J U D G M E N T

Friday, 7 November 2003

1. LORD JUSTICE CHADWICK: This is an adjourned application for permission to appeal from an order made by Rimer J on 19 May 2003 in proceedings brought by Mr Brian Hayes and his wife, Mrs Doreen Hayes, against the London Borough of Merton.

2. Mr and Mrs Hayes are the owners of property known as No.79b Melbury Gardens, London SW20. No.79b forms the rear part of a larger house formerly in the ownership of the local authority, or its predecessor. The front part of that house is now known as No.79a. It is now in the ownership of Mr and Mrs Pedersen. Both the Pedersens and the Hayes derive their title from the borough. The Pedersen's title has its root in a transfer on sale by the borough dated 7 November 1983. The transfer conveyed to the transferee the driveway which served both Nos.79a and 79b. In order to get to No.79b it was necessary to walk over the driveway. Accordingly, and unsurprisingly, the transfer of 7 November 1983 reserved a right of way to the borough, as transferor, for the benefit of its retained property, No.79b.

3. Subsequently, No.79b was sold to Mr and Mrs Hayes by the Borough. That transfer, dated 23 October 1989, included an easement over the driveway of No.79a. It might have been expected that the easement granted in the transfer of 23 October 1989 to Mr and Mrs Hayes would correspond with the easement reserved out of the transfer of 7 November 1983. But the transfer of 23 October 1989 was not drawn with proper care; and, in the result, it has been contended that the transfer of 79b did not give a right of way over the land (or all of the land) in respect of which the reservation had been made in 1983. Rather, it purported to grant a right of way over land which had not been the subject of that reservation.

4. That mismatch gave rise to a dispute between the Hayes and the Pedersens. But Mr and Mrs Hayes did not bring proceedings against the Pedersens. They chose to sue the borough in proceedings brought in the Chancery Division. Those proceedings, to which the Pedersens were not party (because neither the Hayes nor the borough appreciated that it would be sensible that they should be) were compromised by a Tomlin order made between the Hayes and the Borough. That order defined an agreed route of the right of way and imposed an obligation on the Council to mark that route by lines in the roadway and, (if the Pedersens could be persuaded to agree) by marks on the driveway.

5. Surprisingly, nobody seems to have thought it sensible to ask the Pedersens whether they agreed the route before that arrangement was made. In the event the Pedersens did not agree. There was a dispute as to what the effect of the Tomlin order was. The parties went back to the judge in order to ask him to construe the agreement which the Hayes and the borough had made in the Tomlin order.

6. The judge acceded to that request and construed the Tomlin order in the sense for which the Hayes were contending; that is to say, in a sense which was not acceptable to the Pedersens. The judge commented on the futility of that exercise in paragraph 18 of his judgment. He said this:

"The Pedersens are not parties to this litigation and one of the odd features of this case is that, despite that fact, the schedule sought to devote itself in part to identifying the precise line of Mr and Mrs Hayes' right of way over the Pedersens' property. It may well be that the Pedersens will wholly disagree that the first sentence of paragraph (6) of the schedule correctly identified the line of the right of way and, if so, I cannot see why they should not be fully at liberty to dispute the matter. Agreement between Merton and Mr and Mrs Hayes about it seems to me to be of little real value in practical terms. What counts is that there should also be an agreement between Mr and Mrs Hayes and the Pedersens, and so I doubt that my ruling is likely to be of much real value for the practical purposes of future peaceful co- existence between Mr and Mrs Hayes and the Pedersens. For that reason I regard the application before me as having been a less than useful exercise..."

But, nevertheless he held - as he said, for what it might be worth - that as between the borough and Mr and Mrs Hayes the relevant paragraph in the Tomlin order had the meaning for which the Hayes contended.

7. The difficulty which has arisen from that decision - as the judge foresaw - is that the Pedersens do not agree that the right of way over their land follows the line which the judge has held to be the line agreed between the borough and the Hayes in the Tomlin order. There is no reason why they should agree that. Nobody has asked them to have any input into this litigation.

8. Notwithstanding the judge's view that his ruling was unlikely to have any real value for the practical purposes of peaceful coexistence - and that the application before him was a less than useful exercise - the borough now wants to re- litigate the matter in this court. It will be of no more practical value and of no more use for this court to decide the issue unless this court happens to come to a conclusion with which the Pedersens (who will not take part in the appeal) are prepared to accept. If the court comes to the conclusion that the true meaning of the agreement made in the Tomlin order is that the right of way follows a line which the Pedersens will accept, that decision might bring this dispute to an end. But it would be no more than a happy coincidence if the court were to reach that view. That is because the court would be addressing its mind to what was the true effect of the agreement in the Tomlin order. It would not be addressing its mind to the real question: what is the combined effect of the transfers of 1983 and 1989?

9. If the Pedersens and the Hayes are unable to live together in sufficient harmony to enable the Hayes to get to their property on foot - whilst still enabling the Pedersens to park their car where they want to park it - then there will have to be litigation between them. Either the parties will seek a declaration as to where the true right of way actually is; or one will sue the other in trespass. It appears that the Pedersens allege the Hayes are trespassing on land over which there is no right of way; and that the Hayes allege that their right of way is blocked by the Pedersens, itself a trespass. It is difficult for this court to understand why - when on the face of the plan there is plenty of room both to park a car and to walk round it - it is necessary to spend money on resolving that dispute. But, no doubt, there are tensions between these neighbours which they think worth ventilating by the expenditure of money on court proceedings even if that does not produce any practical results. If they have to litigate, they can do so in the county court. There is no purpose in this court hearing an appeal from the order of Rimer J; because there is no reason to think that the outcome of an appeal will be of the slightest practical value to the real parties to the dispute.

10. For my part, therefore, I would refuse this application. I would go further and say that if there is to be litigation in the county court between Mr and Mrs Hayes and Mr and Mrs Pedersen it would be sensible for the present proceedings to be remitted to that county court. The London Borough of Merton and the Hayes can then decide whether there is really any purpose in having a Tomlin order which does not reflect the position (whatever it may be) which the county court has held to be the true position under the transfers. I propose that we refuse the application for permission to appeal. But, if invited to do so, we will reconsider whether it would not be more appropriate to set aside the judge's order and remitting the matter to the relevant county court.

11. SIR CHRISTOPHER STAUGHTON: I agree.

(Counsel addressed the court).

12. LORD JUSTICE CHADWICK: In order to achieve that result, we will, formally, grant permission to appeal, treat the appeal as before us, and vary the order but only for the purpose of staying the Tomlin order. We vary the order by staying further proceedings to enforce the Tomlin order; both sides are to have liberty to apply.

(Application granted; appeal allowed; the applicants are to pay the costs of Mr and Mrs Hayes assessed in the sum of £2,158.50; no order in relation to the costs of the Pedersens).