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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Higson & Anor v Guenault & Anor [2014] EWCA Civ 703 (21 May 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/703.html Cite as: [2014] EWCA Civ 703

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANCASTER COUNTY COURT
DISTRICT JUDGE FORRESTER
0LA00285

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2014

Lord Justice Aikens :

I. The case so far.

1. This appeal concerns two orders of DJ Forrester made in the Lancaster County court on 2 May 2013 and 24 September 2013. It relates to the boundary of a right of way along a narrow track. The area of land in dispute is very small, measuring only about 6 inches wide and some yards in length. As Mummery LJ said in Pennock v Hodgson,^[1] in the case of boundary disputes, particularly on appeal, the unfortunate consequences are that, in the absence of any compromise, someone wins, someone loses, it always costs a lot of money and usually generates a lot of ill-feeling that does not end with the litigation. None of those things are good for neighbours. This case is no exception.
2. The appellants, Mr and Mrs Higson, own a house and garden at 11 Barton Road, Lancaster. I will refer to them as "the Higsons" and their property as "the Higsons' property" or "11 Barton Road". The respondents are representative members of the Bowerham Lawn Tennis Club. For convenience I will refer to the respondents as "the Club". The Club has its grounds at the end of the narrow track which runs from Barton Road alongside the Higsons' property and then over a bridge across a brook or beck, called Burrow Beck. The track, which was called "the lane" in the hearings before the judge and before us is just about wide enough for a largish lorry to pass down to the grounds of the Club the other side of the beck. The bridge was widened, at the Club's expense, in 2009. The disputed boundary is on the south side of this lane, next to 11 Barton Road. The lane is about 32 metres long overall. On the lane there is access to the Higsons' property at the end nearest Barton Road.
3. There is an abutment of about a foot's width at the south western end of the bridge over the beck. Attached to that abutment is the eastern end of a larch lap fence of substantial construction mounted on concrete posts which the Higsons erected in 2004, which I will call "the 2004 fence" in order to distinguish it from another, temporary fence, which had been erected in approximately the same position in 1997. For reasons I will explain I will call the earlier fence "the Peill fence". The abutment is now entirely inside the line of the 2004 fence. The 2004 fence runs on the outside, ie. the north side, of a hedge that itself lies between the Higsons' property and the lane on the lane's south side. The judge found, on the evidence, that this hedge originally ran the whole length of the lane from Barton Road to the beck, but part of it was cut down at some stage to in order to create two access points from the lane to the Higsons' property.
4. The detailed nature of the case and the issues involved have changed in this court for reasons I shall explain. However, the essential dispute is whether the Club has a right of way up to the hedge on the south side of the lane or whether the right of way is only up to the 2004 fence. The Club says that the issue is of vital importance to it because, without those extra few inches, large vehicles cannot, with any ease, get down the lane to the tennis courts for the purpose of maintenance and, in particular, to deliver loads of hot tar macadam needed to do resurfacing work of the courts from time to time.
5. Matters came to a head in 2006, when the Club wished to resurface the tennis courts. The Club intended to contract with Doe Sport Limited, a company run by Mr Gore. He gave evidence before DJ Forrester which the judge accepted. Mr Gore said that when the Club contracted with him to resurface the courts in 2006, the drivers of the independent contractor lorries used to deliver the tar-macadam for resurfacing said that they were unable to get down the lane to offload the material. In the end the tarmac was dumped half way down the lane and removed by a smaller loader to just beside the clubhouse. Mr Gore said that this solution was unsatisfactory because the tar-macadam was kept hot in the insulated lorries and dumping the macadam in the lane meant it was difficult to get the hot macadam where it was needed before it cooled down. There were no satisfactory smaller lorries available and he doubted whether contractors would be able to carry out further work of this nature if insulated lorries could not get down the lane. The dumping was "unplanned" and he doubted any contractor would have been prepared to do that if it was what had originally been proposed. The only alternative was to dump the tarmac on Barton Road itself, which would require a road closure which Mr Gore thought the local authority would not sanction. The judge described this difficulty as "a huge problem for the club". ^[2]
6. The Club instructed solicitors in February 2007. The matter remained unresolved, so the Club began proceedings against the Higsons on 4 May 2010, which led to the trial before DJ Forrester in May 2013. The original claim and the amended version of the particulars of claim that were before the judge asserted that the 2004 fence was on the Club's land and so the Higsons were committing a trespass. At the trial, therefore, the issue between the parties was the precise delineation of the boundary between the lane, which the Club contended it owned, and the Higsons' property. The Club claimed a mandatory injunction ordering that the Higsons remove the 2004 fence. It also claimed damages, which were unparticularised in the claim, but limited to £25,000.
7. After the first trial, which lasted 2 days, the judge held that the boundary of the land between the Higsons' property and the lane, which he determined was owned by the Club, was as contended for by the Club in its pleadings, ie. effectively, that it was along the line of the centre of the hedge (or where it would have been had it not been removed in part), on the south side of the lane. This conclusion was displayed visually on a plan that was annexed to District Judge Forrester's order of 2 May 2013.
8. The parties were unable to agree the issue of appropriate remedies. At the 2 May hearing the judge dealt with the Club's claim for damages. He held that the Club was entitled to recover most, but not all, of the costs of the work of widening the bridge over the beck which the Club said had been necessitated by the erection of the 2004 fence which had narrowed its right of way along the lane. The judge thus awarded the Club a total of £3150 damages plus interest and also the costs of the matter up to and including the 2 May hearing. The Higsons say that the judge was wrong to award any damages because the only thing the judge had was a schedule of damages produced at a late stage by the solicitor for the Club, who signed a statement that the facts in the schedule were true. The schedule, which claimed damages (under various "options") of £18,036.66, was supported by numerous invoices. At the trial no oral evidence was called in support of the claim. Counsel for the Higsons objected to the way that the issue of damages was presented to the judge, but DJ Forrester awarded the Club the sum of £3150 nonetheless.
9. The Club's claim for a mandatory injunction against the Higsons was not determined by the judge at the May hearing because the Club was in negotiations with the owner of land on the opposite side of the lane from the Higsons, a gentleman called Mr Wood. He had indicated to the Club that he would be prepared to "sell" to the Club a small strip of land on the north side of the lane which was roughly equivalent to the area between the 2004 fence and the hedge on the Higsons' side of the lane. His "price" was lifetime membership of the Club. However, those negotiations had not been completed at the time of the May 2013 hearing and it seemed sensible to all not to tackle the injunction issue until the negotiations between the Club and Mr Wood had been completed one way or another.
10. Unfortunately the negotiations were not resolved when the judge re-listed the matter in September 2013. By the time of the renewed hearing the Higsons and the Club had both modified their positions on removal of the 2004 fence. The Higsons were willing to remove three of the larch lap panels of the fence, but the Club said that would be insufficient. On its side the Club indicated that it would be satisfied if six panels were removed. The judge granted the Club a mandatory injunction ordering that the Higsons remove the six panels as requested by the Club. He also awarded the Club the costs of the second hearing.
11. Permission to appeal was granted by Lewison LJ on the papers on 3 January 2014. He granted a stay of execution of the injunction and the payment of the damages pending this appeal hearing. We were told at the hearing of the appeal on 1 May 2014 that the strip of land which the Club had been negotiating to buy from Mr Wood had now been conveyed to it. We dubbed this piece of land "the Wood strip".

