Site Developments (Ferndown) Ltd & Ors v Cuthbury Ltd & Ors [2010] EWHC 10 (Ch)

[2010] EWHC 10 (Ch)

Case No HC07C02970

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Wednesday 13 th January 2010

Before

Mr Justice Vos

Between

(1) Site Developments (Ferndown) LimitedClaimants

(2) Canford Renewable Energy LimitedClaimant

(3) Stephen AllenClaimant

(4) David Andrew Parfitt (the receiver of the estate of William Edward Charles Knott deceased)Claimant

(1) Cuthbury LimitedDefendants

(2)Derek SimesterDefendant

(3) Avril SimesterDefendant

Mr John Dagnall (instructed by Coles Miller) for Claimants

Mr Christopher Wilson (instructed by Rawlins Davy) for Defendants

Hearing Hearing dates: 1 st to 4 th, 7 th to 11 th, 14 th to 16 th December 2009

Judgment

Introduction

[1]Cuthbury Limited (“Cuthbury”), the first Defendant, was incorporated on 24 November 2005. It acquired title number DT336589 by a transfer from the Canford Estate dated 23 December 2005. The title includes a stretch of Mannings Heath Road, Poole, Dorset (the “Green Land”) and a small area of adjoining land shown on Plan A (one of the three plans attached to this judgment), referred to in these proceedings as the “Blue Land”. The owner of Cuthbury, Mr Derek Simester (“Mr Simester”) bought title number DT336589 in order to be able to create visibility displays that he expected the local planning authority to require to allow him to develop a site he had yet to purchase. In the result, Cuthbury never managed to buy the development land in question, and has instead claimed to own two ransom strips and the benefit of some restrictive covenants affecting the site, which adjoins both the Blue Land and Mannings Heath Road.

[2]The main questions in this litigation are whether Cuthbury has indeed acquired title to the two ransom strips controlling access and surface water disposal to the development site, and whether Cuthbury is entitled to the benefit of certain restrictive covenants. As the trial has progressed, it has become apparent that Cuthbury asserts these rights as a result of Mr Simester’s extreme indignation at the treatment that he feels he received from the owners of the first and second Claimants, Messrs Colin Burridge and Bill Riddle. Mr Simester had been negotiating with them for some or all of the adjoining development site at the same time as he was acquiring title DT336589, but in the event Messrs Burridge and Riddle decided to proceed without him.

[3]It is not suggested that Cuthbury has anything commercially to gain from the asserted rights, except a ransom position. Cuthbury will not be able to develop any land even if it succeeds. This whole unfortunate litigation is, therefore, something of a grudge match.

[4]The pieces of land in question are shown on Plan A, which is attached to this judgment, and which was exhibited to the Particulars of Claim. I shall refer to the whole area in issue, being the Orange, Purple, Brown and Blue Land, as hereafter defined, as the “Site”.

[5]I should say at the outset that I have studied, in the course of the trial and afterwards, numerous plans, maps, titles, photographs and other contemporaneous materials. All of them have some bearing on the issues I have to decide. I could not possibly mention all these materials in this judgment without intolerable prolixity. It should not, however, be thought that I have ignored materials, just because I have not mentioned them expressly. What I have sought to do in this judgment is to summarise my reasons as briefly as clarity will permit, not to deal with every document and every aspect that has been rehearsed in argument.

The relevant titles

[6]The first Claimant, Site Developments (Ferndown) Ltd. (“SDF”), is now the owner of title number DT25799 registered at HM Land Registry (the “New Orange Land”). This title was previously larger and was the site of a family home built by Mr Reginald Rogers in about 1926. It amounted to some 1½ acres in extent. The larger original area was registered in 1926 under title number P18076 (which later became title number DT25799), is called the “Orange Land” in this judgment, and was acquired by SDF in 1975.

[7]The second Claimant, Canford Renewable Energy Ltd. (“CREL”), is now the owner of the following titles registered at HM Land Registry:-(1) Title number DT177157 (the “New Purple Land”); and

(2) Title number DT31967 (the “New Brown Land”).

[8]These two titles were also previously larger, amounting together to some 4 acres. The original areas are referred to in this judgment as the “Purple Land” and the “Brown Land” respectively. They were originally registered together in 1927 under title number P26534, but that title was later divided. A filed plan dated March 1939 shows the division and the new title numbers recorded above (DT177157 and DT31967).

[9]The third Claimant, Mr Stephen Allen, is now the owner of title number DT353127 registered at HM Land Registry (the “Yellow Land”), having acquired parts of the Orange, Purple and Brown Land for development purposes on 6 and 19 July 2007.

[10]Finally, CREL acquired Title number DT352709 from SDF on 6 July 2007, giving CREL the remainder of the access road to Mr Allen’s new development that was previously on the Orange Land, together with a strip of the Orange Land adjoining the Western boundary of the New Purple Land.

[11]The two ransom strips claimed by Cuthbury were as follows:-(1) First, Cuthbury claimed two adjacent areas called “ABCD” and “ABE” shown on Plan A, said to lie between the North Eastern boundary of the Orange Land and Mannings Heath Road. The whole strip is about 2.8 metres at its widest, but it extends for the whole length of the boundary. As appears hereafter, Cuthbury has modified the areas it claims in the course of the trial, so as to make two alternative claims to rather smaller areas.

(2) Secondly, a strip called “XYZ” shown on Plan D2, which is also attached hereto, and was originally exhibited to the Re-amended Defence and Counterclaim, said to lie between the North Eastern boundary of the Purple and Brown Land and Mannings Heath Road. The strip is crescent shaped, but is only about 2 metres wide in the middle of the crescent. It extends for some 45 metres alongside the Purple Land and for some 30 metres alongside the Brown Land.

[12]In the broadest outline, the Claimants contend that these two ransom strips either never existed at all, because they were part of the areas originally transferred out of the Canford Estate in 1926 and 1927, or, if they did exist, rights of way were granted over them, and anyway, they were acquired by adverse possession, or have become part of the public highway by dedication, or when Poole Borough Council (“PBC”) made up Mannings Heath Road in 1987 and later adopted it in 1995.

The background and the outline chronology

[13]The Canford Estate was purchased by the then Lord Wimborne in 1846. The Site was close to the edge of Canford Heath, an area of heath-land extending to some 8 square miles just outside Poole, Dorset. I was told that there have been several thousand transfers of land out of the Canford Estate since 1846, and that the estate now comprises only about 2,000 acres. In its earlier days, however, it stretched many miles to encompass much of North Bournemouth, Poole and its suburbs.

[14]In the 19th century, the edge of Canford Heath had started to become industrialised and had been used for the establishment of brick works, and for quarrying sand, clay and gravel.

[15]In the early 20th century, Mannings Heath Road was a track leading from Ringwood Road to the edge of Canford Heath. The area of heath that immediately abutted the end of the track was known as Mannings Heath. Mannings Heath was a highly contoured area, boggy in places, but seemingly always used (whether lawfully or not) by the local population and by travellers for recreation and other purposes.

[16]In 1926, the Orange Land was transferred to Mr Reginald Rogers, and, as I have said, he built a house on it. In addition, he erected a low wall in front of the house to the South East of the Orange Land, and an entrance to the Orange Land adjoined the wall. Eventually Mr Reginald Rogers also established a hedge in front of the house to the North West of the wall and the entrance.

[17]In 1927, the Purple and Brown Land was transferred to Omnium Manufacturers Limited (“Omnium”). I will return in due course to the details of this transfer.

[18]At some stage, probably in the late 1950s or the early 1960s (but possibly earlier), a Mr William (Bill) Knott (“Mr Knott”) or a company owned or controlled by him, acquired the Purple and the Brown Land. Over time, Mr Knott or his various companies began to use the entirety of that land (and at times the Blue Land) to store caravans. The exact ownership has not been fully established, but Mr Knott or his companies undoubtedly occupied these areas for a number of years for the purposes of their various caravan businesses. I was told that, at its height, Mr Knott would have been manufacturing one caravan every day.

[19]Eventually on 4 April 1986, the Purple and Brown Land came into the ownership of a Jersey company apparently owned by Mr Knott called Knott Trustees Limited (which later changed its name to Knott Investments Limited and is referred to in this judgment as “KIL”).

[20]The aerial photographs show the following:-(1) In 1948, the Purple, Brown and Blue Land was overgrown and hardly used.

(2) In 1959, the Purple and Brown Land was partly cleared and some of it seems to have been in use for caravans.

(3) By 1962, the whole of the Purple, Brown and Blue Land appears to have been cleared of vegetation, and at least the Purple land is occupied by caravans.

(4) In 1969 and 1972, the Purple, Brown and Blue Land was being used for the caravan business as one large plot.

(5) By 1981, 1983, 1986 and 1987, the Purple, Brown and Blue Land is once again clear of caravans.

[21]Meanwhile, on 5 December 1969, Mr Reginald Rogers died.

[22]On 31st March 1971, the Canford Estate transferred the 3½ acre site immediately adjoining the Orange Land to the North West to the Dorset County Council. It has been used ever since as a travellers’ site, though there are now a number of tidy brick dwellings erected upon it in addition to several apparently permanent caravans (the “travellers’ site”).

[23]On 15 May 1975, SDF acquired the Orange Land. And in 1977, SDF demolished both the Rogers’s house at 9 Mannings Heath Road on the Orange Land and the wall in front of the Rogers’ house, after the Council complained that they were dangerous. SDF says that, also in 1977, it built an earth mound on the Orange Land adjoining the Mannings Heath Road.

[24]Between 1984 and 1987, SDF allowed Macbar Construction Company Limited (“Macbar”) to occupy the Orange Land for its pipe and manhole business. When Macbar went into administrative receivership in July 1987, it vacated the Orange Land leaving pipes and other materials there.

[25]In 1987, the bottom end of Mannings Heath Road, adjoining the Site and the travellers’ site, was made up by PBC, and a surface water sewer under the road was installed to take the highway storm water, and the storm water from adjoining plots. Mannings Heath Road was by then a through route to Yarrow Road.

[26]In about 1987 or 1988, SDF let the Orange Land to Glyn Burton, who used the land for his commercial waste and skip business. He eventually vacated the Orange Land in 1990. From about April 1990, an earth bund was maintained in a fairly constant position over most of the frontage of the Orange Land adjoining Mannings Heath Road. In about 1992, it appears that the earth bund was extended so as to seal off the Orange Land entirely from Mannings Heath Road.

[27]In about 1994, SDF paid Poole Borough Council (“PBC”) £7,636.18 towards the private street works in respect of Mannings Heath Road, and KIL also eventually paid its share as a frontager to Mannings Heath Road in respect of the Purple, Brown and Blue Land.

[28]On 12 June 2002, CREL completed the purchase of the Purple Land.

[29]In Summer 2002, the construction of a 5 arm roundabout began in front of the Orange Land in Mannings Heath Road, and the earth bank to the Orange Land was eventually pushed back at the end of 2002 to allow those construction works to take place.

[30]On 24 November 2005, Cuthbury was incorporated.

[31]On 23 December 2005, the Canford Estate transferred the Green Land making up part of Mannings Heath Road, and the Blue Land, to Cuthbury for £20,000.

[32]On 2 September 2006, Cuthbury built a breeze-block wall along the front of the Orange Land, blocking entirely the access from Mannings Heath Road. It maintained that it had built the wall along the boundary between the Orange Land and the Green Land that it claimed to own. Cuthbury removed the part of the wall blocking access along the spur from the 5-arm roundabout on 5 September 2006. The remainder of the wall was later removed by SDF, and the materials were eventually dumped in the drive of Mr Simester’s home, to the consternation of Mrs Simester.

[33]On 24 May 2007, CREL acquired the Brown Land from Mr Knott’s 3 children, who had acquired it after Mr Knott’s death and the dissolution of KIL.

[34]On 7 June 2007, SDF and CREL transferred sections of the Orange, Purple and Brown Land, making up the Yellow Land, to Mr Allen.

[35]On 30 October 2007, Mr Simester’s workmen removed SDF’s wooden fence to the Orange Land with chainsaws, and erected an orange bunting fence supposedly delineating the extent of Cuthbury’s ransom strip. It is alleged also that Mr Simester threatened to pour concrete into the storm water sewer, if he could find it. Within hours, an injunction was obtained from Warren J, and the confrontation subsided as a result.

[36]The Claim Form in these proceedings was issued on 2 November 2007.

[37]By a Deed of Release dated 13 January 2009, the Canford Estate released the restrictive covenants in the 1926 and 1927 Transfers in favour of SDF, CREL and Mr Stephen Allen, but the deed is expressed to do so “only to the extent to which [the Canford Estate] has the power to do so”.

[38]Mr Allen’s Yellow Land has now been developed, so that a Headquarters’ building (mainly on the Orange Land) is operating alongside an industrial building (mainly on the Purple Land). A Waste Transfer Plant is also operational to the South West of the part of the Purple Land still owned by CREL. Vehicle access to all 3 buildings is obtained exclusively from the 5-arm roundabout on Mannings Heath Road across the Orange Land.

Introduction to the issues

[39]The parties have sought in the course of the trial to agree the issues that require resolution. They produced a list of some 46 issues and many sub-issues. This document seems to me to have over-complicated the matters I must decide.

[40]As I see it, the following issues are the essential ones for decision, and the remaining issues in the parties’ list are either contingent or peripheral:-(1) Did the 1926 transfer of the Orange Land leave a gap between the land transferred and the proposed Mannings Heath Road, and what was the nature and extent of the right of way thereby granted?

(2) Did the 1927 transfer leave a gap between the land transferred and the proposed Mannings Heath Road and what was the nature and extent of the right of way thereby granted?

(3) Where is the front North Eastern boundary to the Orange Land?

(4) Did SDF acquire ABCD and/or ABE by adverse possession between 1990 and 2002, or at some other time?

(5) Did CREL, or its predecessors in title, acquire the Blue Land by adverse possession between 1962 and 1987, or at some other time?

(6) Did CREL, or its predecessors in title, acquire XYZ by adverse possession between 1962 and 1987 or at some other time?

(7) Have the Claimants any right to access the Purple Land and the Brown Land from Mannings Heath Road across the Orange Land?

(8) Is ABCD and/or ABE and/or XYZ part of the dedicated highway either at common law or under the statutory presumption contained in section 31 of the Highways Act 1980 (previously the Rights of Way Act 1932) or by way of adoption under section 238 of the Highways Act 1980?

(9) Is Cuthbury entitled to the benefit of the covenants in the 1926 and 1927 transfers?

(10) Can the Claimants pass pipes taking surface water under Cuthbury’s land?

