REF/2013/0585/0597
NCN: [2015] UKFTT 150 (PC)

PROPERTY CHAMBER LAND REGISTRATION
FIRST-TIER TRIBUNAL
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN
(1)	ROBERT ALEXANDER HILL PEARSON
(2)	MARGARETTA GAIL PEARSON
APPLICANTS
and
(1)	JOHN ARTHUR VILLAGE
(2)	MARY CLAIRE VILLAGE
RESPONDENTS
Property Address: Land on the north-west side of Moor Green Farm, 
Barlow, Dronfield S18 7SE

Title Numbers: DY470780 & MAN193539
Before: Judge Owen Rhys
Sitting at:  Sheffield Combined Court Centre
On: 16th & 17th April 2014
Applicant representation:	Ms Griffin of Counsel instructed by Taylor & Emmett LLP
Respondent representation:	Mr Halliwell of Counsel instructed by Messrs Vincent W Fairclough Solicitors
__________________________________________________________________________________
D E C I S I O N 
__________________________________________________________________________________
INTRODUCTION
1.	On 27th September 2012 the Respondents purchased a small triangular grassed area (“the Disputed Land”) lying to the north of their property known as Moorgreen Farm and to the west of the Applicant’s property known as Acorn House, Far Lane, Barlow.  Acorn House is registered under Title number DY323290, Moorgreen Farm is registered under Title number DY132552, and the Disputed Land has been given the provisional Title number DY470780.  Access into Acorn House is obtained over an unsurfaced track (“the Track”) which comes off Far Lane to the south, runs past Moorgreen Farm to the east, and then turns east and enters Acorn House through a gateway some 9 feet wide set into the stone wall that forms its western boundary.  The Disputed Land is bounded by Moorgreen Farm to the south, by the stone wall to the west of Acorn House to the east, and by the Track to the north and west.  Entry no. 3 on the Property Register to Acorn House is in these terms: “Together with a full right of way for the Purchaser her heirs and assigns as owner or owners for the time being of the Purchasers premises for all purposes along and over the roadway coloured yellow on the said plan”.  The Property register contains a note that “The roadway coloured yellow referred to is tinted brown on the filed plan”.  The land tinted brown comprises both the Track and the Disputed Land.  According to the Property register relating to Acorn House, therefore, the Disputed Land is subject to a right of way for all purposes for the benefit of the owners and occupiers of Acorn House. 

2.	On 5th October 2012 the Respondents applied for first registration of the Disputed Land, the title to which was unregistered. The Applicants objected to the application being completed without a subjective entry in their favour in respect of the right of way.  This was followed by the Applicants’ application dated 1st November 2012 in Form AP1, to register the burden of the easement against the title to the Disputed Land.  Both disputes were referred to the Tribunal on 17th July 2013.  As I have said, the Applicants do not object to the registration of the Disputed Land, provided that the burden of the right of way is noted on the register. The benefit is, of course, already part of their registered title.

THE ORIGINAL ISSUES
3.	The case came on for hearing on 16th and 17th April at the Sheffield Combined Courts, with a helpful site view on 15th April, in the presence of the parties and their representatives.  The Applicants were represented by Ms Griffin of Counsel, and the Respondents by Mr Halliwell of Counsel, both of whom lodged detailed Skeleton Arguments.  Until shortly before the hearing, there were effectively only two issues to be resolved.  First, whether the right of way in favour of Acorn House extends to the Disputed Land, or is limited to the Track only.  Secondly, and if it is held that the Disputed Land is subject to the original express grant, has that right been abandoned?  The first issue is one of construction.  The right of way was granted by a Conveyance dated 7th August 1922 (“the 1922 Conveyance”) made between Mr and Mrs J W Holmes (1) and Alice Wass (2), whereby Acorn House was severed from the larger holding known as Moorhall Farm, which lies to the north.  The parties are agreed that the physical extent of the right of way must be determined by reference to this express grant – the terms of which are repeated in Entry No 3 in the Property register of the Acorn House title.  The second issue is largely one of fact.  Mr Halliwell accepts that the relevant test is this: has the dominant owner evinced an unequivocal intention never to use the right of way in the future?  Mere non-user, as Mr Halliwell concedes, is insufficient.

THE AMENDED CASE
4.	Shortly before the hearing, the Respondents applied to amend their Statement of Case, to raise an allegation of estoppel.   The application was opposed, but in the circumstances I gave permission for the amendment, despite considerable reservations as to the viability of this claim.  Permission was given purely on pragmatic grounds, to ensure that all issues were before the Tribunal and the hearing dates would not be lost.  In the event, much of the evidence related to this one issue. The case was pleaded as follows
“5A.	Further or alternatively the Applicants are estopped from contending that the right of way granted by the 1922 Conveyance extends over the Land or any part thereof.
PARTICULARS
5A.1	In or about May 2010 the Respondents entered into negotiations with Leonard Albert Vickers as owner of Moorhall Farm to purchase the Land.
5A.2	At all times the Respondents were not aware that the Land was, or might have been, subject to any incumbrances or third party rights whether rights of way or otherwise (“the Respondents’ Belief”) and the Land was purchased by the Respondents and the Transfer was entered into in reliance upon the Respondents’ Belief.
5A.3	In or about July 2010 the Applicant became aware that the Respondents were negotiating to purchase the Land and took legal advice from Taylor & Emmett LLP Solicitors in July 2010 with regard to their rights under the 1922 Conveyance (“the Applicants’ Knowledge”).  The Applicants must also be taken to have been aware that the Respondents were negotiating to purchase the Land in reliance upon the Respondents’ Belief and, as an essential part of the same, their belief that the Respondents did not have a right of way over the Land (“the Obvious Inference”).  In all the circumstances, this was the natural and obvious inference about the understanding on which the Respondents entered into and proceeded with such negotiations.  Had it been otherwise, the Respondents could not have been expected to proceed with the purchase without first obtaining clarification from the Applicants about the extent of their rights.
5A.4	Notwithstanding the Applicants’ Knowledge and the Obvious Inference, the Applicants took no steps to advise the Respondents that they had a right of way granted by the 1922 Conveyance over the Land or otherwise to notify the Respondents of any such right or rights.
5A.5	Had the Applicants advised the Respondents of their contention that the right of way granted by the 1922 Conveyance extended over the Land in or about July 2010 or at any time prior to completion of the Transfer the Respondents would not have purchased the Land without firstly clarifying whether the Applicants were entitled to a right of way over the Land.”

