REF/2007/1107
REF/2007/1539

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
THOMAS LAMPLUGH BALLANTINE DYKES

 APPLICANT

and

1.	CUMBRIA COUNTY COUNCIL
2.	JOHN TERENCE HEWITT

RESPONDENTS

Property Address: Land adjoining Ewe Close Farm, Arkleby, Wigton, Cumbria
Title Number: CU193619
 
Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at:  Whitehaven Magistrates Court
On: 3 February 2010

Applicant Representation:  In person
Respondent Representation: First Respondent: Mrs. Longworth (solicitor)
			          Second Respondent: In person 
___________________________________________________________________________

DECISION

Application to amend the general boundary of the Applicant’s land fails for lack of evidence as to where that boundary should be.  Grass verges to road found to be part of public highway maintainable at the public expense.  Highway Authority cannot be precluded by its conduct from asserting that the verges were so maintainable.  Use of the verges by the public for parking without objection from the Highway Authority is not evidence that the verges are not so maintained or that the verges do not form part of the highway.  Extent of right of public to park on the highway considered.   

1.	For the reasons given below, I have come to the following conclusions:

(1)	Areas C1, C2, D and E on the plan on the following page form part of the public highway maintainable at public expense.  The surface is therefore vested in the First Respondent as highway authority and the referred application must be cancelled in respect of those areas.
(2)	Area B on that plan is part of the bridleway leading from the maintainable highway.  It is not maintained at public expense, and there is no evidence that it ought to be, although there is evidence that it was at one stage regarded as being so maintained.  The application in respect of area B must be cancelled because (a) the Applicant has failed to show that it was included in the land conveyed by the 1951 conveyances to which I shall refer below, (b) there is no other basis established on which he could claim it, and (c) if it was included, it would now form part of CU193621 and not CU193619.  The Second Respondent has no claim to any title to area B, but may have a right of way across part of it on one of the bases set out in (3) below.
(3)	In respect of area A on the plan, the application must be cancelled for the reasons given in (2)(a) and (b) above.  The Second Respondent has no claim to any title to area A, but may well have a right of way over it from the highway to his property, Wardhall Gate, and may also well have a right to park a car on it.  These rights may have arisen as a result of the conveyancing history of Wardhall Gate and they may have arisen by prescription either under the Prescription Act 1832 or under the doctrine of lost modern grant.  In the absence of a properly pleaded claim and of proper disclosure of the conveyancing history and of the circumstances in which access was exercised over the area and cars were parked on it, these are not matters on which I can make any findings on this reference.

2.	 I shall therefore direct the Chief Land Registrar to cancel the application of the Applicant dated 4 September 2006.

3.	This case concerns the ownership of an area of land adjoining the public highway C2001 in Cumbria (“the road”).  The area is shown on the plan on the following page.  The Applicant, Mr. Ballantine Dykes (“BD”), claims title to all of the land marked from A to E.  The First Respondent, Cumbria County Council (“the Council”), claims that the areas C1, C2, D and E are part of the public highway, but makes no claim to areas A and B.  The Second Respondent, Mr. Hewitt (“JTH”) claims that the whole area, including A and B, is part of the public highway, and that, in any event, BD has not established title to those areas.  

4.	The road goes over a stream which is shown on the above plan going under the road from area B and emerging on the other side of the road.  The stream marks the boundary between the Parish of Gilcrux to the south west and the Parish of Plumbland to the north east.  The road also crosses a public bridleway which runs south west from the road to a farm, Ewe Close Farm, now owned by BD.   The bridleway is shown by the dotted line on the plan.  It continues north east from the other side of the road a few yards further along the road, where it passes the end of a row of 19th century cottages known as Wardhall Cottages.  Several of the witnesses in this case live in those cottages and have done for many years.  Next to the road and to the north west of the bridleway as it goes towards Ewe Close Farm is another property, Wardhall Gate, which has been owned since 2007 by JTH.

 
5.	The impetus for this dispute appears to be that there is a shortage of suitable parking for those living locally. The area marked D is used by occupants of Wardhall Cottages to park their vehicles, and the area marked A is so used by JTH.  None of them have anywhere to park on their own property (except in the case of JTH, who has limited parking on Wardhall Gate which is, however, accessed across area A).  BD is developing a rare sheep breeding business at Ewe Close Farm and needs to improve his access to it.

