REF/2008/0083

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Melvin Jeremy Philip Fordham

APPLICANT

and

William George Edscer and Frances Eve Edscer

RESPONDENTS

Property Address: Land at Oldlands Wood, Herons Ghyll, Uckfield
Title Number: ESX204282

Before: Mr Edward Cousins sitting as The Adjudicator to HM Land Registry

Sitting at: Victory House

Applicant Representation:	Mr David di Mambro, of Counsel, instructed by McGrigors, Solicitors
Respondent Representation:    	 Mr Paul Letman, of Counsel, instructed by	Messrs Adams & Remers, Solicitors

DECISION

CORRECTED PURSUANT TO RULE 57 OF THE ADJUDICATOR TO HM LAND REGISTRY (PRACTICE AND PROCEDURE) RULES 2003
___________________________________________________________________________
KEYWORDS: right of way for all purposes over part of bellmouth entrance way adjoining A2 – proprietary estoppel - Land Registration Act 2002, Sch 12, para 9) - Land Registration Rules 1925, r 258 - 

Cases referred to: Ramsden v Dyson (1866) 1 HL 129; Crabbe v Arun DC [1976] 1 CH 179; Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133; Celsteel Limited The Alton House [1985] 1 WLR 204; Thatcher v Douglas [1996] NLJ 282; Sommer v Sweet [2005] EWCA Civ 227; Gale on Easements, (18th Edition, paragraph 2.04); United Land Co v Great Eastern Railway Co (1873) LR 17 EQ 158; White v Grand Hotel, Eastbourne [1913] 1 Ch 113; and Robinson v Bailey [1948] 2 All ER 791;

THE APPLICATION
1.	Mr Melvyn Jeremy Philip Fordham (“the Applicant”) is the sole registered proprietor of land and premises known as Herons Ghyll Manor, and situate at Herons Ghyll, Uckfield, East Sussex TN2 3TX registered at HM Land Registry under title number ESX204282 (“Herons Ghyll Manor”).  Herons Ghyll Manor was formerly known as Oldlands Leys. Mr William George Edscer and Mrs Frances Eve Edscer (“the Respondents”) are the registered proprietors of land and premises adjoining Herons Ghyll Manor known as Oldlands Farm (“Oldlands Farm”), and situate at Oldlands Hill, Herons Ghyll, aforesaid, registered under title number ESX67107. 

2.	On 8th May 2007, the Respondents registered a unilateral notice in Form UN1 dated 3rd May 2007 at HM Land Registry against Herons Ghyll Manor claiming the benefit of a right of way arising by virtue of proprietary estoppel.  On 17th May 2007, the Applicant made an Application in Form UN4 for the cancellation of the unilateral notice entered by the Respondents.  The UN1 lays claim to a right of way for all purposes to and from Oldlands Farm over an area of land falling with the ownership of Herons Ghyll Manor in order to gain access to and egress from the A26.  

3.	The Hearing of the Application took place at Victory House on the 9th and 11th June 2009, which was preceded by a site view in the presence of the parties, and their representatives, on the 4th June 2009.  

THE BACKGROUND
4.	The dispute between the parties centres on the use of a bell-mouth entrance way (“the Bellmouth”) where the driveways from the parties’ respective properties converge.  The layout and use of this entrance way is demonstrated in a number of photographs and further explained in the UN1 to which there are annexed three plans referred to as “Plan A”, “Plan B” and “Plan C”.  Plan A is an enlarged version of the Bellmouth area of the filed plan of Herons Ghyll Manor/ Oldlands Leys. Paragraph 13 of UN1, inter alia, refers to the shared use of the Bellmouth which is an issue in the case.

5.	Prior to the 12th May 1986, Herons Ghyll Manor/Oldlands Leys and Oldlands Farm were in common ownership, the registered proprietor of which was a company known as Helyg Investments Limited (“Helyg”). Mr Peter Meyer (“Mr Meyer”) was its director. The title information provided in the trial bundle (“the Bundle”) indicates that both properties formed part of land registered by Helyg under Title No ESX67107.  Mr Meyer and his family formerly occupied Oldlands Farm as a secondary residence, their main residence being in France where he worked.  

6.	By a transfer of part dated 12th May 1986 made between Helyg and the Respondents (“the May 1986 Transfer”) that part of the land known as Oldlands Farm was transferred to the Respondents and registered as such under title number ESX67107 at HM Land Registry on 11th June 1986.  Land including Oldlands Leys was at that stage retained by Helyg. Oldlands Leys itself consisted of a bungalow residence together with outbuildings and stables and surrounding land. After the sale of Oldlands Farm the bungalow at Oldlands Leys was then demolished and Mr Meyer constructed an entirely new house from timber structures brought from other sites around the country which was then re-named Herons Ghyll Manor.  Whilst the construction works were being undertaken Mr Meyer and his family lived at weekends in the outbuildings.  surrounding the site. In about 1990 Mr Meyer separated from his wife and spent much less time at Herons Ghyll.

7.	Following this on 11th October 1994 part of the land registered at HM Land Registry under title numbers ESX100070 and ESX121781, and which included Oldlands Leys, was sold by Helyg to the Applicant, the transfer being dated 8th November 1994 (“the November 1994 Transfer”).  This transfer was registered at HM Land Registry on 8th December 1994 under Title No ESX204282.  

The grant and reservation of mutual rights of way in the May 1986 Transfer 
8.	Mr Meyer asserted during the course of his evidence that on the sale of Oldlands Farm there was no necessity for the property to have a separate access point from its eastern boundary to and from the A26 as it already had access from the south via Oldlands Hill to the A26 through Herons Ghyll Village.  On the sale of Oldlands Farm, however, an agreement was reached between the parties’ solicitors on behalf on their clients that mutual rights should be granted and reserved to the following effect:- 

(1)	Helyg/Mr Meyer and his family wanted to secure a reservation in their favour of a right of way over the land to be sold to the Respondents so as to enable him and his family to continue to gain access to Ashdown Forest over Oldlands Farm via Oldlands Hill. This means of access they would have otherwise have lost on the sale of the property. As Mr Meyer stated during the course of his evidence, it was far too dangerous for his family to ride on horseback, or walk, along the A26 in order to reach the Forest.