5.	The final issue, therefore, is this: if they are able to establish the existence of the right of way, and it has not been abandoned, are the Applicants estopped from contending that the Disputed Land is subject to a right of way in their favour?
THE CONSTRUCTION OF THE EXPRESS GRANT.
6.	By a Conveyance dated 5th August 1922 the Duke of Rutland conveyed a parcel of land (being Lot 82) to James William Holmes and Harriet Holmes.  The land was described as Moorhall Farm, consisting of 105 acres 2 roods and 4 perches, as shown on the annexed plan and described in the Particulars.  The land includes Acorn House, and also the Track and Disputed Land.  Parcel 579a is described as “Road”, consisting of 0.214 acres, and from the plan includes both the Track and the Disputed Land. Two days later, the purchasers hived off part of Lot 82 and conveyed it to Alice Wass by virtue of the 1922 Conveyance.  The land was given a verbal description but was also “more particularly delineated on the plan drawn on these presents and therein edged pink….”.  The plan is drawn to a scale of 30 feet to one inch or 1:360 – a relatively large scale.  

7.	There is also included in the conveyance a grant of the following rights: “… a full right of way for the Purchasers their heirs and assigns as owner or owners for the time being of the Purchaser’s premises for all purposes along and over the roadway coloured yellow on the said plan….”.  The land coloured yellow is an area of land leading from Far Lane as far as the northern boundary of Acorn House.  The yellow land abuts the north-western boundary of Acorn House and occupies the area between  the public highway and this parcel of land.  Certain features are shown on this plan.  Two buildings are marked within the boundaries of the Acorn House land, which are marked by solid lines.  There are “T” marks on the northern, south-eastern and southern boundaries, but not on the western boundary, including the boundary where the yellow land abuts.  Broken lines are marked along the western stretch of Far Lane, along the south-eastern edge of the yellow land, and along the north-western edge of the yellow land.   There is a solid line drawn along the south-eastern edge of the yellow land (i.e where it abuts Moorgreen Farm) between the broken lines referred to and the Acorn House boundary.

8.	The Applicants argue that their right of way extends over the entirety of the land coloured yellow on the 1922 Conveyance plan.  That, indeed, is the view of the Land Registry, hence the terms of Entry no. 3 in the Acorn House Property Register.  However, the Respondents put forward a different construction.  They contend that the right of way is limited to that part of the yellow land which could properly have been described as “the roadway” in August 1922, which, they say, is coterminous with the present day Track.  No part of the Disputed Land, they argue, is subject to the right of way.

9.	In construing the grant of a right of way, it is necessary to give effect to the words used by the parties, but in the light of the physical circumstances existing at the date of the grant.  A Judge with unrivalled expertise in the law of real property summarises the correct approach as follows: “The nature and extent of a right of way created by express grant depends on the language of the deed of grant, construed in the context of the circumstances surrounding the execution, including the nature of the places over which the right was granted” – per Mummery LJ in West v Sharp [2000] P & CR 327 at 332.   Mr Halliwell also directs my attention to the case of Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896, which is a useful case but adds nothing of substance to the passage I have just cited.   The Applicants argue that there is no room for any doubt as to the meaning of the grant.  Even if there were a defined track in existence at the date of the grant, that fact cannot affect the obvious intention of the parties as derived from the words used. They point to the fact that the “roadway coloured yellow” is clearly identified on the conveyance plan as occupying the entire area between Acorn House and the public highway, and the entirety of this area is the intended extent of the servient land. I agree.

10.	Mr Halliwell argues that it is possible to give a literal meaning to the words of grant that limits the servient land to the Track.  He submits that the right of way extends only to the roadway – i.e the Track – and since that lies within the land coloured yellow, this is consistent with the words of the grant.   I cannot agree that this is a legitimate reading of the words of grant.  To achieve the Respondents’ construction, it is necessary to re-cast the grant as follows: “… a full right of way for the Purchasers their heirs and assigns as owner or owners for the time being of the Purchaser’s premises for all purposes along and over that part of the land coloured yellow on the said plan that presently forms a roadway leading to Acorn House” (my words in bold).  I do not see how any amount of evidence proving that there was a defined roadway in existence on 5th August 1922 can alter the plain words of the grant.

