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You are here: BAILII >> Databases >> England and Wales Land Registry Adjudicator >> Milsum & Anor v Gorman & Anor (Easements) [2011] EWLandRA 2010_0360 (15 February 2011) URL: http://www.bailii.org/ew/cases/EWLandRA/2011/2010_0360.html Cite as: [2011] EWLandRA 2010_360, [2011] EWLandRA 2010_0360 |
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THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002
MARTIN LEWIS MILSUM AND DONNA PUI TING MILSUM
APPLICANTS
and
ALISON JANE GORMAN AND RAYMOND GORMAN
RESPONDENTS
Property Address: 7A Walkers Ridge, Camberley GU15 2DF
Title Number: SY586728
Before: Mr Owen Rhys sitting as Deputy Adjudicator to HM Land Registry
Sitting at: Aldershot & Farnham County Court
On: 10th and 11th January 2011
Applicant Representation: In Person
Respondent Representation: In Person
D E C I S I O N
___________________________________________________________________________
KEYWORDS: right of way – prescription – servient land within dominant owner’s filed plan boundaries – whether prescription possible – effect of general boundaries rule – alleged consent
CITATIONS:
Gale on Easements (17th ed.) at 4-83.
Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch
INTRODUCTION
1. This dispute relates to a small corner of a tarmac driveway, and the grass verge separating the driveway from a substantial boundary wall and fence enclosing the property known as 7 Walkers Ridge, Camberley, Surrey (“No.7”), registered under title number SY99302, in the names of the Respondents. No. 7 lies to the east of a public road known as Walkers Ridge, which runs more or less north to south. No.7 is accessed by a driveway entering Walkers Ridge from the east. A continuation of the southern section of this driveway runs eastwards along the southern boundary of No. 7, and serves two other properties, namely 7A (“No. 7A”) and 7B Walkers Ridge (No. 7B). No. 7A is situated due east of No. 7, and is registered in the names of the Applicants, under title number SY586728. The Applicants’ registered title includes a large section of the driveway I have mentioned running along the length of the southern boundary to No.7. The filed plans of both titles – No. 7 and No. 7A – indicate that the south-eastern corner of No. 7 forms a right angle. In other words, that the eastern boundary with No. 7A, and the southern boundary with the driveway included within the title of No.7A, intersect to form a right angle. On the ground, however, the physical features do not precisely match. The substantial wall and fence that encloses the garden of No.7 at this point forms a curve, cutting off the corner of the right angle. The tarmac driveway follows the curve, separated from the base of the wall by a grass verge of varying width, edged by a low kerbstone. Accordingly, the south-eastern corner of the Respondents’ title, as shown on the filed plan, lies outside the apparent boundary wall and physically is comprised of a small part of the driveway and associated grass verge. At one point since this dispute began in 2009, the Respondents fenced off the right-angle in accordance with the line shown on the filed plan, but that fence has been removed, although the claimed line of the boundary is marked on the ground.
2. On 24th September 2009 the Applicants applied to the Land Registry to register (a) vehicular rights of way over that part of the tarmac driveway that lies within the Respondents’ title (“the disputed driveway”) and (b) pedestrian rights of way over that part of the grass verge that lies within the Respondents’ title (“the disputed verge”). The application was initially supported by three Statutory Declarations, made by one of the Applicants (Mr Milsum), a Mrs Heather Yorke, and a Mr Read, a former owner of No.7A. Mr Milsum declared that for the period since he and his wife had acquired No.7A in 2001, they had had full and free use of the disputed driveway with and without vehicles for all purposes. He also declared that they had had full and free use of the disputed verge, for the purposes of maintaining certain lights set into the verge, and for the purpose of cutting the grass on the verge. Mrs Heather Yorke was the owner of 9 Walkers Ridge (“No. 9”) – to the south of the driveway which separates it from No.7A – between 1977 to 2005. She confirmed that the owners of No.7A had enjoyed the rights described by Mr Milsum throughout that period. Mr Peter Read was the Applicants’ predecessor in title as registered proprietor (with his wife) of No.7A between 1991 and 2001. He gave the same evidence as to user as Mr Milsum, in relation to his period of ownership.
