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Cite as: [2017] EW Misc 14 (CC)

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Case No: C00YE190

IN THE COUNTY COURT AT BRISTOL

CHANCERY BUSINESS

Bristol Civil Justice Centre

2 Redcliff Street, Bristol, BS1 6GR

Date: 15/08/2017

Before :

HHJ PAUL MATTHEWS

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Between :

Grant Shortland

Claimant

- and -

(1) Christopher Hill

(2) Susan Hill

Defendants

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Edward Peters (instructed by Pardoes Solicitors LLP) for the Claimant

Nathaniel Duckworth (instructed by Battens Solicitors Ltd) for the Defendants

Hearing dates: 5-8 June 2017

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Approved Judgment

HHJ Paul Matthews :

Introduction

1. This is my judgment on a claim brought by claim form issued on 3 June 2016 in which the claimant claims a right of way over the defendants’ property in order to reach the land of a third party over which he has an express right of way to the public highway. In his particulars of claim, also dated 3 June 2016, the claimant says that the defendants have obstructed the right of way, and seeks declarations and an injunction. By their defence, dated 1 July 2016, the defendants say there is no longer any right of way, because the express reservation of a right of way, contained in a transfer of 1999, on which the claimant founds, was made only for access to a particular garage, which has long since been demolished (paragraph 21). However, if there is still a right of way, they say that it is more limited than the claimant claims, and that they have not obstructed it. The claimant’s reply denies paragraph 21 of the defence.

2. At the beginning of the first day of trial, I raised the question, arising from my pre-reading, of a possible estoppel against the defendants in relation to their denial of the existence of the right of way, by reference to witness statement evidence of discussions between the claimant and the defendant’s predecessor in title as to the existence and scope of the alleged right of way, followed by the claimant’s purchase of the property. During the day, I raised a further point about a demand made by the defendants of the claimant for a contribution to the scalping that was laid on the Yard by the defendants and the tendering of a cheque by the claimant in payment of that contribution.

3. At the beginning of the second day of trial, I heard an application for permission to amend the claimant’s reply, paragraph 11, in two respects. The first was by adding the following words at the end:

“And in any event the defendants (as Mr Hayter’s successors in title) are estopped from so contending, by reason of the matters referred to in paragraph 8 of the claimants witness statement dated 29 January 2017 and paragraph 13 of Mr Hayter’s witness statement dated 29 January 2017”.

4. After hearing argument, I gave permission to amend in those terms. At the same time, I refused permission to amend for a further addition to paragraph 11 of the reply to plead a second estoppel based on the demand for a contribution to the scalping. I gave reasons at the time for both decisions.

5. The pleadings also raise an issue about exactly where the boundary between the two properties lies. It is however agreed between the parties that the boundary is wherever the northern edge of a garage standing at the southern edge of the yard used to stand. That garage was demolished in 1999 – 2000. However, neither party was in occupation at that time, and therefore neither can give direct evidence about where the garage stood.

The witnesses

6. The following persons gave evidence before me: the claimant, his partner, Ms Melanie Heritage, Paul Hayter, Barry Sainsbury, Christopher Wadden, Christopher Hill, Susan Davenport-Hill, Mrs Lesley Davenport, Mr Bernard Hill, and two surveyors, Patrick Rose and Gary Vaughan.

7. I should record my impressions of the witnesses. The claimant, Grant Shortland, was measured and clear in his responses to questions, and he took time to think before answering. He was slightly defensive at first, but anxious to follow the correct procedure. He did not make speeches, and he did not try to avoid difficult questions. Where he had been in the wrong, he admitted it. He was not afraid to give a monosyllabic reply in the negative where he considered that this was the correct answer. On other occasions, he gave a fuller and more elaborate response when he thought this was necessary. Obviously he has an interest to defend in this litigation, and I bear that in mind in considering his evidence. Nevertheless, in my view he was doing his best to assist the court by telling the truth, and I accept what he said. On the whole, where there is any conflict between his evidence and the defendants over events passing between them, I prefer his account.

8. I should mention one other point at this stage. Once or twice in being cross-examined he allowed himself to become a little angry. I can see that, in an uncontrolled environment, he might lose his temper. The claimant is a large man, with broad shoulders and a bald head. It would not be difficult, if the claimant were angry about something, for a person of a nervous disposition confronted by him to feel under threat, even though the claimant might have no such intention. This may matter in considering some of the evidence that was given by other witnesses.

9. His partner, Melanie Heritage, only moved to no 17 in March 2014. She could not give any evidence as to events before then. But she gave her evidence in a straightforward and clear way, and was obviously telling the truth. I have no reservations in accepting what she said.

10. Paul Hayter was the immediate transferee of The Cottage from Mr Sainsbury, and the predecessor in title of the defendants. He was not well educated, and did not read well (though he told me he did not have his glasses with him, which may have affected this). He seemed to misunderstand the question frequently, in particular, taking it literally. He was prepared to speculate in some cases on the answer, but on other occasions not. I noted that he was much slower in answering questions which might be considered to harm the claimant’s case than questions which might not. He was challenged on the basis that he had worked with the claimant in the past, had had recent meetings with the claimant at which he (Mr Hayter) claimed not to have spoken about the forthcoming case, and said that he hoped to work with the claimant in future. I do not believe that they did not discuss the case, but I have no reason to believe that they concocted evidence. Subject to that, I do not think he was deliberately untruthful in the evidence he gave. However, I have no doubt that his personal relationship with the claimant played some part in the evidence he gave, and, overall, I would be reluctant to accept what he said as correct in the absence of corroboration from other sources. (I should add that I have no reason to suppose that this was other than unilateral action on the part of Mr Hayter.)

11. Barry Sainsbury was the last person to own both properties. In a photograph taken in the 1960s which was given to me he is shown as a young, rather carefree man riding an antique bicycle in The Yard. He is now an elderly, retired man. I found him to be an intelligent, careful, precise, and firm witness. He was challenged on a number of points, but I found the explanations he gave in his evidence convincing, and in my judgment he was unshaken. I accept what he told me as truthful, although on one or two occasions slightly misremembered.

12. Christopher Wadden was with his partner Lucy Jenkins the predecessor in title of the claimant in his ownership of number 17. Lucy Jenkins had taken a transfer of that property from Mr Sainsbury in 1999. She had subsequently transferred it to herself and Mr Wadden jointly. Mr Wadden was a softly spoken, clear and thoughtful witness. He was prepared to change his mind in giving answers if he thought that right. He accepted that on a number of points Mr Sainsbury was more likely to remember correctly what the position was than himself. I accept that he was trying to help the court, and was telling the truth as he saw it. On the whole, and subject to a few points where I think he was simply mistaken, I accept his evidence.

13. Christopher Hill is the first defendant. I found him to be an intelligent although slightly nervous witness (something which he expressly confirmed in giving evidence). When he was faced with a difficult question, or one he did not wish to answer, he often deflected it, or answered a different one. Later in his evidence he would rather reluctantly accept the truth of points made against him. He used phrases such as “it would appear that way”, and “I do not see why they should be”. He was taken to evidence relating to two incidents where he claimed to have been assaulted by the claimant’s partner or intimidated by the claimant, but the claimant and his partner denied it and Sgt Whatley, of the local police, having viewed relevant video footage took their view rather than his. There was no assault by the claimant’s partner and no intimidation by the claimant. Yet before me, and having first had the relevant documents put to him, the first defendant maintained that the conduct of the claimant was still intimidatory, and the conduct of the claimant’s partner was still at least antisocial behaviour, if not an actual assault.

14. It is clear that the first defendant is unfortunately oversensitive. He imagines insults and slights where there are none, and exaggerates any that there may be. It is also clear that he is convinced that he is in the right, and nothing anybody else says will alter that. A strong sense of entitlement permeated the whole of his evidence. He seems not to be able to understand that owning a piece of land which is subject to rights of way does not entitle you to do whatever you like with it. I do not think I can safely rely on any of his evidence, except where it is corroborated by an objective source.

15. Susan Davenport–Hill is the second defendant. I found her to be very quickwitted, fiercely protective of the first defendant and of her child, passionate in defence of their interests, unfortunately almost to the point of petulance. She sees everything exclusively from their own point of view. She was very concerned in her evidence to emphasise the moral superiority of their position over the claimant. So far as she was concerned the claimant was the author of his own misfortune. He had no need to drive over any but a narrow strip of the yard, and he had created the problem of his car bottoming on the yard as it left the claimant’s paved area, because he had built that up too high and was using a car that was very low-slung. Her attitude was, if you gave the claimant an inch, he would take a mile. In my view, she too is over-sensitive. I do not think that she told me any deliberate untruths, but I think that, like her husband, she was convinced that they were right and the claimant was wrong. I found it very difficult to accept anything she said on factual matters where it differed from the claimant, except where confirmed by an objective source.

16. Mrs Lesley Davenport is the mother of the second defendant. She was straightforward and exact, if rather slow. But she was clearly committed to the defendants’ cause, although she very properly qualified that by adding “if it is the truth”. She was trying to assist the court, and told me the truth as she saw it. However the evidence that she could give was rather limited.