6.	The conveyancing history insofar as it is before me is incomplete.  It is plain that Ewe Close Farm, Wardhall Gate and Wardhall Cottages were all owned by the Ballantine Dykes family or trustees for them, until they were sold in 1951.  There were two conveyances at that time, both dated 14 March 1951.  The purchasers in each case were Thomas Dorney and his wife Sarah Jane Dorney (“Mr. and Mrs. Dorney”).  The sale of Ewe Close Farm was by BD’s father, Joseph Ballantine Dykes as vendor and Henry Philip Carter and John Rigg Musgrave as Trustees.  It is apparent from the recitals to the conveyance that Ewe Close Farm was held on trusts declared by a 1946 trust deed and that the trustees were Settled Land Act trustees.  The significance of this is that it is claimed by BD that if the areas of land now claimed by him were owned by his father and were not transferred by him to Mr. and Mrs. Dorney, then he is entitled to them as his father’s residuary legatee.  Apart from the fact that there is no documentary evidence to show that he was his father’s residuary legatee and that all property left by his father had been vested in him by his father’s executors, it is apparent from the recitals to this conveyance that any unsold property would have been held by his father on the trusts of the 1946 settlement and not as absolute owner.

7.	This conveyance is of “ALL THAT dwellinghouse with the farm buildings and land adjoining and belonging thereto situate at and being Ewe Close Farm in the Parishes of Plumbland and Gilcrux in the County of Cumberland as the same is more particularly described in the first Schedule hereto”.  There followed the reservation of various rights over the property to which I do not need to refer.  The First Schedule identifies the property conveyed solely by reference to “Number on OS Map 2nd Edition” with the acreages of the different OS numbers.  Somewhat remarkably, bearing in mind that BD is a member of the Bar, and the extent of the land conveyed was in issue in this case, no copy of that OS map was in evidence.  I can see no reason why a copy could not have been obtained, as it must have been when BD purchased his land in 2003, there being no other way of identifying what was being sold at that time.  The conveyance was expressed to be to Mr. and Mrs. Dorney as joint tenants.

8.	The second conveyance dated 14 March 1951 was made by Joseph Ballantine Dykes and the Right Honourable the Viscount Assheton Henry Crosse as executors of Frescheville Hubert Ballantine Dykes.  Again the purchasers were Mr. and Mrs. Dorney.  The property conveyed was (1) Wardhall Cottages and (2) “ALL THAT cottage and outbuildings belonging thereto situate at and known as Wardhall Gate aforesaid as the same is now in the occupation of J. McTear as tenant”.  Unsurprisingly, no evidence has been produced as to the extent of Mr. McTear’s tenancy.  Once again, BD’s father was not selling property which he owned in his own right, and there is no evidence as to who would have been entitled to any property left in the estate of Frescheville Hubert Ballantine Dykes.

9.	It follows that BD cannot succeed in his claims in this case by reference to any property remaining in his father’s estate to which he is entitled as residuary legatee.

10.	Mr. Dorney died on 21 June 1958 without severing the joint tenancy of Ewe Close Farm (trial bundle, pp.86, 88).  By a Deed of Gift dated 1 December 1983, Mrs. Dorney conveyed to Thomas Harrison Dorney the entirety of Ewe Close Farm as conveyed by the first March 1951 conveyance.  Once again the property is described by reference to the numbers and acreages on the 2nd edition of the OS Map.

11.	By a conveyance effected on form TP1 dated 6 November 2003, Thomas Harrison Dorney conveyed to BD and Linda Jane Ballantine Dykes (“Mrs. Ballantine Dykes”) “all that dwellinghouse with farm buildings adjoining and being known as Ewe Close Farm… being part of the property described in the Schedule to” the first 1951 conveyance.  The property was defined on the attached map and was edged red.  The property edged red on that plan appears to include some buildings and the bridleway.  The precise point at which the bridleway ends close to the road is not clear on the plan.   

12.	By a conveyance of the same date, also on form TP1, Thomas Harrison Dorney also conveyed to BD alone “all that land adjoining Ewe Close Farm… being part of the property described in the Schedule to” the first 1951 conveyance.  This property was also defined on the attached plan “shown edged red … but excluding that part shown on the said plan edged blue”.  The annexed plan is the same plan as was annexed to the conveyance to BD and Mrs. Ballantine Dykes but with different colouring so as to exclude the property conveyed by that conveyance.  Again, the precise boundary line close to the road is not clear.   

