Waterman and another v Boyle and another

  Lady Justice Arden : 1.                   1, 2 and 3 Hog Lane Farm, Ashley Green, Bucks HP5 3PY are adjoining properties. Before 1993, they were known as Hog Lane Farm and were all owned by the appellants, Mr Boyle and Ms Gwilt.  They developed Hog Lane Farm and divided it into three dwellings.  They retained 1, Hog Lane Farm, but sold on 2 and 3, Hog Lane Farm.  The respondents to this appeal, the Watermans, now own 2, Hog Lane Farm.  2.                  A brief description of the three properties is necessary for understanding this judgment. The three properties can be briefly described as follows. Hog Lane runs from north to south, and the three properties lie on the east side of that lane. They form part of a farm originally owned in its entirety by Mr Boyle and Ms Gwilt. The dwelling houses at 1, 2, and 3, Hog Lane Farm are connected buildings.  They run from east to west so that 3, Hog Lane Farm abuts Hog Lane, and 2, Hog Lane Farm is in the centre. The three properties face north. They are approached by a long entrance drive from the north. The drive arrives at the front of 1 and 2 Hog Lane Farm. Immediately in front of those properties there is a traffic island with a yew tree and an old ice well and other vegetation on it. The entrance drive on the east side of the traffic island leads to 1, Hog Lane Farm and on the west side to 2, Hog Lane Farm. At the rear of the property is a private lane which leads from Hog Lane eastwards past the rear of the three properties. Starting from Hog Lane, the features of the north side of this lane are, first, 3, Hog Lane Farm, with a walled garden and an entrance in the centre, and then a double garage belonging to 2 Hog Lane Farm. Then there is a gate and immediately after that, set back from the line of the garage, a concrete hard standing which was probably a farmyard. In front of that is a trench for a new wall. On the south side of the lane is a paddock or garden now forming part of a property known as Grooms Cottages which has a wall running down the side of the lane. No other feature of this rear lane is relevant. 3.                  The disputes all arise in connection with the parking of vehicles, often a contentious issue between neighbours. I shall have something to say about disputes of this kind at the end of this judgment.  One of the issues with which I shall deal is whether in this case the right to park is to be implied from a right of vehicular access.  That issue was the subject of the recent decision of the House of Lords in Moncrieff v Jameson [2007] 1 WLR 2620, relied on by the judge. Although Moncrieff was a Scottish appeal, Lord Scott and Lord Neuberger held that there was no material difference between English and Scots law on implication of a right to park. This is the first occasion on which this court has had to consider Moncrieff. 4.                  Naturally, Mr Boyle and Ms Gwilt wished to limit the access and parking rights of 2 and 3, Hog Lane Farm when they sold those properties.  Thus, when they sold 2, Hog Farm Lane, the transfer gave 2, Hog Lane Farm a shared right of access and egress with or without vehicles at the north end of the property via part (only) of the entrance drive to 1, and 2, Hog Lane Farm.  In addition, the transfer gave 2, Hog Lane Farm the right to park private cars on two designated parking spaces to the left of the front door.  The transfer also gave 2, Hog Lane Farm a shared right of access to and egress from, with or without vehicles, that part of the rear of 2, Hog Lane Farm on which a double garage now stands (but not the adjacent concrete hard standing, which was rendered landlocked by the construction of the garage by the original purchaser of 2, Hog Lane Farm).  Mr Boyle and Ms Gwilt provided the plans used (for identification purposes only) in the transfers by them of 2 and 3, Hog Lane Farm. Ms Gwilt’s employment background was in cartographic and topographical mapping.  She said in her witness statement (and this is relevant to the issue about the southern boundary of 2, Hog Farm Lane) that she found it pleasing to the eye to line things up in straight lines. 5.                  Initially, there was little difficulty in practice over parking between the parties. Mr Boyle and Ms Gwilt gave permission for temporary parking on their land.  However, in about 2003, this admirable spirit of neighbourliness broke down and disputes erupted over parking.   About this time, Mr Boyle and Ms Gwilt altered the layout of the traffic island in the northern drive, and in 2004 they built or permitted the building of a wall near the southern boundary of the lane, which it is now accepted was not built on the lane itself.  This wall (“the Grooms Cottages wall”) made it impossible for the Watermans to continue to turn their cars from the lane into their garage.  The Watermans complained of a breach of their right of access along the lane. 6.                  