3. The Respondents, individually, objected to the application – hence the fact that there are two references before the Adjudicator – and in the absence of agreement the dispute was referred to the Adjudicator under section 73(7) of the Land Registration Act 2002 on 31st March 2010. The Respondent’s objection was based on a number of matters. First, they said that the owners of No. 7A had always had express permission to use the disputed driveway and verge, therefore the alleged user cannot have been “as of right”. Secondly, they alleged that the user had not been established for the full period of 20 years. Thirdly, they relied on a term in the original Transfer to the first owner of No.7A to the claimed effect that no easements could be established which would have the effect of sterilising any part of the No.7A. Fourthly, they challenged the evidence of user per se.
THE HISTORICAL BACKGROUND
4. There is some historical background to this dispute which is of relevance. The land upon which No.7A was built originally formed part of the back land of No.7. The land upon which No. 7B was built - immediately to the south of No.7A - formed part of the back land of No. 9. In 1986 the respective owners of No.7 (Mr Eric Davies) and No. 9 (Mrs Heather Yorke) sold off their back land to a developer, Clarefield Properties Limited (“Clarefield”), under the terms of a Transfer dated 30th October 1986 (“the 1986 Transfer”). The general scheme of the development provided for the construction of the two houses on the back land, with access being obtained over a new driveway to be constructed between the southern boundary of No. 7 and the northern boundary of No. 9. The western portion of the driveway, where it adjoined Walkers Ridge itself, would remain in the ownership of No. 7 – this equates to approximately one-quarter of the total length. The remaining section of the driveway was to be divided laterally, with the northern half lying within No. 7A and the southern half within No. 7B.
5. By clause 5 and paragraph 3 of the Fifth Schedule to the 1986 Transfer, the developer covenanted to construct “a 6 feet high boundary on a base wall of four courses of bricks interspersed with close boarded fencing with brick pillars….” along the southern boundary of No. 7, where it abutted on the new driveway, and a chain link fence along the eastern boundary of No. 7 where it abutted No. 7A. It appears that the developer did not construct the fencing along the boundary as shown on the plan to the 1986 Transfer, but placed the southern fence slightly to the north, and instead of creating a right angle at the south-eastern corner of No. 7, built the fence in the curved aspect that I have already described. At the same time, it appears to have included the extreme south-eastern portion of No.7 within the tarmac driveway which it constructed at that time. By way of compounding this error, and prior to the events of 2004 which I shall describe, the filed plan for both the Applicants’ and the Respondents’ titles contained a clear inaccuracy. Specifically, the boundary between No. 7 and the No. 7A’s portion of the driveway was placed too far to the north. The effect of this was to include the south-western corner of No. 7’s garage, together with a strip of land that lay within the garden of No. 7 and to the north of the dividing wall and fence, within Title number SY586728, namely No.7A. The south-eastern corner of Title number SY99302 was correctly shown as forming a right angle, extending beyond the curve in the dividing fence and wall, but was considerably smaller than it should have been by reference to the original 1986 Transfer.
6. Mr Gorman, one of the Respondents, became aware of this discrepancy in or about July 2004. His evidence was that he and his wife had negotiated a sale of No. 7 – with planning permission – to Cala Homes, a well-known developer. However, the purchaser’s conveyancer had noticed the discrepancy in the title plan, with the result that the sale had to be aborted. This caused Mr Gorman to write to the Land Registry on 19th July 2004, identifying the various defects in the parties’ filed plans, and asking for the titles to be rectified. There followed further discussion and correspondence with the Land Registry, which resulted in an agreed application in form AP1 by all affected owners (including the Applicants) to alter the various title plans in order to accord with the 1986 Transfer. It is common ground that Mr Gorman discussed the matter with his neighbours, including Mr Milsum, and that agreement was reached. Although there is a dispute as to exactly what was said at that time, this much is not in dispute. Furthermore, the Land Registry acknowledged that it was at fault in preparing the original title plans, and did not charge the applicants any fees as a result. As a result of this agreed alteration, the filed plans to both the Applicants’ and the Respondents’ titles more accurately reflected both the 1986 Transfer and the actual situation on the ground. However, the effect was to include a larger section of the tarmac driveway – at the south-eastern corner of No. 7 and outside the existing wall/fence feature – within the Respondents’ title (in accordance with the position of the boundary in the 1986 Transfer plan), as well as making it clear that the grass verge separating the driveway from the wall/fence feature was also within the Respondents’ title. In due course I shall attempt to analyse the legal effect of this alteration to the registers, insofar as it affects the Applicants’ claims.
