England and Wales Land Registry Adjudicator

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

 

 

Case Number: REF/2005/0261

 

Title Number: HW123088

 

Property: Land adjoining 1 Droitwich Road, Worcester

 

Applicant: Worcestershire County Council

 

Applicant’s Representation: By Solicitor - Alan Moore

 

Respondents: Derek Askew & Meryl Ann Askew

 

Respondents’ Representation: In Person - Derek Askew

 

Before: Mr Clarke, sitting as a deputy Adjudicator to Her Majesty’s Land Registry at Worcester County Court on 21^st – 22^nd March 2006; on paper 16^th June 2006.

 

 

SUBSTANTIVE DECISION

 

CLOSURE OF TITLE – whether land comprises ‘highway’ – Highways Act 1980, s. 31 – applicability of ‘fence to fence’ presumption – whether dedication at common law or pursuant to statute – whether a local authority can estop itself from subsequently asserting that land is highway

 

Statutes referred to:-

Highways Act 1980, s. 31

Rights of Way Act 1932, s. 1(6)

 

Cases referred to:-

Attorney-General and Newton Abbot RDC v. Dyer [1947] Ch. 67

Cambridgeshire and Isle of Ely Council v. Rust [1972] 2 QB 426

Hale v. Norfolk County Council [2001] Ch 717

Hoare & Co Limited v. Lewisham Corp (1901) 17 TLR 774

King’s Lynn RDC v. Blade (1914) 78 JP Jo 112

Piggott v. Goldstraw (1901) 65 JP 259

R (on the application of Godmanchester Town Council) v. Secretary of State for Environment, Food and Rural Affairs [2006] 2 All ER 960.

Redbridge LBC v. Jaques [1970 1 WLR 1604

Re White’s Charities [1898] 1 Ch 659

1.                  By an application dated 17^th August 2004 Worcestershire County Council (“the Council”) applied to HM Land Registry in order to secure the closure of the Respondents’ possessory title to land registered under title number HW123088 (“the disputed land”). The land comprising that title lies immediately to the east of the Respondents’ other property, being The Old Toll House, 1 Droitwich Road, Worcester WR3 7LG and which is registered at HM Land Registry under title number HW22351 (“The Old Toll House”). Nothing in this matter affects the Respondents’ title to The Old Toll House which is used by them (amongst other purposes) for the sale and storage of items of architectural salvage, including doors.

2.                  This case was first listed for a hearing on 17^th January 2006 when, because of difficulties in relation to one of the Council’s witnesses, I adjourned the matter to a date to be fixed. This matter was subsequently heard by me at Worcester County Court on 21^st and 22^nd March 2006, when the Council was represented by its principal solicitor, Mr. Moore. Mr. Askew represented himself and his wife, who was present throughout the hearing. In addition to having the benefit of the documents contained in the hearing bundle, I heard the evidence of Mr. Walford, Mr. Jones and Mr. Bowdler on behalf of the Council and that of Mr. Askew and Mr. Bullock on behalf of the Respondents. In addition, and immediately prior to the commencement of the hearing on 21^st March 2006, I attended a site view in the presence of Mr. Askew and Mr. Walford. I should add that Mr. Askew presented his case on his own behalf and that of his wife with a great deal of determination and clarity, both in the giving of his evidence and in the quality of his cross-examination and of his oral and written submissions. He is to be commended in this regard although I should record that I would have welcomed from both parties significantly greater assistance in the identification and exploration of the legal principles I address below and the marshalling of the evidence in relation to them and in relation to the cases to which I refer.

3.                  The Council presented its case for the closure of the Respondents’ title on the basis that the land comprised therein was by the material time (said to be the Respondents’ acquisition of The Old Toll House in 1980) dedicated as highway either by operation of the presumption that the extent of a highway runs from “fence to fence” or at common law or pursuant to section 31 of the Highways Act 1980. It is not part of the Council’s case that the land comprising the disputed title has ever expressly been declared part of the highway. Accordingly, the Council submits, it was not open to the Respondents to have acquired title to the disputed land as they subsequently did. Hence the application to close the register.

4.                  The Respondents defend the claim on the footing that the land is not and was never part of the highway and that accordingly the Council does not make good its claim. Further, and in the alternative, they maintain that by virtue of a letter written by Walter Brown, then City Engineer and Community Services Officer dated 14^th March 1984 to the Respondents’ solicitor (“the 1984 Letter”) and their reliance thereon, the Council are estopped from asserting that the land was or remained part of the highway. The Council counters that argument by the submission that as a matter of law, the 1984 Letter cannot have the effect of authorising the Respondents’ use and possession of the land in the disputed title if it was highway at the material time and thus cannot found the estoppel upon which the Respondents rely. In their pleaded case, the Respondents further relied upon the acquisition of title to the disputed land by adverse possession in the alternative to their submission that the land never formed part of a highway. However, at the outset of the hearing it was common ground between the parties that if the land in question did form part of the highway at any time, then (subject to the estoppel argument) the land remained subject to public rights of way and, as a consequence, the register ought to be closed. Accordingly, the case in adverse possession was not pursued.

5.                  Given the historical perspective that I am invited to take of the use of the dispute land, I consider it appropriate to have regard to (i) the evidence which forms part of individuals’ written statements (whether in correspondence or not) even though they are not themselves called to give evidence and (ii) that which is contained in the various photographs, plans and other documents to which I refer below. Such evidence is not, as a matter of law, inadmissible (although the weight I attach to it is a matter for me) and, I note that:

“in determining whether or not a way has been dedicated as a highway, or the date on which the dedication, if any, took place, evidence of reputation, for example, statements made orally or in writing by persons who have some means of knowledge, is admissible, and a court or other tribunal is bound to take into consideration any map, plan or history of the locality or other relevant document which is tendered in evidence, and to give such weight to it as it considers justified by the circumstances”: Halsbury’s Laws of England, Volume 21 (2004, re-issue) paragraph 129.