(11) Can the Claimants pass services (electricity, gas, media etc) under Cuthbury’s land?

(12) If Cuthbury is right, what injunctions lie and, if no injunctions, what damages in lieu of injunctions?

(13) If the Claimants are right, what injunctions and/or damages should lie?

[41]It seems to me that, once these 13 issues are resolved, the remaining issues which the parties have identified will fall into place, and are unlikely to require specific resolution.

[42]Surprisingly, considering the antagonistic nature of this litigation, there have not been many sharply contentious factual disputes between the parties. The Claimants called a stream of witnesses, with whom I will deal later, to speak to the usage of Mannings Heath Road between the 1930s and the end of the last century, and to the location of the front boundary to the Orange Land. The evidence of these witnesses was not heavily cross-examined, but did seemingly provide the opportunity for a reunion to take place between the erstwhile members of a loose local group known as the ‘Newtown boys’ that existed in the area between the 1930s and the 1960s, and may for all I know still exist today.

[43]It is worth, however, mentioning at this stage, the dispute between the expert surveyors, Mr Gary Vaughan MInstCES (for the Claimants) and Mr David J Powell FRICS (for the Defendants). Essentially, they disagree on one major matter. That concerns the question of how one can best identify today the location of the front boundary of the Orange Land. I will explain their competing positions in due course under Issue 3, but in the broadest outline, Mr Powell places more emphasis on the measurements shown on the 1926 Transfer plan and says that one should measure from the rear boundary features, and Mr Vaughan places emphasis on overlaying the 1926 Transfer plan on the Ordinance Survey mapping so as to locate the most appropriate location of the front boundary, and believes one should measure from the front boundary features. Both have concentrated on locating the front Eastern point of the Orange Land, and the rear Southern point of it. The ABCD/ABE areas, and the smaller area that now appears really to be in dispute, are the gap between the Orange Land and the Green Land of Mannings Heath Road, if Mr Powell is right.

[44]In the remainder of this judgment, I shall deal with the terms of the 1926 and 1927 transfers, the relevant statutes and authorities, the witness evidence, and then turn to each of the 13 issues I have identified in turn.

The terms of the 1926 Transfer

[45]On 14 May 1926, Lord Wimborne transferred the Orange Land to Mr Reginald Rogers (the “1926 Transfer”), who covenanted to use the land transferred for residential purposes. The transfer granted to Mr Reginald Rogers and his successors a right to use in a fair and reasonable manner:- “the road and footpaths made or proposed to be made adjoining the land hereby transferred and the sewers and drains thereunder when made (except surface water drains) the purchaser his heirs and assigns contributing and paying from time to time a due proportion of the expense of makingmaintaining repairing and cleansing the said roads footpaths sewers and drains until the same shall be adopted by and taken into the charge of the Local Authority which proportion in case of dispute to be decided by the Surveyor for the time being of the Vendor and his successors in title as aforesaid ... Except as above, the Purchaser has no right of way or other easement over or upon the land adjoining the said piece of land or over or upon any land belonging to the Vendor” (emphasis added).

[46]The plan attached to the 1926 Transfer showed the length of the South Eastern boundary of the land transferred as measuring 415 feet, and the length of the South Western boundary as measuring 147 feet. A further measurement of 147 feet is shown from the far Eastern corner to the North Western boundary meeting that boundary at right angles. Alongside the North Eastern boundary are the words “proposed road”, and a track is shown to the North East of those words.

[47]The plan filed at HM Land Registry and dated 4th June 1926 had two material additions or alterations to the plan attached to the transfer:-(1) The words “proposed road” had been replaced by the words “Manning’s Heath Road”; and

(2) The dimension of the North Western boundary was shown in manuscript as being 446 feet.

[48]The restrictive covenants in the 1926 Transfer were in the following terms:- “And the Purchaser doth hereby for himself his heirs executors and administrators and assigns and all future owners and tenants of the said land or any part thereof and to the intent and so as to bind the said land into whatsoever hands the same may come covenants with the Vendor and his successors in Title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part to observe and perform the restrictive and other conditions set out in the 1st and 2nd parts of the 3rd Schedule hereto …”

[49]Part 1 of the 3rd Schedule provided as follows:- “(1) Beyond the building (if any) already erected no building of any kind shall be erected on the said piece of land hereby conveyed without the consent in writing of the Vendor or his successors in title except six detached or six semi-detached private dwellinghouses of an approved style of building character and description ... and except the same be built in a good and substantial manner and in accordance with such plans elevations sections and designs … as shall have been previously submitted to and copies deposited with and been approved in writing by the Vendor or his successors in title as aforesaid or is or their agent or surveyor and under the inspection and to the satisfaction of such Agent or Surveyor and in such situation as he shall approve in writing AND for such approval the Purchaser his heirs or assigns shall pay to the said Agent or Surveyor the sum of one guinea for each house or building. (2) No building (except buildings already erected and except boundary walls as hereinbefore provided) shall at any time be erected on the said piece of land within fifteen feet of the proposed road. (3) No building erected or to be erected on the said piece of land shall at any time be used for any other purpose than a private dwellinghouse stables garage and outbuildings belonging thereto or for agricultural purposes”

[50]Part 2 of the 3rd Schedule provided that:-(1) “the Purchaser would forthwith properly enclose and fence off the said piece of land on all sides thereof and from the adjoining land where not already fenced to the satisfaction of the Vendor …”; and

(2) “As soon as a public sewer shall have been brought or if such sewer has already been brought within a distance of 100 feet of the said piece of land the Purchaser will construct a good strong and sufficient sewer or tubular drain or drains extending from any dwellinghouse built on the said land into such public sewer to the satisfaction of the Vendor or his successors in title as aforesaid ...”.

[51]On 18th June 1926, the Canford Estate approved Mr Rogers’ plans for the house he intended to build (the “Approval Plan”). The Approval Plan showed different dimensions as follows:-(1) The South Eastern boundary was shown as measuring 430 feet (instead of 415 feet on the transfer plan).

(2) The North Eastern boundary was shown (for the first time) as having a dimension of 151 feet.

(3) The distance between the North Eastern boundary and the front wall of Omnium’s office on the other side of Mannings Heath Road (the “Omnium Office”) was shown as being 40 feet. Scaling off the plan, the width of the actual roadway is shown as about 13 feet, and the dotted line marking its South Western edge starts some 13 foot from the North Eastern boundary of the Orange Land.

[52]The Claimants contend that the Approval Plan constitutes a boundary agreement and founds an estoppel by representation and by convention.

The terms of the 1927 Transfer

[53]On 21 June 1927, Lord Wimborne transferred the Purple Land and the Brown Land to Omnium (the “1927 Transfer”), which covenanted to use the land transferred for residential purposes. The transfer granted to Omnium and its successors a right to use in a fair and reasonable manner:- “the proposed road and footpaths adjoining the north-eastern boundary of the said land and the sewers and drains thereunder when made (except surface water drains) and the purchaser their successors and assigns contributing and paying from time to time a due proportion of the expense of making maintaining repairing and cleansing the said road footpaths is sewers and drains until the same shall be adopted by and taken into the charge of the Local Authority which proportion in case of dispute to be decided by the Surveyor for the time being of the Vendor and his successors in title as aforesaid ... Except as above, the Purchases have no right of way or other easement over or upon the land adjoining the said piece of land or over or upon any land belonging to the Vendor” (emphasis added).

[54]The plan attached to the 1927 Transfer is dated January 1927 and shows the words “proposedroad” along the North Eastern boundary. A track is shown to the North East of those words.

[55]The plan filed at HM Land Registry and dated 22 March 1939 had the following material additions to the plan attached to the transfer:-(1) The words “proposedroad” had been replaced by the words “Manning’s Heath Road”; and

(2) The dimension of the North Western boundary is shown as being 415 feet.

(3) The dimension of the South Western boundary is shown as 603 feet.

[56]The restrictive covenants in the 1927 Transfer were in the following terms:

“And the Purchasers do hereby for themselves their successors and assigns and all future owners and tenants of the said land or any part thereof and to the intent and so as to bind the said land into whatsoever hands the same may come covenant with the Vendor and his successors in Title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part to observe and perform the restrictive and other conditions set out in the 1st and 2nd parts of the 3rd Schedule hereto …”

[57]Part 1 of the 3rd Schedule provided as follows: “(1) Beyond the buildings (if any) already erected no building of any kind shall be erected upon the said piece of land hereby conveyed without the consent in writing of the Vendor or his successors in title except a kiln for the burning of bricks tiles pipes or similar goods or engine house or drying sheds or detached or semi-detached private dwellinghouses (of an approved style of building character and description and) ... as shall have been previously submitted to and been approved in writing by the Vendor or his successors in title as aforesaid or his or their agent or surveyor and in such situation as he shall approve in writing AND for such approval the Purchasers there successors or assigns shall pay to the said Agent or Surveyor the sum of one guinea for each house or building. (2) no building erected ought to be erected on the said piece of land shall at any time be used for any other purpose than a private dwellinghouse stables garage and outbuildings belonging thereto or for the manufacture of bricks, tiles, pipes, or similar goods and nothing shall be done or suffered in or upon the said land and premises which shall or may be or become a nuisance damage or annoyance or disturbance to the Vendor or his successors in title as aforesaid other than the kind of business empowered herein AND IT IS HEREBY DECLARED that the Vendor and his successors in title as aforesaid may as a condition to giving any such consent as aforesaid require the payment of such additional sum of money and the observance of such additional or other conditions as he or they may think proper…”.

[58]Part 2 of the 3rd Schedule provided that:-(1) “The Purchases will forthwith properly enclose and fence off the said piece of land on all sides except the N.W. and from the adjoining land when called upon to do so to the satisfaction of the Vendor …”; and

Adverse Possession

[59]Paragraph 18 of schedule 12 to the Land Registration Act 2002 provides as follows:- “(1) Where a registered estate in land is held in trust for a person by virtue of section 75(1) of the Land Registration Act 1925 immediately before the coming into force of section 97 [October 2003], he is entitled to be registered as the proprietor of the estate. (2) A person has a defence to any action for the possession of land (in addition to any other defence he may have) if he is entitled under this paragraph to be registered as the proprietor of an estate in land. (3) Where in an action for possession of land a court determines that a person is entitled to a defence under this paragraph, the court must order the registrar to register him as the proprietor of the estate in relation to which he is entitled under this paragraph to be registered”.

[60]In effect, paragraph 18 applies the old law of adverse possession to registered land, where the alleged period expired before October 2003. The old law was contained in section 15 of the Limitation Act 1980 and section 75 of the Land Registration Act 1925.

[61]Section 15(1) of the Limitation Act 1980 provides as follows:- “No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person”.

[62]Section 17 of the Limitation Act 1980 has the effect of extinguishing the title of a person who is statute barred after 12 years as a result of adverse possession.

[63]Schedule 1 of the Limitation Act 1980 provides the following statutory definition of adverse possession: “8(1) No right of action to recover land shall be treated as accruing unless the land is in possession of some person in whose favour the period of limitation can run (referred to below in this paragraph as “adverse possession”) …”.

[64]Section 75(1) of the Land Registration Act 1925 provided:- “The Limitation Acts shall apply to registered land in the same manner and the same extent as those Acts apply to land not registered except that where, if the land were not registered, the estate of the person registered as proprietor would be extinguished, such estate shall not be extinguished but shall be deemed to be held by the proprietor for the time being in trust for the person who, by virtue of the said Acts, has acquired title against any proprietor, but without prejudice to the estates and interests of any other person interested in the land whose estate or interest is not extinguished by those Acts”.

[65]It has long been established that a person claiming adverse possession must be shown to have both factual possession and the requisite intention to possess. Lord Browne-Wilkinson held in J.A. Pye (Oxford) Ltd v. Graham [2003] 1 A.C. 419 at paragraph 40 that the two elements could be described as: “(1) a sufficient degree of physical custody and control” and “(2) an intention to exercise such custody and control on one's own behalf and for one's own benefit”.

[66]As regards factual possession, Lord Browne-Wilkinson approved the dicta of Slade J in Powell v. McFarlane

(1977) 38 P&CR 470

at pages 470-2, where he said:- “Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so”; and that what was required was “an intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.

[67]Finally, in this connection, section 62 of the Law of Property Act 1925, which applied to registered land by section 19(3) of the Land Registration Act 1925, provided:- “A conveyance of land shall be deemed to include … with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part therefore, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof”.

Public rights of way

[68]Section 31 of the Highways Act 1980 (re-enacting in similar terms section 1(1) of the Rights of Way Act 1932) provides as follows:- “(1) Where a way over any land, other than by way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway, unless there is sufficient evidence that there was no intention during that period to dedicate it. … (2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by notice such as is mentioned in subsection (3) below or otherwise”.

[69]In Jones v. Bates

[1938] 2 All ER 237

at page 244, Scott LJ said:- “ ... the sole origin of a public highway was dedication to the public use by the owners of the land over which it ran, and in consequence that, in case of dispute, the public right could be established only by such evidence as would justify an inference of fact that the way had at some date, known or unknown, been so dedicated. The corollary followed that, on this as on all other issues of fact, the tribunal had to decide, once there was some affirmative evidence before it of user, whether or not on balance it was sufficient to establish dedication”.

[70]Section 228 of the Highways Act 1980 provides as follows:- “When any street works have been executed in a private street, the street works authority may, by notice displayed in a prominent position in the street, declare the street to be a highway which for the purposes of this Act is a highway maintainable at public expense, and on the expiration of one month from the day on which the notice was first so displayed the street shall … become such a highway”.

[71]Section 329(1) of the Highways Act 1980 defined “street” as including “any highway and any road, lane, footpath, square, court, alley or passage, whether a thoroughfare or not, and includes any part of a street”.

[72]Section 48 of the New Roads and Street Works Act 1991 amended the definition of “street” for the purposes of the Highways Act 1980 as follows:

“(1) In this Part a “street” means the whole or any part of any of the following … (a) any highway, road, lane, footway, alley or passage, (b) any square or court, and (c) any land laid out as a way whether it is for the time being formed as a way or not…”

[73]The Court of Appeal held in Warwickshire CC v. Adkins

[1967] 66 LGR 486

that a strip of land alongside the highway, which was uncultivated and possibly used for parking vehicles, had, in the circumstances of that case, become part of the private street within the original definition (which was then found in Section 174(1) of the Highways Act 1959).