7. Matters continued as before, until early 2006. At that time the Respondents applied to the local planning authority for a somewhat ambitious scheme to construct flats on No. 7. This caused the Applicants to lodge an objection with the local planning authority. It seems that there had been a previous application, for a single dwelling with Granny Annexe, to which the Applicants had not objected. In his letter to the planning authority, Mr Milsum had stated that the wall/fence feature along the southern boundary of No. 7 “…is such that the erected wall is inside the land owned by number 7. This in effect acts as the boundary between our two properties. However, this reduces the size of the plot available for development.” According to the Respondents’ evidence, this caused them to write a letter to the Milsums dated 13th May 13th 2006 in what Mrs Gorman described as a fit of spleen. They accused Mr Milsum of misrepresenting the position as regards the boundary and “distorting the truth”. In the course of this letter, they stated that “There is absolutely no doubt whatsoever that you are fully aware of the location of the boundary of our land and that your casual use of our land was at our grace.” The letter goes on to say that Mr Milsum had previously agreed to re-site the wall/fence feature along the true boundary line, that they had given him ample time to do so, and that they would do so themselves if he failed to act expeditiously. The Milsums, I should say, categorically deny having received this letter, and I shall have to make a finding on this issue. However, it is true to say that the situation on the ground remained exactly as before – i.e that the position of the wall/fence feature, and the driveway itself, did not accord with the boundary line as shown on the filed plans.
THE DISPUTE BEGINS
8. Matters came to a head in March 2009, for reasons which are not wholly clear to me. On March 31st, the Gormans sent a letter to the Milsums, by email, requiring them to re-locate the wall/fence feature to accord with the legal boundary and by reference to the covenant in the 1986 Transfer, and to cease using any part of the Respondents’ land lying between the existing feature and the legal boundary. This referred to the section of driveway (and adjacent verge) within the Respondents’ title: i.e the disputed driveway and the disputed verge. The Respondents stated that they would charge the Applicants the sum of £43 per day, as from 2nd April 2009, for any continued trespass, and asked for detailed proposals with regard to the construction of the wall. Mr Milsum took advice from his solicitors, who advised that the positive covenant in the 1986 Transfer to construct the boundary wall could not be enforced against the Milsums as successors in title of the original covenantor. The correspondence continued in acrimonious vein, and eventually the Applicants applied to the Land Registry for the registration of easements over the Respondents’ title, as I have already described.
9. The easements claimed by the Applicants are two-fold. First, as regards the driveway, a right of “Access .... for all purposes by day and by night and with or without motor vehicles to and from [No. 7A]…” Secondly, as regards the grass verge, a right of pedestrian access over the verge for the purposes of (a) strimming and maintaining the verge itself and (b) maintaining the power lights situated within the verge. These formulations are taken from Mr Milsum’s Statutory Declaration dated 2nd September 2009, lodged in support of the application. The first easement is a general vehicular right of way over the section of tarmac driveway that lies within the Respondent’s title. The first limb of the second easement is problematic, in my view. It is difficult to see how a right to enter the servient owner’s land for the purposes of maintaining that land can properly be regarded as an easement at all – how can it be said to accommodate the dominant tenement? As to the second limb, it would theoretically be possible to acquire an easement to repair or maintain lights installed on the servient land but (as is the case here) serving the dominant land. In the present case, however, there is an issue as to when the lights were installed. The Respondents contend that they were not installed until the early 1990s, whilst the Applicants insist that they dated back to the construction of the driveway in the late 1980s. This is another factual issue that I must resolve.