6.                  In addition to the oral evidence which I heard, the Council initially relied on highway evidence forms submitted by James Keegan and A.L. Goodman. From matters that developed during cross-examination, Mr Moore accepted in closing that I should not rely upon Mr Goodman’s highway evidence form and accordingly I discount it. I have had regard to the highway evidence form submitted by Mr Keegan, which in many material regards is largely corroborative of the oral evidence that was given. I deal with the matters raised in the various letters relied upon by the Respondents below.

7.                  As to witnesses called by all parties, I should state at the outset that in my judgment the evidence that they gave was, to the best of their ability, both honest and accurate. It was clear from the manner in which the Respondents presented their case, that they considered themselves to have been unduly victimised by the Council and by Mr Jones in particular in his pursuit of a means by which to prevent them from storing items on the disputed land which (in Mr Jones’ opinion) comprised “junk”. It is fair to record that I found Mr Walford’s explanation as to the rationale of these proceedings (the land may be required to form part of a bus lane) rather thin when compared to his “note to file” on a letter to him from Mr Moore dated 16^th June 2003 (at page 70 of the bundle) and further I found that Mr Jones’ coyness in accepting that he was one of the principal forces in driving the various steps taken by the Council in relation to the disputed land perhaps a little surprising in the light of, for example, his email dated 17 January 2003 when he states that he “will not let this particular issue rest until all legal avenues are addressed.” In any event, whatever the motives behind the Council bringing these proceedings – and I can see that some members of the community may object to the items currently stored on the disputed land – the reasons for which they have chosen to do so add nothing to and do not assist me in determining any of the issues that I have to consider. I shall now turn to the facts of this case as I find them to be and the weight and significance which I attach to the evidence.

 

The evidence

8.                  The Old Toll House was built in or around 1814 as 2 semi-detached toll houses for the collection of tolls from those using what is now the A449 to Ombersley (“Ombersley Road”) and which runs along the western side of The Old Toll House and those using what is now Droitwich Road, which runs to the eastern side and where the disputed land lies. To the rear of The Old Toll House and bounded still within the original walls is a yard comprising a number of buildings and outhouses which (as one might expect) have been altered and developed over the years. Originally, access to this yard was by two gateways immediately adjacent to The Old Toll House, one opening onto Ombersley Road and one onto Droitwich Road. At some stage these have both been closed, so that access now is only afforded by a doorway in the middle of the eastern wall (i.e. from Droitwich Road) and by a pair of double doors further to the north affording access into what was a garage (again from Droitwich Road). At some stage prior to 1835 – see page 128 of the bundle – Droitwich Road was a highway, although as Mr Moore accepted in his closing submission, there is no evidence of when prior to that date that status arose or indeed, whether Droitwich Road was a public highway prior to it becoming a turnpike road.

9.                  By a conveyance dated 31^st December 1877 and made between the Trustees of the Droitwich Turnpike Roads and George Martin and John Isaac, The Old Toll House was conveyed to the latter individuals “together with the outbuildings gardens and appurtenances to the said messuages adjoining or belonging and which said messuages and premises are bounded by the roads lastly hereinbefore mentioned” [i.e. Ombersley and Droitwich Roads]. I pause to record that Mr Askew invited me to read into that parcels clause an express conveyance of the disputed land. For my part, I am quite unable to do so and accordingly decline his invitation. However, whatever the powers of the Trustees under the terms of the Droitwich Roads Act 1859 or any earlier enactment (none of which were before me or in evidence) to acquire the ownership of the soil forming part of the turnpike roads qua trustees thereunder (which they may or may not have done), there is no doubt that until the conveyance of 31^st December 1877 they were the proprietors of The Old Toll House and, as such, are presumed – in the absence of evidence to the contrary, of which there is none – as owners of land adjoining the highway to own the soil to the middle line of the highway. Moreover, they (and their successors-in-title) are also presumed – again in the absence of evidence to the contrary, of which there is none – to have conveyed that interest to their successors-in-title: see Re White’s Charities [1898] 1 Ch 659. Accordingly, I conclude that the soil of the disputed land was vested in the proprietor(s) from time-to-time of The Old Toll House. If I am wrong in that conclusion, there is no evidence before me of the identity of the owner of the soil comprising the disputed land and, for that reason, no evidence is before me as to the intentions of the proprietors of The Old Toll House in relation to the disputed land and its user by the public.

10.              The 1886 Bose Plan at page 5 shows the original gateways into the yard to the rear of The Old Toll House still in existence at that date and the current pedestrian access and garage doors to the yard as yet to be constructed. Likewise the land to the north of The Old Toll House remained undeveloped. The Bose Plan shows the line of the footway along the western side of Droitwich Road and does not demonstrate any demarcation between the footway (which broadly follows the same line as it does today) and the land comprising the disputed title.

11.              The position of the gateways appears to have persisted until at least 1900 (see the photograph at page 51A, which was produced by the Respondents during the course of the hearing). By this stage, the land to the north of The Old Toll House had been developed into what is now 4 Ombersley Road. The photograph at page 51A also shows that the wall fronting onto the disputed land already contained one notice board and that the surface of the land and the footpath not only appear to be of the same material but also of the same material as the other footpaths in the vicinity. The disputed land and the footpath are completely empty and, to all appearances one and the same – just another stretch of footpath adjacent to the highway. The windows of The Old Toll House all appear to be sash-windows: see below.

12.              By 30^th July 1951, the garage, its double doors and the single pedestrian access from Droitwich Road had been constructed – see photograph 2 and photograph 3. Immediately to the right of the double garage doors (when faced from the road) and on the most northern part of the disputed title stood a telephone box and immediately to the left of the double garage doors a post painted in traditional black and white bands. The purpose of this post is unclear from the photographs and is not one I can determine, although it certainly appears to be some item of street furniture (it has an indistinct item on top of it), if only from its colouring. It is clearly located on the disputed land, being adjacent to the wall. Along the wall fronting Droitwich Road are 7 substantial notice boards carrying a variety of adverts and announcements, including one for “British Railways”. The disputed land and the footpath at this point in time appear to be surfaced uniformly with the same material, although not the concrete which appears in the later photograph. The disputed land is otherwise empty. It retains the appearance of being part of the footpath as noted above.

