Neutral Citation Number: [2006] EWHC 2908 (QB)

Case No: 6BS 30244
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BRISTOL DISTRICT REGISTRY
Winchester Combined Court
The Law Courts
Winchester
S023 9EL

Date: 17 November 2006 

Before:

THE HONOURABLE MR JUSTICE SILBER
 Between:
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	HOWARD RHYS JONES	Claimant	
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	CHRIS ROSALIND SCOTT	Defendant and Part 20 Claimant	
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Gerard M. Heap (instructed by Porter Dobson of Yeovil, Somerset) for the Claimant
Ewan Paton (instructed by Alletsons of  Burnham on Sea , Somerset) for the Defendant

Hearing dates: 19 and 20 October 2006 and closing written submissions from counsel received on 31 October 2006 and on 2 November 2006
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JUDGMENT

The Honourable Mr Justice Silber : 
I. Introduction
1. Howard Rhys Jones (“the claimant”) is the owner of 79 Oxford Street, Burnham-on-Sea and he claims a right of way to drive over a small rectangular area of hard standing (the hard standing”) measuring 5.28 metres by 1.92 metres increasing in width to 2.16 metres   so as to be able to enter and to leave his garage. The hard standing   is to the rear of and part of  the property of Chris Rosalind Scott (“the defendant”) at 27, Kingsway Road, Burnham-On-Sea. It is almost opposite  the claimant’s  garage which is separated from it by a narrow lane which is about 30.4 feet and 29.4 feet  wide as is shown on the plan attached to this judgment. 
2. The basis of the claim for this right is that the claimant and his predecessors have acquired a right by prescription or by presumed lost modern grant to drive over the disputed land in order to gain access to turn in and out of his garage. Both sides made a number of claims in the pleadings but many of those have not been pursued The claimant now only seeks declaratory relief while the defendant disputes the claim and now only claims declaratory relief as well as   damages for trespass to her property. 
3.. The main issue between the parties concerning the existence of the contested right of way  is whether the claimant and his predecessors can demonstrate a sufficiently long period of user to acquire the  claimed right by prescription. It is common ground that on whichever basis the claimant seeks to make his claim, he has to show 20 years’ user of the claimed right of way in  the period ending with the commencement of the present proceedings on 18 November 2005. The claimant contends that he can do so but that is disputed by the defendant .
II. The location and the ownership of the houses of the claimant and of the defendant.
4.The plan attached to this judgment  shows the position first of the claimant’s house at 79, Oxford Street, second of the claimant’s  garage at the rear of this house, third the defendant’s house at 27,Kingsway Road and finally the disputed hard standing  which is  between the garages of both the defendant and the lane as well as being approximately opposite the garage of  the claimant.  It is noteworthy that the rear of the defendant’s house and the neighbouring house are set back or recessed from the lane so as to create useable space for cars off  the lane between the lane and their properties 

III. The  Issues.
5..The defendant contends that there have  been changes to her property and prior to about 1987 but within the twenty-year period which is critical for determining the right of way  claim, there was a wall at the boundary of  the defendant’s land and the lane.` In consequence, there was no hard standing on any part of 27, Kingsway Road on which  the claimant’s predecessors as owners of 79 Oxford Street could drive prior to 1987 with the result that the claim must fail. There are also disputes about the exact use which  the claimant and his predecessors as owners of 79, Oxford Street  made of the hard standing.
6.The defendant explains in her witness statement that in early 2005 she received from her local authority details of a consultation exercise for a scheme which would mean that residents of her locality would be charged for parking outside their homes. Although she does not drive, the defendant wished to have a parking space for her visitors and so the hard standing would have been satisfactory for that purpose. After discussion with her neighbour, the defendant and her neighbour decided to  place three posts and a chain secured by a padlock at the border of the hard standing so as to ensure that the defendant and her neighbour would have access to the hard standing outside their homes while   preventing  the claimant or others having access to it. The posts were cut down and the chain connecting the posts was discarded on about 9 June 2005. The defendant contends that the claimant is responsible and she claims damages from the claimant  but this claim is denied by  him 
7. The issues which have to be resolved are:
a) whether the claimant and his predecessors were capable of physically using the hard standing for the requisite period of 20 years before the commencement of the present proceedings;
b) if so, whether the claimant and his predecessors actually used the hard standing for the requisite period of 20 years before the commencement of the present proceedings; 
c) in  consequence, what relief  either party is entitled  to in respect of the hard standing; and
d) whether the defendant is entitled to recover damages from the claimant  for the damage done to her posts and chain and if so how much.

