England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY

		Cardiff Civil Justice Centre 2 Park Street Cardiff, CF10 1ET
		26/07/2017

Mr Justice Newey :

1. This case concerns two neighbouring properties in Eastgate Street, Cowbridge, in the Vale of Glamorgan. The first claimant, England Environmental (Northern) Limited ("England Environmental"), is both the freehold owner of 75 Eastgate Street ("Number 75") and the proprietor of a lease of what was until recently a flat there, while the second claimant, Glamorgan Law LLP, is said to occupy part of Number 75 as a periodic tenant as well as being England Environmental's solicitors. The defendant, Arthur Jones & Sons (Contractors) Limited ("Arthur Jones"), owns 73 Eastgate Street ("Number 73"), which is immediately to the east of Number 75.
2. The main issue in the proceedings is whether Number 75 has the benefit of a right of way along a small lane that runs northwards from Eastgate Street on land belonging to Number 73 ("the Lane"). I also have to decide what, if any, relief should be granted to Arthur Jones in respect of points at which buildings constructed by owners of Number 75 are said to intrude into Number 73.
3. A Mr Nigel England ("Mr England") is the sole director of England Environmental and he also holds 80% of the company's shares. The only other shareholder is his brother Martyn.
4. The directors of Arthur Jones are a Mrs Linda Rogers and her husband Neil. 42.4% of the shares in the company are held by Mrs Rogers and the balance by a company called Bethuels Court Properties Limited in which Mrs Rogers has a 90% shareholding. The remaining shares are held by a Mrs Gillian Davies, Mrs Rogers' older sister.
5. Sadly, there is no love lost between the sisters. There was a falling-out between Mrs Davies on the one hand and Mrs Rogers and their mother on the other in 1994. So far as I know, Mrs Davies and her mother did not speak to each other again before her mother's death in 2005, and there has been no contact between Mrs Davies and the Rogers for many years. Mr Rogers told me that he had not spoken to Mrs Davies or her husband Bryn since 1993. Mrs Davies said in evidence that she hated Mr and Mrs Rogers. For their part, Mr and Mrs Rogers accused Mrs Davies of being motivated by malice and included copious criticisms of her in their witness statements. I might add that Mr Rogers also attacked quite a number of other people in strong terms in his statement.
6. At the start of the twentieth century, Numbers 73 and 75 were both owned by a Mr Thomas Rees. Following, however, Mr Rees' death on 25 May 1900, the properties were each sold. The conveyance of Number 75 has not been found, but it can be seen from the subsequent conveyance of Number 73 ("the 1901 Conveyance") that that of Number 75 provided for that property to have the benefit of an easement in these terms:

"at all times hereafter and for all purposes connected with the use and enjoyment of the said messuage shop and hereditaments … to pass and re-pass with or without horses, and other animals carts and carriages over and along the roadway on the eastern side of the said messuage shop and premises owned and occupied by the said David Giles [i.e. the purchaser of Number 75] up to the doorway leading into the yard of the premises owned and occupied by the said David Giles as at present existing And also to an opening not exceeding eight feet in width which the said David Giles his heirs and assigns are authorised to make in the eastern boundary wall of his and their garden at a point commencing close to the present northern boundary of a building once a cottage forming part of the premises owned and occupied by the said David Giles …."