II. The history of the conveyances of the relevant land and the judge's conclusions on the conveyances and the boundary.

12. Before the judge the principal issue was: where did the boundary between the lane and the property known as 11 Barton Road run from the junction with Barton Road to the bridge over the beck? It was not in dispute before the judge and is not in dispute before us that, as a matter of law, the first task that a court has when deciding where the boundary between two parcel of land lies is to construe the terms of the conveyance that created the parcels of land which are divided by the relevant boundary.^[3] What is effectively being argued by the Higsons on appeal is that the judge, having been misled by an inaccurate "certified copy" of a conveyance dated 23 December 1921, misconstrued that conveyance and that led him to draw two false conclusions. These were, first, that, from 1945 until the time the 2004 fence was erected (and thereafter) the Club owned the land on which the lane ran and, secondly, that the boundary between the Club's land and the Higsons' property was along the line of the hedge, not the line of the 2004 fence. In order to explain how the focus of the argument has changed on appeal, it is necessary to explain the somewhat complicated conveyancing history concerning the various parcels of land around the lane and 11 Barton Road and to explain how the judge reached his conclusions.
13. The history starts with a conveyance (or Indenture to be precise) dated 23 December 1921, which I will call "the 1921 conveyance". It is written in conveyancer's manuscript. The conveyance is between the life tenant (as Vendor) and the trustees of settled land known as the Wellhouse Estate (and I will refer to all those interested in this land as "the Wellhouse Estate") and the Mayor, Aldermen and Burgesses of the Borough of Lancaster. Lancaster did not become a City until 1974. It is clear that in 1921 the Wellhouse Estate was proprietor of a lot of land around this area, which was then on the outskirts of Lancaster. The 1921 conveyance was entered into after an arbitration award had been made following a dispute about the sum to be paid to the Wellhouse Estate for the compulsory acquisition of some of its land by the Borough of Lancaster pursuant to the borough's powers of compulsory purchase under the Housing of the Working Classes Act 1890.
14. By the 1921 conveyance the Wellhouse Estate sold to the borough of Lancaster four parcels of land. The important parcel from the point of view of this appeal is that described in the first paragraph of the First Schedule of the conveyance in the following terms:

"All those two cottages and the appurtenances thereunto belonging together with the land and garden situate and being on the South side of Barton Lane in the Borough of Lancaster and containing three roods and thirteen poles^[4] or thereabouts more particularly delineated on the plan and annexed hereto and thereon coloured blue".

I should explain that what is described in the 1921 conveyance as "Barton Lane" has now become Barton Road. Paragraph one of the body of the 1921 conveyance stated that in respect of two of the parcels of land to be sold there would be a reservation of certain rights of way to the Vendor and others. This reservation of rights is stated in the following terms:

"…reserving nevertheless rights of way unto the Vendor his heirs and assigns and his and their tenants families and servants and all persons duly authorised by him or them at all times and for all purposes as at present existing to and from Barton Lane over the land firstly and secondly hereinafter described and coloured blue and green on the said plan to the field Number 506 and Scotforth Mill Farm respectively, which said rights of way are shown on the said plan and marked "existing right of way".