13.              Photograph 1 is a copy photograph, the original of which is now lost but which, Mr Askew informs me, was dated April 1963; when in April is not recorded. The garage doorways and the pedestrian access and the notice boards remain but it is said to be significant in two further regards: first, Mr Askew submits that it shows that the land comprising the disputed title to be of a different surface material (perhaps grass) to that comprising the footpath; and, secondly, it shows immediately to the left of the wall the plinth which (it is common ground) housed a vending machine of some description.

14.              I do not accept the submission that the photograph shows the land comprising the disputed title to have a different surface to that forming the public footpath alongside the highway. I reach this conclusion for two reasons. First, the surface of the land in question shown in the earlier 1951 photograph (photograph 2) and the 1900 photograph (page 51A) appears uniform and certainly not grassed; secondly (and far more significantly), upon my site visit it was clear that the footpath (and indeed the footpath around the front of The Old Toll House and beside it along Ombersley Road and further north along that road) and the entirety of the disputed land were all surfaced at the same time in concrete panels of some longstanding. At that visit, Mr Askew pointed out the site of the plinth in question shown in the 1963 photograph and which he had removed. It had been cast on top of the concrete surface, so that when it was removed it merely left a discoloured patch on that surface. Given that the concrete on the entirety of the disputed land and the footpath were clearly laid contemporaneously, the plinth must have been laid later. Its presence in photograph 1 leads me to reject the suggestion that the photograph of 1963 shows the disputed land to have a different surface to the remainder of the footpath.

15.              I should add that whilst it is not necessary for me to determine what the photograph shows, I am inclined to the view that what is shown on the ground is the remains of a fall of snow. Mr Askew informed me that no snow fell in Worcester in April; that may be right. I do not know what happened in late March 1963, however. This photograph was taken at the end of a notoriously cold winter and whilst I cannot be certain, having regard to the photograph and the roof of The Old Toll House it appears to me that which is on the ground does have more than a passing resemblance to the remains of a fall of snow which has not been worn away by the passage of feet. The absence of snow on the roof 4 Ombersley Road casts no light on this matter since that roof and those behind it are all south facing and would undoubtedly have melted sooner, if only by reason of their pitch.

16.              It is only from the 1950s onwards that I am afforded any assistance by the evidence of those in the locality as to the use of the disputed land.

17.              Audrey Tudge did not give evidence before me. However, in her letter dated 14^th July 2003 (see page 47) she states that in the 1950s Harold and Edna Downes ran a motor coach from the garage at the rear of The Old Toll House and that she recalls Mr Downes saying that he owned the forecourt upon which these coaches were parked. That remark was made in the context of a complaint by members of the public who had complained about a coach being parked on the land. For the reasons which I have given above, strictly speaking Mr Downes may have been correct. Mrs Tudge does not, however, comment on any other acts undertaken by Mr Downes on the disputed land which, I infer, must have appeared to form part of the footpath by this stage, thus giving rise to the comments which prompted his observation.

18.              Mr Jones’ evidence as to the use of the disputed land during the 1960s when he called into The Old Toll House (which at the time was a confectionery shop) to buy sweets was that he would leave his bicycle on the disputed land in order to go into the shop (as did his friends and others). I accept this evidence. Mr Bowdler recalls using the disputed land to gain access to the notice boards, in particular the notice board of train timetables during the 1950s and early 1960s. Again I accept his evidence. Although it may be that the telephone box is not in the position that Mr Bowdler recalled it, I do not consider this affects the accuracy or weight I should attribute to his evidence, not least given the passage of time. I am unable to determine whether the striped post referred to above is the bus stop sign to which he refers but I accept and find that he at times boarded a bus at this location, which would pull up to the kerb (as opposed to entering the disputed land via any dropped kerbs at either end).

19.              Mrs Peggy Hughes has written a letter to the Respondents dated 12^th January 1984 (page 44). She did not give evidence. Mrs Hughes and her husband traded from The Old Toll House from July 1963 until November 1976. She states that after the introduction of the double yellow lines a few years after 1963, they “encouraged customers to draw off the road onto what we believed to be our forecourt” (i.e. the disputed land). This belief appears to have arisen by reason of the events surrounding the erection of a street lamp. Mrs Hughes attributes the location of the street lamp located on the line of the junction of the footpath and the disputed land to the fact that the Council (via unidentified persons) acknowledged that the disputed land was “private property”. I consider it significant that Mr and Mrs Hughes initially considered the Council entitled to locate the street lamp on the disputed land, thus indicating that they thought it formed part of the footpath. This suggests that Mr Downes’ view as to its ownership had not been imparted to them and that their assumption as to the ownership did not coincide with his. Mrs Hughes states that when, after that, they parked the car they made sure it was parked as near to the wall as possible (as, I would add, one would do in order not to obstruct the footpath) and they did so without ever being questioned. The tenor of the letter is such, however, that it clearly suggests that until the street lamp was erected, Mr and Mrs Hughes did not consider the disputed land to be private and the only use she states that they made of the disputed land was (a) to park their car on it and (b) (after the imposition of the double yellow lines around The Old Toll House) to encourage customers to draw off the road.

20.              Mrs Hughes also makes reference to the dropped kerbs which remain in situ. Having regard to the appearance of the concrete that was laid, I consider that the dropped kerbs and the concrete surface are contemporaneous with each other. The kerbs along both sides of Droitwich Road and around the front of The Old Toll House are not of recent origin although they comprise pre-cast concrete kerb stones and are therefore not of great antiquity. There is a dropped kerb immediately in front of the garage doors towards the north-eastern corner of the curtilage of The Old Toll House and also for some 10-12ft. in the kerb where it runs parallel to the southern end of the eastern wall and the northeast flank of The Old Toll House facing the road. Given its size and the absence of any similar dropped kerb on the other kerb opposite, I do not accept Mr Jones’ suggestion that it may represent a dropped kerb for pedestrian access purposes. I find Mr Bowdler’s evidence that a dropped kerb for pedestrians would be narrower more persuasive, especially as he is an engineer with the Worcestershire Highways Partnership. I also note that there is no such kerb in relation to any crossing along Ombersley Road, for example. Mrs Hughes describes these kerbs as being “allowed” when the “forecourt” was done (see page 45) but casts no further light on this aspect; indeed she may know no more than that since both were (on my findings above) in place by March 1963 prior to the Hughes’ commencement of trading from The Old Toll House in July 1963. That the Council “allowed” them, suggests it could have prevented them – see Crabtree v Fern Spinning Co Limited (1901) 85 LT 549, 552. Since Mrs Hughes did not give evidence, in her absence I am unable to determine whether the dropped kerbs are a de facto recognition of a right to access non-highway land or as an indulgence to facilitate continued parking on land forming part of the highway.