7. Number 75 was re-sold in 1919. The conveyance ("the 1919 Conveyance") effecting the transfer, which was dated 4 July 1919, included provision for the purchaser to enjoy an easement in essentially the terms of that granted in 1900.
8. By the 1960s, Number 75 was owned and occupied by a Mr and Mrs Edwards. At this stage, the property comprised a building that had once been a chapel linked by a covered walkway to an old cottage lying to the north with, beyond that, a garden. The former chapel included shop premises facing southwards onto Eastgate Street where the Edwards carried on a butcher's business. Immediately to the west of the covered walkway, between the chapel and cottage, there was a small yard.
9. Number 75 could be accessed from the south through the shop front. There were also three entrances into Number 75 from the east. All three entrances were reached from the Lane. The most southerly of them ("the Southern Doorway"), halfway or so along the eastern side of the former chapel, served the main house and was quite substantial: Mrs Rogers explained that it resembled a big chapel doorway and that there was a large step next to it. It led into a hallway from which there was access to the shop and a sitting room on the ground floor and to stairs up to living accommodation above. Further along the Lane, a smaller door ("the Northern Doorway") opened into the walkway between the chapel and the cottage. Finally, rather further to the north, there was an opening into Number 75's garden. The Northern Doorway would seem to have been the "doorway leading into the yard" mentioned in the 1901 Conveyance and the opening into the garden will presumably have been created pursuant to the provision for an "opening not exceeding eight feet in width".
10. Then, as now, Number 73 was owned by Arthur Jones, which had originated in a partnership formed in 1939 by a Mr Arthur Jones and his sons that traded as builders and undertakers. Like Number 75, the property included shop premises fronting onto Eastgate Street; these were used as an ironmongers. More importantly for present purposes, a yard and buildings towards the back of Number 73 were used for a builders' merchants business that Mr Arthur Jones' sons Glyn and Thomas were carrying on. Access to the yard was gained along the Lane.
11. By the late 1960s, the existence of the opening into Number 75's garden was inconveniencing the builders' merchants business. In particular, it meant, I gather, that a fork-lift truck could not be used in the yard at Number 73. Mr Glyn Jones therefore suggested to the Edwards that they renounce their right to use the opening in return for being given a garage somewhat closer to Eastgate Street. That proposal was ultimately reflected in a deed dated August 1974 ("the 1974 Deed"), although it seems that the garage had been built by at any rate 1971. The deed provided for the sale to Mr and Mrs Edwards for just £1 of the land on which the garage now stood, together with a right of way along the Lane for the benefit of the property conveyed. The deed also, however, made provision for the release by the Edwards of rights described as having been granted by the 1919 Conveyance. The rights in question, which a recital explained were in respect of "a doorway and an opening in the eastern boundary wall of the … garden of the adjoining property", were quoted in a schedule in the terms found in the 1919 Conveyance. It seems reasonably clear that the doorway in question was the Northern Doorway. While, therefore, the Edwards were gaining a garage (from which there was evidently a door into their garden), they lost at that point the right to use the Northern Doorway as well as the previous opening into the garden.
12. It is the claimants' case, however, that the Edwards nonetheless continued to use the Northern Doorway. That is not the recollection of Mrs Rogers, who worked for the family business between 1964 (when she left school after taking "O" levels) and mid-1976. Mrs Rogers said that she never saw any member of the Edwards family use the Northern Doorway. The only time, she said, that she could remember the Northern Doorway being used by anybody was when she was at a party at Number 73 and someone knocked on the door of the Northern Doorway; she had a recollection, she explained, of Mrs Edwards having trouble drawing back bolts on the inside of the door. On the other hand, Mrs Rogers was living in Cardiff from 1972 (when she married) and did not work at Number 73 after 1976. She returned to Cowbridge to visit her parents, but she would see them at their home elsewhere in the town rather than at Number 73. There is, moreover, other evidence that the Northern Doorway was used by the Edwards after the date of the 1974 Deed. Most compellingly, the Edwards' son Clive, who is now aged 58, said that there was never a time when his parents stopped using the Northern Doorway and that he himself used it all the time. He referred in particular to having gone in and out of the Northern Doorway because he left his motorbike in the yard lying between the former chapel and the old cottage. It is fair to say that Mr Clive Edwards was in the Navy from 1980, but he said that he would typically return to Number 75 at the weekend when not at sea.
13. Mr Clive Edwards' recollection of these events is, I think, likely to be more reliable than Mrs Rogers': he, after all, lived at Number 75. I therefore find that the Edwards continued to use the Northern Doorway on a regular basis despite the 1974 Deed, albeit doubtless much less often than the Southern Doorway.
14. On 29 September 1982, the Edwards sold Number 75 to a Mr Vince Burke and his wife Barbara, who used the shop for a greengrocery business carried on under the name "Cornucopia". By September of the following year, Mr Burke had drawn up plans for work at Number 75 which would have involved the demolition of the old cottage and the building of a new kitchen. To judge by the plans, the Northern Doorway was to be kept and a "new door and frame" fitted. On 20 July 1984, however, Mr Burke submitted an application for planning permission for a different scheme. The old cottage was again to be demolished, but it was now to be replaced by a "greenhouse retail area". In addition, the garage was to be extended and converted into a store room extending into Number 75's garden, the shop was to be enlarged to encompass the whole of the ground floor of the former chapel, and the living accommodation upstairs was to become a flat reached by means of outside metal steps descending northwards from the northern side of the former chapel between the "greenhouse retail area" and the eastern wall of Number 75. A plan showed no opening in the position of the Northern Doorway but a "New opening in stone wall for new double gates 2M high" through to the Lane a little north of the metal steps and just south of the new store room.
15. Planning permission was granted for the development on 16 October 1984, and it is likely to have been completed during 1985. With its conversion into a store room, there was no longer any door from the former garage into the Lane, but double gates were installed in an opening ("the Gateway") introduced where the plan had indicated. Despite the plan, the Northern Doorway remained in existence, but the Southern Doorway was at some stage blocked up.
16. On 18 July 1986, Mr and Mrs Burke granted a 99-year lease of the flat ("Number 75A") that had been created at Number 75 to a Mr Nicholas Barnicott and a Ms Kerry Connelly. The lease ("the Flat Lease") appears to have been drafted by a firm of solicitors in which Mr Burke's brother was a partner. When registration of the lease was finally concluded several years later, it provided for the lessees to have the right:

"to go and repass over and through the path at the side of the property coloured brown and other areas shown edged blue on said plan so as to give proper access to and egress from the demised premises".

The "path at the side of the property coloured brown" was the Lane.

17. It is apparent from documents obtained from the Land Registry that the right of way was not expressed in quite these terms when the Flat Lease was first executed. A letter that solicitors acting for Mr Barnicott sent to the Land Registry in 1989 included this:

"[O]n looking through the Lease, we believe that there is an error in the first schedule in that the lessees right of way which allows him entry to the property, is not defined clearly enough.

We have almost reached agreement with the lessors Solicitors regarding an amendment to cover this matter…."

The Flat Lease seems subsequently to have been amended at least by the insertion of the words "at the side of the property coloured brown". I cannot see, however, that the additional words can have made any difference to the right of way that the lessees were to enjoy. It must always have been clear that they were meant to gain access to Number 75A by means of the Lane and the Northern Doorway and/or the Gateway.

18. Mr Burke said this about access to Number 75 in his witness statement:

"I knew that by blocking up the garage I was giving up the right of way that existed and asked Mr [Glyn] Jones if it was possible to come to some arrangement. He listened to what I had to say and we came to what I have since described as 'a Personal Gentleman's Agreement that was not in writing'.

Mr Jones agreed to give us permission to use an opening in the cottage wall but only once a morning for the purpose of loading or unloading of a vehicle connected to the use of the business owned by me and my then wife on condition that the new extension and store would only be used for the business I ran from the shop and that I would block up the small doorway [i.e. the Northern Doorway]."