13.	In each case the conveyance was with full title guarantee, and I have no difficulty in inferring that the intention was to convey by the two conveyances everything that had been included in the conveyance to Thomas Harrison Dorney by Mrs. Dorney, but no more than that.  In order to discover what was conveyed, it is therefore necessary to decide what was conveyed by the first 1951 conveyance.

14.	The two conveyances were submitted to the Land Registry for first registration, and in due course the property conveyed to BD and Mrs. Ballantine Dykes was registered at HM Land Registry under title number CU193621.  BD was registered as proprietor with title absolute of the land transferred to him alone under title CU193619.  The plan to that title does not include any of areas A to E.  There is no explanation as to how the Land Registry arrived at the general boundary that it depicted, although it would appear to me that it would have wished to be satisfied that it included all the land from the 1951 conveyance and no other land.  On the other hand, it is also apparent from the various Land Registry plans, which are based on Ordnance Survey plans, that the relevant physical boundary fell where the title boundary is shown, and it is possible that the Land Registry simply followed this boundary in depicting the general boundaries.

15.	I have not seen any copy of the entries in respect of the farm buildings or bridleway conveyed to BD and Mrs. Ballantine Dykes and there appears to have been no application by them jointly or at all for any part of A, B or C to be added to their joint title although B and C1 at least would appear to be capable of being subject to such a claim, being clear extensions of the bridleway insofar as they are not in any event part of the road.

16.	JTH acquired Wardhall Gate late in 2006, by which time the referred application had already been made to the Land Registry on 23 August 2006.  Although I do not have the title deeds or the exact route of the title to Wardhall Gate, it is now registered under title number CU87603, and, from the title number, it was plainly registered many years ago.  The general plan at p.32 of the trial bundle shows that as depicted on that plan it does not extend over any part of the disputed areas.  The previous owners of Wardhall Gate had been using a garage erected on land within BD’s title just to the south east of area A.  It is clear from an attendance note disclosed by JTH referring to a conversation between his solicitor and the vendors’ solicitor and to a subsequent conversation with JTH (p.290 O), that JTH was prepared to accept that the garage was not included in his title but wanted the position established regarding the right of access and the area on which parking had taken place.  A subsequent letter dated 31 October 2006 from the vendors’ solicitors (290 X) indicated only that BD had on one occasion BD had mentioned to their client that he would prefer that they did not park in “the area”, apparently referring to area C1 and A.  This was followed a statutory declaration dated 7 November 2006 from one of the vendors, Christine Diane Craven, that they had parked on those areas, and on area D for over 11 years, and has also stated that she and her visitors have also obtained access across areas A and B to Wardhall Gate.  The statutory declaration confirmed that the vendors had recently been approached by BD who had stated that he would prefer them not to park in areas C1 and A, although they were still doing so.

17.	One of the witnesses, Pamela Oldreive, confirms that during her time at 1 Wardhall Cottages since 1981 all the owners and occupiers of Wardhall Gate have parked vehicles on area A, although of course the two properties were in common ownership for some years and it is unclear whether Wardhall Gate was sold off before or after Mrs. Dorney transferred Ewe Close Farm by her son, leaving open the question whether any parking, or access, was consensual at any time, and also, particularly if Wardhall Gate was sold off before the 1983 transfer of Ewe Close Farm, what rights of way or easements to park may have been implied in favour of Wardhall Gate.

The physical layout of the disputed land
18.	The road is made up and there are grass verges.  Area D was once grass verge but was cleared of grass and laid with hard core in 1959 or 1960 by Eric and William Armstrong of 2 and 4 Wardhall Cottages to provide William Armstrong with a solid base on which to park his lorry.  It has since been treated as a lay-by both by them and by several other occupants of Wardhall Cottages who gave evidence which was not challenged by BD, and they and their visitors regularly parked there.  Evidence of parking varies depending on the length of time that each witness had lived in Wardhall Cottages, but the evidence of such parking goes back to 1948 in the case of Eric and William Armstrong, for over 50 years in the case of Sheila Pattinson and Jillian Margaret Bowe, and for 25-33 years in the case of other witnesses.  It has also been used for parking by JTH, and a former occupier of Wardhall Cottages used area D to chop up trees for logs and firewood at various times between 1960 and 1980.  In every case, this user was without permission of anybody and without any objection until BD objected in recent years.  All these witnesses believed that the verge and lay-by were part of the public highway.

