Shaw v Grouby and another

  Easements – Right of way – Extent of right – Respondent having right of way over driveway on appellants’ land – Whether right limited to point of access existing at date of relevant transfer or permitting access to driveway from any point on respondent’s property abutting driveway – Whether true boundary of respondent’s property running adjacent to driveway – Appeal dismissed The respondent owned a residential property which was one of three developed and sold by the appellants in the late 1990s. The respondent’s property had the benefit of a right of way linking it to the public highway by means of a driveway on the appellants’ land. The right of way, as granted by a 1999 transfer of the respondent’s property to a predecessor in title, was over “so much of the private driveway edged green on the said plan as is necessary to obtain access to the Property subject to the proviso that the Buyers shall contribute a fair and reasonable proportion of the cost of maintaining the same in a good and sufficient state of repair according to the extent of the user of the driveway by the Buyers”. In 2008, the respondent erected a brick wall and, as part of those works, closed off the original point of entry to the driveway from their property and opened up a different one. A dispute arose over the extent of the right of way, with the appellants contending that it was limited to the point of access that had existed at the date of the 1999 transfer and the respondent arguing that the right granted access to every part of the respondent’s property that abutted the driveway. There was a further issue as to whether the true boundary between the two properties lay along the edge of the metalled surface of the driveway or instead followed the line of a wooden fence and some stones which the appellants had put in place. The significance of that issue was that, if the boundary followed the line of the fence and stones, the respondent’s land would be separated from the driveway by a narrow grass verge so that, if the right of way was co-extensive only with the width of the metalled driveway, an alternative point of access could not be used without trespassing over at least part of the appellants’ property. In the court below, the judge determined both issues in favour of the respondent. On the boundary issue, he found that the boundary lay along the edge of the driveway as the only feature in place on the ground at the time of the 1999 transfer. He also rejected the appellants’ contention that a kink in the boundary as shown on the transfer plan, which was not reproduced on the ground, meant that a triangular area of land adjoining the driveway lay within their ownership and was encroached on by the respondent’s brick wall. Held: The appeal was dismissed. (1) As to the boundary issue, the resolution of differences between the transfer or conveyance plan and the position on the ground would depend upon the terms of the transfer, construed in the light of the circumstances surrounding each individual case. In the instant case, the plan did not have to be taken to dominate and to prevail over the position on the ground. The material parts of the plan were hand-drawn rather than based on an Ordnance Survey sheet or other accurate survey and the plan was intended to represent the position at the time of the transfer of the driveway, which, as the judge had found, was the only topographical feature available to the parties to distinguish between the respondent’s property and the land retained by the appellants. Given the scale of the plan and the way in which it was prepared, inaccuracies were bound to exist. It did not matter that the plan was not in terms stated to be for identification purposes only. The surrounding circumstances pointed to the parties having intended that the appellants should retain the surface of the driveway and that the respondent’s property should have a right of way over the driveway as marked in green. The statement that the right was over so much of the driveway as was “necessary” to gain access to the respondent’s property indicated that the boundary of the servient tenement, in the form of the driveway, was also used as the boundary line of the respondent’s property. Accordingly, this was not a case where, by the date of the transfer, a significant boundary feature such as a wall had been erected as a possible indication of the intended position of the boundary. The wooden fence had not existed at the date of the contract and the plan was clearly intended to reserve to the appellants the area of the driveway and nothing else. In those circumstances, the parties could not have intended to include in the land retained by the appellants a triangle of land which never formed part of the driveway and which only existed as part of a surveyor’s measurement due to the inaccuracy of the plan. As a matter of construction, the appellants had intended to transfer the totality of the land up to the edge of the metalled surface of the driveway. There could therefore be no challenge to the judge’s finding as to the position of the boundary: Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894; [1999] PLSCS 115 and Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 applied; Beale v Harvey [2003] EWCA Civ 1883; [2004] 2 P&CR 18; [2004] PLSCS 5 distinguished. (2) As to the extent of the right of way, the question whether a right of way gave access to every part of the dominant tenement was one of construction of the relevant conveyance or transfer: Pettey v Parsons [1914] 2 Ch 653 applied. There were no grounds for construing the right as limited to what was physically necessary to obtain access to the respondent’s property at the date of the grant. Nor was there any justification for treating the word “necessary” as importing a requirement to use the shortest route possible. The primary purpose of the green edging on the plan was to identify the maximum possible extent of the driveway over which the grantee was entitled to exercise a right of way, without, in itself, determining whether and what part of that use was necessary. The green edging indicated the maximum use that could be legally possible under the grant. Meanwhile, the covenant to contribute towards the cost of maintenance and repair depended on which parts of the driveway were actually used. The contribution provisions suggested that the test of what was necessary did not depend on, and was not to be measured by, the position on the ground at the date of the grant; instead, it depended on what was necessary from time to time during the subsistence of the grant. The grant of a right as “necessary to obtain access to the Property”, subject to making a contribution to the costs of upkeep according to the extent of the user of the driveway, accommodated and permitted the use of a different point of access from the property on to the driveway, subject to the contribution to maintenance reflecting whatever user of the driveway that would involve. If the intention had been to limit the right of way to a particular and fixed point of access, one would have expected the transfer to say so. Charles Auld and Dr Kate Harrington (instructed by Morrison & Masters Ltd, of Swindon) appeared for the appellants; Raj Sahonte (instructed by Royds Withy King, of Swindon) appeared for the respondent. Sally Dobson, barrister Click here to read a transcript of Shaw v Grouby and another.