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Relevance of 1910 Finance Act to RoW determination para 46, 47 52.
Case No: HC 000095
IN THE HIGH COURT OF JUSTICE
CHANCERY DlVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 9th April 2001
B e f o r e :
THE HONOURABLE MR JUSTICE ETHERTON
.................
Robinson Webster (Holdings) Limited
-and-(1) Colin Edward Agombar
(2) Sandra Catherine Agombar
Claimant
Defendants
Mr D Hodge QC and Mr I Partridge (instructed by Manches & Co Solicitors for the Claimant)
Miss K Holland (instructed by Clarks Solicitors for the Defendants)
HANDING DOWN (SUBJECT TO EDITORIAL
CORRECTIONS)
Robinson Webster (Holdings) Ltd-v-Colin Agombar & ors
Mr Justice Etherton:
The Proceedings
1 . These proceedings concern a lane in the hamlet of Thickwood, Colerne,
Wiltshire. The Claimant is registered at H M Land Registry under Title No.
WT 134929 as proprietor of the lane and other land known as Thickwood
Farm. The Defendants own and occupy a property nearby called Thickwood
House, which is registered at H M Land Registry under Title No. WT 99791.
The Claimant seeks declaratory relief to the effect that the Defendants have no
right to use the lane in question. save for one specific limited purpose. The
Defendants claim that the lane is a public highway or, alternatively, that they
have the benefit of a general private right of way over it by vehicle or on foot.
2.
The configuration of the relevant areas of land
The Defendants’ property Thickwood House is a large country house dating
from at least the 17th century. Within the grounds are farm buildings Some of
these have been converted and are in use as a school for dyslexic children.
Two of the outbuildings have also been converted to holiday cottages. The
grounds include an area of land to the north-west of the house, which appears
as No. 5980 on the Ordnance Survey map and which has been referred to as
the meadow (“the Meadow”). The Claimant’s property consists of about 2 12
acres of farm land and a building now known as The Old Farmhouse. That
building was formerly known as Thickwood Farmhouse. The building and
land are now known as Thickwood Farm. Lying between Thickwood House
and Thickwood Farm is a property known as Honeysuckle House. This is a
Victorian property, which formerly comprised two individual cottages. It is
surrounded by a garden and. to the north-east of the house, is a paddock.
Honeysuckle House is owned by a Mr and Mrs Hunt, who are registered as
proprietors at H M Land Registry under Title No WT 12 1168.
3. The lane, which I have mentioned above, has been referred to throughout these
proceedings as the Blue Land (“the Blue Land”). It runs between Thickwood
House and Honeysuckle House, at its western extremity, and Thickwood Lane.
which is the main public highway to Colerne, at its eastern extremity. At the
Thickwood Lane end, the Blue Land splits into two branches and surrounds a
small triangular area of land adjacent to Thickwood Lane. In that triangular
space, on a small green mound, is a public telephone box. As one passes from
Thickwood Lane up the Blue Land towards its western end, there is a property
on the left now called Stone Crop. This property was formerly called
Belvedere and then Wayside. It was referred to as Wayside in the trial, and
this is the name which I will use in this judgment. Beyond Wayside,
proceeding westwards along the Blue Land, lies Thickwood House.
Thickwood House abuts the end of the Blue Land. To the north-east of
Thickwood House, and also abutting the end of the Blue Land, is Honeysuckle
House. Passing in an easterly direction along the Blue Land towards
Thickwood Lane. The Old Farmhouse and Thickwood Farm are the next
property adjoining the Blue Land. Thickwood House, Honeysuckle House and
The Old Farmhouse thus form a cul de sac at the extreme western end of the
Blue Land. To the east of The Old Farmhouse, and adjoining Thickwood Lane,
lies Sarum House. The land on which Sarum House is built was formerly the
garden of Wayside, even though they are on opposite sides of the Blue Land.
4 . In the wall of Wayside, fronting the triangular area adjoining Thickwood
Lane, is a post box. This is the local post box for the hamlet of Thickwood
5.
Some key dates and historical background
An Index Map of the manor of Colerne of 1767 shows Thickwood House as
“Madam Fishers Manor House”. It also shows The Old Farmhouse. The
colouring on the map indicates that both those properties were then in separate
ownership from what is now Honeysuckle House and the Meadow.
6 . The division of the land surrounding the Blue Land between different owners
appears also from a number of other historic documents: the Colerne
Enclosure Award plan of 1787. a copy of New College’s Estate map for
Colerne. said by the Defendants to have been made in about the middle of the
19th Century, and a plan and tithe apportionment schedule accompanying the
1875 Colerne Tithe Award. These 1875 documents record that the Blue Land
was then in the occupation of Parish Officers.
7 . A plan and record of valuations prepared between 1910 and 1920 pursuant to
the Finance (1909-1910) Act 1910 show the Blue Land as an untaxed public
road. By this date the various hereditatments abutting the Blue Land, while in
the occupation of different persons, were all owned by John Walmesley of
Lucknam. They formed part of the Lucknam Park Estate.
8. In 1919 John Walmesley conveyed the Lucknam Park Estate to Alfred Henry
Read. In 1924 Alfred Read conveyed Thickwood House. Honeysuckle House
and Thickwood Farm to George Brown Ewing.
9. The records held by Wiltshire County Council, dating back to 1924, for the
purposes of replying to requests for local authority searches. do not record the
Blue Land as a highway.
10. By the Local Government Act 1929 the County Council became the highway
authority in place of the District Council as from 1st January 1930. Highways
maintainable at the public expense vested in the County Council and became
“County Roads“. The highways records of the District Council were
transferred to the County Council which prepared a “Highway Record”. The
Blue Land is not shown, and apparently has never been shown, on the
Highway Record for Thickwood as a publicly maintained highway.