IV. The history of the ownership of the houses of the claimant and of the defendant.
8.On 15 June 1961, the executors of Caroline Payne sold 79, Oxford Street to Mr. and Mrs. Edgar Morris, who then on 18 June 1979  sold this house to John Mock and Nancy Marks who then sold it to Barry Emery and Tania Stevens on 31 October 1984.  Mr. Mock changed his surname to Le Bon and I will refer to him by his new name when I review his evidence.
9.Christopher Self and Sharon Upton bought 79, Oxford Street from Barry Emery and Tania Stevens on 18 October 1985 and moved into that house in October 1985. They later sold the house on 8 May 1987 to Taylor and Young from whom the claimant purchased the house together with Nicola  Iley  on 19 February 1988. The claimant purchased Nicola Iley’s interest in 79, Oxford Street on 4 November 1988 and he has lived there since February 1988.
10.The defendant purchased 27,Kingsway Road on 4 July 2001 from Simon Hutchence who together with his then wife had purchased 27,Kingsway Road in the summer of 1988. The previous owner of 27, Kingsway Road was Martin Taylor, who had purchased the house in approximately June 1981 and he was an important witness as he was the owner of 27,Kingsway Road during the period when the claimant has to prove that the previous owners of 79, Oxford Street were using the hard standing. His evidence was that a wall existed until 1987 where his property bordered the lane and so nobody could use the land where the hard standing is now situated.
V. The evidence
11.There were a substantial number of witnesses called in this case. The claimant’s case comprised not only of his evidence but also that of eleven other witnesses while the case for the defendant depended not only on her evidence but also on that of  other witnesses. Neither Mr Gerard Heap counsel for the claimant nor Mr Ewan Paton counsel for the defendant contended correctly in my view that any of the witnesses were dishonest but they asked me to reject the evidence of many of  the witnesses of their opponent as being unreliable. As far as I could discover none of the   witnesses, unlike the claimant and the defendant,   had any interest in the outcome of this case. Counsel must be congratulated for dealing with this case expeditiously and sensibly.
12. My task is to determine which parts of the evidence are reliable. In doing this, I bear in mind first that much of the critical evidence   relates to events  in the 1980s, second that at the time when those events occurred none of the witnesses would have had any reason to believe that they would be asked about them in a court case held in October  2006 and third that the events in themselves about which the witnesses gave evidence were not at that time in any way unusual or likely to remain in the memory of the witnesses.
VI. Issue A Were the claimant and his predecessor capable of physically using the hard standing for the requisite period of twenty years before the commencement of the present proceedings? 
13. The case for the defendant is that prior to 1986 or 1987, the hard standing had not been created as this occurred when the defendant’s predecessor as the owner of 27,Kingsway Road, Martin Taylor had knocked down a wall between the edge of his property and the lane .He did this work himself in order to save money as he had commissioned Mr. Steven Warren  to construct the garage, which is now standing in the back garden at 27 Kingsway Road with the hard standing in front of it. The reason why he did this work was that he required a secure place for his vehicle  and adequate access. The new garage and the hard standing  replaced the   boundary brick wall which had previously acted as a boundary wall between the back garden of 27 Kingsway Road and the lane that runs along the rear of the back garden. The case for the defendant is that prior to moving the back wall which bordered the lane, there was no hard standing on the defendant’s land by the lane. This work also according to Mr Taylor involved   the removal of a brick-build storage building that had adjoined the back wall.
14. Mr. Taylor’s  evidence was that this work was carried out during the spring and summer either of 1986 or of 1987 and he could be certain about  the precise time because it was after the time when first  his second child was born in July 1986 and second he had acquired a white Ford Escort vehicle, which he had bought  in the autumn of 1985. He points out that by 1985 he had started his business as a self-employed decorator and the period of his business accounts ran from 1 March 1985 to the following 28 February. Mr. Taylor  produced his balance sheet for his business for the period from March 1985 to February 1986 and it records that during this period he had  acquired   a motor vehicle, which was  the Ford Escort vehicle which he owned when the garage was built and when the hard standing in issue in this case was created. Thus he is confident that he demolished the wall and had the garage and the hard standing constructed after July 1986 and he considered that 1987 was the most likely date for these works as this was the year after his second child was born. Mr. Taylor pointed out that he did not require either   planning consent or Building Regulations approval for the construction of the garage and the hard standing. Thus   there are no public documents available, which would show or which would   help to show when the hard standing was constructed. Mr. Taylor also added that he frequently parked his car on the hard standing.