(2)	In return for this reservation Mr Meyer was prepared to grant a right of way over the retained property for the benefit of the Respondents and their successors in title for access to and egress from the A26 via the retained land to the east. 

9.	Thus the May 1986 Transfer to the Respondents included the grant of a right of way for the benefit of the Respondents or their successors in title “…for all normal, domestic and agricultural purposes of access to and egress from [Oldlands Farm] to use the entrance driveway leading from the…A26…” as shown tinted brown (“the Brown Land”) on the plan annexed to the May 1986 Transfer (“the Plan”). The Brown Land is a strip of land falling within Herons Ghyll Manor/Oldlands Leys at the southern side of enclosure number 0022 lying at the south-eastern corner of enclosure number 9020 where it abuts enclosure number 9521. The Brown Land is hatched blue on the filed plan to Title No ESX204282 (see the note to paragraph 7 in the Charges Register). I should state that this strip formerly appears to have been described as enclosure number 0012. The May 1986 Transfer also reserved a right of way in favour of Helyg and its successors in title with or without vehicles and animals for all usual agricultural purposes of access to and egress over part of Oldlands Farm as shown coloured yellow on the Plan (“the Yellow Land”).

10.	In order to give effect to the grant of the right of way over the Brown Land for the benefit of Oldlands Farm a gap was created in the boundary fence between the two properties apparently at the south eastern corner of enclosure number 8118 and a gate erected at that point. A link was then created to a new short roadway which was excavated by the Respondents between that point and the north eastern side of the outbuildings to the north of Oldlands Farm.

The October 1987 storm and the alteration of the mutually agreed rights and reservations 
11.	It is the Respondents’ case that following the Great Storm which occurred in mid-October 1987, when a considerable number of mature trees were destroyed in southern England, Mr Edscer “the First Respondent”) and Mr Meyer agreed to an alteration in the mutual rights and obligations with regard to the existing rights of way entered into in the May 1986 Transfer.  The First Respondent saw this as an opportunity for him and his wife to create a new access way (“the New Accessway”) over their land from the outbuildings and workshops at Oldlands Farm to the Bellmouth. At the south western edge of the Bellmouth, where it abuts the hedge line of Oldlands Farm, there was already in existence a wooden gate to the south of the boundary line between Oldlands Farm and Herons Ghyll Manor.  The New Accessway would run parallel and immediately to the south of that boundary fence separating the two properties. 

12.	 I shall refer to the evidence, below, but suffice it to say that on the 28th December 1989 the parties entered into a deed of release (“the Deed of Release”) whereby Helyg and the Respondents respectively released the rights and reservations contained in the May 1986 Transfer relating to the rights of way granted in favour of the Respondents over the Brown Land, and the rights of way reserved to Helyg over the Yellow Land.  The circumstances surrounding the Deed of Release, however, are in contention, namely:- 

(1)	Whether and when there was a prior oral agreement between Mr Meyer (on behalf of Helyg) and the First Respondent, and the terms of the same; 
(2)	Whether there was any reliance upon any such terms agreed, and/or any detriment was suffered in reliance; 
(3)	The date when the new Accessway was actually formed.  

13.	The formation of the new Accessway involved the removal of the gate and the reinstatement of the fence at the south eastern corner of enclosure number 8118 and the formation of a road surface along the New Accessway from the outbuildings and workshops at Oldlands Farm to the old wooden gate situate next to what became the Bellmouth.  This involved some considerable construction work with the use of JCBs and the like, and in particular at the area immediately to the north of the outbuildings at Oldlands Farm, where there is a sharp incline in the contours of the field.  I should state that there is scant evidence as to the date of the actual construction of the Bellmouth in its present shape, but it is likely that this occurred in about 1988/1989 as part of these works of construction.

14.	It is also instructive to note that the Deed of Release omitted to grant any further rights of way in favour of Oldlands Farm over Helyg’s land and premises at its eastern boundary and in the vicinity of the Bellmouth.  

Bersche-Rolt Limited
15.	In 1992 the Respondents incorporated a new company, Bersche-Rolt Limited (“Bersche-Rolt”), which manufactures reinforced concrete products.  One of the issues in the case involves the use of the New Accessway in connection with the operation of this business and the fluctuations in traffic along the same. 

16.	In 1994, Helyg was wound up and Barclays Bank plc (“Barclays”) became the mortgagee in possession of Oldlands Leys and then proceeded to sell the property.  The Applicant stated during the course of his evidence that he visited Oldlands Leys about four or five times during the spring and summer of 1994 before proceeding to purchase in November 1994.  The Applicant, in effect, purchased the balance of the land retained by Helyg, by the November 1994 Transfer which was registered in December 1994. 

17.	Contained within the Bundle are the Replies to Preliminary Enquiries dated the 4th October 1994 which were provided by Barclays. Reply number 5 stated that Barclays were not aware of any current disputes, and reply number 8(1) stated that they were not aware of any adverse rights affecting the property other than as disclosed.  The information provided in the Replies was also the subject of a caveat to the effect that Barclays could only speak for matters since the date when Helyg vacated Oldlands Leys.  The effect of the sale agreement dated the 11th October 1994 was that the property was sold subject to all matters contained in the public registers, and overriding interests.  The Bundle does not contain any Requisitions on Title.

Activities at Oldlands Farm and Herons Ghyll Manor/Oldlands Leys from 1994 to date
18.	Since the beginning of January 1995 the Applicant has lived at Herons Ghyll Manor/Oldlands Leys together with his partner, Ms Turner.  The use made of the property has been domestic as well as business-related.  The business activities are connected with horse racing and riding and fall within local planning policy and guidance.  Shortly after moving in there was a social meeting between the Applicant and Ms Turner and the Respondents during the course of which the Respondents talked about their business activities.  