THE EVIDENCE RELIED UPON- APPLICANTS
10. I shall now describe the evidence relied upon by the parties. The only “live” evidence called by the Applicants was that of Mr Milsum himself, and also that of a Mr Salmon, who had owned the property known as No.7B between 2000 and 2007. Mr Milsum also confirmed the truth of the Applicants’ Statement of Case, to the extent that it contained facts. Both Mr Milsum and Mr Salmon were cross-examined on their witness statements (or Statutory Declarations) and I shall consider their evidence in due course. In addition to their evidence, the Applicants relied on the following statements and Statutory Declarations:
a. Mrs Marguerite Sowerbutts – together with her husband, she had been the owner of No.7A between 1988 and 1991. She was therefore the first purchaser of the property after its construction.
b. Mr Peter Read – together with his wife, he had owned No.7A between 1991 and 2001, when the property had been sold to the Applicants.
c. Mrs Heather Yorke, the owner of 9 Walkers Ridge between 1977 and 2005.
d. Mr Ric Wilson, the owner (with his wife) of No.7B, between 1988 and 1998.
e. Mr Daryl Strong, who, together with his wife, is the current owner of No.7B, and has been since 2007.
f. Mr Edward Pennington. This gentleman is a solicitor, and had been instructed to take a statement from Mr Sowerbutts, in December 2009. Sadly, Mr Sowerbutts became unwell, and the meeting could not take place. Indeed, he died shortly thereafter. He then took a statement from Mrs Sowerbutts, who confirmed to him that her late husband had discussed the contents of her Statutory Declaration with her, and he had agreed with its contents. Mr Pennington came to court to verify his statement, but in the event he was not called, since the statement was not challenged.
11. None of these statements and Statutory Declarations were tested by cross-examination. These statements, which were either supported by a statement of truth, or were made under the Statutory Declarations Act 1835, are of course admissible as evidence. However, less weight will be given to such untested statements, than to evidence which is subject to cross-examination. Furthermore, as pointed out by Mrs Gorman, there are a number of unsatisfactory features of this evidence. They have all been drafted along very similar lines. They bear remarkable similarities to each other. When Mr Salmon was asked about his statement, initially he said that he had provided a statement in his own words, and the solicitor had incorporated this into the final draft. However, he eventually was compelled to admit that which was self-evident, namely that the solicitor must have prepared a composite statement, which was only varied in minor details to reflect the identity of each witness. In effect, these statements were all the same, whether or not the deponent had owned No.7A or No. 7B. This does not, in my judgment, add to my confidence in the accuracy of the statements.
12. The statements are all to this effect. First, the entire driveway, including the disputed driveway, has been used by the owners of No.7A and No. 7B throughout the period from 1988 to 2009 for access to and from the public highway, with and without motor vehicles. Secondly, the owners of No.7A and No. 7B have had pedestrian access over the grass verge, for the purposes of maintaining it, and for repairing and renewing the lights placed within it. Their evidence is that the lights have been in position since approximately 1987. Essentially, this is what all the Applicants’ witnesses say. Mr Salmon was cross-examined on various points. I explored with him the extent to which he had driven vehicles on the disputed driveway. The physical layout is such that the disputed driveway lies immediately to the north of the direct access into No.7B. I questioned whether the owners and occupiers of No.7B ever used this portion of the driveway. Mr Salmon’s evidence was that occasionally a car would be reversed into this portion of the driveway, to allow a vehicle to drive out onto Walkers Ridge front-first. Generally, however, vehicles would be reversed along the driveway from No.7B.
THE EVIDENCE RELIED UPON - RESPONDENTS
13. The Respondents’ evidence consisted of their own voluminous statements, and commentary on the Applicants’ Statement of Case and other evidence. This material included three witness statements: from a Mr Eric Davies, the former owner of No.7, from Mr Mike Yorke, the former husband of Mrs Heather Yorke and former co-owner of No. 9, and from their son, Mr Michael Gorman. Mr Gorman supported his and his wife’s statements on oath from the witness box – it being accepted that Mrs Gorman could not add to the evidence to any extent. The evidence addressed two separate issues. First, the use of the disputed driveway, and, secondly, the use of the disputed verge. Essentially, the Respondents did not – indeed could not – challenge the evidence that the disputed driveway had been used as part of the vehicular access to No.7A from 1988 onwards. The driveway – including the disputed section – had been constructed prior to 1988, and it had formed the physical access to No.7A since that time. The position of the disputed section is such that it lies on the direct route from Walkers Ridge into the private drive of No.7A. Unless it had been demarcated on the ground and cordoned off (as it was for a while after this dispute began), a person using the driveway would be bound to drive across it.. Accordingly, there can be no dispute on the evidence that, as regards the claim to a vehicular right of way over the disputed driveway, there has been upwards of 20 years’ user – from 1988 until some time in 2009.