19. When, however, Mr Burke came to give oral evidence, it became apparent that his recollection of events was by no means as clear as his witness statement might have suggested. Far from confirming that he had converted the garage into a store room on the basis of an agreement with Mr Glyn Jones, he could not initially remember the garage at all. He also explained that he could not recall how much he and his wife had paid for Number 75, the names of the vendors, his first planning application, why that application featured the Northern Doorway, signing the Flat Lease or whether the Northern Doorway was closed up. Asked about having reached an understanding with Mr Glyn Jones, he adhered to the idea that it involved using the Gateway just once a day, but he thought that there would have been occasions when the Gateway was used more than that, did not suggest that the understanding required the Northern Doorway to be blocked up and (as I understood him) accepted that the understanding could have arisen because deliveries to the Gateway were causing difficulties for Number 73: "We probably got in the way one day," he said.
20. It was not, and could not have been, suggested that Mr Burke was in any way an untruthful witness. Even so, I do not think that I should attach any significant weight to his evidence. Understandably, given the passage of time, he does not remember the relevant events at all well. Further, the account given in his witness statement is in some respects inherently improbable. If, for example, he had agreed to block up the Northern Doorway and to use the Gateway only pursuant to the supposed "Personal Gentleman's Agreement", how could he have entered into the Flat Lease, which required access along the Lane? Why, too, was the Northern Doorway not in fact blocked up? Mr Burke would also, surely, have been very ill-advised to exchange a legal right to access Number 75 via the garage for a Gateway usable only if and so far as permitted by a "Personal Gentleman's Agreement" such as is mentioned in Mr Burke's witness statement.
21. That is not to say that Mr Burke and Mr Glyn Jones did not arrive at some understanding in relation to use of the Gateway. It is, for instance, quite possible that, use by "Cornucopia" of the Gateway having created difficulties for Number 73, Mr Burke said that he would try to limit deliveries to one a day. I do not accept, however, that Mr Glyn Jones can be said to have either denied that the Burkes were legally entitled to use the Gateway or given them any permission to do so. I consider, moreover, that the Burkes are likely to have used both the Northern Doorway and the Gateway (once it had been created) during the period that Mr Burke was living at Number 75.
22. By the time the Flat Lease was granted, though, Mr Burke had left Number 75: he had separated from his wife and moved to London. The "Cornucopia" business continued, however, to be carried on there, by the Burkes' son Simon and perhaps Mrs Burke. In August 1986, Mr Burke transferred Number 75 to his wife and she in turn transferred it to Mr Simon Burke in 1991.
23. By this stage, Arthur Jones had granted a lease of Number 73 to J.B. (Builders Supplies) Limited ("JB"), a company that Mrs Davies and her husband had bought off the shelf. The lease was finally executed in 1991, but it was for a seven-year term from 1 May 1987. Mr Glyn Jones, Mrs Davies' and Mrs Rogers' father, was by then 76 years of age and had decided to retire. Mrs Davies said in evidence, however, that her father continued to come to Number 73 every day after JB had gone into occupation. For her part, Mrs Rogers spoke of her father going to Number 73 for about a year after handing over the premises to JB (in other words, until mid-1988). The Davies' daughter Karen came to work for JB when she left school in July 1987, having previously helped her grandfather in the shop at Number 73 on Saturdays and in school holidays since 1981.
24. It can, I think, readily be inferred that occupants of Number 75A will have used the Lane to access the flat. Since, unsurprisingly, the Flat Lease conferred no right to pass through the shop at Number 75, the Lane will have afforded the only means of reaching Number 75A. It is also likely, as it seems to me, that residents of Number 75A will have made use of both the Northern Doorway and the Gateway.
25. There is a degree of dispute as to the extent to which Number 75A was occupied. Mr Rogers' researches have revealed that, while Mr Barnicott was on the electoral register in 1987, he is not shown as being registered for 1988 to 1994. The point is also made that he was in the Merchant Navy and so away at sea. Mr Rogers further explained that he has been told by Ms Connelly (now Mrs Davies) that she parted from Mr Barnicott within six months and had left Number 75A by January 1987.
26. While, however, recognising that Mr Barnicott was in the Merchant Navy, Ms Karen Davies spoke of him having been "always around". She and her mother referred, moreover, to other occupants of Number 75A. Mrs Davies said that there were "a few different people" there, that there were always parties in the flat and that occupants were in and out of it all of the time. Ms Davies, too, mentioned parties and said that the flat pretty much had someone in it all the time. Between them, Mrs Davies and her daughter made specific reference to individuals called Andy and Wendy and a brother of Ms Connelly called Mark.
27. In the circumstances, I find that in the period after the grant of the Flat Lease in July 1986 the Northern Doorway and Gateway were regularly used by occupants of the flat to gain access to and leave it. I also accept that the Burkes are likely to have used the Northern Doorway and the Gateway on a regular basis during this period. Mrs Davies spoke of the Burkes making use of the Northern Doorway and her daughter described how "Cornucopia" would pull their van into the Gateway. She said that the van would sometimes cause inconvenience because it protruded into the Lane.
28. On 2 April 1993, Mr Simon Burke sold Number 75 to a Mrs Carole Monaghan, who ran a gift shop there until the beginning of 1996. On 31 January 1996, Mrs Monaghan sold Number 75 to her ex-husband Terence. The previous month, on 12 December 1995, Mr Monaghan had bought Number 75A from Mr Barnicott.
29. It was during the period that Mrs Monaghan owned Number 75 that JB installed a removable bollard near the southern end of the Lane which, when in position, must have prevented vehicles from driving up it. Mrs Davies and her daughter attributed the bollard to concerns about security and said that those at Number 75 had been given keys so that they could unlock the bollard. On balance, I accept that keys were indeed supplied. The evidence to that effect was the more persuasive because Ms Davies made the point in cross-examination without having been in Court to hear her mother say something similar earlier in the afternoon.
30. Mr Monaghan opened an antiques shop at Number 75 and lived in Number 75A. Sometime before 2002, he also seems to have changed the door in the Northern Doorway. The new door was much smarter than its predecessor, bore the number "75" and had a letter box. Postmen will presumably, therefore, have come up the Lane to deliver post to Number 75.
31. In 2002, Mr Monaghan, who had by now remarried, embarked on an extension to Number 75. The "greenhouse retail area" that the Burkes had constructed was replaced by a two-storey building whose eastern flank stood on the eastern edge of Number 75. The Northern Doorway no longer led into an open area but instead to a hall from which the first floor could be reached to the right by internal stairs taking the place of the outside metal steps. The new stairs were also accessible from a door immediately to the south of the Gateway.
32. The extension was evidently under construction by late 2002. On 18 November 2002, Ms Davies wrote to inform her grandmother, Mr Glyn Jones' widow who was a director of Arthur Jones and by now held 42.4% of its shares and most of those in Bethuels Court Properties Limited, of "the building work which is being undertaken by our next door neighbour". She went on to say;