15. There is no dispute that within the "blue area" on the plan annexed to the 1921 conveyance the strip of land that I have called "the lane" can be easily identified. It is defined by two lines and this strip leads from what is now Barton Road to a field, which everyone accepts is identified as Field 506. The part of that field nearest to the beck is where the Club grounds are now. Also within this "blue area" is land which subsequently became 11 Barton Road.
16. The first difficulty that arose in this case before the judge and has given rise to further dispute before us stems from the fact that the "original" of the 1921 conveyance was not put before the judge by either party. Those acting on behalf of the Higsons obtained only a certified copy of the 1921 Conveyance. This was disclosed and produced at the trial. On the plan of the certified copy of the 1921 conveyance that was before the judge there was no marking to show any "existing right of way" as referred to in paragraph one of the body of the conveyance. However, on the original which the Higsons have obtained since the two hearings before the judge, an "existing right of way" is clearly marked in that part of the plan which is within the two lines in the "blue area" and it is accepted by everyone that those two lines mark out "the lane". As part of the Higsons' appeal there is an application to adduce fresh evidence in the form of the original of the 1921 conveyance and the attached plan, showing this "existing right of way" over the lane.
17. When the judge considered the 1921 conveyance in his judgment of 2 May 2013, he noted that it "purported" to convey the lane to the Borough council. But, he said, the Wellhouse Estate must have thought that the 1921 conveyance had not done so because of a subsequent conveyance dated 24 January 1945 between the Wellhouse Estate and the Club in which the lane is apparently conveyed to the Club ("the 1945 conveyance"). The judge commented that if the Wellhouse Estate had intended to convey the lane to the Borough council in 1921 then it would have reserved a right of way over the lane for access to the land on the far side of the beck (ie. Field 506) and this reserved right of way would have been marked accordingly on the plan. But the judge noted that no right of way over the lane was marked on the certified copy of the 1921 conveyance and plan that was before him. He concluded that "it was not thus intended to convey the lane" by the 1921 conveyance, because that was the means of access from the field to the highway and it was more likely than not that the lane would be retained for access purposes "especially as the right of way is not marked".^[5]
18. The judge next considered the 1945 conveyance. First he noted that the abstract of the title of the Wellhouse Estate relied on for that conveyance referred to a vesting deed in respect of the trusts of the Wellhouse Estate dated 11 May 1926. That vesting deed did not include the lane in the estate's title. But the judge dismissed arguments based on the vesting deed and its plan as being "not persuasive when compared with the reasons why the 1921 conveyance is unlikely to convey the lane [to the Borough council]".^[6] Given that conclusion and given the fact that the original of the 1945 conveyance that was before the judge "clearly purports to convey the lane to the trustees of the Club", the judge held that "it is more likely than not that the conveyance of 24 January 1945 conveyed to the Club the lane which had been retained [by the Wellhouse Estate] up to that time". Accordingly, the partition of the two titles, viz. that of the lane and what subsequently became the Higsons' property at 11 Barton Road, "took place on 23 December 1921 when the estate conveyed the land now vested in [the Higsons] to their predecessors, the [Borough council], and [the Wellhouse Estate] retained the lane".^[7]
19. The third relevant conveyance is that dated 19 August 1997 between what had now become Lancaster City Council as "Vendor" and the two predecessors in title to the Higsons; Mr Michael Readfern and Ms Taryn Whitford, (who later married Mr Readfern), as "Purchasers". Paragraph 1 of the 1997 conveyance witnessed the sale of a parcel of land which is described as follows:

"…the Vendor with full title guarantee HEREBY CONVEYS unto the PURCHASERS ALL THAT piece or parcel of land situate in Barton Road in the City of Lancaster containing Five hundred square metres of thereabouts and for the purpose of identification shown edged red on the plan annexed hereto TOGETHER WITH a right of way with or without vehicles over the land shown coloured green on the said plan and a like right from such land on to the property hereby conveyed TO HOLD the same unto the Purchasers in fee simple…".

20. The plan shows a boundary between what is now 11 Barton Road and the lane running from the junction of the lane and Barton Road to the beck. The boundary of the property conveyed then runs along the Barton Road side of the beck. On the plan, the green area is the lane. Thus the 1997 conveyance granted the Readferns and their successors in title a right of way along the lane. The assumption must be, therefore, that title in the lane lay with Lancaster City Council, thus giving it the power to grant the right of way over that land.
21. Paragraph 4 of the 1997 conveyance is also relevant, because it refers back to the 1921 conveyance. This, presumably, was to provide evidence for the basis on which the City council could now grant the purchasers of 11 Barton Road a right of way over the lane. Paragraph 4 of the 1997 conveyance provides:

"The Vendor hereby acknowledges the right of the Purchasers to the production of the Conveyance made the twenty-third day of December 1921 between [the Wellhouse Estate and the Borough council] and to the delivery of copies of the same and undertakes with the Purchasers for the safe custody thereof".