11. The National Parks and Access to the Countryside Act 1949 required County
Councils to produce a Definitive Map showing all ways which were the
subject of public rights. The Wiltshire County Council’s Definitive Map,
which is now maintained under the Wildlife and Countryside Act 1981, has
never shown the Blue Land as subject to public rights.
12. By a conveyance of 20th August 1952 Miss Georgina Daniels and Mrs Marian
Worthy conveyed Thickwood Farm to George Stephens Gifford (“Mr Gifford
senior”). That conveyance does not appear to have included the Blue Land.
13. By a written agreement dated 9th June 1958 Mr Gifford senior granted Major
Walter Norman Culverwell of Wayside a right of way over the Blue Land
between the garage at Wayside and Thickwood Lane for the yearly sum of £l.
terminable on 12 months written notice.
14. By a conveyance dated 24th July 1959 Miss Daniels and Mrs Worthy
conveyed Thickwood House to Mr Gifford senior. This conveyance did not
include the Blue Land.
15. By a deed of gift dated 4th August 1967 Mr Gifford senior transferred
Honeysuckle House and The Old Farmhouse to his son George Alexander
Gifford (“Mr Gifford junior”). There was included in the conveyance a grant
of a right of way over the Blue Land.
16. By a conveyance dated 11 th April 1969 Mr Gifford senior conveyed
Thickwood House to Mr Gifford junior. Thickwood House was subsequently
transferred by Mr Gifford junior into the joint names of himself and his wife.
17. By a conveyance dated 23rd May 1979 Mr Gifford senior conveyed
Thickwood Farm to Mr Gifford junior.
18. By a conveyance dated 10th October 1979 the Blue Land was purportedly
conveyed by Mr Gifford senior to Mr Gifford junior; and a memorandum to
that effect was indorsed on the 1952 conveyance of Thickwood Farm to Mr
Gifford Senior.
19. By a written agreement dated 1st February 1980 Mr Gifford junior granted Mr
and Mrs Baldwin, the then owners of Wayside, a right of way over the Blue
Land between the garage at Wayside and Thickwood Lane for the yearly sum
of £30 terminable on 6 months written notice.
20. By a deed of grant dated 26th November 1990 Mr Gifford junior granted to
Mr and Mrs Swettenham, the then owners and occupiers of Wayside, for
£6,OOO a right of way over the Blue Land with or without vehicles “in fee
simple or for such right title and interest as the grantor has in [the Blue Land]”
21. In October 1990 Mr Gifford junior decided to sell his properties at Thickwood
and move to Australia. The various properties were put on the market in three
lots. As these sales progressed, the area comprised in each of the lots changed.
The first area in respect of which a sale was negotiated and agreed was what is
now known as Thickwood Farm, which comprised Lot 3 and part of Lot 1.
The purchaser was the Claimant. For the purpose of that sale Mr Gifford junior
made a statutory declaration dated 19th November 1990 in relation to the
ownership of the Blue Land. In the contract of sale between Mr Gifford junior
and the Claimant of the 26th November 1990 Mr Gifford junior agreed to sell
“ such right title and interest as the Seller has in respect of the Blue Land”. The
covenants for title given by Mr Gifford junior in respect of the Blue Land were
expressed to be such as would have been implied if the vendor had transferred
and been expressed to transfer as “trustee”. and not as “beneficial owner”. The
contract for sale was completed by a transfer dated 10th December 1990 (“the
1990 Transfer”) The following provisions of the 1990 Transfer are material to
these proceedings:
“5. The Blue Land is transferred together with the benefit of the
covenants on the part of and subject to the rights of the grantee
contained in a Deed of Grant dated 26th November 1990 made
between the Vendor (1) and David Charles William Swettenham and
Sandra Mary Swettenham (2) (“the Deed of Grant”) except and
reserving the rights set out in the Fourth Schedule.”
“7. The Vendor and Mrs Gifford to the intent and so as to benefit and
protect the Red Land and the Blue Land and each and every part
thereof hereby jointly and severally covenant with the Purchaser that
the Vendor and Mrs Gifford will perform the stipulations and
obligations set out in the Sixth Schedule.”
“The Fourth Schedule
(Rights Excepted and Reserved out of the Blue Land)
1, The right for the Vendor and his successors in title the owners and
occupiers for the time being of that part of the Green Land which is
hatched black only to pass and re-pass with or without vehicles over
and along the Blue Land at all times and for all purposes connected
with the use and occupation of the before-mentioned parts of the Green
Land upon payment to the Purchaser of one half of all sums reasonably
expended by the Purchaser in repairing and maintaining the surface of
the Blue Land as a roadway.
2. The right for the Vendor and his successors in title the owners and
occupiers for the time being of that part of the Green Land which is
cross-hatched black only to pass and re-pass with or without vehicles
over and along the Blue Land at all times and for the sole purpose of
delivering and accepting delivery of supplies of oil to such property.
3.....”
“The Sixth Schedule
(Positive Covenants by the Vendor and Mrs Gifford)
l....
2. By the 31 st January 1991 to erect a dry stone wall between the points
marked R and S on the plan to the reasonable satisfaction of the
Purchaser to the effect that the right of way over the Blue Land from
Thickwood Lane to Thickwood House shall be extinguished.”
22. By two transfers dated 9th January 1991 (one being by Mr Gifford junior
alone, and the other being by Mr Gifford and his wife) Thickwood House and
the rest of the land now included in Title No WT 99791 were transferred to
Peter and Susan Leatherlands. There was included in the land transferred part
of the land edged green and hatched black (“the Green land”) in respect of
which rights had been reserved in favour of Mr Gifford junior by the 1990
Transfer. The part of the Green Land transferred to Mr and Mrs Leatherlands
comprised the Meadow and a narrow strip within the garden of Thickwood
House and adjacent to the boundary with Honeysuckle House, but not
contiguous with the Blue Land. The transfers to Mr and Mrs Leatherlands
were with the benefit of the exceptions and reservations contained in the 1990
Transfer and were subject thereto. Both transfers contained, in clause 3,
covenants by the purchasers to perform the vendor’s covenants in the 1990
Transfer.
