Smith & Anor v Muller & Ors [2008] EWCA Civ 1425

[2008] EWCA Civ 1425Case No A3/2008/0415
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Venue LEEDS DISTRICT REGISTRY
His Honour Judge Langan QC
7LS71074
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/12/2008
Before
LORD JUSTICE TUCKEYLORD JUSTICE WALLLORD JUSTICE RIMER
Between
WALTER SMITHAppellantsPATRICIA AGNES SMITHAppellantUBBO MULLERRespondentERIC IAN BROWN FOWLERRespondentJOAN SYLVIA FOWLERRespondentEDWARD MARCUS IAN FOWLERRespondentAMBROSE FOWLERRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr George Laurence QC (instructed by Denison Till) for AppellantsMr Stephen Howd (instructed by Chattertons) for RespondentsHearing Hearing dates: 14 and 15 October 2008
JudgmentLord Justice Rimer :Introduction
[1]This is an appeal by Walter and Agnes Smith, the defendants, against an order made by His Honour Judge Langan QC on 1 February 2008 in the Chancery Division, Leeds District Registry. The claimants, respondents to the appeal, are Ubbo Muller, Eric Fowler, Joan Fowler, Edward Fowler and Ambrose Fowler.[2]Mr Muller is the registered freehold proprietor of Chancel Farm, Messingham, Lincolnshire. Eric and Joan Fowler are the parents of Edward and Ambrose Fowler. Eric was formerly the agricultural tenant of Chancel Farm, but his tenancy is now vested in Edward. The Fowlers farm Chancel Farm in partnership. The dispute is as to the claimants’ claim to a right of way appurtenant to Chancel Farm, Messingham, Lincolnshire over a track running across an adjoining property, Priest Howes Farm, of which Mr and Mrs Smith are the registered freehold proprietors. The part of Priest Howes Farm relevant to the claim comprises an approximately rectangular area of land abutting the southern (east/west) boundary of Chancel Farm and lying between that boundary and Butterwick Road to the south, an area the judge called “the blue land”.[3]The right of way claimed by the claimants is over a track (“the track”) running north from Butterwick Road along the eastern edge (but within) the blue land to the boundary between that land and Chancel Farm. The judge upheld their claim. By his order he declared Mr Muller entitled to a right by prescription for the benefit of the whole of Chancel Farm to pass and repass with or without vehicles of any description over the track, his declaration including that the right is exercisable over a defined splay at the Butterwick Road end. He also declared that Mr Muller is entitled to a right of way over the track as recorded in entry No. 2 of the Property Register of his registered title (I shall come to what that refers to). He declared that the claimants are not obliged to maintain a hedge or fence along that part of the southern boundary of Chancel Farm adjoining the track: any such obligation would effectively negative the declared right, and I will explain the circumstances in which the judge made that declaration. He made consequential orders against the defendants preventing obstruction of the track, for damages and for costs. He refused them permission to appeal, but Arden LJ granted permission on 9 April 2008. Mr George Laurence QC represented them before us, but did not do so below. Mr Stephen Howd represented the respondents both before us and the judge.[4]The central issue before the judge was whether the claimed right of way was one whose purported creation was prevented by an Inclosure Award made in December 1804 under the Messingham Inclosure Act 1798. The appellants’ essential point was that the Award required the east/west boundary between Chancel Farm and the blue land (including at the point where the track meets the boundary) to be permanently fenced. It followed, they said, that no right of way over the track could be created by grant because no lawful grant could be made if its enjoyment depended on a breach of a statutory fencing obligation such as that imposed by the Award. It followed further, said the defendants, that the claim to a prescriptive right of way under the Prescription Act 1832 or the doctrine of lost modern grant could not succeed because the establishment of such a claim is based on the fiction of there having once been a lawful grant of the right. The judge disagreed with the argument and held that the fencing obligation imposed by the Award posed no obstacle to the claimed right. He held in the alternative that that obligation would anyway be satisfied by the inclusion of a gate where the track meets the boundary.[5]Mr Laurence repeated and developed before us a like argument that no such right as the judge found established could have been acquired by prescription or under the doctrine of lost modern grant. He also sought permission to raise a new challenge to the claimants’ case, one not argued below. To show how the arguments arise, I must explain the background.