19.	The lay-by and the grass verge beyond it to the end of area E border on land included in BD’s title CU193619 but are separated from it by trees and hedging.  The grass verge then continues towards Arkleby still separated by a hedge from the adjoining land, which is not part of BD’s title.  There is a bench on this further verge where local residents can sit, rest and chat.

20.	Starting from the south west side of the lay-by is a parapet wall of the bridge over the stream.  This continues around the corner towards the bridleway to Ewe Close Farm and close to where it turns a stone is set in the wall with an inscription stating that it was erected in 1889 with the names of J. Wilson Surveyor and H. Graves Contractor.  There is a telegraph pole on the grass verge between the lay-by and the turn, on area C1, as to which there was no evidence of any wayleave being paid to anybody.

21.	On the opposite side of the turn to the bridleway, there is also a low stone wall around the garden of Wardhall Gate extending along the highway and around the corner a short distance to approximately parallel with the front of the house itself.  An old photograph produced by Pamela Oldreive, which she believed to date from about 1916 showed a wall in about the same position – it is unclear whether it is the same wall.  There is then an open space providing access for a vehicle to the grounds of Wardhall Gate.  I am not clear when this access was created, or made large enough for vehicular access.  The boundary of the registered title to Wardhall Gate with the north-eastern end of BD’s title CU193619 is marked by a brick wall roughly corresponding with the north-eastern wall of the now demolished garage referred to in paragraph 15 above.

22.	A short way up the bridleway, within BD’s title as shown on the general plan, is an old cattle grid and the remains of gateposts.  While it has been suggested that the position of the cattle grid and gate might be expected to be at the entrance to the land, I see no reason why this should be so, and if that entrance is at the highway end of A and B there is every reason not to have the grid and gate there, since, unless they were unusually wide, cattle would have no problem in getting around them at that point.  It appears to me that they are positioned where they would be effective wherever the boundary came.

Other evidence
23.	A colour coded Ordnance Survey plan from 1973 produced for the first time at the hearing by Mr. Peter Marr, who gave evidence for the council, although on a very small scale, appears to show the C2001 as extending to include the whole of the area claimed by BD.  Mr. Marr is a senior engineer responsible for highways in the area.  The council, however, do not contend that the whole area is maintained at public expense, but only areas C1, C2, D and E.  Having failed to give proper disclosure on this aspect of the case, it produced in the course of the hearing records showing that, as I accept, that the bridge and verges were maintained by it, and have been maintained by it for over 50 years at least.  Thus there is an entry in relation to the bridge that there was external pointing and the upstream wing wall was repaired in October 1956, and records were also produced relating to periodic inspections of the bridge going back to 1979.  In addition there was evidence that the council would trim the verges once a year. 

24.	BD sought to contend that the records could refer to either of two bridges in the Wardhall area, but the measurements on a cross section plan in the document referring to the 1956 repairs correspond to those of the bridge with which this case is concerned, and this documents also refers to the verges as included.  In any event, it appears to me to be unrealistic to suppose that the bridge, constructed in 1889, was partly maintainable by the council and partly by the adjoining owner.

25.	BD also claimed to have maintained the bridge and verges in the area claimed by him but in cross-examination it was clear that that maintenance was limited to putting back a brick on the bridge that he had knocked out and cutting back a large quantity of ivy, trimming bushes and cutting back trees about two years ago.  There was no evidence that the previous owners of the land which he now owns ever sought to maintain the bridge or the verges.

26.	BD drew attention, however, to serious inconsistencies in the council’s stance.  When he first sought to find out the extent of the carriageway adopted by the council (by letter dated 9 June 2006 – see pp.22-23) the response, from their agent Capita Symonds, was that according to their engineer, the adopted highway maintainable at the public expense was as shown hatched on a plan marked ‘A’ (pp.27-28).  The plan shows hatched only the metalled road and not the verges or areas A and B.  The answer was not entirely clear to BD, and by letter dated 7 July 2006 he sought further clarification.  The response, by letter of 12 July 2006, again spelled out, even more clearly, that the extent of the adopted highway maintainable at public expense was limited to the metalled carriageway.