The Claimants’ witnesses

[74]Mr Colin Burridge was the leading witness for SDF. He is a director and shareholder of that company. He told me that when SDF bought the Orange Land in 1975, there was a wall at the front, although he could not recall a hedge, but that there was grass between the Orange Land and the track. He said that the track was quite wide as lorries came out of the Omnium premises opposite. He also recalled that, at that time, the front of the Purple Land was fenced off with concrete posts, except for Mr Knott’s opening. He accepted that these posts were further out into Mannings Heath Road than the wall in front of the Orange Land. He said that in 1981, he put up a small bund to stop travellers and cars going on to the Orange Land. He said the bund was up to the road, although I do not accept his recollection that he actually told his workmen to put the bund right up to the road in or about 1981. Mr Burridge commented on the July 1986 and April 1990 aerial photos, saying that the 1990 photo showed that the bund was built right up to the haunchings of the footway, which, as later appears, does not seem to me to be accurate. Generally, Mr Burridge was not a wholly reliable witness. I think he purported to remember events and land features from a long time ago, when in fact he did not do so, and much of what he said was reconstruction from photos he had seen recently. He was very keen to give me the impression that the bund on the Orange Land was built close to the back of the roadway both before and after the new road in 1987. I do not accept that Mr Burridge has any real recollection of the varying locations of the bund over the years.

[75]Mr Darren Burridge, Mr Colin Burridge’s nephew, gave uncontroversial evidence about the laying of the surface water sewers under the new 5 arm roundabout in 2002. He says that he connected the storm water drainage from the Orange Land into these sewers in 2007, as he had done with those from the Fulcrum Estate site on the other side of Mannings Heath Road. He told me that the size of the sewers fitted under the road indicates they are intended for use by the neighbouring properties. His work was inspected by Wessex Water when completed.

[76]Mr Michael Wilkes is another director and shareholder of SDF. He gave evidence about his involvement in SDF’s affairs, but, as he freely admitted, he was not really involved in very much that happened and only visited the Orange Land infrequently.

[77]Mr Bill Riddle is a director of CREL, WH Whites Limited and T White Limited. His evidence was of limited value because he only bought the CREL land in 2002, and had no first hand knowledge of the Site. He told me, however, that he thought the Purple Land had to be fenced under the terms of a waste management licence.

[78]Mr Stephen Allen, the third Claimant, and director and shareholder of 288 Group Limited, was also a witness of limited importance, as he had only bought into the Site in 2007. He said that he would have accepted Colin Burridge’s indemnities in respect of this dispute and the restrictive covenants, even if he had known of the problems.

[79]Mr Derek Hartley-Brown married Mrs Valerie Knott, one of Mr Knott’s three children, in 1963. It was then that he first became acquainted with the Site. His evidence was, I have to say, rather confused, if unequivocal, and I have treated what he said with some caution. Nonetheless, I do accept that when he first saw the Purple, Brown and Blue Land in 1963, it was all together, and not separated by fences. Mr Hartley-Brown said that it was fenced quite tightly against the Mannings Heath Road, leaving only a foot or so of verge between the fence and the gravel Mannings Heath Road. I will return to this evidence when I deal with Issues 5 and 6 below. Mr Hartley-Brown said that this situation continued until 1987 when the fence was removed without his consent, although by that time, the Purple Land had been fenced off. Later, Mr Hartley-Brown managed the Knott family properties from 1993 when Mr Knott died.

[80]The evidence of Mr Frederick John Benest, the Jersey advocate acting for Mr Knott’s estate, was not challenged, so he did not attend. In his statement, he explained the situation following Mr Knott’s death on 6 September 1993. The Brown Land was then in the ownership of KIL, and the shares in that company were held by his estate. KIL made the frontager contributions in about 1995 for both the Brown and the Blue Land in respect of the making up of Mannings Heath Road in 1987. The Brown Land was transferred to Mr Knott’s 3 children on 26 April 1999. KIL was struck off the Jersey register in 2002.

[81]Mr Glyn Burton was allowed by Mr Colin Burridge of SDF to use the Orange Land between about 1987 or 1988 and 1990. Mr Burton was then in the business of hiring skips for commercial waste, but he is now an estate agent. Mr Burton has been much criticised in this case for dumping waste in this period on the Orange Land which SDF had later to remove (at a cost of some £20,000), before the land could be developed in 2007. Despite this undoubted lapse, I found Mr Burton a candid witness. He told me that the first thing he did was to break up and bury a large blue boat mould that he found on the site. From then on, he used the land to store his skips and to dispose of the waste that came from them. He said that Mr Colin Burridge told him to maintain a bund at the roadside of the Orange Land, and he did so. His recollection was that he maintained the bund with his bulldozer/digger to the line at the back of the footpath. It will be recalled that Mr Burton moved on to this land just after Mannings Heath Road had been made up. He told me that for most of the time he was there, the bund was 1–1.5 metres wide at the base, and was 2 metres high from the pavement side. It was shaped like a triangle. As time went on the weather tended to wash it down, and he kept topping it up and cleaning off the pavement. Mr Burton looked at the aerial photograph from April 1990, and thought that it showed the bund with vegetation on the top, abutting the footpath, though he accepted it could have been a short distance back from it.

[82]Mr David Courtenay was a retired surveyor who had worked for Lionel Gregory & Co. He drew a sketch plan of the Orange Land in November 1990 when a prospective tenant, Venture Plant, was considering taking a lease of it. Mr Courtenay could not remember much more than his plan showed. The plan shows the footpath, a verge and a 1.5-2 metre bank, but it is not clear from the plan whether or not the verge encompasses the bank, and Mr Courtenay could not recall. His plan does, however, confirm, as I think do the photographs at that time, that there was then a concrete posted fence at the rear of the Orange Land.

[83]Mr Simon Greenwood, a director of Savills, who has been acting for the Canford Estate for 30 years gave evidence about the history of the Estate, and his more recent dealings with Mr Simester in relation to the purchase of the Blue Land and the Green Land from the Estate in 2005. I found his evidence straightforward and reliable.

[84]Mr Reginald Frank Charles Rogers (known as Bill Rogers) was born on the Orange Land some 83 years ago. I heard his evidence in Poole when I visited the Site. He volunteered that, when Cecil Compton fenced the Knott Land (by which, I think he meant the Purple, Brown and Blue Land), he fenced it 4 feet out into the road, and beyond what Mr Bill Rogers described as his father’s boundary wall. It was this that seems to have given rise to what the parties have called the ‘notch’ between the Orange Land and the Purple Land that begins to appear on maps and plans towards the middle of the last century and beyond.

[85]Mr Anthony Charles Dilke is a civil engineer, who gave some evidence about the construction of the 5-arm roundabout in 1992, and the cross sections of the made-up Mannings Heath Road roadway. He was less closely involved than Mr Norwood, to whose evidence I now turn.

[86]Mr Andrew Norwood, Highways Engineer for the Poole Borough Council, gave some important evidence. He said that the highway authority regarded all verges that were created by highway works as part of the adopted public highway, and that the extent of the highway was shown on a “definitive plan” held by the local authority. He said he had used this definitive plan to provide information in 2006 to Cuthbury about the extent of the highway. Unfortunately, however, some of that information was in conflict as to the adoption of the verges relevant to this dispute, and Mr Norwood was unable to explain the discrepancies. Mr Norwood also told me that he thought that the verges shown on what was referred to as the Council’s “Colour Wash Plan” before the highway was built would “probably not” be shown as adopted highway on the Council’s definitive plans. As a result, and bearing in mind that PBC had agreed to be bound by my findings as to the extent of the highway, I asked whether the Court could see the definitive plans, and Mr Norwood agreed to return to Poole and to bring the originals to Court. When he did so, he corrected his reference to the “definitive plans”, preferring instead to call them the plans that “support the highway record”. He produced the originals of these plans for inspection by the Court. Unfortunately, however, they did not show the extent of the adopted highway and verges in front of the Site. There was a green marking on these plans delineating the extent of the adopted highway up to the end of the travellers’ site, but not beyond. It was, however, interesting to note that the green line in front of the travellers’ site showed that a significant area of verge had been adopted back from the footway. It seems to me, from what Mr Norwood told me, that the PBC may have been unwilling to mark the adoption of the highway on its plans in front of the Site, having become aware of this dispute before it had actually done so. If these plans show anything, however, it is that the verges beyond the footway would, normally anyway, be adopted as part of the highway.

[87]Mr David Michael Guppy gave evidence about the 20 years of his childhood between 1942 and 1962, when he was a “Newtown boy”, playing and biking on Canford Heath and using Mannings Heath Road. He gave an engaging picture of life in that area in those days, but his actual recollection of dates and events was patchy. He recalled that he and some of his friends had been stopped by Lord Wimborne when riding their motorbike on Canford Heath, and that they had later received a letter of consent allowing them to do so in certain areas.

[88]Mr Gerald Henry Stanley, one of triplets, was a witness who had quite a clear memory of the history of the Site in the 1950s and early 1960s. He recalled a number of things that others had not. First, that Mr Reginald Rogers kept 3 Airedale Terriers that made it unwise to hang around their house unless the dogs were inside. Secondly, he recalled that Bluebird Caravans (one of Mr Knott’s companies) had levelled off the Purple and Brown Land as there had been an old clay-pit. Thirdly, he recalled that the fence alongside the Purple, Brown and Blue Land had been put up by the road by Donald Froud, when he was responsible for maintenance at Bluebird Caravans, in the year when there was a lot of snow. And he said he had spoken to him about it and confirmed that it had gone up in 1963. He told me that the new fence was needed because the travellers would get in and cut the copper off the underside of the caravans that were stored on the Site. The rough fence made of angle iron that was at the bottom of the bank was replaced by a concrete post and chain link fence at the top of the bank at the side of the gravel road.

[89]Mr Leonard Sydney Stanley, Gerald’s brother had a less reliable recollection, but described his antics with motorbikes on Canford Heath clearly. As his brother Gerald had explained disarmingly “I was not the motorbike freak, Leonard was”.

[90]Mr Victor Mabey also gave evidence about his childhood in Newtown in the late 1950s and the 1960s. His evidence confirmed that of other witnesses, but his memory seemed less reliable than some.

[91]Mr Seymour Vincent Clapcott was able to describe life in Mannings Heath Road from the 1930s through to the 1960s. He explained how lorries, in the early days, would stop at the Omnium Office directly opposite Mr Reginald Rogers’s house and book in. That was why the road was wider at that point; because lorries always stopped there to collect tickets before going onto or leaving the Omnium brickworks site. The young Mr Clapcott took his father’s car on Canford Heath and well remembered the punishment he received for doing so.

[92]Mr Lawrence Sprigg seemed to me to be a reliable witness. He worked for J Suttle Transport Limited, who used the Purple Land in the early 2000s. Mr Sprigg managed the site from January 2003, but visited it for some years before that when he had been a driver for Suttles. He was able to explain the aerial photograph taken on 31 December 2000 as showing that the roadside fence to the South East of the Purple Land and a few metres into the Brown Land had been moved back from the road in about 1999 to create a sight line for the entrance. It meant that, later on, Mr Sprigg had to maintain the grass verge thereby created.

[93]Mr Mark Compton was a rather younger witness, who recalled life around Mannings Heath Road in the late 1960s and 1970s. He was not, however, able to add much to what others had said.

[94]Ms Sharon Hill gave evidence about putting up the signs for PBC concerning the adoption of Mannings Heath Road in 1995. Her evidence was not seriously challenged.

[95]Mr William Oliver, who was CREL’s former solicitor, acted on the purchase of the Purple Land. He gave evidence as to one of his manuscript notations on the enquiries before contract. He explained, and I accept, that he did not think the response to the enquiry in question raised a doubt as to the existence of land between the Purple Land and the Mannings Heath Road.

[96]Messrs Keith Miller and James Turner were unable to give evidence in person as they were unwell. Their written evidence confirmed that of others concerning the usage of Mannings Heath Road and Canford Heath in the 1940s, 1950s and 1960s.

The Defendants’ witnesses

[97]Mr Derek Simester is a director and shareholder of Cuthbury, Magna Construction Limited, and Magna Industrial Property Limited. He gave his evidence in a low key and restrained manner. He even began his evidence by apologising for anything that he may have done which is found to be unlawful. Despite that, however, Mr Simester plainly feels very strongly about the events that gave rise to this litigation. He takes the view that Messrs Bill Riddle and Colin Burridge misled him and went behind his back in their dealings with him. His lawyers advised him not to deal with this aspect of the case in his witness statement and he did not do so. As a result, I cannot really decide who is right. Suffice it to say for the purposes of this judgment that I accept that Mr Simester genuinely feels that he was treated badly in that a development project upon which he thought he was collaborating with Mr Riddle (and perhaps Mr Burridge) was snatched by them from under his nose. And it seems clear that this dispute has been occasioned entirely by the ill-feeling that has been so generated. It is, however, equally clear that this ill-feeling has nothing whatever to do with the substantive issues in the case. Having heard his evidence, I have no reason to doubt Mr Simester’s good faith. As appears hereafter, I believe that the oxygen that has given life to this dispute was the careless creation of a plan of the Green Land, probably by the Canford Estate. Without that, Mr Simester would not have believed, as he quite genuinely does, that he owns two strips of ground fronting Mannings Heath Road giving him the lawful right to prevent the Claimants from exercising the rights of access they assert.

[98]Mrs Avril Simester, Mr Simester’s wife of some 41 years, was a clear and straightforward witness. I accept what she told me. She is a former director of Cuthbury, having resigned when she disagreed with her husband about the desirability of pursuing this dispute.

[99]Mr Nicholas Simester is the son of Mr Derek and Mrs Avril Simester. He has worked for his father for some time, and gave me the impression that he is quite influenced by him; certainly he seems to do very much as his father tells him. He undoubtedly conducted some clearing and measurements of the Orange and Brown Land in 2005 and 2006, and was present when the breeze-block wall was erected in September 2006, and when the bunting fence was erected in October 2007.

[100]Mr Robert Lelliott was Borough Engineer for PBC between December 1978 and January 1993. He was engaged by Mr Simester as a consultant. I found him to be a clear and reliable witness, who explained that he had looked at the PBC’s plans and was unable to say from them where the adopted verges to Mannings Heath Road were to be found. This was because the plans show some 1100 square metres of verges, but it appears that only 385 square metres were actually built. He expressed the view, which seemed reasonable to me, that only highway works actually undertaken would be adopted, but that, if verges were built adjoining the footway, he would expect them to form part of the adopted highway. This accorded with what Mr Norwood also told me.

