Betterment Properties (Weymouth) Ltd v James Carthy & Company Ltd

This appeal, brought with the permission of Mummery LJ, is against an order made on 20 January 2010 by His Honour Judge McCahill QC in the Chancery Division, Bristol District Registry. The order followed his extempore judgment delivered on 9 December 2009 after the trial of a claim and counterclaim. The issue before the judge was whether the claimant/appellant, Betterment Properties (Weymouth) Limited (‘BPL’), has public rights of way over a strip of land (‘the disputed strip’) owned by the defendant/respondent, James Carthy and Company Limited (‘JCC’), and lying between BPL’s land and a made-up road that is indisputably a public highway.

The judge’s conclusion was that BPL has no such rights. By his order he made a declaration as to the line of the boundary between the parties’ respective properties (which had originally been in dispute, but was not by the trial, the parties having by then reached agreement as to the boundary), dismissed BPL’s claim, made no order on JCC’s counterclaim save for permitting it to restore any claim for damages or an injunction and ordered BPL to pay the costs of the proceedings. He expressly declined to make a declaration as to the extent of the public highway because the highway authority was not a party to the proceedings and the parties, despite his suggestion, had declined to join it.

BPL’s appeal challenges the judge’s order. The practical result it seeks to achieve is a decision that the disputed strip, like the road that adjoins it, is land over which there are also public rights of way, so that BPL can access its land via the road and disputed strip. That is the key to the unlocking of BPL’s ability to develop its land. BPL was represented before us by Paul Cairnes, as below; and JCC by Guy Adams, as also below.

I must summarise the facts, which I take from the judge’s judgment, as supplemented by the documents. The witness statements before the judge were unchallenged and he heard no oral evidence.

On 24 October 1978 Wickens Building Group Limited (‘Wickens’) bought two fields to the east of Musbury Road, Axminster, Devon. The price was £20,000. Wickens’s subsidiary, Trivett & Company Limited (‘Trivett’), builders, then developed the fields by constructing a residential estate comprising something over 20 houses. The development included the construction of a road forming a dogleg across the estate, with its south-western end forming a junction with a public highway called Woodbury Lane. Our focus of interest, however, is on its eastern end.

The managing director of Trivett was James Carthy and he was in control of the development works. The construction of the road, which was called Dukes Way, was completed in 1982. An inspection of it by the highway authority (the Devon County Council, hereafter ‘the Council’) took place on 28 October 1982, following which Trivett erected a 1.8 metre high fence beyond the kerbstones that marked its eastern end. That fence lay well to the west of what was later agreed to be Wickens’s eastern boundary with the neighbouring land then belonging to the Wyatt family; and Mr Carthy’s evidence was that at that stage the precise line of that boundary was uncertain. There was a ditch immediately to the east of, and parallel to, the fence.

In 1983, following an agreement between Mr Carthy, Mr Derek Wyatt and his surveyor as to the line of the boundary, a post and barbed wire fence marking it was erected on the eastern side of the ditch. The judge found that the disputed strip is broadly represented by an area of trapezoidal shape lying between the 1.8 metre high fence and the boundary so agreed and being approximately 10 metres wide and with sides of approximately three and five metres. It is agreed, as the judge declared, that it was within Wickens’s title.

Wickens went into administrative receivership in the 1990s. In November 1996 JCC, a company owned by Mr Carthy, purchased from the receiver the unsold rump of the land originally purchased by Wickens. That rump included Dukes Way and the disputed strip. JCC became and remains the registered proprietor of the land it bought (Title No DN80448).

In 2002 Kelson Associates Limited bought the Wyatt family’s land. When the sale was being negotiated, the vendors disclosed in response to pre-contract inquiries that there were believed to be ransom strips blocking access from the land to Dukes Way and Bruneberg Way (the latter offering another possible access to the land). The judge found that the access problem was, therefore, probably known by Kelson, which claimed however that the Area Highway Engineer had confirmed to it that the public right of way over Dukes Way extended right up to the boundary of the land that it had bought.