"I think he may be building on your land especially with the likes of gutters and soil pipes, he seems to be building directly on the boundary."

33. On 17 December 2002, Mr Monaghan wrote to JB, with a copy to Arthur Jones. He began as follows:

"We wish to draw your attention to the damage that was caused to our building today by a delivery lorry of one of your suppliers of sand. We are very concerned about the excessive size of your delivery lorries using the lane, which is not a made-up road."

Later in his letter, Mr Monaghan complained about a skip close to "our own entrance gates" and also said:

"Continued obstruction to the access lane – this must also stop. We observe this point, but is one sided."

34. The correspondence led Mr Rogers first, in about December 2002, to speak to Mr Monaghan and then, in February 2003, to write to him. No copy of that letter is available, but it is referred to in these terms in a 2004 letter that Mr Rogers sent to solicitors then acting for Mr Monaghan:

"As mentioned in correspondence dated 5^th February 2003 the area in question is clearly delineated in Plans attached to the [1974] Deed. The easement and precise rights granted in the deed are clearly explained, as are the dimensions of the roadway over which your client is entitled to pass.

You will see in the letter dated 5^th February 2003 that the Company [i.e. Arthur Jones] did not seek to make an issue of Mr Monaghan's unauthorised use of the roadway to build an extension to the rear of 75, Eastgate.

Reference is however made to the fact that your client had blocked-in his garage doors creating an enclosed building and that an entrance had been created in the boundary wall of 75, Eastgate. Having regard to a duty to the Tenant of 73, Eastgate it was important to stress the need for your client to adhere to the precise terms of the rights and easement granted in respect of the roadway."

35. Mr Rogers gave evidence about his conversation with Mr Monaghan. He said that he had told Mr Monaghan that he had to adhere to the terms of the 1974 Deed, but not that he could not use the Northern Doorway or the Gateway. He explained that, at the time, he still believed that Mr Monaghan had a right to go up and down the Lane to the former garage.
36. Mr Rogers also gave evidence to the effect that Mr Monaghan had told him that the Davies were deliberately and continuously obstructing his use of the Lane. For their part, Mrs Davies and Ms Davies each denied such conduct, Mrs Davies attributing the complaints voiced in Mr Monaghan's 17 December letter to "tit for tat".
37. On balance, I think the likelihood is that the Davies clashed with Mr Monaghan over his use of the Lane, but that they never went so far as to deny that he was entitled to use it or to prevent him from doing so. Mrs Davies and Ms Davies said that there was a common understanding that Number 75 had a right of way, and the manner in which Mr Monaghan framed his complaint about obstruction tends to confirm that that was a shared premise. The essential difficulty seems to have been that Mr Monaghan and JB both needed vehicles to navigate a relatively narrow lane. Mrs Davies spoke of Mr Monaghan taking advantage. Mr Monaghan may well have seen the Davies in a similar way. Ms Davies spoke of the Monaghans not having liked the fact that JB had big lorries going to and fro.
38. A "Memorandum of Sale" dated 7 May 2004 records that Mr Monaghan had agreed, subject to contract, to sell Number 75 to Mr England. The sales particulars for the marketing of the property had said that the property included a "self contained first floor flat" with "its own side entrance" and explained:

"A shared side lane leads to the Flat entrance and to double gates opening to a brick paved parking and garden area."