23. On 5th June 1991 the Claimant granted Mr and Mrs Leatherlands permission
to install a gate in the wall which was to be erected on the boundary of the
Blue Land with their land, and a personal licence. terminable by one week’s
notice, to pass over the Blue Land on foot at a nominal fee.
24. On 8th April 1993 Mr Gifford junior transferred Honeysuckle House to Mr
and Mrs Hunt.
25. In 1994 the Defendants became interested in acquiring Thickwood House.
Their solicitors, W Bache & Sons, wrote to Wiltshire County Council on 5th
26.
27
August 1994 enquiring about the status of the Blue Land. On 23rd September
1994 the Council replied to the solicitors indicating that the Blue Land was
highway.
On 11 th November 1994 Mr and Mrs Leatherlands agreed to sell Thickwood
House, land and farm buildings to the Defendants. That sale was completed
on 19th December 1994.
In response to a request of the Defendants’ solicitors, H M Land Registry
indicated on 7th April 1994 that the register would be rectified to include a
note of rights over the Blue Land in favour of the Green Land.
28. On 24th May 1995 the Defendants wrote to the Claimant introducing
themselves as neighbours, explaining that they understood there was right of
access along the Blue Land and indicating that they were going to unlock and
use the gate on the boundary of their land and the Blue Land. The Claimant’s
solicitors replied on 1 st June 1995 refuting the Defendants’ claims and
terminating the personal licence granted by the Claimant to Mr and Mrs
Leatherlands.
29. On 3rd March 2000 the Claimant commenced the present proceedings. By its
Amended Particulars of Claim. The Claimant claims :
“1. A declaration that the easement or quasi-easement of way
existing prior to 10th December 1990 over the land shown shaded blue
on the plan annexed hereto in favour of the property known as
Thickwood House has been abandoned and extinguished.
2.1. A declaration that the right of way over the land shaded blue on
the plan annexed hereto, reserved by clause 5 and the first paragraph of
Schedule 4 to the Transfer of 10th December 1990 made between
George Alexander Gifford and the Claimant, in so far as it purports to
benefit that portion of land within the Defendants’ title number
WT99791 shown on the plan annexed hereto shaded brown: (a) has
been abandoned and extinguished, alternatively (b) is exercisable only
via the land shown edged green on the plan annexed hereto and is in
abeyance and incapable of exercise until such time as the Defendants
may acquire right or permission to pass over the said land edged green.
2.2 Alternatively, a declaration that the Defendants are not entitled
to use the right of way referred to in paragraph 2.1 of the prayer herein
otherwise than for the primary purpose of obtaining access to and
egress from the land shown edged green and hatched black on the plan
to the Transfer dated 10th December 1990.
3 . A declaration that the Defendants and their invitees have no
right to pass and re-pass over the boundary between the lands within
the title number WT99791 and WT134929 between the points marked
R and S of the plan annexed hereto.
4 . An order that the Property Register of title number WT99791
be rectified insofar as may be necessary to reflect the declarations
claimed as aforesaid.
5. ...."
30.
Highway
At common law a highway may be created by dedication, express or presumed,
by the owner of the land of a right of passage over it to the public at large and
the acceptance of that right by the public. Long user by the public as of right is
evidence of proof of dedication by the owner and acceptance by the public.
31. Apart from proof of dedication at common law, section 31 of the Highways
Act 1980 provides that user for 20 years by the public as of right and without
interruption, calculated retrospectively from the date when the right of the
public to use the way was brought into question, will be sufficient to establish
that the way was dedicated as a highway, unless there is sufficient evidence
that there was no intention during that period to dedicate. Mr Hodge QC.
leading counsel for the Claimant, pointed out that the Defendants have not
expressly pleaded reliance on section 31 of the Highways Act 1980 in their
Defence. The relevant facts upon which the Defendants rely are, however,
pleaded. I see no reason why the Defendants should not be entitled to invoke
section 31.
Miss Holland, counsel for the Defendants, submitted that the 20 year period
under section 31 of the 1980 Act should be calculated retrospectively from the
date the present proceedings were commenced. This was not challenged by
Mr Hodge QC; and so, in effect, the point was conceded. I must confess,
however, that, at least in relation to the part of the Blue Land lying to the west
of the triangular section adjoining Thickwood Lane, I would have thought that
the right of the public was brought into question much earlier. In the event, in
view of my decision on dedication at common law, nothing turns on this point.
33. It is convenient to consider, in the first place, the position of the triangular
section of the Blue Land at its eastern end. The evidence in relation to this area
overwhelmingly supports the inference of dedication to and acceptance by the
public as a highway.
34 Mr Peter Plank, who is 65 years of age and has lived at Thickwood for all his
life, gave evidence that the telephone box at the eastern end of the Blue Land
was installed in about 1950. Documentary evidence confirms that it has
certainly been there since before 1958. It is served by a step from the Blue
Land. Members of the public using the telephone box park either on
Thickwood Lane or on the Blue Land in the triangular area.
35. Mr Plank also gave evidence that the post box in the wall of Wayside has been
there since 1935. Again. documentary evidence confirms that a post box has
been there since before 1958. The present post box bears an inscription
indicating that it was placed there during the reign of the present Queen. Mr
Plank thought that it might have been changed from a previous post box. This
is the only post box in the hamlet of Thickwood.
36. The parish notice board is also on land adjoining this part of the Blue Land.
Mr Plank remembers it always being there.