15. Mr Steven Warren, who is a self-employed bricklayer, explained in evidence that he had been asked by Mr Taylor to construct the garage at 27,Kingsway Road  and to provide a parking space in the form of hard standing  between the garage and the back lane which would have sufficient room to manoeuvre a car from the lane into the garage. He explained that he constructed a new garage for Mr Taylor within the back garden of 27 Kingsway Road but   it was set back several feet distance from the property’s rear boundary with the lane so as create a hard standing. His evidence was that at the time when he quoted for constructing   the new garage for Mr Taylor, he noticed first that the garden at the rear of his property was separated from the back lane by a brick back wall which was in a largely derelict condition and second that was no hard standing there. At the same time as the new garage was constructed by him, Mr. Warren removed the remnants of this brick rear wall, which had been partly demolished by Mr. Taylor. Mr. Warren explained that he constructed the hard standing which was to be a form of   parking and manoeuvring space between the new garage and the site of the demolished brick rear wall.  He stated that although the rear brick wall was in an almost derelict condition when he first saw  it, in his view it constituted a sufficient obstacle to prevent a vehicle from going onto any  part of the property of 27,Kingsway Road and in particular on the land on which the hard standing was subsequently constructed  and which is the subject-matter of this case.
16. A crucial part   of Mr Warren’s evidence was  specifying  the date when this work was carried out. He no longer has any records but he explains that to the best of his recollection he did it during the summer of 1987, shortly after the birth of his twin daughters on 22 April 1987. His evidence was that   he can recollect discussing with Mr. Taylor’s then wife when he was carrying out the construction work how his life had changed with the birth of his twins
17. The case for the claimant is that this evidence is not correct as the rear wall separating the defendant’s house from the lane had been demolished and the hard standing had been constructed well before 1986 and before the commencement of the critical twenty-year period with which I am now concerned. A number of the claimant’s witnesses gave evidence along these lines. Two of the previous owners of 79 Oxford Street gave evidence that there was no wall at the place were standing now whilst they were owners of the house. Mr Jon Le-Bon, whose surname was previously Mock and who was the owner of 79 Oxford Street between 18 June 1979 and 31 October 1984 and Christopher  Self who was the owner of that house  from 18 October  1985 until 8 May 1987 both explained that there was never a rear wall on the area on which there is now  hard standing and they knew that this was so as they drove onto it in their vehicles on a regular basis when using their garages during the entire periods during which they owned 79, Oxford Street. Mr. Le Bon explained that it would have been impossible to enter or to exit his garage without driving on to the hard standing 
18.This evidence was supported by Mrs Mary Baker who lived at 75 Oxford Street for 25 years from about 1981 and  who said that she had regularly witnessed Mr Mock, Mr Self  and the claimant using the garage and the area of hard standing on at least five days a week. Mr Peter Baker  lived at 75 Oxford Street from 1985 onwards and he  explained that there was always a hard standing not only during his occupancy of that house but also when he regularly used to visit his grandmother in Oxford Street before that. His evidence was that there had been no rear wall on the defendant’s land  since 1974 which was when he married his first wife.
19. Trevor Baker who also lived close by in Oxford Street and had been a regular visitor to his mother’s house for 26 years said that there was no wall from 1981 onwards. He can also recollect that Mr Reg Thorn  an official of the local authority used to visit his grandmother in the mid 1970s and when he did so,  he parked his vehicle on the hard standing . 
20. Robin Walford, who lived at 35 Kingsway Road since 1982, explained that his children used to play in the back lane for a period starting in  the summer of 1983  and during that period there had been no rear wall or any other form of division between the defendant’s property at 27 Kingsway Road and the back lane. Michael Long, who lived at 81 Oxford Street and who had previously lived in the area  since 1984, explained that he had  seen the  claimant and others using the hard standing at the rear of the defendant’s property when seeking to enter and to leave the garage at 79 Oxford Street since 1984.
21. John Shepherd, who has  since about 1972 lived in Burnham-on-Sea in a house from which he has been able  to see the claimant‘s garage, explained that he observed Mr Le-Bon using the hard standing. 
22. My starting point is to seek to ascertain which group of witnesses would be most likely to have an accurate recollection of the use made of the hard standing by owners of 79 Oxford Street. One such group would be those who contended that they actually used it, namely Mr Christopher Self and Mr Le-Bon.  Mr Le-Bon would be of the more important of those two witnesses because he was the owner of 79 Oxford Street from18 June 1979 until 31 March 1984 and this  would pre-date the work which Mr Martin Taylor and Mr Steven Warren say was carried out to the rear wall and to create the hard standing. 
