De Wit and another v Arrowsmith and another

Boundary – Right of way – Interpretation of plan – Owners of neighbouring properties disputing position of boundary and right of way over drive – Whether express rights of way including disputed land – Whether claimants entitled to injunctive relief – Claim allowed in part In February 1999, the defendants purchased Hart’s Farm, a Grade II listed building in the ancient parish of Redmarley d’Abitot, in the Forest of Dean, Gloucestershire in joint names. Most of the surrounding land was bought on the same day, from the same vendor, by the first defendant in his sole name. At that date it was accessed by a north-south track from the public road, with a spur track running westwards. In 2004 an old barn was sold off by the defendants after conversion to a dwelling. The barn stood on land owned by the first defendant alone. It was also sold with title to the spur track, which was on land owned by both defendants. The sale, to third parties, was effected by means of a single transfer, which both defendants signed. Prior to that, the defendants had created a new main drive from the public road and the defendants expressly released their rights of way over the old spur track. There was no vehicular access to Hart’s Farm from the old track and spur track. A new track called the Stable Drive was created running in a straight line from the southern end of the new Main Drive to join up with the old track. In 2006, the defendants sold Hart’s Farm to the claimants. The sale and purchase were completed by two transfers. One of the transfers was of Hart’s Farm itself, where the sellers were both defendants. The other transfer was of the additional land to the south and west, where the seller was the first defendant alone. In 2017, disagreements arose when the defendants denied that there was any right of way along any part of the new Stable Drive and allegedly interfered with the rights of the claimants over the Main Drive and the Stable Drive. The claimants issued proceedings seeking declarations as to their rights and injunctive relief. After the proceedings had been started, an interim application for an injunction was adjourned generally on cross-undertakings. Held: The claim was allowed in part. (1) The process of construction started with the conveyance. It was only to the extent that the conveyance was unclear that extrinsic evidence might have a place. In order to decide whether the conveyance was clear or unclear, the court should look at the evidence of the actual and known physical condition of the relevant land at the date of the conveyance, as if looking at the material date with the attached plan in hand. The physical features on the ground might assist in deciding whether the plan was clear or not, but a mismatch between a clear plan and the actual physical features was not in itself a reason that could possibly justify ditching the title documents and determining the position of the disputed boundary by reference to the topographical features alone. Where the plan was unclear, even after looking at the physical features on the ground, extrinsic evidence might be used to assist in making sense of the plan, limited to the objective facts reasonably available to the parties at the relevant date. The parties’ subjective beliefs, intentions or prior negotiations were not admissible. The question was to be answered objectively: Chadwick v Abbotswood Properties Ltd & Others [2004] EWHC 1058 (Ch); [2004] PLSCS 127, Liaquat Ali v Lane [2006] EWCA Civ 1532; [2007] 1 EGLR 71, Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 3 EGLR 119, Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223, Cameron v Boggiano & Robertson [2012] EWCA Civ 157; [2012] 1 EGLR 127 followed. (2) It was clear from the transfer in 2004 that the old boundaries had been re-drawn to suit the first defendant’s preferred division of the land. The transfer plans were clear in their description and definition of the land to be transferred, the extent of land transferred and the boundary positions and rights of way. Applying the relevant legal principles, it followed that the plans, being definitive not indicative, and being clear in what they showed, could not be changed by extrinsic evidence. (3) The defendants’ allegations that the claimants were in breach of planning control were not grounds for refusing injunctive relief. Individuals could not enforce planning law by private action. Until an enforcement notice was issued, there was no liability for breaches of planning law, and no enforcement notice had been issued here. The defendants’ alternative argument in terms of the equitable principle that “he who comes to equity must have clean hands” was rejected. Misconduct or impropriety of the claimant had to have an immediate and necessary relation to the equity sued for. A breach of planning control relating to the use of the annexe or outbuilding at Hart’s Farm could not affect the extent of user of the right of way over the Main Drive. Whether those living in the premises were family, staff, lodgers or tenants, the likely additional vehicular use of the Main Drive would be the same. Thus, any misconduct in that respect bore no relation to the equity sued for. The express grant of the right of way was extremely wide, and a refusal of relief would in effect be a way of enforcing planning control indirectly when the defendants had no right to enforce it directly. The court would not refuse injunctive relief on the grounds relied upon by the defendants: Royal Bank of Scotland v Highland Financial Partners & Others [2013] EWCA Civ 328 followed. (4) It was important for the court not to put or leave an injunction in place when it was not strictly necessary. It was no answer to say that an injunction merely forbade one party from doing what would be unlawful. On balance an injunction was not required at this stage. The current cross-undertakings remained in force until further order and should be discharged three months after judgment. If, during that period, there was any proper basis for apprehending further obstructions of the right of way, the claimants could apply to vary the order: Pennock v Hodgson and Cameron v Boggiano considered. John Sharples (instructed by Berry Smith LLP, of Cardiff) appeared for the claimants; Edward Bennion-Pedley (instructed by Kidwells Law Solicitors, of Worcester) appeared for the defendants. Eileen O’Grady, barrister Click here to read a transcript of De Wit and another v Arrowsmith and another