Residential development – Construction of road – Dedication and acceptance as highway maintainable at public expense – Road falling short of appellant’s adjoining land – Whether public right of way extending over intervening strip of land – Meaning of agreement containing obligation to construct road – Appeal dismissed
In 2002, the appellant acquired land to the east of a residential estate that had been developed in the late 1970s. A road that had been constructed as part of the development, and had subsequently been adopted as a highway maintainable at public expense, ran across the estate towards the appellant’s property but fell slightly short of it, leaving a strip of land (the disputed strip) separating the appellant’s land from the road. The respondent owned both the road and the disputed strip, having earlier acquired them from the developer.
The appellant claimed a right to cross the disputed strip to access its land from the road. It asserted that a public right of way arose by reason of an agreement, concluded between the developer and the relevant highway authority in 1981, regarding the construction of the road and its subsequent adoption as a highway. A plan drawn to scale by a firm of architects and planning consultants, which was annexed to the agreement, showed the proposed road running to a marked line that was stated, in a recital to the agreement, to show the extent of the developer’s land. The line lay beyond the end of the road but still within the disputed strip.
In an action against the respondent, the appellant contended that the agreement, interpreted in the light of the surrounding circumstances, required the developer to dedicate, and the highway authority to accept, a road running all the way to the eastern boundary. The matters it relied on included the highway authority’s insistence at the relevant time that the estate road should continue up to the eastern boundary and the fact that the precise boundary had then been uncertain, not having been agreed until 1983. Dismissing the claim, the judge held that although the highway authority could have insisted that the road should run all the way to the boundary, what had been offered for dedication as a highway, and adopted as such, was the road as actually constructed, such that no public right of way arose over the disputed strip. The appellant appealed. On the appeal, it raised a further argument, by analogy with the “general boundaries rule” in land registration, that the line on the plan was intended to show the eastern boundary wherever that might be.
Held: The appeal was dismissed.
It was not possible to interpret the plan through the onward reference to the filed plan of the developer’s registered title and by a consideration of the general boundaries rule. The recital in the agreement that referred to the annexed plan was intended to provide a self-contained identification of the boundaries of the developer’s land and did so by incorporating the plan as definitively identifying the boundaries by reference to the marked line. The plan, as a carefully prepared scale drawing prepared by a firm of architects and planning consultants, was not referred to purely “for the purposes of identification” by reference to the formula commonly used in conveyances to eschew any claim to precision as to boundary lines. It was instead introduced by words that rendered it definitive the line of the eastern boundary for the purposes of the agreement, and the developer was obliged to construct the new road up to that line, whether or not it represented the true eastern boundary.
That interpretation reflected the commercial purpose of the agreement. Since it imposed obligations on the developer with regard to the building of a new road, those obligations had to be clear, precise and certain so that, in particular, both parties knew with precision where the road was to be constructed from and to. It would be absurd to interpret the plan as intending to show no more than the approximate point of terminus of the new road, which was to be built up to wherever the true boundary might be required. Both parties required the plan to be definitive as to their obligations so that the developer would know what it had to do and the highway authority could be satisfied that it had been done. The inevitable risk that the line might, as had occurred, not represent the true eastern boundary of the developer’s land could not retrospectively turn the developer’s intentions and obligations under the agreement into something different. Even if the developer knew that the highway authority did not want any gap between the new road and the appellant’s land, that went only to what one or both parties had subjectively intended to achieve by the agreement and was not admissible in its interpretation, which depended on an objective assessment of the parties’ intentions.
The judge had therefore erred in finding that the agreement reflected an intention or obligation on the part of the developer to construct the new road up to the eastern boundary, wherever that might be. The only intention or obligation that could be derived from the agreement was to construct the road up to the line. Accordingly, the appellant could not establish the right that it claimed. Even assuming that the extent of the dedication as a highway extended to the line, not only over the made-up road as the judge had held, the right of way still fell short of the appellant’s land because there was no basis on which the appellant could claim a public right of way over the remaining stretch of the disputed strip.
Paul Cairnes (instructed by Pengillys LLP, of Poundbury) appeared for the appellant; Guy Adams (instructed by Bond Pearce LLP, of Plymouth) appeared for the respondent.
Sally Dobson, barrister