Conveyancing history

[6]Dealing first with Chancel Farm, it comprises some 237 acres. Title to the farm derives under two routes. Part of the farm, comprising just under 32 acres (“the pink land”), was conveyed by Hannah Glew to Richard Watson by a conveyance dated 6 July 1922. The pink land abuts the blue land forming part of Priest Howes Farm and the northern end of the track meets the pink land at the boundary. That conveyance, made upon a sale to Mrs Glew’s tenant, purportedly included the benefit of a right of way over the track appurtenant to the pink land, the right being described thus:
“Together with a right of way as now used and enjoyed for the Purchaser his heirs and assigns the owners and occupiers of the hereditaments intended to be hereby conveyed to pass and repass with or without horses carts carriages and other vehicles laden or unladen along over and upon the roadway coloured green on the said plan leading to and from that portion of the hereditaments hereby conveyed known as Hallifield Close from and to the Butterwick Road.”
[7]The parties are agreed that Hallifield Close comprised the whole of the pink land. Mr Laurence suggested, probably correctly, that the explanation for the inclusion of the benefit of that right was that Mrs Glew treated her tenant’s use of the track over the previous 20 years or more as being for her benefit as the freehold owner of the pink land and as giving her the benefit of a right of way by prescription over the track, so enabling her to include that right in the conveyance as appurtenant to the pink land. Even if the conveyance had not included an express reference to the right, any such right would have passed to Mr Watson by virtue of section 6(1) of the Conveyancing Act 1881, the forerunner of section 62(1) of the Law of Property Act 1925. On Mr Watson’s death the pink land passed to David Watson.[8]The remaining, larger, part of Chancel Farm (lying beyond the pink land) was conveyed by a conveyance on sale dated 10 October 1928 to John Eminson. David Watson died in 1961 and on 9 April 1962 his personal representatives conveyed the pink land to Mr Eminson, who thus became the owner of the entirety of Chancel Farm as it now is. That conveyance expressly included the benefit of the right over the track referred to in the 1922 conveyance.[9]Eric Fowler, the second claimant, entered the story in 1969 and began to farm Chancel Farm in partnership with Mr Eminson. Mr Eminson died in December 1970, after which Mr Fowler continued to farm in partnership with his personal representatives. In 1973 Mr Fowler purchased Chancel Farm from them and it was conveyed to him on 8 October 1973. That conveyance also included, as appurtenant to the pink land, the benefit of the same right of way.[10]Chancel Farm has at all times since 1973 been farmed by members of the Fowler family. In the meantime, there have been several dealings with the freehold title. It has been owned successively by at least two pension funds and two individuals, subject in all cases to agricultural tenancies granted to the Fowler family, the current tenancy being held by Edward Fowler, the fourth claimant. Mr Muller, the first claimant, is the present owner, having been registered as proprietor at HM Land Registry on 30 March 2007. The right of way appurtenant to the pink land is the subject of entry No. 2 in the Property Register. That entry had been included in the title since it was first registered on 14 August 1995 and it is that easement that was the subject of the judge’s second declaration that I said I would explain. That easement would not, however, enable the track to be used for the purpose of accessing that part of Chancel Farm lying beyond the pink land (see Harris v. Flower (1905) 74 L.J. Ch 127; and Bracewell v. Appleby [1975] Ch 408). It was for that reason that it was important to the claimants to establish a prescriptive right of way over the track appurtenant to the whole of Chancel Farm. That case depended on the use of track for at least 20 years prior to action brought.[11]Turning now to Priest Howes Farm, which comprises just over 23 acres, the part with which the claim is concerned is the blue land, which includes the track. It is unfortunately necessary to complicate the picture just a little more by dividing the track into two sections. I will refer to the northern (approximately) third of the track as “the northern section” and to the southern two thirds of it as “the southern section”. If the track as a whole is regarded as a flagpole, the part of the blue land of central relevance is the “flag” attached to the northern section and flying in a stiff breeze to the west. That is a rectangular area of about one acre in size forming roughly the northern half of the blue land and abutting the pink land. At least by the first decade of the nineteenth century, that piece of land and also the northern section (which did not then form part of any track) comprised a sandpit used for extracting gravel for road repairing purposes; and the southern section of the track provided access to the sandpit from Butterwick Road. The inference from the documents is that the sandpit ceased to be used as such by the end of the nineteenth century (Mr Laurence suggested that this probably happened by about the 1890s), after which it appears that the southern section was extended northwards (by creating a continuation of the track over the northern section) and the track then became used for access to and egress from the pink land. Mr Laurence suggested that this probably happened sometime between 1896 and 1907. This right (or claimed right) over the track was the right referred to in Mrs Glew’s 1922 conveyance to Mr Watson. By the 1950s, the remaining section of the sandpit abutting the northern section of the track was used as a local authority rubbish tip.[12]Having set the geographical scene, it is not at this stage necessary for title purposes relating to Priest Howes Farm to go back earlier than a conveyance of 23 April 1957 by Westminster Bank Limited (as executor of Thomas Eminson) to Rudolph and Thomas Gowsell as joint tenants. That conveyance purported to convey to the Gowsells the whole of the farm, which was at that stage tenanted by Mr and Mrs Drewery. It described it as comprising some 23.137 acres. But the judge recorded that it later became acknowledged by all that the Bank in fact had no title to part of the land purportedly conveyed to the Gowsells. That part comprised the site of the old sandpit abutting the northern section and the whole of the track.[13]Following the realisation of that title defect, by a conveyance dated 10 March 1964 Rudolph Gowsell (Thomas having by then died) acquired for £40 from the Glanford Brigg Rural District Council(a) that part of the old sandpit abutting the northern section together with(b) the benefit of a right of way appurtenant to the old sandpit over the whole of the track. The Council’s title to convey what it did was (in part) the subject of a recent statutory declaration made by Robert Benson, clerk for 34 years of the Parish Council of Messingham. The essence of what he said was that that part of the sandpit had been owned by the Council since it had vested in it under section 25 of the Local Government Act 1894. He did not assert that the Council also had a title to any part of the track, even though the northern section had originally formed part of the old sandpit. He asserted merely that the Council had a right of access over the track.[14]Mr Laurence’s position was, however, that there was no doubt that the northern section did form part of the Council’s title, because as part of the original sandpit it would have vested in the Council together with the remainder of the sandpit. He was just as confident (and in this respect Mr Howd agreed with him) that the southern section was not part of the Council’s title, which had no more than a right of way over it, although the judge appears to have taken the view that that section was within its title (paragraph [28] of his judgment). Subject to an argument suggested by Mr Howd (to which I will come), the 1964 conveyance did not, as I have indicated, purport to convey any part of the track to Mr Gowsell. It apparently gave him no more than a right of way over the track appurtenant to the sandpit. I should say that these (or any) uncertainties as to the title to the track were of no relevance to the issues argued before the judge. They did, however, assume a relevance to the new case that Mr Laurence sought to raise before us.[15]On 18 March 2002 Mr Gowsell sold and transferred Priest Howes Farm to Richard and Josephine Hall. The transfer did not describe the parcels very cleverly. It described the land transferred as comprising(a) the 23.137 acres shown on the plan attached to the conveyance of 23 April 1957, and(b) the sandpit comprising an acre or so shown on the plan to the conveyance of 10 March 1964 together with the right of way over the track. Of course, the 1957 plan had purportedly included both the sandpit and the track. But the transfer was no doubt effective to transfer to Mr and Mrs Hall whatever it was that Mr Gowsell actually had. The Halls in turn sold it in 2006 to the appellants, Mr and Mrs Smith, who were registered as proprietors on 30 May 2006. The filed plan shows the whole of the track as included within their registered title, which the judge said appeared to have been an error, although one upon which nothing turned. The result was that – rightly or wrongly -- the Smiths ended up as the registered proprietors of land including the blue land, which itself included (a) the site of the remainder of the old sandpit and (b) the whole of the track.[16]The judge explained that Mr and Mrs Smith had agreed to purchase Priest Howes Farm on 3 April 2006, with the transaction being completed on 28 April 2006. He related how Mr Smith knew by then that the track was used as an access way by the occupiers of Chancel Farm and how he then took it upon himself to obstruct that use by planting a hedge along the boundary at the northern end of the track, lowering the level of the track’s surface, dragging a digger over it so as to make it impassable by ordinary motor vehicles, erecting a gate at the southern end so that manoeuvring farm machinery on to it from Butterwick Road became difficult and dumping a load of soil at the entrance so as to block access. The judge described Mr Smith’s excuses for his activities as “too pathetic to warrant repetition by me.” None of his actions – which the judge said could not have been more unneighbourly -- had any bearing on the legal issues in the case.