17. Mr Bernard Hill is the father of the first defendant. In giving evidence he was clear and usually precise. But he too was committed to the defendants’ case. He believes strongly that the claimant is in the wrong, and this coloured his evidence. Whenever he was faced with a question where truthful answer was in the defendant’s favour, he answered emphatically “That is correct” without hesitation. But, when he was faced with a question where the truthful answer was or might be in the claimant’s favour, he would often answer, after a short pause, “I do not think so”. I fear that I cannot rely on his evidence where it differed from the evidence of the claimant and his witnesses. But, like the evidence of Mrs Davenport, it was comparatively limited.

18. I also heard from Patrick Rose and Gary Vaughan, surveyors, who gave expert opinion evidence relating to surveys of the two properties in question, and the property is adjacent. In particular, they gave evidence about the reliability of recent surveys carried out by the Ordnance Survey. Mr Rose gave evidence for the defendants and Mr Vaughan for the claimant. Both of them were doing their best to assist the court, and, although there were differences which I have to resolve if I can, each was very helpful. I should also add that each of them in his report dealt with matters which fell strictly outside their instructions and did not constitute expert opinion evidence, or (to the extent that they did) went to the ultimate issue. I have of course ignored those matters.

The hearing and following submissions

19. The hearing of the evidence took place over four days, from the 5^th to 8 June 2017. Mr Edward Peters appeared for the claimant, and Mr Nathaniel Duckworth appeared for the defendants. Closing speeches were made on the afternoon of 8 June 2017. However, because I had allowed an amendment to the statements of case of the claimant, raising a point on estoppel, which might require research, I directed that written submissions on the estoppel point should be lodged serially, first by the claimant by 22 June 2017, and by 6 July 2017 for the defendants. I also directed that written submissions should be lodged by both parties by 22 June 2017 on the question of the significance of the ordnance survey mapping to the case, because this raised precise technical issues that I wanted to be clear about before making a decision. I have now received those written submissions, on both aspects of the case, and I am able now to give my judgment. I am sorry that this has taken longer than I would have liked, both because of pressure of other work (partly because of the delay in appointing the new mercantile judge), and also because in late June the Civil and Family Justice Centre was subject to a flood in the basement which caused disruption to the entire civil justice service in Bristol, from which we have still not yet recovered.

Facts found

20. In examining the evidence in this case, I bear in mind four things. One is that the burden of proving that a fact is so generally lies on the person who alleges it. The second is that the standard of proof in civil cases is the balance of probabilities, so that a thing is true if it is more likely than not to be true. The third is that, in our system, fact-finding is binary, so that if the party who alleges a fact proves it to be so on the balance of probabilities then it is a fact for the purposes of the proceedings. Conversely, if that party fails to prove it on the balance of probabilities, then it is not a fact for those purposes. Fourthly, judges in civil cases do not investigate cases, or go looking for evidence like detectives. Instead they decide on the basis of the material adduced by the parties themselves at the time. It is irrelevant that other material may exist which has not been put before the court. So ours is not a system of scientific certainty in finding the truth. It is one that seeks the most likely answer based on the evidence that the parties have chosen to place before it. Accordingly, on the basis of the materials before me, and the evidence which I heard, I find the following facts.

The properties

21. The two properties concerned in this claim lie on and behind the High Street in Wincanton. The claimant’s property, known as 17–17a High Street (“number 17”), as its address suggests, fronts that street. The defendants’ property, known as The Cottage, lies immediately behind it, with no frontage on the High Street. There was formerly an alleyway which gave pedestrian access from the High Street to the yard behind number 17 and thence to The Cottage, but that was stopped up some years ago. There was and is no vehicular access from these properties to the High Street itself, and since before 1984 there has been no parking on that street either. So vehicular access from the rear is of some importance.

22. Until 1999, both properties were in common ownership. Their owner, Barry Sainsbury, had earlier, in 1982, sold off some land behind The Cottage to the local authority, for the purposes of their creating a car park next to an intended public library. On one of the plans attached to the conveyance this land was marked “service area”. In the same transaction, and for the purposes of benefiting both plots of land which he then retained, the local authority had granted to him a right of way over the land Mr Sainsbury had sold, and their own contiguous land, connecting to the public highway. The local authority also granted to Mr Sainsbury as vendor and his successors in title “the right to park vehicles for reasonable periods in the said service area for the purpose of loading and unloading in connection with the vendor’s said property and not for any other purpose".

23. When Mr Sainsbury later sold The Cottage to Paul Hayter and Janis Marlow, in 1999, he was careful to retain a vehicular right of way over part of the land forming part of The Cottage, known as “the Yard”, for the benefit of number 17, so that he could continue to access the right of way over the local authority land and so take vehicles to and from the then garage at the rear of his property at number 17 to and from the public highway.

The 1999 transfer

24. In the transfer of The Cottage, dated 27 July 1999, the property transferred was described as follows:

“ALL THAT piece or parcel of land situate at Wincanton in the County of Somerset TOGETHER WITH the dwelling house erected thereon or on some part thereof all which said property is for the purpose of identification only delineated on the plan annexed hereto and thereon edged red AND TOGETHER WITH the rights and easements set out in the First Schedule hereto BUT EXCEPTING AND RESERVING unto the transferor and his successors in title for the benefit of the whole or any part of the Transferor’s retained property (“the Retained Property”) as in the Second Schedule more particularly mentioned”.

In the plan attached to the transfer, the whole of the Yard was shown as hatched green, and a part of number 17 (“the Retained Land”), on which there was then a garage, was shown tinted yellow.

25. Certain additional provisions followed the transfer clause. These included the following:

“(b) For the benefit of the Retained Property the Transferees for themselves and their successors in title to the intent and so as to bind so far as possible the property hereby transferred into whosoever hands the same may come but not so as to render the Transferees or their successors in title personally liable in damages for any breach of the covenants hereinafter contained after they shall have parted with all interest in the property hereby transferred Provided the Transferees and their successors in title obtain from their respective assigns a covenant in a similar form to observe and perform the said covenants HEREBY JOINTLY AND SEVERALLY COVENANT with the Transferor and his successors in title to the Retained Property –

[ … ]

(ii) not to park any vehicle on the land shown hatched green on the said plan nor to obstruct the said land hatched green by deposit of materials or in any other way

(iii) to keep enough of the said land hatched green on the plan concreted as a solid surface sufficiently wide to enable the passing and re-passing vehicles over the same by the Transfer or and his successors in title to the retained property to enable reasonable access to the garage situate on the land coloured yellow on the said plan and to pay a one half share of the cost of the maintenance and repair of that part of the said land hatched green as is used as the vehicular access to the said garage

[ … ]

(d) IT IS FURTHER HEREBY AGREED AND DECLARED that all or any rights or privileges now used or enjoyed by the property hereby transferred over the Retained Property and by such Retained Property over the property hereby transferred and which had the property hereby transferred and such Retained Property belonged to different owners would have been a easements quasi-easements or rights or privileges in the nature of easements shall continue to be used and enjoyed by the owners or occupiers for the time being of the property affected thereby such owners or occupiers contributing from time to time and fair and proper proportion of the cost of cleansing repairing and maintaining all things used in common TOGETHER WITH all necessary rights of entry to enable the exercise of all such easements quasi-easements rights and privileges

(e) The Transferor for himself and his successors in title to the Retained Property hereby covenants with the Transferees and their successors in title not to park or permit to be parked any vehicle on the said land hatched green on the said plan”.

26. In the Second Schedule the following rights were reserved to the Transferor:

“The right of way at all times and for all purposes with or without vehicles over and along that part of the property hereby transferred shown hatched green on the said plan for the sole purpose of access to the garage forming part of the Retained Property and shown tinted yellow on the said plan SUBJECT to the Transfer or paying a one half share of the cost of maintaining and repairing the said land hatched green AND PROVIDED ALWAYS and it is hereby declared that nothing herein contained shall permit the Transferor or his successors in title to the Retained Property in any way to obstruct by vehicles deposit of materials or otherwise the free passage of the Transferees or their successors in title along such land hatched green on the said plan”.

27. The title to both properties is registered. Reference to the transfer of 1999 is made in the property register in each case. In the register for number 17, paragraph 2 of the Property Register states:

“The land has the benefit of the following rights reserved by a Transfer of land adjoining the northern boundary of the land in this title dated 27 July 1999 made between (1) Barry Montague Sainsbury (Transferor) and (2) Paul Leslie Martin Hayter and Janis Marlow (Purchasers):”

And then extracts from the transfer already set out in this judgment in paragraphs 8 and 10 above are reproduced in the register are.

28. In the register for The Cottage, paragraph 2 of the Property Register states:

“The land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer dated 27 July 1999 referred to in the Charges Register.”

