Betterment Properties (Weymouth) Ltd v James Carthy & Company Ltd

Construction of a highway agreement and its plan is an objective exercise. Where the agreement identifies the land and proposed road by a precise, incorporated plan, the plan may define the construction obligation even if it does not correspond with the true boundary later established on the ground. Subjective intentions, including an intention to avoid a ransom strip, cannot alter the objective meaning of the agreement. A mistaken belief about the boundary is likewise immaterial. If an unbridged area remains beyond the identified line, the claimant cannot establish the continuous public access needed to reach its land. The court declined to determine whether dedication and adoption extended beyond the made-up road because the highway authority was not a party.

The appellant owned land adjoining a strip owned by the respondent. The strip lay between the appellant’s land and Dukes Way, a road constructed under an agreement made pursuant to section 38 of the Highways Act 1980. The appellant claimed that the agreement and its annexed plan required the road to be constructed to the respondent’s eastern boundary, so that public rights of way extended across the strip and enabled access for development.

The trial judge held that the agreement referred to a road extending to that boundary, but dismissed the claim because the operative provisions showed that only the road actually constructed had been dedicated and adopted. The Court of Appeal reconsidered the construction of the agreement and plan. The central issue was the eastern extent of the construction obligation and its effect on the claimed access.

1. Appeal dismissed. The appellant could not establish public access over the whole disputed strip. Access to Dukes Way required rights over both sections of the strip, whereas the agreement, properly construed, required construction only to the line marked by the red line on the annexed plan, corresponding on the ground to the white line. An unbridgeable gap therefore remained over section B.
2. The agreement was between the developer and the highway authority and imposed obligations that needed to be clear, precise and certain. Recital (2) gave a self-contained and definitive identification of the relevant land by incorporating the scale plan edged red. The plan was not merely approximate and did not require reference to the registered title plan or the general boundaries rule.
3. The objective meaning of the agreement was unaffected by the fact that the red line later proved not to be the true eastern boundary, or by any mistaken belief that it represented that boundary. Evidence that the parties intended to prevent a ransom strip concerned what they may subjectively have wished to achieve and was inadmissible as an aid to interpretation.
4. The court did not decide whether dedication and adoption extended beyond the made-up road to section A. The dedication document was not in evidence, the extent of dedication had to be inferred, and the highway authority was not represented. The appeal failed in any event because rights over section B could not be established.

• Court of Appeal (Civil Division): In [2010] EWCA Civ 1401, the appeal against the order of His Honour Judge McCahill QC dated 20 January 2010 was dismissed.
• High Court of Justice, Chancery Division, Bristol District Registry: The judge dismissed the claim for public rights of way over the disputed strip and made related orders concerning the boundary and costs.