27.	BD further draws attention to the council’s Statement of Case in this reference, which was verified by Mr. Marr who stated, on 27 August 2008 that he believed the contents were true.  This states that Capita Symonds have caused a search to be made and have concluded that the land shown on plan 1 attached to the Statement of Case is highways land.  The Statement of Case continues “That is to say that it is part of the adopted highway maintained by Cumbria County Council as to the carriageway and the verges and associated highway structures as applicable.”  The Statement of Case then refers to the 1889 plaque on the bridge.  Plan 1 is a modified of the plan marked ‘A’ referred to by Capita Symonds in their letter at pp.27-28, but the entire area including the whole of A to E is surrounded by a red line.

28.	Subsequently, when Mr. Marr made a witness statement dated 10 March 2009, he first confirms that the contents of his Statement of Case were true and then states that his enquiries have confirmed that the council had always maintained as highway land the land shown coloured pink on the plan annexed to his statement.  The area in question is in fact coloured bright red on the plan (p.259) and includes C1, C2, D and E, but not A and B.

29.	In cross-examination, Mr. Marr stated that when signing the Statement of Case he thought the plan referred to was that at p.259, that the plan at p.255 was not his plan and he did not know whose plan it was;  that he signed the Statement of Case hoping the right plan would be attached, but without seeing it; and that he could not remember when the plan at p.259 was produced.

30.	I find both Mr. Marr’s evidence in this respect and the lackadaisical approach shown by the council in the preparation of the Statement of Case and witness statement, and by Capita Symonds in previously answering BD’s very clear request for clarification of the boundaries of the maintained highway to be wholly unsatisfactory, as is the fact that it was only at the hearing that documents relating to maintenance of the verge and bridge were produced.  

The law
31.	It is clear that the land now registered in the name of BD is to be determined by reference to what was conveyed to him, and not by reference to the general boundary shown on the Land Registry plan (Derbyshire County Council v Fallon, [2007] EWHC 1326 (Ch); Strachey v Ramage, [2008] EWCA Civ 384).   

32.	There is no evidence that any of the areas A to E were so included.  As BD has failed to establish that those areas were included, I proceed on the basis that they were not unless they can be treated as having been conveyed together with those specified areas.  

33.	There is a well known principle of law that once an area of land has been dedicated as a public highway, it remains a public highway, it being for the person alleging that it is a highway to establish that that is the case (see for example per Neuberger J in The Commission for New Towns v JJ Gallagher Ltd. [2002] EWHC 2668 (Ch) at paragraph 77).  There can be no estoppel as a result of any misguided and misleading statements by the highway authority or anybody acting on its behalf.  The right is that of the public and not of the highway authority which has the duty to maintain the highway and protect the rights of the public.  Accordingly, whatever remedies BD may or may not have against the council or Capita Symonds as a result of the representations in correspondence as to the extent of the highway, I must decide the case on the evidence before me, and not on the basis of any alleged estoppel.

34.	There is no evidence before me as to when the C2001 became a public highway, or when it first became maintainable at public expense, or indeed when the bridleway became a bridleway, which is another type of highway.  Nor is there any evidence as to who owned the adjoining land when that occurred.   As it pointed out by Neuberger J in paragraph 76 of the Commission for New Towns case, 

“Dedication and acceptance can be express.  However, it can also be inferred if the way in question has been used by the public, provided that the use has been for such a period and in such circumstances that the proper inference is that the owner of the soil has, by words or conduct granted the right of passage to the public.”

35.	There is also no evidence as to how the verges along the C2001 came to be separated from the adjoining land by hedges or fences.  The proper approach to the question whether, in these circumstances, there is any presumption that the verges form part of the highway was considered in Hale v Norfolk County Council, [2000] EWCA Civ 290.  In that case, after reviewing the authorities, Chadwick LJ stated as follows:

“32. Mr Justice Warrington and Mr Justice Goff were plainly correct, as it seems to me, to emphasise that the first question to be decided is whether the fence was erected (or the hedge established) in order to separate land enjoyed by the landowner from land over which the public exercised rights of way. In other words, did the landowner intend to fence against the highway? If that question is answered in the affirmative, then there is a presumption, which prevails unless rebutted by evidence to the contrary, that the land between the fence and the made-up or metalled surface of the highway has been dedicated to public use as highway and accepted by the public as such. It is unnecessary to prove an intention to dedicate; or to prove acceptance by actual user. Both dedication and acceptance will be inferred. And it follows that, where that question can be answered in the affirmative in relation to the fences or hedges on both sides of a made up or metalled surface used as a highway, there will be a presumption that the whole of the land between those fences or hedges has been dedicated to, and accepted for, highway use. That is the basis for the "hedge to hedge" presumption.
33. It seems to me much less clear that there is any foundation for a presumption of law that a fence or hedge which does, in fact, separate land over part of which there is an undoubted public highway from land enjoyed by the landowner has been erected or established for that purpose. It must, in my view, be a question of fact in each case. To take an obvious example: there could be no room for any such presumption unless the highway pre-dated (or was contemporary with) the fence or hedge. If it were unknown which came first, I can see no reason in principle for making an assumption - or adopting a presumption - that the landowner fenced against the highway rather than that the highway followed the line of the existing fence. Whether it is right to infer, as a matter of fact in any particular case, that the landowner has fenced against the highway must depend, as Lord Russell of Killowen, Chief Justice, observed in Neeld v Hendon Urban District Council (1899) 81 LT 405, on the nature of the district through which the road passes, the width of the margins, the regularity of the line of hedges, and the levels of the land adjoining the road; and (I would add) anything else known about the circumstances in which the fence was erected. If nothing is known as to the circumstances in which the fences were erected, the fact that the soil of a highway and the adjoining land on each side was once in common ownership and that the highway is separated from the adjoining land by continuous fence lines may well enable a court properly to infer that the landowner has fenced against the highway; that is to say, "that the fences may prima facie be taken to have been originally put up for the purpose of separating land dedicated as highway from land not so dedicated". But it is, I think, wrong to treat the remarks of Lord Justice Vaughan Williams in the Neeld case as authority for a presumption of law that, whenever it is found that a highway runs between fences, the fences were erected for that purpose.”

36.	Hale LJ agreed, and observed at paragraphs 42-44:

42. Second, there is no evidence of any act of dedication by Mr Wright, or by his successors in title, and no evidence of any acts of acceptance by the public, over any of the land in question. 
43. Third, the presumption of dedication of all the land running between hedges or fences can only arise if there is reason to suppose that the hedge or fence was erected by reference to the highway: that is, to separate the land over which there was to be no public right of way from the land over which there was to be such a right. Where matters are lost in the mists of time, it must often be possible to draw such an inference from the layout on the ground. In a conventional road running between hedges or fences, even if the verges are of varying widths and shapes, this may well be the obvious conclusion. It is not surprising, therefore, that the cases regarded this as the prima facie position. But that is not the same as elevating this preliminary factual question into a presumption of law.
44. Fourth, in this case there is no reason to infer that this particular fence was put up in order to separate the private land from the public right of way. Its position on the ground does not suggest this. What little is known about the circumstances of its erection does not suggest this. The probabilities do not suggest this.

37.	With regard to the evidence of parking, BD has contended that if the parking were on the highway it would be an illegal obstruction.  He relies on Nagy v Weston, [1965] 1 WLR 280, Hirst v Chief Constable of Yorkshire (1987) 85 Cr. App. R. 143 and DPP v Jones, [1999] UKHL 5.  However, as it was stated by Lord Parker CJ in Nagy v Weston, a case where a hot dog van had parked on a busy Oxford street, for the parking to be an obstruction, “there must be proof that the use in question was an unreasonable use.  That, the Divisional Court found, was a question of fact.  That case was followed in Hirst v Chief Constable of Yorkshire.  It was also applied by the House of Lords in DPP v Jones, where Lord Irvine stated:

“I conclude therefore the law to be that the public highway is a public place which the public may enjoy for any reasonable purpose, provided the activity in question does not amount to a public or private nuisance and does not obstruct the highway by unreasonably impeding the primary right of the public to pass and repass”