11.	If I am wrong about this, however, and the existence of the Track in 1922 is material, I shall consider the evidence relied on. Both parties have attempted to lead evidence as to the physical and other circumstances existing at the date of the grant.  In considering this evidence, I have in mind the words of caution contained in the decision of Wilkinson v Farmer [2010] EWCA Civ 1148  In that case, there was an express grant of a right of way over “the road which traverses the said premises between the points marked A and B in the said plan”.  However, the annexed plan did not provide precise information about the width of the road.  The plan was not drawn to scale and contained no measurements.  The whole area of land conveyed subject to the right of way was coloured pink, without any other colouring to differentiate the property sold and the track or road reserved over it.  There was a dispute between the dominant and servient owners as to the precise width of the road.  The parties adduced evidence as to the relevant surrounding circumstances as at the date of the grant, such as evidence of the probable width of the road at that time.  Mummery LJ had this to say: “[35] I favour a cautious approach to the construction of the 1898 Conveyance. Of course, surrounding circumstances are taken into account in order to determine the width of the way for which no measurements are given in the relevant conveyancing documents.  At a distance of over a century from the creation of the right, the safer and more sensible course is to put trust in the firm anchor of what is recorded and known rather than to set out on an uncharted sea of speculation about all the possible circumstances surrounding the way in 1898.”  Mummery LJ drew attention to the absence of any contemporaneous direct oral or photographic evidence, and the fact that the conveyance plan was not drawn to scale.  He felt that the material before the first instance tribunal was too “thin” to be able to reconstruct a “convincing circumstantial picture of the locus in quo…”  (see paragraph 36).

12.	Bearing this guidance in mind, the primary available evidence is, of course, the 1922 Conveyance itself and the conveyance that immediately preceded it, on 5th August 1922, to the extent that it assists.  Unlike Wilkinson v Farmer, the plan annexed to the 1922 Conveyance is drawn to scale, and a relatively large scale at that.  No doubt contemporaneous images of the site would also be admissible, and Ordnance Survey and other maps created at or around the date of the conveyance.  However, the Respondents also rely on inferences, to be drawn, they say, from the appearance of the area today and during the last forty or fifty years.

13.	I shall begin with the Conveyance of 5th August 1922, from which the following facts emerge.  First, the whole of the land shown coloured yellow on the 1922 Conveyance plan is described as “Road”, is given an area of 0.214 acres and is identified as OS 579a.  Secondly, although a road or track is marked as running over OS 579a, it does not extend as far as the curtilage of Acorn House.  Thirdly, the western boundary of the Acorn House land is marked by a black line, which suggests a solid boundary feature, such as a fence or hedge. Finally, Acorn House forms part of a much larger unit, namely Moorhall Farm.

14.	Secondly, there is the 1922 Conveyance itself, the most reliable indication of the parties’ intentions – the “firm anchor” in Mummery LJ’s phrase.  What does it tell us beyond the words of the grant itself?  First, the Track is not shown.  Although there are some broken lines, which may indicate the edge of a track, these do not lead into Acorn House.  The plan to the 1922 Conveyance therefore contains no evidence of a defined access from the public highway as far as Acorn House.  Secondly, there is no indication of any gate or entrance along the boundary between the yellow land and Acorn House.  Thirdly, there are “T” marks drawn along some of the Acorn House boundaries, but not the boundary with the yellow land. Finally, and most obviously, the parties have chosen to describe the land coloured yellow as “the roadway” – that is their description.

15.	The third item of contemporaneous evidence is the 1922 edition of the Ordnance Survey map, drawn at a scale of 1:2,500.  The features shown on this map closely match the features shown on the 1922 Conveyance plan, unsurprisingly.  Perhaps of most note is the fact that a track is shown leading north from Far Lane towards Moorhall Farm running past the Acorn House land.  The land over which the track runs is identified as OS number 579, with an area of 0.214 acres – just as described in  the Conveyance of 5th August 1922.  The track is identified by means of broken parallel lines.  However, the track does not connect with the Acorn House land – there is no visible access to it from the public highway over the marked track.  Again, the western boundary of the Acorn House land is shown as a solid black line.  A footpath is shown running in an east-west direction, which terminates at the western boundary of Acorn House.  No connection is shown between this footpath and the track running north-south past the Acorn House land.

16.	There is no other evidence with regard to the physical circumstances existing at the date of the 1922 Conveyance.  The Respondents have sought to rely on evidence of the appearance of the Disputed Land since around 1960, based on witness statements, photographs and maps.  These demonstrate that the Track had been formed by that time, and the Disputed Land was not used as an access to Acorn House.  There was a wall along the western boundary, with an opening where the Track ended.  Mr Halliwell invites me to take this evidence into account as an aid to the construction of the 1922 Conveyance.  I am unable to find any legal basis for so doing. This is precisely the type of speculative exercise that Mummery LJ cautioned against in the passages cited above.  There is no direct oral or photographic evidence as to the existence of the Track in 1922.  It cannot be inferred from the existence of the Track in the 1960s that it did exist in 1922.  Indeed, the evidence of the maps and plans current in 1922 suggests precisely the opposite.  No track leading into Acorn House is marked either in the conveyance plans or the 1922 Ordnance Survey.  The evidence relied on by the Respondents is of no assistance to them.  I accept that where there is ambiguity in a conveyance with regard to a boundary, evidence of subsequent conduct by the adjoining owners may be admissible if of “probative value” – see Ali v Lane [2006] EWCA Civ 532.  In this case, however, evidence of the condition of the land some 40 years after the date of the grant has no probative value whatsoever.  In any event, there is no ambiguity in the words of grant.