37. There is no evidence that the general public have at any stage been prevented
from coming onto the triangular section at the eastern end of the Blue Land.
Nor is there any evidence that at any time the Claimant or its predecessors in
title have erected any notice advising the public that access to the telephone
box, the post box, or the parish notice board by means of the Blue Land was by
permission and not as of right. Accordingly, the evidence in favour of
dedication of the triangular section of the Blue Land adjoining Thickwood
Lane, whether at common law or under section 31 Highways Act 1980, is
overwhelming. I find that the triangular section is public highway.
38. The direct evidence within living memory of the use of the balance of the Blue
Land is more equivocal. Mr Conrad Brigden, the owner of Sarum House since
1970. and Mr Peter Lewis, the owner since 1970 of Well Close Cottage on
Thickwood Lane, gave evidence that they have attended public functions at
Thickwood House such as carol services, and believed and still believe they
had and have the right to do. Mr Plank also gave evidence that he believed he
was entitled to use and has used the Blue Land as a member of the public as of
right. It is also clear that post is delivered to the properties abutting the Blue
Land by a vehicle driven along the Blue Land.
39. This evidence as to the use of the Blue Land to the west of the triangular
section within living memory has to be balanced against evidence of
ownership and control by the Claimant and its predecessors in title. The
agreements made from time to time in and after 1958 by Mr Gifford senior and
then by his son, by which rights of way were granted for financial
consideration in favour of Wayside over the Blue Land. described in some of
the agreements as a “private accommodation road”, are, on the face of it,
inconsistent with the Blue Land being a public highway. So also are the terms
of the 1990 Transfer to the Claimant, the 1991 transfers to Mr and Mrs
Leatherlands, and the personal licence granted to Mr and Leatherlands in 1991
to pass over the Blue Land. I do not accept Miss Holland’s submission that Mr
Gifford junior was well aware in 1990 of possible public rights over the Blue
Land. The documentary evidence, as well as the oral evidence of Nicholas
Brent, the solicitor who acted for the Claimant in its purchase of Thickwood
Farm in 1990, make clear that the various parties to the 1990 and 1991
conveyancing transactions were of the view that there were only private rights
of way enjoyed over the Blue Land.
40. Mr Hodge QC also relied upon a way leave agreement made on 26th May
1951 between Miss Daniels and Mrs Worthy, the then owners of Thickwood
Farm and Thickwood House and other adjoining properties, by which a way
leave was granted to the Southern Electricity Board to erect and maintain
electricity wires over the Blue Land. He submitted that this agreement showed
that Miss Daniels and Mrs Worthy regarded the Blue Land at that date as
private property, in respect of which there were no public rights of way. I do
not consider, however, that this agreement is evidence or, at all events, clear
evidence to that effect. I prefer the analysis of Miss Holland that, on the proper
construction of the way leave agreement, the payment under that agreement
was in respect of two electricity poles each of which were situated in private
properties adjoining the Blue Land.
41. Bearing in mind these matters and also that the Blue Land is not shown as a
road maintainable at the public expense in the records of the Council, and that
it is not shown as subject to public rights of way in the Definitive Map
maintained under the Wildlife and Countryside Act 1981, and that there is no
evidence within living memory that the Blue Land has been maintained by the
Council, I would not be satisfied that the Blue Land to the west of the
triangular section adjoining Thickwood Lane is public highway on the basis of
evidence of actual user within living memory.
42. The Defendants rely, however. on a variety of historical material dating back
to the 18th Century which, they submit, shows that the Blue Land has been a
public highway since at least that time.
43. The earliest document on which the Defendants rely is an Index map of the
Manor of Colerne of 1767. This shows the Blue Land in the same colour as
Thickwood Lane. An Enclosure Award plan for Colerne of 1787 also shows
the Blue Land as the same colour as Thickwood Lane and the other principal
roads in the area. Miss Holland submitted that the proper inference to be
drawn from the colouring on those plans is that the Blue Land was then a
highway. In my judgment, it is unsafe to draw any such inference from those
plans. I agree with the submission of Mr Hodge QC that there is no reason to
suppose that the cartographers were concerned to distinguish public from
private roads on those plans.
44. A linen tithe map of 1875 for Colerne shows the Blue Land coloured the same
as all the other principal roads in the area, including Thickwood Lane. The
Blue Land and those other roads are shown numbered 1158 on the map. In the
tithe apportionment schedule accompanying the 1875 Colerne Tithe Award,
the roads designated no. 1158 are shown as being in the occupation of “Parish
Officers”. This is important evidence. On the face of it, this is evidence that in
1875 the Blue Land was a public highway within the responsibility of the
parish officers. This could only be on the basis that the Blue Land was
dedicated and adopted following the Highways Act 1835 or, alternatively, had
been the responsibility of the parish officers since before the coming into force
of that Act. In the latter case, the parish officers would only have assumed
responsibility if there had been evidence of dedication and acceptance of the
road by the public.
45 Tithe maps are admissible in evidence to prove the existence of a highway:
Kent County Council v. Loughlin [1975] 234 EG 68 1. Roads generally,
whether public or private, were not titheable, and so tithe maps are generally
relevant only to proving the existence of a road at a particular time rather than
its status. Mr. Hodge Q.C. also sought to undermine the evidential value of
the 1875 tithe map and schedule by pointing out that none of the properties
surrounding the Blue Land were shown as titheable, so there would have been
no need on the part of anyone to concentrate on the true status of the Blue
Land. In my judgment, the fact that the Blue Land was not titheable and the
further fact that the land surrounding the Blue Land was not titheable do not
undermine the importance of the 1875 map and schedule to the issue I have to
decide. The map and schedule clearly show the Blue land was then in the
occupation of the parish officers. It is that fact. rather than the issue of
whether the Blue Land or the surrounding land were titheable, that is
significant. In this connection, it must be borne in mind that tithe maps are
public documents and that the Commissioners, under whose authority and
control the tithe map was prepared, had power to examine witnesses on oath.