[101]Mr Michael Herring of Dorset Land Surveying Limited gave evidence about the plans he prepared in early 2005 and 2006 for Cuthbury. It was suggested to Mr Vaughan that, since Mr Herring was his co-founding partner in Dorset Land Surveying Ltd, he had an irreconcilable conflict that meant that Mr Vaughan fervently wished him not to be involved in giving evidence. It seemed to me, however, that Mr Herring gave his evidence fairly and professionally. I think he had a better recollection of his discussions with Mr Simester than did Mr Simester, and I would prefer Mr Herring’s recollection where the two differed. In the end, however, I am not sure that the differences matter very much since the result of Mr Herring’s work is to be found on the plans he prepared, and those plans speak largely for themselves.

[102]Mrs Lauren Macnair of David J Powell Surveyors Ltd gave evidence about the way in which she prepared the 2006 survey plans for Cuthbury, on which Mr Powell has largely based his opinion. I found her evidence clear, careful and reliable. She did not offer an expert opinion, so I will deal with the conclusions to be drawn from Mrs Macnair’s surveys when I come to consider the expert evidence in detail. Issue 1: Did the 1926 transfer of the Orange Land leave a gap between the land transferred and the proposed Mannings Heath Road, and what was the nature and extent of the right of way thereby granted? Issue 2: Did the 1927 transfer leave a gap between the land transferred and the proposed Mannings Heath Road and what was the nature and extent of the right of way thereby granted?

[103]It is convenient to deal with Issues 1 and 2 together, since the terms of the 1926 and 1927 Transfers are similar, and the construction issues affecting them are related.

[104]Mr Wilson submitted that the construction of the 1926 and 1927 Transfers is central to this dispute. Indeed he suggested at the outset that his clients would have been happy if Issues 1 and 2 had been determined first, so that, if the Defendants lost, there would be no need for the rest of the case. I decided, notwithstanding this proposal, to proceed with the complete trial for two reasons. First, there had been no timely application for preliminary issues to be resolved, and the parties were now ready to try all the issues. Secondly, both possible outcomes would have had potentially undesirable consequences:(a) if the Claimants were successful, and the Defendants successfully appealed, it would be necessary to gear up for another trial, with a significant amount of the costs of the preparation for this trial having been wasted; and

(b) if the Defendants were successful, we would need to proceed with the remainder of the trial, also with a significant potential waste of preparation costs.

[105]Mr Wilson contends that, in all the detailed discussions about the precise route that Mannings Heath Road followed from generation to generation, three basic facts have been overlooked. First, at the time of the 1926 and 1927 Transfers, no road adjoining the Orange Land or the Purple and Brown Land had yet been made up. Secondly, there is no contemporaneous evidence about the road that it was proposed would be built, and subsequent events make it probable that there was no settled plan to build such a road in either 1926 or 1927. Thirdly, Lord Wimborne and his successors did not in fact build any road as proposed or at all. I say at once that I accept each of these 3 facts as entirely accurate and borne out by the evidence (or lack of it) before me.

[106]Mr Wilson then continues by arguing that:-(1) Wherever it may have been intended to build the ‘proposed road’ (if it was so intended), since such a road was never actually built, no right can have been granted over it as a matter of the true construction of both the 1926 and 1927 Transfers.

(2) Thus, the 1926 Transfer only granted a right to use in a fair and reasonable manner the existing made road and footpaths.

(3) And the 1927 Transfer granted no express right at all, since it confined itself to mentioning the proposed road, which was never actually built.

(4) Therefore, both Mr Reginald Rogers and Omnium had by necessity implied rights of way: (a) as to Mr Rogers, an implied right to get to the track over which he had an express right; and (b) as to Omnium, an implied right both to get to the track and to use the track.

(5) In these circumstances, now that Cuthbury owns strips between the Orange Land and the now made highway, and between the Purple and Brown Land and the now made highway, the current owners of the Orange Land as successor to Mr Rogers and of the Purple and Brown Land as successor to Omnium, may only exercise such rights as their predecessors were granted.

(6) Specifically, and perhaps most importantly, under the well-known principle in Harris v. Flower (1904) 74 L.J.Ch 127, a right to pass over plot A to reach plot B cannot be used as a means of access to plot C, unless it was so used at the time of the grant.

[107]Thus, Mr Wilson concludes, there is no right granted by either the 1926 or 1927 Transfers for CREL or Mr Allen to use the Orange Land to access the Purple, Brown or Blue Land, as they are now doing.

[108]In my judgment, these arguments are ingenious, but wrong. I need to deal with the proper meaning of the Transfers, because the arguments are founded on one proposition, namely that, when a right of way is granted over a ‘proposed’ (i.e. a ‘future’) road, no right comes into being until such a road exists. As Mr Wilson himself pointed out, if the words of the transfer had been to grant a right over the “land over which a road is proposed to be built”, his argument could not run.

[109]In my judgment, however, that is precisely how the words of the transfers should be construed, particularly when the words ‘proposed road’ are written on the attached plans to show the intended route of the right of way.

[110]It would be an absurd construction of the 1927 Transfer to suggest that no immediate express right of way at all was granted when the Transfer was executed. The words used are to grant “a right to use in a fair and reasonable manner the proposed road and footpaths adjoining the north-eastern boundary of the said land”. The location of the area over which the right is granted is clear from the words “adjoining the north-eastern boundary of the said land”. The words “proposed road” are merely identifying the area over which the right is presently granted, those words being repeated on the attached plan.

[111]Likewise, when the 1926 Transfer grants “a right to use in a fair and reasonable manner the road and footpaths made or proposed to be made adjoining the land hereby transferred”, it seems to me that the only logical meaning is that an immediate right of way is granted over both(a) the existing road and footpaths and

(b) the route of the proposed road adjoining the land transferred. Again, the words “proposed road” are merely identifying the area over which the right is presently granted, those words being repeated on the attached plan.

[112]Moreover, as I have said, the location of the land over which the right is granted is clearly stated in the transfers; the 1926 Transfer describes the location as “the road and footpaths made or proposed to be made adjoining the land hereby transferred” (emphasis added), and the 1927 Transfer refers to “the proposed road and footpaths adjoining the north-eastern boundary of the said land” (emphasis added). In addition, the existing track is shown on both plans as remote from the land transferred, and the words ‘proposed road’ are shown abutting the land transferred, thus confirming the words used in the transfers. It is obvious that a proposed road would have been intended (as the plans demonstrate) to be wider and better made up than the existing track.

[113]In my judgment, therefore, both the 1926 and 1927 Transfers were granting an immediate right of way over the land immediately abutting the transferred land, which was intended to be the proposed road or part of it.

[114]The fact that the Canford Estate intended to create a road corridor is borne out by both preceding and succeeding events. A plan dated June 1920 appended to a transfer dated 29 March 1921 transferred the parcel of land to the North of the Orange Land on the other side of what became Mannings Heath Road. Though the Southern boundary of this parcel is not precisely the route of the eventual Mannings Heath Road, it is shown as directly abutting the existing track, and the transfer grants rights over the “road coloured brown on the plan and marked AB”. Point A is where the Mannings Heath Road meets Ringwood Road and point B is to the North West of the Orange Land. The point, however, is that, however inconsistently the detail of the plans may have been drawn, the Canford Estate seems deliberately to have been creating a road corridor between the parcels it was transferring on either side of that corridor. The Land Registry Plan for title number 15523 based on a 1900 Ordinance Survey plan (the “1900 plan”), which it is accepted would have been sent back to the Canford Estate after each parcel was sold, shows edged green the plots sold off either side of Mannings Heath Road down the years. The eventual transfer of the Green Land road corridor to Cuthbury in 2005 was simply the final step in that process.

[115]I have heard much evidence from the expert surveyors of the widths of the track and the eventual Mannings Heath Road scaled off Ordinance Survey and other plans, and the expected tolerances in such measurements. I have also been able to form a view as to the width of the actual road at various stages in history. But in my judgment, none of this is really to the point. The reality was that the Canford Estate intended in the 1920s to create a road corridor and did so. The road was used in varying ways down the years and underwent a variety of changes and widths. At no stage, however, was it ever suggested by anyone, let alone the Canford Estate, until Cuthbury came on the scene in 2005, that the corridor between the plots abutting Mannings Heath Road included any strips of private land, which had not been intended to form part of the road or the proposed road, over which rights of way had repeatedly been granted.

[116]Moreover, the Approval Plan shows a 40 feet width immediately in front of the diagrammatic plan of Mr Rogers’s property. This seems to me to be the relevance of this document. It demonstrates contemporaneously that the Canford Estate intended the corridor between the Orange Land and the Omnium Brick Works to be the proposed road mentioned in the 1926 Transfer. As was explained by Mr Vaughan, 36 or 40 feet were regarded for many years as standard road widths.

[117]Finally, in this connection, the covenant in the 1926 Transfer not to build within 15 feet of the proposed road is more consistent with a right of way being granted over that area in front of the land transferred, than it is with the only right being granted over a remote track.

[118]It is for these reasons that, whatever conclusion is reached about the precise location of the front boundaries of the Orange, Purple and Brown Land, in my judgment the 1926 and 1927 Transfers, on their proper construction, granted rights of way over the land abutting the areas transferred along the entire length of their frontage. This being my decision, I understand it to be common ground that, subject to any restrictive covenants that survive, it cannot be said that any usage now made of that right of way would not be undertaken “in a fair and reasonable manner” within the terms of the Transfers, even if the Orange Land is being used to access the Purple, Brown or even the Blue Land.

[119]I need also, for completeness, to consider the effect of the Approval Plan as an aid to construction of the 1926 Transfer, or as constituting a boundary agreement, or as giving rise to an estoppel.(1) I do not think that I need to use the Approval Plan as an aid to construction of the 1926 Transfer, although I have mentioned one aspect of it as confirmatory of the construction that otherwise appears to me to be clear from the transfer itself. I accept that some subsequent documents can be used to clarify, though not to contradict a transfer plan (see paragraph 29 of Mummery LJ’s judgment in Bradford v. James

[2008] EWCA Civ. 837

), although I have not needed so to use the Approval Plan in this case. In any event, I would point out, as appears below, that the diagram of the Orange Land on the Approval Plan is not a wholly accurate one.

(2) The submission that the 430 feet measurement shown on the plot diagram on the Approval Plan is a boundary agreement effecting an informal variation of the boundaries is, in my view, far-fetched. It is true that the plan is signed by a representative of the Canford Estate, but it is signed as signifying approval to the building of the house, the plan of which is shown, and the location of which is depicted on the location plan. The signature cannot be construed as agreeing to vary the title plan, which is not even mentioned on the document. Moreover, the 430 foot measurement, on which reliance is placed, is more likely to be the (rough) average of the 415 feet and 446 feet shown as the dimensions of the two longest sides of the plot on the filed plan, than a binding indication of the measurement of the South Eastern boundary of the Orange Land. The measurements on such a document cannot, in my view, be taken to have been intended to vary the terms of the 1926 Transfer.

(3) The claim that an estoppel arises is, in my judgment equally surprising. There was no evidence whatever that Mr Reginald Rogers did anything in reliance on the measurement found on the Approval Plan. Of course he built a house in reliance on the approval he received, but there the matter ends. In my view, the Claimants’ suggestion of an estoppel would fail.

[120]My conclusions on Issues 1 and 2, therefore, are that, as a matter of construction of the 1926 and 1927 Transfers, there was no gap between the land transferred and the land over which an immediate right of way was granted, namely the existing track and the land over which the proposed Mannings Heath Road would run. The right of way granted was usable from any part of the land transferred and in a fair and reasonable manner.

Issue 3: Where is the front North Eastern boundary to the Orange Land?

[121]The expert evidence went primarily to this issue. I have had no doubt that both experts, Mr Gary Vaughan and Mr David Powell, have given their evidence in fulfilment of their duties to the Court, and have done their best to elucidate a complex factual situation, and to reach agreement wherever possible on the issues that have arisen. I am most grateful to them both for their straightforward and helpful evidence.

[122]It is common ground that boundaries shown on the Land Register and on Land Registry plans are general boundaries only, and so do not determine the exact line of the boundary (see now section 60 of the Land Registration Act 2002). The parties have submitted that, having heard all the evidence, I should determine the precise location of the boundary, and I propose to do so.

[123]The argument has centred on the two ends of the 415 feet South Eastern boundary of the Orange Land, marked as a dimension on the 1926 Transfer, although the crucial issue really concerns the location of the front end of that boundary. The main points of difference between the evidence of Mr Powell and Mr Vaughan are as follows:(1) Mr Powell believes that one should measure the 415 feet dimension on the 1926 Transfer plan from the rear corner of the Orange Land, and that one can now identify that point (which he identifies as point “F”, taken for Mrs Macnair’s survey) on the ground.

(2) Mr Vaughan believes that point “F” is not the correct place to measure from. He says instead one should measure the 415 feet from a known point at the front of the Orange Land (which he identifies as point “B”), namely the corner of the fencing to the Purple Land that existed from the early 1960s at least. Mr Vaughan says that if you measure 415 feet from point “B”, you reach point “F1”, which is about 2.8 metres in front of point “F”.

[124]It is common ground that the distance between the existing Southern corner of the Orange Land (point ‘F’ as identified by Mrs Macnair and Mr Powell) and the Southern end of the breeze-block wall built by Cuthbury in September 2006 (identified by Mr Powell as point “D”) is 415 feet.

[125]I have looked carefully at the succession of plans, maps, surveys and photographs, stereo and linear, from 1900 to the present day. Before turning to what they show, however, I will briefly explain the differing approaches of the experts.

[126]Mr Powell’s approach was to place reliance on the 415 feet dimension shown on the Land Registry Plan for title number 15523 based on the 1900 Ordinance Survey (which I have called the 1900 plan above), and also on the 1926 Transfer Plan. He overlaid the 1900 plan (showing the Green Land) onto Mrs Macnair’s survey, and found that the distance from the Southern point of the Green Land (point “D”) to point “F” on Mrs Macnair’s survey was 415 feet 9 inches, which he regarded as within scaling tolerances. He then overlaid the PBC’s colour wash road plan, revision A, of 3 September 1985 (the “Colour Wash Plan”) over Mrs Macnair’s survey and obtained what he described as a “goodfit”. From this, he produced plan 4 to his 7 August 2007 report (which is substantially the same as plan 3 to his 16 July 2009 report). That plan purports to show the strip of land that Mr Powell believed existed between the South Western extent of the 1985 planned highway and the North Eastern extent of the Orange Land. I have exhibited plan 3 to Mr Powell’s 16 July 2009 report to this judgment (“Plan 3”).