Mr Boyle and Ms Gwilt also prohibited parking by visitors to 2, Hog Lane Farm in the northern entrance drive, unless they were simply loading or unloading or parked in one of the two parking spaces to which 2, Hog Farm Lane was entitled. In addition, Mr Boyle and Ms Gwilt began to lay out a wall to the south of the concrete hard standing, and for this purpose they dug a trench for its foundations. This wall would divide that part of 2, Hog Lane Farm from the lane.  They have not completed this wall because the Watermans threatened to seek an order restraining them from doing so. 7.                  The Watermans began these proceedings in 2007 in order to determine disputes between the parties about the location of the southern boundary of 2, Hog Lane Farm, the rights of access to the Watermans’ garage from the lane and parking rights over the appellants’ drive. Mr Boyle and Ms Gwilt sought declarations confirming their contentions about the Watermans’ parking rights.  At trial, HHJ Collins CBE, sitting in the Central London County Court, determined the principal areas of dispute in favour of the Watermans. 8.                  The pleadings and statements refer to a snowstorm of incidents and issues, but by the time the matter reached this court the issues had been reduced. It is not the function of the court to determine which of the parties has been the more unneighbourly.  Its function is sensibly to determine the parties’ rights and enforce them.  I will start with the issues arising from the southern boundary, and then move to the parking and other issues connected with the drive to the north. Southern boundary issues 9.                  There was an issue as to where the southern boundary lay.  Mr Boyle and Ms Gwilt contended that the garage at the rear of 2, Hog Lane Farm encroached on to the lane. Mr Waterman in his witness statement contended that, when Mr Boyle and Ms Gwilt gave the original purchaser, Mrs Wordsworth, permission to build her garage, they gave her permission to build across the southern boundary and accordingly, she became the owner of an extra strip of land beyond the southern boundary of the garage.  Indeed the Watermans also contended that the edge of its overhanging gutters became the southern boundary of 2, Hog Lane Farm.  In their witness statements, Mr Boyle and Ms Gwilt gave evidence (in identical terms) that there was an oral agreement between them and Mrs Wordsworth’s husband that she could build her garage on the appellants’ land to avoid disturbing an underground water tank and inspection chamber.  They stated that they gave her permission “but the legal boundary remained on the line A-B on the [transfer] plan”.  10.              The Watermans’ response was twofold.  First, they said that Mr Boyle and Ms Gwilt must have given land to Mrs Wordsworth for the purposes of a garage.  Secondly, they contended that the southern boundary of 2, Hog Lane Farm, according to the transfer to Mrs Wordsworth, in fact lay at the line at which she subsequently built a garage.  Indeed, they went further and claimed that the overhanging gutters marked the boundary line.  They relied on the earlier transfer (in 1993) by Mr Boyle and Ms Gwilt of 3, Hog Lane Farm to a Mr and Mrs Zukas. The plan used to identify 3, Hog Lane Farm (for identification purposes only) in that transfer showed some measurements, including one of 24 ft 6 ins from western edge of the dwelling house at 3, Hog Lane Farm to the lane.  The plan also showed some small trees or shrubs: but there was also in fact a conifer, which remains and is now large. (There may originally have been other conifers there as well). This plan was later used as the basis for a plan to be attached to the transfer of 2, Hog Lane Farm to Mrs Wordsworth.   This showed that the southern boundary to 2, Hog Lane Farm formed a straight line with the southern boundary to 3, Hog Lane Farm.  11.              The Watermans relied on an agreement made between Mr Boyle and Ms Gwilt and the Zukases after the transfer. The transfer to the Zukases required a wall to be built on the Zukases’ southern boundary. The evidence showed that, subsequently to the transfer in 1993, the Zukases and the appellants had agreed that the wall to 3, Hog Lane Farm, could be moved a small distance south so as to go round one or more conifers.   Mr Boyle said that this was a curved line that ran slightly to the south of the boundary shown on the plan.   He said he had not given the Zukases any extra land. The transfer plan, as plotted on a plan prepared by Mr David Powell, FRICS, who was jointly instructed by the parties to prepare a report in connection with the various disputes arising in these proceedings, showed that the wall was effectively a straight line from the gate to 3, Hog Lane Farm to the easterly edge of the garage at 2, Hog Lane Farm. It also showed that if, the measurement of 24 ft 6 ins was used, the southern boundary to 3, Hog Lane Farm went through the (now large) conifer and that the southern boundary to 2, Hog Lane Farm ran through the garage itself. Mrs Wordsworth had undertaken in her transfer to construct a wall along the southern boundary.  According to the transfer plan this would have formed a straight line with the wall then constructed at 2, Hog Lane Farm.     