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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fox-Roberts v Smith & Anor [2001] EWCA Civ 1176 (9 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1176.html Cite as: [2001] EWCA Civ 1176

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PONTYPRIDD COUNTY COURT
(HIS HONOUR JUDGE HUGH JONES)

		Royal Courts of Justice Strand London WC2 Monday, 9th July 2001

Monday, 9th July 2001

1. LORD JUSTICE ROBERT WALKER: This is an application by Mrs Maureen Smith and her husband, Mr Robert Smith, who have both appeared by Mr Smith. He has addressed me with great courtesy and considerable skill. Mr and Mrs Smith seek permission to appeal and an extension of time for appealing from an order of His Honour Judge Hugh Jones made in the Pontypridd County Court on 2nd May 2001 in an action brought against Mr and Mrs Smith by Mrs June Fox-Roberts.
2. This case arises out of an unfortunate difference of opinion between near-neighbours over a boundary. But it arises at one remove in the sense that it is a dispute about the meaning and effect of terms of compromise embodied in a consent order made in different proceedings, although in the same county court. For some reason a proper office copy of the order is not before the Court and was not before the judge, but there is a draft dated simply August 1997 and it is common ground that this draft (with two very important manuscript corrections transposing "Plaintiff" and "Defendant" halfway through paragraph (ii) of the order) is correct. I should add that in the earlier proceedings the plaintiff was Mrs Smith (as sole plaintiff, without her husband) and the defendant was Mrs Fox-Roberts, but sensibly no one has taken any point (which it would almost certainly be a bad point) as to Mr Smith not being, for all practical purposes, bound by the consent order.
3. Before examining the consent order more closely I must describe the geographical layout of the properties. Mr and Mrs Smith live at Number 33, St Anne's Drive, Crown Hill, Llanwit Fardre, Mid Glamorgan. Mrs Fox-Roberts lives at Number 49, St Anne's Drive. That is why I describe them as near-neighbours. The fact is that their gardens have both been extended by the acquisition of further land at the rear of other gardens where there is a stream or small river called Nant Dowlais which follows a serpentine course to the east of a sizeable residential estate which includes St Anne's Drive.
4. The best general depiction of the whole layout is on the Land Registry filed plans (which are 1/1250 enlarged from 1/2500) to title numbers WA 363639 and WA 298461. These titles comprise areas of what I might call "back land", bordering the stream, which were acquired by Mrs Fox-Roberts in 1994. They show her house, number 49, in a short cul-de-sac off the main part of St Anne's Drive and number 33 is the eighth house north of the cul-de-sac. Mr and Mrs Smith bought number 33, together with another area of "back land" in 1986; their back land is shown on a plan to a conveyance dated 15th July 1977 to their predecessor in title, Mr Malcolm Clarke. None of these plans appears to include the actual course of the stream, by which I mean the land which is covered by the flowing stream, or would be covered if there were sufficient flow. That by itself is of little importance since very often the ownership of beds of water courses is determined by presumptions rather than by detailed plans. However, in this case the position is complicated by the fact that in 1987, in fact before she became owner of the land in question but by agreement, as Mr Smith has told me, with the then owner, Mrs Fox-Roberts carried out works which have to some extent altered the course of the stream by straightening it. The purpose of this was to prevent flooding, and it is accepted that the work was carried out with the consent of appropriate authorities. The general effect of the straightening appears on a 1:250 plan, prepared in 1995 by Roger North Long & Partners, who acted for Mrs Smith in the earlier proceedings.
5. The only other relevant plan – and the most relevant for today's purposes – is that annexed to the consent order of August 1997. It was agreed by the respective surveyors acting for the parties in the earlier proceedings, it is on a scale of 1:200. In order to link it to the other plans, it is important to note that east is approximately at the top left-hand corner of the plan, south is approximately at the top right-hand corner and so on.
6. The plan shows the garage of number 33 and the garden (including the "back land") of number 33 on the left. It shows the original course of the stream. It shows four datum points established by the surveyors and then, roughly but by no means exactly in a straight line, points designated with the letters A to H inclusive on the Smiths' side, that is on the north side of what is or used to be the course of the stream. All these points were meticulously established from the datum points. The plan also shows marked with cross-hatching an area to the south and east of points D to H. That area is very roughly two to three square centimetres on the plan, which would be about four to six square metres on the ground. Whether that estimate is accurate or not it gives a general idea of what is at stake. This is by no means the smallest boundary dispute that has ever come before this Court, but it is not a very large area that is at stake.
7. With that introduction I come to the consent order and I will read all the order except the full addresses and the direction for taxation which I omit. I will name the parties to avoid any confusion since the parties have switched in the two sets of proceedings.