22. Subsequently, Mr Readfern and Ms Whitford constructed a house on the land sold to them by the City council. They constructed two access areas to their plot from the lane. To do this they cut down some of the hedge that ran along the south side of the lane and they also cut down a tree that was on the lane boundary at the far end near the beck.
23. That is the history of the conveyances. However, there is a coda to it. On 14 April 2008, the Club applied to register the title to its land. Basing itself on the conveyance of 1945 it applied to include in the registered title all the land in the lane. Lancaster City Council objected to this inclusion, believing that it owned the lane, doubtless on the basis of the 1921 conveyance. Thus on 21 May 2008 the City Council itself applied to register the title to the lane in its name. There were negotiations between the Club and the Council and the result was that the City Council withdrew its application. There was an agreement between the Council and the Club dated 22 February 2010. The Club's title to the lane is now registered. So, whatever the history, the current position must be that the Club is the registered proprietor of the land in the lane. However, the precise line of the boundary between the lane and the Higsons' property remains a matter of controversy. The agreement between the Club and the City council referred to a surveyor being appointed to fix the boundary of the lane between the Club and the Higsons' property. But the Higsons were not a party to that agreement and the determination did not go ahead. If it had done the present litigation might have been avoided.
24. At the May hearing before the judge, the Club called witnesses about the history of the features of the boundary between what is now the Higsons' property and the lane from 1960 onwards. The judge made findings of fact about the history of the topography of the area of the lane and its topography at the time of the hearing. He said that the particular features of importance were the hedge that ran along the south side of the lane and other possible boundary structures. The judge found, on the evidence of two witnesses, that there was a hedge on that boundary from early 1960. He inferred from that evidence and the lack of evidence of any other form of boundary feature that this hedge had been there at the time of the 1945 conveyance, which, on his analysis, had conveyed the lane from the Wellhouse Estate to the Club. ^[8]
25. The Club had also called evidence from a joiner and member of the Club called Mr Peill. The judge accepted his evidence which was that on 31 January 1997, (ie. before the 1997 conveyance) and upon the Club's instructions, he had erected a new boundary fence on the north eastern side of the existing hedge that was on the southern side of the lane. Mr Peill said that he understood that the Club was concerned that the builders who were soon to start work on constructing the Readferns' house at what had become 11 Barton Road would cause damage to the Club's access. Mr Peill described the fence as temporary and "cheap and nasty". He said its position was some 6 inches "the Club side" of the existing hedge. It was impossible for him to follow the line of the hedge. The fence was fixed to the left hand side of the abutment when looking from the beck. The judge regarded that as important.^[9] This is the fence I referred to earlier as "the Peill fence".
26. A single joint surveyor expert, Mr Viney, had been appointed by the parties after selection by the court. He produced a report in which he gave his opinion on where the boundary lay between the lane and the Higsons' property. The judge concluded that Mr Viney's evidence was no help to him. It was not relied on by the Higsons on appeal.
27. DJ Forrester's conclusion on what might be called "the boundary issues" can be summarised as follows: first, the conveyance which created the boundary between what is now the Higsons' property and the lane was the result of both the 1921 and the 1945 conveyances. The 1921 conveyance had not conveyed the lane to Lancaster Borough Council and the 1945 conveyance clearly purported to convey the lane to the Club. Secondly, the judge therefore rejected the argument of the Higsons that the relevant conveyance creating the boundary was the 1997 conveyance and that the line of the boundary was the Peill fence. Thirdly, the judge made an alternative finding which was that when the registration of the title to the lane in the name of the Club (or its trustees for the time being) was made in 2010 following the agreement between Lancaster City Council and the Club, that registration by the Land Registry would have been on the basis of the 1945 conveyance. As the judge put it: "the City council agreed in effect that the conveyance to it in 1921 was of no effect. Thus the conveyance of 24 January 1945 prevails".^[10]
28. The judge then made findings about what the boundary position would have been, in his judgment, at the time of the 1945 conveyance. He concluded that a person at that time would have seen the hedge and that there was no evidence that any other feature was present at the boundary between what at that time became the Higsons' property and the lane. He inferred from "the relevant physical feature of the land existing at around the time of the conveyance that the boundary was the centre of the hedge". He said he was reinforced in this view by (a) the existence of a stump of a tree (which had been cut down by the Readfearns) he had observed on the boundary near the beck on his view of the site and (b) the position of the bridge abutment; it was unlikely that the Club would build a bridge abutment on the wrong side of the boundary.^[11]

III. The proposed arguments of the Higsons on appeal and their application to adduce "fresh evidence" in the form of the original of the 1921 conveyance.

29. The argument that Mr Jamal Demachkie wishes to advance on behalf of the Higsons on appeal proceeds by a number of steps. First, he submits that the original of the 1921 conveyance demonstrates conclusively that the lane was then conveyed to Lancaster Borough council, so the judge was wrong to conclude to the contrary. Secondly, there was therefore no boundary between the lane and what became 11 Barton Road at that time, because that was all within the parcel of "blue" land referred to in the first paragraph of the first schedule of the 1921 conveyance. Nor, logically, could there have been any partition by virtue of the 1945 conveyance, because the Wellhouse Estate did not then own the lane so it could not then have conveyed it to the Club. Thirdly, therefore, insofar as the Club obtained any right over the lane by virtue of the 1945 conveyance, at best it was an easement in the form of a right of way. Fourthly, the relevant conveyance which created the boundary between the parcels of land comprised by the lane and 11 Barton Road was the 1997 conveyance. Fifthly, at that time the hedge (or a major part of it) did exist, but so also did the Peill fence that enclosed the hedge. Therefore, sixthly, as the 1997 conveyance is insufficiently precise itself to be conclusive of the boundary, then the boundary must be established by other, extrinsic evidence. That would include evidence from the relevant physical features of the land existing and known at the time of the conveyance. That is a part and parcel of the process of "contextual construction" of the relevant conveyance. For this proposition Mr Demachkie relied on paragraphs 9 and 12 of the judgment of Mummery LJ in Pennock v Hodgson^[12] which itself refers back to the speech of Lord Hoffmann in Alan Wibberley Building Ltd v Insley.^[13]
30. Lastly, if the judge had been considering the position as at 1997, he would have had to have had regard to: (a) the position of the Peill fence erected in January 1997, that is before the 1997 conveyance; (b) the position of the abutment on the bridge over the beck and, (c) a letter dated 26 February 1997 from Lancaster City Council to the Readferns, so written before the 1997 conveyance. In that letter the principal valuer of the Council stated:

"The north eastern boundary [ie that between the lane and the Higsons' property] shown on the plan is the line taken off the Ordnance Survey maps, now loaded onto our computer mapping system and their convention is to take this to the centre of the feature, ie. hedge in this case. At this scale (1/1500) it is not possible to show this more accurately, but in practice you will buy the whole width of the hedge up to the new fence adjoining the track".

The "new fence" must be a reference to the Peill fence which had been erected on 31 January 1997, under a month before this letter. Mr Demachkie also argued that the judge should have considered the evidence of subsequent conduct of the parties, including the erection of the 2004 fence by the Higsons. Mr Demachkie submitted that the judge's alternative finding based on the agreement between Lancaster City council and the Club in 2010 is erroneous, because there was no evidence that the Land Registry actually examined the details of the 1945 conveyance when registering the Club's title in 2010.

