REF//2009/0622

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A

REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1)   MICHAEL REID MARNER

(2)   ROSEMARY REID MARNER

Applicants

and

 

MADELEINE ROSE CLARKE

 

Respondent

 

 

Property: Land on the north side of Oakleigh, Iden Green Road, Benenden, Kent

Title Number K341881

 

 

Before Ann McAllister, sitting as Deputy Adjudicator

Victory House, London

14 January 2010

 

Representation: Mr Noble of Counsel instructed by Brunswick Law appeared for the Applicants; Miss Calder of Counsel instructed by Keogh Caisley appeared for the Respondent.

 

Application to register a right of way – construction of agreement by vendor in transfer to allow ‘ addition of access gate to the Property’ – whether right implied if not express – Chief Land Registrar ordered to cancel the application for cancellation of the notice protecting the claimed right.

 

DECISION

 

Introduction

 

1.                  The Respondent, Mrs Clarke, is the registered proprietor and freehold owner of land (‘the Land’) adjoining the former public house known as the Royal Oak, Iden Green which was demolished and subsequently developed into five houses. The Applicants, Mr and Mrs Marner, are the freehold owners of one of these properties (Elm Cottage) and the owners of land which used to form part of the public house’s car park, and is now part of their garden (‘the Garden Land’)

 

2.                  The dispute at the centre of this case is whether Mr and Mrs Marner are entitled to a right of way over part of the Land in order to reach the Garden Land. The Land is registered with title number K341881. The part in issue is a triangular in shape boarded to the south by the estate road leading to the 5 houses, to the north by bridleway and to the east by the Garden Land. The apex of the triangle is the main road. I will refer to this as the Triangle.

 

3.                  On 5 December 2007 Mr and Mrs Marner entered a unilateral notice against the title of the Land to protect the right of way shown on the plan attached to the notice. The basis of the claim was that Mr and Mrs Marner were granted a right to insert a gate (‘the Gate’) in the fence around the Garden Land in the transfer dated 19 November 2004 (‘the Transfer’) made between Piermont Homes (High Street) Limited and them, and that this right carries with it, expressly or by implication, a right to cross the Triangle. It was said that access to the Garden Land would not be possible unless this right exists. On 14 November 2008 Mrs Clarke applied to cancel the unilateral notice. Mrs Clarke is married to Mr Clarke, who, at the relevant time, was the managing director of Piermont Homes, the vendor of the Garden Land.

 

4.                  The matter was referred to this office on 7 May 2009. I had an opportunity of visiting the site on 13 January 2010. The hearing took place the following day. The case for Mr and Mrs Marner was put in a number of different ways.

 

5.                  For the reasons which are set out below I will order the Chief Land Registrar to cancel the application to cancel the unilateral notice. I find that the Garden Land has the benefit of a right of way over the Triangle.

 

 

 

 

Chronology and relevant background

 

6.                  In 1990 Piermont Homes obtained planning permission for the redevelopment of the Royal Oak public house site. By a transfer dated 23 June 2000 (‘the 2000 Transfer’) most of the site was sold to Rupert Bryant. Part of the land (‘the Retained Land’) was retained for possible future development. The Retained Land included land sold to Mr and Mrs Marner by a transfer dated 14 January 2003, the Garden Land, and the Land. Rupert Bryant demolished the Royal Oak and built 5 houses.

 

7.                  By clause 13.3.7 of the 2000 Transfer, Piermont Homes retained the right for all purposes to pass with or without normal domestic vehicles and with agricultural machinery along the shared driveway leading from the main road (Iden Green Road) to the rear of the former public house site.

 

8.                  By a transfer dated 8 January 2003 Rupert Bryant sold Elm Cottage to Mr and Mrs Marner. A right of way was granted over the shared driveway (now described as the Estate Road). The purchasers covenanted to use only the parking space at the rear of their property for the parking of two cars, not to park boats caravans etc and not to park vehicles or obstruct the estate road. The transfer also provided that on the disposal of the last properties on the estate, the transferor would transfer the Estate Road and other common areas to a management company.

 

9.                  On 14 January 2003 Piermont Homes transferred part of the Retained Land to Mr and Mrs Marner. The purchasers covenanted not to use this land other than as a garden or agricultural land and for the provision of car parking spaces and/or garages for light passenger vehicles, and to erect and maintain a post and rail fence. This land is adjacent to and to the west of the Garden Land, and is now indistinguishable from the Garden Land. A narrow gate leads from the Estate Road to this land, but this gate is not wide enough for vehicles. This land is registered with title number K850667.

