Case No: CH/2009/PTA/0569
Neutral Citation Number: [2011] EWHC 67 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
On appeal from Professor Robert M Abbey sitting
as a Deputy Adjudicator to HM Land Registry
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/01/2011

Before :

MR JUSTICE DAVID RICHARDS
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Between :

	WILFRED JOHN McCULLOUGH	Appellant	
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	DAVID ARMSTRONG	Respondent	

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Christopher D.H. Jones (instructed by Paul Taylor Solicitors) for the Appellant
The Respondent appeared in person

Hearing date: 29 October 2010
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Judgment
MR JUSTICE DAVID RICHARDS : 

1.	This is an appeal from an order of Professor Robert M Abbey sitting as a Deputy Adjudicator to HM Land Registry.  Permission to appeal was granted by Roth J.
2.	By his order, the Deputy Adjudicator refused an application by the appellant William John McCullough for rectification of the registered title to a property known as The Old Coach House, Queen Street, Ulverston, Cumbria LA12 7AF so as to delete reference to a right of way granted over a track leading to the property.  The respondent David Armstrong is the registered proprietor of The Old Coach House.  He opposed the application, and the Deputy Adjudicator refused the application, on the ground that Mr Mc Cullough had no legal or other title to the track.  It is Mr McCullough’s contention on this appeal, as it was before the Deputy Adjudicator, that he is the unregistered freehold owner of most of the track, including parts over which the registered right of way runs.  He also made an application for first registration of the parts of the track which he claims to own.  The remaining parts were sold, or purportedly sold, by him to a developer in 1989.
3.	Mr Armstrong himself issued an application to register a right of way, acquired through long user, over that part of the track giving access to The Old Coach House.  This was conditional on Mr McCullough succeeding in his applications.  In view of his decision to refuse Mr McCullough’s application for rectification, the Deputy Adjudicator did not need to decide Mr Armstrong’s application and made no order on it, although he indicated that in the light of the evidence he would have found for Mr Armstrong.
4.	The issues on this appeal are the same as they were before the Deputy Adjudicator.
5.	On the plan annexed to this judgment, the track in issue runs from the point at letter A to the point at letter C.  The track originally started at its western end at Queen Street, Ulverston but at some time the first stretch from Queen Street to the point at letter A was adopted as a public highway.  At the point at letter B there is an opening for vehicles on to Mr Armstrong’s property.  The track terminates at letter C where it used to give access to property owned by Mr McCullough from 1969 until its sale for residential development in 1989.  The track is not required for access to the property as developed.  The property which Mr McCullough had owned included a garden or field known as The Croft to which the track gave access at letter C.
6.	Mr Armstrong claims to be entitled to a right of way for vehicles along that stretch of the track which leads from letter A to letter B.  There is access at letter B to an area, large enough to park one or more cars, forming part of his property and lying immediately to the rear of his house.  The right of way currently registered in the Land Registry title for the Old Coach House reads:
“The land has the benefit of the rights granted by a conveyance of the land in this title and other land dated 14 November 1985 made between (1) Muriel Isobel Jarvis and others and (2) Rona Elizabeth Hudson.”
The right of way in question is expressed as follows in the conveyance dated 14 November 1985 (the 1985 conveyance):
“A right of way at all times and for all purposes with or without vehicles over and along the road and track between the points A-B and C on the said plan.”
Points A-B and C on the plan attached to the 1985 conveyance correspond to points A and B on the plan attached to this judgment.  
7.	Mr McCullough had no knowledge of the grant of an express right of way by the 1985 conveyance, or its registration in 2000, until 2006.  
8.	The Applications were heard by the Deputy Adjudicator on 26 June 2009.  Mr McCullough was represented by his solicitor and Mr Armstrong by counsel.  There was written evidence from Mr McCullough and written and oral evidence from Mr Armstrong and Mrs Rona Elizabeth Glaister (formerly Hudson), but neither was cross-examined.  The Deputy Adjudicator records that there was a considerable measure of agreement as to the facts.
9.	The Deputy Adjudicator refused Mr McCullough’s application on the ground that he had never acquired title to the track.  Mr McCullough and his wife Marjorie acquired the freehold interest in The Croft and four neighbouring properties by a conveyance dated 24 July 1969 (the 1969 conveyance).  By cl.1 there was conveyed to them:
“all that the freehold property more particularly described in the Schedule hereto and for the purpose of identification only and not by way of limitation delineated on the plan annexed hereto and edged red.”