Subsequent events

29. On 1 October 1999, Mr Sainsbury transferred number 17 to Lucy Jenkins, who subsequently transferred the property to herself and her partner Christopher Wadden. In the same year or the following one, Mr Wadden demolished the garage. He and Ms Jenkins parked in the library car park, and grassed over the area on which the garage had stood. In 2006 Mr Wadden and Ms Jenkins sold number 17 to the claimant. But, before the claimant bought the property, he met and discussed the existence of the right of way over The Yard with Mr Hayter. Mr Hayter agreed that there was indeed a right of way over The Yard to the area of the former garage. In 2009, Mr Hayter and Ms Marlow sold The Cottage to the Defendants.

30. Originally there was no barrier between the library car park and the Yard, and none between the Yard and number 17. However, at two different times in 2010-2011, the defendants installed two separate sets of gates on the Yard, one at the northern entrance, dividing the Yard from the library car park (“the outer gates”) and another set at the southern end of the yard, dividing it from number 17 (“the inner gates”). In each case the defendants asked the claimant for permission before installing the gates, at their own cost. In relation to the outer gates, this was put to the claimant (in 2010) on the basis of security and safety for all of them. Although he foresaw the possibility of some nuisance to himself, the claimant agreed unconditionally.

31. In the case of the inner gates, this was put to the claimant (in 2011) on the basis that their young daughter (born 2009) could not safely play in The Yard unless she was protected from the vehicles and equipment stored by the claimant on his land. There is a conflict of evidence between the claimant and the defendants as to whether he gave consent conditionally or unconditionally. I prefer the claimant’s evidence on this point, and I find that he consented to the installation of the inner gates solely on the condition that the gates were to be closed against him only when the defendants’ daughter was actually playing in The Yard. It is however asserted for the defendants that they agreed to keep the gates open “only … under extreme duress”, alleging that the claimant had made (unparticularised) “violent threats” against the defendants and their property (see the defendants’ solicitors’ letter dated 15 February 2016). I reject this assertion as without any foundation. There were no such threats, and the defendants did not act under duress. I also find that there was also an agreement between the parties as the removal of the gates in future, to which I refer later.

32. In 2012 – 2013, with the consent of the defendants to the extent that it concerned them, the claimant laid block paving over the former site of the garage. In 2016, the defendants laid some scalping over parts of the Yard, to the cost of which the claimant was asked to contribute, and indeed he tendered a contribution by way of cheque, which was however never cashed.

The dispute between the parties

33. Although relations between them were initially friendly, the claimant and the defendants have since fallen out over the existence of the right of way and its use. They also dispute where the boundary between their respective properties lies. Although the defendants rented, and apparently still rent, a garden on the other side of The Cottage, at various times they have left items of garden furniture, toys, prams, dustbins and a barbecue in The Yard. In addition, a number of plants and small bushes in pots were placed at various points. The claimant asked the defendants to move these items out of the way when he drove in and out. Sometimes, rather than ask the defendants, he moved them himself.

34. In May 2013 the parties had a discussion in which the First Defendant told the claimant that he had no right to drive over the side of The Yard nearest to The Cottage, but was restricted to an 8 foot wide access strip straight from the library car park to number 17. The claimant hand-delivered a letter to the defendants on 27 May 2013, setting out his understanding of the legal position, and asking for obstructions on the Yard to be removed. On the same day, he was visited by the police, who advised him that the defendants would no longer speak to him, and would communicate only through solicitors. Thereafter, the defendants contacted the police on a regular basis to complain about actions taken by the claimant in relation to accessing number 17 over The Yard. The claimant estimates that the number of police visits, emails, texts and phone calls is well over 200, and involved more than 30 police officers. The claimant and his partner were constantly asked to justify their moving and parking of vehicles and to respond to complaints of (amongst many other things) swearing at the defendants and their relatives, moving and damaging the defendants’ property and more.

35. In August 2014 the claimant was arrested, and briefly detained, by the police at the instigation of the defendants. The incident was investigated by a senior officer, who in February 2016 confirmed that the arrest had been unnecessary, and that the arresting officer acted in the interests of serving the complainant, and he apologised on behalf of the police. On 28 March 2016 two further accusations were made against the claimant and his partner. I referred to them above, at [13]. As I say, both of them were investigated by the police, who, after examining relevant CCTV evidence, considered the complaints to be without substance. The defendants do not deny the complaints to the police, but for their part consider that they were justified. The volume of complaints led to the constant use by both the claimant and the defendants of handheld recording and photography equipment, such as available in modern mobile phones. This is one reason why there are so many photographs available to me in this case.

36. The dispute between the parties apparently even featured in a television programme entitled “Neighbours from Hell”. A copy of this was included in the trial bundle. I looked at this, but only once I had already prepared this judgment in draft. I record that it was useful as an adjunct to the still photographs in getting a sense of the space in which the dispute has been played out. It was also, to a limited extent, confirmatory of the impressions that I had already formed of some of the witnesses. But otherwise I found it unhelpful, for a number of reasons. First, “reality” television programmes such as this made today are for the purposes of entertainment of television viewers, and not for the purposes of accurately informing the court of the events that occurred or the state of the relationship between the parties. Second, I have no idea of what has been left out of the programme. In particular I have been unable to assess the significance in their actual context of items that have undoubtedly been cherry picked for maximum entertainment value. Thirdly, and similarly, I do not know what has happened just before or just after any given scene, how many times a scene was rehearsed or recorded, or what might be happening off camera during the same scene. There is a lot of repetition of key sequences or phrases, and snippets have been spliced into other sequences. Fourthly, the presence of the television cameras and a crew obviously changes the dynamic of the situation. Fifthly, the soundtrack (both music and other sounds) has undoubtedly been chosen to enhance the particular mood or message that the producer is trying to achieve at any particular moment. As evidence to assist me in resolving the legal issues that arise, it is of no real weight at all, and I have treated it accordingly.

Matters for decision

37. The following matters arise for decision:

1. The scope and effect of the right of way reserved by the transfer of 1999;

2. Whether that right of way has been lost by virtue of the demolition of the garage;

3. Whether any other right of way arises by virtue of the 1999 transfer;

4. Whether, if the reserved right of way has been lost, and no other right of way has arisen, the defendants are estopped from so contending by virtue of the acts of the claimant and Mr Hayter before the claimant purchased the property;

5. Whether, if a right of way is established and continues to exist, there has been any actionable obstruction of that right;

6. Whether the court should grant a declaration in relation to any such right or an injunction to restrain the defendants from obstructing the right in future;

7. Where the boundary between number 17 and the cottage lies.

The boundary

38. It is common ground between the parties that the boundary between the two properties depends on ascertaining where the garage stood before it was demolished, because the northern edge of the garage was the boundary of number 17. It is accepted that the front of the roof of the garage overhung the pillars supporting it. The boundary would therefore lie at the forward edge of that overhang.

39. In determining where the garage stood, there are a number of distinct features to take account of. There are the Ordnance Survey plans. There are photographs showing the garage in existence, in relation to the surrounding buildings. There are photographs of the surrounding buildings both before the garage had been constructed, and after it had been demolished. There are physical features in or on the surrounding buildings. And of course there are the recollections of persons who saw the garage in existence, and say where they remember it to have been. The parties are agreed that the north face of the garage was a straight line running between The Cottage on the west side and the wall of number 19 on the east side. They disagree as to both the start point (on the west side) and the end point (on the east).

40. There is no suggestion that any of the photographs put before me has been faked or retouched in any way. They are accepted on both sides as an accurate photographic record of whatever it was that was to be seen from the position of the camera at the time that the photograph in question was taken. On that basis, they are the most important evidence before me, for whatever they show. Unlike human memory, they do not lose their force or change over time. Unlike physical features subject to interpretation, they show where the garage was without the need for possibly contentious inference from those features. So I shall begin with the photographs.

The photographs: western side

41. On the western side of The Yard, the position of the front of the garage is shown clearly in four photographs. One is unfortunately damaged (1/5/138), but shows that there were three supporting down pillars for the front of the garage: one against the eastern wall, one in the centre, and one standing a few feet from the western wall (ie the wall of The Cottage). This photograph was discovered by the claimant under the floorboards at number 17, but identified by Mr Sainsbury. A second photograph (2/9/774) shows Mr Hayter’s young daughter with the third pillar just described directly behind her. To the right of that third pillar in this photograph, and running vertically parallel to it, is another white image, which I hold to be the right hand jamb of the front door to The Cottage. But the door jamb is clearly not directly opposite the third garage pillar: it is a little distance further back. Because of the angle and depth of the photograph, it is hard to estimate how far back. Doing the best I can, I hold that it is about eighteen inches behind the point on the wall where the garage roof beam meets it. Mr Hayter told me that the photograph was probably taken in July 2000.

42. A third photograph (2/6/427) shows the top of the garage roof where it met the wall of The Cottage. This was adduced in evidence by the defendants. In that photograph, the front of the garage roof beam meets the wall directly above the first division from the left of the then existing window (which has four vertical divisions, and three horizontal divisions). A fourth photograph (2/8/761) forms part of estate agents Colbert-Smith’s sale particulars in 1999, on the basis of which Mr Hayter bought the property. It shows the same thing: the front of the roof beam lies directly over the first vertical division of the then window.

