Work started on the roadway on 15 January and finished at the end of May. Mr Hundalani went to the site almost every day. He saw the footpath being constructed but never once raised any concerns. In fact he never complained throughout 2002. He sought to excuse this, whilst at the same time a maintaining that it interfered with his access, by saying that he was still in negotiations to sell his land and did not want to insist on its removal as it would result in expensive litigation. I do not accept this. He was concerned at that time about his access, hence his solicitors attempt during the later unsuccessful negotiation to get ownership of the ransom strip as a term of any conditional sale of his land to Ravenseft. Had he thought he had justifiable grounds for complaining about the footpath, I have no doubt he would have deployed it to strengthen his case for getting rights over the ransom strip. He did not. He was informed by D J Freeman on 13 June 2002 that Ravenseft would not give him any such right. He did not even then complain about the footpath.
100. I am satisfied that Mr Hundalani made it clear to Mr Stewart at the meeting on the 11 January that he approved of the footpath down the western just side as he did of the upgrading of Crane Road; seeing that this made it easier for services to be laid on to his land at a later date. Had Mr Hundalani objected there would in my judgment have been no difficulty in revising the drawings and excluding the continuation of the footpath along the southern most quarter of the New Crane Road; or even run it down the eastern side only as far as the Scania access. Mr Stewart said in evidence that if Mr Hundalani had objected they would have done something different. Both Mr Maccloughlan and Mr Kuntze said that it would have been possible to have gone ahead without the footpath in the southern section had Mr Hundalani objected. Mr Kuntze explained that this would have cost less. I accept this evidence. It is commonsense.
101. I find that Mr Hundalani did make it clear to Mr Stewart at their meeting on the 11 January 2002 that he approved of the siting of the western footpath. This, coupled with his failure to raise any objection either to Mr Stewarts' letter of 14 January 2002 or at any time during the footpath's construction, when it could have been curtailed or redesigned, prevents him from complaining now.
102. Issue 7:

If the answer to issue 6 is no, did the construction of the footpath consist an actionable infringement of the right of way?

Despite my conclusion to issue 6, the point having been argued at length and with the benefit of a site visit, I should answer this question hypothetically.

103. In my judgment it did not. I regard Mr Hundalanis concerns over the minor realignment of the roadway as exaggerated, having had the advantage of the site visit and hearing from both Mr Jones and Mr Potter. As for Mr Potter when cross examined he showed, in my view, a lack of real conviction in his support of the Hundalanis position. The professed 'kink' in the road was barely perceptible on my site visit. If one projects a straight line north from the western verge of the Hundalani roadway the foot path barely encroaches at all. Even if the Hundalani roadway was made up there would need to be a minimum 450mm verge retained on either side. There has in my judgment been no interference whatever in the Hundalanis current use of Crane Road. It has never been said that any vehicles using the road have been impeded or inconvenienced in any way. Indeed both Mr Jones and Mr Potter said in evidence that in practical terms the point at which two heavy goods vehicles could sensibly pass on Crane Road was no less advantageous to the Hundalanis now than before the 2002 work were carried out; that is before the Arup offices were demolished. Although Mr Potter said that two lorries could just pass where the offices were, he accepted that sensibly this would have been at a point further north. Mr Jones did not accept that and said that before the 2002 works the southern section of the road which was restricted in width to allow for one lorry at any time was even longer. In other words if the interference is measured by the position at which heavy vehicles can pass, on Mr Potter's evidence the footpath has made no difference. On Mr Jones's evidence the present position has improved.
104. Although the visual impact of the ransom strip is more marked by a combination of the footpath on the west, directing one's eye to the east if focussing on the road, and a notice referring to CRP's ownership of the ransom strip on the east, it would be obvious to anyone seriously interested in developing the Hundalani land that the Hundalani roadway is too narrow for industrial redevelopment, absent an acceptable traffic light system. The access is in practice insufficient for two lorries to pass allowing for the necessary 450mm leeway one each side between the edge of the road and the fencing. Furthermore, if the redevelopment was likely to involve the employment of people using the bus services, the planning authority would also likely require a footpath along the Hundalani roadway. Having seen the site and the vicinity, I accept Mr Jones's evidence that the prospect of getting planning permission for residential use on the Hundalani land, thereby requiring a narrower accessory for cars, is negligible. Mr Potter described it as 'unlikely'.
105. Mr Dowding submitted that although there will be no actionable interference if the existing way can be substantially and practically exercised as conveniently now as before (see e.g. the passages at paras 58-59 of the judgment of Patten J in Perlman v. Rayden; transcript 7 October 2004), the servient owner has no right to alter the route unless such right was an express or implied term of the grant (Greenwich Healthcare National Service Trust v. London and Quadrant Housing Trust [1998] 1 WLR 1749 at p. 1754). He submits that if the servient owner has no right to alter the route, by the same reasoning he cannot avoid what would otherwise be an infringement by providing an alternative route, however convenient that may be, although this may afford a reason for not granting an injunction.
106. Correct as these submissions seem, they are somewhat unrealistic when all that has happened is a relatively minor realignment of a road in the course of its improvement, but with no overall restriction in its use. One can in my view only sensibly answer issue 7 in conjunction with issue 8 and 9. Issue 8 is that if there has been an actionable infringement should an injunction be granted to remove the whole or part of the footpath? Issue 9 is if no injunction are the Hundalani's entitled in principle to damages in lieu or at common law? By "in principle" I read this as meaning more than nominal. CRP accept, as they must, that the Hundalanis are entitled to full and unrestricted access over the new made up road. Their use of Crane Road for both current and likely future purposes has not been interfered with in any way. It can be substantially and practically exercised now as conveniently as before. Lorries are not in practice required to deviate when entering or leaving the Hundalani roadway other than possibly in the most minor respect. CRP stated that if the Court found that there had been an actionable in interference entitling the Hundalanis to an injunction or damages in lieu they would immediately remove the offending part of the footway. Even if Mr Hundalani had not consented to the footpath I would not have granted any injunction nor awarded any damages in lieu.
107. In any event if the minor realignment might have constituted an infringement Mr Hundalani's consent to the footpath before it was constructed makes wholly unconscionable for the Hundalanis now to be seeking any injunction or damage in lieu. Their consent to the footpath also estops them from now seeking to claim any damages at common law. In any event, in my judgment they have suffered no loss from any obstruction of this right of way. It is instructive to see how the claim for damages was put in paragraph 14 of the Re-amended Particulars of Claim:-

