Carpenter & Ors v Calico Quays Ltd & Anor

The construction of a deed granting a right of way is a unitary exercise. The court must read the words used with the relevant background circumstances reasonably available to the parties, including the physical characteristics of the land and related instruments. A schematic plan may still identify the relationship and boundaries of plots, even if it does not show their precise dimensions. A defined term such as “Roadway” does not determine the issue if the parties have given it a contextual meaning. Where a replacement access was required to be reasonably convenient, the court may consider whether the former access included safe pedestrian use of verges.

The respondents owned land accessed from the A6 by a right of way over land belonging to the appellants. The right was granted by a deed dated 15 April 1999 after a highway scheme replaced the former access. The dispute concerned whether the right extended over the grass verges beside the tarmac road or only over the tarmac surface.

Her Honour Judge Hampton held that the right extended from the western boundary fence to the eastern edge of the eastern verge. The appellants appealed from the Leicester County Court judgment. The central issue was the true construction of the deed in its factual and documentary context.

1. Appeal dismissed. The county court judge reached the correct construction of the deed.
2. The construction exercise was unitary. The court had to consider the deed together with the background reasonably available to the parties, including the other statutory instruments and the physical features of the land. The parties’ subjective intentions and negotiations were inadmissible: [1998] 1 WLR 896; [1975] 1 WLR 468.
3. The plan annexed to the deed was schematic and did not provide precise dimensions. It nevertheless showed the relationship of the relevant plots. Since “Roadway” was defined by reference to land coloured brown on that plan, the construction naturally directed attention to the boundaries of that plot.
4. The word “roadway” did not necessarily exclude or include the grass verges. Defined expressions should not be treated as algebraic symbols; the language chosen may illuminate the meaning of the definition and the agreement as a whole: [2009] UKHL 38; [2007] 2 AC 262.
5. The statutory requirement for a reasonably convenient replacement access supported consideration of the former access. If the former access included safe pedestrian use of grass verges, it was reasonable to expect the replacement access to provide a similar facility. The scale plan attached to the Side Roads Order did not prevail because the parties had selected the land-interest plan for incorporation into the deed.
6. The signage agreement, fences, barrier posts and covenant against vehicles standing on the roadway did not displace the plot-boundary construction. The right of way therefore extended over the land between the western fence and the eastern boundary represented by the hedge and rollover point. An order was made dismissing the appeal.

1. High Court (Chancery Division): On appeal, Floyd J dismissed the appeal and upheld the construction adopted by Her Honour Judge Hampton.
2. Leicester County Court: On 26 January 2010, the judge held that the physical extent of the right of way included the grass verges, extending from the western fence to the eastern edge of the eastern verge.