The judge rejected the argument that the strip of land between the boundary on the transfer plan and the wall of 3, Hog Lane Farm did not form part of that property. 12.              Accordingly, the Watermans submitted at trial that the clear intention of the transfer to Mrs Wordsworth was that her boundary should form a straight line with the wall as actually built by agreement with the Zukases. The judge found as a fact that the wall built pursuant to the agreement between the Zukases and Mr Boyle and Ms Gwilt ran south from the point at which it was intended to start on the west side of 3, Hog Lane Farm and went to the gate in the centre of the southern part of that property and then went eastwards in a straight line, ending south of the point at which it was shown as ending on the transfer plan (judgment [11], [12]). The judge did not accept the evidence of Mr Boyle and Ms Gwilt about the effect of their agreement with Mrs Wordsworth.   He held that there was a boundary agreement and that accordingly the southern boundary of 2, Hog Lane Farm had been altered. The judge went on to hold that the Watermans’ southern boundary was “a straight line projected east” (judgment, [17]).  Thus he considered that the agreement with Mrs Wordsworth had resulted in her obtaining not only a small area of land under the garage but also a small area to the south of her hard standing. 13.              In this court, Mr Boyle and Ms Gwilt challenge that conclusion. However in my judgment, it was ultimately a question of fact as to what were the features on the ground at the time of the transfer to Mrs Wordsworth, and what Mr Boyle and Ms Gwilt agreed with her.  The judge heard the witnesses, and visited the site. In my judgment, he was entitled to reach his conclusion on the southern boundary.   Mr Boyle and Ms Gwilt did not identify any form of words which they used when they made their agreement with Mrs Wordsworth. Mr Boyle said that he had actually agreed with Mrs Wordsworth that she should not acquire any proprietary interest in the land, but, surprisingly if that was so, no-one had recorded the conversation in writing. It was in reality unlikely that the parties had drawn a distinction between giving Mrs Wordsworth permission for the garage and giving her the land on which the garage was to be built.  Mrs Wordsworth was Mr Boyle’s sister-in-law, and so the conversation with her husband is likely to have been an informal one.  In any event, Mr Boyle and Ms Gwilt’s case is inconsistent with what they originally said about the trench dug by Mr Boyle.  Mr Boyle and Ms Gwilt’s solicitors stated in correspondence with the Watermans’ solicitors that the trench was dug up to the boundary, but Mr Boyle in his evidence at trial contended that this trench, while dug on the appellants’ land, gave the Watermans a small strip of land to the south of their hard standing.   Mr Philip Jones, representing the Watermans here and below, put it to Mr Boyle in cross-examination that Mr Boyle and Ms Gwilt had merely changed their tune when the dispute about location of the southern boundary by the garage arose. Mr Boyle denied this, but he had no explanation for the change of case.  It is reasonable inference that the original case was the true one, and, if so, it provided corroboration for the judge’s conclusion on the southern boundary because, if the appellants were right, the southern boundaries of 2 and 3 Hog Lane Farm would not form a straight line, despite Ms Gwilt’s stated preference for straight-line boundaries. 14.              The building of the garage on the appellants’ land might well also have given rise to difficulties, especially if Mrs Wordsworth had wanted to sell or even remove or rebuild the garage, and that makes that sort of agreement less plausible.   15.              I would therefore reject the appellants’ challenge to the judge’s decision on the southern boundary.  It is unnecessary to deal with the alternative case raised by the Watermans in their respondents’ notice as to the true location of the southern boundary as shown in the plan contained in the transfer to Mrs Wordsworth. 16.              There is a consequential issue. The Watermans claim that the boundary should run at the outermost line of the gutters of the garage, which protrude further forward than the walls of the garage which the judge took as marking the boundary line. This is inconsistent with the straight-line basis of the southern boundary, which underpins the Watermans’ case. I would accordingly reject this argument. 17.              There remains the claim about interference with the right of access.  The Watermans’ pleaded case was that the Groom’s Cottages wall had been built on the lane.  But by the time of the trial it was common ground that it was built a few inches south of the lane. The Watermans then argued that the lane had to extend further south.  The judge accepted that argument.  