The track is not within the land edged red on the plan annexed to the conveyance.  The relevant part of the schedule is paragraph (5) which provides:
“All that close of land now or formerly known as The Croft for the purpose of identification only coloured blue on the plan endorsed on an Indenture of Conveyance dated 9th December 1912 and made between Susannah Footitt (1) John Bigland Dickinson (2) and Myles Burton Kennedy (3).”
10.	The conveyance dated 9th December 1912 (the 1912 conveyance) conveyed:
“All that parcel of freehold land or ground called The Croft now used as a garden which abuts on the Turnpike Road leading from Ulverston to Lindal and a passage way the property of the said Myles Burton Kennedy leading from the said Turnpike Road to the house and premises called The Gardens and bounded on the East by the property of the Executors of Captain Stokes deceased and on the North the land the property of Mr John Young Schofield and Mrs Sarah Jane Atkinson and on the West by the property known as The Gardens in Ulverston aforesaid together with a strip of land nine feet in breadth from the East wall of the said Croft forming a carriage drive to Queen Street in Ulverston aforesaid and which said hereditaments and premises were by an Indenture dated the twenty ninth day of March one thousand eight hundred and fifty one……………conveyed and assured…………and contain three thousand six hundred and twenty two square yards or thereabouts and are with the abuttals thereto shown on the plan endorsed hereon and thereon coloured blue. ”
11.	On the plan attached to the 1912 conveyance, there was shown coloured blue (or purple) the property known as The Croft and the track, the latter described on the plan as “Right of way 9 feet wide to Queen Street”.  While the full extent of the track is not shown, the Deputy Adjudicator records that it is the land affected by the disputed right of way, as indeed is clear from the parcels clause.
12.	On the plan attached to the 1969 conveyance the property edged red covers five “Lots” acquired by Mr and Mrs McCullough, but does not include the track.  The property described in the 1912 conveyance as The Croft is identified as Lot 6.  The track is bounded for its full length on one side by what is described as “Lot 7” which was part of the property acquired by Mr and Mrs McCullough and the red line is shown as on the boundary between Lot 7 and the track.  For reasons which are unexplained, the track is marked blue on the copy of the plan which is in evidence.  The Deputy Adjudicator stated in his decision, and this is not challenged on the appeal, that he could say “with certainty…that the area affected by the disputed right of way is most definitely not included in the plan within the 1969 conveyance.”
13.	At paragraph 16 of his decision, the Deputy Adjudicator summarises the principal submissions of the parties to him.  For Mr McCullough, it was submitted that it followed from the terms of paragraph (5) of the schedule to the 1969 conveyance that the inclusion of the track in the 1912 conveyance meant that it was also conveyed by the 1969 conveyance.  Its exclusion from the land edged red in the plan annexed to that conveyance was not decisive, as the plan was expressed to be “for the purposes of identification only and not by way of limitation.”  For Mr Armstrong, it was submitted that by the express terms of the 1912 conveyance, two separate properties, the Croft and the “carriage drive”, were conveyed, whereas only the former was included in paragraph (5) of the schedule to the 1969 conveyance.  This was corroborated by the plan attached to the latter conveyance.
14.	The Deputy Adjudicator upheld Mr Armstrong’s objection and found that Mr and Mrs McCullough had not acquired title to the track.  He set out his conclusion and reasons in paragraphs 18-19 of his decision.
“18. Both sides of this dispute put their case to me in a clear and forthright manner.  Both parties clearly believe that their interpretation of the plans and the conveyance is correct and put forward all that they could to support their views.  I must now decide if the land was conveyed to the Applicant by the 1969 Conveyance.  I must say that I do not believe that it was.  I do so firstly because I accept the argument from the Respondent that these were two parcels which could be conveyed quite easily as separate items and in all probability were so dealt with during the period between 1912 and 1969.  The fact that the 1969 conveyance does not go on to say “together with a strip of land nine feet in breadth from the east wall of the said Croft forming a carriage drive to Queen Street…shown on the plan endorsed hereon and thereon coloured blue” but only refers to the Croft seems to me to also indicate that there was no intention at that time of transferring the carriageway to the Applicant.
19. Secondly, I find the details of the plan within the 1969 conveyance to be of substantial importance.  It is clear to me from the details of that plan that there was no inclusion of the carriageway in this transaction and that the 1969 Conveyance was of the Croft alone.  The very fact that the area in question was differently coloured is significant in itself, showing that it was probably going to be dealt with in some other way other than being included in the land edged red.”
15.	Before turning to the submissions made on behalf of Mr McCullough as to why this conclusion and reasoning are wrong, there are two points immediately to note.