On 22 May 2002 BPL completed its purchase, for some £1.4m, of Kelson’s land; and on 20 July 2002 it was registered as the proprietor (Title No DN456686). So it was that BPL and JCC became neighbours, leading to JCC’s opportunity to exploit the disputed strip as a ransom strip. BPL completed its purchase with express notice that JCC claimed to own the disputed strip: JCC had explained the position to BPL’s solicitors by a letter of 2 April 2002.

Dukes Way – the road constructed by 1982 -- is a public highway but I must explain how it became such. On 30 June 1981 Wickens entered into an agreement with the Council, as highway authority, pursuant to section 38 of the Highways Act 1980. The material provisions of section 38 are as follows:

By the agreement Wickens agreed to construct an estate road to a standard acceptable to the Council, and then to dedicate it to the public as a highway albeit not one maintainable at public expense. At the end of a 12-month defects period, if the Council was satisfied with its construction, it would adopt it whereupon it would become maintainable at public expense. In 1982, following the construction of Dukes Way, it was dedicated and accepted as a public highway not maintainable at public expense; and in May 1984 it was adopted as a public highway that wasso maintainable. The issue before the judge, and now before us, is whether the road so dedicated, accepted and adopted included the disputed strip. There is of course an obvious physical difference between Dukes Way and the disputed strip. The former is a made-up road, whereas the latter forms no part of it: it is simply a piece of land lying beyond the kerbstones at its eastern end.

The terms of the June 1981 agreement (‘the agreement’), in particular recital (2), are central to the argument. After reciting that the Council was the local highway authority for Devon for the purposes of the 1980 Act, the recitals continued:

The operative parts included elaborate provisions as to Wickens’s obligations, which for the most part it is unnecessary to cite in full. Clause 1 obliged it to ‘construct sewer level pave metal kerb flag channel drain light and otherwise make good … the street in the position(s) shown on the said plan … or in such other position(s) as may be agreed in writing … in accordance with the Council’s specification …’. Clause 2 required it ‘with all due diligence and to the reasonable satisfaction of the Engineer [to the Council] … [to] carry out and complete the works in such sequence as the Engineer may direct …’; and, during the progress of the works, to give to the Engineer ‘free access to every part of the street and of the site thereof and permit him … to inspect the same and all materials used or intended for use therein and shall afford reasonable facilities to the Engineer for this purpose by giving notice to [him] at least one week and not more than three weeks before the commencement of each of the following stages of construction’, and nine stages were then listed. Clause 4 provided that until the street should become a highway maintainable at public expense ‘as hereinafter provided’, Wickens ‘shall keep it and the several parts thereof in a reasonable state of repair … and shall reinstate and make good any defects in the works which shall or may appear to arise or become manifest to the Engineer …’.

Clauses 5 and 6 are important and provided:

Clause 12 provided for Wickens, upon the execution of the agreement, to furnish the Council with a bond in a sum representing the Engineer’s estimate of the cost of carrying out and completing the works required to be performed by it; that upon the issue of the Engineer’s certificate pursuant to clause 5(a) or (b), the Council should have the power to agree to a reduction in the amount of the sum secured; and that upon the street becoming a highway maintainable at the public expense, the bond should be released.

The plan annexed to the agreement (referred to in recital (2)) was drawn by the Ainsworth Evans Partnership, a firm of architects and planning consultants, and dated 19 March 1980. It was drawn to scale, its subject matter was described on it as ‘roads and drainage’ and it showed the location of the proposed road running from the south-western junction with Woodbury Lane to an eastern terminus at the point where it met the red edging also referred to in recital (2) (which edging was referred to in the argument as, and I shall call, ‘the red line’). What the red line represented was central to the argument.

The evidence did not include any notices or certificates of the nature referred to in clauses 5(a) and 6(b) of the agreement; or any other documents proving precisely what land was the subject of Wickens’s dedication under clause 5(a) (that is, whether such dedication was confined to the newly made-up road, or included the disputed strip or any part of it).

The only documents in evidence contemporaneous with the works were three letters from the Council to Wickens or Trivett. The first, dated 30 June 1982, from the Area Engineer (East), Mr Heptinstall, to Trivett, replied to a Trivett letter of 16 June 1982 and confirmed that, as requested, the ‘roads and footpaths’ on the estate would be accepted for maintenance prior to the completion of houses 1 to 7. The judge interpreted that as reflecting the Council’s preparedness to consider some certification process ‘albeit in part and certainly before all the houses had been completed.’

