Banks v Morgan & Ors

A declaration that an easement continues to exist does not determine its physical width where that issue was not raised or decided. A plan used to identify the right or correct colouring is not thereby made a definitive plan of its extent. An unclear, unapproved or inadequate plan cannot be converted into a binding boundary by a later clarification application. The proper issue is the physical width of the right of way, determined on the merits. Where that issue remains unresolved, the court may require a joint expert plan and a focused trial of the parties’ competing boundaries.

The claimant owned South Miry Fold Farm and the defendants owned Miry Fold Farm. A roadway between hedges connected the claimant’s land to the highway, over which the claimant claimed a right of way.

In 2004, HH Judge Howarth held that the right of way had not been abandoned and that certain obstructions interfered with it. His order referred to the roadway coloured brown on a plan. Subsequent proceedings addressed obstruction and whether the right extended beyond the vehicle tracks, but did not establish its precise width throughout.

In 2008, HH Judge Hodge QC declared that the extent of the right of way was shown by the original plan attached to the particulars of claim. The claimant appealed, arguing that a substitute plan or a plan attached to a statutory declaration should define the right. The central issue was whether any earlier order had determined the physical extent of the right of way.

Appeal allowed. Mr Justice Mann gave the judgment of the court; Lady Justice Black and the Master of the Rolls agreed.

1. The 2004 trial concerned abandonment and obstruction. The physical width of the right of way was not in issue and was neither decided nor admitted. Judge Howarth’s declaration, by reference to a plan, established that an easement continued to exist. It did not determine the easement’s physical extent. The clearer plan produced during the trial was intended to remedy colouring difficulties and was not a formal amendment or definitive delineation.
2. The defendants’ pleading did not admit the physical width of the right of way. The admission of title and an historic easement was expressly qualified by the absence of admission as to the precise position of the colouring. The later use of another plan during the trial could not convert that position into an admission.
3. The proposed 2005 order could not establish the width. It was never sealed, and no transcript or binding finding was available. Its negative formulation, that the right was not restricted to the track area, did not establish that it extended to the hedges or across the whole roadway.
4. The application to identify a binding plan therefore asked the wrong question. Neither the original plan nor the substitute plan provided a reliable basis for determining the whole physical extent. The plan attached to the statutory declaration could not be substituted because Judge Howarth had made no finding by reference to it.
5. The declaration made by Judge Hodge was set aside. The court substituted a No order provision in relation to the relief sought and directed that a single joint expert prepare a plan of the current physical state. Each party was to mark its proposed boundary, plead the differences sequentially, and have those issues tried together with the alleged agreement concerning a plan.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 1568, the appeal was allowed. The declaration concerning the original plan was replaced by a No order provision, with directions for determining the physical extent of the right of way.
2. Manchester County Court, Chancery/Business: HH Judge Hodge QC’s judgment of 21 November 2008 declared that the extent of the right of way was shown by the original plan attached to the particulars of claim.
3. Earlier proceedings: In 2004 HH Judge Howarth found that the right of way had not been abandoned and that certain obstructions interfered with it. Subsequent proceedings before HH Judge Hodge addressed further obstruction issues.