Carpenter and others v Calico Quays Ltd and another

Right of way – Construction of deed – Replacement means of access to respondents’ site provided when highway re-routed – New access road built on appellants’ land – Right of way granted by deed over new road – Interpretation of deed – Whether right of way confined to tarmacked surface of road or extending to grass verges on either side – Appeal dismissedThe respondent trustees owned land that was used as a plant nursery. The site had originally been accessed directly from the A6 highway but, in 1989, a compulsory purchase order and side road order were made to facilitate a scheme to alter the route of the A6. Pursuant to those orders, the respondent’s existing access was stopped up and a new route was provided over land belonging to the appellants’ predecessors in title; that road was completed in 1991. Its provision accorded with the secretary of state for transport’s obligation, under section 125(3)(b) of the Highways Act 1980, to provide the respondents with an alternative reasonably convenient means of access to replace the one that had been stopped up. Rather than proceed with a compulsory acquisition of the access road land, the secretary of state advised the respondents to negotiate a right of way with the landowners. Those negotiations resulted in a deed, dated 1999, by which the appellants’ predecessors granted a right of way to the respondents over the “roadway”, which was shown coloured brown on an attached plan.A dispute arose between the parties as to the extent of the respondents’ right of way. The appellants contended that it was confined to the tarmacked road surface, while the respondents claimed that it included the grass verges on either side. The judge found that the plan attached to the deed was schematic only; it failed to show the precise dimensions of the plots or accurately map the position of features on the ground. She found that the parties had chosen to define the roadway by reference to that plan, and concluded that the right of way extended beyond the tarmacked surface to a boundary fence on one side and a “rollover point” on the other, where an embankment supporting the road dropped away steeply. The appellants appealed.Held: The appeal was dismissed. The 1999 deed had to be construed against the background material that would have been reasonably available to the parties at the time of the grant, which included the other relevant instruments and the nature and physical characteristics of the land. The right of way had been granted at the request of the secretary of state to provide a reasonably convenient means of access to the respondents’ land to replace the existing route. In deciding what was a reasonably convenient means of access, it was permissible to have regard to what was being replaced. If the former route had included safe pedestrian access on grass verges, it was reasonable to expect its replacement to provide a similar facility. The label of “roadway” as used in the deed did not necessarily exclude or include the verges. The position on the ground at the date of the deed was clear because the road had by then been built and there were clearly two grass verges. Further, the parties had chosen to define the width of the roadway as being the width of the plot of land. The plan attached to the deed showed the relationship of the various plots. The fence, together with a hedge, represented the boundary of useable land on the plot where the access road lay. The judge had construed the deed correctly.John Randall QC (instructed by Wragge & Co LLP) appeared for the appellants; John McGhee and Paul Clarke (instructed by Spearing Waite, of Leicester) appeared for the respondents.Sally Dobson, barrister