[127]Mr Wilson and Mr Powell, however, now accept that, insofar as the plans show that the Green Land extends beyond the breeze block wall built by Cuthbury in September 2006, it is wrong. Thus, Mr Powell says that the only relevant gap is that between the line of the breeze-block wall and the South Western extent of the highway landscaping shown on the Colour Wash Plan. That is a small triangular area entirely comprising what counsel have referred to as the ‘notch’, some 2 metres at its widest to the East, and narrowing to nothing within 20 metres, thus having a total area of about 10 square metres. I will refer to this area as the “Sliver”.

[128]When Mr Powell gave oral evidence, he explained that the difference between himself and Mr Vaughan was that he had made his calculations by scaling the 415 foot dimension up from the original and then comparing it with the present day survey and earlier Ordinance Survey maps to achieve what he believes is a good fit. In short, he said he had matched the longest dimension of 415 feet (and later the shorter dimensions of 147 feet), having measured them on the 1900 plan and compared them to the scale of the 1900 plan (1: 2500) so as to ascertain whether the plan is correct. He then scales them up or down so they are accurate to the measurements before he undertakes the overlays. He says that he also ensured that the 446 feet dimension worked as well.

[129]The result is that Mr Powell proceeds on the basis that, since 415 feet measured from the existing rear corner of the Orange and Purple Land reaches only to a point some 2 metres short of the rear of the colour washed verge shown on the Colour Wash Plan and some 4 metres short of the footpath of the highway constructed in 1987 and formally adopted in 1995, this line marks the true extent of the Eastern point of the Orange Land shown on the 1926 Transfer plan.

[130]Mr Vaughan’s 20 November 2008 report disagreed with Mr Powell’s methods and conclusions. He said that the 1900 Plan was inaccurate and had large tolerances of 3-4 metres, and that Mr Powell had made two assumptions, namely that the existing location of the rear corner point “F” was correct, and that the 415 feet measurement was correct. He preferred to start at the front of the Orange Land thereby only making one assumption as to the corner of the Orange Land being at the same point as the front of the Purple Land. By this method, Mr Powell reached the view that the rear boundary was at point “F1”, measuring 415 feet from point “B”, the corner of the Purple Land.

[131]Mr Vaughan’s lengthy main report dated 12 November 2009 adopted a new approach. He undertook a series of overlaying exercises, which he was taken through in cross-examination. He had attempted to overlay the 1926 Title Plan on to various other plans in order to find the best fit and so to identify the precise location of the Orange Land and its 415 feet boundary. The main exercises he undertook were as follows:-(1) Mr Vaughan’s overlay plan D2 is a graphical analysis overlaying his firm’s actual 2006 survey on to the 1926 Transfer Plan using National Grid lines, and looking for the best fit. He accepts it is a subjective process, and that he did not use the 415 foot measurement to check the scale of the Transfer Plan. The tolerance was 4 metres.

(2) Mr Vaughan’s overlay plan D4 is another graphical analysis overlaying the 1926 Transfer Plan onto the Ordinance Survey’s 1924 mapping, but again he accepted that there may be errors in the diagrammatic representation of the plot on the 1926 Transfer Plan because it was purely diagrammatic, and the tolerance was 4 metres.

(3) Mr Vaughan’s overlay plan D8 compares the D4 plan with the agreed experts’ survey plan. The result is the same as that for D4.

(4) Mr Vaughan’s overlay plan D9 is a dimensional analysis comparing the position of the 40 foot roadway from the Approval Plan and the Omnium Office. Though the Approval Plan was accepted to be diagrammatic, this is the exercise on which Mr Vaughan places most reliance.

(5) Mr Vaughan’s overlay plan D10 compares the position of the anecdotal features such as the gateposts and the bund.

[132]When Mr Vaughan plots the front boundary of the Orange Land from his various overlay plans onto a single sheet, D12, the result shows all of the lines in front of the breeze-block wall, and the analysis overlaying the 40 feet road dimension as close to intersecting the corner of the fence to the Purple Land (point “B”).

[133]Mr Powell accepted that both his and Mr Vaughan’s approach were reasonable ones. He highlighted the inaccuracy of some early Ordinance Survey plans and the generally accepted tolerance (for the more modern plans anyway) of +/-2.3 metres.

[134]In my judgment, there are two problems with the fit that Mr Powell achieved:-(1) First, he has taken point “F” as a fixed point for his 415 feet measurement when he acknowledged that there was no reason to think that the corner of the Orange Land had remained static down the years.

(2) Secondly, he has had to ignore and assert to be wrong, the measurement of 603 feet for the Southern boundary of the Purple and Brown Land shown on the Land Registry Plan arising from the 1927 Transfer.

[135]Mr Vaughan’s exercises seem to me to be valuable, but equally not definitive. I was, however, struck by the similarity between the results of his different exercises that he plots on his annex D12.

[136]Mr Vaughan, however, accepted that, if he was right, both the existing rear boundaries of the Purple Land and of the Orange Land would have to have moved backwards, possibly by up to 4 metres, if Mr Rogers erected his rear fence in the right place after the 1926 Transfer.

[137]It is particularly noteworthy that the difference between the ultimate positions of Messrs Vaughan and Powell are tiny in mapping and surveying terms. As I have described above, the Sliver is only about 2 metres at its widest point. Mr Vaughan places the front boundary at point “B” or a little in front of it, and Mr Powell at point “D” – these points are only 2.8 metres apart at most, and, as I have said, Ordinance Survey tolerances are 2.3 metres. Thus, even if Mr Powell’s conclusions were wholly correct based on the position of point “F”, there would still be no really material difference from Mr Vaughan’s position, allowing for accepted tolerances.

[138]Before reaching my conclusions, I should set out my views on the various core documents that the experts have relied or commented upon in the course of their written and oral evidence. I will use this opportunity to comment also on other aspects of the photographs that will bear on subsequent issues:-(1) The 1900 plan (like the 1927 Transfer plan) shows a continuous line at the front of the Orange, Purple and Brown Land. It does not change direction significantly between the Orange and Purple Land. It also shows a continuous line at the rear boundaries, albeit changing direction between the Orange and the Purple Land.

(2) It appears from the solid lines shown on the 1933-1936 Ordinance Survey map that Mr Rogers had, by that time, fenced his boundary as he was required to do. The notch is by this time clearly visible on the map, albeit that no fence is shown to the front of the Purple Land.

(3) The first aerial photograph in 1942 shows a narrow hedge or a fence with brambles growing on it running for most of the rear boundary of the Orange Land, starting from the later travellers’ site end, but not quite reaching the Purple Land. The picture shows Mr Rogers’s wall and what looks like a hedge at the front to the left of the house. The road is already wider in front of Mr Rogers’ house where lorries seem to have passed in front of the Omnium Office.

(4) The 1948 aerial photograph is clearer. It also seems to show a linear feature at the rear of the Orange Land, but not reaching the junction with the Purple Land. Moreover, the feature at the rear of the Purple land starts some distance back from where the extension of Mr Rogers’s rear fence (if that is what it is) would meet the 415 feet dimension. The wall, the hedge and the notch are clearly visible at the front. The notch is not overgrown, but is apparently grassed, but there is no fence to the front of the Purple and Brown Land, though both are quite overgrown. The road in front of the Rogers’s house is wider even than in 1942, apparently allowing 3 lorries width – perhaps one to be parked at the Omnium Office, and two to pass in front of the house. There is not much by way of grass verge visible in front of the Orange Land, except in the notch. The photograph also shows a well used road continuing past the Omnium site and to the left into Phillips’s sand pit. Off that road is a clearly used track onto Canford Heath, continuing for some distance and having the appearance of being used, albeit not heavily, as a through route to some location off the photograph.

(5) The 1959 aerial photograph shows the whole rear of the Orange Land obscured by bushes, although the 415 feet fence line seems in place. The Purple and Brown Land are occupied by caravans, but there is seemingly no front fence. The wall, hedge and notch are again clearly visible and the road remains wide in front of the Rogers’s house. The photograph is too small to see if there is any material grass verge, but the notch does not appear to be overgrown. The photograph shows the same continuation of road and tracks that I have described above on the 1948 photograph.

(6) A Southern Electricity Board site plan dated 17 February 1961 shows the Southern corner of the Orange Land further forward than the South Western Corner of the Purple Land. It does, however, show a continuous front boundary between the Orange and Purple Land similar to the 1927 Transfer plan.

(7) The May 1962 aerial photograph also seems to show a very vague linear feature at the rear of the Orange Land, with something like an allotment towards the back corner of the Orange Land. The line of the fence is obscured by trees and bushes, though other fences within the plot are visible. The most Southerly final 10% of the rear boundary as it approaches the Purple Land was, however, clearly unfenced in 1962. The rear fence line to the Purple Land continues from the Orange land without any apparent change of direction. The wall and the notch remain clearly visible with the notch grassed and narrow grass verge between the still wide road and the Orange Land. The photograph shows the same continuation of road and tracks that I have described above on the 1948 and 1959 photographs.

(8) By the time of the 1969 aerial photograph, there was a rural fence at the back of the Orange Land, with posts some 3-4 feet high, spaced at about 8-10 feet. Nothing useful can be seen at the front of the Orange Land because of the angle at which the photograph is taken. The Omnium office is shown mostly demolished.

(9) The first decimal edition of the Ordinance Survey map created between 1969 and 1971 shows a rear boundary to the Orange Land meeting the rear boundary to the Purple Land. This map also shows the notch at the front of the Orange Land.

(10) The 1972 aerial photograph again shows the rear boundary of the Orange Land as being clearly fenced. It is less clear whether the fence to the rear of the Orange Land is truly aligned with or meets the fence to the rear of the Purple Land, although the latter seems to continue from the Orange Land on the same angle before making a turn some distance along its length. The wall, hedge and notch are clearly visible with the notch grassed over hard against the gravel road. The fence to the Purple Land at the front is clearly some distance in front of the wall. The road remains wider in front of the Rogers’s house, but the Omnium Office has now disappeared. This photograph provides a good view of the frontage to the Purple, Brown and Blue Land, apparently continuously fenced, except for the entrance to the Purple Land, with a narrow hedge or overgrown verge between the fence and the road.

(11) A June 1974 plan accompanying a planning application by Mr E. Rogers in respect of the Orange Land shows the notch as in the then current Ordinance Survey plans.

(12) The 1981 aerial photograph shows the rear of the Orange Land and its junction with the rear of the Purple land little changed from 1972. But at the front, the house and wall have been demolished, and a skip or something similar is on the front boundary. The notch is no longer clearly visible, though the fence to the Purple, Brown and Blue Land seems largely intact, and the verge and accompanying bushes look more scruffy and less well delineated. A lorry parked alongside the junction of the Brown and Purple Land shows the width of the road to be at least 3 lorry widths, which might perhaps be as much as 25 feet, not including a small verge.

(13) The 1984 aerial photograph shows a rural fence at the rear of the Orange Land with a gate at the end nearest the travellers’ site. At the junction with the rear of the Purple Land, the fence direction changes slightly, unlike previous photographs. The fence at the front of the Purple and Brown Land is not clearly visible, though the telegraph poles are.

(14) The 1986 aerial photograph shows a new fence at the bottom of a bank to the front of the Purple Land and the same features to the rear of the Orange and Purple Land as in 1984.

(15) By the time of the April 1990 aerial photograph, a concrete posted chain link fence had been erected at the rear of the Orange Land. Some of the remaining posts from this fence were still visible when I visited the Site. The fence is a continuation of the rear fence to the travellers’ site and continues into the line of the fence to the rear of the Purple Land, though changing direction slightly, as it had in 1984. Though that fence becomes dilapidated and overgrown in subsequent aerial photographs, its line does not change.

[139]Certain general conclusions can be made from the above observations:-(1) Although the rear boundary to the Orange Land has remained in the same general location down the years, it is not possible to say that it has remained constant from 1926 (or whenever Mr Reginald Rogers first fenced the Orange Land in accordance with the covenant in the 1926 Transfer) until now. There was a period where there apparently was no visible fence at all at the rear of the Orange land (or for some at least of it), and the photographs show a changing boundary.

(2) The contour of the rear boundary has undoubtedly changed over the years as the Orange Land and the Purple Land have been excavated and filled and as earth has been moved around both on and off the Site on many occasions, both in the course of quarrying clay and for other reasons. It appears that the land at the back of the Orange, Purple and Brown Land was excavated in the late 1980s, making a steep bank down to what is now Tesco’s supermarket. On my inspection, it seemed to me, therefore, that, as the terrain had changed, it was rather more likely that the fence line would have been pushed back to the edge of what is now a steeply dropping bank, even if it had originally been correctly fenced some way further forward.

(3) The wall at the front of the Rogers’ house remained a constant feature from shortly after 1926 until 1977. It was, simply from my observations, clearly built at the wrong angle to the road, as compared to the 1926 Transfer plan. Mr Vaughan has sought to demonstrate this by an extrapolation exercise, which has been much criticised by Mr Powell. But I accept that Mr Vaughan’s work demonstrates that which is otherwise obvious, namely that the notch was created because Mr Rogers did not build his wall up against his boundary, which was intended to be continuous with the front boundary of the Purple Land.

(4) The front boundary of the Purple Land was said by Mr Bill Rogers to have been built 4 feet out into the road. And indeed it was. But the ‘4 feet out into the road’ was 4 feet out from Mr Rogers’s wall, not 4 feet out in front of the boundary to the Purple Land. Mr Bill Rogers did not pretend to know where the legal boundaries were, and I take his comments in that spirit. More importantly, however, as I have said, the front boundaries of the Orange and Purple Land met and continued in a relatively straight line as shown on the 1926 and 1927 Transfer plans and title plans. It is this factor which is, to my mind, of great importance.

[140]In the result, therefore, I have to decide whether Mr Vaughan is right to start measuring from point “B”, where the front fence to the Purple Land ends, or Mr Powell is right to start measuring from point “F”, ending his 415 feet at point “D” on the line of Cuthbury’s breeze-block wall.