 

10.              In June 2004 negotiations began for the sale of the Garden Land. The estate agent acting for the vendor, Piermont Homes, was Madeline Rose, owned by Mrs Clarke. The price stated as paid was £2,350. In fact, as I understand it, the total cost was £10,000 and the balance paid in cash.

 

11.              On 9 August 2004 the solicitors acting for Mr and Mrs Marner (Brunswick Law) asked Piermont Homes to confirm in additional enquiries before contract that they would agree to the addition of an access gate in the plan to the transfer. There is a handwritten note on this document saying ‘Gentleman’s agreement – not in Deed’. There was no satisfactory evidence as to when this was added, but it is clear on any footing that this was done after the Transfer.

 

12.              The request was repeated on 17 September 2004. I have also seen an undated copy of a plan annotated by Mr Marner and addressed to his solicitor which shows the Gate, the access over the Triangle and the EDP poles. The note reads: ‘Donna, there is a wooden electricity pole carrying cables here. In the contract I have asked that I may erect a gate giving access across the land directly in front of the gate. The pole belongs to Seeboard and ….access will be required.’

 

13.              On 6 October 2004 the solicitors for Piermont Homes confirmed that their client agreed to the addition of an access gate. On 20 October 2004 the same solicitors asked where on the Transfer Deed and the plan the amendments should be made. The reply was that the amendment be inserted in clause 13.5 under Agreements and Declarations.

 

14.              The Transfer provides (in the same terms as the earlier transfer relating to the adjacent land) that the property would be used for no purpose other than as garden ground or agricultural land and for the provision of parking spaces and/or garages for light passenger vehicles. The vendors also covenanted to ‘erect where necessary and at all times thereafter maintain in good repair a post and rail fence on the said of the property marked ‘T’ within the boundary of the said plan’. It is not easy to see the ‘T’ marks on the copy plan I have, but there is no issue but that the entire length of the Garden Land running along the Estate Road and fronting the Triangle was fenced (save where the Gate was installed) shortly after the Transfer.

 

 

 

15.              Clause 13.2 of the Transfer is headed ‘Rights Granted’ and provides: ‘The right of support and shelter from the Retained Land and the benefit of the right of way reserved in the 2000 Transfer in common with the vendor and all others entitled.’ This, of course, refers to the rights over the Estate Road. Clause 13.5 is headed ‘Agreements and Declarations’. Clause 13.5 (iii) of the Transfer provides: ‘The Vendor agrees to the addition of an access gate to the Property as per the plan’. The plan shows the Gate in the position where it was constructed. It gives onto the Triangle. There is a raised curb along most of the Estate Road, save that this curb is dropped where it meets the main road. In practice vehicles gaining access to the Gate over the Land need to mount the (low) curb. An EDF transformer is on the Land, access to which can only be through the Gate. The Gate is a five bar gate, three metres wide.

 

16.              Reference should also be made to clause 13.5(iv). This provides as follows: ‘The Vendor as owner of the Retained Property and the Purchasers as owners of the Property will each have rights over the land of the other (except rights of way and light and as expressly provided by this Transfer) which they would have had if they were two separate purchasers to whom a vendor had made simultaneous Transfer of the Property and the Retained Property.’

 

17.              The Garden Land is registered with title number K879325. The remainder of the Retained Land (defined above as the Land) was transferred by Piermont Homes to Mrs Clarke by a transfer dated 4 April 2005.

 

18.              In January 2008 the Land Registry wrote to Mrs Clarke informing her of the unilateral notice. By letter dated 2 March 2008 Mrs Clarke stated that access had never been granted either by her or by her husband to the Garden Land either at the time of purchase or at any time since. It was said that there was no evidence of access in the TP1, and that in any event this would not have been granted as it would have affected future plans to develop the Land. The letter concluded by saying that access already existed over the communal car park.

 

19.              In May 2008 the solicitor instructed by Mrs Clarke (who were not the same solicitors who had acted for Piermont Homes in relation to the Transfer) wrote to Brunswick Law rejecting the claim to a right of way and asking for the Gate to be removed. It is clear, from the correspondence, that neither solicitor had, at this stage, checked the terms of the Transfer. In June 2008 the same solicitors wrote stating that no consent was ever given for the erection of the Gate. A proposal was then made on Mrs Clarke’s behalf for the grant of a licence. These proposals foundered when Mrs Clarke stated that such a licence would be non assignable. I should just add that I do not consider that anything turns on the fact that there were proposals to compromise this matter which, in the end, came to nothing.

