Walton v Spectrum Investments Ltd.

LORD JUSTICE PILL: Lord Justice Lloyd will give the first judgment.

LORD JUSTICE LLOYD: This is a renewed application for permission to appeal in litigation which raises issues as to the true line of a boundary and as to rights of way.

His Honour Judge Howarth conducted a trial of a preliminary issue as to the boundary question, leaving the rights of way yet to be decided. That was pursuant to an order for a preliminary issue made by District Judge Needham. As it seems to me, this is yet another example where, with hindsight, one can see that it was not a good idea to have directed that preliminary issue.

Mr Walton, who was the claimant, and is the respondent to the appeal, owns a property called Finlow Hill Cottage. Spectrum Investments, the appellant and the defendant below, owns Finlow Hill Farm. Along the boundary between those two properties, wherever precisely it lies, there is a track leading roughly east to west and, at its eastern end, joining a public highway. The track provides access from that public highway to buildings at Finlow Hill Farm and indeed fields in that farm, and Mr Walton claims that it has for many years provided a vehicular right of access to the cottage. It is not the only vehicular means of access to either of the two properties. There is, in any event, a public footpath along the track. Between the track and the cottage there is a bank with a hedge at the top of it. The cottage and its garden are at a higher level than the track. We are told by Mr Reynolds QC in his submissions this morning that the configuration of the bank is not such that it would itself constitute a clear boundary feature between the track and the cottage, but that is not a point to which the judge directed his attention. He had had a view of the site so he had no doubt seen how matters stood at that time. I know not what the evidence was, apart from a number of photographs some of considerable antiquity, as to how the bank had stood at times in the past.

In 1938 the cottage and the farm were in common ownership and had been for some hundred years or so. They were both put up for sale at auction in that year and the documents include the auction particulars, plans and some photographs. Neither was sold at the auction. A large amount of the land that had been put up for sale was sold by a private treaty to a particular buyer, including the cottage. That buyer sold the farm by a conveyance on 19 November 1938, which is therefore the relevant conveyance since that was the moment at which the two properties ceased to be in common ownership.

At the trial of the preliminary issue, three boundary lines were in contention. Spectrum contended for the middle of the hedge. Mr Walton contended for the middle of the track; alternatively, the foot of the bank. The judge decided in favour of the middle of the track. Spectrum contends that that is incorrect and that the boundary is the centre of the hedge. The basis for that contention is that the 1938 conveyance defined the land conveyed by reference to Ordnance Survey numbers and to a map derived from the Ordnance Survey map. So, Mr Reynolds submitted, the boundary is in accordance with the Ordnance Survey map, the 1909 edition, and that the recognised Ordnance Survey practice is and was to mark and to take measurements from the mid-point of boundary features such as hedges. In support of that he cited Fisher v Winch[1939] 1KB 666, a decision of this court.

Mr Walton argued, and the judge accepted, that the track was not included in the 1938 conveyance because the relevant parcel was not coloured in the way that it should have been if it was to be conveyed. The judge accepted this, and held that the track was not conveyed to the purchaser of the farm, that it was also not conveyed to the purchaser of the cottage by the conveyance of that property in 1939, but that, being a track and indeed the subject of a public footpath, half of the side of the track went with the farm and half went with the cottage. Mr Reynolds seeks to challenge that conclusion by way of this appeal. Other than that he would invite the court to hold that the boundary was the hedge because of the Ordnance Survey practice.

When the matter came before me for consideration on papers in January, I said that it seemed to me that the appellant had reasonable grounds for saying that the judge may have been wrong as to the exclusion of the track in the 1938 conveyance. I remain of that view. But it does not follow that the hedge is necessarily the right boundary. If a hedge with or without a ditch divides two parcels of land otherwise level so that it is the only obvious boundary feature, Fisher v Winch is no doubt correct and the Ordnance Survey practice would take the hedge, being the boundary feature, as being the boundary. But it seemed to me that in this case the position might well be different, given that the claimant's land is at a higher level than that of the defendant, and that the hedge is within the area which is at the higher level. It seemed to me that there might be a powerful case for saying that the obvious boundary provision would have been the point at which the level of the ground changed or started to change - thus either at the top, or, perhaps more likely, the bottom, of the bank.