19.	In 1996, the First Respondent made an application for a Certificate of Lawful Use in respect of mixed agricultural and industrial use at Oldlands Farm.  Statutory declarations sworn in support of this application are contained in the Bundle, and these provide some indication of the mixed use carried out at Oldlands Farm since its purchase.

20.	In 2000, the Applicant built a sand-school in the vicinity of the boundary between the two properties so as to enable Ms Turner to train horses.  Planning permission was sought and obtained for this.  Thereafter in 2003 and 2004 the Applicant and Ms Turner decided to train racehorses imported from Ireland.  These horses were young, unbroken and easily “spooked” by traffic noise.  It is common ground that in 2004 the Respondents resurfaced the New Accessway.  The use made of the new roadway by the Respondents and their licensees and invitees is in contention. It is asserted that the use intensified after the resurfacing works were effected.  The Applicant and Ms Turner said that they became aware of an increasing problem with the horses due to traffic using the New Accessway. The first complaint was made in October 2006 by telephone. In March 2007 the Applicant made a written complaint to the Respondents as to such use.  In response to this written complaint, the First Respondent replied by asserting that he owned land (undefined) at the Bellmouth. It would appear that there was no falling out between the parties until the use of the New Accessway intensified.

21.	It is in this context that the Respondents made the Application in the Form UN1 and the Applicant responded by applying to cancel the registration in Form UN4.

THE RESPECTIVE CASES FOR THE PARTIES - A SUMMARY
	The Respondents’ Case
22.	The Respondents contend that in late 1987 the Respondents “specifically” agreed during the course of a conversation and a telephone call with Mr Meyer that as part of the re-arrangement of the mutual rights and reservations, which later were encapsulated in the Deed of Release, there would be a shared use of the Bellmouth for access to and egress from the A26.  They further claim that they carried out the works and improvements to the New Accessway in effect in reliance upon the terms of this agreement, and that this reliance, coupled with the terms of the Deed of Release, gave rise to the detriment they suffered. I should state that reliance and detriment are not pleaded as such. It is the Respondents’ case that they have used the improved New Accessway on a continual daily use basis with and without vehicles including lorries over the New Accessway.  

23.	 I should also state that there is some contradiction in the Respondents’ case as to whether or not the right of access over the Bellmouth was a shared right over the whole, or whether there was exclusivity over part of the area of the Bellmouth arising from the Respondents’ ownership of that part.  

The Applicant’s Case
24.	It is the Applicant’s case that there was no such oral agreement as asserted, and Mr Meyer has no recollection of any such conversation.  It is also contended that any such conversation giving rise to an alleged agreement is completely inconsistent with the fact that the Deed of Release had been produced in order to alter and disentangle the mutual rights and reservations over the respective properties of each party.

25.	Further, it is contended by the Applicant that it was implicit from the context of any alleged conversation relied upon (which is denied in any event) that: 

(1)	the use of the New Accessway was limited to residential/agricultural purposes only as had been the case in relation to the express grant of the  right of way over the Brown Land  extinguished by the Deed of Release; 

(2)	Such use was to be at the same level of intensity as that at which the Brown Land was used at that time;

(3)	It was to remain a secondary means of access and was not to become the primary means of access to and from the Respondents’ land, there being an existing southern route from Oldlands Farm to the A26.

THE ISSUES
26.	Counsel for each party has produced separate lists of issues for my benefit.  In my judgment as the burden lies on the Respondents to demonstrate the existence and extent of the right of way over the Bellmouth for access to and egress from the A26 in favour of Oldlands Farm along the New Accessway, I consider that it is appropriate to set out the issues as propounded by the Respondents. These have been suitably modified where necessary to take account of the Applicant’s submissions.  The issues that need to be addressed are therefore as follows (“the List of Issues”):-

(1)	Boundary Line – clarification of the line of the boundary between Herons Ghyll Manor and Oldlands Farm at the Bellmouth and its eastern extension to the A26.  It is the Respondents’ case that the boundary line effectively bi-sects the Bellmouth.  This is rejected by the Applicant who contends that the line of the boundary to the A26 is the continuation in an easterly direction of the fence and hedge line which formerly existed at that point before the Bellmouth was created. It is contended by the Applicant that on the ground you can actually see the edge of the metalled surface of the Applicant’s land at the Bellmouth, albeit somewhat jagged.  If this interpretation be correct, then approximately two-thirds of the Bellmouth lies within the ownership of the Applicant.  

(2)	Alleged Oral Agreement – by the terms of an oral agreement made with Mr Meyer whether the Respondents acquired an equitable easement giving rise to a right of way (with or without vehicles) over that part of the Bellmouth in the ownership of the Applicant. In which case this was binding upon Mr Meyer by virtue of the provisions of Rule 258 of the Land Registration Rules 1925 (“Rule 258”).  

(3)	Proprietary Estoppel – Further or alternatively, irrespective of whether there was an express oral agreement made between the Respondents and Mr Meyer, the Respondents assert that they are entitled to an equitable easement in the form of a right of way by virtue of the operation of the principles of proprietary estoppel which binds the Applicant by virtue of the provisions of Rule 258.

(4)	Enhanced Rule 258 claim – Further or alternatively, whether at the date of the Applicant’s purchase of Oldlands Leys there existed a sufficient right or privilege to the shared use of the Bellmouth “appertaining” or “reputed to appertain” to Oldlands Farm, or “enjoyed therewith” within the scope of Rule 258, thereby constituting an overriding interest binding on the Applicant as the Registered Proprietor.