16.	First, Mr Jones, appearing for Mr McCullough, submitted that there was no evidence to support a finding that the Croft and the track “in all probability were so dealt with [i.e conveyed as separate items] during the period 1912 and 1969”.  If the Deputy Adjudicator had made such a finding, the criticism would be well-founded, because there is indeed no evidence of a separate transfer of the track at any time after 1912.  But I do not read the Deputy Adjudicator as making that finding and so providing a basis for the decision that the track was not included in the 1969 conveyance.  I read it as no more than a deduction from his conclusion, as a matter of construction of the 1969 conveyance read with the 1912 conveyance, that the track was not included in the 1969 conveyance.  An alternative deduction might be that a vendor retained the track, either intentionally or without giving any thought to it.
17.	Secondly, the statement in paragraph 19 of the decision that the fact that the track was differently coloured on the plan attached to the 1969 conveyance “is significant in itself, showing that it was probably going to be dealt with in some other way other than being included in the land edged red” cannot stand.  There was no evidence that the track was differently coloured on the plan at the time of the 1969 conveyance.  The Deputy Adjudicator had noted in paragraph 15 of his decision that the track was marked blue on the plan “but there does not appear to be any reference to this colour elsewhere in the 1969 conveyance and so I have no idea why it is coloured in this way.”  
18.	Prompted by these parts of the Deputy Adjudicator’s decision, Mr McCullough applied to adduce two pieces of evidence on this appeal.  The first, for which permission was given by Roth J, was a conveyance dated 12 May 1951.  The second was a statement by Howard Martin Whitaker FRICS.  Mr Whitaker was in 1969 employed by the firm of surveyors handling the sale of the estate of which the “lots” purchased by Mr and Mrs McCullough formed part.  I gave permission for it to be adduced.  Although it could with reasonable diligence have been put before the Deputy Adjudicator, as was accepted on behalf of Mr McCullough, I considered it right to admit it because it was not controversial and it provided some useful information as regards the plan attached to the 1969 conveyance.
19.	The basis of the Deputy Adjudicator’s decision is essentially a comparison of the express terms of the 1912 and 1969 conveyances, read with the plans attached to them.
20.	Mr Jones submitted that the decision was wrong for the following reasons.  First, as a matter of construction of the express terms of the 1969 conveyance, it refers specifically to the 1912 conveyance and to the land coloured blue on the plan annexed to that conveyance which included both the land known as the Croft and the “carriage drive”.  There was no provision excluding the carriage drive in the 1969 conveyance.  Reliance could not be placed on the plan attached to the 1969 conveyance because it was expressed to be “for identification purposes only and not by way of limitation”.  
21.	Secondly, the 1951 conveyance, to which a plan was not attached, conveyed “all that parcel of freehold land or ground now or formerly known as “The Croft” situate at Ulverston in the County of Lancaster and for the purpose of identification only coloured blue on the plan endorsed on” the 1912 conveyance.  There was no exclusion of the “carriage drive”.  
22.	Thirdly, it was improbable that at some time after 1912, title to the track had been separately conveyed.  The vendor in the 1951 conveyance, Myles Storr Nigel Kennedy, had inherited from the transferee under the 1912 conveyance, Myles Burton Kennedy, all the latter’s “real estate situate in the County of Lancaster”, which included the Croft and other properties in Ulverston.  The purchasers named in the 1951 conveyance, also members of the Kennedy family, were the sellers of the Croft and other properties in Ulverston in 1969.  Contrary to normal conveyancing practice with unregistered conveyancing, no memorandum detailing a separate sale had been endorsed on the 1912 conveyance or the 1951 conveyance.  No-one has claimed title to the track, save to the extent that the grant of the right of way in the 1985 conveyance implies such a claim.  An alternative explanation, that the Kennedy family had retained ownership of the track while selling all their other property in Ulverston, would be odd.  The impact of this point is somewhat blunted, because that is precisely what Mr McCullough himself claims to have done, but it is fair to note that there has been no assertion of ownership by members of the Kennedy family.
23.	Fourthly, a sale of the Croft alone, without either the track or the grant of a right of way over it, would leave the purchaser without the main means of access to it.  This is a less significant point as regards the 1969 conveyance because Mr and Mrs McCullough acquired five adjacent properties, of which one was the Croft, and there was good access elsewhere to these properties taken as a single unit.  Moreover, the Croft abutted a public highway at its eastern end and in the evidence and other documents the track is described as “the main means of access” (Mr Whitaker) or “the principal means of access” (skeleton argument for Mr McCullough), and not as the sole means of access.