23.Another group of witnesses who are likely to have an accurate recollection were those who paid for and were paid for creating the garage and the hard standing at 27,Kingsway Road; Mr. Taylor and Mr. Warren were respectively the two people who fulfilled those roles. I do not wish to be disrespectful to the other witnesses called by both parties but they would have had no reason to recollect  the time when the garage and the hard standing were constructed especially as this was  many years ago and equally importantly, they would then have had no reason to pay particular attention to the removal of the wall and the construction of the garage at 27,Kingsway Road. None of them was able to give positive evidence of precisely when the rear wall was demolished together with any reason why they were so sure that it was the precise date.
24. I  therefore considered with care whether Mr. Le Bon and Mr. Self were more reliable in their recollection of the relevant events than Mr. Taylor and Mr. Warren. At the end of the day I preferred the evidence of Mr. Taylor and Mr. Warren. Their evidence was supported by clear reasons why they could recollect the time frame within which the rear wall was demolished and the hard standing created.  They (and particularly Mr. Warren) were both very impressive witnesses, who emerged unscathed from the skilful cross-examination of Mr. Heap. Indeed it was significant and impressive  that Mr. Warren explained that this was the only garage which he constructed in 1987 and the way in which he fixes that date by reference to the time when his twins were born. His evidence was particularly convincing and cogent and I found him the most reliable of all  the witnesses. So I  hold that the rear wall prevented the owners of 79 Oxford Street from using prior to 1987  the area where the hard standing now is. So the claim must fail as20 years user cannot be established. 
25.If I had been in any doubt about this I would have concluded that  the rear wall was not demolished and the hard standing was not created until 1987 for three other reasons.  First, until now, I have been ignoring taking in to account the fact the claimant was the party  on whom the onus of proof lay. It is ,however, clear that as Gale on Easements (17th edition (2001)) states at paragraph 4-97 that :
	 “as the claim for easement is in derogation of the ordinary rights of property, it lies upon the party asserting such claims, in opposition to common right, in all cases to support his case by evidence” 
26. In this case, this onus is on the person claiming the right, who in this case is the claimant. His failure to discharge this onus would constitute an additional reason for rejecting the claim that there has been 20 years user of the area where the hard standing is situated now.
 27. Second, the claimant’s case depends on showing that it was impossible or almost impossible for the users of the garage of 79, Oxford Street to drive their cars in and out of the garage without using the hard standing   but no expert or other evidence was adduced in support. Counsel for the claimant contended that I could reach a conclusion on whether it was possible to gain access to the garage at 79,Oxford Street without using the hard shoulder. It would be wrong for me to carry out experiments as the appropriate way to determine this issue would have been by calling expert evidence or appointing a joint expert but no expert gave evidence or made a witness statement.
 28. Third, I had reservations about the evidence of Mr. Le Bon, who was an honest witness but his evidence was in some respects unconvincing probably because he had neither been back to the area for 22 years nor had he thought in the meantime about how he manoeuvred his car in and out of his garage at 79, Oxford Street. Not surprisingly  in those circumstances, he was  vague about many of the features of the area such as denying that there had been a wall at the rear on 25 Kingsway Road enclosing that area from the lane and from 27, Kingsway  Road even though it was clear from a photo that he was incorrect. It is noteworthy that Mr. Le Bon   said in evidence that he drove a Triumph Spitfire and a Mini which his wife (who did not give evidence) could not manoeuvre. Bearing in mind the turning circle of those cars, this is surprising if as Mr. Le Bon contended to be the case that there was a hard standing there to assist in performing the manoeuvre.
29.I did not find the evidence of Christopher Self very convincing as he gave the impression of being vague on certain detail about he manoeuvred his car in and out of the garage of 79, Oxford Street during the period when he lived there which was from October 1985 until May 1987 .
30. As I have concluded that the owners of the garage of 79 Oxford Street were unable to use the hard standing or the land on which it was constructed prior to 1987,the claimant cannot show 20 years of use and his claim must fail.
VII. Issue B. Did the claimants and his predecessors actually use the hard standing for the requisite period of twenty years before the commencement of the present proceedings?          
31. The case for the defendant is that the claimant is unable to point to sufficient use of the hard standing   by himself and by his predecessors  so as to establish use of the hard standing over the requisite period of twenty years.  In the light of  my conclusion that that the owners of the garage of 79 Oxford Street were unable to use the hard standing or the land on which it was constructed prior to 1987, the claimants and his predecessors did not actually use the hard standing for the requisite period of twenty years before the commencement of the present proceedings