46. The next documents on which the Defendants rely are a map and schedule
prepared pursuant to the Finance (1909 - 10) Act 1910. The 1910 Act provided
for the levying of a duty on the incremental value of land, called increment
value duty. The Board of Inland Revenue was to ascertain the site value of all
land in the United Kingdom as at 30th April 1909. Commissioners were to
undertake a provisional evaluation of the land, which they were to serve on the
owner of the land. The 1910 Act provided for the owner to give notice of
objection to the provisional valuation. Valuation offices were set up
throughout the country, and a land valuation office was appointed to each
income tax parish. Between 1910 and the repeal of the Act in 1920 the whole
country was surveyed in this way. Mr Alan Harbour, the rights of way officer
of Wiltshire County Council for the northern half of the County and who was
formerly the Land Charges officer of the Council, gave evidence of the
painstaking detail with which the land was valued pursuant to the 1910 Act.
Although Mr. Harbour is not qualified as a lawyer or a surveyor, he has
considerable practical expertise on issues relating to public rights of way and
the proof of their existence. I found his evidence helpful. He emphasised that
the effect of the arrangements made under the Act was that local people with
local knowledge undertook the valuation and conducted the detailed
consultation with the owner of the land. He described how the valuation
involved the most comprehensive record of land ever undertaken and became
known as “the Second Doomsday”. The 1910 Act contains specific provision
for reducing the gross value of land to take account of any public rights of way
or public rights of user, as well as easements. Importantly, the Act contained
criminal sanctions for falsification of evidence. The 1910 Finance Act map
and schedule show the Blue Land, as also Thickwood Lane and other principal
roads in the area, as untaxed public roads.
47. The 1910 Finance Act map and schedule are, in my judgment, most material
evidence in relation to the status of the Blue Land at that time. It would have
been in the interest of the owner of the Blue Land to acknowledge that the
Blue Land was a public highway and so not taxable. On the other hand, it
would have been the concern of those acting for the Commissioners to
establish that the Blue Land was private land and not subject to public rights.
The fact that the Blue Land was not shown as falling within the hereditament
of any private individual, but is shown as part of the general road network, in a
survey which would have been undertaken by local officers of the
Commissioners, and following consultation with the owners of private
hereditaments, is a most powerful indication that the Blue Land was at that
time thought to be in public ownership and vested in and maintainable by the
District Council, which was the highway authority. In the circumstances.
whether or not the Commissioners consulted with officers of the Rural District
Council about the status of the Blue Land, I see no reason to infer, as I was
urged to do by Mr Hodge QC, that the designation of the Blue Land on the
1910 Finance Act plan and schedule was simply a mistake.
48. The Claimant seeks to rely upon a number of factors to counter the strong
inference, to be drawn from the 1875 documents and the 1910 Finance Act
documents, that the Blue Land was then a public highway maintainable at the
public expense. The Claimant points to the fact that a roadway off Thickwood
Lane and to the east of the Blue Land, which Mr Hodge QC called the “eastern
branch”, was also shown as not subject to tithe in I875 and as an untaxed
public road in the 1910 Finance Act documents. That eastern branch was
subsequently built upon and has disappeared. I do not consider that safe
conclusions can be drawn from the history of the eastern branch, which has no
49
obvious connection with the Blue Land whatsoever, and whose history has not
been analysed before me to the same extent as the Blue Land.
The Claimant also relied upon the fact that, when the County Council became
the highway authority, in place of the District Council, pursuant to the Local
Government Act 1929, the records that were handed over the to the County
Council apparently did not show the Blue Land as publicly maintained
highway; and, accordingly, the County Council did not include the Blue Land
in its list of publicly maintained highways in its Highway Record. Indeed, the
evidence is that the Blue Land has not within living memory ever been
maintained at the public expense. Such maintenance as has been carried out in
recent years has been by Mr. Gifford junior and other private persons. Mr.
Harbour pointed out, however. that many inaccuracies were made at the time
of the transfer to the Council Councils of responsibility for publicly
maintainable highways. He emphasised that the process of verification was far
less rigorous than for the purposes of the 1910 Act. There was, for example,
no process of consultation or for public verification, nor were there criminal
sanctions for false evidence. Mr. Harbour speculated that the reason that the
Blue Land may have been overlooked when the Highway Record was prepared
by the Council in 1930 was that the issue on which the Council then
concentrated was whether any particular road had in fact been maintained at
the public expense, and the Blue Road may have been so small and
insignificant that it had not in fact been so maintained for some time.
50. The Claimant also relies upon the fact that the Blue Land has never been
depicted as subject to public rights in the Definitive Map maintained by
Wiltshire County Council initially under National Parks and Access to the
Countryside Act 1949 and now under the Wildlife and Countryside Act 1981.
The 1949 Act, and now the 1981, however, do not operate to exclude other
methods of establishing whether a public right of way exists, nor do they
provide that the absence of any path on the Definitive Map is to be conclusive
evidence that such a path does not exist as a highway.
51. Finally, the Claimant relies upon the fact that records held by the Searches
Section of Wiltshire County Council, which date back to 1924, do not record
the Blue Land as a highway.