The Messingham Inclosure Act and Award

[17]Having reached 2006, I must go back to 1798, when the Messingham Inclosure Act was enacted. Its purpose, as described in its long title, was:
“for dividing inclosing allotting and improving the several open and common Fields … and other unenclosed Lands and Grounds within the Township of Messingham and that part of the Hamlet of East Butterwick in the Parish of Messingham in the County of Lincoln.”
[18]The judge explained that the objects of the Act were, as usual, carried out by the making of an Award by commissioners, the Award being signed on 15 December 1804. Priest Howes Farm was the subject of three provisions in the Award. First, the northern part of the blue land – the site of the sandpit, including the northern section of the track – was the subject of allotment 92, being one of 12 allotments made in favour of the surveyor or surveyors of Messingham and East Butterwick:
“… and their Successors for ever for getting Stone Gravel Sand or other Materials for repairing the Roads and Ways within the said Township and Hamlet respectively.”
Second, in exercise of their power to set out private roads, the commissioners dealt with the southern section of the track:
“And one other Private Carriage Bridle and Drift Road of the breadth of Twenty feet leading out of the Butterwick Road … in a Northward direction to an Allotment No. 92 made to the Surveyors of the Highways [of Messingham and East Butterwick] for the use of the said Surveyors and their and every of their Servants Agents and Workmen and all other Persons by them authorized to pass and repass to and from the same and which we direct to be called the West Gravel Pitt [sic] Road.”
Counsel are, I understood, agreed that the soil of the southern section was not allotted to anyone, an omission resulting in a presumption that each adjoining owner owned it up to halfway. Third, the southern, and greater, part of the blue land was the subject of allotment 93, in favour of William Betts.[19]As regards Chancel Farm, allotment 96 was awarded to John Hallifield. This included land bordered on the south by allotment 92 (the sandpit) and also a field to the east of the blue land. The award of allotment 96 concluded thus:
“And we order and direct that the Fences on or towards the West and South sides of the said Allotment shall be made and for ever hereafter maintained and repaired by the said John Hallifield or the Owner or Owners thereof for the time being.”
That fencing obligation imposed an obligation in relation to (inter alia) the boundary between the pink land and the blue land. The northern point of the track meets that boundary.

The issues before the judge

[20]In light of the way in which the appellants have sought to pursue their appeal, it is important to identify the issues that fell to be decided by the judge. The claimants asserted(a) a vehicular right of way over the track appurtenant to the pink land (being just part of Chancel Farm), relying on the 1922 conveyance but also, and primarily, on the registered title to such an easement in the property register of Chancel Farm; and(b) a like right of way appurtenant to the whole of Chancel Farm by virtue of long user since 1969, in reliance on section 2 of the Prescription Act 1832, alternatively under the doctrine of lost modern grant. The defendants conceded before the judge that, subject to points raised on the effect of the 1798 Act and 1804 Award, the claimants had made good their latter claim. They made no concession as to the former claim based on the 1922 conveyance. But, as the judge pointed out, that would be immaterial if the latter claim succeeded.[21]Given the defendants’ concession, the judge found it unnecessary to review much of the evidence adduced, but I should summarise his findings about the track. He pointed out that the northern section was, by the Award, vested in the surveyor of highways (together with the rest of the sandpit) but said that by 1910 that section would have become vested in the rural district council (under section 25 of the Local Government Act 1894). The judge’s consideration of an 1888 Ordnance Survey map (which referred to the sandpit as the “Sand Pit”) suggested to him that by that date the track did not then extend further north beyond the southern section whereas the 1907 Ordnance Survey map (which referred to the sandpit as the “Old Sand Pit”) showed it as extending to the Chancel Farm boundary. As to the use of the track, the judge said the most impressive witness was Mr Green, who was born in 1941 and whose evidence (which the judge accepted) was that he had used the track since he was a boy and that there was never a hedge across the boundary at the point where the track met Chancel Farm. The southern section of the track had a hardcore foundation and the northern section was of solid composition containing stones, bricks and other rubble. The track is able to bear the weight of the heavy farm vehicles which the evidence showed had regularly passed between Butterwick Road and Chancel Farm.[22]The defendants’ case before the judge was that the obligation under the Award to fence the boundary at the northern end of the track had never been relaxed and could only be relaxed by an Act of Parliament. It followed that the obligation to fence has always remained and still remains; and that it is legally impossible to establish an easement of way over a line across which there is a statutory duty to fence. It was not suggested that the use of the track by the Fowlers in order to establish their case had involved the commission by anyone of any criminal offence.[23]The judge preferred and accepted Mr Howd’s submission for the claimants that the relevant fencing obligation was in the nature of a quasi-easement, with the blue land being the dominant tenement and part of the pink land being the servient tenement. The judge said there was ample authority (Jones v. Price [1965] 2 QB 618, Crow v. Wood [1971] 1 QB 77, and Egerton v. Harding [1975] 1 QB 62) for the recognition of such a right as a quasi-easement. He held that the right was a private right capable of being waived for the purposes of the creation of an easement of way and it made no difference that the right had a statutory origin.[24]In the alternative, the judge held that even if there was a continuing obligation to fence the boundary for the benefit of the blue land, it made no difference to the outcome. The fencing obligation was to keep the allotments “sufficiently inclosed and fenced”. That requirement could have no more than two objects: to mark the boundaries of allotments and to keep livestock in their own territory. The first object did not require continuous fencing and the second could be met by maintaining a gate across any gap.

