De Wit & Anor v Arrowsmith & Anor

In construing a conveyance, the conveyance and its plan are the starting point. The physical condition of the land at the date of the conveyance may assist in deciding whether the plan is clear. Where the plan is clear, extrinsic evidence cannot alter it merely because the physical features differ. If the plan remains unclear, only objective facts reasonably available at the relevant date may assist; subjective beliefs, intentions and negotiations are inadmissible. An express right of way is not dependent on user or necessity. A private party cannot enforce planning control through an action concerning an easement. Equitable relief may be refused for misconduct only where it has an immediate and necessary relation to the equity claimed.

The claimants purchased Hart’s Farm and additional adjoining land from the defendants under two transfers dated 12 October 2006. The transfers contained plans defining the conveyed land and granted wide express rights of way over areas shown brown. A dispute later arose as to whether the right of way extended along the new Stable Drive and whether the northern boundary lay at the post and rail fence or along the route of an earlier track.

The defendants also opposed injunctive relief, alleging breaches of planning conditions concerning an annexe, an outbuilding and an outdoor riding school. The issues were the construction of the transfer plans, the admissibility and effect of extrinsic evidence, the extent of the express easement, and whether equitable relief should be refused.

1. Construction of the transfers. The court applied the principles derived from Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, Pennock v Hodgson [2010] EWCA Civ 873, Cameron v Boggiano & Robertson [2012] EWCA Civ 157, Liaquat Ali v Lane [2006] EWCA Civ 1532 and Chadwick v Abbotswood Properties Ltd & Others [2004] EWHC 1058 (Ch). The plans were definitive and clear when read with the physical features existing at the date of the transfers. Extrinsic evidence therefore could not change their meaning.
2. The northern boundary of Hart’s Farm ran along the post and rail fence. The additional western strip also abutted the Stable Drive. The express rights of way consequently extended along the Main Drive and along the Stable Drive for the whole length of those boundaries. The alternative claims under section 62 of the Law of Property Act 1925, the rule in Wheeldon v Burrows, and implied easement principles did not arise.
3. The alleged planning breaches could not be enforced privately. Applying the equitable clean-hands principle identified in Royal Bank of Scotland v Highland Financial Partners & Others [2013] EWCA Civ 328 at [159], the alleged misconduct had to bear an immediate and necessary relation to the equity claimed. The alleged breaches concerning the annexe and outbuilding did not affect the extent of the right of way. The evidence concerning the riding school did not justify refusal of relief, and refusal would in substance enforce planning control indirectly.
4. The claimants were entitled to declarations of their rights. Rectification and alteration of the Register under Schedule 4 of the Land Registration Act 2002 were left for further submissions. An injunction was not required at that stage. The existing cross-undertakings were to remain until three months after formal hand-down, subject to an application if further obstruction was apprehended.

First-instance decision. No appellate history is stated in the judgment.