(5)	Purpose of Use – Whether or not the rights of way or other rights or privileges held to exist under any of the above issues is subject to any implied limitation to residential/agricultural purposes only, or as to the intensity of use, or as to it being a secondary means of access and not a primary means of access to and from the Respondents’ land.  It is asserted by the Respondents that this is not a matter arising for consideration in this Adjudication, but in deference to Paragraph 22 of the Applicant’s skeleton argument, I have included this in the List of Issues. 

THE EVIDENCE
27.	Both sides relied upon documentary and oral evidence in support of their cases. In the case of the Applicant both he and his partner, Miss Rebecca Turner, gave evidence, and Mr Meyer was also called. Both Respondents gave evidence in support of their case, together with Mr David Proudfoot.  The Respondents also relied upon the witness statement of Mr Robert Morley Warner purportedly served under the provisions of Part 33.2 of the Civil Procedure Rules.  

28.	I have referred to the essence of the evidence given during the hearing in the summary of the respective cases for the parties, above. There are, however, a number of points which should be examined in more detail as they were the subject of some contention during the course of evidence and subsequent submissions.  

The alleged oral agreement
29.	It is common ground that there was an alteration of the mutually agreed rights and reservations granted and reserved in the May 1986 Transfer.  What is in contention is whether any oral agreement was entered into, or representations made upon which the Respondents relied to their detriment, at some stage prior to the Deed of Release, granting the Respondents other rights, in particular over the Bellmouth.  Mr Meyer confirmed during the course of his evidence that he was approached by the First Respondent at a stage approximately twelve months before the completion of the Deed of Release to agree to removing the existing mutual rights and reservations.  The basis for this, it is said, was for reasons of privacy for the Respondents and it was instigated by the First Respondent. He left the arrangements to the lawyers to conclude by an appropriate deed.  Mr Meyer was repeatedly cross-examined on the issue as to what was said/agreed during the course of conversations, but he could not recall precise dates and he stated that about this time at the turn of the decade until about 1994 it was a tense time for him personally as the marriage between Mr Meyer and his wife was under considerable strain and he had by then become a weekend visitor. Sadly, these difficulties culminated in the break up of his marriage in 1994. 

30.	Mr Meyer, however, was emphatic that if there had been such an agreement, or any discussions, as to the proposed grant of new rights of way, he would have asked his lawyers to document it in a formal way, either to be included in the Deed of Release with the grant of new rights in favour of Oldlands Farm, or in some other manner. He could not recall any such discussions. Thus, Mr Meyer disagreed with the assertions made by the First Respondent that in some way there could have been reliance upon any conversation with the result the First Respondent then went ahead and expended money and agreed to the terms of the Deed of Release.

The construction of the New Accessway
31.	In the witness statements provided by Mr Robert Morley Warner and Mr Proudfoot there is reference to the construction of the New Accessway as having been built in the Autumn 1988.  Mr Proudfoot’s evidence during the hearing is that he met the First Respondent during the course of 1988 to agree the extent of various works to be effected at Oldlands Farm including the construction of this new route.  In his evidence he could not be more specific about when the construction was commenced and completed, but having regard to a written sign fixed to the wall of one of the barns at Oldlands Farm, as to the date of construction of the barn being 1989, his view was that the New Accessway was completed before that date.  My attention was drawn to this sign during the course of the Site View. In the Bundle, there is also a hand-written note dated 22nd September 1988 from one of the Respondents’ employees (Mr A Lester – Bundle, at page 133) which noted a conversation which took place the previous day with a local planning officer the subject matter of which was the access road to Oldlands Farm.  This was an enquiry to confirm if planning permission was required to “tee” into the existing access road so as to provide access for forestry and agricultural purposes.  It is to be noted that the employee concerned appears to have believed that the existing access road was actually situated on the Respondents’ land as there is a reference to “your land”.  

The video recording
32.	A video recording with commentary by the First Respondent was played during the course of the evidence. This appears to be been created in November 1988.  This recording shows the New Accessway in the process of construction.  I should state that the commentary is in the nature of a self-serving statement and conveys the First Respondent’s apparent intentions at the time of the recording. It is, however, inconsistent with the evidence given the course of the hearing before me in certain material regards.  I refer particularly to four observations made by the First Respondent during the course of the recording:-

(1)	With the construction of the New Accessway, the Respondents would be completely separate from Oldlands Leys (transcript at 12.28, Bundle, page 183).  There were references to being “autonomous”, and “not having to rely on anyone’s property or road to get where we want” (transcript at 18.35, Bundle, page 185).

(2)	The First Respondent referred to the re-arrangement of the mutual rights of way as being a matter which was not yet agreed at that stage.  He makes specific reference to his intention to offer back the old road that he owns and in return “seek my right of way” over the road on the other side of the fence line (transcript, 14.06, Bundle, page 184). 

(3)	When the New Accessway was finished, the Second Respondent was to have a stile so as to enable her to take and collect her children on their way to and from school “which is really the plan” (transcript, 26.53, Bundle, page 188).

(4)	There was also a rather odd reference to Mr Meyer and the Oldlands Leys “development ….I don’t think we should interfere with that. I wonder if there will be any reaction, we’ll just have to see” (transcript at 27.59, Bundle, at page 188). To what this refers is unclear, but it may be an indication of the First Respondent’s works of construction in progress creating the New Accessway and whether Mr Meyer might respond as there appears to have been no prior notification of such intention.

33.	Enclosed in the bundle is also a market valuation provided by Bernard Thorpe dated 15th June 1990 in which there is reference to “…a separate access to the farm buildings directly off the A26 via a farm track”. Thus it is clear by this date that the new Accessway had been completed.
 