43. I was also shown photographs of the front door to The Cottage and the windows to the right of the door after the garage had removed and the wall made good (see eg 2/6/428, 2/7/513-6, and 2/8/655). Unfortunately, since the demolition of the garage, the front door has been slightly moved, and the window to the right of the door completely replaced. These photographs (and others) also show the brickwork above, where the beam projecting westward from the garage roof originally rested in the wall, but these photographs are of the wall after it has been made good. I do not find them much use to me. I do not doubt that a hole had to be filled in but, given that work was done generally on that part of the wall, I am not confident that the particular hole for the beam concerned, as opposed to places where work has been done, can be accurately identified from these photographs.

Photographs: eastern side

44. On the other side of The Yard, there are only the damaged photograph (1/5/138) and a photo taken from the library car park (2/6/426) which show the front of the garage in place. But there is an earlier photograph of the young Mr Sainsbury riding an antique bicycle in The Yard in the 1960s, before the garage was built (2/9/773), and there are a number of photographs of the wall after the garage was removed (eg 1/1/27-29, 1/1/50, 1/5/142-143, 2/7/511, 519, 520, 565). Above the roof in the damaged photograph there is a vertical line, darker near the top but lighter as it descends, which I hold to be a downpipe from the building next door. It also appears above the garage roof in the photograph taken from the car park. But it does not appear in the earlier photograph of the young Mr Sainsbury (although other downpipes further along the building do). What does appear in that earlier photograph is a small window to the left of approximately where the front of the garage was later built. Returning to the damaged photograph, to the left of the garage roof pillar against the wall there is another white vertical line, which I hold to be another downpipe, rather than (say) the edge of the window referred to. The two pipes are not however on the same vertical axis; the lower pipe is plainly a little way to the left of the upper one.

45. In the later photographs, taken after the garage was removed, a downpipe is shown in approximately the same position, but running in the same vertical axis all the way from gutter to ground. To the left of the downpipe there is an area of modern brickwork in the wall, corresponding approximately to the position of the window seen in the photograph of the young Mr Sainsbury. But the later photographs were taken at different times. The earlier ones (1/1/27-28, 2/7/519, 520) were taken by Mr Wadden of his young daughter playing in The Yard, he told me, in about 2003-4. They show a light-coloured downpipe and turf on the ground. A join between two sections of turf is clear in photograph 1/1/28. The later ones (1/1/29, 1/1/50, 1/5/142-143, 2/7/511) show a dark downpipe and a block paving hardstanding where the garage used to stand, and after that where the turf was laid. The block hardstanding was laid in 2012-13 by the claimant.

46. Lastly, there are photographs of the section of the wall where the side of number 21 High Street (from the roof of which the downpipe just referred to runs) where it meets the lower level wall running along the side of The Yard to the library car park (see eg 1/5/142, 2/7/511, 513). These photographs show that the section of wall in the “elbow” between the higher and the lower walls has been added (or replaced) at some point by newer bricks. There is also a metal fitting of some kind to the right of the replaced section, an inch or so into the wall of number 21.

Ordnance Survey maps

47. As I have already said, each side called a surveyor to give expert evidence in relation to the position of the boundary between the two properties. The claimant called Mr Gary Vaughan, and the defendants called Mr Patrick Rose. Part of the evidence which each of them gave related to the accuracy and suitability for use of maps prepared by the Ordnance Survey. Ordnance Survey has produced a number of plans of the area in which these properties lie. They include plans made in 1976, 1992, 1999 and 2004 at the scale of 1:2500. The Land Registry base their plans, for use in connection with registered titles, on the plans made by Ordnance Survey, though enlarged to 1:1250.

48. Mr Vaughan has a degree in civil engineering and is a member of the Chartered Institution of Civil Engineering Surveyors. He specialises in the technical interpretation of plans diagrams and photographs, and has considerable experience in cadastral surveying. He has never been an employee of the Ordnance Survey, but has become expert in Ordnance Survey maps during his career. He was not however in a position to tell me from his own direct experience how Ordnance Survey works. Mr Rose is a chartered surveyor with experience in estate management and surveying for new building and sales of land. He set up The Mapping Company (UK) Ltd in 1998, which produces plans for conveyances, sales and management purposes. He is a “Value-Added Partner of Ordnance Survey ”.

49. However, the experts took very different positions on the question whether and how far the disputed boundary in the present case could be resolved by reference to Ordnance Survey mapping. Mr Vaughan said that to attempt to do so was “futile”. This was for several reasons. The first was because, according to him, the margin in dispute in the present case was about 1.2m, whereas the mapping tolerance for Ordnance Survey in its plans at the scale of 1:2500 is about 2.3m. Moreover, the standard practice of Ordnance Survey is to simplify features on the ground which are within that tolerance. This may mean aligning features which are in fact not in line at all, or showing them as meeting at intersections or junctions (“nodes”) when they do not in fact so meet. Thirdly, when Ordnance Survey maps are revised, existing detail is carried forward and changes are simply superimposed on that existing detail. There is no checking and revisiting existing features.

50. Mr Rose, for the defendants, says that reliance can be placed on the Ordnance Survey 1999 plan where it shows the north-eastern corner of the garage as lining up with the north-western corner of number 21. (The parties did not seek to rely on the Ordnance Survey plans in fixing the boundary on the western wall.) Although he accepted the official tolerance of 2.3m for Ordnance Survey plans, the experts had concluded that in this particular case the maximum variation was 0.51m (Mr Rose) or 1.15m (Mr Vaughan). Between the 1992 and 1999 plans, the northern elevation of number 21 changed significantly. A low-level structure extending north along the other side of the wall on the eastern side of The Yard was demolished. So the 1999 plan was the product of a fresh survey of that part of the building complex. That is shown in part by the fact that, on the western side of The Yard, a small indentation in the garage area (for access to the front door of The Cottage) is shown in the 1999 plan, but not in that for 1992. On the eastern side, in the 1999 plan the front of the garage roof is shown as joining the wall at the point where the new north elevation of number 21 meets it on the other side.

51. I accept what Mr Rose says, so far as it goes. The 1999 plan is a new plan, compiled either with the help of surveyors on the ground, or by using aerial photography. It does show the front of the garage roof meeting the North elevation of number 21 in a node which did not exist in the earlier plans. But that does not mean that that representation is exactly how it was on the ground. The problem is that, at a scale of 1:2500, it would be impossible in practice for the Ordnance Survey plan to show a difference of, say, 25 cm or 50 cm on the ground. It would look exactly the same as if there really were a meeting of those features at that node. In addition, both experts agree that there is a tolerance to be applied in the accuracy of the plan. The official Ordnance Survey tolerance for this scale is about 2.3m. Mr Rose says that in this particular case the plan could only be out by a maximum of 0.51m. Mr Vaughan says it could be out by as much as 1.15m. Given that the parties are disputing only about 1.2m in total, this is significant. So although I can take the 1999 plan into account, it is of limited use. I certainly do not treat it as conclusive of the issue.

Witnesses

52. Of the witnesses who gave evidence before me, only Messrs Sainsbury, Wadden and Hayter could give direct evidence of where the garage stood. In addition, Messrs Wadden and Hayter were involved in the laying of turf on their respective properties in the early 2000s. I have already given my impression of them as witnesses.

53. As to the eastern side, Mr Sainsbury said he built the garage past where the black drainpipe is now (see 1/5/142-44), and up against the window on the eastern wall (seen in the photograph of him riding a bicycle). He identifies the new brickwork seen in photographs 1/5/142-143 with where that window used to be. He also says that the black downpipe he refers to did not exist at that time (“100% sure”). He says he installed the drainpipe leading down from the roof of the garage visible to the left of the pillar post in the damaged photograph (1/5/138). The damaged photograph and the photograph taken from the library car park (2/6/426) both show a lighter downpipe (not black) above the garage roof. Mr Sainsbury said this wall was altered later. He was challenged on all this evidence, but he was unshaken.

54. Mr Wadden said in his statement that the boundary on the eastern wall was where the black drainpipe is today. He also said in that statement that two cars could not have been parked in the garage, despite Mr Sainsbury’s evidence that he did. In cross-examination, Mr Wadden initially accepted that Mr Sainsbury’s recollection of where the garage stood was more likely to be correct, and that Mr Sainsbury’s recollection of being able to park two cars in the garage was more accurate. (I am indeed satisfied that two cars could be and were parked by Mr Sainsbury, as he says.) He had never heard of the window in the wall before. Of course, it had been bricked up before he moved in. But he insisted that the boundary was at least near the black downpipe. He relied on the scarring on the wall, though eventually he accepted that the scarring pre-dated the garage. He was recalled later, and explained how he dismantled the garage. He said that the black downpipe replaced the earlier grey pipe. According to him there was a soakaway in the garage.

55. On the position of the garage roof on the eastern wall, I accept Mr Sainsbury’s evidence as substantially correct, and think Mr Wadden is mistaken in some important respects. Mr Sainsbury owned both properties. There was no reason to stint himself in building his garage, and the window in the wall would have been a natural boundary. In my judgment, on the evidence, the northern edge of the overhang of the garage roof was adjacent (on the south side) to the downpipe from the garage roof, which itself was just to the south of the old window in the eastern wall. So the boundary lies at a distance from the (now bricked up) window corresponding to the width of the (since removed) downpipe. That would be approximately at the southernmost edges of the new bricks used to brick up the window, on the basis that the edge of the window-frame would be half a brick north of that, the half brick representing the width of the original downpipe.