14. As to the second limb of the easement claim, the Respondents did challenge the Applicants’ evidence with regard to the use of the grass verge, in two particular respects. First, the date when the “power lights” were installed in the verge. In the original Transfer (“the 1988 Transfer”) of No.7A dated 3rd May 1988 and made between Clarefield (1) and Mr and Mrs Sowerbutts (2), the purchasers covenanted “To pay a one half share of the cost of repairing maintaining and replacing the sewage pump and communal lighting installed on the Estate….” – see clause 2 and paragraph 8 of the Third Schedule. The Applicants relied on the statements of Mrs Sowerbutts and Mr Read in particular, in which they stated that (between them) they had maintained the power lights in the disputed verge between 1988 and 2001. The Applicants had no direct knowledge of the date when the power lights were installed, but pointed to the covenant in the 1988 Transfer suggesting that the lighting must have been in place from at least 1988 onwards. However, the Respondents’ evidence was that the power lights had not been installed until approximately 1994, when, according to them, Mr Read had installed them in the course of carrying out major works to the fence and wall along the boundary. They relied on their own recollection of the situation when they bought No.7 in 1989, which they supported with some photographs which were said to demonstrate that the lights were not in position in 1992 and 1993. They also relied on the statement of Michael Gorman, their son, who had lived at No.7 between 1989 and 2006, whose recollection was that the lights were not installed until 1992-1994. Mr Mike Yorke, the former owner of No.9, thought that the lights were installed nearer 1996. Mr Eric Davies does not mention any lighting in his statement, although he claims to have given Mr Sowebutts permission to “access, use and maintain the land outside the wall as he wished…”.
15. The second major factual dispute relates to the issue of consent. I have just mentioned the evidence of Mr Eric Davies, who claimed to have given permission to Mr Sowerbutts to use and maintain the land to the south of the wall and fence feature. Mr Gorman himself gave evidence of at least one conversation with Mr Sowerbutts in which he says he gave him permission to enter the grass verge in order to mow and maintain it. All the Applicants’ witnesses claim that their use of the disputed verge (and driveway) was without consent. Mr Sowerbutts himself did not, of course, make a statement. However, Mrs Sowerbutts states that he agreed with the contents of her Statutory Declaration before he died. In addition, the Respondents rely on the letter dated 13th May 2006, referred to in paragraph 7 above.
THE FINDINGS OF FACT
16. Before I consider the legal issues raised by the Respondents, I shall make the necessary findings of fact on the principal factual disputes. First, the date when the lights were installed. There is no “live” evidence from the Applicants to establish the date, since neither Mr Milsum, nor Mr Salmon, were familiar with the property until 2000 and 2001 respectively. They rely on the Statutory Declarations I have mentioned, but these suffer from a number of deficiencies. First, the fact that the deponents were not cross-examined. Secondly, the fact that they all appear to have been drafted by the same person and are, in effect, standard forms. Thirdly, the fact that they do not directly address the date when the power lights were installed. On the other hand, Mr Gorman did give evidence before me, supported by the photographs that I have mentioned. The statements that he obtained – from his son, and Mr Yorke, do directly address the date issue, but again neither witness attended for cross-examination, which lessens their impact. On balance, however, I find that the power lights were not installed in the grass verge until some time after the initial development of No.7A, and no earlier than 1992. Although this period of time – from 1988 to 1992 – may not seem significant, in the context of a claim to a prescriptive easement it is of significance, since the Applicants are unable to establish that there has been a need to service or repair the lighting for a period of 20 years or more.