The Deed of Release and use made of the New Accessway
34.	Contained in the Bundle there is a letter dated 10th January 1989 from the Respondents’ solicitors which confirmed instructions to approach Helyg “to request that the mutual rights of way over the shared roadway to [Oldlands] Farm are cancelled in consideration of your constructing a new accessway”.  There is no documentary evidence affirming Mr Meyer’s awareness that the New Accessway was being built in consideration of the proposed Deed of Release, or that he was aware of the construction of the new route. There is an assertion in the letter from the First Respondent to the Applicant dated 15th March 2007 as to it having been “…constructed by arrangement with the previous owner of your property...” but this is denied by Mr Meyer. Also there is no documentary evidence indicating that the Deed of Release was somehow dependent upon some form of prior oral agreement made between the parties in 1987/8, or at all.  There is, however, a letter dated 12th April 1989 from the same firm of solicitors to the First Respondent enclosing a draft version of the Deed of Release.  This letter notes no reference was made to the construction of the new route in the draft for two reasons – first, because the drafter thought it to be irrelevant, and secondly he believed that the First Respondent would have completed the construction of the new driveway before the Deed of Release was executed. In this context it is to be noted from the evidence of the First Respondent that the New Accessway works of construction had already commenced at the end of 1987 some two years before the Deed of Release was finally executed. It is also constructive to note from the evidence that the agreement to cancel the existing rights and reservations was initiated by the First Respondent and not by Helyg.

35.	The completed Deed of Release contains no reference to the continued sharing arrangements via the Bellmouth as contained in the May 1986 Transfer, or the improvements carried out by the Respondents in the creation of the New Accessway.  Mr Meyer gave evidence that he did not see the new driveway in use, and could not recall when was completed.  I should state that at this stage he was not spending very much time in Oldlands Leys owing to the underlying matrimonial difficulties, to which I have referred above.  During this period, Mr Meyer only visited the premises at weekends.  Between the period between 1990 and 1992, however, complaints were being received by him from his employees at Oldlands Leys who reported more traffic noise on the New Accessway.  Prior to that, the evidence reveals in the form of the Statutory Declaration of Mr John Wenban (for the purpose of the application for a Certificate of Lawful Use) referred to the fact that the workshop at Oldlands Farm was very quiet in about 1990.  Insofar as Mr Meyer was concerned, he appears to have taken the view that the increased traffic and noise along the New Accessway was a matter for the local Highways Authority, and if there was any encroachment at the Bellmouth over his boundary line, he did not take issue with it.  

36.	Insofar as the Applicant is concerned, his evidence reveals that he visited Oldlands Leys about 4 or 5 times in the Spring/Summer of 1994 before the purchase was completed in November 1994.  He asserted that before and after purchase, he did not see the New Accessway in use.  He stated that his lawyers had reported to him that any rights in favour of Oldlands Farm over Oldlands Leys had, in effect, been surrendered by the Deed of Release in 1989.  He also stated that he did notice a “rough overgrown farm track” running parallel to the driveway to Oldlands Leys/Herons Ghyll, with a locked gate at its eastern end.  He said that it looked in “very very little use”.  His mind was not occupied to the extent of the boundary between the properties until he redeemed his mortgage and received back his “title deeds” in 2004.  This was at a stage when the traffic on the New Accessway intensified, according to the evidence (an observation also made by Ms Turner).  After he moved into Oldlands Leys, the Applicant observed that if the Bellmouth was used, he would not have regarded it as important and would have turned a blind eye to occasional use.   

37.	After the purchase of Oldlands Leys by the Applicant at the end of 1994, and shortly after he and his partner had moved into the property, there was a social meeting in about January 1995 between the Applicant and Ms Turner and the Respondents.  During the course of this, the Respondents apparently talked about their business activities. The Applicant and Ms Turner both asserted that the Respondents represented during the course of this informal meeting that the manufacturing and distribution of their concrete products occurred off-site in Sheffield.  The Applicant for his part said that he got the impression that was a “paper office” operation carried out at Oldlands Farm. The Respondents during the course of their evidence asserted that they would not have said this as the business was run from Oldlands Farm at that stage.  

38.	Insofar as Bersche-Rolt is concerned, the evidence reveals that from its incorporation until 1994 there was modest use made of Oldlands Farm.  For example, reference was made during the course of the evidence to a workforce of approximately five persons (including two of the Respondents’ sons) and to steel rods being collected by motor car. The level of business fluctuated, presumably in response to demand and because this was a new venture for the Respondents. The First Respondent in his evidence stated that he had been using premises elsewhere until 1994 when he moved operations to the workshop at Oldlands Farm.  His evidence was that the New Accessway was in daily use in connection with the business.  His version, however, is not corroborated by Mr Meyer, but, as I have mentioned above, by this stage, Mr Meyer was a weekend visitor.  Thus, the evidence of a daily business use between 1989 and 1994 is not conclusive, and the First Respondent did agree during the course of cross examination that traffic fluctuated and that some activities were carried out off-site.

39.	In about 2004 the Respondents resurfaced the New Accessway.  The evidence of the Applicant and Ms Turner was that the use of this roadway by vehicles intensified from about that time.  For his part during the course of his evidence the First Respondent agreed that Bersche-Rolt was becoming increasingly busy at this stage.   In 2006, the Applicant verbally complained to the First Respondent about what he perceived as the nuisance caused by the volume of traffic on the New Accessway.  The Applicant made a further complaint, this time in writing by letter dated 5th March 2007 (Bundle, pages 98/99), and it was in response to that that the First Respondent asserted that he owned at least some of the land at the Bellmouth, although the area is not defined (see the letter dated 15th March 2007, Correspondence Bundle Vol 1, at pages 6 and 7).

40.	The Respondents’ recent planning applications included a traffic survey.  According to this survey, in about 2008 Bersche-Rolt was the predominant user of the New Accessway and the Bellmouth.  Traffic generated by the business was reported to be at an average of 38 trips per day and could reach as much as 54 trips per day.  Documents included in the Bundle from East Sussex County Council also suggests that during the period November 2008 that there were up to 60 movements per day along the New Accessway.