56. The downpipe above the garage was a later addition, but did not go down to the ground, only to the garage roof. It was replaced by the black pipe after the garage was removed, although the black pipe may not have been in exactly the same position, but on the other hand went all the way down to the ground. On the whole, I think Mr Wadden is (correctly) remembering the original downpipe from the garage roof as the marker for the boundary when the garage was still there, but then (mistakenly) transposing it to the later black downpipe when that was installed and the garage itself was no longer in situ. The scarring and the marks on the wall, both horizontal and vertical (seen on the photograph of young Mr Sainsbury, and evidently derived from a much earlier structure) are in my judgment red herrings.

57. There is also the evidence of the laying of turf by Mr Wadden and Mr Hayter. Each was to turf his own land. Mr Wadden said he laid his first, and then Mr Hayter laid his. I accept that. In the photograph at 1/1/28 (also at 2/6/328) the line between the two sections of turf is apparent. At the eastern wall, the dividing line is approximately where the vertical scarring on the wall is to be seen. As I have said, in my view that scarring is not connected to the later positioning of the garage. But the bricked up window can be clearly seen, and is just to the left (north) of the dividing line in the turf. It must have been clear on the ground where the edge of the garage had been. Mr Wadden said the garage had a concrete floor, which he broke up with a drill, whereas The Yard was composed of flagstones and unmade ground. He told me (and I accept) that there was a clear difference in the textures of the two parts of the land. Assuming that the turf was laid by Mr Wadden up to the edge of the former garage floor, a few inches would have to be added for the overhang on the roof, since the boundary is at the northern edge of the overhang. That takes us to just short of where the window was. This confirms my view as to the correct position of the boundary.

58. Mr Hayter’s evidence in his statement was that the boundary on the east side was at least one foot further north than the current inner gates. As can be seen from photographs (eg 1/5/142 and 143), those gates lie just to the north of the bricked up window. I do not think that Mr Hayter can be right about this, and the claimant himself does not support this view. The claimant’s evidence is that, when those gates were installed, the first defendant told him that he had given him some land, and the claimant was surprised. But he did not complain that his land was being taken.

59. Lastly, there is the evidence of the bricks added into the elbow formed by the meeting of the high level and low level walls, and the metal clip found there. In my judgment this adds nothing on the question of where the boundary lies. The clip does not appear to be of a kind for retaining a downpipe. I add that the east wall boundary point I have found is no more than about 50 cm from the ‘node’ shown on the 1999 Ordnance Survey plan. For the reasons given, this does not cause me to revise my view.

60. On the western wall, Mr Sainsbury said in his statement that the front of the garage roof met The Cottage over the window next to the front door. He noted that they had since been replaced, but considered that they were still “more or less” in the same place. Having examined the site in January this year, he considered that would cover two of the vertical panes of the present window (see the photograph at 1/5/139, where he has marked the point to which in his opinion the roof overhang would come). Mr Hayter in his statement said that he had replaced the front door by a narrower one. Whilst the left hand door post remained in the same place, the right hand door post had moved a few inches to the left. He had then installed a new window which was wider than the original, so as to cover the gap. He said that when the garage was in place it made the living room “dingy”. That suggests that the front of the garage obscured at least part of the window. Mr Hayter said it covered most of it, but I do not think that that can be right.

61. Mr Hayter also gave evidence about filling in the holes in the wall caused by removing the beams supporting the garage roof. But as I have already said, I am not satisfied from this (and the evidence of the experts) as to exactly where the beam at the front of the roof met the wall of The Cottage. Mr Wadden’s statement said nothing about this issue, though in cross-examination he said that the front beam came to the right hand door post. He then said it was further forward than that, alongside the window. But he did not live there, and I do not think I can safely rely on his evidence as to this where it conflicts significantly with that of Mr Hayter (who did) or of Mr Sainsbury (who put the garage up, at a time when he owned both properties).

62. Both Mr Sainsbury and Mr Hayter were challenged on their evidence. As I have said, I do not think that all of Mr Hayter’s can be accepted uncritically. And I think that Mr Sainsbury is wrong to consider that the boundary is as far to the north as the division between the second and third segments of the current window. But on the whole, taking into account the replacement of the window, in my judgment the beam holding up the garage roof met the wall of The Cottage above where the division between the first and second vertical segments of the current window now is.

63. I have therefore decided that, under the transfer of 1999, the boundary across The Yard runs in a straight line from a point between the first and second vertical segments of the current living room window of The Cottage to a point at the southernmost edges of the new bricks used to brick up the window formerly in the wall opposite.

64. But I must also deal with the effect of subsequently installing the inner gates where there were installed, and the claimant thereafter constructing his block paving up to them. On the eastern side of The Yard, the inner gates are situated at the northernmost edges of the new bricks used to block up the window in the eastern wall (see eg the photograph at 1/1/29). On the western side, the gates run to a point very slightly to the north of the division between the second and third segments of the living room window (ie half way along). The block paving runs up to the gates across the whole of The Yard. As already stated, the claimant’s evidence was that the first defendant erected the gates and told him that he had “given [him] some land”. He also said that the first defendant had agreed to the claimant’s constructing the block paving, and complimented him on his completing it (at the claimant’s expense). I accept this evidence. So the claimant in constructing his block paver at his own expense on land was relying on statements by the first defendant that he had given him that land, or at the least was content for him to construct block paver on it.

65. On this basis, it would have been open to the claimant to argue that the boundary, wherever it was under the 1999 transfer, was now impliedly agreed to be where the gates were. But that is not the case put for the claimant, and I therefore do not adjudicate upon it. Nonetheless it is clear that, to the extent that the block paver has been constructed on the defendants’ land (ie by reference to the boundary as established above), they are now unable to complain of any trespass by the claimant in that respect, or in stationing his vehicles or other chattels upon it. They, through the first defendant, consented to the construction of the paver, and its use thereafter as hardstanding, and made no complaint as it was being constructed or after it had been completed. They must live with the consequences of that.

The right of way

Interpretation and scope

66. I turn now to consider the question of the right of way claimed by the claimant. In the first instance, this depends on the true construction of the transfer of 1999, interpreted in the light of the factual matrix in existence at that time. I have set out the relevant provisions of the transfer earlier in this judgment.

67. The relevant factual matrix is clear. Mr Sainsbury owned both properties. He was seeking to wind down his business, and sell off the land. He marketed The Cottage and number 17 separately, and The Cottage sold first. He did not know how long it would take to sell number 17. He wanted to continue his business as an antique dealer and to live at number 17 until he did. So he was concerned to retain all the rights that he would need for those purposes. There was no parking at the front of number 17. Deliveries to and collections from his antiques business (carried on in number 17) would have to come through the back. He also had a workshop, formerly in The Cottage, but after the sale of that property in the garage, and that would have needs too.

68. Accordingly, Mr Sainsbury sought to reserve as many rights over the land which he sold off (The Cottage) as possible. Of course he wanted to get a good price for what he sold, but my assessment is that, in the uncertainty of knowing when he would be able to sell number 17, and still carrying on business in the meantime, he took no risks in what he retained. It is clear on the evidence that he sold The Cottage for less than he would have obtained if the Yard had become a private garden, and there had not been the right of way and associated rights across the Yard. Indeed, the second defendant (with her husband buying from Mr Hayter and Ms Marlow) accepted that, although the right of way reduced the privacy available to the occupants of The Cottage, and that they would love to have had their own space, that made the price lower than for a comparable property elsewhere.

69. Judged in that light, it would not be right to give a narrow interpretation to the express right of way reserved by the sale of The Cottage. In my judgment this is a right of way at all times, for all purposes, with or without vehicles, over every part of the Yard, for the purpose of access to the garage. There is no good reason to restrict it, as the defendants seek to do, to that part of the Yard that is reasonably necessary to enable passage from the library to the garage. In particular, the claimant is not restricted to a strip eight feet wide, or for that matter any other width. That is not what it says. The fact that the servient owner is subject to a positive covenant (in Additional Provision (b)(iii)) to keep concreted as a solid surface only so much of the Yard as is reasonably necessary to enable vehicles to pass does not control the meaning of the easement in Schedule 2 paragraph 2. The two provisions are independent, and a right of way can exist over unmade as well as made up surfaces. Moreover, the right is not purely vehicular, but extends to pedestrian access too. Such access can be over surfaces impassable to vehicles. The predecessor in title of the dominant owner bargained for the most ample space possible in which to exercise his right, and there is no reason to cut the bargain down. The claimant stands in his shoes, and is entitled to exactly the same right. It is a sufficient restriction that, as it expressly says, the right is “for the sole purpose of access to the garage”. But the use of that phrase leads to a further argument with which I must deal.