17.	The admissible evidence of the surrounding physical circumstances in 1922 reinforces the Applicants’ construction of the grant as set out in paragraph 9 above.  Acorn House had, prior to 7th August 1922, been part of Moorhall Farm, and required no separate access from Far Lane.  The 1922 plans and OS map show that there was no such access.  In all probability there was a solid hedge, wall or fence along the western boundary of Acorn House.  The grant of a right of way over the entirety of the yellow land permitted the purchaser of Acorn House to enter at any point along the western boundary, or indeed along the entire length of the boundary.  The Respondents suggest that the absence of a “T” mark along this boundary means that the boundary feature belonged to the vendors and they could therefore prevent access other than through a designated entrance.  This would be absurd and contrary to the obvious intention behind the grant and I reject the suggestion.  Above all;, the parties themselves, who can be taken to be familiar with the land in question, have described the yellow land as “the roadway” , just as the Particulars in the preceding conveyance describe OS 579a as “Road”.  The parties clearly regarded the entire area to the east of Acorn House and to the north of Far Lane as an access.

18.	In my judgment, therefore, the 1922 Conveyance grants the owners for the time being of Acorn House a right of way over each and every part of the land coloured yellow on the annexed plan.  The Property register of Acorn House correctly records the easement.  Although I have not referred to every element of Miss Griffin’s detailed critique of the Respondents’ construction, as contained at paragraphs 21 to 40 of her Skeleton Argument, I consider that all these points are valid and reinforce the construction that I have reached.

THE DUNN v BLACKDOWN POINT
19.	I should mention that the Respondents also raise an argument to the effect that if the grant in the 1922 Conveyance took effect as the grant of a right of way over a road not in existence at the date of the grant, it is perpetuitous and therefore void.  Mr Halliwell cites the well-known case of Dunn v Blackdown [1961] 1 Ch. 433.  I need say very little about this argument, which is plainly wrong.  In Dunn v Blackdown the grant related to the use of sewers and drains “hereafter to pass” under a private road – services which were not in existence at the date of the grant.  This was held to be an easement to arise at an uncertain date in the future, which therefore offended the rule against perpetuities.  This must be contrasted with the grant in the 1922 conveyance, which is of a right of way over a defined and existing area of land.  Manifestly, the right takes effect immediately and there is no question of the rule against perpetuities applying.

THE ABANDONMENT ISSUE
20.	The Respondents argue that the Applicants’ predecessors in title have abandoned the right of way granted (as I have found) by the 1922 Conveyance.  As Ms Griffin puts it in her Skeleton Argument at para. 46, there is a “notoriously high threshold of proving abandonment of an easement created by express grant.”  She cites Tehidy Minerals v Norman [1971] 2 QB 528 at 553 (per Buckley LJ) as follows: “Abandonment of an easement or of a profit a prendre can only, we think, be treated as having taken place where the person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to transmit it to anyone else.”  She also cites Benn v Hardinge 66 P & CR 246 as an example of the proposition that mere non-user of an easement cannot amount to evidence of abandonment. In that case non-user for 175 years was held not to amount to abandonment.  The following passage (per Dillon LJ) makes this clear: “To establish abandonment of an easement the conduct of the dominant owner must, in our judgment, have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement…………Abandonment should not be lightly inferred.  Owners of property do not normally wish to divest themselves of it unless it is in their advantage to do so, notwithstanding that they may have no present use for it”.  

21.	Mr Halliwell accepted that these authorities are applicable, and that the threshold of proving abandonment is high. Mr Halliwell relied on the oral evidence of the Respondents themselves, Mr David Hill and Mr Christopher Davis, and witness statements from Mrs Pamela Wass and Mrs Maureen Smith.  Most of this evidence went to the issue of non-user, and was therefore irrelevant.  In the event, Mr Halliwell relied on only two specific pieces of evidence as supporting his abandonment claim.  First, the fact that in the mid- to late-1960s a previous owner of Acorn House, Mr Ivon Bradley, rebuilt the stone wall that forms the western boundary of Acorn House.  This evidence derives from the witness statement of Pamela Wass. According to Mrs Wass, there has always been a stone wall on this boundary, and Mr Bradley rebuilt it.  I may add that this evidence is wholly inconsistent with the Respondents’ argument that the absence of a “T” mark on this boundary, as shown in the 1922 Conveyance plan, means that the dominant owner was unable to make an access at any point along the boundary.  Mr Bradley evidently believed himself entitled to carry out works to the boundary wall.  Mrs Wass has been familiar with Acorn House since 1960, so she cannot of course speak as to the existence of the stone wall prior to 1960, although in my judgment there was probably a wall or other solid boundary feature in place at the date of the 1922 Conveyance.  Although she did not attend to be cross-examined, I have no reason to doubt her evidence.  

22.	The second piece of evidence relied on by the Respondents – which is apparent from a physical inspection of the site – is that several large trees have grown up on the Acorn House side of the stone wall.  Mr Halliwell relies on this evidence to suggest that Mr Bradley’s conduct in rebuilding the wall, and the failure by the owners of Acorn House over a period of time to remove these trees, “…..demonstrated a fixed intention never at any time thereafter to assert the right ….”  Mr Halliwell also relies on the undisputed fact that the only means of vehicular access into Acorn House is and since at least 1960 has been through the existing gateway.