17. As to consent, I think I must distinguish between consent given in relation to the use of the disputed driveway, and consent to enter and maintain the disputed verge. As to the former, I do not consider that any of the evidence relied on by the Respondents goes to this issue. I do not think that the conversation with Mr Sowerbutts, for instance, can fairly be regarded as relating to the driveway itself. Nor, I think, could the statement of Mr Davies be read as relating to anything other than the disputed verge. It is the verge which Mr Davies is focussed on in the second paragraph of his statement. The only other possible “consent” given during the period of prescription arises from the letter dated 13th May 2006, relied upon by the Respondents. Two questions arise – first, was the letter ever received by the Applicants, and, if so, does it amount to consent to the vehicular use of the driveway? As to the first point, the burden is on the Respondents to satisfy me that the letter was received by the Applicants, not merely that it was written, or even sent, in May 2006. On balance, they have not satisfied me of this. It may well be that they drafted the letter, since they had been angered by what they perceived to be Mr Milsum’s “misrepresentation” regarding the boundary in his letter to the Planning Officer. However, it is in my view very significant that this letter was never mentioned by them until, I believe, their Statement of Case was served in July 2010. By this stage the dispute had been ongoing since March 2009, and the Respondents had provided very detailed objections to the Applicants’ claim, which included reference to other alleged consents being given. There was detailed correspondence passing between the parties, and between the Respondents and the Land Registry, yet no mention was made of this letter. Mr Gorman explained that this by saying that the letter was in a different file – the planning file – as opposed to the file kept regarding the boundary. Be that as it may, it is quite improbable, in my judgment, that this letter could have been so comprehensively forgotten if indeed it had been sent. It was, potentially, of critical importance on a critical issue. The fact that the letter had slipped both Respondents’ minds, until the dispute had already been over a year old, suggests to me that the letter had not been sent. In this regard, it is worth pointing out that the Respondents’ paperwork is otherwise in impeccable order, extremely detailed, with all relevant correspondence kept. As to the Applicants’ evidence, to the effect that the letter was not received, I was given no cause to doubt them. Although the dispute is a bitter one, I did not form the view that Mr Milsum was giving false evidence or otherwise trying to deceive the tribunal. Accordingly, I conclude that the letter of 13th May 2006 was not received by the Applicants.
18. Even if it had been received, I am not at all sure that it could be regarded as amounting to the giving of consent. The passage relied on in this: “There is absolutely no doubt whatsoever that you are fully aware of the location of the boundary of our land and that your casual use of our land was at our grace.” The letter itself is primarily concerned with the allegation that Mr Milsum has misrepresented to the planning authority the true position of the boundary. Although the underlying thesis of the letter is that the verge and part of the driveway belong to the Respondents, there is no express reference to either piece of land, nor to the nature of the use that is “at our grace”. Taking the letter as a whole, I am not persuaded that it can be regarded as the giving of consent to the specific use of the driveway as a vehicular access. It is in my view too vague and insufficiently specific.
19. As to the second limb of the claimed easement – the alleged right to clear and maintain the disputed verge – I have already held that the power lights were not in place until 1992 at the earliest, so there is no question of an easement having been acquired. As to the alleged right to enter the Respondents’ land for the purposes of cutting the grass on the verge, such a right cannot in my judgment amount to an easement in any event. However, should I be wrong on this point as a matter of law, and should the matter go further, I should make a finding of fact on this issue. There is a conflict of evidence. The Respondents say that Mr Sowerbutts was given permission to maintain the disputed verge, initially by Mr Davies (see his statement), and then by Mr Gorman. Mr Gorman confirmed this in his oral evidence. Mr Sowerbutts was the joint owner of No.7A until August 1991. Mr Davies owned No.7 until 25th May 1989, whereupon the Respondent became the owners. Mr Milsum was obviously not in a position to give any evidence as to whether permission had been given some ten years earlier. However, he relied on Mrs Sowerbutts’s Statutory Declaration, in which she stated that she and her husband had access to the grass verge throughout their period of ownership, for the purposes of maintaining it, and without the consent of any person. Mr Pennington stated that Mrs Sowerbutts had confirmed to him that her husband agreed with the contents of her Statutory Declaration, but he did not hear this directly from Mr Sowerbutts, who had died in the meantime. The Respondents formally objected to the Applicants’ use of the disputed verge by letter dated 31st March 2009. The 20 years’ user as of right must therefore have commenced prior to March 1989, and have continued “as of right” for the full period of 20 years thereafter. If Mr Gorman’s evidence of express consent is believed, there will have been an interruption in the 20-year period at some point during Mr Sowerbutt’s ownership. This would be sufficient to prevent the easement from being acquired. I find as follows. It might be thought a little improbable that Mr Gorman would be concerned to give consent to Mr Sowerbutts to maintain the disputed verge. This piece of grass is not visible from No.7 and serves no useful purpose. The only people who are likely to be concerned about its appearance are the users of the driveway, the occupiers of No.7A and No.7B. Be that as it may, I am not prepared to disbelieve Mr Gorman’s evidence of consent, and since Mr Sowerbutts has (for obvious reasons) not rebutted this evidence, I find that Mr Gorman did indeed give express permission to him to enter and maintain the disputed verge.