21.              Mr Attwood (who did not give evidence) confirms in his letter of 10^th June 2005 at page 83 that during his residence at The Old Toll House between 1976 and 1980 he and his wife used the disputed land to park their vehicles as did customers and delivery drivers; indeed, the sales particulars at page 82 prepared for their sale in 1980 shows a car parked on the disputed land as well as the street lamp referred to above. The sales particulars prepared for his sale, however make no mention of the “forecourt”, to which he refers in his letter as being part of or for the benefit of The Old Toll House.

22.              I accept that various owners before the Respondents have encouraged or used the disputed land for the parking of vehicles (either their own, their customers or for deliveries) and pause to note that given the configuration of the roadways around The Old Toll House in the neighbouring streets, it is clearly the most convenient and perhaps one of the safer places in which to park in any event; moreover, parking on the highway is not unlawful per se. The correspondence submitted from them however is silent on certain matters: for example, none mention acts of maintenance or repair or the erection of any signs proclaiming no public right of way or the exclusion of the public at any stage.

23.              The Respondents bought The Old Toll House from Mr and Mrs Attwood in June 1980. The Respondents’ business was that of selling antiques and stripped pine items and they traded with the garage doors open and would display pine furniture and antiques on the disputed land immediately from when they opened the business in June 1980. Its use for the storage of doors came later, albeit within the first six months or so of their trading. Initially the doors were leant against the wall and the Respondents considered them to be an advertisement for their business. In late 1983 there was a complaint or a comment from somebody that questioned their placing of things on the “pavement” and the matter was looked into by them and their solicitors. It is Mr Askew’s evidence (which I accept) that he spoke to Mike Hesketh, an employee of Worcester City Council, by telephone some time in late 1983 and that subsequently he was given the map at page 48 of the bundle with the dotted lines delineating the disputed land having been marked thereon by Mr Hesketh. As a consequence of this his solicitors wrote to Mr Brown and in reply received the 1984 Letter.

24.              The 1984 Letter is significant. The material parts of the letter read as follows:-

“The status of the area on the Droitwich Road frontage, which I have coloured yellow on your plan [this is the plan at page 39A and broadly speaking represents the totality of the extent of the land in question] has been investigated on previous occasions over a period of many years and this area is considered to be in the ownership of [The Old Toll House]. There is a definite demarcation line between this land and the rear of the footway and the siting of street furniture and public utility apparatus which has been placed outside this area of land substantiates this evidence. … I am aware that this inquiry results from complaints of obstruction being caused by goods for sale being placed by your client outside his shop. I would therefore, with respect, suggest that you inform your client that an offence under Section 148 of the Highways Act 1980 is being committed by him if he places anything outside his premises other than on the area coloured yellow.”

25.              Neither Mr Walford nor Mr Askew were able to explain to me what investigations or evidence Mr Brown would have had before him in order to reach that conclusion (Mr Walford says there is nothing on file), although noting the date of the letter from Mrs Hughes, it may be that this formed part of it. Beyond that, I can only guess at what Mr Brown considered (if anything) and accordingly, the weight I attach to the accuracy of his conclusion is substantially diminished. I consider the demarcation and the siting of the street furniture below. No assistance can be derived from the location of cables under the pavement; one would assume that they would follow the shortest line along Droitwich Road which would not cross onto the disputed land. As a consequence of the 1984 Letter, the Respondents continued to utilise the disputed land (at various stages cordoning it off on Christmas Day with a length of rope or erecting signs proclaiming it to be private property – which signs were relatively short lived being removed by persons unknown) and in 1992 applied for title by virtue of their adverse possession in reliance upon statutory declarations which exhibited the 1984 Letter.

26.              Mr Askew accepts that the registered title that he has been given by HM Land Registry is greater than the area marked yellow on the plan by Mr Brown with an additional triangle being included at the northern end. However, the rights over this increased area has been addressed in earlier litigation with the result that specific rights have been granted to the property at 4 Ombersley Road over that triangle. If I were to close the title to the disputed land, I would also be terminating the private rights of non-parties; this is a factor to which I shall return.

27.              The principal written evidence relied upon by the Respondents is that set out in Mr Askew’s Statement of Case at pages 30-34 and the “Addendum to Mr Askew’s statement of case” at pages 60-62. Putting aside the matters of submission contained in those documents, it is the Respondents’ case that the disputed land was for toll payers to pull up onto to pay their tolls and gain access to the stabling facilities within the private yard. Reliance is placed on the fact that both the windows to The Old Toll House and the garage doors now open outwards onto what (on the Council’s case) is public highway. (As I have noted above, historically this was not always the case). Similarly, reliance is placed by Mr Askew on the concrete plinth which housed the vending machine. He submits, with some force, that this and the ways in which the doors open are indicative of the land being retained as private land (lest it constitute an obstruction of the highway) and that I should take comfort from these factors when determining the case in his favour. These points would have much greater force if it were not for the fact that historically traders have been allowed to block and make use of the public highway within Worcester without fear of prosecution or interference provided that they do not cause or maintain an obstruction of the highway which impedes public use thereof. As Mr Jones confirmed in evidence (which was not challenged and which I accept) this is now a formal Council policy and has been since about 1991 or 1992. Prior to then it represented a longstanding policy of the Council, its formulation as a policy in the early 1990s simply being a de facto recognition of that which was already happening. Against such policy I do not consider the way in which the doors or windows opened or the presence of the plinth/vending machine to be solely demonstrative of the Respondents’ case, as Mr Askew contends. Each may represent a manifestation of the policy to which I have referred or have been viewed by the Council as too inconsequential to warrant action.