70. The defendants argue that the right was reserved only to serve the garage structure which then existed. They point to the language of the reservation (“for the sole purpose of access to the garage”). Once the garage was demolished, they say, the right came to an end. Of course there can be cases where that is so. It is a matter of construction of the grant or reservation as to whether it is so limited: see eg Allan v Gomme (1840) 11 Ad & El 759, 769-70; CDC2020 plc v Ferreira [2005] EWCA Civ 611 (where the garages were on a different level, and separated by a garden, from the houses). But here the physical connection of the garage to the property it served, and the reasons why the right was reserved (to enable the continuance of, and to protect, Mr Sainsbury’s business) make it clear that it was intended for the benefit of the land and not for the benefit of the garage alone, and only as a garage. As such, in my judgment, the right was intended to, and does, survive the demolition of the garage. It is not suspended, much less abandoned.

71. The defendants argue that there has somehow been excess user following the demolition. I do not accept this. The land served by the easement is the same, and the capacity of the land for car parking is the same. There has been no change in the character of the use. It is still for the benefit of number 17, and has not, for example, been turned into a commercial car park.

72. In the corner of the Yard referred to as the “elbow” a raised surface has been installed. It has been referred to as the patio. The defendants argue that, as Mr Sainsbury did not use that part of The Yard to drive over, the right of way did not extend to it. I have dealt with that argument already, in holding that the right extended to every part of The Yard. Just because a dominant owner never makes use of some part of the right does not without more bring it to an end. In a constricted area, such as The Yard is, even the “elbow” might, if only on rare occasions, be useful as a space to reverse into or out of whilst manoeuvring a vehicle in or out of the garage. And here, the claimant has very sensibly not attempted to exercise such a manoeuvring right into the elbow and over the patio during the currency of these proceedings. So, subject to the effect of any consent of or acquiescence by the defendant in relation to the construction of the patio, in my judgment the right extends also to that part of the Yard on which the patio is laid.

73. But the defendants’ argument also fails for a different reason, which also exposes the fallacy of the defendants’ submission that the claimant is confined to an eight-foot wide strip directly from the car park to number 17. The claimant is entitled to access his property over The Yard on foot as well as by vehicle. The reserved right of way covering the whole of The Yard, he is not confined to the straightest possible line. For his own reasons the claimant prefers not to walk over the stone scalpings if he can avoid it, and therefore takes the longer route round the edge of The Yard, over the patio and the path. He is entitled to do so if that is more convenient to him. He has used that route on numerous occasions. It is therefore incorrect to say that he never crosses the “elbow” of The Yard to reach his property.

74. In relation to the patio, I find that the claimant consented to its laying by the defendants, in part so as to cover up partially buried pipes (see the photograph at 2/8/739). Indeed, he lent them equipment and gave them some materials to assist them, a neighbourly gesture that I expect he now regrets. The patio in fact extends beyond the corner of the Cottage and into the driveway from the library carpark. The laying of the patio has had the effect of raising the level of that part of the Yard above that of the rest. I also find that the claimant believed that the defendants intended to and would raise the level of the Yard surrounding to the same level. In fact that raising of the level never happened, it is said because planning permission could not be obtained (the planning authority letter and email at 1/1/38 and 39 bear on this issue, but do not resolve it).

75. This means that it is now more difficult for the claimant to bring a vehicle into the Yard because either the whole vehicle has to squeeze between the edge of the patio on one side and the wall on the other (difficult because of the bushes and plants the defendants have allowed to grow up the wall directly opposite (see eg at 1/5/216, 2/8/669-70), or the vehicle has to go up onto the corner of the patio and then down on the other side. In fact, the defendants have taken to placing flower pots on the corner of the patio, obviously to discourage the claimant from doing this (see eg the photographs at 1/5/196 and 216).

76. As a matter of law, however, I hold that the claimant’s consent to the laying of the patio does not cause his right in relation to that part of the Yard to cease. It is clear to me that he had no intention to give up his rights by so consenting. He remains as entitled to drive over the patio in exercise of the right of way as he is to do so over any other part of the Yard. On the other hand, having consented to its being laid, the claimant is not now entitled to require the patio to be removed. But the defendants cannot complain if the patio is damaged by ordinary use for passage by the claimant in the exercise of his rights.

Estoppel

77. As mentioned at [4] above, the claimant was permitted during the trial to amend his case so as to plead an estoppel as to the matters contended for in paragraph 21 of the defence. That paragraph deals with the argument that, when the garage was removed, the right of way ceased. That is all it deals with. It does not deal with the scope or extent of the right in any other respect, eg as to whether it extends to every part of The Yard. Nor does it deal with any pro-active estoppel argument that might result in the creation of a new right where there was none before (eg a proprietary estoppel). At the conclusion of the trial, I asked for, and received, written submissions on the estoppel point so raised. In light of my conclusion on the defendants’ argument about the effect of the removal of the garage, at [71], the point does not strictly arise, but, in deference to the excellent arguments which I received from counsel, I will shortly state my conclusions on it.

78. First, I accept that the claimant and Mr Hayter did discuss the right of way issue before the claimant committed himself to the purchase of number 17. I see the force of at least some of the criticisms made by counsel of the evidence given by them, and in particular that of Mr Hayter, but I am not concerned with all the details of the scope or effect of the right claimed. Instead I am only concerned with whether the continued existence of the right (whatever its true scope and effect) since the removal of the garage was asserted, represented and accepted by Mr Hayter, in a form which could properly lay the foundation for a representational or conventional estoppel. In my judgment, on the evidence, Mr Hayter, knowing that it mattered to the claimant whether such a right existed, and would affect his decision to buy or not, both represented to and agreed with the claimant that it did. In so speaking, Mr Hayter was acting on behalf of both himself and his co-owner Janice Marlow. As such a co-owner, he had at least ostensible authority for this purpose (I heard no evidence as to what Ms Marlow knew, or as to actual authority).

79. On the assumption (which I have held to be incorrect) that on the true construction of the 1999 transfer the right had in fact ceased on the removal of the garage, that agreement constituted both a representation (of law) that the right continued, and also an agreement as to the state of rights between the owners for the time being of the two properties. The representation and agreement were intended to be relied upon. The fact that (on this assumption) they were wrong would not make it any the less a proper foundation for an estoppel, provided that Mr Hayter either made a positive representation to or positive agreement with the claimant as to the existence of the right: see Hopgood v Brown [1955] 1 WLR 213, 223-24. That is exactly the situation in which these estoppels work.

80. The claimant then relied on that representation and agreement by purchasing number 17. Prima facie, therefore, Mr Hayter and Ms Marlow would have been estopped from putting forward any argument thereafter, as against the claimant, that the right of way had ceased on the demolition of the garage. In my judgment the defendants, as successors in title to Mr Hayter and Ms Marlow, in principle cannot be in any better position: see Board v Board (1874) LR 9 QB 48, 53; Hopgood v Brown [1955] 1 WLR 213, 224-25; Valentine v Allen [2003] EWCA Civ 915, [65]. They would have been aware of the terms of the 1999 transfer, and would have been put on notice as to the possibility that the rights reserved by that transfer might have been dealt with in some way which could impact them. Subject to statutory and some other exceptions, the rule in English law is still caveat emptor: let the buyer beware.

81. But this is registered land, and Mr Duckworth, for the defendants, refers me to the Land Registration Act 2002, ss 29 and 116. The former provides (in general terms) that a purchaser for value of a registered estate who becomes registered proprietor takes free of unprotected interests. The latter provides that “an equity by estoppel” and “a mere equity” take effect as interests capable of binding successors in title, but subject to the rules about the effect of dispositions on priority (ie including s 29). He argues that, as the claimant’s interest was not protected by notice, and is not otherwise protected (eg as the interest of a person in actual occupation of the relevant land), the claimant’s estoppel argument cannot take effect as either “an equity by estoppel” or “a mere equity”.

82. For what it may be worth, I accept this argument. To the extent that the claimant is contending for either of these two things, his estoppel claim fails. But, in my judgment, s 116 does not extend to what I may call common law estoppels, such as estoppel by (positive) representation or by agreement (estoppel by convention, or homologatory estoppel). These do not create equitable proprietary rights. Instead they prevent the person estopped (or his successor in title) from asserting a right which the person estopped has positively represented or agreed that he does not have, but which otherwise he would have. There is nothing in the 2002 Act which prevents the operation of such an estoppel in relation to registered land.

83. Mr Duckworth however says that

“It would wholly undermine and emasculate the intended purpose of the [2002 Act] if estoppels arising in equity were caught by the legislative net, but estoppels arising at common law slipped through it. Indeed the legislation exists to prevent precisely this kind of wholly invisible property interest or equity being sprung against purchasers in the years after their acquisition.”

