Site Developments (Ferndown) Ltd & Ors v Cuthbury Ltd & Ors

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.

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.

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.

Mr Wilson then continues by arguing that:-

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

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.

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.

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 “good fit”. 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”).

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”.

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.

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.

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.

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:-

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”).

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.

In my judgment, there are two problems with the fit that Mr Powell achieved:-

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.

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.

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.

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:-

Certain general conclusions can be made from the above observations:-

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.

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.

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.

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.

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.

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.

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.

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.

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.

In case also all I have said about the Sliver is wrong, I should deal with two adverse possession questions under this head:-

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

The oral evidence and documents demonstrate the following sequence of events:-

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.

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.

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:-

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.

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.

There are three, not entirely consistent, cases that bear on this point as follows:-

In my opinion, the more carefully reasoned reserved decision in Kirk is to be preferred to the ex tempore 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.

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.

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”.

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.

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.

The question then resolves itself into one of fact, rather as it did in the Mount Carmel 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 “not a 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.

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.

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.

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.

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.

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.

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.

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.

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”.

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.

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.

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.

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.

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.

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.

This Issue too does not arise for the same reasons as Issue 10.

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.

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.

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:-

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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:-

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.

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.