"By reason of the matters aforesaid, the amount of space available to the Claimants to obtain access by vehicles to their land over which the Claimants have rights of access had been and remains reduced. Further, in order to achieve a satisfactory link between the Roadway and the Claimants' land in a redeveloped form, the Claimants will either have to use the Offending Footway Section as a road suitable for vehicular traffic or will have to pass over the Further Strip and a strip of land which lies to the east and north east of the Claimant's Land which strip is included within the land in the approximate location shown coloured yellow on plan 4 attached hereto ("the Ransom Strip"). The existence of the Offending Footway Section has affected the redevelopment of the Claimants' Land because it will necessitate the acquisition of rights over land not in the Claimants' ownership".

108. The existence or absence of any footpath would not solve the Hundalanis problem which is one caused by the Hundalani roadway being too narrow to allow for two lorries using it at any one time, as Mr Handalani himself accepted in his letter to the Spelthorne Borough Council 26 November 2001 and as was made clear to Mr Hundalani by prospective purchasers when he attempted to sell his site in 2004. Mr Potter also made clear in his report that, absent residential use, which was unlikely access to the Hundalani land for commercial development requirement Mr Hundalani to negotiate rights over the ransom strip or the triangular piece owned by CRP on the west.
109. Issue 10:

What rights and obligations do the Hundalani's (and their successor in title) have in respect of that part of Crane Road which is not subject to the right of way as it existed immediately before the 2002 works?

CRP accepts, as it must, that having installed the footpath on the basis that the access way would be realigned slightly eastwards, the Hundalanis have a right of way over all of the new Crane Road. However I decline to answer the question as to what their future financial obligations are towards the repair maintenance and resurfacing of the new road, other than to say that the same obligation should apply to the whole of the roadway. It is not immediately obvious in the light of my decision on Issue 1, why the repairing obligations should extend to 50% of all future costs of maintaining repairing and resurfacing the roadway in its upgraded state, at least whilst their site is undeveloped and they have no requirement for the upgrading. They never asked for it. The costs may well far exceed costs of maintaining the roadway in its pre 2002 state. This should not, however, be taken as saying that they will not be required to contribute to these costs. The road will now require less frequent repairing. The Hundalanis will have been able to use the new roadway, which is undoubtedly an improvement on the old. The issue has not been fully argued out before me. Any repairs are only likely to arise some considerable time in the future.

110. I trust that, but for the last issue, I have answered all of the live issues remaining in both actions. I am most grateful to both Counsel for the clarity of their submissions.