38.	Lord Slynn concluded that the right to use a public highway was restricted to passage and reasonable incidental uses associated with passage.  Lord Hope referred to the observations of Lord Esher MR in Harrison v Duke of Rutland, [1893] 1QB 142, where he said at p.146 that “if the proposition that the use of the highway for any purpose, lawful or unlawful, other than that of passing and repassing was a trespass were to be construed too largely, the effect might be to interfere with the universal usage as regards highways in a way which would derogate from the reasonable exercise of the rights of the public… Highways are, no doubt, dedicated prima facie for the purpose of passage; but things are done upon them by everybody which are recognised as being rightly done, and as constituting a reasonable and usual mode of using the highway as such.  If a person on a highway does not transgress such reasonable ands usual mode of using it, I do not think that he will be a trespasser.”  Lord Hope considered that while Lord Esher may have extended the previous statements of law, the extension he was willing accept did not depart from the essential principle.  The question was, Lord Hope found, whether what was being done was an ordinary and reasonable thing for a person to do while using the highway as such in the exercise of that right.  He went on to state that the law as stated by Lord Esher could be taken to be the law, the principle being that “the highway is for passage and such other uses as may be made of it as of right must be capable of being recognised as a reasonable and usual mode of using the highway as such.”

39.	Lord Clyde specifically considered parking, stating that the public had no right to remain on a highway and that any stopping and standing must be reasonably limited in time.  Lord Hutton considered that the judgment of Lord Esher and other judgments to which he referred did not exclude a reasonable use of the highway beyond passing and repassing provided that the use is not inconsistent with the paramount purpose of the highway, which is for passing and repassing.  The user in question before the House of Lords was for a demonstration on the A344 outside Stonehenge.

40.	These authorities were cited by BD, as I understand it, in support of his claim, set out in his skeleton argument, that, assuming the verge to have been highway, in acquiescing to user of a highway which is inconsistent with the user to which the public have a right, the council has determined the fee simple vested in it in favour of the previous owner.  I can find no legal basis for such a claim.  The council has no power to determine the fee simple vested in it simply by acquiescing in wrongdoing on the highway.  In any event, parking on the highway in a manner which does not interfere with its primary use occurs all over the country without complaint.  In the absence of other suitable parking, it is a reasonable use of the highway not inconsistent with its primary purpose.  At the very lowest, it is strongly arguable that that is the case, and a highway authority is not to be criticised for not challenging such use.  I therefore reject this aspect of BD’s case.

Contentions and Conclusions
41.	It appears to me that on the evidence now before me, the verges are part of the public highway.  I come to that conclusion because (a) there is no evidence pointing to the opposite conclusion; (b) they, and the bridge, are maintained by the council; (c) the bridge was plainly erected as part of the highway, and it does not seem feasible to me that a highway bridge was erected partly on land which is not part of the highway and as to which the highway authority has no control; (d) part of the verge has been turned into an unofficial lay-by for over 50 years and has been used for public parking for even longer, a state of affairs which, so far as the evidence goes, has been acquiesced in by the previous owners of the Applicant’s land.  The use by the public of the bench on the adjoining verge also suggests that that adjoining verge is highway land rather than public land, although in the absence of any evidence as to who put the bench there, and on what basis, I attach little weight to it.

42.	I am satisfied therefore that areas D and E are part of the public highway maintained by the council.  It appears to me that the line of the road must at least follow the line of the verge, so as to incorporate areas C1 and C2, which are also therefore part of the highway maintained by the council.

43.	I have more difficulty with areas A and B.  They are shown as part of the publicly maintained highway on the 1973 Ordnance Survey map, and have been excluded from the land registered in the names of BD and his wife at least on the Land Registry General plan.  The area, or part of it, could also be of use for vehicles seeking to turn around.  On the other hand the council has disclaimed responsibility for that area, and it does not obviously form part of the road.  There is no evidence as to who has maintained those areas over the years.

44.	I have come to the conclusion that while area B at least is clearly a public highway (being part of an undisputed bridleway) it is not established before me that it is a public carriageway or that it is maintained at the public expense.

45.	There appear to me to be at least two reasons why areas A and B might have been excluded from the land sold in 1951.  One may be because those areas were, rightly or wrongly, not thought to be owned by the vendors, but to be part of the road, as shown on the 1973 Ordnance Survey map.  Another is that they were overlooked.  They may also have been retained to keep control over the use and development of the land, but with implied rights of way over them.  On the other hand, it is also possible that an examination of the 2nd edition of the Ordnance Survey map will show that they were in fact included in the conveyance after all, or may be included by operation of section 62 of the Law of Property Act 1925.

46.	It is clear, however, that if area B was included in the land sold in 1951, then the title to it will have passed as part of the bridleway that is now owned by BD and his wife jointly under title CU193621, so that the application to add it to title CU193619 must fail in any event.  If a further application is made to register it as part of the joint title of BD and his wife, then the Land Registry will need to consider the 1951 conveyance parcels by reference to the 2nd edition of the Ordnance Survey map before determining the application.