VIII. Issue C. What relief is either party entitled to in respect of the hard standing? 
32. The defendant has sought a declaration that the owner of 79 Oxford Road is not entitled to use the hard standing, which is situated between her garage and the lane. In the light of my findings, such a declaration should be made as this will clarify the position in respect of the hard standing as between the present and future owners of 79,Oxford Road and 27 Kingsway Road.
33. As I have heard submissions on the extent of any right which the claimant might have had if, which is not the case, the claimant had established that he was entitled to a right to use the hard standing. It is common ground between counsel that the correct approach that would then have to be adopted  in deciding the scope of  a right of the kind claimed by the claimant  is to consider what the right would be
“according to the ordinary and reasonable use to which the [ servient property] might be applied [when the right arose]” ( per Sir Martin Nourse in McAdams Homes Limited v Robinson [2004] EWCA Civ 21 paragraph 82 with whom Peter Gibson LJ agreed).   
34. Although the claim in the particulars of claim is for   a very wide right, Mr Heap sensibly accepts that any right he obtained must be limited to a right to turn his motor vehicle  on to the hard standing so as to enter and to leave   the garage at 79 Oxford Street.
35. Mr Paton contends that the claimant’s claim should be for “all or nothing” in the sense of either right to pass and repass at all times at all times or no right at all. His cas is that no “half way house” or conditional right is possible or desirable. I am very conscious that before the present dispute arose between the claimant and the defendant, the claimant was quite content to wait until the defendant or her visitors moved a vehicle from the hard standing so that the claimant could move his vehicle. In my view any such right of the claimant (if it had existed) would have been limited to a  right to turn his motor vehicle  on to the hard standing so as to enter and to leave   the garage at 79 Oxford Street subject to a rider that the use of the right must be limited to do this at reasonable times. As I have explained, such a right could only be held to exist if there had been 20years user but for the reasons set out in Section VI and VII above, there was not  such user.
IX. Issue D Is the defendant entitled to recover damages from the claimant for the damage done to her posts?       
36. In 2005, the defendant explained that she  wished to ensure that the hard standing outside her house could be used for parking a car for her visitors. She does not drive herself and she discussed the matter with Mr Barry who is her neighbour and who has a similar parking space at the rear of his property. 
37. The defendant said that she agreed with Mr Barry that it would be prudent to take steps to safeguard the space which was available for parking at the rear of their properties and that could be done by erecting three posts on the rear boundaries with a length of chain running across the  row of three posts and which would be secured by means of padlocks.
38. A builder was engaged and notice was given to a range of neighbours including the claimant. When he received this letter, the claimant was very angry and his solicitors wrote a letter to the defendant on 27 May 2005 claiming a right over the hard standing.
39. On 9 June 2005, the defendant received a report that there was a commotion at the rear of her property and she was told that a form of machinery was being used. When she went to the rear of her property, the commotion had ceased but she noticed that the posts had been sawn down and the chain flung away. The defendant holds the claimant responsible for this although neither the defendant nor any of her witnesses saw the claimant do anything wrongful. In his evidence the claimant denied that he was responsible for this damage. 
40. I found the claimant to be an honest witness and I have no reason to disbelieve his evidence that he was not responsible for the damage to the post and the chains, even though he did have an incentive for the posts to be removed. Thus this claim must be rejected.
X. Conclusions
41. I therefore conclude that the claim must be dismissed and that the defendant  is entitled to declaratory relief. Her claim for damages is dismissed. I appreciate that this judgment will be a disappointment for the claimant but it might be some consolation for him to know that everything that could have been said in support of his case has been pursued with commendable diligence by Mr Heap.
42 After I circulated a draft of this judgment, counsel agreed that in the light of that judgment, I should make the following order, which I hereby make
1. The Claimant's claim is dismissed.

2. It is declared, for the avoidance of doubt, that the Claimant's property at number 79, Oxford Street, Burnham-on-Sea, Somerset ("the Claimant's property") does not have the benefit of any right of way or other right over the Defendant's property at number 27, Kingsway Road, Burnham-on-Sea, Somerset ("the Defendant's property"), and in particular over the area of hard standing shown on the plan attached hereto ("the hard standing").

3. The Defendant's Part 20 claim for damages for trespass is dismissed.

4. The Claimant shall pay the Defendant's costs of these proceedings on a standard basis, such costs to be subject to detailed assessment if not agreed.