28.              Having made the findings and observations that I have above, it therefore does not seem to me that the primary evidence in this matter is in conflict in any material regard, at least as to the use to which the land was put. What inferences I am to draw from it are very much in issue, however. Clearly, evidence as to prior owners’ beliefs and intentions is difficult to evaluate given the lack of detail. Similarly, although the conclusion reached by Mr Brown and stated in the 1984 Letter is clear, it is of course the very question which I am asked to decide and, in the absence of sight or understanding of the investigations made and the evidence upon which he relied, it does not (at least for the purposes of determining the status of the disputed land) assist me greatly. Of course, it remains a matter upon which the Respondents rely in relation to the argument upon the estoppel.

29.              In relation to that aspect, Mr Askew told me in evidence (and none of his evidence in this regard was challenged) that upon receipt of the 1984 Letter, the Respondents maintained the forecourt by pressure washing it and cleaning it in the spring time, sweeping it and by defending this and the prior action in relation to the rights of way over it. Mr Askew further told me that he believed that displaying his wares upon the forecourt has resulted in some 90% of his income over the last 24 years because 90% of his income came from the sale of doors and 10% elsewhere and, that as matters currently stand, he would not be able to store the doors currently located on the disputed land elsewhere. I consider this evidence in the context of detrimental reliance upon the 1984 Letter below.

30.              Turning to the current physical layout of the disputed land, I have dealt with the plinth above. In addition, I note the following matters.

31.              It is not disputed that this concrete surface was laid by the local authority, not least because it covers land which is accepted to form part of the highway (i.e. to the west of The Old Toll House and fronting onto Ombersley Road) and also because it extends way beyond the boundaries of The Old Toll House northwards along Ombersley Road. There is no evidence before me as to how this concrete came to be laid on what is said to be both private land and public highway. As the phot0graphs show, it is laid in panels with joints perpendicular to the demarcation line/crack inducer. However, if one were to draw an imaginary line from the easternmost corner of The Old Toll House to the corner of the garden wall of 4 Ombersley Road (i.e. with the disputed land all to the west of that line and the accepted footpath to the east), one would find that on the ground that line is represented by a clear line in the concrete. This is the demarcation line to which the 1984 Letter refers. Mr. Walford accepted that this line covered 95% of the length of the eastern boundary to the disputed land which I have described but considered it to comprise a construction joint or crack inducer laid along that line because of (a) the size of the concrete panels and (b) for aesthetic reasons. It is this line which Mr Askew relies upon as demonstrating both the extent of the land outside the highway. It is true that the middle panels of concrete laid along the eastern side of The Old Toll House are much larger than those elsewhere but it is equally true that none of the large concrete panels to the west fronting onto Ombersley Road have joints/crack inducers notwithstanding that they are larger than at least some of those that front onto Droitwich Road and with which I am concerned. Mr Askew suggested (albeit without any evidence in support) that the concreting of what he maintains is private land may have taken place as part of “works of accommodation” done by the relevant highway authority in order to accommodate the adjoining owner’s land. For my part, I do not find this line of argument persuasive; I accept Mr Walford’s evidence that such works are usually undertaken where the adjoining land is at a substantially different level to that of the highway.

32.              What then am I to make of this line in the concrete? There is no evidence as to the circumstances in which it was created and both parties’ explanation of its genesis and purpose are equally plausible. A crack inducer laid in some panels (and the middle panels in this area are significantly larger than those elsewhere) and not in others would look slightly odd. Mr Brown ascribed to it the status of a demarcation line; clearly, this thought never occurred to Mr and Mrs Hughes who did not think the disputed land was private until they complained about the siting of the street lamp. Looked at from the Respondents’ perspective, the line must be taken to mark the distinction between that which was subject to public rights of way and that which was not. Given that the disputed land was surfaced by the Council and the absence of any evidence as to how or why the line was made, I cannot agree with the submission that I should find that the line was inserted for demarcation purposes.

33.              The footpath has, at least since the 1960s, had lamp posts erected broadly speaking in line where the wall joins The Old Toll House itself but on the footpath side of the line in the concrete. The erection of a lamppost in that position is consistent with that being the boundary of the public highway (as Mr Askew contends) or with it being the only position to put a lamppost with an arm of the standard length supporting a lamp head (as Mr Walford states at paragraph 6 of his witness statement at page 21) which is not in the middle of the pavement. The 1984 Letter only expresses the position of the street furniture as substantiating the conclusion drawn from the demarcation line, which of itself must be open to doubt given that the disputed land contained an item of street furniture in the 1950s – see above – but not perhaps by 1960 when Mr Brown joined the Council. In the absence of being able to evaluate the weight that I should attribute to the source of the information given to Mrs Hughes (which itself is contradicted by the previous position of the street furniture on the disputed land), I give no weight to Mrs Hughes’ evidence in this regard.

34.              The northern dropped kerb would be required for access to the garage, the doors of which substantially pre-date the installation of the existing kerbstones. The presence of both dropped kerbs is, in my view, as consistent with the land being highway (in which case they would facilitate parking on the highway (i.e. the disputed land) or it being a private forecourt. Having regard to the limited evidence available in this regard, I do not consider the presence of the dropped kerbs conclusive one way or the other.

35.              Against these evidential findings and observations, I shall now turn to considering the relevant legal principles upon which the Council purports to rely.

The “fence to fence” presumption

36.              Where there are fences on both sides of a highway, the public right of passage prima facie extends to the whole space between the fences even though the width of the highway may be varying and unequal; this presumption however does not arise in every case and it does not rise at all if the existence of the fence is not in someway referable to the existence of the highway: see Halsbury’s Laws of England, volume 21, paragraph 202. Clearly, on the facts of this case the “fence” with which I am concerned is the wall enclosing the yard to the rear of The Old Toll House and Droitwich Road.