The defendants’ appeal to this court

[25]Mr Laurence wished to argue three main points on the appeal. First, that the judge was wrong to regard the benefit of the Award’s fencing obligation in relation to the relevant boundary as a private right that could be waived. Second, if the judge was wrong about that, he was also wrong to hold that the obligation could be satisfied by the inclusion of a gate at the point where the track meets the pink land so as to enable the right of way to be enjoyed. Third, if the judge was right on either of those points, the claimed fictional grants of the 1922 easement (appurtenant to the pink land) and of the prescriptive easement (appurtenant to the whole of Chancel Farm) were anyway void as being ultra vires the notional grantors.[26]The third point was not obviously raised in any of the grounds of appeal for which Arden LJ gave permission, although it was raised in Mr Laurence’s March 2008 skeleton argument prepared in support of the permission application and appeal. More importantly, no such point was raised before the judge. The new point is based on the premise that, at all material times (including a time relevant to the claim based on prescription), the paper title to the northern section of the track was vested in either the surveyors or their successors, the Council.[27]The claimed consequence of that was summarised in two proposed new paragraphs of the Defence, for which permission to amend was sought. Paragraph 19A asserted that until 1933 the only power to dispose of the sandpit was one conferred by the Sale of Exhausted Parish Lands Act 1876 and that such statutory power did not extend to the grant, actual or presumed, of an easement over the sandpit. Accordingly, in so far as the 1922 conveyance made an assumption that an easement over the track appurtenant to the pink land had been acquired by use, the assumption was wrong because neither the surveyors nor the Council had the power to effect the fictional grant that the assumption assumed. Paragraph 19B asserted that, to the extent that the claimants were asserting a title by prescription or under the doctrine of lost modern grant appurtenant to the whole of Chancel Farm (a right acquired by user for upwards of 20 years before action brought), that too was impossible. That was because under section 165 of the Local Government Act 1933 as amended by section 26 of the Town and Country Planning Act 1959, and also under section 123 of the Local Government Act 1972, an express grant of an easement over the sandpit was only legally possible if (a) full consideration was paid for it; or (b)if such consideration was not paid, the Minister or Secretary of State had given his prior consent. The assertion was that neither assumption could be made so that again the claim to an easement appurtenant to the whole of Chancel Farm must fail.[28]Mr Howd, in his responsive skeleton argument, raised an objection to the taking of this new point. He explained that it had not been pleaded, was not taken before the judge and was contrary to concessions the defendants had made (the main one being that, subject to the points about the 1798 Act and 1804 Award that were argued, the claimants’ case to a right of way by prescription or lost modern grant was made out). He further asserted that the new point raised numerous issues of law and fact that were not considered by the court below; and that, had the point been taken below, it would have materially affected the way in which the claimants would have prepared and presented their case. He said that the claimants would have argued that by the time when the grant of the easement appurtenant to Chancel Farm was to be assumed to have been effected, the northern section of the track was vested in Mr Gowsell rather than the Council. They would not have been prepared to accept (as they did) that Westminster Bank Limited did not in 1957 have a title to the track. They would have questioned whether the assumption made in 1964 that the Gowsells had not acquired a title to the track was correct. They would have explored whether there was a case for saying that Mr Gowsell had been in adverse possession of the track since 1957 so as 12 years later to extinguish the Council’s title. Mr Howd also emphasised that the appellants’ case for challenging that grant referred to in the 1922 conveyance – in respect of which Mr Muller has a registered title – was particularly feeble since the effect of section 58(1) of the Land Registration Act 2002 is that, whatever challenge may be levelled at the 1922 conveyance, the easement recorded in entry No. 2 is now deemed to be vested in Mr Muller. To challenge his title to it, the appellants would need to counterclaim for a rectification of the register, which they have not done; and the prospects of a successful rectification application against Mr Muller (a proprietor in possession) were, on the facts, close to nil: see Schedule 4 to the 2002 Act for the relevant provisions. In case this court were to permit the appellants to take the new point, Mr Howd developed a written argument in answer to it on its merits.[29]Mr Laurence, in seeking to persuade us to permit the new point to be argued, said that it would occasion the claimants no prejudice. He said the suggestion that they could have hoped to make good a case that there came a time when the track or the relevant part of it vested in Mr Gowsell was unrealistic. Mr Gowsell himself had not asserted any such title after 1964, and the 1964 conveyance resulted from his acceptance that he had not earlier acquired a title to the track. It was not realistically arguable that the 1964 conveyance conveyed, or purported to convey, the track or part of it to Mr Gowsell. The suggested adverse possession claim was hopeless, because in 1964 Mr Gowsell acknowledged that he did not have a title to the track: he took an express right of way over it. Mr Laurence recognised, however, that the 1964 conveyance did not amount to an acknowledgment that the Council owned any part of the track; and I have commented that nor did Mr Benson’s statutory declaration assert that the Council owned part of the track, although the Council could have owned it without realising it. The new point was, Mr Laurence said, therefore a pure point of law which he should be allowed to develop. As for the 1922 easement, Mr Laurence said the only answer to his point on the facts would be that Dr Eminson, who acquired Priest House Farm in 1896 – but not the sandpit – had acquired a title to the sandpit by adverse possession at some later stage. That was a hopeless endeavour.[30]In his oral argument in opposition to the taking of the new point, Mr Howd repeated first, and correctly, that the new point is one that had to be pleaded (see the closing words of section 5 of the Prescription Act 1832). He repeated his point about the conclusiveness of Mr Muller’s registered title in respect of the easement referred to in the 1922 conveyance, although he recognised that that point did not also meet the argument that the new point levels at the claim to a prescriptive right of way appurtenant to the whole of Chancel Farm. He repeated that if the claimants had been given a proper forewarning of this point before the trial below, they would have considered the basis on which they might seek to answer it. That might, subject to investigation of the matter, perhaps have involved the calling of further oral evidence, although Mr Howd fairly recognised that that was unlikely. He said, however, that it might at least have led to the asking of further questions of those witnesses who were called. He pointed out that whether or not there would have been further evidence, the claimants would at least have sought to challenge the factual assertion upon which the new point is necessarily premised, namely that