23.	In my judgment, the facts relied on by the Respondents do not begin to demonstrate a fixed intention on the part of the dominant owners never to make use of the right of way over the Disputed Land.  A new gateway could easily be inserted into the stone wall at any point, or the entire wall demolished, and one or more trees removed to facilitate a new access.  There has been no fundamental or irreversible alteration of the dominant tenement such as to render the right of way permanently unusable.  The fact that it has hitherto been convenient to obtain vehicular access to Acorn House over the Track does not in any way indicate a fixed intention to abandon any other means of access, which a change of circumstances – a redevelopment of Acorn House, for example – might necessitate. Indeed, Mr Pearson’s intention is to widen the access to Acorn House.  In reality, the Respondents are attempting to rely on non-user.  Certainly, virtually all their evidence they rely on is directed towards establishing the obvious fact that there is currently only one entrance into Acorn House, which is where the Track enters.  Undoubtedly vehicles cannot enter the curtilage of Acorn House without driving along the Track at this point.  However, this amounts to “mere non-user” and is insufficient to prove abandonment.  I am also satisfied that the Pearsons themselves used to walk across the Disputed Land when convenient, and vehicles carrying visitors to Acorn House have parked there when necessary.  I have no reason to believe that previous owners and occupiers of Acorn House did not do the same from time to time.  Mr Davis’s witness statement referred to parking on the Disputed Land, and despite some back-tracking in cross-examonation he was obliged to concede some use of the Disputed Land during the period of his parents’ ownership.  It must also be noted that every single conveyance of Acorn House, subsequent to the 1922 Conveyance, repeats the grant of the Right of Way in exactly the same terms. This is not consistent with “a fixed intention never at any time thereafter to assert the right himself or to transmit it to anyone else” (my underlining).  Accordingly, I reject the contention that the right of way has been abandoned. 

THE ESTOPPEL ISSUE
24.	That leaves the final issue to be resolved, namely estoppel.  As I have stated, a matter of weeks before the hearing, the Respondents applied to amend their Statement of Case, to raise an allegation of estoppel.   I have set out the pleading at paragraph 4 of this Decision.  In support of this pleaded case, Mr Halliwell relies on a passage from paragraph 16-001 of Megarry & Wade on the Law of Real Property, as setting out the legal basis of proprietary estoppel. The passage reads as follows:
“(i) an equity arises where
(a)	the owner of land (O) induces, encourages or allows the claimant (C) to believe that he has or will enjoy some right or benefit over O’s property;
(b)	in reliance upon this belief, C acts to his detriment to the knowledge of O; and
(c)	O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive”
The courts have emphasised on numerous occasions that estoppel is a flexible doctrine, and the underlying requirements should not be treated as a series of technical barriers but should be interpreted loosely in order to do equity – see Lord Neuberger in Thorner v Major [2009] 1 WLR 776 at 804.  Furthermore, in deciding whether a party’s conduct has been “unconscionable” – which is the foundation of the doctrine – the court should look at the matter “in the round” (per Robert Walker LJ in Gillett v Holt [2002] Ch. 210 at 225).

25.	The facts potentially relevant to this issue are as follows.  The Applicants purchased Acorn House in 2005.  At that time Mr Pearson satisfied himself that the property had the benefit of a right of way over the entirety of the Disputed Land.  Indeed, the title – first registered in 1995 – contains a specific reference to the Right of Way.  Over the course of the next few years there were no problems with regard to the Disputed Land.  Mr Pearson – at paragraphs 14 to 18 of his first witness statement – recalls certain incidents.  He referred to conversations with Sue Vickers – the daughter of Len Vickers, the previous owner of the Disputed Land – in which she told him that the Villages had previously offered to buy the land, but had offered a “derisory sum”.  She also told him that relations with the Village family were poor, and complained that they were tying their washing line to a tree on the Disputed Land. He also witnessed Ashley Wilkinson (referred to below) park on the Disputed Land.  Sue Vickers encouraged the Pearsons to use the Disputed Land.  Mr Pearson says that from time to time he and his wife would walk over it without challenge, and during the extensive renovation works at Acorn House contractors and others would park vehicles on the Disputed Land.  No evidence was called to rebut Mr Pearson’s evidence, which I accept.  Mr Pearson also says that he witnessed an occasion when there was an argument between Ashley Wilkinson and John Village after Mr Village had cut the grass on the Disputed Land. Mr Pearson deduced, from his conversations with Sue Vickers, that she suspected the Villages of trying to acquire rights over the Disputed Land, perhaps by way of adverse possession. 

