Page v Convoy Investments Ltd

Where an easement is granted over a roadway, its extent and incidents are determined by construing the conveyance as a whole and considering relevant physical circumstances at the time of grant. A missing plan mark may be corrected where the error and correction are clear. A boundary feature retained by the transferor cannot be removed by the dominant owner, so access may be confined by that feature as it stood at the grant. Substantial interference with a right of way is assessed by comparing the actual obstruction with the prior position, not with a hypothetical alternative obstruction. Electronic gates may therefore unlawfully interfere even if manual gates might not have done. A reliable measured plan should be used where it gives greater certainty as to the physical extent of the way.

Adam Page and Convoy Investments Ltd owned neighbouring land in Leicestershire. Page’s land benefited from a right of way over a roadway retained by Convoy. Disputes arose about the roadway’s extent, the ownership of a white fence and a gate pier, the points at which Page could enter his land, and Convoy’s electronically operated entrance gates.

Following a trial in the County Court at Birmingham, His Honour Judge Worster held that the fence belonged to Page, that the boundary followed the metalled roadway, that Page could access his land at any point along it, that the gate pier stood on Page’s land, and that the electronic gates substantially interfered with the easement. Convoy appealed against most of that order. The central issues were the proper construction of the transfer and whether the gates and roadway arrangements unlawfully interfered with the right of way.

The appeal was allowed in part and dismissed in part.

1. Boundary and construction. The transfer had to be construed as a whole and in light of the relevant physical circumstances at the date of the grant. The absence of the T mark on the plan was an error which could be corrected as a matter of construction because the error and the necessary correction were clear. The white fence was the only boundary structure on the relevant boundary and was therefore retained by the transferor under clause 13.4. The court applied the approach to subsequent evidence discussed in Ali v Lane [2006] EWCA Civ 1532; Page’s later opening in the fence had no probative value without evidence that the transferor knew of it or accepted it.
2. Consequences. The white fence marked the boundary for the length it had in 2000. Page could not remove it or require access through it. His access right extended only to points east of the fence’s end. The southern gate pier belonged to Convoy and was not a trespass. Convoy could require reinstatement of the gap made by Page.
3. Electronic gates. The relevant test was whether the right of way could be substantially and practically exercised as conveniently after as before the obstruction. The comparison was between the actual electronic gates and the previous position, when there were no practicable gates. It was not appropriate to compare the electronic gates with hypothetical manual gates. The judge had applied the correct test. The electronic gates were a substantial interference and were to be kept open. The court applied West v Sharp (1999) 79 P&CR 327, and considered Keefe v Amor [1965] 1 QB 334, Dawes v Adela Estates Ltd [1970] EGD 900 and Cardwell v Walker [2003] EWHC 3117.
4. Definition of the roadway. The extent of the metalled roadway should be defined by reference to the reliable expert plan dated 5 December 2012 rather than by the uncertain physical position at the later hearing date. Under CPR rule 35.6, objections to a single joint expert’s report should be raised through questions or an equivalent challenge. Page had not used that procedure, so it was not appropriate to attack the plan’s reliability on appeal. Daniels v Walker [2000] 1 WLR 1382 was applied.

Lady Justice King and Lord Justice Tomlinson agreed with Sir Timothy Lloyd’s judgment.

1. Court of Appeal (Civil Division) — The appeal was allowed on the boundary, fence ownership, access points, gate-pier ownership and definition of the roadway, but dismissed on the finding that the electronic gates substantially interfered with the right of way: [2015] EWCA Civ 1061.
2. County Court at Birmingham, Chancery Business — His Honour Judge Worster’s judgment was handed down on 11 July 2014 and his final order on 21 August 2014. He held that the fence belonged to Page, the boundary followed the metalled roadway, Page could access lot 1 at any point, the southern gate pier stood on Page’s land, and the electronic gates substantially interfered with the easement.