the northern section of the track was at all material times vested in the surveyors or the Council. In making good that case, Mr Howd would have sought, by reference to various land tax documents from the early twentieth century that we were shown, to prove that at least by 1910 Dr Eminson (the then owner of Priest Howes Farm) thought that he owned the sandpit and the northern section of the track; and he would have invited the court to infer that Dr Eminson had either acquired such a title by adverse possession or else by a lawful conveyance from the surveyors. He said that this inference was consistent with the 1957 conveyance from the Bank to the Gowsell brothers, although it was admittedly inconsistent with the conveyance of 1964. As to that conveyance, he said that if (contrary to Mr Benson’s apparent understanding) the Council did then own the northern section of the track, it was difficult to identify any sensible commercial basis on which the Council could have intended to convey to Mr Gowsell anything less than the whole of the “unfenced worked out sand pit” referred to in the parcels clause -- that is, the remaining sandpit plus the northern section of the track – and he suggested that a fair interpretation of the conveyance was that it did convey such land.[31]In considering whether to permit the new point to be taken, we did not of course hear full argument on these matters, although as to this particular one it can obviously be said, as Mr Laurence did say, that the natural interpretation of the conveyance is against it, since it in terms granted Mr Gowsell a mere right of way over (inter alia) the northern section. But on Mr Laurence’s interpretation of the conveyance, it can in turn be said that the Council was apparently ignorant that it owned the soil of the northern section. If it had believed that it owned it, it is not obvious why it would not have conveyed it to Mr Gowsell: no-one suggested that it had any commercial reason for retaining it. Why, it might be asked, should the court now proceed on the basis that Mr Laurence invites – namely, that the Council always owned the northern section -- when the Council was itself apparently acknowledging that it had no more than a right of access over it? Finally, Mr Howd submitted that if he was otherwise wrong on all points to date, he would have submitted to the judge that he should have inferred that, at the latest by 1987, Mr Gowsell had acquired a title by adverse possession to the track, including the northern section; and he would have wanted to make the same submission to us.[32]I need say no more about the rival arguments as to whether Mr Laurence should be entitled to argue the new point. Having considered them, we ruled against permitting him to do so, for reasons to be given in this judgment, which are as follows.[33]Had it been apparent that a forewarning of the new point in the proceedings below would have led to the calling of further evidence by the claimants, that would obviously have pointed against permission being given in this court to take the new point. The reason for that is too plain to require a reasoned explanation. I have, however, said that Mr Howd suggested that it was unlikely that there would have been any additional evidence, and from what I understand of the case I regard that as a proper concession. It can, therefore, be said that in so far as the claimants’ answer to the new point – had it been taken below -- would have been likely to turn essentially on a consideration of the documents, this court is in a position to do the like exercise. That might be said to point towards permitting the point to be taken.[34]Our view was, however, that that was not the right course. I have indicated the range of matters that Mr Howd would have wished to develop in his bid to satisfy the court that the probabilities were that there came a time when the northern section was not vested in the surveyors or the Council, that time being a sufficiently historic one to enable a right of way by prescription to be obtained over the track. To the extent that that inquiry can be said to involve the interpretation of documents, such an exercise is admittedly one that raises questions of law. But the case that Mr Howd would wish to raise in answer to the new point went rather further than that. It was one that would ultimately have required this court to make findings of fact as to who owned the northern section at various stages in the uncertain history of its title. We took the view that a function of that sort was simply not one that this court should be performing on an appeal. The appellants’ bid to raise this new point was, we considered, made too late. The point should, if it was to be raised at all, have been raised in the court below, when it could have been the subject of such further evidence (if any) as the parties sought to adduce and could have received the mature consideration of the trial judge. It is not the function of this court to deal afresh with fundamental questions of mixed fact and law.[35]Mr Howd referred us in this connection to Jones v. MBA International Bank [2000] EWCA Civ 514. Peter Gibson LJ said, at paragraph [38]:
“It is not in dispute that to withdraw a concession or to take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed, it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow the new point to be taken.”
May LJ said, at paragraph [52]:
“Civil trials are conducted on the basis that the court decides the factual and legal issues which the parties bring before the court. Normally each party should bring before the court the whole relevant case that he wishes to advance. He may choose to confine his claim or defence to some only of the theoretical ways in which the case might be put. If he does so, the court will decide the issues which are raised and normally will not decide issues which are not raised. Normally a party cannot raise in subsequent proceedings claims or issues which could and should have been raised in the first proceedings. Equally, a party cannot, in my judgment, normally seek to appeal a trial judge’s decision on the basis that a claim, which could have been brought between the trial judge, but was not, would have succeeded if it had been so brought. The justice of this as a general principle is, in my view, obvious. It is not merely a matter of efficiency, expediency and cost, but of substantial justice. Parties to litigation are entitled to know where they stand. The parties are entitled, and the court requires, to know what the issues are. Upon this depends a variety of decisions, including, by the parties, what evidence to call, how much effort and money it is appropriate to invest in the case, and generally how to conduct the case; and, by the court, what case management and administrative decisions and directions to make and give, and the substantive decisions in the case itself. Litigation should be resolved once and for all, and it is not, generally speaking, just if a party who successfully contested a case advanced on one basis should be expected to face on appeal, not a challenge to the original decision, but a new case advanced on a different basis. There may be exceptional cases in which the court would not apply the general principle which I have expressed. But in my view this is not such a case.”
[36]Because this is not a case in which this court can be confident that, had the new point been taken below, the claimants would have sought to adduce additional evidence over and above that which was anyway before the court, the opposition to the taking of the new point was not as strong as it will be in cases in which additional evidence might have been adduced. However, for the reasons I have given, we concluded that this was anyway not a case in which the court should allow the new case to be made.