26.	In the summer of 2010, however, things took a turn for the worse. At around that time the Villages began the second stage of the redevelopment of Moorgreen Farm.  For some reason, they decided to position a chemical toilet on the Disputed Land close to the entrance to Acorn House. Mr Pearson approached Ashley Wilkinson, whom he knew to be Sue Vickers’s partner, and asked him to obtain its removal.  In the course of this conversation, he informed Mr Pearson that Mr Vickers had agreed to sell the Disputed Land to John Village at a price of £25,000.  Ashley Wilkinson was acting as agent for the Vickers family on the sale of the Disputed Land.  Having talked the matter over with his wife, who was anxious to avoid any trouble, Mr Pearson went back to Mr Wilkinson, told him that the chemical toilet could stay, but also pointed out that Acorn House had the benefit of a right of way over the Disputed Land, and showed him a copy of the 1922 Conveyance plan.  Although Mr Wilkinson denied the existence of the right of way the discussion ended amicably, but Mr Pearson told Ashley Wilkinson that he would seek his solicitor’s advice on the right of way and report back to him. He then contacted his solicitors, Taylor & Emmett LLP, for advice.  They prepared a letter, setting out the basis of the Pearsons’ right of way over the Disputed Land, by reference to the 1922 Conveyance.  The letter unequivocally asserts a full right of way over the entirety of the Disputed Land.   Rather than sending a solicitors’ letter directly to Mr Vickers, the letter was addressed to Mr Pearson, and he then hand delivered it to Mr Vickers under cover of a friendly note suggesting that they discussed the matter further.  This was intended, he told me, to lower the temperature somewhat.  However, in a subsequent discussion with Ashley  Wilkinson, matters became very heated.  Mr Wilkinson rejected the claim to a right of way, and warned that any such claim would be the subject of expensive litigation.  Mr Wilkinson also made various threats, such as to park a muck spreader outside the gate of Acorn House to prevent any access, and opening a caravan park adjacent to Acorn House.  At the beginning of August 2010 Mr Pearson contacted the police to report these threats.  Again, Mr Wilkinson did not give evidence before me, and I have no reason to doubt Mr Pearson’s account.
27.	Mr Pearson was cross-examined, robustly but fairly, by Mr Halliwell on behalf of the Respondents.  In particular, he was asked about his state of knowledge as regards the purchase of the Disputed Land by his neighbours, the Villages. His answer was that he thought it was a “done deal” in 2010.  He observed intensive use of the Disputed Land during the course of the building works to Moorgreen Farm, with scaffolding, a chemical toilet and vehicles being parked there, and assumed that the land had already been purchased.  However, he readily accepted that he did not investigate the exact state of play as between the Vickers family and the Villages.  It was not his concern, and neither the Vickers family nor the Villages had discussed the purchase of the Disputed Land with him, or even notified him that it was due to take place. Mr Wilkinson had told him that it was none of his business. He was kept out of the loop completely.  He was aware that the Disputed Land had been a bone of contention in the past – he described relations between the Vickers and the Villages as a “hornet’s nest”.  He simply assumed that, by asserting his right of way openly, in the form of a solicitors’ letter, any purchaser of the land would be bound to be made aware of it.  Furthermore, he said that his and his wife’s use of the Disputed Land had always been open and obvious, and there was no reason to think that the Villages were not aware of it.

28.	The reason for the attitude taken by Ashley Wilkinson in the summer of 2010 – as expressed in the threats and intimidation related by Mr Pearson – is not hard to divine.  There was now a real prospect of selling the Disputed Land to the Villages, at an inflated price, and no doubt the existence of the Pearsons’ right of way would make the land less attractive.  The progress of the transaction appears from Mr Fairclough’s purchase file, disclosed by the Respondents shortly before the hearing. On 22nd April 2010 Mr Village wrote to Mr Fairclough as follows, the letter being headed “The purchase of a piece of grass from Len Vickers, Moorhall Farm”:
“The daughter Sue Vickers partner Ashley Wilkinson is dealing with the matter and he has told me that they will sell for £25,000, no negotiation and it must be purchased before I start any work on the house.
The land will only be used for access and does not have any other relvance to the build.
I have, however, wanted to purchase this piece of land to complete the aspect of the garden for a long time.  I have maintained their grass since we have been at Moorgreen Farm.
The Vickers family are extremely awkward and I can expect them being very obstructive if I don’t conform to their demands.
The original deeds do allow access over their piece of land so I see no problems.
The question is how do I handle them?”

29.	The immediate purpose behind the suggested purchase of the Disputed Land was the need for access in order to carry out the extensive works of refurbishment and extension to Moorgreen Farm.  This is made clear by the email from Mr Fairclough to Mr Village dated 27th April 2010.   Mr Fairclough’s advice was to the effect that if Mr Village could not acquire the land “on sensible terms”, he should simply go ahead and use the Disputed Land for access and argue either that he already had a right of way over it, or alternatively that the Villages had acquired a possessory title. This ties in with Sue Vickers’s concern that the Villages had been teeing up such a claim over a period of time.  Mr Fairclough made an index map search at the Land Registry, as a result of which he became aware that Len Vickers’s title to Moorhall Farm (including the Disputed Land) was unregistered. The purchase file indicates a hiatus in the transaction between May 2010 and October 2011.  On 27th October 2011 Mr Village informed Mr Fairclough that he had agreed a revised price of £17,000 for the land, together with the vendor’s legal costs. On 15th November 2011 Mr Fairclough agreed to act for the Villages on the purchase.  Solicitors’ details were obtained.

30.	On 24th April 2012 Mr Fairclough wrote to the vendor’s solicitors confirming that he had instructions to act for the Villages, asking for details of the title, and suggesting that they should dispense with a contract and proceed directly to completion.  No Enquiries before Contract were raised, no doubt because there was no contract. In the event the Transfer was executed on 27th September 2012 and the Disputed Land registered in the Respondents’ name shortly thereafter.