He attached significance to the fact that Mr Boyle and Ms Gwilt could not give rights of access over all the lane as shown on the transfer plan. It is not clear what he meant by this:  he may have been referring to the giving of a strip of land to the Zukases or the subsequent permission for the garage. While I would not accept that either of these matters could be relevant to the interpretation of the words creating the right of way in the transfer to Mrs Wordsworth, that point does not matter. The important point is that the judge held that the transfer had to be interpreted purposively so as to give a right of access over land of sufficient width to permit reasonable use by motor vehicles.  He did not further elaborate what that involved.  He then held that it was no longer open to Mr Boyle and Ms Gwilt, having agreed to the construction by Mrs Wordsworth of her garage, to say that there was no right to use the lane for the purposes of the garage.  Accordingly the building of the Grooms Cottages wall had interfered with  the Watermans’ rights and the judge awarded damages of £1,000 for each of the past years and direct further argument as to future loss. 18.              Mr Duncan Kynoch, for Mr Boyle and Ms Gwilt, submits that the judge was wrong to say that the agreement between them and Mrs Wordsworth resulted in some additional right of access to the garage.  Moreover, as the Grooms Cottages wall was not built on the lane, Mr Boyle and Ms Gwilt had not interfered with the Watermans’ right of access. 19.              In my judgment, the judge’s analysis was wrong in all respects. The transfer to Mrs Wordsworth on its true interpretation conferred a right of access over a lane of fixed location. It cannot therefore be interpreted as ascertainable by some formula, or as ambulatory, which is the effect of the judge’s purposive interpretation.  When Mr Boyle and Ms Gwilt gave permission for a garage to be built, there was no express agreement to extend the right of access and none can be implied into it.  Mrs Wordsworth had no difficulty accessing the garage from the lane with her smaller vehicles. 20.              As to the question whether the Grooms Cottages wall interfered with the right of access, I reject Mr Kynoch’s submission that an act on adjacent land can never in any circumstances interfere with a right of access.  If, for example, there was a right to take cattle down a lane and the owner of adjacent land creates some persistent loud noise on his land which makes it impossible to bring the cattle down the lane, that would be an interference with the right of access.  Likewise there would be an interference with the right of access if  a support on the adjoining land for some structure on the lane was removed, causing the lane to be blocked.  21.              However, the circumstances would have to be quite exceptional.  They are not satisfied here where the wall is situated wholly on land not forming part of the servient tenement and is secure, and its construction was an ordinary user of the land.  For an act to be actionable in nuisance by the person entitled to a right of access, the act must constitute a substantial interference with the right of access and it must interfere with reasonable use of the right:  Celsteel v Alton House Holdings Ltd [1985] 1 WLR 204.  Mr Boyle and Ms Gwilt were obviously entitled to sell the land south of the lane and, in the absence of some special circumstance, it was reasonable for them to have a wall built on that land to mark the boundary with the lane.  Building a boundary wall is an ordinary and reasonable use of land.  While it is wholly regrettable that Mr Boyle and Ms Gwilt should have built the Grooms Cottages wall when they were aware that it would make it difficult or impossible for their neighbours to enter their garage, without having the courtesy to consult or warn them in advance, and while it is not unreasonable in the abstract for the Watermans to want to use larger cars than Mrs Wordsworth had done, those facts are nowhere near sufficient to render actionable what Mr Boyle and Ms Gwilt did in this case on  land beyond the lane.  22.              Moreover, the judge found that the Watermans would have no difficulty in accessing the garage if they altered the front of the double garage and fitted an up and over door (judgment, [6]).  The Watermans had in practice been turning into their garage by using the land south of the lane and so they should have been aware that they did not have a sufficient right of access via the lane.  In those circumstances, even if it had been right to give less weight to the fact that Mr Boyle and Ms Gwilt had built or permitted the wall to be built on land outside the lane than I have done, insistence on a right of access without altering the configuration of the garage was not reasonable, and the Grooms Cottages wall accordingly for that additional reason did not substantially interfere with the right of access. (Moreover, while this is not relevant to the interference with access claim, if planning permission were obtained, the garage could be rebuilt on to the concrete hard standing.   This would also solve the problem that the Watermans could not park on the concrete hard standing because it was landlocked by the garage.) 23.              I would allow the appeal against the judge’s order for damages for substantial interference. Parking rights – northern drive 24.              