47.	JTH contests BD’s title to those areas.  While he contests BD’s motives for wanting to have the title to areas A and B registered in his name, these are irrelevant to the question whether he is entitled to be so registered.  He also contends that BD should have ensured that the boundaries were clarified before he bought.  This may be so, but given the lack of clarity, the dispute as to where the boundaries come needs to be resolved.  He goes on to say that it is unreasonable to expect him to make allowances and accommodate for BD’s failure to pay sufficient attention to the detail of his purchase.  However, BD is entitled to seek to have his boundaries clarified, and it is a matter for JTH whether he wished to oppose him.  His real concern is that he should be able to park his car on area A and obtain access through that area, and possibly area B to his property.  That does not depend on who owns area A but on whether he can assert rights in respect of that area whoever owns it.  Further, JTH draws attention to the practical problems that a finding in favour of BD would cause.  Again, I am not concerned with the practical problems, although they may not be as significant as JTH fears, if he has access and/or parking rights of the type indicated in paragraph 1(3) above.  I have to decide who has legal title whatever the practical problems that may cause.  I delayed preparing this decision to enable the parties to see if they could not come up with a practical solution that would deal with everybody’s problems, but unfortunately this seems not to have been possible.

48.	JTH goes on to claim that he has an equal right to make a claim to the parcel of land that fronts the boundary of his property and points out that he is enjoying comprehensive and functional vehicle access to his property under the status quo that has existed in living memory.  

49.	While I cannot see that JTH has any claim to title to area B, I take into account that his assertion that he and his predecessors have parked on area A and that they have obtained access to his property from it can have given him rights over it, whether by way of a possessory title or a right of way and/or a right to park.

50.	I have a statutory declaration (pp.291-293) from the previous owner of Wardhall Gate, Christine Diane Craven, that she owned that property from 1995 and during the whole of that time she had used the whole of area A and B on foot and with vehicles to gain access to Wardhall Gate.  She and her visitors had also parked in area A.  It is plain that parking there has continued since and that access has been obtained over at least area A to Wardhall Gate.  So far as area B is concerned, access on foot over that area is consistent with the fact that it is a public highway, although as only a bridleway access by car would have to be a private right of way. 

51.	It appears to me that JTH may well have rights of vehicular access and/or parking on area A, and a right of vehicular access across part of area B.  I indicated in paragraph 1(3) above some of the potentially relevant factors.  However, those claims have not been pleaded by him, and the available evidence does not enable me to come to any conclusion on the issues involved.  Also BD has not had the opportunity of addressing those issues in his evidence or of calling witnesses to deal with them.  

52.	Unfortunately, therefore, the position with regard to area A is that while this application by BD must fail, it is open to him to make a fresh application if he can produce evidence of the 1951 conveyances, in particular by reference to the OS numbers in the 2nd edition of the Ordnance Survey Map, that shows that area to be included in the property conveyed to him.  BD and Mrs. Ballantine Dykes may also be able to make a similar application in respect of area B with similar evidence.  It would also be open to JTH to object on the basis that he is entitled to rights of access and parking, as to which he may wish to obtain legal advice.  Finally, I have been very unimpressed with the evidence and disclosure of the council, with the way in which its representatives have varied in their statements as to the extent of the highway maintainable at public expense, and with the absence of any explanation as to the apparent incorporation of areas A and B into the carriageway in the 1973 map.  It could be that further research may shed further light on this.

Costs
53.	In all the circumstances, my present inclination would be to make no order as to costs.  BD has failed in his application, but the council’s conduct from the date of the reference, including the exceptionally late disclosure of relevant documents, has plainly and understandably misled BD as to his prospects in relation to areas C1 to E.  JTH has succeeded in establishing that BD has not shown title to areas A and B, but has failed to show that, as claimed by him, they are part of the public highway, and many of his other contentions have not assisted him.

54.	If, however, any party does wish to make a claim for costs, that claim should be filed with the Adjudicator and served on the other parties by 12 April 2010.  BD and JTH should bear in mind that I have no jurisdiction to award any costs in respect of time they have spent personally on this case.  I can only make an award in respect of actual costs incurred.

Dated the 26th day of March 2010

by order of the adjudicator