Fox-Roberts v Smith & Anor

A consent order must be construed so that each part has a sensible and effective meaning. Where the order declares one party owner of land comprising a stream bed and banks, but reserves rights to the adjoining owner, the reservation may create incorporeal riparian rights without transferring ownership of the reserved area. Acts such as erecting a fence or planting trees are acts of ownership, not the exercise of riparian rights. The court should also respect the lower court’s discretionary costs order unless it falls outside the proper ambit of that discretion.

The defendants sought permission to appeal, with an extension of time, from injunctions granted by His Honour Judge Hugh Jones in the Pontypridd County Court on 2 May 2001. The underlying dispute concerned the meaning of a 1997 consent order resolving a boundary dispute between neighbouring properties.

The order declared the boundary and stated that Mrs Smith had no claim to land, including the stream bed and banks, south of it, save for such claims and rights as arose from ownership of land or bank along part of the boundary over the bed of the stream to its midpoint. The defendants had erected a fence and planted trees in the relevant area. The central issues were whether the order gave them ownership of that area or merely reserved incorporeal rights, and whether the costs order should be disturbed.

1. Permission to appeal refused. The consent order was to be construed so that every part had a sensible and effective meaning, even if there appeared to be some conflict or contradiction.

2. The first part of paragraph (ii), read with paragraph (i), clearly established Mrs Fox-Roberts’ ownership of the land, including the bed and banks of the stream, up to the defined boundary. The words beginning “save only” therefore operated as a reservation of rights in favour of the Smiths, in their capacity as owners of the adjoining land or bank, rather than as a grant of ownership of the hatched area.

3. Applying (1876) 1 App Cas 662, a riparian owner may have rights over half of a stream despite owning no part of its bed. The likely practical example was taking water for ordinary domestic purposes, subject to statutory restrictions. The defendants’ fence and tree planting were acts of ownership and could not constitute the exercise of riparian rights.

4. The judge’s possible slip concerning ownership at point D did not provide a sufficient basis for an appeal. His construction of the consent order was correct.

5. The costs order was within the judge’s discretion and there was no basis for interference. The application for permission to appeal, including the challenge to the costs order, was refused.

• Pontypridd County Court: His Honour Judge Hugh Jones granted injunctions against the defendants by order dated 2 May 2001.
• Court of Appeal (Civil Division): The application for permission to appeal, and for an extension of time, was refused.