41.	In about 2008, the Respondents retained a Planning Consultant, a Mr Rollings.  Contained in the Bundle are communications between Mr Rollings and the local planning authority.  The subject matter of such communications is the desire for planning permission be granted for the construction of a new entrance to the A26 in order to provide access over part of the land comprising the Bellmouth and land immediately to the south of it which, it was said, fell within the ownership of the Respondents.  The expressed reason was for agricultural and other purposes. In a letter from Mr Rowlings to the Local Planning Authority dated 16th January 2008 (Bundle, at page 216), it is stated that it was intended to share access with “an adjacent property” but as agreement could not be reached it became necessary to provide the workshops at Oldlands Farm with a separate access. A planning application to this end was produced during the hearing dated 30th May 2009 and received by the local planning authority on 2nd June 2009 (Bundle, at pages 198 – 218). Reference is made to a “shared access arrangement”, but “…there is now a boundary dispute over the legality of its use where it reaches the A26” in the context of the desire to construct “…a wider access alongside the existing access on land definitely within [the First Respondent’s] ownership…. [which] will for all practical purposes look like one double access…”.

The Boundary Line at the Bellmouth
42.	As to the boundary line between Oldlands Farm and Oldlands Leys/Herons Ghyll at the Bellmouth, during the course of their evidence the Respondents asserted that the boundary line effectively bisects it.   The effect of this submission is that the notional line to be drawn to the east to the point where it meets the A26.  In effect this divides the Bellmouth in half and points to the centre of a bellmouth on the opposite side of the A26.  This means that the notional boundary line between the properties lies at a higher point across the Bellmouth on an east/west trajectory than that contended for by the Applicant. This is illustrated by the sketch plan in the Respondents evidence (Bundle, at page 64), and as indicated by a broken red line marked on a photograph in Annex B to the Boundary Line Bundle. 

43.	I should also state that there is a manifest inconsistency in the Respondents’ case. On the one hand they appear to acknowledge that the Bellmouth falls within separate ownership and that there is some form of shared access rights over the whole. On the other hand there is no such shared access, but instead the separate ownership of two parts with the boundary line between the properties lying at a higher point on the east-west trajectory across the Bellmouth enables them to use their part without infringing the ownership rights of the Applicant.  

44.	For his part, however, the Applicant asserted during the course of the evidence that the boundary line between the two properties is a notional eastward continuum of the existing boundary hedge and fence line. This metalled driveway was and continues to be primarily within the Applicant’s title up to approximately two feet to two and half feet beyond the dropped kerb at the edge between the Bellmouth and the A26.  Further it is asserted that this notional boundary line is consistent with the Title Plan of ESX67107, the Plan annexed to the May 1986 Transfer, and the boundary survey plan carried out by Acre Surveys Ltd dated February 1986 and produced by the Respondents as part of their case (see Annex 5 in the Boundary Line Bundle). The Applicant also relies upon the Respondents’ plan of the proposed entrance attached to the 2009 Planning Application dated 16th December 2008, upon which there is a note appended showing the boundary as the “extended boundary fence to highway”. In support of his case the Applicant also produces 4 photographs upon which red lines are drawn to indicate the line of the notional boundary. In short it is asserted that the greater part of the Bellmouth lies within the ownership of the Applicant.

THE LEGAL POSITION
Proprietary Estoppel
45.	Insofar as this claim is concerned, the Respondents rely upon a line of authority originating in the speech of Lord Kingsdown in Ramsden v Dyson (1866) 1 HL 129, as developed in more recent cases such as Crabbe v Arun DC [1976] 1 CH 179 and in the case of Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133.  I do not propose to repeat the analysis helpfully set out by Counsel for the Respondents in his written closing submissions enhanced by other submissions at the conclusion of the evidence.  Suffice it to say that if I were to find that an oral agreement had been concluded between Mr Meyer and the Respondents as to its shared use, then it is submitted that the proprietary estoppel claim is unanswerable. If in the event, however, that I decide that there was nothing expressly agreed between those parties, then as a matter of implication and inference from indirect statements and conduct there was plainly a sufficient assurance or representation on the part of Mr Meyer as to the continued shared use of the Bellmouth, and a right of way over that part of the Bellmouth within the land comprising Herons Ghyll, for the claim to succeed.  Helyg/Mr Meyer plainly allowed or encouraged the Respondents to believe that they would continue to enjoy the shared use of the Bellmouth and it would have been unconscionable for them and their successors to have denied that right.  

46.	For his part Counsel for the Applicant relies upon a passage in Gale on Easements, (18th Edition, paragraph 2.04) as being of particular importance as to the wide discretion of the court in granting relief. The factors to be taken into account in the exercise of such discretion include the following:

(1)	immediately adjacent to the farm outbuildings at Oldlands Farm there is a perfectly convenient access to the highway;
(2)	the general industrial use at Oldlands Farm and the New Accessway is unlawful as it does not have the benefit of planning permission and a certificate of lawful use has been refused;
(3)	the use of the New Accessway  to the insity to which it is used is an actionable nuisance.

Overriding Interests
47.	It is submitted that provided the Respondents can establish an equitable easement or other right or privilege within the scope of Rule 258 of the 1925 Rules that would constitute an overriding interest binding upon the Applicant as successor in title to Helyg.  In support of this proposition, the Respondents rely upon the decision of Scott J in Celsteel Limited The Alton House [1985] 1 WLR 204 and subsequent decisions in which that case has been followed and applied, inter alia, namely Thatcher v Douglas [1996] NLJ 282 and Sommer v Sweet [2005] EWCA Civ 227.  There was also referral to the transitional provisions under the Land Registration Act 2002 by which any easements that were overriding interests when the Act came into force on 13th October 2003 retained that status (Schedule 12, paragraph 9).  
Enhanced Rule 258 Claim
48.	Further or alternatively, the Respondents submit that at the date of the Applicant’s purchase they had a sufficient right or privilege to the shared use of the Bellmouth, “appertaining or reputed to appertain” to Oldlands Farm or “enjoyed therewith” within the scope of Rule 258, thereby constituting an overriding interest binding on the Applicant.