The substantive points on the appeal

[37]Our refusal to permit Mr Laurence to argue the new point had a material impact on the scope of the argument he wished to advance. For practical purposes, he conceded that it prevented him from deploying the effects on the 1798 Act and 1804 Award of the subsequent legislation from 1835 onwards relating to the powers of and limitations upon local authorities in relation to the disposal of land. He recognised also that the evidence appeared to indicate that by about 1900 the sandpit had been exhausted or had at any rate fallen into disuse. That fact brought into consideration the decisions in R v. Leake (1833) 5 B. & Ad. 469 and British Transport Commission v. Westmorland County Council [1958] AC 126, to which both counsel made reference. Mr Laurence recognised that the essence of what they decided is that the vesting by statute of land in particular persons for particular purposes does not prevent its use for other purposes if that other use is not incompatible with the statutory objects for which it was so vested. Relating that to this case, he recognised that it was foreseeable that the sandpit would or might in time (as it did) become exhausted; and that it was therefore arguable that the subsequent devotion of part of it (the northern section of the track) for other purposes (as part of a private right of way) could lawfully be made as not being incompatible with the original statutory purposes reflected in the 1798 Act as effected by the Award.[38]That recognition went, it seems to me, much of the way towards undermining what was left of the appeal. But Mr Laurence firmly submitted that it did not do so. The essence of his submission was that the statutory force of the 1798 Act and the subsequent Award was, as he put it, simply too strong to permit its trumping by the principle just explained. In short, he submitted that what is to be derived from the Award is that the sandpit was devoted to the surveyors “for ever” (and literally so), to be held by them for the public purpose of extracting gravel in connection with the building and maintenance of roads; and that they were forever impliedly barred from creating any rights over any part of it that were inconsistent with the duties imposed and rights granted to them under the Award. Further, and in particular, the fencing obligation imposed on the predecessors of Chancel Farm was imposed for the benefit of (inter alios) the surveyors as owners of the sandpit. That benefit was held for public purposes -- to keep people from trespassing on the sandpit. Even accepting, Mr Laurence submitted, that it was in principle open to the surveyors and their successors to grant a right of way over the northern section of the track, they could not have created a valid such grant appurtenant to Chancel Farm because they were forever barred from releasing the public right to the benefit of that obligation; and unless it could be lawfully released, no effective grant of a right of way could be made.[39]Mr Laurence devoted some time towards developing the proposition that there is in this context a material difference between private and public rights. No-one questions that if the fencing obligation was merely in the nature of a quasi-easement creating private rights, its benefit could be waived for the purpose of granting a right of way over the track. Mr Laurence’s essential point was, however, that its benefit was in the nature of a public right, which was imposed on Mr Hallifield and was held by the surveyors and their successors for the benefit of the public generally, and that as such the surveyors and their successors simply had no power to waive or release it so as to enable a right of way into Chancel Farm to be granted over the track. The only authority said to provide support for that proposition to which Mr Laurence was able to refer us was the county court decision in Seymour and another v. Flamborough Parish Council, 31 January 1997, a decision of His Honour Judge Cracknell. We were shown a report of it in Volume II of the Thirteenth Report of a House of Commons Committee on The Protection of Field Boundaries. The issue was whether Flamborough was under a duty to maintain a hedge in its ownership and forming the boundary between parish allotments and a public highway. The hedge dated from an eighteenth century Inclosure Act and Award under the terms of which Flamborough, as successor of the original allottee, was required to maintain it forever as a living hedge. Flamborough wished to replace it with it a close boarded fence. Mr Seymour objected to that proposal and brought proceedings in the county court for a declaration that Flamborough was statutorily bound to maintain the hedge forever. In the event his claim was not opposed: Flamborough did not concede it but was not prepared to run the costs risk of losing the claim. So the judge had to decide the question of principle without the benefit of contrary argument.[40]The judge upheld the application and made the declaration sought. He drew a distinction with hedges which the Award required to be planted simply between neighbouring fields, in which case the right to compel their preservation might simply be a matter of private rights. In the case before him, however, the hedge marked the boundary between a field and a public highway. The judge held that it followed that its maintenance was not just for the benefit of the owner of the field but was also for that of the public generally, in particular the residents of Flamborough. He held that the consequence was that the obligation imposed by the Award to maintain the hedge was in the public domain. Flamborough remained bound by it and was required to honour it.[41]By analogy with that case, Mr Laurence submitted that a like principle applies in the present case. The Award imposed the fencing obligation at least in part for public purposes – for the benefit of the surveyors as owners of the sandpit, which was itself held for public purposes – and so it followed that neither the surveyors nor their successors had the power to release the benefit of the obligations so as to enable the lawful grant of a right of way over the track and through an unfenced section of boundary. The judge made a passing reference to the Flamborough decision and appeared to recognise the correctness in principle of the proposition that an obligation imposed by an Award to fence against a public highway may create public rather than private rights. But he did not regard the fencing obligation in this case as creating public rights.[42]Mr Laurence’s further argument addressed the judge’s point that even if there was a continuing and enforceable public obligation requiring the maintenance of a fence along the boundary, it was nevertheless not one that prevented the owner from making a gap in it (gated, if necessary to keep livestock in) so as to enable a right of way over the track to be used to gain access to and egress from Chancel Farm. His submission was that in this respect the judge was also wrong. The benefit in point was the public interest in having the sandpit and its operations protected from incursion from adjoining land to the north and in protecting from possible injury people and animals coming from that land. That object would not be achieved if the fencing obligation could be satisfied by leaving gaps, even if gated, in the fencing. That could not have been the intention underlying the obligation. Mr Laurence added that as the use of the sandpit for its permanent public purposes was incompatible with the sterilising of part by granting a private right of way over it, the only sensible way in which to construe the obligation is as one requiring a continuous fence.