52. Notwithstanding the various matters upon which the Claimant relies to
undermine the clear inference to be drawn from the 1875 Tithe Award plan
and apportionment schedule and the plan and record of valuations prepared
pursuant to the 1910 Finance Act, I see no reason why I should not take those
documents at face value as very powerful evidence that the Blue Land was by
1875 a public highway maintainable at the public expense. Section 32 of the
Highways Act 1980 specifically provides that a court, in determining whether
a way has or has not been dedicated as a highway, should take into
consideration any map, plan or history of the locality. It provides as follows:
“32 Evidence of dedication of way as highway
A court or other tribunal, before determining whether a way has or has
not been dedicated as a highway, or the date on which such dedication,
if any, took place, shall take into consideration any map, plan or history
of the locality or other relevant document which is tendered in
evidence, and shall give such weight thereto as the court or tribunal
considers justified by the circumstances, including the antiquity of the
tendered document, the status of the person by whom and the purpose
for which it was made or compiled, and the custody in which it has
been kept and from which it is produced.”
53. Mr Hodge QC submitted that the absence of a public terminus at each end of
the Blue Land does not support its status as a public highway. It is no doubt
true that, generally speaking, it may be more difficult, especially in the
countryside, to establish public rights of way in relation to a cul de sac as
distinct from a stretch of roadway which leads to and from some other public
roadway or public place: Eyre v New Forest Highway Board (1892) 56 JP
517,518,519; Attorney General v Chandos Land and Building Society (1910)
74 J P 401,402; Attorney General v Antrobus [1905] 2 Ch 188; and Sauvain
on Highway Law (2nd Ed) paras l-17, 2-75. It is clear, however, that public
rights may be established over a cul de sac by actual use as of right by
members of the public.
54. Mr Hodge QC also submitted that the evidence, taken as whole, is consistent
with use of the Blue Land pursuant to private rights of access and egress
attaching to the surrounding properties and granted by the owner of the Blue
Land from time to time, or alternatively to such owner’s “good nature and
toleration” (per Lord Dunedin in Folkestone Corporation v Brockman [1914]
AC 338, 376). He also pointed to the fact that the surrounding properties were
in the same ownership, as part of the Lucknam Park Estate, by the beginning
of the 20th century. On the other hand, Mr Harbour pertinently observed that
in 1875 about half the inhabitants of the hamlet of Thickwood were living in
the properties adjoining the Blue Land. It is clear that, at that date. as in earlier
times, the properties were in different ownerships. Those facts seem to me to
be a compelling reason why the Blue Land may indeed have been a public
highway at that time.
55. Finally, Miss Holland submitted that it is relevant that the Claimant cannot
point to a clear root and history of paper title to establish that the Blue Land
has been in private ownership since before 1875. Although the point is not of
great weight, I agree that this is of some significance.
56. I conclude, taking the facts as a whole, that the entire stretch of the Blue Land
from its western to its eastern extremities was dedicated to and accepted by the
public as public highway. The fact that the Claimant and its predecessors in
title may, from time to time since the 1950s, have treated the Blue Land as
private property which was not subject to public rights, cannot have removed
the legal status of the Blue Land as public highway. The Blue Land has not
been stopped up or diverted pursuant to any statute. The rule is "once a
highway always a highway”: Dawes Hawkins (1860) 29 LJ CP 343,347 ; Eyre
v New Forest Highway Board [1892] 56 JP 5 17. Accordingly, I find that the
Blue Land was and is a public highway maintainable at the public expense.
57. Mr Hodge QC submitted that even if the Blue Land is public highway, there
are two grounds effectively precluding the Defendants from exercising their
rights over the Blue Land as members of the public. The first ground is that the
effect of clause 7 of, and paragraph 2 of the Sixth Schedule to, the 1990
Transfer was to extinguish any right of access between Thickwood House and
the Blue Land. The second ground is that the defendants are estopped by
convention from asserting that the Blue Land is public highway.
58. Mr Hodge QC submits that the substance and effect of the 1990 Transfer was
that the Claimant concluded a binding agreement with Mr Gifford junior, by
which Mr Gifford junior abandoned for all time rights of access between
Thickwood house and the Blue Land. In my judgment, this submission faces
obvious and insuperable difficulties. At that time neither the Claimant nor Mr
Gifford was aware that the Blue Land was a public highway. Indeed, that lack
of knowledge and belief is the very cornerstone of Mr. Hodge QC’s argument
on estoppel, which I shall consider in due course. In this connection, I reject
Miss Holland‘s submission that I should not conclude that the Claimant was
unaware that the Blue Land was or might be a public highway in view of the
statutory declaration made by Mr. Gifford junior in 1990 concerning the Blue
Land and the fact that Mr. Brent did not inspect the Blue Land prior to the
1990 sale to the Claimant. The statutory declaration was concerned with
ownership of the Blue Land and not its status as a highway or private road.
The fact that Mr. Brent did not visit the Blue Land seems to me to give greater
credence rather than less to the fact that neither he nor the Claimant had any
inkling or suspicion that the Blue Land might be highway, particularly in the
light of the local authority’s search replies which did not disclose the Blue
Land as public highway. I see no reason, in the circumstances, why the court
should construe the 1990 Transfer or imply into it any term that Mr Gifford
junior and his successors in title would not exercise their ordinary rights over
59.
the Blue Land as members of the public and, for that purpose, obtain access
between Thickwood House and the Blue Land.
Furthermore, in order that any agreement not to gain access between
Thickwood House and the Blue Land might be binding upon Mr Gifford’s
successors in title, Mr Hodge QC agreed that the restriction of access would
have to subsist as a restrictive covenant. No such restrictive covenant has been
pleaded by the Claimant. Furthermore, it would be necessary to construe the
positive covenant to erect a wall upon the boundary as imposing a restrictive
covenant binding upon the land itself. It seems to me that the court should be
very slow indeed to construe the 1990 Transfer in this way. Bearing in mind
that the 1990 Transfer clearly distinguishes between positive covenants,
including the covenant to erect the wall, which are set out in the Sixth
Schedule, and restrictive covenants, which are set out in the Seventh Schedule.