Purpose of Use
49.	It is the Respondents’ case that it is sufficient for the purposes of upholding the UN1 and dismissing the Application that the Respondents enjoy a right of way over the Bellmouth without seeking to declare the extent of that right.  Further, and without prejudice to that contention, the Respondents submit that unless some limitation can be found in the circumstances in the grant, effect should be given to the right and its extent will not be limited even by the user at the time of grant (see United Land Co v Great Eastern Railway Co (1873) LR 17 EQ 158, at pp 162, 167; White v Grand Hotel, Eastbourne [1913] 1 Ch 113 at p 116; and Robinson v Bailey [1948] 2 All ER 791 at p.795.  Thus it is contended that the right of way over the Bellmouth should be available for all purposes including commercial user, and that there is nothing in the facts of the release of the pre-existing rights of way and the substitution of the new right of way which indicates that the vehicular right of way current at the time (i.e. including user by cars, vans and lorries) was not intended by the parties to continue or should in any way be cut down.  

CONCLUSIONS
50.	Having regard to the various issues of fact and the legal principles set out above, I come to the following conclusions.  I find in favour of the Applicant to the effect that the Respondents have been unable to make out their case to a claim to a right of way for all purposes, or indeed any right of way whatsoever, to and from Oldlands Farm over that part of the Bellmouth falling within the ownership of Herons Ghyll Manor in order to gain access to and egress from the A26 trunk road.

51.	My reasons are as follows:-

(1)	Prior to the purchase of Oldlands Farm from Helyg by the Respondents there was no necessity for Oldlands Farm to have a separate access point at its eastern boundary to and from the A26 as it already had access from the south to the A26 through Herons Ghyll Village via Oldlands Hill. Further, were it not for Mr Meyer’s desire to secure for the benefit of his family the continued access to and from Ashdown Forest from and to Oldlands Leys/Herons Ghyll Manor, there would have been no need to include an additional right of way for the benefit of Oldlands Farm over the Brown Land forming part of the land within the ownership of Oldlands Leys/Herons Ghyll. I therefore accept the evidence of Mr Meyer in this regard. In other words, put shortly, the grant and reservation of mutual rights of way contained in the May 1986 Transfer was a form of “trade-off” instigated by Mr Meyer. 

(2)	The date of creation of the Bellmouth in its current extended formation as such is somewhat uncertain, but I find that this probably occurred at or about the time when the New Accessway was constructed at a stage prior to the Deed of Release – in other words probably at the end of 1988 or the beginning of 1989, or thereabouts. Thus at this time the original entrance way to Oldlands Leys/Herons Ghyll was widened southwards to include what is, in effect, a triangular area of land as shown on the filed plans to title numbers ESX67107 and ESX204282, respectively, (i.e. Oldlands Farm and Herons Ghyll Manor).  I find that this triangular area of land lay within the ownership of Oldlands Farm to the south of the then existing hedge and fence line which at this point formerly provided a physical definition of the legal boundary between the two properties on an east/west trajectory.  This fence and the hedge next to it were removed on the creation of this extended entrance way in about 1989.

(3)	As part of the works to the New Accessway the evidence reveals that a hardcore surface was then laid on this former triangular area of land which was married up to the existing metalled surface of the original part of the entrance way lying within the ownership Oldlands Leys/Herons Ghyll to form the Bellmouth.  As noted at the Site View there is a clear edge to be seen on the ground – albeit the edge is somewhat jagged - of the original surface of that part of the Bellmouth lying within the ownership of the Applicant where it abuts the more recent hardcore surface of the southern section of the Bellmouth lying within the ownership of Oldlands Farm.  

(4)	I also accept that there has always been a gate at the north east corner of enclosure number 0004 on the south west side of the triangular area of land (to which I have already made reference) some 15 to 20 feet away from the metalled surface of the A26 until the Bellmouth area was extended and the New Accessway were created by the Respondents. At this stage the old wooden gate was removed and replaced by a new steel gate

(5)	Thus I find that this is how the area now designated as the Bellmouth came to be formed. 

(6)	As to the position of the line denoting the boundary between the two properties across the Bellmouth I find that the boundary line is the notional continuum in a straight line of the existing boundary line on its eastwards trajectory until just short of the carriageway of the A26. This notional continuation of the boundary line is consistent with the details shown on the filed plans. These filed plans are in similar historical format and appear to be based upon the same edition of the Ordnance Survey map. The filed plan to ESX204282 marks the Brown Land over which the Respondents had been granted the right of way to the A26 as lying to the north of the boundary fence line separating Herons Ghyll Manor and Oldlands Farm. Plan A – being the enlarged area of the filed plan to title number ESX204282 (at page 5 of the Bundle) also demonstrates the direction of the fence line. This notional continuation of the boundary line is also consistent with the boundary survey of February 1986 and the extract from the Ordnance Survey digital Super Plan produced on the 6th June 2006 (Bundle, page 50). At the Super Plan stage it is to be noted that the Bellmouth is shown as having been created and that the New Accessway from Oldlands Farm into the Bellmouth had also been established. I also refer to the Respondents’ plan of the proposed entrance attached to the 2009 Planning Application dated 16th December 2008, upon which there is a note appended showing the boundary “extended boundary fence to highway”. The photographs contained in Annex 5 to the Applicant’s Points of Reply in the Boundary line Bundle also demonstrate the notional continuation of the fence line in the eastwards direction as represented by the red lines drawn thereon, which I accept to be an accurate representation of the same.