[141]I have reached the clear conclusion that Mr Vaughan’s approach is generally to be preferred and that Point “B”, not point “D”, represents the Eastern corner of the Orange Land. My brief reasons, in addition to those mentioned above, are as follows:-(1) Mr Vaughan’s exercises seem to me to provide a general indication that the boundary is likely to be some metres forward of point “D”, and possibly even further forward than point “B”. His methods are accepted as valid. (2) Mr Powell’s exercise seems to me to be more suspect for the reasons I have given: it takes the Southern corner of the Orange Land as a fixed point, when it is not, and it ignores the 603 feet measurement on the March 1939 title plan. In addition, his reliance on the 1900 plan and its effective delineation of the Green Land is accepted to be suspect. First the mapping in 1900 was subject to large tolerances, but secondly the delineation of the Green Land on Cuthbury’s title (taken in large part from the 1900 plan) is accepted to be inaccurate in at least two major respects. Mr Powell’s exercise might be of value if it were one of several exercises undertaken to see if one could achieve some consistency as to the location of the 415 feet boundary, but he puts all his eggs in one basket, and the basket is, in my judgment, insecure. Even Mr Powell would accept that his conclusion is subject to tolerances, which puts point “B” within Mr Powell’s tolerance for his point “D” (which is only 2 metres away).(3) It seems to me most likely that Mr Rogers built his wall back from his real boundary and at the wrong angle, so that the notch is entirely within the land transferred by the 1926 Transfer. The boundary to the Purple Land continued in a straight line from the front of the Orange Land, and that line is best represented by the fence to the Orange Land that can be seen to have started from a point close to or at point “B” for many years, and certainly at a time before Mr Rogers’s wall was demolished. That is ultimately one good reason why the front reference point is to be preferred to the rear one, which cannot be shown to have remained in the same place.

[142]My conclusion, therefore, is that the 415 feet boundary line runs 415 feet from point “B” to point “F1” (or very close to point “F1”). The North Western and South Western boundaries of the Orange Land are to be taken to be 446 feet and 141 feet respectively as shown on the filed plan, and the Southern and Western corners are to be taken as right angles. The remaining dimensions and angles can be calculated by the application of Pythagoras’s theorem. Issue 4: Did SDF acquire ABCD and/or ABE by adverse possession between 1990 and 2002, or at some other time?

[143]The first question is whether there is or was an area to the front of the Orange Land over which private rights were not granted, or which had not become public highway so that it could be acquired by adverse possession, as the Claimants contend between April 1990 and December 2002.

[144]I have already held that there was no gap between the front of the Orange Land and the land over which private rights were granted. The 1926 Transfer plainly intended to transfer road frontage property without retaining any gap between the areas transferred and the area over which (at that stage) a private right of way was granted, and I have held that it successfully achieved its purpose.

[145]I shall deal under Issue 8 with the question of the dedication or adoption of the highway. As will appear, I have held that, by 1995, the land up to the extent of the verges or landscaping shown on the Colour Wash Plan had become highway. That line is shown as point “B” to point “A/C” on Mr Powell’s Plan 3, and is the front line of the Sliver. Since I have found that the Orange Land reaches to point B (and to point A/C on Plan 3), I do not think there ever was an area between the Orange Land and the land over which rights of way were granted, or the public highway existed, which could have been acquired by adverse possession.

[146]The fact that the Orange Land was later plotted on repeated Ordinance Survey plans as having stepped back from the roadway did not operate, in my judgment, so as to change that position. What happened was, as I have said, simply that Mr Rogers built a wall slanted further back into his title than he needed to have done, leaving the notch, an area of his property in front of the wall alongside the road in its Eastern corner. The notch did not disappear from Mr Rogers’ ownership simply because he had a built a wall separating it from the remainder of his property. His boundary remained as shown on his title plan, and there was nothing for anyone to acquire by adverse possession between the Orange Land and the land over which the rights of way were granted.

[147]Since, however, the possibility of adverse possession between April 1990 and December 2002 has taken up some time in evidence and argument, I should deal with it on the premise that I am wrong about both the dedication of the highway and the existence of a ‘gap’ between the land over which the right of way was granted and the Orange Land.

[148]SDF contends that it acquired the Sliver and any other relevant gap of land by adverse possession as a result of the placing of a bund at the front of the Orange Land. In the relevant area, the bund seems to have changed its location, height and shape little in the years in question. It is agreed by the experts that the bund was 1.5 metres high +/- 0.5 metres.

[149]In case also all I have said about the Sliver is wrong, I should deal with two adverse possession questions under this head:-(1) First, did SDF acquire the entirety of the ABCD and ABE areas pleaded by adverse possession?

(2) Secondly did, SDF acquire the Sliver by adverse possession?

[150]The first question in both cases is whether the existence of a bund, if it occupied relevant areas of land would be sufficient to allow SDF to acquire the land by adverse possession. And it is first to be noted in this regard that we are dealing here with registered land and there is less justification for permitting acquisition of registered land by adverse possession, as was recognised by the introduction of a new system of adverse possession for registered land by the Land Registration Act 2002.

[151]It is, however, possible to acquire even registered land by adverse possession by establishing a bund on the land in question. Moreover, one might, anyway in theory, establish the necessary animus possidendi by the establishment of such a bund.

[152]In the circumstances of this case, it seems to me that the two requirements necessary for adverse possession would have been established for the Sliver, but not for the entirety of ABCD and ABE.

[153]First, as appeared from the evidence and the photographs, the bund in question was fairly constant over about ¾ of the Orange Land’s frontage, adjoining the Purple Land’s frontage. There was either no bund or an inconsistent and shifting bund on the Northern quarter of the frontage for most of the 12 year period relied upon. This is enough to mean that SDF did not have exclusive possession of the entirety of the area of either ABCD or ABE for the relevant time, and could not have acquired it by adverse possession.

[154]So far as the Sliver is concerned, the position is different. SDF’s bund undoubtedly covered the Sliver entirely for the whole 12 year period. The base of the bund has been estimated to be between 4 and 5 metres, and in my view, it can be seen from the photographs taken between 1990 and 2002 to have extended right up to the highway verge (which was itself something like 1.8 metres from the back of the footway. Thus, the bund extended right up to the colour washed areas on the Colour Wash Plan and must, on Mr Powell’s own definitions, have covered entirely the Sliver. SDF was, therefore, dealing with that area as an occupying owner might have been expected to deal with it. The necessary exclusivity of possession was evident, rather as it would have been had the area been securely fenced. The evidence was that the bund had a steep front face so as to prevent it being easily scaled.

[155]Moreover, SDF must have intended to exercise custody and control over the Sliver on its own behalf and for its own benefit. The intention required must be objectively manifested, and need not be shown to have been a subjective belief. SDF had erected the bund in order to keep travellers and others from entering its land and from dumping materials on it, or perhaps removing what was there. The bund was therefore intended, objectively, to exclude the world and to mark SDF’s possession of the area it covered including the Sliver.

[156]I therefore conclude, should it ever become relevant, that SDF would have acquired the Sliver by adverse possession by December 2002, so that the Canford Estate and latterly Cuthbury would have held the Sliver on trust for SDF under section 75 of the Land Registration Act 1925 and the transitional provisions in the Land Registration Act 2002.

[157]In these circumstances, there is no need for me to deal with the suggestion that adverse possession was achieved by the bunds erected by Macbar Construction and Mr Burton between the mid 1980s and 1990. I would, in any event, have held that their bunds were too frequently shifted to have been sufficient to achieve factual possession. Issue 5: Did CREL, or its predecessors in title, acquire the Blue Land by adverse possession between 1962 and 1987, or at some other time?

[158]The issues here are rather different. The first question is whether there was sufficient adverse possession by anyone, and the second question is who adversely possessed, and whether CREL can take advantage of it.

[159]As for the adverse possession itself, there is clear evidence that Mr Bill Knott or one of his corporate entities, fenced and used the Blue Land exclusively for their own business purposes for a significant period between 1962 and 1987. I am satisfied that the Blue Land was fenced off against the world for far longer than the necessary 12 years.

[160]As I have said, there was evidence from Mr Gerald Stanley that the Purple, Brown and Blue Land was fenced in 1963 by Donald Froud, the maintenance man for Bluebird caravans. But Mr Powell told me, whilst he was looking at the stereo aerial photograph taken in May 1962, that no such fence was visible. Mr Vaughan told me that that same photograph did show a fence. I have studied the photograph carefully both in 2D and 3D and have formed the view that, in fact, there was a fence along the roadside boundary by May 1962. The tall poles may be, as Mr Powell thought they were, telegraph poles, but there is a clear shadow along the whole length that looks like a light chain link or stock fence, or some similar material. Moreover, the Purple Land was being used to store caravans, and it seems likely that Mr Knott would have wanted to secure them as the evidence suggests he did. Mr Spencer’s recollection of a fence being put up in 1963 does not mean there was not one in 1962, particularly bearing in mind that the 1962 fence was a rather modest affair.

[161]My finding that there was a fence in May 1962 is probably not crucial, because it is clear from each of the photographs taken in 1969, August 1972, and July 1981 that the Blue Land was fenced against the road, without a boundary between it and the Brown Land. And the oral evidence, which I accept was that the Purple, Brown and Blue Land was all fenced against the road until at least 1986, when the Purple Land was re-fenced at the bottom of the bank and further away from the road. This lower fencing is clearly visible from the photographs in July and December 1986, and may have been undertaken to facilitate the road being made up by PBC. It is not clear to me, however, from those photographs that the earlier fencing of the Purple, Brown and Blue Land along the roadside had actually been removed (even though Mr Hartley-Brown seemed to think it had); it may just have become dilapidated and overgrown.

[162]There was, therefore, sufficient physical possession for Mr Knott and/or his companies to have adversely possessed the Blue Land in this period of up to 25 years. The question remains whether the necessary animus possidendi accompanied physical possession. It seems to me that the usage of the land to store caravans for much of the time supports the existence of the necessary intention to possess, again objectively manifested. Mr Knott and his companies can only have intended to exercise control over the Blue Land on his own behalf and for his own benefit.

[163]The next question concerns who adversely possessed, and whether CREL can take advantage of that adverse possession.

[164]The oral evidence and documents demonstrate the following sequence of events:-(1) Several witnesses explained anecdotally how Mr Knott owned the Purple and Brown Land and occupied the Blue Land from the late 1950s or early 1960s onwards. I accept that evidence, but I do not think any of it was intended to distinguish between Mr Knott himself and companies owned by him. In my judgment, the later evidence shows that Mr Knott operated through companies, and I cannot, therefore, infer that he bought the land personally at the outset. It seems to me more likely that Mr Knott would have acquired the Purple and Brown Land in the late 1950s or the early 1960s in the name of an unknown company, which he owned (which I shall call “BKUK”). This inference is supported by the correspondence in May and October 1967 with BK Caravans Limited, in which Mr Knott contended to the PBC that Mannings Heath Road was not a private road.

(2) The earliest documented ownership that we know about (after Omnium’s transfer from the Canford Estate in 1927) is the transfer of the Purple and Brown Land from Bluebird Caravans Limited (said anecdotally to be a Bill Knott company, although not signed for by Bill Knott) to Newtown Investments Limited (signed for by Bill Knott) on 5th January 1973.

(3) On 8 March 1984, Newtown Investments Limited was placed into a members’ voluntary liquidation. On 5 June 1985, the liquidator, Norman Callaway, distributed the company’s assets, including in particular the Purple and Brown Land, to its shareholder, Fostrol Investments Limited.

(4) On 16 July 1985, Fostrol Investments Limited was, in its turn, placed into a members’ voluntary liquidation. On 5 December 1985, the liquidator, again Norman Callaway, distributed the Purple and Brown Land, to its shareholder, WEC Knott Investments Limited, a Jersey company. By this time, however, WEC Knott Investments Limited had already itself been placed into members’ voluntary winding up.

(5) On 4 April 1986, the liquidator of WEC Knott Investments Limited, Stuart Mottershaw, distributed the Purple and Brown Land, to its shareholder, Knott Trustees Limited (which later became KIL).

(6) On 22 March 1990, KIL transferred the Purple Land to the trustees of Roger John Pinfold’s Settlement, at the direction of Mannings Heath Investments Limited, who had been granted an option for the purchase in the 1980s.

(7) On 6 September 1993, Mr Knott died.

(8) In 1995, KIL paid the sums due to PBC in respect of the making up of Mannings Heath Road attributable to both the Brown and the Blue Land.

(9) On 26 April 1999, the Brown Land was transferred to Mr Knott’s children, Richard Knott, Valerie Hartley-Brown and Carolyn Ross.

(10) KIL was struck off the register of Jersey companies in 2002, but returned to the register by an order of the Jersey Royal Court on 10 December 2009.

(11) KIL has also entered into a protective transfer of its possessory rights of the Blue Land to CREL.

[165]On the evidence before me, therefore, BKUK acquired the Purple and Brown Land in the late 1950s or early 1960s. The adverse possession that I have held occurred in respect of the Blue Land must have been undertaken by that unknown company.

[166]Mr John Dagnall, counsel for the Claimants, makes two alternative claims. First he says that KIL can take advantage of BKUK’s adverse possession, and, now that KIL has been returned to the register, it has confirmed CREL’s rights as its successor. Secondly, Mr Dagnall says, in the alternative that, if Mr Knott owned the Brown Land personally, the receiver of his estate has been joined as a party to this action and can assert Mr Knott’s adverse possession rights in respect of the Blue Land directly. Since I have held that Mr Knott probably never owned the Brown Land personally, this second avenue is no longer relevant.

[167]The main question, therefore, is whether BKUK’s adverse possession rights have passed to KIL. Mr Dagnall advances the following five alternative arguments in support of his contention that they have:-(1) The adverse possession rights passed under section 62 of the Law of Property Act 1925, each time the Brown Land was transferred.

(2) These rights passed as a matter of construction, implication or rectification of the transfers of the Brown Land.

(3) The rights were relinquished by each transferor of the Brown Land to each transferee in sequence.

(4) The distribution of surplus assets by each liquidator in turn resulted in a trust of the rights in favour of each transferee.

(5) KIL was allowed to take over the Blue Land and paid the frontager contributions in respect of it, so that any predecessor is estopped from denying that KIL acquired its squatter’s rights.

[168]In my judgment, the section 62 argument does not work. It is important to realise that we are talking here about supposed rights over a piece of adjoining land with a separate registered title. What is suggested is that, when the owner of the Brown Land transfers that land, he transfers with it any adverse possession rights he may have in an adjoining piece of land without making any mention of the fact that he is doing so. I will look at the matter first as a question of statutory construction, and then consider the authorities on the point.

[169]Section 62 does not, in my judgment go far enough to achieve what Mr Dagnall has argued. The relevant words of the section are that “A conveyance of land shall be deemed to include … with the land, all buildings, …, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part therefore, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof”. The question is whether these adverse possession rights can properly be regarded as liberties, rights, or advantages appertaining to the land or occupied or enjoyed with the land. The simple point, in my judgment is that they are not rights occupied or even enjoyed with the [Brown] land. They are rights in respect of an entirely different piece of land which happens to adjoin it. Even the fact that the two pieces of land have been enjoyed together, in the sense of being used for the same purpose, is not, in my judgment, enough.