84. I reject this submission. It arises from a confusion in the use of the word ‘estoppel’. The original (and proper) meaning of ‘estoppel’ is as a rule of procedure or evidence, designed to prevent injustice. It does this by not allowing a party who has put forward to another party an (incorrect) proposition of fact or law, intending that other person to rely on it as true, to seek to plead a case putting forward a different position for the purpose of legal proceedings, once that other has relied on the proposition, incurring detriment. Both representational and conventional estoppels fall into this category. The other, more modern (and improper) use of the term ‘estoppel’ is to designate equitable doctrines under which promises or expectations of acquiring property rights may be enforced against promisors who have not entered into legally enforceable contracts. The only thing that such cases have in common with “common law estoppels” is that they depend on establishing detrimental reliance, and no doubt it is this feature which has led to the use of the term ‘estoppel’. Common law estoppels are procedural devices. Proprietary and other equitable estoppels are substantive legal doctrines.

85. The 2002 Act makes provision for the equitable estoppels because they create interests in land which have to be fitted into the registration system. But the Act makes no provision for common law estoppels because they are just part of the procedural framework against which the Act – like any other Act – operates. Mr Duckworth argues that to allow a representational or conventional estoppel here would allow a “wholly invisible property interest or equity [to be] sprung against purchasers”. But the same would be true of any claim to a property right which depended on a point of fact where the evidence was known to one party and not to the other. The property right would be invisible to one party, because the evidence would be unknown to that party.

86. Examples of this can be found throughout the 2002 Act. A particularly relevant one is found in Sch 3 para 3, dealing with unregistered easements which, although not known to the disponee and not obvious on a reasonably careful inspection of the land, have nonetheless been exercised within one year before the disposition. They will bind the servient tenement nonetheless. Another example arises from the provisions of Sch 4 to the Act, dealing with alteration of the register for the purpose of correcting a mistake or bringing the register up to date, where it would be unjust not to make the alteration (paras 2(1)(a),(c), 3(2)(b)). Ex hypothesi the register would not show the right, and the evidence for applying for the alteration may be known only to one party.

87. Indeed, the facts of the present case give a further useful example. The terms of the reservation of right of way in the 1999 transfer show a possible argument as to its duration being limited to the time when the garage is present. Suppose however that it were clearly so limited. A potential purchaser of either the servient or the dominant tenement who was unable to visit or send a representative might be induced to buy on the faith of a representation by the other as to whether the garage was there or not. Whether the right in fact subsists in such a case essentially depends on a point of fact. The rules of procedure and evidence (including common law estoppel), rather than the terms of the 2002 Act, will govern whether and how the purchaser might be able to plead a case asserting or denying that the garage was there.

88. For all these reasons, I see no objection to a common law estoppel argument succeeding in favour of the claimant, in relation to the subsistence of the right argument, if the claimant were otherwise unsuccessful on the question of construction. But in the event the claimant succeeds on construction.

Interference

89. As I said above, the defendants have constructed two sets of gates, one at the exit to the library car park, and the other in front of the claimant’s hard standing where he parks his cars. This was done with the consent of the claimant, though subject to conditions. In addition, the defendants constructed a patio in the “elbow” of The Cottage, and that they placed garden furniture, dustbins, barbecue, children’s toys, and plants and bushes in pots not only on this patio, and on the path by the side of The Cottage (see eg 1/5/214, 215 and 243), but also on parts of The Yard itself. A garden table and chairs were placed, not on the obvious place, the paved patio, but instead some distance out into The Yard, on the unstable scalpings (see eg 1/1/48 and 49). From time to time the defendants or their visitors sat at this table (see eg 1/5/286-87, 2/8/689-92).

90. They did all this despite the fact that they rented and apparently still rent a garden on the other side of The Cottage. Some of these items, such as the barbecue, have apparently now been removed to the garden. I have seen photographs of these items in The Yard and of persons sitting at the table there. Sometimes there is a heavy pot plant on the table (see eg 2/1/48, 49, 288), making it very difficult to move. The pots of flowers and bushes, the garden furniture and the other items in the photographs have obviously been placed so as to cause maximum inconvenience to the claimant.

91. It is childish behaviour by the defendants, and reflects no credit on them or their relatives who took part in this game. I cannot help thinking that the defendants have embarked on this campaign deliberately, with a view to discouraging the claimant, little by little, from making any use of the rights which he has, and so rendering The Yard a much more valuable piece of land to the defendants than it was when they bought and paid a reduced price for it.

92. I have already set out above the terms of the right of way reserved to the owner of number 17, and also the additional provision (b)(ii) (covenant by the owners of The Cottage not to obstruct The Yard). I must now consider whether the actions of the defendants and their agents infringe any of the rights of the claimant under those provisions.

93. In B & Q plc v Liverpool & Lancashire Properties Ltd (2001) 81 P & CR 20 a similar problem arose to the present, but on a larger scale. There the claimant had a right of way to its commercial premises over the whole of a large area adjacent. It used that right for deliveries by large lorries. The defendant proposed to extend a building so as to encroach on the area over which the right of way subsisted, arguing that it would not be sufficient to interfere with the exercise of the right.

94. Blackburne J said this:

“Actionable infringement of a right of way

39 What constitutes an actionable infringement of a right of way turns on well established principles. They were most recently summarised by Mummery L.J. in West v. Sharp (already referred to) at p. 332:

“Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him.”

40 He then cited with approval the following passage from the judgment of Scott J. in Celsteel Limited v. Alton House Limited [1985] 1 W.L.R. 204 at 217:

“There emerge from the three cases I have cited [ i.e. Clifford v. Hoare (1874) L.R. 9 C.P. 362; Pettey v. Parsons [1914] 2 Ch 653 and Keefe v. Amor [1965] 1 Q.B. 334] two criteria relevant to the question whether a particular interference with a right of way is actionable. The interference will be actionable if it is substantial And it will not be substantial if it does not interfere with the reasonable use of the right of way.”

41 But what exactly is meant by “the reasonable use” of a right of way? The decision in Celsteel is illuminating in its approach to this question.

42 In that case, the issue was whether the narrowing of a driveway to garages and parking spaces for use by the residential tenants of a block of flats would constitute an actionable interference. The plaintiff were the lessees of some of the flats and garages. The two defendants, one of whom was the freehold owner of the block and the other of whom was the tenant of a major part of the ground level of the block, proposed to construct a car wash on the driveway which, if built, would have reduced the width of the driveway for about 10 to 12 metres of its length from 9 to 4.14 metres. Before considering whether this would constitute an actionable interference, Scott J. considered the particular circumstances of two of the tenants. In the case of the tenant of garage number 52, the evidence established that if the car wash were built it would no longer be practicable for that tenant to reverse into his garage although he could continue without any particular difficulty to enter the garage in forward gear, reversing only to exit from it. The tenant's preference, however, was to reverse in.

43 In answer to a submission that it was preferable to drive in forwards and reverse out (rather than reverse in and drive out forwards) Scott J. observed (at p. 217d): *256

“There are advantages and disadvantages attached to both of the alternatives. Some may prefer one, others may prefer the other. In my view, a lessee whose right of way permits him to adopt either alternative as he may from time to time choose, suffers actionable interference if one alternative is precluded and he is constrained always to adopt the other. To put the point another way, use of the … driveway in order to reverse into garage 52 is a reasonable use. An obstruction which prevents that use is, accordingly, in my judgment actionable.”

44 Scott J. then went on to consider a variant of the same contention in the following passage (at 271e–g):

“Mr Laurence [counsel for the defendants] submitted that driving in forwards and reversing out was reasonable use of the … driveway. I agree with him. He submitted further that the proposed car wash would not substantially interfere with this particular use, and thus would not prevent reasonable access by the … plaintiff to garage 52. He argued from these premises that the car wash would not, on authority, constitute an actionable interference I do not accept that authority justifies this argued conclusion. In the present case the test is not, in my view, whether the means of access still possible is a reasonable means of access. The correct test is whether insistence by the … plaintiff on being able to continue to use the other means of access is reasonable In my opinion, it is. I do not think it is open to the defendants to deprive the … plaintiff of his preferred means of entry to garage 52 and then to justify themselves by arguing that most other people would prefer some other still available means of entry. Such an argument might avail the defendants if the … plaintiff's preference were unreasonable or perverse But, in my view, it is neither of these things.”

45 In my view those passages justify the following propositions advanced by Mr Gaunt: (1) the test of an actionable interference is not whether what the grantee is left with is reasonable, but whether his insistence on being able to continue the use of the whole of what he contracted for is reasonable; (2) it is not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee's preference is unreasonable or perverse. I call them Mr Gaunt's first and second propositions.