39. At this stage, there was briefly controversy because Mr Bryn Davies was said to have made an allegation that the buildings on Number 75 extended into Number 73's land. Solicitors instructed by JB retracted any such allegation, however.
40. On 5 June 2004, Mr Monaghan died. Mrs Valerie Monaghan (Mr Monaghan's second wife) and a Ms Tania Baird were registered as the proprietors of both Number 75 and the Flat Lease on 25 February 2005, and on 19 April 2005 they transferred Number 75 to England Environmental and the Flat Lease to Mr England's wife Marianne. Mrs England in turn transferred the Flat Lease to England Environmental in 2008.
41. A photograph taken on 1 May 2005 reveals wheelbarrows and a cement mixer in the Lane in the vicinity of the Gateway. The Davies maintained, not implausibly, that they had been placed there to draw potential customers' attention to the builders' merchants further down the Lane. Be that as it may, however, (a) it is doubtful whether anyone would have been seeking to use the Gateway at this particular point, (b) it would not have taken much to clear the objects out of the way and (c) there can be no question of their having interfered with pedestrian access to Number 75.
42. By 1 May 2005, England Environmental had knocked down the wall at the rear of Number 75 and so gained access to a track that nowadays branches off Melbourne Close to the north of the property (although its right to use the track was not regularised until recently). Subsequently, a car park opening onto the track was constructed in what had previously been Number 75's garden and Number 75A was converted into an office. England Environmental also added an extra storey to the store room that the Burkes had built to create a two-storey office building.
43. It is to be noted that the drawings submitted in June 2006 in connection with an application for planning permission showed both the Northern Doorway and the Gateway (as "Existing gate") as well as the new car park.
44. It is evident, I think, that England Environmental, like the Monaghans before it, used the Lane to gain access to Number 75. As was pointed out by Mr Gregory Tee, who appeared for Arthur Jones, Mr England said little on this subject in his witness statement. However, the evidence as a whole indicates continued use. Mr England himself repeatedly referred to use of the Lane during his cross-examination. He explained that he understood himself to be entitled to access the Lane, asked rhetorically how he was otherwise going to get to Number 75A and said that he did not recall access being blocked until Mr Rogers put a gate across the Lane (albeit that his mother seems to have been asked to intercede to try to promote harmonious relations at one stage).
45. Mr and Mrs Rogers each gave evidence to the effect that in about July 2007 they found that JB had erected a wire gate from a point between the Northern Doorway and the Gateway to a wall on the other side of the Lane. The Davies denied the existence of a fence, but the likelihood, I think, is that the Rogers are right about this.
46. By 2008, JB had been loss-making for at least a couple of years. In August 2008, at a time when Mr Bryn Davies was suffering ill health, the company ceased trading and a winding-up order was made against it on 5 March 2009. It is perhaps fair to record that £550,000 of the deficiency as regards creditors given in the Official Receiver's report to creditors was accounted for by "Directors loan".
47. Arthur Jones had re-taken possession of Number 73 in September 2008. Mr Rogers has subsequently been insistent that Number 75 has no right of way over the Lane. Eventually, in November 2014, he placed wooden fencing in front of the Northern Doorway and padlocked the gates in the Gateway. In about April 2015, he erected a gate across the Lane towards its southern end.
48. Mr Beech of Glamorgan Law LLP gave evidence, which I accept, to the effect that Glamorgan Law LLP went into occupation of Number 75A as a periodic tenant in late 2014.