37.              I am not satisfied that this presumption arises in this particular case. There no evidence whether or at what date prior to 1835 Droitwich Road became a highway. Furthermore, no submissions were made to me on the nature of the public’s rights (if at all) over Droitwich Road whilst it was subject to the Turnpike Trust which would enable me to determine whether there was a public highway along what is now Droitwich Road prior to 1814. In Hale v. Norfolk County Council [2001] Ch 717 (CA) at paragraph [33], Chadwick LJ observed in relation to this presumption:

“There could be no room for any such presumption unless the highway pre-dated (or was contemporary with) the fence or hedge. If it were unknown which came first, I can see no reason in principle for making an assumption – or adopting a presumption – that the land owner fenced against the highway rather than the highway following the line of the existing fence.”

38.              I raised the difficulties that I apprehended that this evidential gap and the dicta of Chadwick LJ in Hale gave me with Mr Moore in closing. He did not seek to argue that the Droitwich Road was, for the purposes of this presumption, always or at all material times a highway, thus enabling the presumption to operate. In the circumstances, I am not satisfied that the presumption can arise and accordingly the Council fails upon its first contention.

Dedication at common law or pursuant to statute

39.              “A claim for public right of way may be based either on the common law doctrine of dedication and acceptance or on some statutory provision. Since 1932 public user for a period of 20 years may give rise to the presumption that a way is a highway, unless there is sufficient evidence that there was no intention to dedicate the way”: see Halsbury’s Laws of England, Volume 21, paragraph 107.

The common law of doctrine of dedication and acceptance

40.              The common law doctrine of dedication and acceptance can be formulated thus:-

“A road or other way becomes a highway by reason of the dedication of the right of passage to the public by the owner of the soil and of an acceptance, that is user, of the right by the public. “Dedication” means that owner of the soil has either said in so many words, or so conducts himself as to lead the public to infer that he meant to say, that he was willing that the public should have this right of passage. For the doctrine to arise the land in question must have the physical attributes which would enable it to be categorised as a highway. From the moment that a dedicated way has been accepted by the public there is a right of passage by the public”: see Halsbury’s Laws of England, Volume 21, paragraph 108. (My emphasis).

41.              Accordingly, there must (in this case) be (1) an inference of dedication – there being no express dedication – (2) of land capable of being categorised as highway and (3) which is used by the public.

Categorisation as a highway

42.              In my judgment the second requirement is met. Contrary to the Respondents’ submission, the disputed land does lead somewhere – along Droitwich Road – and has sufficient physical attributes which enable it to be categorised as highway if the other factors are present.

 

User by the public

43.              For my part, I am satisfied that there has been public user of the disputed land since at least 1900. I reach this conclusion having regard to the physical layout and location of the land as shown in the photograph at page 51A and photograph 2 as well as being amply demonstrated post-1950 by the evidence of Mr Jones and Mr Bowdler. Throughout this period it is inevitable that members of the public would have walked or ridden on the disputed land or stood on it whilst waiting for a bus; I do not accept the Respondents’ submission that no-one would veer off what they concede is the pavement onto the disputed land and thus make no use of it qua highway. Large groups of people would do just that. Children riding bicycles would do just that, if only to avoid pedestrians. Furthermore I consider it overwhelmingly probable that members of the public would, from time to time, deviate from the “accepted pavement” onto the disputed land in order to read the notices as they walked past. With regard to this aspect of the case (acceptance by the public) I reject the Respondents’ submissions.

Inference of dedication

44.              It is established law that :-

“The fact that a way has been used by the public is evidence from which a dedication may be inferred if it has been used for so long and in such circumstances that the proper inference is that the owner of the soil had said, or so conducted himself as to imply, that he had granted the right of passage to the public…… .At common law, the question of dedication is one of fact to be determined on all the evidence. User by the public is no more than evidence, and is not conclusive evidence. Thus if nothing is known about a road except that it is used by the public, that user may raise a presumption of dedication in the sense that the evidence points all one way. However, any presumption raised by the user may be rebutted. Accordingly, where there is satisfactory evidence of user by the public, dedication may be inferred…...” (see Halsbury’s Laws of England, Volume 21, paragraph 118).

45.              The Respondents invite me to determine that any inference I may be invited to draw is sufficiently rebutted. They rely on paragraph 120 of Halsbury’s Laws of England wherein it is stated that

“if the owner of land leaves a portion of it un-built upon for the convenience of himself or persons having business with him … or leaves open a space in front and within for vehicles to stand in and cannot exclude the public without also excluding his customers, public user does not necessarily raise any presumption of dedication”.

46.              The Respondents submit that it was clearly for the convenience of the toll-keepers (who maintained a view along the toll road) and for those using the toll road that the disputed land was left open and that it would be “preposterous to suggest that any person having a commercial interest or potential gain would not allow customers to have some use by licence of their forecourt”.

47.              I can make no findings in relation to the period before 1900. At some stage before then (perhaps as early as 1835 or as late as 1876 or 1877) the collection of tolls ceased. No one would have had cause to monitor the road or pull up and pay their dues. The disputed land and the footpath were joined without demarcation and uniformly surfaced; the former was left empty and without any apparent obstruction. On the evidence, this remained the case until the 1950s. There is no evidence before me of what commercial activity (if any) took place at The Old Toll House in that period or any evidence of any acts or use by its proprietors from time to time in relation to the disputed land. In all the circumstances, I do not consider that the public’s user which gives rise to the presumption described above is rebutted by any evidence to the contrary at least for the 50 year period from 1900. Accordingly, I am satisfied that at common law, the disputed land comprised highway by 30^th July 1951.

48.              The passage relied upon by the Respondents from Halsbury’s Laws of England, paragraph 120 does not assist in relation to this period. It relies on 3 cases which appear, from the text, to have some relevance. All, in my view, can be distinguished. In Hoare & Co Limited v Lewisham Corp (1901) 17 TLR 774, there was a considerable body of evidence showing that the land in question (a draw-in adjacent to a public house) had been repaired by the publicans, as had the water trough situated on it. Piggott v Goldstraw (1901) 65 JP 259 concerned the small recesses which had existed in a shop front, which were of such dimensions (some 5 feet long and less than a foot deep) that their size militated against them being highway. They were also used until their building-out to better display the wares being sold. In King’s Lynn RDC v Blade (1914) 78 JP Jo 112, a grassed area adjacent to the highway some 218 yards long had been used by the customers of a public house until shortly before the dispute arose to tether their horses whilst they drank their beer. The brief lapse of time between cessation of commercial user and the dispute was an important factor in that case. All these factors are conspicuously absent in this case, even if one views the position as at 1900.