31. These arguments would be likely to fall at the first hurdle unless the Higsons succeed in their application to adduce the original of the 1921 conveyance as fresh evidence. Therefore, at the hearing, the first thing we did was to hear submissions on whether the court should receive this "fresh evidence". After argument we announced that we would receive it and would give our reasons for doing so in our judgment on the appeal.
32. CPR Pt 52.11(2)(b) provides that unless the appeal court orders otherwise it will not receive evidence that was not before the lower court. In the days of the Rules of the Supreme Court, an appeal court would only receive further evidence on "special grounds", which were those set out by Denning LJ in Ladd v Marshall.^[14] In summary the applicant had to satisfy the court that (1) the evidence could not have been obtained with reasonable diligence for use at the trial in the lower court; (2) the evidence was such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be apparently credible but need not be incontrovertible. If those tests were to be used in this case, the focus would be on the first test as both (2) and (3) are easily satisfied, as Mr Richard Lander, counsel for the Club, accepted.
33. Since the advent of the CPR there has been a continuing debate on whether the Ladd v Marshall tests are still to be applied in their full rigour on an application to adduce further evidence on appeal. In my view the correct approach is that adopted by Richards LJ in Sharab v Al - Saud^[15] in which he said:

"The court must of course seek to give effect to the overriding objective of doing justice, but in that respect the pre-CPR cases, including Ladd v Marshall remain of relevance and indeed of powerful persuasive authority".

34. The position in this case was that the Club, as claimants, alleged before the District Judge that it owned the lane by virtue of the 1945 conveyance. The Higsons had obtained and disclosed the certified copy of the 1921 conveyance and they relied on it for their case that, in 1921, the lane had been conveyed to the Borough council and so there was no boundary between two parcels of land on the south side of the lane. Neither party seems to have questioned the plan with the certified copy of the 1921 conveyance even though there are no markings on it to show "existing rights of way" as referred to in the body of the conveyance. The only point the judge made was that the certified copy of the plan appeared not to be correct because "some of the marking may be missing or inaccurate". If so, then upon reflection, it would have been sensible to obtain the original to check the markings. But the copy was a "certified copy" and, I suppose, was entitled to be treated with a certain amount of respect.
35. In my view the overriding objective of doing justice requires that this court receives the original of the 1921 conveyance and the plan attached to it. It is obvious from it, as indeed everyone agreed at the appeal hearing, that the Wellhouse Estate did convey the lane to the Borough council in 1921, whilst reserving to itself an "existing" right of way over the lane which ran to Field 506. This therefore fundamentally changes how the case has to be approached. It would, in my view, be contrary to the interests of justice to consider this appeal on an entirely false basis as to who owned what land in 1921, (when the Wellhouse Estate conveyed the lane to the Borough council), or 1945 (when in fact the Club obtained title to the land other than the lane), or 1997 (when the predecessors in title to the Higsons obtained 11 Barton Road, thus creating the partition with the lane), or in 2004, when the Higsons erected their fence or even in 2006 when the current dispute began with the difficulty of getting lorries down the lane to deliver hot tar-macadam for resurfacing of the tennis courts. Therefore, despite the fact that the original of the 1921 conveyance could have been obtained (by either side) with reasonable diligence at the time of the trial, in my view this evidence must, in the interests of justice, be received by this court.

IV. The consequence of receiving the original 1921 conveyance: what are the issues on the appeal?

36. There are a number of legal consequences upon the admission of the evidence of the original 1921 conveyance which Mr Lander, for the Club, accepted must follow. The first is that the original 1921 conveyance did what it said, ie. it conveyed the "blue land" which included the lane to Lancaster Borough council and it reserved to the Wellhouse Estate a right of way over that lane from what is now Barton Road to what was then Field 506, where the tennis club and courts were subsequently constructed. We learned from Mr Lander during the hearing that in 1933 the Wellhouse Estate had granted to the Club a lease of the land where the tennis courts and clubhouse are now situated. But he accepted that this fact adds nothing of relevance to the history. Secondly, the effect of the 1921 conveyance is that the Wellhouse Estate could not have had the right to convey the lane to the Club as it purported to do in the 1945 conveyance. The most that the Wellhouse Estate could have done (by implication if not expressly) was to grant to the Club the easement of a right of way such that the Wellhouse Estate had itself enjoyed over the lane from 1921 onwards. Thirdly, the 1945 conveyance did not create the boundary between the lane and what is now 11 Barton Road. That boundary was only created by the 1997 conveyance. Fourthly, it must follow that the principal issue now is: what was the physical extent of the right of way in the lane that was reserved to the Wellhouse Estate by the 1921 conveyance. Although both Mr Demachkie and Mr Lander recognised that, in theory, there could be a difference between the extent of the right of way and the boundary of ownership of the land as between the lane and 11 Barton Road as it was eventually created in 1997, both accepted that the boundaries were likely to be co-terminous unless there was some convincing evidence to the contrary. Lastly, the effect of the agreement between Lancaster City council and the Club of 22 February 2010, which resulted in the registration of title to the lane in the Club, must be that the Club is now the registered proprietor of that land rather than being entitled to exercise a mere right of way. Again, whilst both counsel recognised that there could be a difference between the physical extent of the ownership of the land that was registered and the extent of the right of way, as no distinction has been recognised in the registration document (we understand) this seems improbable.
37. Mr Demachkie submitted and Mr Lander accepted, that, upon this analysis, when the Club started its proceedings on 4 May 2010, it could not have had a cause of action based on trespass, alleging that the 2004 fence trespassed onto the Club's land. The most that the Club could assert would be a cause of action in nuisance, on the footing that the 2004 fence was an interference with the Club's right of way over the lane. Mr Demachkie also stated, correctly, that before an interference with an easement such as a right of way is actionable, it must be proved that there is a "substantial interference". That proposition was re-affirmed by Mummery LJ, an acknowledged master of the law in the area of easements and conveyancing generally, in West v Sharp.^[16] However, as Elias LJ pointed out in argument, as from the moment the Club's title in the lane was agreed with the City Council in February 2010, the Club could sue the Higsons in trespass if, in fact, the 2004 fence was at any point on what had become the Club's land, if the boundary to the right of way/land was not that of the 2004 fence. That was, in fact, the claim advanced in the original and amended particulars of claim.
38. It therefore seems to me that the task of this court, on appeal, is to determine the following issues: (1) what was the physical extent of the right of way down the lane reserved to the Wellhouse Estate by the 1921 conveyance, particularly on the southern side; (2) was that altered in any way up to the time of the 1997 conveyance or subsequently; (3) whether the 2004 fence was, up to the time of the Club's registration of the title to the lane, a "substantial interference" with the Club's enjoyment of its right of way; (4) is the Club entitled to the injunction that the judge granted ordering the Higsons to take down the 6 fence panels either on the basis that there has been a substantial interference with the Club's right of way or a trespass on its land; and (5) was the judge wrong to award the Club damages of £3150 and/or the costs of the second hearing.