[43]Mr Howd’s first submission, in answer to this last point, was that it was clear that the relevant fencing obligation did not require a continuous barrier. The language of the 1798 Act indicated that the fencing obligations required the planting of hedges. The Act imposed special and detailed fencing obligations (including the inclusion of gates) in relation to the fencing of the allotments made to certain identified allottees, including the Bishop of Lincoln, with their fencing to be paid for by the other allottees. These special cases apart, the fencing obligations imposed on all other allottees was merely that their allotments “shall be sufficiently inclosed and fenced …”, with a further obligation on them under the Award “for ever [to] support repair maintain scour such of the respective Fences and Ditches thereof as are herein mentioned ….” That was also the obligation imposed upon Mr Hallifield in relation to his boundaries, including that now in question. Mr Howd pointed out that the logic of Mr Laurence’s argument that the language of the fencing obligation requires the maintenance of an unbroken barrier led to the improbable consequence that literal compliance would leave Mr Halliwell with no access to or escape from his land. Apart from the inherent absurdity of that, the Award expressly contemplated the creation of gates to roads – and, importantly, also between allotments -- and laid down specific provisions as to the creation of “tunnels” under them for the passage of surface water. Quite apart from this, the terms of the fencing obligation – requiring that the allotments be “sufficiently enclosed and fenced” does not on any ordinary or sensible interpretation require an unbroken continuous barrier enclosing each allotment. Mr Howd said that if he was right about this, the appeal must fail. No point was open to Mr Laurence that it was not competent to the surveyors or their successors to grant an easement of way over the northern section of the track; and since a gate could lawfully be created at the boundary with Chancel Farm, no point was open to him that the grant of such an easement involved the release of the claimed public benefit of the fencing obligation.[44]If he was wrong on that, Mr Howd said that the essence of the argument in the court below was that the statutory origin of the fencing obligation meant that it was not capable of being waived or released. The argument was not that the benefit of the fencing obligation created a public right which was for that reason incapable of being released. The mere fact that it had a statutory origin did not, as the judge held, prevent its release (Great Eastern Railway Company v. Goldsmid (1884) 9 App. Cas 927, per Lord Selborne LC at 936/937). The only authority for the new proposition that the benefit of the quasi-easement created by the fencing obligation was in the nature of a permanent public right which could not be released was the Flamborough case. Mr Howd said that this case provided no guidance for present purposes. His more general point was that the allotment of the sandpit to the surveyors gave them a legal title no different from that of any other allottee, nor was the quasi-easement that they had different from any like quasi-easement enjoyed by other allottees. They might have owed public duties in relation to their holding of the sandpit but their legal capacity to deal with the land was the same as that of any private landowner. There was no implied restriction on their capacity to release the benefit of the quasi-easement. The creation of a private right of way would simply involve the release pro tanto of the fencing obligation.[45]Mr Howd’s third submission was that there was no question of any illegality preventing the creation of the presumed grant. There was nothing unlawful in going up and down the northern section of the track, which was the activity which the easement permitted. The mere fact that in exercising that right the dominant owner would not be doing something on his own land that he ought to have done – maintain a continuous fence – is neither here nor there. The Award imposed no implied prohibition on the grant of an easement over the northern section of the track. It simply allotted the sandpit to the surveyors, and the allotment gave the surveyors the like capacity to deal with the sandpit as any other owner. Nor, if and when the sandpit became exhausted, would the grant of such a right be incompatible with the use of the sandpit for the purpose for which it was allotted, a submission for which Mr Howd relied upon the principles in the Leake and British Transport Commission cases.[46]Mr Howd’s fourth submission was that the appellants’ bid to challenge Mr Muller’s registered title to the easement appurtenant to the pink land was hopeless. Absent a counterclaim to have the register rectified -- and there was none -- the registration was conclusive as to the title. Were such a counterclaim now to be permitted, given that (as was conceded) Mr Muller is a proprietor in possession, a claim for rectification could have no prospect of success. We were referred to Schedule 4 to the Land Registration Act 2002, and Mr Howd developed an essentially defensive argument in anticipatory answer to any claim for rectification that might be permitted. His point was that even if the appellants have an arguable case that the original inclusion of entry number 2 in the registered title in 1995 was a “mistake”, it was not one to which Mr Muller (a subsequent registered proprietor) in any manner contributed. It follows that the only basis upon which, if Mr Laurence were otherwise right, the title might be rectified against Mr Muller would be if it could be shown that it was “unjust for the alteration [to the register] not to be made” (paragraph 3(2)(b) of Schedule 4 to the 2002 Act). There was, Mr Howd said, no factual basis on which the appellants could hope to make out a case under that head.[47]In his reply Mr Laurence re-emphasised the claimed public nature of the benefit of the fencing obligation and sought in particular to meet the point that the Award imposed no obligation upon Mr Hallifield to maintain a continuous fence along the relevant boundary. He said the reference to the passage in the Award referring to the making of gates and creating tunnels did not create a general power to make gates between allotments: it did no more than lay down conditions as to what had to be done in relation to the creation of gates otherwise permitted by the Act or the Award. He referred to the provision in the Act providing for the “sufficient” inclosing and fencing of the allotments generally, and drew attention to the proviso to it:
“Provided always that convenient gaps and openings shall be left in the fences to be made by virtue of this act for the space of twelve calendar months next ensuing the executing of the award for the passage of cattle carts and carriages in and through the same unless the commissioners shall by their said award or by any other instrument in writing under their hands order the same to be sooner fenced and made up.”
My Laurence’s submission was that it was that to which the provision relied on by Mr Howd was referring. He made the point that there was no question of Mr Halliwell being landlocked, a finding the judge did not make. Mr Halliwell would have had a common law private right to make an access to the highway at any point along his frontage. As for Mr Howd’s points in relation to the Land Registration Act 2002, he submitted that they raised difficult questions and that, if otherwise right, his clients should not be deprived of the opportunity to make good, if they can, a claim that the title should be rectified against Mr Muller.