The second letter was dated 13 December 1982 and was from Mr Rogers, for the Council’s solicitor, to Wickens’s managing director. Mr Rogers wrote:

The third letter, also from Mr Rogers to Wickens, was dated 31 May 1984. It said:

The judge summarised the background against which the agreement came to be made. An outline planning permission for the development of Wickens’s land was granted to its predecessors on 25 August 1977, of which condition 9 stipulated that:

On 10 January 1980, David Evans (chairman and managing director of Wickens) wrote to Wickens’s solicitors:

The detailed plans for the development were approved on 22 July 1980, but did not, the judge considered, include the plan attached to the agreement.

The agreement was signed on 30 June 1981. The judge also summarised certain events subsequent to its signing. On 28 October 1982 the Council inspected the new road and considered it satisfactorily completed, so triggering the 12-month defects liability period. As I have related, in late 1983 Mr Carthy agreed with Mr Wyatt the line of the eastern boundary separating Wickens’ land from the Wyatt family’s land, which was followed by the erection on it of the post and wire fence; and there was unchallenged evidence from Mr Carthy that until then there had been uncertainty as to the line of the boundary. On 31 May 1984 the Council confirmed the expiry of the defects liability period and so enabled the cancellation of the bond. JCC’s purchase of the unsold rump of Wickens’s land followed in 1996, and the charges register of the title to its land included an entry recording that the land was bound by the agreement, which was summarised as relating to ‘the making up and adoption of streets drains and grassed areas therein mentioned.’

The plan annexed to the agreement was drawn to scale such that it was possible, as was in fact done, to identify the line of the red line on the ground. It was common ground at the trial, as before us, that its position in relation to the eastern end of the newly constructed road was represented by a white line marked on a photograph in evidence. It is sufficient to note that the white line lies to the east of the made-up road, but within JCC’s land; and that JCC’s eastern boundary with BPL’s land lies yet further to the east of the white line. It may be convenient to regard the white line as bisecting the disputed strip and to refer (i) to the western section of the disputed strip between the road and the white line as ‘section A’; and (ii) to the eastern section between the white line and JCC’s eastern boundary as ‘section B’. If BLP was to succeed at the trial, it had to show that it had public rights of access over both sections A and B of the disputed strip: only then could it access Dukes Way.

BPL’s main proposition was that the agreement, interpreted in the light of its annexed plan, required Wickens to dedicate as a highway, and the highway authority to accept, a road running the whole way to the eastern boundary of its land comprised in Title No DN80448. The judge explained how that argument was developed by reference to the terms of the agreement and the background against which it was made. BPL’s second proposition was that it would be commercially absurd to interpret the agreement and plan so as to confine the dedication of the highway to the limits of the made-up road and footpaths. The precise line of the boundary between the adjoining pieces of land was uncertain until the boundary agreement of 1983. How, therefore, it asked rhetorically, could the Council know where the boundary was if its line remained uncertain until then?

JCC’s case was that there was no basis for concluding that the agreement even potentially required a road running across the entirety of Wickens’s land to its eastern boundary. The annexed plan showed that the intended road extended only to a point – viz the red line -- lying short of the boundary with BPL’s land (i.e. only to the white line). Further, the inference was that only the road as constructed, with its bordering footpaths and kerbstones, was dedicated and accepted, and so only that road became the highway. That road included no part of the disputed strip.

The judge’s conclusion was that the plan annexed to the agreement showed no more than a plan of a proposed road. It was not definitive as to its length. At the time of the construction of the road there were uncertainties as to the line of the eastern boundary of Wickens’s land; and in any event the agreement provided that the location of the road could be varied with the highway authority’s permission. In addition, Wickens knew that the Council intended that there should be no ransom strip, which supported the conclusion that the Council could (i) have insisted on the construction of the road right up to Wickens’s eastern boundary; and (ii) have refused to accept the dedication of the road as actually constructed on the basis that it did not go far enough east. The judge therefore, in agreement with BPL, interpreted the recitals to the agreement and annexed plan as referring to a proposed road that would extend the full way to Wickens’s eastern boundary.