V. Issues (1) and (2):The extent of the right of way in the lane reserved to the Wellhouse Estate by the 1921 conveyance and the position subsequently.

39. In Sharp v West^[17] Mummery LJ explained how the nature and extent of a right of way created by an express grant is to be determined. He said it "…depends on the language of the deed of grant, construed in the context of the circumstances surrounding its execution, including the nature of the place over which the right was granted". The same principle applies where a right of way is reserved in a deed.^[18] The language of paragraph 1 of the 1921 conveyance does not define the physical extent of the right of way reserved. The plan annexed to the conveyance has two distinct lines, more or less parallel in the area that both counsel agree is now the lane and it is between those two lines that the words "existing right of way" have been written. It seems to me that the physical extent of the right of way has to be derived from the way the plan has been drawn, together with the context of the circumstances surrounding the execution of the deed and, if need be, from other evidence, if there is any, eg as to boundary features, which might assist.
40. I would accept Mr Lander's submission that the lines on the plan indicate a boundary feature to what is now the lane. Mr Demachkie did not really argue to the contrary. At the time of the 1921 conveyance the Wellhouse Estate continued to own the land marked as Field 506 on the plan and much more farm land to the south east of what was then Barton Lane. The 1921 conveyance said that the "existing right of way" was reserved "for all purposes", so it can be assumed that this would be to enable tractors and other farm trailers and appliances (whether horse-drawn or mechanical) to go up and down the lane. There was no evidence before the judge that there were any specific boundary features on either side of the lane in 1921, just as there was none about the position in 1945. The judge found it was "more likely than not" that there was a hedge on the south side of the lane in 1945.^[19] Mr Lander submitted that there probably was a hedge on either side of the lane in 1921 and, again, Mr Demachkie did not argue to the contrary; indeed his submission was that the right of way would have gone up to any existing hedge at that time. On the sparse evidence before us, that is the only conclusion to be drawn.
41. Mr Demachkie submitted, however, that whatever the physical extent of the right of way reserved by the 1921 conveyance, by the time of the 1997 conveyance, it had become more limited on the south side of the lane and was limited by the line of the Peill fence. He submits that this conclusion is supported by the letter from the City Council's Principal Valuer dated 26 February 1997.
42. I do not accept that submission. The Peill fence was temporary; it was put up only to protect the Club's access whilst building work was being done at 11 Barton Road. The Principal Valuer's letter was no more than his opinion on what the Readferns were buying. Rather more useful is a "Tender Letter" that was issued by the City Council in late 1996 inviting tenders for the "residential development site" which became 11 Barton Road. Under the heading "Boundaries" it says: "The boundaries of the site are defined by existing boundaries as shown red on the attached plan, extending up to and including the bank of Burrow Beck". The letter also indicates that the City Council would grant a right of way to the purchaser "…over the lane adjacent to the property, shown green on the attached plan". At the time that the Tender Letter was written the Peill fence had not been erected. The judge found that there had been a hedge along that side of the lane since at least 1960 and probably 1945. So, in my view, that hedge is much more likely to indicate the physical boundary of what became 11 Barton Road and, on the other side of the boundary about to be created, the extent of the right of way in the lane.
43. I therefore conclude that, as at 1997, the physical extent of the right of way which the Club enjoyed was up to the hedge on the south side of the lane.
44. Mr Demachkie tentatively submitted that this physical extent might have been reduced by virtue of the 2004 fence. I do not accept that argument. As Mr Demachkie himself acknowledged, the mere fact that the owner of a dominant tenement does not utilise the full extent of his right of way over the servient tenement all the time does not mean that the right of way is abandoned or modified. It is settled law that it must be proved that the person having the right intends to abandon it.^[20] There was no evidence of that and even if there were, it would be most unjust to allow Mr Demachkie to run this argument for the first time in this court as a result of the introduction of the fresh evidence of the original 1921 conveyance, which is what has led to the rights of way issue being argued for the first time on appeal.
45. I therefore conclude that the physical extent of the Club's right of way in the lane on the south side is right up to the hedge, where it still exists, and the line of the hedge where it has been cut down, eg. to create the access points to the Higsons' property.

VI Issue (3): Is the 2004 fence a "substantial interference" with the right of way of the Club?

46. It follows from my conclusion above that when the 2004 fence was erected, insofar as has been placed on the lane side of the hedge or the line where the hedge went before cut down, it extruded into the area of the Club's right of way. Mr Lander accepted that, upon the proper analysis of the conveyances, at the time that the Club began the present action, it could not have a claim in trespass, but had a cause of action only in nuisance, for interference with the Club's right of way. He also accepted that to be actionable, the interference with the enjoyment of the right of way had be to "substantial". As Mummery LJ stated in West v Sharp^[21] "…there is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction…[the grantee] can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him".
47. The question of what, in the circumstances of a particular case, constitutes the "reasonable use of a right of way" was the subject of further analysis by Blackburne J in B&Q PLC v Liverpool and Lancashire Properties Limited.^[22] That analysis was endorsed as correctly stating the law by this court in Emmett v Sisson.^[23] Blackburne J deduced three propositions from the authorities. As summarised in [35] of Emmett v Sisson they are:

"…(1) the test of an "actionable interference" is not whether what the grantee is left with is reasonable, but whether his insistence on being able to continue the use of the whole of what is contracted for is reasonable; (2) it is not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee's preference is unreasonable or perverse; (3) if the grantee has contracted for the "relative luxury" of an ample right, he is not to be deprived of that right in the absence of an explicit reservation merely because it is a relative luxury and the reduced, non-ample right would be all that was reasonably required. Blackburne J summarised the third proposition as follows:

"In short, the test…is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?".