"By Consent it is ordered that:-

(i) the boundary between 33 St Anne's Drive belonging to Mrs Smith and 49 St Anne's Drive belonging to Mrs Fox-Roberts is and is hereby declared to be along the line shown and marked, A-B-C-D-E-F-G-H on the plan annexed hereto being measured and calculated in accordance with the Schedule of Measurements annexed hereto. Both the plan and Schedule are signed for identification.

(ii) that Mrs Smith has no claim or right to any area of land lying to the south of the said boundary line (that is in the direction of 49 St Anne's Drive) including that which is and is shown generally on the said plan as a stream which land and banks and bed of the stream is the property of Mrs Fox-Roberts save only that Mrs Smith has such claims and rights as arise from ownership of the land or bank of the stream along the line marked D-E-F-G-H over the bed of the stream to the midpoint thereof which is and is hereby declared to be that area hatched and coloured yellow on the said plan being measured and calculated in accordance with the said Schedule of Measurements."

8. Sadly but predictably, it is the second part of paragraph 2 starting with the words "save only" which have given rise to the new litigation. Very soon after the consent order Mr Smith erected a low fence and planted some trees within what I would call the hatched area. I readily accept that in doing so Mr Smith did not intend to carry out an act of trespass but believed that he was acting lawfully under the terms of the consent order. The essential issue is whether he was correct in that supposition.
9. Mrs Fox-Roberts promptly began new proceedings seeking injunctions, and the judge granted two injunctions by the order from which Mr and Mrs Smith seek to appeal. Mr Smith (who also appeared in person before the judge,) argued that the effect of the order was to give him ownership of the hatched land which was agreed to extend halfway over the course, or bed of the stream – in the Latin phrase the medium filum. The judge rejected that as an impossible interpretation. He agreed with Mrs Fox-Roberts' counsel that paragraph (i) and the first part of paragraph (ii) were intended to establish in the clearest terms Mrs Fox-Roberts' ownership of all the land including the bed and banks of the stream up to the defined A to H line. The second part of paragraph (ii) can sensibly take effect only as:

"... a reservation out of Mrs Fox-Roberts' ownership of certain rights in favour of Mr Smith;"

—in his capacity, I would add, as owner of what the consent order calls "the land or bank of the stream along the line marked D-E-F-G-H".

10. Mr Smith has sought permission to appeal both on a point of law which he has described to me. He also relies on an error of fact which he says the judge made in his judgment in referring to ownership being only at point D. It seems to me that the judge may well have made a slip (unless indeed it is an error of transcription at that point). There is a question, however, of whether it is an error which has any practical consequences.
11. It appears from the judgment that in the county court counsel for Mrs Fox-Roberts, while conceding that there might be an intention to reserve rights of an incorporeal character, could not think of what those rights might be. It is necessary for the court always in construing any document, including a consent order, to try to make sense of it and to give a sensible meaning to every part of it even if there is some apparent conflict or contradiction.
12. Plainly the second part of paragraph (ii) was intended to have some effect and not to be simply a waste of time and language.
13. If the effect of the consent order was to recognise the Smiths as the owners of the stream bank from point D to point H, it would be possible for them to have riparian rights over half of the stream, even though they do not own any part of the bed of the stream. That is established by high authority, that is the decision of the House of Lords in Lyon v Fishmongers Company (1876) 1 App Cas 662, especially in the speech of Lord Selborne at pages 683-4. The most likely right to be of any practical importance would be a right to take water from the stream for normal domestic purposes (such as watering the garden) subject always to statutory restrictions imposed by or under the Water Resources Act 1991.
14. But what Mr Smith did after the consent order was not the abstraction of water, and there is no indication in his written or oral submissions that that is how he saw the consent order making sense. I asked him this morning what his view was as to the content of the riparian rights that he claimed, and he identified them as ownership. Consistently with this and far from any suggestion that what he wishes to do is to abstract water for domestic purposes, he has in his skeleton argument referred to the stream as a dried-up riverbed and has explained to me this morning that the oxbow part (which is the relevant part) is dry except during flood conditions.
15. Putting up a fence and planting trees were acts of ownership and could not, in my judgment, possibly be regarded as the exercise of riparian rights. If Mr and Mrs Smith misunderstood the effect of paragraph 2 of the consent order, that is most regrettable. But I have no doubt that the judge was right in his approach to the meaning of the order.
16. Mr and Mrs Smith also object to the judge's costs order. They say that Mrs Fox-Roberts went to law prematurely and that they tried, and indeed I accept that they did try, to avoid the cost of further litigation. However, costs were eminently a matter in the discretion of the judge and it seems to me that his order was within the proper ambit of his discretion.
17. I can see no prospect of a successful appeal in this matter and despite Mr Smith's eloquent submissions I must refuse permission to appeal.
(Application for permission to appeal refused)