Cook v Bates

J U D G M E N T

1. LORD JUSTICE JONATHAN PARKER: This is an application by Mr and Mrs Bates, the defendants in the action, for permission to appeal against an order dated 27 February 2004 made by Mr Recorder Bullock in an action brought against them by Miss Nicola Cook, and for an extension of time in which to appeal.

2. The applicants live at 15 Blakeston Road, Billingham, Cleveland. Miss Cook lives at 13 Blakeston Road. No 13 Blakeston Road is a semi-detached house at the end of a line of houses stretching to the west and fronting on to Blakeston Road. To the east of No 13 and forming the end of another line of houses stretching to the east and also fronting on to Blakeston Road is No 15. Between Nos 13 and 15 there is a driveway or path leading to the rear of the properties.

3. According to the Land Registry maps of the respective titles, the boundary line between No 13 and No 15 lies down the middle of the driveway or path. The map also indicates that at some time in the past there were two structures (presumably garages) lying each side of the boundary towards at the rear of the properties. Whether or not such garages ever existed, the evidence is that for many years there has only been one garage to the rear of the two properties. That garage was constructed by Mr Bates, the first named applicant, in the 1970s. It was common ground before the judge that as to part of its length - about a quarter of a metre - it extends beyond the boundary on to No 13. Moreover the garage is positioned further to the south, that is to say nearer to the road than the structures shown on the Land Registry plans, and, in consequence, it is not possible for a car to reach to the rear of No 13, the gap between the south west corner of Mr Bates' garage and the north east corner of the house at No 13 being too narrow to allow a vehicle to pass through. Also in the 1970s, I think, Mr Bates erected a wooden fence and gate across the driveway, the gate leading to the rear of No 13 being wide enough only for pedestrian use.

4. Miss Cook, who has recently purchased No 13, wishes to construct a garage to the rear of her property and to use the driveway or path leading from Blakeston Road, including the easterly part of it, to get to and from it with vehicles.

5. In the action, Miss Cook alleges that the wooden fence and gate and - to the extent that it encroaches over the boundary as shown on the Land Registry plans - the garage obstruct her general right of way over the easterly part of the driveway leading to the rear of No 13. She also complains about the parking of a speed boat and trailer on the driveway. By his order, the judge ordered the applicants to remove the wooden fence and gate and to remove so much of the garage as, on the basis of the Land Registry plans, encroaches on to No 13.

6. The conveyancing history is very briefly as follows. In the 1970s, Nos 13 and 15 were council houses in the ownership of Stockton-on-Tees Council. No 13 was occupied by Mr Hall and No 15 by the applicants, in each case as council tenants. On 21 September 1981 the applicants bought the freehold of No 15 from the council pursuant to the right-to-buy scheme. The Transfer granted the applicants a general right of way over the westerly part of the driveway, forming part of No 13, and reserved to the council a general right of way over the easterly part of the driveway forming part of No 15.

7. In 1989 Mr Hall bought the freehold of No 13 from the council. The Transfer was subject to the right of way granted in favour of No 15 by the earlier Transfer, and it created a general right of way over the easterly part of the driveway, that being the right of way reserved to the council in the earlier Transfer.

8. In 1993 Mr Hall sold No 13 to Mr Horsman who, in turn, sold it to Miss Cook on 28 February 2002. In each case the Transfer included a right of way over the easterly part of the driveway.

9. At the trial both parties were represented by counsel. Mr Bates' evidence was that Mr Hall had agreed with him back in the 1970s, when they were both still council tenants, that he, Mr Bates, could build the garage in the position in which it was in fact built, notwithstanding that it encroached on Mr Hall's land. In paragraphs 3, 4 and 5 of his witness statement Mr Bates says:

"3 At the same time Mr Hall was happy to agree that the gatepost on which my gate was attached was to mark the boundary between the properties, was happy to have a small gate on his part of the driveway, for pedestrian use only, and along which to ride his pedal cycles. Mr Hall told me at the time that he had no further use for the rest of the driveway and that I could do with it what I wished.

4 I always took Mr Hall's words to mean that he was giving up for ever the right of way which he has over my half of the passageway between the two properties but also that he was giving up ownership and any right over his own half for the narrow strip that I had described over which he would ride his pedal cycle and walk to the rear of his property.

5 Relying on my discussions with Mr Hall, and the position of the gates and fences, I extended my garage at the rear of the property. I will say that no one has challenged that situation for all those years, no one for example had sought to exercise the right of way granted and reserved in the Transfers of the two properties, no one had asked me to make any payment to them and no-one has ever told me to get off the land or unblock the accessway or take down my garage until the claimant purchased the property next door."

The judge appears to have accepted Mr Bates' evidence, but he concluded in paragraph 3 of his judgment that it was -

"simply an agreement between Mr Hall and Mr Bates. It did not confer any rights in land to anybody."

The judge further concluded in paragraph 5 of his judgment that the boundary between the properties was as shown on the Land Registry plans. In paragraph 6 of his judgment the judge said:

"What that means in layman's terms is that the area that is covered by the rights of way, which is coloured blue and brown on the respective plans, can only be used for the passage and re-passage of vehicles or pedestrians. It cannot be used for the storage of anything. I am told that there is now or has been for some considerable time a speed boat parked in this area of land and that is completely against the propositions that are in the deeds. But, as I have said in the course of argument, the crucial importance of Mr Hall buying the land in 1989 meant that any adverse possession that might have been running then stopped because then, of course, it becomes Mr Hall's consent to the garage to be on his land and there is no question of any adverse possession in this case. Absolutely none."

Later in judgment, after an interruption by Mr Bates, the judge said:

"There is no evidence that the rights of way that No 13 have, have ever been released or extinguished at all, so my finding is that those rights of way remain and that, therefore, the proposition put forward by the claimant, in my view, must succeed."

10. In my view, however, it is properly arguable that in the light of Mr Hall's agreement and the evidence that the right of way with vehicles to the rear of No 13 has not been used for very many years, the right of way with vehicles in favour of No 13 has been abandoned. It also seems to me that it is at least arguable, on the facts as I have briefly summarised them, that Mr Bates may have established a possessory title, that is to say a title by adverse possession, to so much of the land forming part of No 13 as comprises the site of his garage. There may also be an argument available to Mr Bates based upon proprietary estoppel although that does not appear to have been argued before the judge. At all events, I conclude that there are arguable issues here which justify the grant of permission to appeal.

11. I turn, then, to the application for an extension of time in which to appeal. The progress of this litigation has been bedevilled by delay on the part of the applicants. At one stage they were debarred from defending the action altogether. Moreover they were some 67 days out of time in filing their appellant's notice.

12. In all the circumstances, however, I am prepared to take what may be an exceptional course in granting the necessary extension of time.

13. I will also grant a stay of the orders which the judge made and of any enforcement of those orders pending the hearing of the substantive appeal.

14. There is one further matter. The transcript of the proceedings before the judge illustrates the degree of feeling which this kind of dispute may engender. It is plainly in everyone's interest that finality be achieved as soon as possible, and, accordingly, I propose to direct expedition for the hearing of this appeal.

15. Mr Bates, I have granted you permission to appeal. Expedition means the appeal will come on quite quickly.

Order: Applications granted, matter to be heard with expedition with time estimate of 2 hours. (The court indicated that an agreed scale plan would be helpful).

You indicated at end of the proceedings: "What I will direct is that you have a transcript of this hearing at public expense and you can take the transcript when you have got it to where you think might be the right place to take it in order to get, if possible, an agreed scale plan."

Do you mean Mr Bates to have a copy of judgment or discussion after judgment?