48. Mr Demachkie accepted that these principles would apply in the present case. In my view, applying them, it is clear that there has been a substantial interference with the Club's enjoyment of its right of way. The evidence of Mr Gore demonstrated that it was virtually impossible for large lorries to go down the lane so as to be able to deliver in a satisfactory way materials such as hot tar-macadam to the Club. I would not describe that requirement as a "relative luxury" but even if it is, then that is what the Club has always had before and it is entitled to retain it.

VII. Is the Club entitled to the injunction that the judge granted ordering the Higsons to take down the 6 fence panels either on the basis that there has been a substantial interference with the Club's right of way or a trespass on its land?

49. The principal argument of Mr Demachkie in relation to the injunction is that the Club will now have the extra space in the lane for lorries by virtue of acquiring the "Wood strip". Therefore, whether the actionable wrong of the Higsons by erecting and maintaining the 2004 fence is regarded as a nuisance (substantial interference with the Club's right of way) or a trespass onto its property, the position is that the Club could use its right of way as "conveniently" as before the 2004 fence was erected and it would be oppressive to require the removal of the 6 fence panels as ordered by the judge.
50. I cannot accept these submissions. To start with, the argument that the Higsons should be entitled to escape having to remove the fence panels because the Club has itself taken steps to ameliorate the situation by acquiring the Wood strip is not an attractive one. Secondly, it is clear that there is very little room in the lane for large lorries to manoeuvre, even with the benefit of the Wood strip, which is not more than about 6 inches in width. In the context of needing to get lorries down the lane for the proper maintenance of the Club's facilities, it is reasonable for it to require the full use of its right of way; lorries tend to get bigger as the years go by, not smaller. The injury to the Club's legal rights, whether by interference with the right of way or by trespass, is, in this context, not small. If the Club cannot maintain its tennis courts properly, it cannot function as a tennis club. That interference cannot be compensated by a small money payment. Nor is the task of removing the 6 fence panels a Herculean one for the Higsons.
51. There was some debate as to the correct test to apply when considering whether there should be an injunction or an award of damages in lieu. We were referred to the well-known authority of Shelfer v City of London Electric Lighting Co^[24] particularly the four parts of the "working rule" of AL Smith LJ at 322-3 and the comments on that case by Lord Neuberger of Abbotsbury PSC and the somewhat more radical suggestion of Lord Sumption JSC in Lawrence v Fen Tigers Ltd.^[25] In my judgment, if the issue is considered on the footing that an actionable nuisance has been committed, then even if it is the four parts of AL Smith LJ's "working rule" that are to be considered, they are not satisfied; so an injunction should be granted. If the test is whether to exercise a more general discretion (still assuming that an actionable nuisance has been committed) then it seems to me the balance falls firmly in favour of an injunction in the circumstances of this case. On the other hand, if the matter now has to be considered on the basis that the 2004 fence constitutes a trespass, then, plainly, an injunction is merited and it would not be oppressive to make the order the judge did.

VIII. Issue (5) was the judge wrong to award the Club damages of £3150 and/or the costs of the second hearing.

52. Mr Demachkie's argument on the award of damages is that the Club effectively "ambushed" the Higsons at the trial by not disclosing any documents before the schedule of damages, in the form of a witness statement signed by the Club's solicitor, Mr David Lawrence Gillibrand, was produced with supporting vouchers at the trial itself. No witness was tendered for cross-examination and Mr Demachkie said that it was not possible to explore the veracity of the claim.
53. The schedule of damages is divided into the cost of various options for resolving the problem that reasonably substantial contractor vehicles could not get down the lane. The second "option" was the cost of widening the bridge and using the Wood strip. The widening had been done in 2009 and, in 2009 or at least by the time of the May 2013 hearing, an "informal" arrangement had been made with Mr Wood to remove and reposition the fence on his side of the lane. The costs of advice for the bridge widening was put at £1150 and the cost of the widening works was stated to be £3026.66, thus making a total overall for this work £4176.66. The "price" of the purchase of the Wood strip was that of Mr Wood's "lifetime membership", which the Club estimated at £2300, which Mr Demachkie submitted was not the true cost to the Club at all. Various other legal costs were stated to be £1560 in total.
54. Mr Demachkie accepted that he did not attempt to cross-examine any of the witnesses of the Club on the schedule of damages. The judge dealt with the damages claim shortly at the end of the judgment given on 2 May 2013. DJ Forrester rejected Mr Demachkie's criticisms of the way in which the damages claim had been presented. The judge accepted that, in principle, the Club was entitled to recover, as damages, the cost of widening the bridge as being work to deal with the obstruction created by the 2004 fence. He said that the widening "would make access easier because it is a wider area to swing". The judge allowed the Club to recover the cost of advice from the engineers and a round figure for the costs of the bridge widening work, which he assessed at £2000, producing the total of £3150.
55. In my judgment, Mr Demachkie's arguments about the procedure are ill-founded. He accepted before us that he did cross-examine to a certain extent on the damages issue, but he chose not to cross-examine anyone of the Club's witnesses on the schedule of damages. I am satisfied that there was ample opportunity to test the figures if that course had been chosen. In any event it is clear that the judge did not just accept them and the assessment he made was £1000 less than the total claimed for the bridge works.
56. Mr Demachkie's argument about the substance of the damages claim is equally ill-founded. The Club was faced with a situation where the interference with its right of way by the 2004 fence was causing an obstruction to the Club's access along the lane. It was entitled to take reasonable steps to ameliorate the situation and it did that by the bridge-widening exercise to give a wider area to swing. Mr Demachkie cannot attack the amount of £3150 awarded in relation to that work as being unreasonable; it plainly is not.
57. So I reject this ground of appeal.
58. That just leaves the costs of the second hearing in relation to the mandatory injunction. As I have already noted, both parties made "offers" about the number of fence panels to be removed. The Club said it would be content if six were removed, starting at the bridge. The Higsons said they were prepared to move three, but that did not include the panel that was attached to the abutment on the bridge. The judge ruled that the six panels must be removed. He therefore awarded costs on the basis that the Club had succeeded and "the general rule is that costs follow the event".^[26] The judge also considered the conduct of the parties. He said that the "only criticism" that could be made of the Club was that it had failed to approach Mr Wood earlier, but he noted that the Higsons could have done so as well. He did not think that any failure to approach Mr Woods was significant "…and falls within any of the matters in paragraph 5 of Rule 44.3". The reference to CPR Pt 44.3(5) is not clear to me.
59. The judge was correct to order that Higsons pay the costs of the second hearing. The judge ruled that there should be a mandatory injunction to the extent sought by the Club, which was more than the Higsons had offered. The Club had approached Mr Wood at an early stage; it is clear (and indeed the judge accepted) that Mr Wood had been approached in 2009 and he had permitted the "temporary" use of the Wood strip. But that did not solve the problem.