31.	Mr Fairclough was cross-examined at length regarding the steps he took in his capacity as the Villages’ solicitor. He is a friend of Mr Village, and does not appear to have charged a fee for his work.  He was compelled to accept that he did not follow the standard procedure for a property purchase, in that he agreed to dispense with a contract, and did not raise any Enquiries before Contract.  He accepted that this was most unusual, but justified it on the grounds that the land was just a small piece of grassland, with which he was familiar, having acted for the Villages on their original purchase of Moorgreen Farm.  Although he insisted that Mr Vickers had a duty to disclose the existence of the nascent dispute with the Pearsons over the right of way, he also accepted that this would have come to light if preliminary enquiries had been raised – always assuming that truthful answers had been given by the vendor, an assumption I think I am entitled to make.  Whatever may have been the reason for the very curtailed conveyancing process – and the Applicants suggest that cost was a factor, given that the Villages had agreed to pay the vendor’s legal costs – the fact is that Mr Fairclough did not do a thorough job.  As reference to the Conveyancing Handbook makes clear, his conduct of the buyer’s conveyancing fell short of normally accepted standards.  A direct consequence was that the existence of the dispute with Mr Pearson did not come to light.  

32.	Furthermore, despite Mr Fairclough’s protestations to the contrary, it would have been possible to ascertain the existence of the right of way, or at least warn the Villages of the possibility, by other means.  In particular, the root of title offered by Mr Vickers was the Conveyance dated 22nd October 1959 and made between Albert Hardy (1) and Mr Vickers (2).  That conveyance is made subject to the following reservation:
“Subject to a full right of way for all purposes in favour of Alice Wass and her successors in title owner or owners for the time being of the adjoining property on the Southerly side of the property hereby conveyed over so much of the roadway Ordnance Survey Number 579 hereby conveyed as may be necessary for obtaining access to and from the said adjoining property….”.  
I should note that the terms of the easement described here differ from the original grant to Alice Wass – the words “over so much of the roadway Ordnance Survey Number 579 hereby conveyed as may be necessary for obtaining access to and from the said adjoining property” being substituted for the words “along and over the roadway coloured yellow on the said plan”.  Ordnance Survey Number 579 is described in the Schedule as “Farm Road” and is identified on the plan.  It includes the Disputed Land.  Indeed, it is marked as OS 579, with an area of 0.214 acres, exactly the same description and area as appears in the Conveyance of 5th August 1922 – which is itself recited in the 1959 Conveyance. Mr Fairclough was asked whether he paid any attention to this reservation, or considered its effect. His answer was that it was obvious that the right of way only extended over the Track.  He did not pay any attention to it, and did not advise the Villages with regard to it. However, in my judgment the precise extent of the right of way is not clear, and a prudent conveyancer would have warned his client that there was at least a risk that a larger area than the Track was subject to a right of way (as was indeed the case)  Nor did he take the trouble to investigate the Applicants’ title – which would have been very straightforward, since it was registered.  His response was that the Applicants’ title was irrelevant to the Disputed Land.  It clearly was not irrelevant, since it was known to him that Acorn House (as previously conveyed to Alice Wass) enjoyed rights over at least part of the land being acquired by the Respondents. Another example of cutting corners.

33.	Given the social relationship between Mr Fairclough and the Villages, the relatively modest purchase price, and the fact that all legal costs were being borne by the Villages, it is perhaps not wholly surprising that a less than thorough job was carried out.   Mr Fairclough’s professional conduct of the purchase would not have been of any materiality in this case, were it not for the fact that the Respondents have now sought to raise an estoppel against the dominant owners.  Mr Fairclough elected to make a lengthy witness statement, upon which he was cross-examined, and as I have said, I have formed the view that his conduct of the conveyancing fell well short of the expected professional standard.  Furthermore, his evidence was to a large extent an exercise in self-justification and he has clearly lost any objectivity in the matter.   I have considerable sympathy for him, in the sense that it must have been intensely uncomfortable to be subjected to this degree of critical scrutiny, but I conclude that the existence of the Pearsons’ right of way could and should have been ascertained if he had acted in accordance with the standards of a prudent conveyancer.  Since this case is not a claim against him in tort or contract, these findings are of course only relevant insofar as they have a bearing on the estoppel claim.

34.	In the light of the evidence, my findings in relation to the estoppel claim are as follows:
1.	The first contact between the Respondents and Ashley Wilkinson with regard to the purchase of the Disputed Land was in April 2010.
2.	In July 2010 Mr Pearson was informed by Ashley Wilkinson that Mr Vickers had agreed to sell the land to the Villages at a price of £25,000.
3.	Mr Pearson’s understanding was that this was a “done deal” and he did not investigate precisely what stage the transaction had reached.
4.	The Applicants took reasonable steps to ensure that the vendor was aware of their right of way over the entirety of the Disputed Land, by forwarding to Mr Vickers their solicitor’s letter setting out the legal basis for the claim.
5.	The Applicants had no means of knowing and were in fact unaware of the state of the Respondents’ mind when the Respondents were negotiating to buy the Disputed Land.  Neither Mr Vickers nor the Villages discussed the proposed purchase with the Applicants, and they had no knowledge of any negotiations beyond Mr Pearson’s understanding, based on what he was told by Mr Vickers’s agent, that an agreement had been reached in July 2010.  Relations between the Pearsons and the Villages were poor.
6.	The Applicants took no direct steps to advise the Respondents of their right of way.  
7.	The Applicants’ right of way was a publicly verifiable fact, by reference to the Property Register kept by the Land Registry, and the Applicants had expressly informed the vendor of it by means of their solicitor’s letter.  In the circumstances, it was entirely reasonable for the Pearsons to assume that their right of way would be brought to the Respondents’ attention through the normal processes of conveyancing.  They could not reasonably foresee either (a) the vendor’s failure to draw it to their attention or b) the Respondents’ solicitor’s failure to follow normal conveyancing practice.
8.	No inference was in fact drawn by the Pearsons that the Respondents had agreed to buy the Disputed Land in ignorance of the right of way, and it would not have been reasonable for them to have drawn such an inference.