Discussion and conclusion

[48]It is no fault of Mr Laurence that the substantive argument before us precluded him from exploring the consequences of the legislation subsequent to 1804 – and leading up to 1972 -- relating the powers of disposal of the sandpit allotted to the surveyors by the Award. For reasons I will later briefly give, I regard the appellants’ challenge to Mr Muller’s registered easement appurtenant to the pink land as one that always deserved to fail, and that the real issue in this litigation is as to the respondents’ claim to have acquired a right of way by prescription or under the doctrine of lost modern grant appurtenant to Chancel Farm as a whole. That required a focus on (at least) the period of 20 years prior to action brought. If the appellants are right that during the material period the northern section of the track was owned by the Council, and they had raised their ultra vires points in the court below, it is improbable that the focus of the inquiry would have been, as in the event it has been, exclusively on the consequences of the Act and the Award. It is instead probable that much of the focus would also have been on the legislation relating to the Council’s powers to dispose of, or create interests over, land which it held. Alternatively, if the claimants could have shown that, one way or another, by a sufficiently historic time the northern section of the track was in private ownership, then the court would probably not have been troubled at all with any questions of the nature that would otherwise have been argued.[49]In the result, however, both the judge and this court have had arguments based exclusively on the effect of the 1798 Act and 1804 Award on the respondents’ claim to the easements they assert. I am conscious that that has probably required us to decide this appeal on a somewhat artificial basis. If so, that is unfortunate but I have earlier explained why we took the view that we should not assume a function which required us to become primary fact finders in relation to issues which, if they were to be raised at all, should have been raised in the court below.[50]Having identified that limitation on the exercise before us, I say first that even if the Flamborough case was correctly decided, upon which I find it unnecessary to express a view, I do not regard it as a decision providing conclusive guidance to the disposition of this appeal. It concerned a claim by a member of the public to assert Flamborough’s continuing obligation to maintain a hedge planted against the highway. There was no question that Flamborough had in principle become subject to the burden of the obligation, although there perhaps might have been a question as to whether the claimant had any title to assert that continuing obligation in private law litigation as between himself and Flamborough. But even if, as he may well have been, the judge was correct to characterise Flamborough’s obligation as being in the public domain, the decision does not provide any guidance to the answer to the question raised by the very different facts of the present case.[51]As to those facts, I would accept Mr Laurence’s submission that, following the allotment under the Award, the surveyors held the sandpit for public purposes. They certainly did not hold them for their own private purposes and so I do not see in what other way they could have held them. Having said that, I have remained unenlightened as to precisely what in practice it means to say that they held the sandpit for public purposes. Mr Laurence disclaimed that they held it on a charitable trust; and a private trust for purposes is not a concept that I understand the law to recognise. Although the sandpit was vested in the surveyors pursuant to a statute, the statute did not describe their powers and nor were we shown anything else that purported to do so.[52]Mr Laurence’s submission was, however, simple. It was that the surveyors were to hold the sandpit forever, applying it for the designated public purposes; and that the benefit of the fencing obligation imposed on Mr Hallifield and his successors was, as a right appurtenant to the sandpit they so held for public purposes, similarly something that could never be disposed of by release or waiver. The land thus became inalienable, a feature that is ordinarily regarded as contrary to public policy.[53]That consequence appears to me one that it is improbable that the Act or Award could have intended. It was obviously foreseeable that the sandpit might in future fall into disuse, perhaps because it was exhausted or had become uneconomical or because for other reasons it was simply no longer required. It would thus no longer be needed to serve the public purpose for which it was originally allotted to the surveyors. The inference is that that is what had happened by the end of the nineteenth century. It was then that the track was extended north over the eastern side of the old sandpit and became used for access to and egress from Chancel Farm. It is about then that any notional grant of a right of way over the northern section was made. The question is whether any such grant could lawfully be made.[54]Mr Laurence submitted that it could not, for the reasons I have explained. The argument was not in terms that the surveyors had no power to grant an easement over the northern section of the track; it was that they had no power to grant such easement whose creation depended on a pro tanto release of the benefit of the fencing obligation that was necessary to enable the grant to be effective. Mr Laurence placed much reliance on the assertion that it was obvious that the relevant obligation was imposed for the benefit of the sandpit, in particular to exclude intruders and to save people from the risk of harm in the sandpit. I am not convinced that any such purpose played any part in the imposing upon Mr Halliwell of his fencing obligation. His obligation was no different from that placed on all the other allottees. Fencing obligations of that sort were of the essence of the literally hundreds of Inclosure Acts enacted during the Napoleonic wars. Their primary purpose was to enclose the allotment required to be fenced. I consider that the judge was correct to regard the fencing obligations as being imposed only for the two purposes he identified. I add that I suspect that any would-be trespassers on the sandpit would have had no difficulty in gaining access to it via Butterwick Road and up the track.[55]Whether or not Mr Laurence was right in so identifying the purpose of the fencing obligation imposed on Mr Halliwell probably anyway makes no difference to the essence of his submission. But even if there was any factual basis for his argument in this particular respect, it would probably fade into substantial irrelevance if and when the sandpit were to fall into disuse, as in due course it did. I decline to accept that by then, or even before then, the surveyors were legally incompetent to grant rights over the sandpit, or any part of it, that were not incompatible with its original use as a sandpit; and the Leake and British Transport Commission cases support the view that they should be regarded as having been so competent. That being so, it would follow that they could, if necessary, equally have waived the benefit of the fencing obligation so as to enable the grant of a right of way over the track. But I would not accept that this would in fact have been necessary. I accept Mr Howd’s submission that the correct interpretation of the Award is that allottees were permitted to make gates between allotments, and I do not accept Mr Laurence’s submission that the provision in the Award saying so was doing no more than referring to the proviso in the Act to which he referred. In my view the more natural interpretation of the Award is that the provision upon which Mr Howd relied was looking to the future generally, not just to the 12 month period referred to in the proviso.[56]Of course whilst the sandpit was in use as such, it is improbable that the owners of the pink land would have wanted to create any gate in the fence: there would have been no point. But once there was the prospect of the southern section of the track being extended to the boundary for access purposes, there was every practical reason for them to want to create a gate. The installation of a gate is not, however, something for which they required the agreement of the surveyors. If the surveyors were prepared to give them a right of access over the track, they were in my view lawfully entitled to create a means of access into the pink land. They did not need the surveyors’ consent.[57]For these reasons, I consider that the argument that the 1798 Act and 1804 Award permanently prevented the grant of an easement over the track appurtenant to Chancel Farm is wrong. I consider that the judge was right to uphold the respondents’ claim to an easement so appurtenant.[58]It follows that it is unnecessary to consider the separate position of the more limited registered easement appurtenant just to the pink land. Had Mr Laurence succeeded on his arguments based on the Act and the Award, the question would have arisen as to whether this court should permit the appellants to amend their statement of case to claim rectification of that registered entry against Mr Muller. The bid to amend is not another late thought by the appellants; the matter was canvassed before the judge, who deferred its further consideration until after he had given judgment; and in the light of his judgment, it did not then need consideration. Nor does it arise before us. Had it done so, I would have refused permission to amend. This track has now been used as right of way appurtenant to Chancel Farm for probably more than a hundred years. Even if its original registration on the title of Chancel Farm was a “mistake” for the purposes of Schedule 4, as to which I express no view, I do not begin to understand how, on the facts, it could be said that it would be unjust not to rectify it against Mr Muller.[59]I would dismiss the appeal.

Lord Justice Wall :

[60]I agree.

Lord Justice Tuckey :

[61]I also agree.