49. Against this background, Mr Gwydion Hughes, who appears for the claimants, contends that Number 75 is entitled to a right of way over the Lane on the basis of the doctrine of lost modern grant. Under this doctrine, an easement can be acquired by 20 years' continuous use "as of right". Such user must (in the traditional Latin phrase) be "nec vi, nec clam, nec precario". In R (Lewis) v Redcar & Cleveland BC (No 2) [2010] UKSC 11, [2010] 2 AC 70, Lord Rodger observed (at paragraph 87) that the sense of these words could be captured by saying that the user must be "peaceable, open and not based on any licence from the owner of the land". User, Lord Rodger went on to explain (in paragraph 90), is "only peaceable (nec vi) if it is neither violent nor contentious". Here, Mr Hughes submitted, the requisite 20 years' user as of right is to be found within the 34-year period between the date of the 1974 Deed and Arthur Jones' re-taking of possession of Number 73 in September 2008.
50. For his part, Mr Tee broke down the 34-year total into five phases. As regards the earliest, from 1974 to 1982, he pointed out the Gateway did not yet exist and argued that any use of the Northern Doorway was too infrequent to give rise to a right of way. Taking next the period from 1982 to 1986, Mr Tee again said that there would not have been much use of the Northern Doorway and submitted that use of the new Gateway was pursuant to the (limited) permission conferred by the "Personal Gentleman's Agreement" to which there was reference in Mr Burke's witness statement. Moving on to 1986 to 1993, Mr Tee contended that the permission relating to the Gateway continued and that, so far as the Northern Doorway is concerned, the evidence is not such as to justify the conclusion that Number 75A was occupied. With Mr Tee's fourth phase, from 1993 to 2005, he said that use was contentious and so "vi". Finally, with respect to the period from England Environmental's acquisition of Number 75, Mr Tee maintained that there is insufficient evidence of use and also suggested that there was contention.
51. Having regard, however, to the facts I have found earlier in this judgment, I cannot accept Mr Tee's submissions. The likelihood, as it seems to me, is that there was continuous use of the Lane to gain access to Number 75 (a) through the Northern Doorway on foot between about 1974 and 2008 and (b) via the Gateway on foot and in vehicles between 1985 and at least 2007. I also, on balance, consider that such user was "nec vi, nec clam, nec precario". In 2007, as mentioned in paragraph 45 above, JB probably placed a wire gate across the Lane that may have interfered (albeit briefly) with access to the Gateway. Even then, however, pedestrian access to Number 75 will have remained undisturbed and uncontentious. In any case, there will already have been more than the 20 years of use that the doctrine of lost modern grant requires.
52. In the circumstances, I shall grant declaratory and injunctive relief along the lines of that sought in the particulars of claim. As regards damages, it is clear that there has been interference with the right of way that I have held to exist, but no specific loss has been proved. That being so, as Mr Hughes accepted, it could not be right to award more than a modest amount by way of damages. In my view, the appropriate sum is £500 for the claimants jointly.
53. Turning to the counterclaim, work undertaken by a land surveyor, Mr Bryan Tucker, has shown that Number 75 has encroached onto Number 73 in two locations. First, the two-storey building that Mr Monaghan put up edges over the eastern boundary of Number 75 and the adjacent pier and gates at the Gateway are almost entirely within Number 73. Mr Tucker has calculated the total area of this encroachment ("Encroachment A") to be 1.075m². Secondly, the two-storey office building that replaced the store room extends into Number 73 marginally on its eastern side. The area at issue here ("Encroachment B") is 0.184m².
54. Arthur Jones sensibly accepted that it would be disproportionate for it to seek the removal of the encroachment at Encroachment B. In my view, it would be similarly disproportionate for me to order the removal of that part of the main building as crosses the boundary at Encroachment A. On the other hand, there is nothing to suggest that the pier and gates at the Gateway could not satisfactorily be re-sited within Number 75. I shall therefore grant Arthur Jones injunctive relief to that extent.
55. Arthur Jones is also entitled to damages in respect of the encroachments. Mr Tee put forward a figure of £10,000 (pointing out that Arthur Jones is suffering a permanent loss). Mr Hughes suggested that no more than £1,000 could be needed. Doing the best I can, I shall award Arthur Jones damages of £2,000.
56. I should like, finally, to thank both counsel for their well-judged and helpful submissions.