In the event, the Council did not insist on the road being constructed up to this boundary but approved it as actually constructed. In the judge’s view, the operative terms of the agreement showed that it was ‘the constructed and finished job which one has to look at when considering what is dedicated.’ He emphasised that only Wickens could dedicate the road as a highway: the Council could not take it from Wickens unless it was dedicated. The Council could refuse to certify; and only the Council could certify satisfactory completion at the start and end of the defects liability period. It could, if it chose, also insist that the full measure of the agreement be honoured and to refuse certification unless it was. The real question, said the judge, was as to what was in fact offered for dedication, not what Wickens historically had proposed to build and dedicate. Recital (4) of the agreement recited no more than that Wickens proposed to dedicate the road to the public ‘after the construction and completion thereof in accordance with the provisions hereinafter contained.’ The emphasis there was on what was being offered for dedication after construction. The judge’s conclusion was that all that was dedicated was the constructed road. That meant that no part of the disputed strip was also dedicated.

For BPL, Mr Cairnes advanced a submission crucially dependent upon what he said was the true sense of the recitals to the agreement. He said that the red line on the annexed plan was intended to identify the eastern boundary of Wickens’s land and that the intention was to construct and dedicate a road that ran the whole way to that boundary. The judge agreed with Mr Cairnes as to that. But the correctness of his conclusion in that respect was put in issue by JCC’s respondent’s notice, and so the matter was fully re-argued before us.

Mr Cairnes said that the dedication of land as a public highway intended to be adopted is an act that ordinarily focuses not on a particular stretch of constructed road, but on the site of the land upon which such a road was intended to be constructed. Whilst there are no documents proving precisely what land Wickens did dedicate as a highway, he said that such material as is available supports the inference that it intended to dedicate not just the newly constructed road but also the disputed strip: only then would it have fulfilled its intention recited in the 1981 agreement. Such an intention on its part was supported by the fact that it knew that the Council did not want there to be any ransom strip between the eastern end of the highway and Wickens’s eastern boundary. The submission was also said to be supported by the fact that the Council had itself said in a letter of 15 May 2002 that ‘there [was] no doubt that the area adopted extended to the red line shown on the section 38 Agreement plan … [t]he carriageway and footway were not metalled to the full extent of the adopted area but that is not unusual.’ That, said Mr Cairnes, was consistent with his submission that the focus should be on the physical limits of the land that was intended to be dedicated rather than on the physical limits of the road that had been constructed.

At the core of Mr Cairnes’s submission was his proposition that recital (2) intended the red line on the plan, at the point where it was met by the proposed road, to represent Wickens’s eastern boundary. The red line derived from the title plan on Wickens’s registered title (No DN80448), which proclaimed that ‘the plan shows the general position of the boundaries: it does not show the exact line of the boundaries.’ That legend reflected the ‘general boundaries rule’, at the time enshrined in rule 278 of the Land Registration Rules 1925. Thus, said Mr Cairnes, the red line on the plan annexed to the agreement cannot have been intended to be more precise as to the true line of the eastern boundary than was the filed plan on the registered title; and the natural interpretation of the parties’ intention with regard to the red line was that it was intended to identify the eastern boundary of the Wickens’s land wherever its precise line might be. I have referred to the fact that until 1983, when the line of the boundary was agreed, Wickens was uncertain as to its precise line. Mr Cairnes’s alternative submission was that if, contrary to his primary submission, the red line was intended to provide a precise identification of the line of Wickens’s eastern boundary, the evidence showed that at the time of the agreement Wickens believed that the red line did represent that boundary. From that he argued that the red line should be regarded as having been intended to identify the true eastern boundary even though it turns out that it did not in fact do so.

Cogently though Mr Cairnes advanced these submissions, I am unable to accept them. I would, with respect, first reject the submission that recital (2) must be interpreted through a prism requiring an onward reference to the filed plan of Wickens’s registered title and a consideration of the ‘general boundaries rule’. Recital (2) requires no such reference. It was, I consider, plainly intended to provide a self-contained identification of the boundaries of Wickens’s land; and it did so by using a form of words (‘… certain land situate at Gamberlake … which is shown on the plan annexed hereto and thereon edged red’) that I consider incorporated the plan as one that definitively identified those boundaries by reference to the red line. The plan was a carefully prepared scale drawing by a firm of architects and planning consultants. By reference to the formulae familiarly found in conveyances, it was not referred to ‘for the purpose of identification only’ and thus as one that eschewed any claim to precision as to boundary lines. It was instead introduced by words that made it definitive as to where, for our purposes, the line of the eastern boundary was; and it was up to that line (whether or not it represented the true eastern boundary) that Wickens was obliged to construct the new road.