49.              What then of the period from 1951 to 1980, which only becomes relevant if my conclusion in relation to the period 1900 – 1951 was wrong. For this later period, my conclusion as to public user of the land remains unaltered and is bolstered by the oral evidence given. The material issue is whether the other evidence rebuts the presumption.

50.              There is no evidence of any repairs or maintenance by any proprietor before Mr and Mrs Askew. Indeed, the only evidence of any such acts prior to 1980 is the fact that the Council surfaced the disputed land. The only evidence that the disputed land was utilised by customers of The Old Toll House is that of Mrs Hughes and later proprietors after the installation of the double yellow lines. This, it seems to me, represents a utilisation of what existed (as opposed to what had been retained for that purpose) and does not fit easily within the proposition stated at paragraph 45 above. This ‘back-to-front’ approach with the user being derived from the open nature of the land rather than the land being left open for the desired user and the circumstances in which it arose substantially weakens the evidence rebutting the presumption referred to above. Statements as to ownership (particularly those in response to complaints and not passed on to subsequent occupants) do not sufficiently assist the Respondent, in my view.

51.              Does the physical configuration of the disputed land considered in paragraphs 30 - 34 assist? In my judgment, it does not. It perhaps suggests that the Council may have viewed the disputed land as privately owned (which, as I have stated above, appears to be the case) although it surfaced it but the three matters do not, in my judgment, lead to the conclusion that the presumption of dedication has been rebutted. It remains the case that one can have private land subject to public rights of way. There is no evidence concerning the laying of the concrete or the installation of the line beyond the fact that the Council did it; the street lamp was erected where it was not as a result of objection by Mr and Mrs Hughes but, in fact, it remained there despite their objections and request to move it onto the disputed land. The fact that there are dropped kerbstones is, in my view, equivocal. The presence of the demarcation line/crack inducer is not sufficiently persuasive to alter my conclusion.

52.              All these factors lead me to conclude that the looking at the evidence as a whole, the inference that arises by reason of the public’s use of the land during the period 1951 – 1980 is not rebutted. Accordingly, I am satisfied that at common law, the disputed land comprised highway by 1980 and that the disputed land must be considered to have been dedicated as part of the highway prior to the Respondents acquisition of The Old Toll House in 1980.

Dedication pursuant to section 31 of the Highways Act 1980

53.              Section 31 (which was part of an Act consolidating prior legislation and which is similarly worded to section 1(6) of the Rights of Way Act 1932 (repealed)) provides as follows:

“(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by notice such as is mentioned in subsection (3) below or otherwise.”

54.              The 20 year period could have begun or ended at any time before or after 1 January 1934 – see A-G and Newton Abbot RDC v Dyer [1947] Ch 67, 90. I am satisfied from Mr Askew’s evidence that the public’s right to use the disputed land was brought by him into question immediately upon his acquisition of The Old Toll House in June 1980 and at various times thereafter. This is sufficient to rebut the inference raised by section 31: see R (on the application of Godmanchester Town Council) v. Secretary of State for Environment, Food and Rural Affairs [2006] 2 All ER 960. It is common ground that the relevant period therefore ends in June 1980. For the reasons I have given above, I consider that a common law presumption of dedication can (and indeed has) arisen and that there is no evidence or sufficient evidence that the owner of the land had no intention during that period to dedicate it. In my judgment the user by members of the public of the disputed land was “as of right” – their user was open, not by force and not by permission given from time to time by the owner. Prior to the Respondents’ acquisition of The Old Toll House in 1980, there is no evidence of suggestion that there was any interruption of the use by the public or the disputed land.

55.              Accordingly, I conclude that the disputed land is presumed dedicated as a highway by virtue of section 31 of the Highways Act 1980 in addition to the common law.

56.              Accordingly, unless the Respondents can satisfy me that the Council is estopped from asserting that the disputed land comprises highway as against them, I must conclude that the disputed land is highway.

Estoppel

57.              The sole issue in relation to the estoppel arguments is whether the 1984 Letter as a matter of law has the effect of authorising the Respondents’ use and possession of the disputed land if that land was highway at the material time. For the reasons I have given, I have concluded that the disputed land was highway by the date of the 1984 Letter (indeed, that it was highway by 1980) and accordingly the estoppel argument turns upon the submissions of law made by the Council. The Respondents’ claim to have relied upon the 1984 Letter and to have acted to their detriment as a consequence thereof were not challenged in evidence nor in closing submissions and in those two regards, I accept that the Respondents have adequately demonstrated their case.

58.              The Council contends that the decision of the Divisional Court in Cambridgeshire and Isle of Ely County Council v. Rust [1972] 3 All ER 232 (and also reported at [1972] 2 QB 426) establishes the proposition that even if a person occupying the highway honestly believes on reasonable grounds that such occupation is lawful (as the Council acknowledges that the Respondents may have done on receipt of the 1984 Letter) such occupation cannot in fact be lawful because there is in fact no-one who could give that person lawful authority so to occupy the disputed land. Therefore, as a matter of law the letter cannot have had the effect of extinguishing the rights of the public to use and enjoy the disputed land as highway.

59.              The question I have to determine therefore is whether the Council’s very clear representations that the disputed land did not form part of the highway can give rise to an estoppel as a matter of law. In effect, what I have to decide is whether the Council can by this route – namely a representation plus detrimental reliance by the representee – bring to an end the public’s right of way over the disputed land. If they can, the Respondents may still yet succeed. If they cannot, their estoppel defence fails.

60.              There is no suggestion that at any stage the Council exercised any of its statutory powers in relation to the disputed land in order to terminate its status as a highway. Accordingly, prior to embarking upon the issue I have just outlined, it is germane to consider what the position is at common law in relation to ending the status of land as highway.