The judge did not consider this possibility which did not arise if his construction of the 1938 conveyance was right. He did not, therefore, make findings of fact as to the configuration of the bank either at the time of the trial or at any previous stage which he might have done if he had considered that his conclusion on construction might have been held to be wrong on appeal so that the issue as to boundary lay between the middle of the hedge and some other point such as the bottom of the bank. Accordingly, if Mr Reynolds' submissions were right and the judge was wrong, the question would remain whether the boundary line is the hedge, following Fisher v Winch and the Ordnance Survey practice, or is a line such as the bottom of the bank. If the latter, it will no doubt be difficult to define exactly where it was either in 1938, or perhaps theoretically in 1909 at the time of the Ordnance Survey. But that is a problem that would have to be faced.

At the stage of considering the matter on paper, it seemed to me that the real issue in the litigation was not by any means really the question of the boundary, but rather the question of rights of way over the track. Mr Walton, as I say, claims a vehicular right of way over the track for access to the cottage which is important to him for certain purposes such as clearing out a septic tank. If Spectrum owns the whole track, then even if there is an issue as to the precise boundary, whether it is somewhere on the bank or the hedge, they will be able to have full vehicular use of the whole track. If the judge is right and they only own half the track, the question arises whether they have vehicular rights of way by prescription over the half of the track that they do not own. That is the question that has not yet been raised but would have to be addressed on the basis of the judge's decision. I should say that Mr Elleray QC, who acted and continues to act for the respondent, put in some written observations in the course of which he appeared to concede that Spectrum would have rights of vehicular access over the half of the track that they do not, on the judge's decision, own, but Mr Reynolds said that that should not necessarily be taken at face value because there has been some to-ing and fro-ing between the parties, partly as a result of a direction that I gave on paper that mediation should be attempted (it was, but was unsuccessful), and in the course of those dealings apparently the respondent was not willing to concede that the appellant has a full vehicular right of way for all purposes over any part of the track that it does not own.

The question whether Mr Walton has a full vehicular right of way remains whatever the answer may be as to the boundary. If the judge is right, as I say, an additional question as to vehicular rights way arises, namely whether Spectrum has such a right of way.

There have also been issues between the appellant and the highway authority arising from the presence of the public footpath along the track. That is logically separate from the present dispute, although the judge's decision as to ownership would complicate the position of Spectrum in maintaining the position that apparently, under an agreement in 1999, it was able to achieve, namely a fencing off of 2 metres of track and perhaps part of a verge so as to allow an adequate area for the exercise of the public rights of pedestrian access, as to use of the footpath, while also allowing separate width for vehicles. But that is separate from the present matter and it ought not, in my judgment, to influence the decision on this application.

I would approach the present application on the basis that on the one hand the judge may well have been wrong in his decision about the middle of the track, but that there is a serious prospect that the appellant may be unlikely to show that the boundary runs through the middle of the hedge; but, more importantly, that whatever the answer is on that, the much more important question is as to rights of way. If Mr Walton does have a full vehicular right of way over the track that would, in effect, prevent Spectrum from putting up a fence half-way across the track. If Mr Walton does not have any vehicular rights of way, then the presence of the fence half-way across the track may not matter to Mr Walton, although it might still matter to the Highway Authority.

Mr Reynolds submits that the appeal should be allowed to proceed at this stage and in any event because it has raised and answered the question that was, for good or ill, identified as a preliminary issue, and if the appeal were allowed then even if a question remained open as to precisely where, between the track and the cottage, the boundary lay, one question would be eliminated, namely, whether Spectrum had rights of way with vehicles over the part of the track they did not own. That is a perfectly fair point. On the other hand, since it seems to me that Mr Walton's claim to a vehicular right of way is in any event outstanding and would of itself be a great deal more important, as I think Mr Reynolds accepts, than the precise line of the boundary, I have been attracted by a course urged on this court in his written submissions by Mr Elleray, namely, that the appeal should not be allowed to proceed until the question of the right of way has been resolved.