[170]There are three, not entirely consistent, cases that bear on this point as follows:-(1) In St Marylebone Property Co v. Fairweather [1962] 1 Q.B. 498, the Court of Appeal held that the owner of a house could pass squatter’s rights to his lessee to adversely possess a shed built partly on adjoining land, when the entrance was on the owner’s land. The decision here seems to me to be clearly within the words of section 62 since the shed was indeed a “building … appertaining to the land … or, at the time of conveyance, occupied, or enjoyed with … the land”.

(2) In Fleet v. Silverstein [1962] Ontario Law Reports 153, McRuer CJ held that squatter’s rights to a strip of land adjoining a house and enjoyed with it did pass to a successor in title under the Ontario equivalent of section 62. In an ex tempore judgment, the judge simply said “although I do not have to come to a definite conclusion on it, my view at present is that the conveyance of the land on which the house sat would be quite sufficient to carry with it all the rights which Mrs Osborne had and had acquired by possession or otherwise over this strip of land which was enjoyed and used as part and parcel of the property”. That was anyway a clearer case than this, since the strip had no independent life or use to Mrs Osborne other than use alongside the house. Here the Blue land could well be used separately from the Brown Land.

(3) Finally, in Kirk v. Sutherland [1949] Victoria Law Reports 33 (which was not apparently cited in the previous decisions), Lowe J in the Supreme Court of Victoria held that an allotment holder who had acquired adverse possessory rights over an adjoining allotment by enclosing part of it into his own allotment. Lowe J said this at page 36:

“I am clearly of the opinion that neither of these provisions help the plaintiffs. Whatever may be the scope of the words used, the words “rights powers and privileges” “belonging or appertaining” to the estate or interest of the proprietor, they cannot be construed as extending to rights acquired by adverse possession in land in another certificate of title registered under the Transfer of Land Act. Nor do I think that sec. 62 of the Property Law Act 1928 … is of any avail to the plaintiffs. It cannot be contended that what Robert Hawley enjoyed comes within “liberties privileges [or] easements”

. Is it a right or advantage “appertaining or reputed to appertain to the land” or “occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof”? The governing words are “rights and advantages”. These words are not appropriate to describe land itself, and in my opinion, do not include it …”

[171]In my opinion, the more carefully reasoned reserved decision in Kirk is to be preferred to the extempore decision in Fleet. Moreover, this case is even stronger than the facts in Kirk, since the Brown Land and the Blue Land are separate plots in separate titles, and though the Brown Land is bigger, the Blue Land is not just a strip adjoining the Brown Land; it is a plot in its own right.

[172]The principles of construction, implication and rectification explained in Chartbrook v. Persimmon

[2009] 2 WLR 267

are also inadequate to allow the successive transfers I have referred to, to pass the transferor’s rights to adverse possession of the Blue Land, with a transfer of the Brown Land. There is nothing in any of the transfers relied upon which could found such a construction, and no reason to make such an implication. There is no evidence to support a claim for rectification.

[173]Mr Dagnell’s third point is, however, more promising. He contends that each of Mr Knott’s companies took over possession of the Blue Land with the consent of the preceding squatter, so that time continued to run and the successor could assert the possession of itself and its predecessors against the owner of the paper title. He relies on two cases, namely Willis v. Earl Howe

[1893] 2 Ch 545

and Mount Carmel Investments Ltd. v. Peter Thurlow Ltd. [1988] 1 W.L.R.1078. As Megarry & Wade on the Law of Real Property 7th edition 2008 describes the position at paragraph 35-022: “If a squatter is himself dispossessed the second squatter can add the former period of occupation to his own as against the true owner. This is because time runs against the true owner from the time when adverse possession begins, and so long as adverse possession continues unbroken, it makes no difference who continues it”.

[174]Two questions arise here on this third point: First, whether the position is the same when 12 years has run, as it is before, and secondly whether in fact, each of Mr Knott’s companies voluntarily relinquished possession and abandoned further claims to the Blue Land on their successive transfers.

[175]Mr Wilson has argued, again ingeniously, that, once the 12 year period expires as it did here (notionally anyway before the first known transfer on 5 June 1975), the squatter’s (here BKUC) right became an accrued rather than an inchoate right, which can only be transferred formally by writing in compliance with section 53 of the Law of Property Act 1925 as a beneficial interest in land under the trust arising under section 75 of the Land Registration Act 1925. In my judgment, this response does not work for the Defendants, because a squatter can rely on any period of 12 years arising whenever it asserts its claim. Mr Wilson might be right if the squatter wanted to assert its 12 years at some stage in the past, but CREL asserts its rights through KIL, which acquired the Brown Land on 4 April 1986. If, as a matter of fact, KIL’s transferor relinquished possession to KIL at that time, KIL has since passed the rights it acquired formally to CREL. In short, KIL could rely on the 11 years and 364 days possession immediately preceding the transfer to it, and then later assign its 12 years possessory rights whether from one day after the transfer to it, or from later on, to CREL.

[176]The question then resolves itself into one of fact, rather as it did in the MountCarmel Investments case. In my judgment, as a matter of fact, each successor company relinquished possession of the Blue Land to its successor, when it transferred the Brown Land. There is no evidence that any of the transferors sought to retain any interest in Blue Land thereafter.

[177]In these circumstances, Mr Dagnall’s 4th and 5th points, namely that a trust resulted from the transfers of surplus assets, and that the earlier transferors are estopped from denying that KIL acquired their squatter’s rights, are not needed and do not arise.

[178]I, therefore, hold that KIL was able to take advantage of BKUK’s adverse possession rights, and acquired the Blue Land by adverse possession on or immediately after 6th April 1986. CREL is able to take advantage of KIL’s rights as its successor, and the Blue Land is, therefore, now held by Cuthbury for CREL on trust under section 75 of the Land Registration Act 1925 and the transitional provisions in the Land Registration Act 2002. Issue 6: Did CREL, or its predecessors in title, acquire XYZ by adverse possession between 1962 and 1987 or at some other time?

[179]Again here, the first question is whether there is or was an area to the front of the Purple and Brown Land over which private rights had not been granted and which had not become public highway, so that it could be acquired by adverse possession between 1962 and 1987.

[180]And again, for the reasons I have given above, I do not think there ever was such an area. The 1927 Transfer plainly intended to transfer road frontage property without retaining a gap between the areas transferred and the area over which a private right of way was granted.

[181]As will appear, from Issue 8 below, I have found that the land immediately in front of the Purple and Brown Land became a public highway in 1980. The existence of the XYZ strip is supported only by Mr Powell’s overlay of the 1900 plan on Mrs Macnair’s survey. Mr Powell accepted that the title plan to the Green Land, which must have been based on the 1900 plan was poorly drawn. It seems to me that the XYZ strip, which is at its widest some 2 metres, is well within Ordinance Survey tolerances, and arises only because the boundary has been drawn as cutting the corner as the road veers to the right towards and beyond the boundary between the Purple and the Brown Land. Thus, I cannot accept that Mr Powell is right to say that, even if I am wrong in everything thus far, a relevant gap exists between the area on which street or verge works were undertaken (as delineated by the PBC’s Colour Wash Plan dated 10 September 1985) and the actual extent of the land transferred to Cuthbury. This gap depends on the cutting of the corner and the lack of any street works on the verge behind the made up footway. Taking those together, I find that the area XYZ simply does not now exist.

[182]Thus, since there was no gap, there was nothing to be acquired by adverse possession. I will, however, deal briefly with the possibility of adverse possession of the XYZ strip between 1962 and 1987 on the premise that I am wrong on all three points so far decided.

[183]Adverse possession here is claimed to have resulted because Mr Knott fenced the Purple and Brown Land hard against the roadway between 1962 and 1987.

[184]Again, I note that we are dealing here with registered land and there is less justification for permitting acquisition of registered land by adverse possession.

[185]If XYZ had existed in the Canford Estate’s ownership for that period, I am satisfied that it would have been acquired, ultimately by KIL on or immediately after 6th April 1986 by adverse possession, and therefore is now held by Cuthbury for CREL on trust under section 75 of the Land Registration Act 1925 and the transitional provisions in the Land Registration Act 2002, for the same reasons as those I have given under Issue 5.

[186]As appeared from the evidence and the photographs, the fences to the Brown and Purple Land enclosed all the land up to the roadway including XYZ. All the photographs showed this, and even where a small verge existed, it was plainly part of the area used as highway and ultimately made up as footpath or highway verge as shown on the Colour Wash Plan. Thus, Mr Knott’s companies had exclusive possession of that area for the relevant time. They were, therefore, each in turn, dealing with that area as an occupying owner might have been expected to deal with it. The companies, starting with BKUC, must have intended to exercise custody and control over the XYZ land on their own behalf and for their own benefit, since it formed part of the land that he was using through most of this period for BKUC’s caravan business. Issue 7: Has CREL any right to access the Purple Land and the Brown Land from Mannings Heath Road across the Orange Land?

[187]The answer to this question now resolves itself. It was common ground that, if the 1926 and 1927 Transfers granted rights of way over the land adjoining the plots transferred, the owners of the Purple and Brown Land could be granted the right to access the roadway across the Orange Land by the owners of the Orange Land. This is what has happened.

[188]Even if any of the other permutations apply, CREL and Mr Allen will still be entitled to access the Purple and Brown Land from Mannings Heath Road over the Orange Land. Issue 8: Is ABCD and/or ABE and/or XYZ part of the dedicated highway either at common law or under the statutory presumption contained in section 31 of the Highways Act 1980 (previously the Rights of Way Act 1932) or by way of adoption under section 238 of the Highways Act 1980?

[189]I have set out the relevant statutes and some authority above. In the context of the questions I have to decide under this Issue, Mr Dagnall has relied, somewhat half-heartedly, on the ‘fence to fence presumption’, as explained by the Court of Appeal in Hale v. Norfolk County Council

[2001] Ch 717

. The presumption is, in summary, that if a landowner fences his land against the highway, there is a presumption, which prevails unless rebutted by contrary evidence, that the land between the fence and the made-up highway has been dedicated to the public and accepted by the public as such. As Mr Dagnell accepted, this presumption only applies if the highway exists before, or at the same time as, the fences are erected. It has never been applied when the highway comes into existence after the fences were erected. For this reason, it seems to me that the presumption may be of limited utility in this case.

[190]The first question then is whether Mannings Heath Road became a dedicated highway either at common law or by the operation of section 31 of the Highways Act 1980. In considering the question of dedication, I have had regard to the speech of Lord Hoffmann in Regina (Godmanchester Town Council) v. Secretary of State for the Envrionment, Food and Rural Affairs [2008] 1 A.C. 221.

[191]The usage of Mannings Heath Road plainly increased down the years from the early 1920s. But on the evidence I have heard, it seems to me that it was always quite well used by the public for a number of reasons. First, Mannings Heath Road was for many years a ready and popular accessway to Canford Heath, used by travellers and local residents for leisure purposes. Secondly, Mannings Heath Road from the early days had the Omnium Brick Works at its end, the Omnium Office immediately opposite the Rogers’s house, and the Phillips’s sandpit behind what became the travellers’ site, and off what has now become Yarrow Way. The aerial photographs from the late 1940s show that Mannings Heath Road was a through route to a vehicular track across Canford Heath, commencing at a right turn just before Phillips’s pit.

[192]It is true that the width and verges of Mannings Heath Road varied greatly from 1926 until it was made up in 1987. In the early days, it remained a narrow track, but still one used frequently by lorries and caravans. As the years progressed the track widened considerably in front of the Rogers’s house, since lorries stopped at the Omnium Office (which was, as I have said, almost demolished by the time of the 1969 aerial photograph) on the other side of the road, and others passed them. In addition, lorries had to swing into the Omnium Brick Works, thus widening the track.

[193]The area of the notch also varied somewhat down the years. At times, the notch was a little overgrown, but at other times, the verge of the road clearly extended into that area. All that was caused by the fact that Mr Rogers had built the wall along the Southern-most part of the North Eastern frontage of the Orange Land out of line with his real boundary and back from it. I have no doubt, however, that the entire area beyond Mr Rogers’s title (as I have determined it to be) was used as a public highway (encompassing adjoining footpaths) over very many years from shortly after 1926 onwards, precisely as the Canford Estate had intended, as it made clear in the Transfers and other documents in the way I have described.

[194]The evidence of the numerous witnesses I have dealt briefly with above confirmed this position. They described the significant usage of Mannings Heath Road by the public from Newtown and elsewhere, both with and without vehicles, and I accept their evidence on this point covering as it did the entire period from the 1930s to 1987.

[195]In my judgment, there was clear evidence in this case of both public user of the Mannings Heath Road openly as of right, and of the intention of the Canford Estate that it should be used as a public road as the sales of various plots either side of it took place. At no stage did the Canford Estate or Lord or Lady Wimborne take any steps to prevent the public using Mannings Heath Road as a public highway or to prevent the public thinking, as they undoubtedly did, that it was a public highway. B.K. Caravans Limited’s letter to the Council in 1967 expressed the view that Mannings Heath Road was “nota Private Road”. The fact that Lord Wimborne may have given some of the Newtown boys express permission to use the Heath does not affect these facts concerning the use of Mannings Heath Road.

[196]There would be a problem if anything turned on the precise date of the presumed dedication of the Mannings Heath Road as a public highway. I am not sure that the usage was sufficient in the early years to allow it to be presumed that the usage was by the public as of right rather than by adjoining owners with private rights of way exercising those rights. But by the 1950s and 1960s, the evidence of public usage was very clear, and, as I have said, Mannings Heath Road was used for most of this time as a through way to Canford Heath, by track, not just as a dead end after which the Heath began.

[197]Since nothing does turn on the precise date, I can say that, on the evidence before me, I am satisfied that Mannings Heath Road must be presumed to have been dedicated as a public highway by 1980 at the latest, having been used as such for 20 years since at least 1960, and probably long before. I do not make this finding in reliance on the presumption in section 31 of the Highways Act 1980, because the period of 20 years in that section can only run retrospectively from the date when the right of the public to use the way is “brought into question”. The Canford Estate never seems to have brought the public right to use Mannings Heath Road into question, and even Cuthbury has not done so, save in respect of the ransom strips concerned in this case.

[198]Eventually, Mannings Heath Road was adopted as a public highway under section 238 of the 1980 Act by the erection of notices dated 12 January 1995 declaring “the said [private street known as MANNINGS HEATH ROAD] to be a highway … maintainable at the public expense”. The only remaining question is the extent of the highway that was in fact adopted. I do not believe that I need to determine the extent of the highway that was dedicated, although it was probably the entire corridor shown on the 1900 plan, which may not be much different from what was later adopted.