61.              “The common law rule is ‘once a highway, always a highway’. The public cannot release rights once acquired, and no authority can bind the public in purporting to release those rights. Moreover, there is no extinctive presumption or prescription arising from non-exercise of those rights.” See Halsbury’s Laws of England, Volume 21, (supra), paragraph 781. The paragraph then goes on to consider how the common law writ ad quod damnum could be issued in order to consider whether a highway should be closed; clearly these matters are not relevant to that which I have to consider.

62.              Cambridgeshire County Council concerned the prosecution of a trader who had traded from a stall on the highway with the permission of the local authority and the police. At some stage thereafter he was prosecuted and the issue arose under the provisions of the Highways Act 1959 whether he had “lawful excuse” for his acts, thereby affording him a defence. In the course of giving judgment the Lord Chief Justice, Lord Widgery, considered a decision of the then Lord Chief Justice, Lord Parker, Redbridge London Borough Council v. Jaques [1970] 1 WLR 1604. In Redbridge London Borough Council, a fruit and vegetable salesman had for several years been accustomed to park his motor vehicle and set up a stall from its rear in a service road every Thursday afternoon. He thereby caused an obstruction but was not prosecuted. Eventually in December 1969 a prosecution was commenced, relying upon a breach of the Highways Act 1959. The Justices held that the local authority had conduced to and condoned the obstruction and had in effect given him licence to trade from the roadway and they dismissed the prosecution. Thus, in that case there was a clear representation and reliance by the salesman. However, as Lord Parker observed at page 1606:-

“It is enough to say that it is quite clear that a valid licence cannot be given to perform an unlawful act. The council cannot change the nature of a highway. Once a highway, it is always a highway, and in any event if they did give any permit or licence they can withdraw it at will. …”

63.              In Cambridgeshire County Council, Lord Widgery (having cited a passage from Lord Parker’s judgment) concluded that:

“The highway is for the public and the public interest is not to be defeated because the local authority concerned expressly or by a failure to attend to its business allows obstructions to continue, albeit for a long time.” (At page 432E).

64.              In my judgment the analysis applied by Lord Widgery in Cambridgeshire County Council applies with equal force in the circumstances of this case. Although Halsbury’s Laws of England gives no authority for the proposition that “no authority can bind the public in purporting to release those rights” (i.e. public rights of way over a highway), I consider that the statement is consistent with the preceding narrative and also with the established principles and those stated in Cambridgeshire County Council and Redbridge London Borough Council.

65.              Thus, I do not consider that any representation made by the Council as to the nature of the disputed land, namely whether it was or was not highway, is such that it can give rise to an estoppel. It is not, in my judgment, open to the local authority to defeat the public interest in part of a highway by a representation howsoever made as to its status; if that were the case it would make a significant breach in the common law rules and would, it seems to me, be inconsistent with the principles applied in the two authorities that I have already cited. It makes no difference in my judgment that the doctrine of estoppel is an equitable doctrine; equity follows the law and is bound by it:-

“where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify departure from it”: Snell’s Equity (31^st Edition, 2005) at paragraph 5-05 citing, Story on Equity (Third Edition, 1920) page 34.

 

CONCLUSION

66.              Accordingly, and for the reasons which I give above, I conclude that the disputed land is highway. This decision was circulated in draft in order to enable the parties to make submissions on whether the title should remain open but subject to an express entry recording the public rights that I have held exist or whether I should close the title as the Council asks me to do. Closure would affect the private rights of third parties not currently privy to this case, namely the registered proprietors of 4 Ombersley Road (title no. HW126655) who enjoy a right of way over the disputed land and Barclays Bank plc, the registered proprietor of a charge over the disputed land.

67.              Notwithstanding the Council’s primary submissions on the form of the direction I should make, I am not prepared to direct that the register be closed. To do so would require the third parties’ to be joined and heard (thus prolonging the proceedings and increasing the costs associated therewith) and closure would give no discernible benefit to the Council provided a suitable entry is made in the register. In addition, I bear in mind the peculiar nature of the Council’s title to the disputed land as the highway authority, the Respondents’ interest in it as neighbouring land owners and the policy of registering land, which underlies the Land Registration Act 2002. Conversely, if the register were kept open and the public rights that I have found exist over it properly recorded, neither the adjoining proprietors of tile number HW126655 or the mortgagee would be prejudiced; the former can obtain access to their property by virtue of their public and/or private rights and the latter’s security (granted in 1999) would always have been subject to the public rights which I have held exist by reason of their overriding nature pursuant to the Land Registration Act 1925, s. 70(1)(a).

68.              Accordingly, I shall direct that

(1)            Entry 1 in the Property Register is amended so as to read ‘The freehold land shown edged red on the plan of the above Title filed at the Registry and being Land adjoining 1 Droitwich Road to the extent that the same has not vested in the highway authority in accordance with section 263 of the Highways Act 1980.’

(2)            A notice is entered in the register stating that ‘The land is subject to public rights of way and is highway maintainable at the public expense.

Save for these entries, the Council’s application should be cancelled.

Costs

69.              At the conclusion of the hearing both the Council and the Respondents accepted my invitation to determine any applications for costs and/or permission to appeal my decision without the need for an oral hearing. I have received and considered the parties’ submissions in this regard.

70.              I accept that the Council has largely achieved in substance that which it sought by the application made to HM Land Registry. The essence of this case was whether the disputed land was subject to public rights of way. In that regard it has succeeded, albeit that the Respondents’ retain a proprietary right in the disputed land. In my judgment, it is therefore entitled to an award of costs in its favour. It has however not succeeded in all the arguments put forward by it and, it must be noted, the dispute stemmed in part if not in whole from the terms of the 1984 letter. I have not been referred to any pre-referral or other correspondence which sets out the Council’s case as advanced in its Statement of Case filed and served on 16^th March 2005. Looked at in the round, I consider that the Council should only recover two-thirds of its assessed costs of the referral from 30 March 2005 (being 14 days after the service of the Statement of Case, thereby allowing the Respondents’ sufficient time to consider the claim and to determine how they should react to it. I shall conduct the assessment of those costs. Directions for their assessment accompany this decision.

71.              Further directions accompany this decision in relation to the return of the original photographs provided to me during the hearing.

 

Dated this 16^th day of June 2006

 

 

 

 

 

 

By Order of The Adjudicator to HM Land Registry