IX. Disposal

60. For the reasons I have given, I would dismiss the appeal. In this judgment I have focused particularly on the allegation of interference to the right of way of the Club, because that is the way in which the case has been argued once the original of the 1921 conveyance was admitted in evidence. It may well be that the Club could have maintained its claim in trespass as was pleaded in the original and amended particulars of claim. The City Council has not (and could not) challenge the Club's right to ownership of the land in the lane following the agreement of February 2010, which was a few months before the Club launched proceedings in May 2010. It may also be that, strictly speaking, the boundary separating the Higsons' land from that belonging to the Club is at the middle of the hedge (as the judge found) rather than on the outside of the hedge facing the lane, which must be the relevant boundary of the right of way. But nothing in practice would turn on that, even if the action in trespass were now to be maintained. Indeed, we have been informed on behalf of the Club that it accepts that the boundary is co-terminous with its right of way that had existed prior to the Club obtaining ownership of the lane by the agreement of February 2010. The Club is therefore not taking the point that the boundary may be in the middle of the hedge.
61. The declaration, award of damages, interest and costs orders made by the judge in his order dated 2 May 2013 should stand, save that it needs to be amended to reflect the history of affairs. The declaration should state that prior to its registration as proprietor of the lane, the Club enjoyed a right of way up to the outside of the existing hedge (properly trimmed), but after the registration the boundary between the two titles follows the same line. The reason for phrasing it this way is that is that there could not very easily have been a right of way through a hedge. Moreover, equally obviously, once the Club had become proprietor of the lane, its former right of way would be subsumed in its ownership of the land. Otherwise, subject to any arguments to the contrary on the precise wording, it seems to me that the order of 2 May 2013 can remain as it is. The mandatory injunction and costs and other orders made by the judge's order of 24 September 2013 should also stand.

Lord Justice Elias:

62. I agree.

Lord Justice Fulford:

63. I also agree.

Note 1   [2010] EWCA Civ 873 at [46]    [Back]

Note 2   2 May judgment at [23].     [Back]

Note 3   See paras 9 and 12 of the judgment of Mummery LJ in Pennock v Hodgson [2010] EWCA Civ 873 which itself refers back to the speech of Lord Hoffmann in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894.    [Back]

Note 4   Roods and poles are imperial units of area of land. 40 poles equals one rood. One pole equals 30.25 square yards (25.29 square metres) and one rood equals 1210 square yards (1011.71 square metres).     [Back]

Note 5   2 May judgment at [37].     [Back]

Note 6   2 May judgment at [38].     [Back]

Note 7   2 May judgment at [39].    [Back]

Note 8   2 May judgment at [41].    [Back]

Note 9   2 May judgment at [18].    [Back]

Note 10   2 May judgment at [42].    [Back]

Note 11   2 May judgment at [43] and [44].     [Back]

Note 12   [2010] EWCA Civ 873    [Back]

Note 13   [1999] 1 WLR 894.    [Back]

Note 14   [1954] 1 WLR 1489 at 1491.    [Back]

Note 15   [2009] EWCA Civ 353 at [52]. Arden and Rimer LJJ agreed.     [Back]

Note 16   [2000] 79 P&C Reports 327.     [Back]

Note 17   [2000] 79 P&C Reports 327.    [Back]

Note 18   Prior to the Law of Property Act 1925 there were difficulties about a simple reservation of a right of way on the sale of land, but devices could be used to overcome the problem and no one suggests that the 1921 conveyance was ineffective to reserve the right of way to the Wellhouse Estate. See Megarry & Wade: The Law of Real Property (8th Ed 2012) at para 28-009 and 30-005(ii).     [Back]

Note 19   2 May judgment at [41].     [Back]

Note 20   Megarry & Wade at para 29-009.     [Back]

Note 21   [2000] 79 P&C Reports 327.    [Back]

Note 22   [2001] 81 P&C Reports 20.     [Back]

Note 23   [2014] EWCA Civ 64 at [35] and [36] per Aikens LJ with whom Sir Brian Leveson PQBD and Macur LJ agreed.     [Back]

Note 24   [1895] 1 Ch 287.    [Back]

Note 25   [2014] 2 WLR 433, in particular at [102]-[123] per Lord Neuberger; [159]-[161] per Lord Sumption. Lord Mance said, at [168] that he preferred Lord Neuberger’s “nuanced approach”. Lord Carnwath JSC, whilst agreeing with Lords Neuberger and Sumption, had three specific reservations: [246]-[248].    [Back]

Note 26   21 August 2013 judgment at [12].    [Back]