20. In summary, therefore, the principal material findings of fact are as follows:
a. The Applicants and their predecessors in title used the disputed driveway as part and parcel of their vehicular access to and from No.7A from 1988 to 2009;
b. The Respondents did not give any express or implied consent to this activity;
c. The power lights were not installed until after 1992, and the Applicants and their predecessors cannot therefore have accessed the disputed verge for that purpose over a continuous period of 20 years;
d. Any other acts carried out by the Applicants or their predecessors in title – such as strimming the grass verge – are not such as to create an easement known to the law. In any event, for a period between 1989 and 1991 this activity was carried out with the consent of the Respondents.
THE RESPONDENTS’ ARGUMENTS
21. As regards the vehicular right of way, on the face of it the Applicants have made out 20 years’ uninterrupted user, as of right, of the disputed driveway, and have therefore done enough to establish an easement by prescription. I have held that these acts were done without consent. However, the Respondents have two additional arguments up their sleeve. The first is based on a provision contained in the 1988 Transfer. This, of course, was the transfer whereby Clarefield (defined as “the Transferor”) sold the newly built No.7A to Mr and Mrs Sowerbutts. This contains the following provision: “IT IS HEREBY AGREED AND DECLARED between the Transferor and the Transferee: - ………. (b) Nothing contained in or implied by this Transfer shall operate to impose any restrictions other easement or right [except as hereinafter mentioned] which would in any way interfere with or restrict the user of the Transferor’s neighbouring or adjoining land for building or any other purpose and the access of such light or air or other easement or right shall be deemed to be enjoyed by the leave and licence of the Transferors and not as of right.”
22. The Respondents argue that this prevents the acquisition of any easement over the disputed verge and driveway. They argue that the reference to “neighbouring” land is meant to be a reference to No.7 – they point out that this is the only occasion where this word is used. In my view, this argument is untenable. The purpose of the clause is to prevent the acquisition of easements over any neighbouring or adjoining land of the Transferor. I cannot see that the expression “the Transferor’s neighbouring or adjoining land” can be read as referring to other land, such as No.7, which belongs to a third party. Obviously, the enjoyment of any rights or quasi-rights over land not in the Transferor’s ownership, could not possibly be regarded as being enjoyed “by the leave and licence of the Transferors…”. Accordingly, the Respondents’ construction of this provision is in my judgment unsustainable.
23. The Respondents’ second objection to the acquisition of a prescriptive easement is based upon the fact that the filed plans to the affected titles were altered in 2004, as I have explained. The argument runs like this. In order to obtain an easement by prescription, the “dominant” owner must have used land in third party ownership for the requisite 20-year period, “as of right”. Such user is on the face of it unlawful: a trespass occurs on each separate occasion that the dominant owner drives or walks across the servient land. The underlying purpose of the doctrine of prescription is to create a “deemed” legal origin for acts which would otherwise be unlawful. In the present case, however, until the alteration to the title plans in 2004, the disputed verge and disputed drive were shown as comprised within the Applicants’ title. What is the effect of this curious feature of the case?