Parking rights are very important in practice, and the judge’s analysis has important implications for many owners of houses and flats who later find that they do not have adequate parking rights. 25.              As explained above, the Watermans have a right of access in common with Mr Boyle and Ms Gwilt over part of the northern entrance drive. This includes the area around the traffic island, which was called “the green land” in the judge’s order. The issue here was whether vehicles could not only be driven along the northern entrance drive but whether they could also be parked there by visitors for the duration of their visit. The judge held that there had to be implied into the right of access an ancillary right for private and trade visitors of the owners of 2, Hog Lane Farm to station cars on the northern drive for the duration of their visit, always provided that they did not obstruct the normal use of the green land by Mr Boyle and Ms Gwilt or their lawful visitors.  He held that this ancillary right was necessary for the purpose of using 2, Hog Lane Farm as a dwelling house as intended by the transfer to Mrs Wordsworth.  The judge held that this was no more than an application of “established principle to the unusual facts of the case” (judgment [27]).  Moreover, Moncrieff in effect confirmed this conclusion. 26.              Mr Kynoch submits that the judge was wrong in his conclusion.  The facts were not unusual, as in Moncrieff.  The judge failed to take account of the fact that the Watermans had express parking rights. Indeed, the transfer to Mrs Wordsworth envisaged that there were six spaces at 2, Hog Lane Farm in all. Mr Jones submits that the right test is whether a right should be implied for the reasonable enjoyment of the land.  He relies on Cannon v Villars (1878) Ch D 415.  The parking at the front of the 2, Hog Lane Farm was limited to private vehicles.  If the Watermans wanted a plumber, he had to park at the rear of their house for the duration of his stay. There was nowhere for visitors. He submits that the transfer to Mrs Wordsworth envisaged the construction of a garage and it must have been clear that this would cut down the amount of the parking space.  The judge’s conclusion was one of fact to which the judge was entitled to come. 27.              I would allow the appeal on this issue. The precise terms of the relevant rights  were set out in schedule 1 to the transfer to Mrs Wordsworth: “5. The right to park two private motor vehicles on the land coloured green hatched black on the Plan. 6.  The right at all times in common with the Vendor and all others having the like right with or without vehicles for the purposes of gaining access to and egress from the property over and across the driveway shown coloured blue and green on the Plan.” 28.              Although the right in cl 6 is not expressed to be a right to pass and repass, in the context cl 6 could not mean more than that, given the express right to park given by cl 5. 29.              The test to be applied is whether, having regard to the circumstances at the time of the transfer by Mr Boyle and Ms Gwilt to Mrs Wordsworth, it would be a reasonable use, in the sense of a reasonably necessary use, of the green land to use it for stationing vehicles for the duration of the user’s visit to the property:  for this test see Cannon v Villars at 422; Bulstrode v Lambert [1953] 1 WLR 1064, where the right to pass and repass to get access to business premises included the right to stop to unload and load, and Moncrieff , below, especially at [112], [113].   It is not enough that the use is merely desirable (see London and Suburban Land v Carey (1991) 62 P & CR 480).  30.              The circumstances at the time of the transfer include the provisions in the transfer itself, particularly cl 5 of schedule 1 (above) and the fact that the transfer envisages that a garage will be constructed (without, however, prescribing its precise location).  The circumstances also include the physical facts.  At the time of the transfer there were four other parking spaces at the rear of 2, Hog Lane Farm (which was in fact then only a two bed-roomed house).  The parties to the transfer had thus specifically considered parking rights and made what appears to be adequate provision for parking. The right of way to 2, Hog Lane Farm could be substantially enjoyed without any further parking right.   31.              In my judgment, if the parties had intended any further right of parking there would have been an indication to that effect in the transfer.  Nothing in the surrounding circumstances at the time of the transfer supports the implication of any further right.  I would indeed go further and hold that, where there is an express right attaching to the same property of a similar character to the right which is sought to be implied, it is most unlikely that the further right will arise by implication.  The circumstances would have to be quite exceptional. 32.              I accept that there will sometimes be visitors with more cars than available parking spaces, but there is nothing to stop the Watermans asking Mr Boyle and Ms Gwilt for permission for their guests to park.  