It would not be right to attribute to the parties any intention that the positive
covenant to build the wall should be interpreted and have effect as a
restrictive covenant binding upon successive owners of Thickwood House.
60. Mr Hodge QC submitted, in the alternative, that Mr and Mrs Gifford having
agreed expressly to abandon the pre-existing right of way over the Blue Land
in favour of Thickwood House, and having covenanted to erect a permanent
obstruction upon the boundary, it would have been unconscionable for them
subsequently to assert a public right of access over the Blue Land and the
private right of the owner of land adjoining the highway to gain access thereto
from the adjoining land. He submitted that an estoppel by convention thereby
arose between Mr and Mrs Gifford and the Claimant, and that the Defendants,
as privies in title to Mr and Mrs Gifford, are bound by the same estoppel. As I
have already indicated, I find that both the Claimant and Mr and Mrs Gifford
acted on a common mistaken assumption that the Blue Land was not subject to
public rights of way. Accordingly, one of the essential ingredients of estoppel
by convention, namely a common but mistaken assumption of fact, does exist.
61. It was accepted by Mr Hodge QC that the onus is on the Claimant to satisfy
another requirement of estoppel by convention, namely that it would now be
unjust or unconscionable for the true facts to asserted and relied upon. As to
this element of unconscionability, the matters relied upon by the Claimant are
set out in Further Particulars of paragraph 4A of the Amended Reply, as
follows;
“1. Having expressly provided in the Transfer for the Vendor to
contribute to the cost of repair and maintenance to the Blue Land and
to create a wall between the points R and S on the plan it would be
unconscionable to allow the Vendor and the Defendants as successors
in title to deny the truth of the common assumption.
2. Given the common assumption of the parties to the Transfer
that the Blue Land was not part of the highway, the second paragraph
of the sixth schedule clearly reflects the intention of the parties that the
owners of Thickwood House should have no right to pass over the Blue
Land and across the boundary between that land and Thickwood
House. It would be against conscience for the covenantors to negate
that assumption by the assertion of a private right of access to the
highway.
3. If the Blue land were part of the public highway, the right of the
Defendants as owners of Thickwood House to pass therefrom onto the
highway and vice versa would be a private right appurtenant to
Thickwood House, acquired by the Defendants as successors in title to
the covenantors. As such the Defendants are privies in title of the
covenantors and bound by the estoppel which bound them.”
62 In view of my finding that the Blue Land is a public highway maintainable at
public expense, the fact that Mr and Mrs Gifford junior covenanted to
contribute towards the costs of repair and maintenance of the Blue Land
cannot be a legitimate basis for claiming that it would be unconscionable for
the Defendants to rely upon their rights as member of the public to use the
Blue Land. Furthermore, the Defendants made clear, both in their evidence,
and by Miss Holland’s submissions that if, for any reason, the Blue Land is
not maintainable at public expense, they would be willing to make an
appropriate contribution towards the cost of its repair and maintenance.
63. The second matter relied upon in support of the requirement of
unconscionability is that the 1990 Transfer reflects the intention of the parties
that the owners of Thickwood House should have no right to pass over the
Blue Land and across the boundary between that land and Thickwood House.
This, however, merely restates the first requirement for an estoppel by
convention, namely that the parties acted under a common mistake. It does not
meet the need to show unconscionability in permitting the Defendants to assert
the true facts. Furthermore, as I have already said, it does not seem to me
appropriate to infer that any of the parties to the 1990 Transfer contemplated
that Mr Gifford junior was giving up any rights of public access that he might
be entitled to enjoy over the Blue Land as a member of the public. They simply
did not think about the point.
64. The third aspect of unconscionability on which the Claimant relies in its
Further Particulars does not in truth relate to the question of unconscionability.
65.
66.
It relates to the legal principle of privity, by which a third party may become
bound by an estoppel between other persons.
In the course of his submissions, Mr Hodge QC relied upon two further
matters in support of the allegation that it would be unconscionable for the
Defendants now to assert and rely upon their rights to pass along the Blue
Land as members of the public. He submitted that it is inconceivable that the
Claimant would have been willing to pay £10,000 for the Blue Land which
was stated as the consideration for the Blue Land in paragraph 2.2 of the 1990
Transfer. No evidence, however, to that effect was given before me. Indeed, on
the contrary, the evidence of Mr Brent, who acted for the Claimant on the
purchase of the Blue Land from Mr Gifford junior, was that if there was some
specific reason for a split in the purchase price between the Blue Land and the
rest of the land it would have been to accommodate the wishes of the vendor
rather than the Claimant, as purchaser.
Mr Hodge QC also submitted that, if it had been appreciated that the Blue
Land was a public highway, then either the 1990 transaction would not have
proceeded at all or it would have proceeded on terms that ensured, by means of
a restrictive covenant or otherwise, that all rights of access to and from
Thickwood House over the Blue Land, save for the right to deliver oil which
was specially permitted under the Transfer, was given up. Neither Mr
Robinson, the principal behind the Claimant, nor any other employee of the
claimant gave evidence before me. Nor did Mr Gifford junior give evidence
before me. In the absence of such evidence, it would be quite wrong for the
court to draw the inference which Mr Hodge QC wishes.
67. Other arguments were advanced by Miss Holland in opposition to the
submissions of Mr Hodge QC on estoppel. It is not necessary, in the
circumstances, for me to deal with them.
68. For all the reasons given above, I conclude that the Defendants are entitled to
use the Blue Land as a public highway. They are not restricted in their use in
the manner specified in paragraphs 2.2 and 3 of the Prayer to the amended
Particulars of Claim. Accordingly, the Claimant is not entitled to any of the
relief sought by the amended Particulars of Claim.
69.
Private Rights of Way
My decision on the highway issue is sufficient to dispose of these proceedings.