46 After considering the impact on another tenant's ability to gain access to his garage, Scott J. considered whether the narrowing of the driveway would constitute an actionable interference with the tenants' reasonable use of it. At p. 218c–g he said this:

“There are 56 flats at Cavendish House [the block of flats]. The rear driveway may be used by all of them, their visitors and licensees. Vehicles using the rear driveway may range from small cars to large commercial vans. On occasion, lorries may require to use the driveway. The plaintiffs were granted rights of way over a driveway nine metres or thereabouts in width, but with the usable width capable of being reduced by about two metres in the event of cars being parked along the East side of the driveway. I am reluctant to accept that a grantor, having granted a right of way over a nine-metre driveway, can reduce the width of the way by more than a half over an appreciable distance and then require the grantees to accept the reduction of the ground that what is*257 left is all that they reasonably need. It seems to me that the proposed reduction will materially and permanently detract from the quality of the rear driveway and of the plaintiffs' rights over it …. It does not seem to me possible to say that the permanent narrowing of the rear driveway from nine to 4.14 metres over the length of the proposed car wash would leave the rear driveway as convenient for the reasonable use of the plaintiffs as it was before the reduction. The plaintiffs have been granted a right of way over a nine-metre driveway. The enjoyment thereof to which they are entitled under their respective grants cannot, in my judgment, be limited by requiring them to accept a 4.14 metre driveway. If the freeholders wanted the right to construct a car wash on the driveway and thereby to reduce its width to 4.14 metres it was, in my judgment, incumbent on them to reserve that right in the leases. Not having done so, they are not, in my view, entitled to remedy the omission by arguing that 4.14 metres is all the plaintiffs reasonably need. The plaintiffs are, in my judgment, entitled under their grants to the relative luxury, if that is what it is, of a nine-metre right of way. That, after all, is part of what they have paid for.”

47 That passage justifies the following further proposition advanced by Mr Gaunt, which I call Mr Gaunt's third proposition, namely, that if the grantee has contracted for the “relative luxury” of an ample right, he is not to be deprived of that right in the absence of an explicit reservation of a right to build on it merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required.

48 In short, the test, as Mr Gaunt submitted, is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?

49 Applying that test to the facts of this case, the question is whether B&Q's (and its suppliers') vehicles will be able substantially and practically to exercise the right of way over the unit 2 service yard to unit 1 as conveniently after the extension to unit 2A has been built as they can now?”

95. So, to summarise what Blackburne J there held (based on Mr Gaunt QC’s own propositions): (i) the test of an actionable interference with an easement of way following an encroachment is not whether what the grantee was left with is reasonable, but whether his insistence on being able to continue the use of the whole of what he contracted for is reasonable; (ii) it is not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee's preference is unreasonable or perverse; and (iii) if the grantee has contracted for the “relative luxury” of an ample right, he is not to be deprived of that right in the absence of an explicit reservation of a right to build on it merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required. The test is one of convenience and not necessity or reasonable necessity.

96. The defendants rely on Keefe v Amor [1965] 1 QB 334, CA, which was referred to by Blackburne J in the B & Q case. In Keefe v Amor, two semi-detached houses were accessed from the public highway by a private drive belonging to the owner of one of them (the servient tenement). The owner of the other (the dominant tenement) had a right of way over the drive to her front door. The drive was twenty feet wide, of which only eight feet were gravelled, but the gate to the highway was only four feet six inches wide. The servient owner enlarged the entrance to the highway to seven feet six inches by rehanging the existing gate and installing another gate, three feet wide, next to it. But she kept the latter gate locked. The dominant owner sought and obtained a declaration that the right of way over the drive was for vehicular as well as pedestrian traffic, and also that the locking the second gate was an actionable interference with her rights.

97. Russell LJ, with whom Sellers and Davies LJJ agreed, said (at 346G):

“… where a right of way exists in respect of a strip of land it is not necessarily open to the grantee to complain of obstacles on every part of the strip; he can only complain of such obstacles as impede the user of the strip for such exercise of the right granted as from time to time is reasonably required by the dominant tenant.”

The judge continued (at 347C-E):

“I would remark that it is sometimes thought that the grant of a right of way in respect of every part of a defined area involves the proposition that the grantee can object to anything on any part of the area which would obstruct passage over that part. This is a wrong understanding of the law. Assuming a right of way of a particular quality over an area of land, it will extend to every part of that area, as a matter, at least, of theory. But a right of way is not a right absolutely to restrict user of the area by the owner thereof. The grantee of the right could only object to such activities of the owner of the land, including retention of obstruction, as substantially interfered with the use of the land in such exercise of the defined right as for the time being is reasonably required.”

98. These statements were not in fact needed for the decision in that case, and are therefore strictly obiter dicta, but their correctness is not doubted. They were taken into account by Scott J in reaching his conclusions in the Celsteel case, which was itself relied on by Blackburne J in the B & Q case.

99. In the present case, I need to distinguish the impact of the gates on the one hand, from the other complaints of interference made by the claimant. I will deal with the latter first. On the evidence before me, the position is that:

(1) The claimant still has difficulty in entering and leaving the left hand side of the parking area at number 17 because of the obstructions placed by the defendants; the table and chairs may now have been moved closer to the “elbow”, but the claimant still does not have the ability to reverse into the elbow to make a straight run at the left hand side of that parking area, and he cannot easily walk round the edge of The Yard to avoid the scalpings.

(2) The claimant cannot drive over the corner of the patio because of the obstructions placed by the defendants.

(3) As for the installation of the gates, a distinction must be drawn between the outer and the inner gates. In relation to the outer gates, the claimant unconditionally consented to their installation, and cannot now complain that their mere existence inconveniences him. He can however complain if the gates are not held open – or do not stay open – while he enters or leaves, because then it becomes a two-person operation, and he may be – is entitled to be – using the right alone. He consented to gates that stayed open for him to pass through. In my judgment, in the circumstances, gates that close on his vehicle as he tries to pass through would be a sufficiently serious interference with the exercise of his right of way.

(4) In relation to the inner gates the matter is different, and indeed more serious. I have found that the claimant agreed to their installation on the condition that they would be closed only whilst the defendants’ daughter was playing in The Yard. That condition has not been observed by the defendants on numerous occasions, referred to in the claimant’s witness statement and not successfully challenged in cross-examination. Accordingly the consent is vitiated, and the position must be considered as if no consent was given. The installation of such gates left closed, even unlocked, is a substantial interference with the right of way, because it requires the claimant to open them before being able to exercise the right of way.

100. I was referred to the decision of Lewison J in Siggery v Bell [2007] EWHC 2167 (Ch), where the judge held that the installation of two sets of gates on a track over which the claimants had a right of way was an actionable interference with their right. That was plainly a more serious case than the present, where the claimant consented unconditionally to the installation of the outer gates, and it is only the inner gates that he can properly complain of as such, although he can add to that the working of the outer gates when they do not remain open during entrance and exit.

101. Taking these matters together, and testing them by reference to what is laid down in Keefe v Amor, Celsteel, and B & Q, I have no hesitation in saying that the defendants’ activities “substantially interfered with the [claimant’s] use of the land in such exercise of the defined right as for the time being [was] reasonably required”, it being reasonable to insist “on being able to continue the use of the whole of what [the claimant’s predecessor in title] contracted for”, the claimant’s preference as to modus operandi not being “unreasonable or perverse”, and he not being liable to be deprived of his “ample right”, the test being “one of convenience and not necessity or reasonable necessity”.

102. The claimant is not entitled to require that the outer gates be removed, but he is entitled to require that they operate in such a way that he can drive through alone, by remaining open once opened and not closing themselves on his vehicle. As to the inner gates, he is entitled to require that they be removed. In any event the whole point of their installation, to protect the defendants’ daughter from hurting herself by wandering onto the claimant’s land when a toddler, has gone, since she is now of an age (approximately 8 years old) where she can understand the importance of obeying her parents’ prohibition on trespassing on the claimant’s land. In this connection, I accept the claimant’s evidence that from the outset the defendants agreed to their removal when their daughter was old enough to understand that she should not go on the claimant’s land by herself. So they cannot now object to their removal.

103. I add that the activities of the defendants in placing plant pots, garden furniture, children’s toys and so on in The Yard also constitute a clear breach of the covenant not “to obstruct [The Yard] by deposit of materials or in any other way”. Given my conclusion on the right of way this adds little, but even by itself such a breach would ordinarily justify an injunction remedy to the claimant.

104. It is right that I record that the claimant in the period following the purchase of The Cottage by the defendants continued to park his car in The Yard as he had done previously. The defendants make much of this in their written evidence, with many photographs exhibited. But when it was pointed out to the claimant by the defendants (in 2010) that the transfer by Additional Provision (e) prohibited parking on The Yard by the claimant I find that he apologised and ceased to do so, thereafter parking either in the library car park or in his own parking area. This has no effect on the liability of the defendants in relation to the right of way and their own covenant not to obstruct The Yard. But the contrast between the behaviour of the claimant and of the defendants is striking, nonetheless.

Conclusion

105. In my judgment the claimant is entitled to succeed on both his claim to the right of way over The Yard and his claim that the defendants have actionably obstructed it. I have also determined the boundary line between their two properties. It is an appropriate case for both a declaration and an injunction. The declaration will make clear the extent of the right of way, and where the boundary between the two properties lies, in particular so that future owners and occupiers of each property will know where they stand. An injunction is in my opinion necessary because the behaviour of the defendants has shown that they cannot be trusted to abide by the rights clearly set out in the transfer documents and have attempted to take, little by little, more and more of the claimant’s rights away from him. That must now stop.

106. I do however express the hope that the claimant will be magnanimous in victory, and will permit the defendants to keep some of the plant pots and maybe other items in The Yard in (and I stress) agreed positions. After such a long and wearying battle, it would be a shame if The Yard were suddenly to become devoid of colour and of life. But it is a matter for him.