Moreover, it would have been obvious to them when they bought the property that there were no rights for visitors to park on the appellants’ land. 33.              Finally, the right to park conferred by cl 5 is expressly limited to private vehicles, and there is an entrance to 2, Hog Lane Farm from the rear with provision for parking.  In those circumstances, it is impossible to imply a right to park commercial vehicles on the green land at the front of the house in any event. 34.              Moncrieff provides no support for the judge’s conclusion. That case established that for the purposes of Scots law (which for this purpose was held to be the same as English law: see [29], [45] and [111]) a right to park was capable of being implied into a right of vehicular access if the right to park was reasonably necessary for the exercise or enjoyment of that right.  On the facts of that case, the test for the implication of the right to park was met. But the facts were quite exceptional.  The right of access, to which the owners of the house were entitled, led to a gate.  This was the only access to a house on the shore below, at the foot of a steep cliff. The nearest parking was some 150 yards away up a steep hill. It was in those circumstances held to be reasonably necessary to use the right of access for parking vehicles.   The parking had to be for purposes reasonably incidental to the enjoyment of the house on the shore and was not to interfere with the servient owner’s own enjoyment of the land. (The parties had in fact effectively agreed to limit the parking to two vehicles in designated spaces). The facts of Moncrieff are far removed from the present case, and the case turned on its special facts.  The test applied in that case is that set out above but its application to the facts of this case leads to a very different result. 35.              That leaves a question about whether the judge should have directed the removal of a silver birch tree in the traffic island in addition to the removal of the silver birch tree next to the yew tree.  The judge did not consider this was necessary: he stated in his judgment that, once recently-added edging of the traffic island had been removed, the access to the Watermans’ parking spaces should be acceptable.  He was entitled to reach this conclusion. He had inspected the site. 36.              The Watermans say that the judge should have made the order because he held that it was difficult to see why the right of access did not give them the right to drive over the traffic island.  I do not consider that they were entitled to drive over the traffic island even if they avoided the ice well and yew tree and other vegetation on it. It was obviously something they were expected to drive round, not over. I am not surprised that the judge records that his conclusion on this “came as a surprise to the parties” (judgment, paragraph [22]).  Moreover, as already explained, not every interference with a right of access is actionable.  It has to be substantial and to interfere with the reasonable use of the way:  see Celsteel, above.  The traffic island was not found to be an actionable interference with their right of access. The Watermans also say that removal of the silver birch would make access easier, particularly by increasing the room available to park cars along the wall with 3, Hog Lane Farm. This does not make it a substantial interference with their right of access (though it may ultimately do so if the tree grows in a relevant direction without being pruned). 37.              In my judgment, there are no grounds for saying that the judge’s refusal to make a direction for the removal of the silver birch was wrong in law or perverse. Conclusion 38.              I would allow the appeal to the extent identified above, and dismiss the respondents’ notice. The appellants’ appeal on costs, which has not yet been argued, does not now arise and the parties should file written submissions as to the order which they submit that this court should make as to the costs here and below. For the future 39.              I would add this.  There is a common misunderstanding that an Englishman’s home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours.  In this case, Mr Boyle and Ms Gwilt, in an effort to stop parking on the northern drive, had even engaged a clamping firm and put up warning notices about the risk of clamping (which never in fact occurred).  In related proceedings brought by the Watermans against their solicitors, in which Mr Boyle gave evidence, HHJ Dean QC had described such a step between close neighbours as verging “on the edge of rationality”.  40.              While it is often true that a person can do what he wants on his own land, it is not always so.  The law expects neighbours to show some give and take towards each other. The parties to this litigation should keep that point in mind for the future and now draw a line under the past. Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation. Lord Justice Moore-Bick: 41.              I agree. Lord Justice Waller: 42.              I also agree.