The position is, of course, a little complicated, because if that course were taken the first instance judge, who will not in any event be Judge Howarth because since this trial he has retired, would have to address the question on alternative bases. He would have to address the question both on the basis of the finding that Judge Howarth made as to each party owning half of the track naturally, but also on the alternative basis for which Spectrum contends on this appeal, namely, that Spectrum owns the whole of the track.

The fact of those two alternative bases having to be addressed, one of them being contingent, would be a complicating factor but not a very unusually complicating factor because if, as perhaps would have been better, all issues of boundaries and rights of way had been tried together, the judge, if he was acting sensibly, would have determined both issues and would have made all the necessary findings of fact so that if either or both of his decisions was held to be wrong on appeal it would not be necessary for the matter to be sent back for further findings of fact to be made.

Accordingly, the fact that the judge at the later first instance trial would have to be considering two alternative bases does not seem to me to be a reason for not taking up Mr Elleray's suggestion in that respect.

There is the further complication which is that it is possible that if the rights of way are determined in a particular way which leaves the boundary a real question (which is likely to be only if Mr Walton loses his claim to vehicular rights of way) and if then this appeal is pursued and results in Spectrum establishing that it owns the whole of the track but being unable (because of the absence of findings by Judge Howarth) to satisfy the court as to precisely where the boundary lies, there might have to be a remission for a yet further decision at first instance as to whether it is one side of the track or further up the bank, namely at the hedge. That would be extremely inconvenient and unattractive. But given on that footing the extremely limited significance of the question, and despite the fact that the parties, despite genuine efforts, have been as yet unable to resolve the question by agreement, I am not deterred from the course proposed by Mr Elleray by the possibility of a yet further first instance dispute.

Accordingly, it seems to me that the appropriate course would be to adjourn the application which is before us generally and to stay proceedings on this appeal until the question of the claimant's claim to be entitled to a vehicular right of way of the track has been determined at first instance, together with (if Spectrum wishes, as I imagine it will) the question of whether Spectrum is entitled to a full vehicular right of way over any part of the track which it does not own. The Spectrum claim only arises, of course, on the footing that the judge was right. Mr Walton's claim would have to be determined both on the basis that the judge is right and on the basis that the judge may be wrong and that the whole of the side of the track belongs to Spectrum.

As I see it, that question is most unlikely to make any difference to the question of the claims to vehicular rights of way. Accordingly, although it slightly complicates the task that the judge will have to undertake, it does not seem to me that it makes it more difficult other than that he will have to express his conclusions on alternative bases.

I see force in Mr Reynolds' submissions, that even if the preliminary issue was a mistake, it has been pursued and a decision has been come to which may well be, at least in part, wrong, and that the right course, having embarked on the preliminary issue procedure, is to get that question right before moving on to the second question. But it seems to me that the right of way claims are so much more important than the boundary claims that the appropriate course is that which I have indicated. Accordingly, the order I would make is to adjourn the application and to stay proceedings on the application generally until the question of the claimant's claim to a vehicular right of way has been determined at first instance with liberty to all parties to apply in the meantime.

LORD JUSTICE PILL: I agree with the course proposed by my Lord, Lord Justice Lloyd.

The important issue between the parties in practical terms is as to vehicular right of way over the track. Mr Reynolds QC in his submissions stated that the hedge is in no way as important as the track. Following earlier attempts at mediation, the issues would appear to be capable of resolution, and I would encourage further efforts by the parties to agree a sensible and mutually acceptable outcome without further reference to the courts. If they do not do so I would not give any indication whatever as to the strengths of the cases of the parties as to vehicular rights of way. This issue has not been addressed by the court. No sufficient evidence is available on which even the most preliminary view could be formed.