 

20.              Mr Marner wrote to the Land Registry in November 2008. He stated that he had discussed matters on site with Mrs Jane Beard, a negotiator representing Madeline Rose, and later with Mr Clarke. The letter stated that there was a discussion about allowing EDF to have access over 50 yards from Iden Green Road to an agreed point terminating at a three metre access gate in a boundary fence, giving a path to the Garden Land. The purpose of this was to give EDF vehicles access to their equipment and to allow Mr Marner to transport garden equipment or a small boat from time to time using this route. The purchase proceeded on that basis. The letter continued by saying that no objection had been made to use of the right of way to the Gate since the date of the Transfer.

 

21.              An application for planning permission to built 14 houses for local needs housing on the Land was made in early 2009. This was refused. The proposal envisaged that the dwellings would all be on the land to the other side of the bridleway. Access to this area, however, would be from the main road and over at least part of the land the subject of the present claim. I do not know whether it is correct to say that the existence of the claimed right of way would in any way prevent the development. It is not immediately obvious that this would be the case.

 

 

 

Evidence

 

22.              I heard evidence from Mr Marner and Mr and Mrs Clarke. In so far as there is any conflict of relevant evidence, I prefer the evidence of Mr Marner. He explained that he was anxious to have access over the Triangle to the Gate in order to bring a ride on mower onto the Garden Land and possibly a boat. It would not have been possible to use the existing gate giving onto the adjacent land purchased earlier because it would have been necessary to enlarge the gate and drop the kerb stones, and Mr Marner did not believe that the other residents of the estate would have agreed. He also doubts whether it would be possible to get a boat and trailer along the Estate Road. There are also a number of trees next to the smaller gate which were already there when the Garden Land was bought. The Gate was sited in the most practical and obvious place.

 

23.              Mr Marner stated that he had discussed the possible purchase of the Garden Land with Mrs Beard and had made it clear at the outset that he required access over the Triangle and the right to install a three metre gate. He then said that, a week or so later, she came back to him saying that Mr Clarke was agreeable to this. He met Mr Clarke on site, and an agreement was reached as to the location and width of the gate. Mr Clarke also said that he could give Mr Marner details of the man who had mowed the Garden Land for him in the past, and who had used the Triangle to gain access to this land. Mr Marner denied, and I accept his evidence on this, that Mr Clarke told him that he intended to keep the Triangle to facilitate the development of the Land.

 

24.              Mr Marner also denied that Mr Clarke gave him limited or temporary permission. He would not have agreed to this: Mr Marner wanted to be sure he could gain access through the Gate whenever he wanted to on a permanent basis. The fact that the Transfer refers to the access gate and not, in terms to a right of way, was not something he could explain: he had left matters to his solicitors. As he said in evidence, although matters seem complicated now, it was all straightforward at the time of purchase.

 

25.              The Garden Land is used constantly. There is a summer house and sitting area. Mr Marner uses a ride on mower to keep the grass cut. Until this dispute blew up, there was never any issue as to his right to cross the Triangle. He has maintained the Triangle, keeping the grass cut, and, in May 2008, he erected a metal pole near the point where it meets the main road to deter travellers from using the land.

 

26.              Mr Marner was asked why it was that he felt it necessary to enter a unilateral notice, if, as he believed, the Transfer granted him the right claimed. He explained that he had raised the issue with various people, and that although he was sure of the position in his own mind, he was anxious to obtain more protection. All this came about when he learned that the Land was to be developed. This seems to me a sensible explanation.

 

27.              I also heard evidence from Mr and Mrs Clarke. Mrs Clarke was not a party to the Transfer, but recalled her husband telling her that he had been willing to accommodate Mr Marner on an ad hoc basis to allow him to bring on a ride on mower and a boat but that he had not been willing to grant an easement. Mrs Beard left her employment in June 2008. In cross examination she repeated that her husband had made a gentleman’s agreement: this did not require Mr Marner to ask every time he wished to use the Triangle but was rather a case of Mr Marner being able to use the Gate (and therefore the Triangle) whenever he wanted. I mean no disrespect to Mrs Clarke when I say that her evidence is necessarily of limited relevance: it is unlikely that she would have remembered the details of the conversation with her husband in 2004 relating to the Gate, even assuming that such a conversation took place.

 

28.              Mr Clarke confirmed that he met Mr Marner prior to the sale, and, on his evidence, agreed to allow him to install a gate so that he could gain access to the Garden Land. He said that no reference was made to a boat (in contrast with the evidence given by his wife). He also repeated that this was a gentleman’s agreement not intended to give a right of way. The evidence given contrasts, of course, with the position adopted in correspondence from March 2008 onwards. It seems to me that this correspondence is consistent either with Mr Clarke not having a recollection of the conversation in which he agreed that the Gate should be installed or that, in any event, Mr and Mrs Clarke were prepared to deny what had occurred in the hope that Mr Marner might abandon his claim.