35.	In the light of these findings, my conclusions on the claim pleaded at paragraph 5A of the Amended Statement of Case are as follows.  No estoppel arises in this case.  First, because none of the ingredients of estoppel is present, the ingredients being set out at the extract from Megarry & Wade cited above.  It is impossible in my view to shoehorn the facts of this case into the framework of proprietary estoppel, even adopting the flexible approach outlined in the authorities.  Secondly, there was nothing unconscionable in the conduct of the Applicants.  They were under no duty to bring the existence of the right of way to the attention of the Respondents. They were entitled to assume that the Respondents would be made aware of the right in the usual way during the course of the conveyancing transaction, whether or not they instructed solicitors to act.  They had asserted their rights formally to the vendor, and they were aware that their right of way was noted on their Property register.  As it happens, if Mr Fairclough had performed his function to a reasonable professional level, the Respondents would indeed have been made aware of the right of way.  The Applicants had openly used the Disputed Land, for pedestrian access and for parking vehicles when required and had made no secret of their claims.   Even though they were neighbours, the Villages did not think fit to mention their intended purchase of the Disputed Land to the Pearsons, which demonstrates the level of communication between these parties.  It is difficult to see why the Pearsons should be under a duty to mention the right of way to them. Indeed, it is an extraordinary proposition to argue that those with property rights over another’s land have a duty to draw those rights to the attention of a potential purchaser. This suggestion undermines the whole purpose of the overriding interest regime, or the doctrine of notice where applicable.   There was no “Obvious Inference” as pleaded.  The Applicants had no reason to concern themselves with the thought processes and beliefs of the Respondents when they purchased the Disputed Land, and no means of knowing what those processes and beliefs were.  

36.	When I asked Mr Halliwell to identify any possible advantage that would accrue to the Applicants by a failure to mention the right of way directly to the Villages, he suggested that “malice” was the motivation.  Quite apart from the fact that this was not pleaded or put to Mr Pearson when he gave evidence, there is not a shred of evidence to support it.  Mr Pearson, according to his evidence, which I accept in full, was anxious to avoid a confrontation with neighbours, knowing that the relations between the Villages and the Vickers family had been poor – a “hornet’s nest” in his words.  There had been a historic boundary dispute between Mr Vickers and the then owner of Moorgreen Farm.  He did as much as a person in his position could do to draw attention to his rights, also bearing in mind the Villages’ failure to involve him at any stage in their plans. The Applicants had every justification for their conduct. To the extent that this is not already apparent, I should add that I found Mr Pearson to be a careful and conscientious witness, whose evidence can be relied upon in all respects.

37.	Even if I had been satisfied that an estoppel had arisen, I would not have held that “the Applicants are estopped from contending that the right of way granted by the 1922 Conveyance extends over the Land or any part thereof.”  At worst, the Respondents have paid £17,000 for a piece of land that is subject to a right of way. If they had been informed of the right of way – assuming, in their favour, that they were unaware of it – they might have paid less for the Disputed Land, or not bought it at all.  However, they have always argued and continue to argue before me that the right of way does not bind the Disputed Land.  Certainly, Mr Fairclough seems to have convinced himself of that, judging by his evidence and conduct.  It may well be, therefore, that they would have taken the risk even if they had been made aware of the claim. However, they could never have obtained the Disputed Land free from that incumbrance.  By means of the alleged estoppel, they are seeking to put themselves in a better position than would have been the case if they had been aware of the right of way.  To my mind, it is not even clear that they have suffered any loss.  If, as Mr Fairclough contends, Mr Vickers was under a duty to disclose the right of way, as a “latent defect”, damages could be recovered from him, or rescission claimed.  For the reasons already explained, there is also a possible claim in damages against Mr Fairclough for breach of duty.  If they rescind, or recover damages, they will be fully compensated.  What they are really seeking to do by means of the alleged estoppel is to make the Applicants liable for their own failure to discuss their purchase with the Pearsons, their neighbours, for the egregious mistakes of Mr Fairclough, and for the breach by Mr Vickers of his alleged duty to disclose. It is a singularly unmeritorious claim, which I reject.
CONCLUSIONS
38.	I shall therefore direct the Chief Land Registrar to give effect to the Applicants’ application in form AP1 dated 1st November 2012 to note the burden of the right of way granted by the 1922 Conveyance against the provisional title number DY470780, and also to give effect to the Respondents’ application for first registration in form FR1 dated 3rd October 2012 but subject to the said right of way for the benefit of title number DY323290.  I propose to order the Respondents to pay the Applicants’ costs, to be subject to a detailed assessment on the standard basis. Before making an order I shall permit the Respondents to lodge and serve on the Applicants their submissions (if any) on the proposed costs order, no later than 4pm on Friday 30th May 2014, with any response from the Applicants to be lodged and served 7 days thereafter.

Dated this 20th day of May 2014

BY ORDER OF THE TRIBUNAL