Commission for New Towns and another v JJ Gallagher Ltd

Defendant making ransom claim to lane bounding development site — First claimant seeking declaration to contrary — Whether lane passed to first claimant by defendant’s alleged predecessor under earlier conveyance — Whether highway presumption applicable by analogy — Whether first claimant entitled to rely upon section 62 of Law of Property Act 1925 — Whether lane a public carriageway — Declaration granted In July 1971, following the making of a compulsory purchase order relating to highway improvements, A, the defendant’s alleged predecessor, executed a conveyance in favour of the first claimant’s predecessor of an area of land in Worcestershire and Warwickshire known as the Winyates Triangle. The land was bounded on two sides by major roads that were, in due course, improved. The third side was bounded by the neglected and little-used Beoley Lane (the lane), which belonged to A at the time of the conveyance and continued to deteriorate over the years that followed. On learning that the first claimant intended to develop the triangle as a housing project, requiring access via the lane, the defendant claimed that it owned the lane because it had not been included in the 1971 conveyance, and that any public right to use it was limited to use as a bridleway*. The first claimant disputed both assertions and sought declarations accordingly. The second claimant council supported the first claimant’s contention that the lane was a public carriageway. At the trial of the action, neither party could point to any part of the 1971 conveyance or the relevant plans that explicitly supported their respective contentions. The case accordingly turned on evidence of physical character and historical use of the lane and what presumptions, if any, were to be applied. Held: (1) The lane belonged to the first claimant; and (2) it had, in any event, been dedicated for use as a public carriageway. 1. Both sides accepted that the lane was a highway. Although the claimants could not rely directly upon the so-called “highway presumption” (applicable where the vendor owned property on one side only), logic required a similar rule of convenience to be applied in a case where the vendor owned the entire highway and retained no land on the other side: see the observations of Romer J in Re White’s Charities [1898] 1 Ch 659 at p666. On the evidence before the court, the defendant had failed to discharge the burden of showing that the land had not passed under the 1971 conveyance: Berridge v Ward (1861) 10 CB (NS) 400, Micklethwait v Newlay Bridge Co (1886) LR 33 ChD 133, Pryor v Petre [1894] 2 Ch 11 and Pardoe v Pennington (1996) 75 P&CR 264 considered. 2. If the lane had not otherwise been included in the conveyance, the first claimant could not have relied upon section 62 of the Law of Property Act 1925, where the expressions “enjoyed with” and “appurtenant to” should be read as referring to incorporeal hereditaments, such as easements, as distinct from other physical land not mentioned in the conveyance: Gregg v Richards [1926] Ch 521; and Methuen-Campbell v Walters [1978] 2 EGLR 58 considered. On the historical and expert opinion evidence considered by the court, the claimants had established, on the balance of probabilities, that the lane had been used, at all material times, by the public as a carriageway, thus allowing for the inference of a corresponding dedication and acceptance. *Editor’s note: The defendant’s “ransom” objective was acknowledged. Kim Lewison QC and Jonathan Karas (instructed by DLA, of Birmingham) appeared for the claimants; John Randall QC and Conrad Rumney (instructed by the Wood Glaister Partnership, of Birmingham) appeared for the defendant. Alan Cooklin, barrister