 

29.              In my judgment the parties agreed that a Gate could be constructed to allow access over the Triangle, and that it was not made clear to Mr Marner that this would be a temporary or determinable right. Mr Marner purchased the Garden Land in reliance, at least in part, on this assurance, and proceeded to clear the land, fence it, and install the Gate. Regular use was made of the Triangle and the Gate without any difficulty until the application was made to the Land Registry to enter a unilateral notice.

 

 

Legal analysis

 

30.              The first and obvious point to make is that the question of whether or not a right of way exists as claimed under the terms of the Transfer cannot depend on the subjective intention of the parties. Evidence of the parties subjective intention is strictly irrelevant. The relevant test is whether a reasonable purchaser would believe, based on the Transfer and the relevant factual matrix, that such a right had been granted.

 

31.              The terms of the relevant clause are, to my mind, quite clear. The addition of an access gate to the Property can only mean that access will be gained over part of the retained land, namely the Triangle. There is nothing in the wording to indicate that this user was permissive or determinable or was in any way conditional. It is an unequivocal right which will, of course, bind successors in title. I do not see how this can be read as granting some sort of licence. If the right to use the Gate as an access (and therefore necessarily to cross the Triangle) was intended to be in some way limited this could and should have been expressly stated. The request for the amendment came from Mr Marner’s solicitors, and it was they who suggested that the amendment to the transfer be inserted under clause 13.5. I do not see, therefore, that there is any force in the point that the right is not set out under rights granted. Nor is it relevant, in my judgment, that the rights of way reserved in the 2000 Transfer were also conveyed. Those are separate and distinct rights which do not affect the Triangle.

 

32.              It follows, of course, that the fact that Mr and Mrs Marner also own the land adjacent to the Garden Land is irrelevant. This land is held under a separate title. It could be sold separately from the Garden Land.

 

33.              The alternative way in which Mr Noble, for Mr and Mrs Marner, puts their case is to say that the right is granted, if not expressly, then by implication, on the basis of authorities such as Pwllbach Colliery Co v Woodman [1915] A.C 634. The test is this (as set out in that case): ‘The law will readily imply the grant or reservations of such easements as may be necessary to give effect to the common intention of the parties…with reference to the manner and purposes in and for which the land granted or some land retained by the grantor is to used.’ A more recent illustration of the principle is to be found in Stafford v Lee (1992) 65 P &CR 172.

34.              In that case an area of woodland was conveyed. The deed stated that the land had a frontage to a private road but contained no express right of way over the road. The only practicable means of access was over the road. It was common ground that an implied easement over the road arose: the issue was whether it was limited to use of the land as it was at the time of the conveyance or whether it extended to a proposed dwelling. It was held, on the facts of that case, that the right extended to access to a dwelling house.

 

35.              In my judgment, if I am wrong in reaching the conclusion that the wording of the Transfer conveys an express right of way, then I have no hesitation in concluding that such a right arises by implication. The test is again an objective one, and does not depend on the subjective intention of the parties. The only sensible way in which an access gate to the Garden Land can be used is if a right of way is granted over the Triangle.

 

36.              It is also suggested that a right arises by estoppel. Mr Warner bought the Garden Land in reliance on the assurances given that he could have a right of way over the Triangle and through the Gate. Reliance is placed on a number of authorities, including Ward v Kirkland [1967] Ch 194. In view of my findings above it does not seem to me to be strictly necessary to make a finding on this point, but, if I had to, I would find that Mr Marner did indeed buy the Garden Land on the assurance that he could gain access over the Triangle, and expended money in so doing. An equity by estoppel binds successors in title: see s 116 of the Land Registration Act 2002

 

37.              Finally, reliance is placed on section 62. There was unchallenged evidence that access to the Garden Land was over the Triangle when the Garden Land and the Land were in common ownership, but it seems to me that the right is excluded by clause 13.5(iv) of the Transfer, which precludes rights of way arising unless set out in the Transfer.

 

38.              For the avoidance of doubt the right of way granted (expressly or by implication) and/or which arises by estoppel is a right on foot and with vehicles at all times and for all purposes connected with the user of the Garden Land. The user of the land is defined in clause 13.4(i) of the Transfer.

 

39.              This leaves the question of costs. In principle it seems to me that Mr and Mrs Marner are entitled to their costs. A schedule in form N260 or the like is to be filed and served by 5 March 2010. My jurisdiction is limited to costs incurred since the date of the reference, namely 5 May 2009. Mrs Clarke may make such representations or objections as she deems fit by 19 March 2010, and I will then consider what order to make.

 

BY ORDER OF THE ADJUDICATOR

 

ANN McALLISTER

 

Dated this 19^th day of February 2010