24.	Fifthly, there was reliance on Mr Whitaker’s witness statement, to which I will refer.
25.	I acknowledge there is some force in the submissions made in support of this appeal.  This is particularly so in relation to the circumstantial points, including the question of access.  However, I have concluded that the Deputy Adjudicator was right.
26.	The 1912 conveyance separately describes “All that parcel of freehold land or ground called The Croft now used as a garden” and “a strip of land nine feet in breadth from the East wall of the said Croft forming a carriage drive to Queen Street.”  The “said hereditament and premises” are shown coloured blue on the endorsed plan.  The entire property transferred by the conveyance is coloured blue on the plan, but the plan separately identifies “The Croft” and “Right of Way 9 feet wide to Queen Street”.  The proper inference is that in 1912 “the Croft” described only the land or ground used as a garden above and did not include the track.
27.	The 1951 conveyance refers only to “All that parcel of freehold land or ground now or formerly known as “The Croft”… and for the purpose of identification only coloured blue on the plan endorsed on” the 1912 conveyance.  There is no evidence that the land known as The Croft had changed since 1912 to include the track.  The track was a physically separate strip of land running for some considerable distance between a number of different properties.  Looking at the plan endorsed on the 1912 conveyance, the Croft denotes only the field or garden.  It is coloured blue and the fact that the track is also coloured blue does not lead to the conclusion that the reference in the 1951 conveyance to The Croft was intended to include the track, particularly when the reference to the plan is described as being for the purpose of identification only.
28.	A similar description is used in paragraph 5 of the schedule to the 1969 conveyance: “All that close of land now or formerly known as The Croft for the purpose of identification only coloured blue on the plan endorsed on “the 1912 conveyance.  The same question arises.  Had the land known as The Croft changed so as to include the track?  Again, there is no evidence that it had done so.  Moreover, the plan annexed to the 1969 conveyance does not include the track within the land shown as conveyed.  The plan is “for the purpose of identification only and not by way of limitation” but, if there is ambiguity in the parcels clause, it may be referred to assist in the construction of the clause.
29.	Mr Whitaker, in his witness statement which was not available to the Deputy Adjudicator, describes how in 1969 he was working for a local firm of surveyors and estate agents who were instructed by the Kennedy family on the sale of their properties in Ulverston.  It was decided to offer them for sale at auction in eight lots.  It was Mr Whitaker’s job to prepare the auction sale plan, which was then used for the purpose of the 1969 conveyance.  He enlarged an Ordnance Survey plan and identified each lot by number and by edging its boundary.  It appears to have been carefully done.  Mr Whitaker states at paragraph 9:
“I can also recall that at the time of the sale taking place in 1969, that the main means of access to “The Croft” otherwise known as Teasdale’s Nursery (lot 6.) was from points A to B on the attached plan which I have coloured blue and comprised a gravel driveway.  This access track was not sold off or lotted separately to lot 6 and provided access for lot 6 to Queen Street without which lot 6 would have been less marketable and would not have been lotted separately if it had not had its own means of access. ”
Mr Whitaker explains how the properties were sold privately before the auction, lots 4, 5, 6 and 7 to Mr and Mrs McCullough and lots 1, 2 and 3 to a Mr Douglas Wilkes.
30.	The critical point, as I see it, is that the track is not shown as included in lot 6.  It is a reasonable inference that Mr Whitaker was given clear instructions as to the different lots and that he worked to those instructions.  If it had been intended to include the track in lot 6, it is reasonable to assume that he would have been so instructed.   The plan and Mr Whitaker’s evidence provide no sound basis for concluding that it was intended to include the track in lot 6 or in the sale to Mr McCullough, but, rather, the reverse.
31.	On the basis therefore of the proper construction of the 1969 conveyance, read in the light of the conveyancing history and surrounding circumstances, I agree with the Deputy Adjudicator’s conclusion that the track was not conveyed to Mr McCullough.  It is unnecessary therefore to consider whether, if Mr Armstrong did not have the benefit of a valid express right of way, he and his predecessors in title acquired a right of way by prescription.
32.	Mr McCullough contended also that, in any event, he should not have been ordered to pay the entire costs of the hearing before the Deputy Adjudicator when he had previously applied for the issue of ownership of the track to be dealt with separately first, so saving on the costs of Mr Armstrong’s application if the issue was decided against Mr McCullough.  A decision was taken to have a single hearing on all issues, on case management grounds which appear to be entirely sensible.  Mr McCullough did not seek to appeal that decision, rightly in my view.  In these circumstances, his failure on the ownership issue led, correctly in my judgment, to the order that he pay the costs of the hearing.
33.	I will accordingly dismiss the appeal.