24. The starting point must be a consideration of the general boundaries rule. As is well known, filed plan boundaries are not meant to be and are not definitive. They are approximations of the legal boundary only. If parties wish their boundaries to be precise, they must apply for a determined boundary. Prior to 2004, it is true that the filed plan wrongly showed the disputed driveway as falling inside the red edging which delineated the land within the Applicants’ filed plan. However, the Gormans successfully persuaded the Land Registry that the filed plan boundary was inaccurate, which resulted in the alteration to the register in 2004. However, the effect of this alteration was limited to making the filed plan general boundary more accurate – not to effect a transfer of ownership. Reference may be made to the case of Derbyshire County Council v Fallon [2007] EWHC 1326 (Ch) where this point is explained. As the Deputy High Court Judge (Mr Christopher Nugee QC) put it: “
25. On this basis, although the disputed land was shown on the pre-2004 filed plan of the parties’ titles as lying within the Applicants’ title, in reality the legal ownership remained where it always had been, namely with the Respondents. The clarification of the position of the general boundary did not include the transfer of ownership of any land. This is precisely the point made by the Land Registry in Mr Pikesley’s letter to Mr Milsum dated 9th December 2009, found at page 199 of the Bundle. I appreciate that this concept may be a little hard to grasp. If, prior to 2004, the Respondents had issued proceedings against the Applicants for an injunction to prevent them from using the driveway, it might have been argued against them that they could not prove a title to the land by reference to the filed plan. As a matter of law, however, such a point would have been a bad one, in the light of the general boundaries rule. In fact, since the Respondents have at all material times been the owners of the disputed driveway, the Applicants’ long (20 years’ plus) enjoyment of the vehicular access was indeed over land belonging to the Respondents. Accordingly, there is nothing to prevent the doctrine of prescription from applying in this case.
26. Furthermore, the circumstances of the 2004 alteration of the register suggest that this must be the right result. The alteration of the register was presented to the Applicants by the Respondents as a mere formality. According to the Respondents, they had always known that they owned some land to the south of the “boundary” wall and fence, because Mr Davies had told them this when he sold No.7 to them. He had pointed out that the physical boundary feature was in the wrong place. They must therefore always have known that the occupants of No.7A were treating part of the Respondents’ land as their accessway. In his evidence, Mr Gorman explained how it was that the Applicants agreed to the re-alignment of the general boundary. He told me that he had spoken to them, and explained the situation. According to his evidence, he told them “that nothing would change”. This must mean that he was raising no objection to the existing method of accessing No.7A. The Respondents do not claim in their evidence that there was any actual discussion regarding the driveway. Mr Gorman did say that there was discussion about re-siting the wall, which Mr Milsum denies. It seems to me quite improbable that the Milsums would have been asked to agree to move the wall. This is a substantial structure, and would be very expensive to rebuild in a different location. It is improbable that they would have agreed to the alteration of the title plan if they knew that this would involve them in substantial expense and inconvenience. I think it much more likely that the words “nothing would change” meant exactly that – namely, that the position on the ground would remain exactly as before. This does not in my judgment amount to an express permission to the Applicants that they might continue to use the driveway. There had been unchallenged use of the disputed driveway by the Applicants and all their predecessors in title prior to the 2004 re-alignment. There is no evidence that express or implied consent had been given by the Respondents or Mr Davies prior to 2004. They simply acquiesced in the use, which, for obvious reasons, the owners and occupiers of No.7A considered to be as of right. The statement made to the Applicants by Mr Gorman – doubtless to induce them to co-operate in the re-drawing of the filed plan general boundary – did not and was not intended to alter the basis on which the disputed driveway was used. The distinction between permission, and acquiescence, is crucial in prescription cases, as is explained in Gale on Easements (17th ed.) at 4-83.
CONCLUSION
27. Accordingly, the Applicants have succeeded in establishing an easement over the disputed driveway in the following terms, namely for the purposes of access to and from No. 7A for all purposes by day and by night and with or without motor vehicles. This is the first limb of the easement claimed by the Applicants in their AP1 dated 24th September 2009. However, they have not in my view succeeded in establishing any easement over the disputed verge. I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ application insofar as it relates to the disputed driveway, but to cancel their application with regard to the disputed verge. That leaves the question of costs. Both parties were unrepresented at the hearing before me, although they may have engaged lawyers at an earlier stage and have incurred costs. In the light of the outcome, I am inclined to make no order as to costs. If any party wishes me to make a different order, they must lodge their written submissions, copied to the other side, within 7 days of the date of this Decision.
Dated this 15th day of February 2011
By Order of The Adjudicator to HM Land Registry