This interpretation of the agreement appears to me to be not only in line with the language of recital (2), it reflects what I would expect the agreement to have been directed at achieving from a commercial point of view. The agreement was notone between Wickens and its Wyatt family neighbours. It was between Wickens and the Council, and was one imposing obligations upon Wickens in relation to the building of a new road, being obligations that needed to be clear, precise and certain. In particular, both parties needed to know with precision whence and whither the road was to be constructed; and the point of the plan was (in part) to provide that precision. To interpret the plan as intended to show no more than that the eastern terminus of the new road was to be in the approximate vicinity of the red line, wherever Wickens’s true eastern boundary might be, would be absurd. Both sides needed a plan that was definitive as to their obligations: Wickens so that it knew what it had to do, and the Council so that it could be satisfied as to whether Wickens had done it.

Of course, since the plan was not agreed with the Wyatt family, there was an inevitable risk that the red line might turn out – as happened -- not to represent the eastern boundary of Wickens’s land. That turn of events cannot, however, have retrospectively turned Wickens’s intentions and obligations as reflected in the agreement into something different, which is why I do not understand how Mr Cairnes’s alternative submission can help BPL’s case. Assuming (contrary to my understanding of the evidence) that in 1981 Wickens did believe the red line to represent its true eastern boundary, we know that it was wrong. Its mistaken belief cannot have resulted in its intentions and obligations under the agreement being different from what, objectively assessed, they were in fact – namely, to construct the new road up to the line on the ground represented by the red line on the plan, i.e. up to the white line. None of the other features that Mr Cairnes invoked appeared to me to lend any further help to his case either. In particular, and accepting that Wickens may have known that the Council did not want any gap between the new highway and the Wyatt land, that goes at most to what one or both parties to the agreement may perhaps subjectively have intended to achieve by it. Evidence of intention as to what an agreement was to achieve is not, however, admissible in its interpretation.

In my judgment, therefore, the judge was wrong to hold that the agreement reflected an intention and/or obligation on the part of Wickens to construct the new road right up to its eastern boundary, wherever that might be. The only intention and/or obligation on its part that can be derived from the agreement were to construct the new road up to the red line -- which means up to the white line. In short, it was to be constructed further to the east than it was in fact constructed, but only up to the eastern end of section A of the disputed strip. It was not to be constructed yet further east over section B.

That conclusion means, as Mr Cairnes recognised, that BPL’s appeal must fail. That is because, whilst that construction of the agreement may enable Mr Cairnes to argue for a public right of way over section A, he was unable also to argue for one over section B. Thus BPL is, on any basis, left with an unbridgeable gap over which it can have no public right of way.

The judge, having accepted Mr Cairnes’s submission that the intention of the agreement was that the new road should be constructed right up to Wickens’s eastern boundary, nevertheless found for JCC on the ground that the natural interpretation of the operative parts of the agreement, in particular clauses 5(a) and 6, showed that it was only the road as constructed that was the subject of dedication and adoption as a public highway.

As the document by which Wickens effected its dedication is not in evidence, it appears to me that the precise extent of the dedication that it made must be a matter of inference. So approaching the matter, I respectfully see much force in the judge’s approach and conclusion; and, if correct, it means that the only highway dedicated by Wickens is over the made-up road. I would, however, prefer not to decide whether the judge was correct in that conclusion. It is apparently inconsistent with what the Council itself appears to have accepted as the position, namely that the area it adopted included not just the site of the made-up road, but extended beyond its eastern end up to the red line: it has therefore apparently recognised that it has also adopted section A as a public highway maintainable at public expense. The Council has not been represented before us, any more than it was before the judge, and I consider that, in those circumstances, it would be inappropriate for this court to express any view on whether the Council has in fact adopted section A.

I would dismiss BPL’s appeal.

I agree.

I also agree.