I have, however, been addressed in some detail and heard evidence upon the
question whether, if the Blue Land is not public highway, the easements or
quasi-easements mentioned in paragraphs 1 and 2 of the Prayer to the
amended Particulars of Claim have been abandoned and extinguished or are
otherwise restricted in the manner there stated. For that reason, and also in
case my judgment is appealed, I shall proceed to consider those issues.
Accordingly, the rest of this judgment is written on the hypothesis that the
Blue Land is private land owned by the Claimant which is not subject to public
rights of way.
Continued existence of pre 1990 right of way
70. Access to and from Thickwood House was obtained over the Blue Land prior
to and at the date of the 1990 Transfer. The Defendants submit that after the
1990 Transfer a right of way to use Blue Land for such access continued to
subsist notwithstanding the express terms of paragraph 2 of the Sixth Schedule
to that Transfer by which Mr Gifford junior and Mrs Gifford covenanted by
the 31st January 1991 to erect a wall between the points marked R and S on the
plan “to the effect that the right of way over the Blue Land from Thickwood
lane to Thickwood House shall be extinguished”.
71. Miss Holland advanced a number of reasons in support of that submission.
Firstly, she submitted that the covenant by Mr Gifford junior and Mrs Gifford
to build the wall was a positive covenant, and hence the burden of the
covenant would not run at common law or in equity. Secondly, it was
submitted that it is difficult to construe the covenant in itself as intended
immediately to extinguish the easement as a legal interest. Thirdly, it was
submitted that the wording of the covenant indicates a clear intention that the
right of way be extinguished at a future date when the wall was actually
erected, and the covenant did not purport to effect an immediate extinction by
deed. In fact, the wall was not erected by 31st January 1991, and was never
erected pursuant to the covenant. A wall and gate were eventually erected
between points R and S by Mr and Mrs Leatherlands pursuant to the
agreement with Mr Gifford junior dated 5th June 1991. It is said that,
accordingly, there was never any later extinguishment, as contemplated by the
covenant. Fourthly, it is said that the right of way was not extinguished or
abandoned when Mr and Mrs Leatherlands erected the wall and gate between
the points R and S. In support of that conclusion, it is said that Mr and Mrs
Leatherlands were in ignorance of the true position in relation to the Blue
Land, and cannot be taken to have intended to abandon the right of way. It is
said that Mr and Mrs Leatherlands would have been under the mistaken
impression that the root of title to the Blue Land was contained in the 1952
Conveyance to Mr Gifford senior, which was not, in fact, the case. It was also
submitted, in support of the conclusion that the right of way was not
extinguished or abandoned when the wall and gate were constructed by Mr
and Mrs Leatherlands, that an agreement to pay for the use of an easement on a
temporary basis does not necessarily amount to abandonment of an easement.
72. The arguments advanced by the Defendants on this aspect of the case are
technical ones which, in my judgment, run counter to the plain intention of the
parties to the 1990 Transfer. It is perfectly clear from paragraph 2 of the Sixth
Schedule to the 1990 Transfer, that it was the intention of the parties to that
Transfer that the Blue Land should no longer be used to obtain access to and
from Thickwood House between points R and S on the plan to the Transfer. In
so far as any such access constituted a quasi-easement before the 1990
Transfer, the terms of the Transfer negatived the existence of any
corresponding legal easement after the date of the Transfer. In so far as such
access was enjoyed before the 1990 Transfer as a legal easement, the
provisions of the 1990 Transfer, in my judgment. either amounted to an
immediate release by deed of that pre-existing right of way or they constituted
an agreement to release it. If the latter, then on and after 31st January 1991 that
release was effective in equity, and is binding upon Mr and Mrs Gifford’s
successors in title. In the further alternative, Mr and Mrs Leatherlands
abandoned any existing right of way when, with knowledge actual or imputed
of the relevant provisions of the 1990 Transfer, they obtained permission in
June 1991 to install a gate in the wall to be erected on the boundary of the Blue
Land with Thickwood House and took a personal licence, terminable by one
week‘s notice, to pass over the Blue Land on foot, and at a nominal fee. In this
connection, it is to be noted that Mr and Mrs Leatherlands covenanted jointly
and severally with Mrs and Mrs Gifford in clause 3 of the 1991 Transfers of
Thickwood House to observe and to perform the covenants and conditions
contained in the 1990 Transfer.
The right of way attached to the Green land
73. The 1990 Transfer excepted and reserved out of the Blue Land in favour of Mr
Gifford junior and his successors in title to the Green Land a right of way with,
or without vehicles along the Blue Land. I have set out the text of paragraph 1
of the Fourth Schedule to the 1990 Transfer earlier in this judgment. The
Defendants submit that, when Thickwood House was transferred to Mr and
Mrs Leatherlands in 1991 'there arose in favour of Mr and Mrs Leatherlands
and their successors in title a right of way from the Blue Land across
Honeysuckle House to that part of the Green Land forming part of Thickwood
House: i.e. the Meadow and a small part of the garden of Thickwood House
adjacent to the boundary with Honeysuckle House but not abutting the Blue
Land. Accordingly, it was submitted. the Defendants, as successors in title to
Mr and Mrs Leatherlands, can continue to use the Blue Land in exercise of the
rights of way created by paragraph 1 of the Fourth Schedule to the 1990
Transfer for the benefit of the Green Land
74. It is said that the right of way from the Blue Land to that part of the Green
Land transferred as part of Thickwood House in 1991 arose pursuant to section
62 of the Law of Property Act 1925 or, alternatively, under the rule in
Wheeldon v. Burrows [1879] 12 Ch. 31. Sub-sections 62(2) and (4) of the Law
of Property Act 1925 are as follows:
“(2) A conveyance of land, having houses or other buildings thereon
shall be deemed to include and shall by virtue of this Act operate to
convey, wi