[199]I have already described the evidence of Mr Norwood in some detail. Without being unduly perjorative, it seemed to me that Mr Norwood was unhappy that PBC’s records were something less than perfect on this point. In my view, however, it is relatively clear that PBC would regard itself as adopting any areas used as a highway in which street works (as defined above) have been undertaken. In the course of this trial, the parties have pored tirelessly over the Colour Wash Plan of 1985 and the associated cross sections and chainages prepared for the contractor undertaking the works in making up the road. I have also looked carefully at the documentation sent out by PBC in answer to queries made by the Claimants and the Defendants as to the extent of the highway. As I have said, the PBC has not spoken with a consistent voice.

[200]It seems to me, however, to be clear from inspecting these plans in detail, from viewing photos of the road as made up, and from inspecting the parts of the road that have not been rebuilt as a result of the new roundabout, that the street works included work to the verges as shown on the Colour Wash Plan. It is that plan that best represents the extent of the adopted highway both on the ground and as a matter of what was intended by the PBC. It may not be perfectly accurate, and it may be that less verge works were estimated than actually undertaken. But I find that what was adopted in 1995 was the extent of the highway as shown on the Colour Wash Plan. Issue 9: Is Cuthbury entitled to the benefit of the covenants in the 1926 and 1927 Transfers?

[201]This issue can be dealt with shortly. The 1926 Transfer provided that the purchaser (Mr Rogers) for himself and his heirs and assigns and future owners “covenants with the Vendor and his successors in Title the owner or owners for the time being of the Canford Estate of which the land hereby transferred and conveyed forms part” to observe and perform the restrictive covenants. The 1927 Transfer was in similar form.

[202]Such covenants were expressly entered into for the benefit of the Canford Estate, and could, therefore, only be enforced by the owner of an area of land which could properly be regarded as the Canford Estate.

[203]In Re Freeman-Thomas Indenture

[1957] 1 WLR 560

, Harman J construed a covenant in similar form in the same way. In that case, park-land was conveyed to a local authority which covenanted not “without the consent in writing of the said Freeman Freeman-Thomas or other the owner or owners for the time being of the Ratton Estate of the trustees for the time being of the said estate” to erect any building in the park. Ultimately, more than 50 years later, when the Ratton Estate had ceased to exist, and the character of the neighbourhood had changed, the Council wanted to build a school on the land. The Council applied for and was granted a declaration under section 84(2) of the Law of Property Act 1925 that the covenants no longer affected the land. Harman J said this at page 562:- “The covenant does not purport to be made with the owner for the time being of any part of the Ratton Estate but with the owner of the estate as a whole, and there appears to be no such owner. The deeds are still in the hands of the vendors' solicitors and have not been handed over to any purchaser. That is evidence that the Ratton Estate as such has not passed to anybody as a purchaser, and it seems to me impossible to say there is anybody now in a position to enforce these covenants. It would be an extraordinary state of things if they were binding, because the corporation would then be prevented from ever getting any consent to build anywhere, or indeed cutting down any of the trees in the woods. My judgment is that these covenants are obsolete, and there being nobody interested now they are not in fact at anybody's command”.

[204]In this case, it would be nothing short of absurd if covenants made in favour of the Canford Estate could be enforced by every transferee of land from the Estate, however small or insignificant the parcel that the transferee acquired. The Canford Estate now owns only 2,000 acres, having previously owned very much larger areas, but the Estate still exists and can enforce or release these covenants as it chooses. Indeed, it has done so in respect of these covenants in favour of each of the Claimants by a deed dated 13 January 2009. Moreover, there is nothing in Cuthbury’s title to indicate that it was intended to be allowed to enforce these covenants.

[205]Mr Wilson has sought to rely on the general rule adumbrated by Brightman J in Federated Homes Ltd. v. Mill Lodge Ltd. [1980] 1 W.L.R. 594 that, on a true construction of section 78 of the Law of Property Act 1925, the benefit of covenants was generally annexed to each and every part of the land of the covenantee. As Brightman J made clear at page 606G-H, however, such was the rule “unless the contrary clearly appears”. It seems to me that the contrary did indeed clearly appear in the 1926 and 1927 Transfers.

[206]Mr Wilson sought also to rely on the Deed of Release dated 7 August 1974 between Lord Wimborne and Anthony Rogers as varying the covenants in the 1926 Transfer, but in the end, though not withdrawing his reliance on it, he accepted (as I do) that there was force in Mr Dagnell’s submission that such a variation of the covenants was not adequately noted on the Charges Register of SDF’s title, and therefore could not be binding, even if it would otherwise assist Cuthbury.

[207]For these, reasons, therefore, I will dismiss Cuthbury’s claims to enforce all or any of the covenants contained in the 1926 and 1927 Transfers against the Claimants.

Issue 10: Can the Claimants pass pipes taking surface water under Cuthbury’s land?

[208]Again, this issue can now easily be resolved. Since Cuthbury owns no land between the Site and the public highway known as Mannings Heath Road, this Issue simply does not arise.

[209]In case these proceedings go further, however, I should resolve one issue of construction that the parties have argued, but will not now arise. The question is as to what is meant by the term “surface water drains” in the rights granted under the 1926 and 1927 Transfers. Those transfers granted the transferees a right to use in a fair and reasonable manner “the sewers and drains [under the road] when made (except surface water drains)”. Cuthbury has argued that surface water drains include the storm water sewers that have been created under Mannings Heath Road to drain surface water from adjoining properties including the Orange, Purple, Brown and Blue Land, so that the easements do not allow the Claimants to connect their developments into those sewers. In my judgment, the terms of the easements allow the Claimants to connect into the storm water sewers I have described. The reason is simple: a surface water drain is just that: a drain taking surface water from the surface of the road - normally into the sewer underneath. The purpose of the restriction on the easement was to prevent adjoining owners draining their surface water onto the surface of the roadway and thus overloading the surface water drains intended to be provided to drain the roadway alone. The easement makes no sense if it were to be construed as preventing adjoining owners connecting into storm water sewers under the roadway installed precisely to enable the surface water from adjoining properties to be carried away.

Issue 11: Can the Claimants pass services (electricity, gas, media etc) under Cuthbury’s land?

[210]This Issue too does not arise for the same reasons as Issue 10. Issue 12: If Cuthbury is right, what injunctions lie and, if no injunctions, what damages in lieu of injunctions?

[211]On the conclusions, I have reached, Cuthbury is not entitled to any relief, and therefore cannot be entitled to an injunction or to damages. In case the matter goes further, however, I will say something briefly on the question of whether or not I would have granted any injunctions in favour of Cuthbury if I had found that it owned the ransom strips which it claims.

[212]This question brings into play the decision of Richard Arnold Q.C. (as he then was) in Site Developments (Ferndown) Limited v. Barratt Homes Limited [2007] EWCH 415 (Ch) in which (ironically) SDF sought to exercise its rights in a ransom strip against Barratt Homes. In considering whether the Defendants should have summary judgment, the Deputy Judge considered the authorities on refusing injunctions where a right is established but it would be oppressive to enforce the right by injunction, and decided that he would not (on what he then knew) have granted an injunction in that case, where the effect would have been to require the demolition of 15 houses and the land-locking of a further 19.

[213]As Mr Arnold QC summarised the position, the numerous modern cases are simply an application of the well known principles laid down in Shelfer v. City of London Lighting Co Ltd

[1895] 1 Ch 287

where it was held that, where a claimant’s legal right has been invaded, he is prima facie entitled to an injunction, and it would only be in exceptional circumstances that the Court would exercise its discretion to award damages in lieu of an injunction. AL Smith LJ said at pages 322 to 323, however, that it was a good working rule that damages in substitution for an injunction might be awarded where:-(1) The injury to the plaintiff’s legal rights is small;

(2) That injury is capable of being estimated in money, and being adequately compensated by a small money payment; and

(3) The case is one in which it would be oppressive to the defendant to grant an injunction.

[214]In this case, as in SDF’s previous case, the key question is whether the grant of the injunction would be oppressive. So far as SDF is concerned, however, the boot is here on the other leg. There, it was SDF that had the ransom strip and were saying that an injunction should lie. Here, SDF say that it would be oppressive for such an injunction to be granted in favour of Cuthbury. This case seems then to have something of the biter bit about it.

[215]All that said, however, and having considered the authorities cited by the parties and by Mr Arnold QC, I am quite satisfied that I would not have granted Cuthbury an injunction against the Claimants in this case, even if it had been successful in establishing its legal right to ABCD, ABE and/or the Sliver and/or XYZ. All AL Smith LJ’s tests are satisfied in this case, and in particular it would have been oppressive to grant such an injunction to restrain access to the Purple and Brown Land from the Orange Land. In addition, Mr Simester told me that the litigation was about money, and this militates against the grant of injunctive relief.

[216]I have dealt with the injunction against accessing the Brown and Purple Land, because that is really the main one sought. But I would also not have granted any mandatory or other injunctions to prevent the use of the surface water sewers, to restrain the connection of other services or to enforce the restrictive covenants.

Issue 13: If the Claimants are right, what injunctions and/or damages should lie?

[217]In both September 2006 and October 2007, Cuthbury has violated the Claimants’ legal rights to use the access to the Orange Land, and it has attempted to violate the Claimants legal rights to connect into surface water sewers and other services under the public highway. Accordingly, the Claimants are entitled to damages for the trespasses committed by Cuthbury. I have been asked to assess those damages on the evidence before me.

[218]It is accepted that the annual value of the Blue Land was £5,000, and CREL claims £5,000 per annum agreed from early 2006. In response, Mr Wilson says that a claim to adverse possession is not made good until it is adjudicated upon. But it seems to me that the statutory trust existed from early 2006, and, therefore, Cuthbury must pay the value of the Blue Land from that time. Counsel could not give me a date for the actual erection of Cuthbury’s fence on the Blue Land, so erring on the side of caution, I will award CREL £15,000 against Cuthbury for the period up to judgment in respect of Cuthbury’s annexation of the Blue Land. I have not heard detailed argument on whether the possibility that CREL would not have used the Blue Land during the period should reduce the normal measure. It seems to me, however, that Cuthbury’s actions and this litigation must have been extremely disruptive, and there is every reason to suppose that something might have been done with the Blue Land had it not been unilaterally annexed. Moreover, the user principle described in McGregor on Damages 18th edition, 2009, at paragraphs 34-045 might also have been prayed in aid as supporting the award I have made.

[219]The cost of the removal of the breeze-block wall in September 2006, and the 2007 incidents were £428.87 and £2,400 respectively and those sums will be awarded to SDF against Cuthbury.

[220]I am not persuaded that the alleged 2 months delay to the development project and to completion was caused by any tort alleged against Cuthbury. The delay may, in part, have been a function of this claim being asserted, but as has been argued by Mr Wilson, asserting a claim that does not succeed is not the tort alleged against Cuthbury. The same applies to the claim for the hiring of a generator, and for the delays in connecting the electricity supply. I award nothing under these heads.

[221]In addition, I am not prepared to award additional damages for loss of amenity or aggravated trespass in respect of either 2006 or 2007. Though it may not be strictly relevant, it seems to me that these parties were a match for one another, and that Mr Burridge got his own back by improperly dumping the remains of the wall in Mr Simester’s drive.

[222]I therefore award SDF £2,828.87 in damages against Cuthbury, and CREL £15,000 in damages against Cuthbury.

[223]These damages must also lie against Mr Simester, who plainly directed the torts to be committed (see Mancetter Developments Ltd. v. Garmanson Ltd. [1986] 1 Q.B. 1212, per Dillon LJ at pages 1216G-1217G). I am not prepared to award any damages against Mrs Simester, who gave no directions whatsoever for the torts to be committed. Authorising her husband to run the company is not, in my judgment, in the circumstances of this case, enough to make her personally a joint tortfeasor.

[224]It seems to me that the Claimants are entitled to permanent injunctions against Cuthbury and Mr Simester to restrain any further interference with the Claimants’ lawful rights as I have held them to be. But I imagine that these Defendants will, having considered this judgment, offer undertakings in this regard in lieu of injunctions, which undertakings I would be minded to accept.

Relief to be granted

[225]In the above circumstances, the main relief that I propose to grant is as follows, though I will hear counsel on any further or consequential relief that flows from this judgment:-(1) A declaration as to the boundaries of the Orange, Purple and Brown Land.

(2) An order under paragraph 18(2) of schedule 12 to the Land Registration Act 2002 that CREL be registered as the proprietor of the Blue Land.

(3) A declaration that there is no gap between:- (a) The North Eastern boundary of the Orange Land and the public highway known as Mannings Heath Road; (b) The North Eastern boundary of the Purple Land and the public highway known as Mannings Heath Road; and (c) The North Eastern boundary of the Brown Land and the public highway known as Mannings Heath Road. (d) The North Eastern boundary of the Blue Land and the public highway known as Mannings Heath Road.

(4) An order for possession of the Blue Land in favour of CREL against Cuthbury.

(5) A declaration that CREL and Mr Allen have the right of way to access their holdings of the Purple, Brown and Blue Land from Mannings Heath Road over the Orange Land.

(6) Damages in favour of SDF in the sum of £2,828.87 against Cuthbury and Mr Simester.

(7) Damages in favour of CREL in the sum of £15,000 against Cuthbury and Mr Simester.

(8) An injunction restraining (or undertakings preventing) Cuthbury and Mr Simester from interfering with the Claimants’ right of way to access the Purple, Brown and Blue Land from Mannings Heath Road over the Orange Land, and with the Claimants’ rights to connect surface water pipes or sewers on the Orange, Purple, Brown or Blue Land to the surface water sewers under Mannings Heath Road, and with the Claimants’ rights to connect to services under Mannings Heath Road.

Conclusions

[226]For the reasons I have given, the Claimants have been largely successful in these proceedings. I will hear counsel as to the precise form of the appropriate order, interest and costs.

[227]By way of post script, I would like to thank counsel on both sides for their helpful submissions, and to express the hope that the outcome will be accepted by Cuthbury and Mr Simester, so that both sides can move forward with their legitimate business activities without further costly and time consuming litigation. Lengthy and expensive litigation is rarely cathartic, but I hope that on this rare occasion it may prove to be so. Attached Plans There are attached to this judgment coloured copies of the following:- (1). Plan A annexed to the Re-amended Particulars of Claim showing areas ABCD and ABE. (2). Plan 3 annexed to Mr Powell’s report dated 16 July 2009 showing the Sliver. (3). Plan D2 annexed to the Re-amended Defence and Counterclaim showing the area XYZ.