(7)	Thus I find that prior to the date of its development into its extended shape approximately two thirds of what now constitutes the Bellmouth lying to the north of the original fence and hedge had already been laid out as an entrance way for the benefit of access to and egress from Oldlands Leys/Herons Ghyll Manor onto the A26.  It was over this area that the Respondents had been granted rights of way as forming part of the Brown Land referred to in the May 1986 Transfer. In other words I reject the submission made by the Respondents that the notional line to be drawn to the east from the existing fence line between the properties divides the area in half and points to the centre of a bellmouth on the opposite side of the A26.  This would mean that the notional boundary line between the properties lies at a higher point across the Bellmouth on an east/west trajectory than that contended for by the Applicant. That submission of the Respondents I reject on the basis that the evidence to which I refer does not support that case, and my attention was drawn at the Site View to the fact one cannot draw any safe conclusions as to width and the size of the bellmouth on the opposite side of the A26 as it would appear to have been widened at some stage after the filed plans had been drawn.

(8)	Accordingly, I find that the boundary line between Herons Ghyll Manor and Oldlands Farm lies across the Bellmouth as a straight line continuation in an easterly direction following the original hedge/fence line to a point a few feet to the west of the metalled surface of the A26. This line is marked the four photographs produced by the Applicant, to which I have already made reference.  In my judgment that straight line continuation approximately follows the break in the surface of the Bellmouth, between the original metalled part and the newer hardcore area, such edge being somewhat jagged and inconsistent.  I should also state that I place no reliance upon the sketch plan produced by the Respondents (at page 64 of the Bundle). 

(9)	As to the Deed of Release, and the alleged oral agreement which, it is submitted, preceded this, I find as a fact that no such agreement was ever entered into between Mr Meyer and the First Respondent.  Mr Meyer was emphatic in his responses to the cross-examination directed to this point in that he had no recollection of there ever having been any conversation, let alone any oral agreement having been reached, between him and the First Respondent as to the grant of any rights over that part of the Bellmouth forming part of Herons Ghyll Manor. I accept Mr Meyer’s statements in this regard that the purpose of the Deed of Release was to alter and disentangle the mutual rights and reservations over the respective properties of each party.  I accept that Mr Meyer was indeed approached by the First Respondent at a stage approximately 12 months before the completion of the Deed of Release - not in 1987 - in order to seek to remove the existing mutual rights and reservations for reasons of privacy.  I further accept Mr Meyer’s statement that had there been an approach to consider the grant of further rights then he would have asked his lawyers to document it in some formal way, either to be incorporated into the Deed of Release with the grant of new rights in favour of Oldlands Farm, or in some other way. 

(10)	Further, the assertion made by the First Respondent to the effect that there was some form of prior oral agreement made between the parties in 1987 - or at any time - is somewhat bizarre in the context of the correspondence contained in the Bundle from the Respondents’ solicitors dated 10th January 1989 and 12th April 1989, the latter referring to the construction of the new road as being “irrelevant” to the issue at hand.  In the light of the fact that no oral evidence was provided by the Respondents’ solicitors on this point (privilege was waived by the introduction of this correspondence) one cannot speculate as to the background circumstances appertaining at the time. 

(11)	In such circumstances, I find that there was no oral agreement made between Mr Meyer and the First Respondent prior to the Deed of Release. Further I find that there were no representations made by him as to the grant of any further rights of way over the Bellmouth upon which reliance could be founded, and/or upon which any detriment was suffered.

(12)	Finally I should make the point that there appears to be some confusion on the part of the Respondents as to the precise terms of what they seek. I have referred to the manifest inconsistency in the Respondents’ case.  This arose during the course of the First Respondent’s evidence and also is contained in the documentary evidence. On the one hand they appear to acknowledge that the parts of the Bellmouth fall within separate ownership and they contend that there is some form of shared access rights or user rights, or a form of agreed permission, over the whole. On the other hand there is no such shared access, but instead separate ownership of two parts of the Bellmouth with the Respondents having exclusive ownership of an unspecified area of the southern part.  As part of that case they contend that the boundary line between the properties lies at a higher point on the east-west trajectory across the Bellmouth enabling them to use their part without infringing the ownership rights of the Applicant on the northern part.  This interpretation I have already rejected in sub-paragraph 7 above.

(13)	I reject the submission made by the Respondents that was any sufficient right or privilege to the shared use of the Bellmouth in the scope of the Rule 258 of the 2002 Rules.  The use that has been made over the Bellmouth which has increased in intensity over recent years has not, in my judgment, been effected as of right, nor arising under any privilege.  There is absolutely no evidence of the creation of any right or privilege in favour of the Respondents.  Further, their prescriptive right based upon twenty years user cannot arise in the circumstances as even on the Respondents’ own case, the New Accessway has only been in being since end of 1988 or the beginning of 1989.

(14)	Further, I reject the submission made as to the Respondents’ entitlement to an equitable easement in the form of a right of way by virtue of the operation of the principles of proprietary estoppel binding the Applicant.  Again, there is absolutely no evidence which gives rise to any form of estoppel upon which the Respondents relied and acted to their detriment.  

DECISION
52.	For the sake of clarity I find that the division of the Bellmouth falls along the line marked red as shown on the enlarged Ordnance Survey Plan referred to as Annex 3 in the Boundary Line Bundle and also as marked in red on the four photographs prepared by Mr M B Dutt as Annex 4.  Annexes 3 and 4 are appended to this Decision.   I also append Plan A annexed to UN 1. The driveway serving the Applicants’ property was and continues to lie within the Applicant’s Title to approximately two to two and a half feet beyond the dropped curb at the edge between the Bellmouth and the A26.  Further, any widening or other work undertaken by the Respondents at the Bellmouth over that part lying within their ownership subsequent to the May 1986 Transfer cannot and does not affect the line of the Boundary between Herons Ghyll Manor and Oldlands Farm at the Bellmouth.

53.	In such circumstances, I reject the evidence given by the Respondents and I find that they have been unable to make out their case to a claim for a right of way as sought or at all over that part of the Bellmouth owned by the Applicant.  In such circumstances, I shall direct the Chief Land Registrar to give effect to the original Application in Form UN4 made by the Applicant. 

Dated this 29th day of July 2009
Re-dated this 21st day August 2009

By Order of The Adjudicator to HM Land Registry

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