REF/2005/1664/1665

 

 

THE ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

 

 

BETWEEN

(1) NABIGANJ INVESTMENT COMPANY LIMITED

and

(2) VOLTA DEVELOPMENTS LIMITED

 

APPLICANTS

 

and

 

(1) SUNVINE LIMITED

and

(2) SUNDEK LIMITED

 

RESPONDENTS

 

 

 

Property Address: Nos 261-265 East India Dock Road London E14 0EG

Land and Buildings on the south side of Follett Street

Sir John Franklin Public House

269 East India Dock Road London E14 0EG

 

Title Numbers: 1. 246646

2. EGL281693

3. 100884

4. LN214167

5. EGL397868

 

 

 

Before: Owen Rhys sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Procession House, 110 New Bridge Street, London EC4V 6JL

On: 9^th and 10^th November 2006

 

 

Applicant Representation: Nicholas Isaac instructed by the Applicants

Respondent Representation: Gary Pryce instructed by Teacher Stern Selby solicitors

 

 

 

 

___________________________________________________________________________­

 

DECISION

___________________________________________________________________________

 

KEYWORDS – Easements – Rights of Parking – Rights of Way – Ancillary Easements – Prescription –Express rights – Application refused

 

Cases referred to:

 

Bulstrode v Lambert [1953] 1 WLR 1064

London and Suburban v Carey (1991) 62 P & CR 480

 

 

 

 

1. This dispute relates to a piece of land adjacent to a disused Public House known as the Sir John Franklin, situated just off the East India Dock Road in Poplar, in the London Borough of Tower Hamlets. The land is currently and has at all material times been used as a car park and occupies the site of 36-40 and part of 42 Follett Street, London E14 0EG. I shall call it “the Servient Land”. The freehold estate is owned by Sunvine Limited (the first Respondent) and is registered at the Land Registry under Title No LN214167, subject to a 25-year Lease which has a separate Title Number, namely EGL397868. The present proprietor of the Lease is a company known as Sundek Limited (the second Respondent). The position taken by both Respondents is identical and nothing turns on the separation of the freehold and leasehold estates.

 

2. The appearance of the Servient Land is shown by a number of photographs included in the Trial Bundle, of which that at page 164 is perhaps the most useful. The photograph is taken from Follett Road looking south. The pub premises are to the left or east. The building forms a rectangle between the Servient Land and St Leonard Street which runs between Follett Street and East India Dock Road. There is a plan of the pub building dating back to 1962 which was prepared for planning application purposes which shows the layout in detail. There is a store room built onto the western side of the building which extends into the car park: this is visible in the photograph referred to, with a large dustbin at its corner. Deliveries of beer and other items were made into this storeroom when the pub operated as such.

 

3. To the south of the Servient Land there are three properties which have a frontage to the East India Dock Road, Nos 261, 263 and 265 (to which I shall refer collectively as “the Dominant Land”). These are situated between the Servient Land and the main road. The ownership of these properties is as follows. Volta Developments Limited “(Volta”) owns No 261 which is registered under Title No 246646. Nabiganj Investment Company Limited (“Nabiganj”) owns Nos 263 and 265, registered as EGL281693 and 100884 respectively. Both companies are Applicants (and I shall refer to them as such), and are associated companies. Mr Nehar Miah Chowdhury (“Mr Chowdhury”) was originally the owner of No 261 but transferred it to Volta. I think that he and members of his family own the companies, and Mr Chowdhury, who gave evidence, manages the properties on behalf of the companies.

 

4. The present appearance of these three properties is shown on the photograph at page 159. They have been virtually re-built by their owners since 1999 – as a comparison with the photograph at page 164 makes clear. They have been converted into flats. There are shop units on the ground floor frontage with the East India Dock Road, as has always been the case. These can be seen on the photograph at page 163. I should add that I had the benefit of a Site View on the day preceding the hearing, in the presence of Mr Chowdhury, the Applicants’ Counsel and the Respondents’ legal representatives.

 

5. I shall say a little about the access arrangement to the rear of Nos 261-5 East India Dock Road. First, No 261. There is a small yard at the rear of the property, which is entered by means of a gap between the western boundary wall (with No 259) and a short stretch of wall on the eastern side. The gap was measured at the site view at approximately 3.2 metres. The gap can be seen on photograph 159, to the right of the stub of wall. This yard was, prior to the Applicants’ renovation of the property, considerably larger, and can be seen on the photograph at page 165 (the original, attached to Mr Panesar’s Statutory Declaration, is much clearer). However, the entrance from the Servient Land seems always to have been the same width. Pedestrian access is obtained from this yard into the adjoining property, No 263. The entrance can be seen at page 161. From 263 it is also possible to enter the rear of No 265. In fact, the flats in Nos 263 and 265 are accessed by common parts within No 265. When No 265 was re-built by Nabiganj, it constructed a passageway alongside the shop unit on East India Dock Road with an entrance from the front. In practice, therefore, it is possible to obtain access to all the flats in Nos 263 and 265 from this front entrance. If the gate (shown on page 161) is open, it is also possible to access the flats at No 261 in this way.

 

6. In addition to the access from the car park into the yard at the rear of No 261, there is a doorway into the curtilage of No 265, clearly visible in the various photographs provided. The area inside the door is currently not used, and seems to be filled with rubbish. In the past the area was roofed, and used as a builders’ merchants.

 

7. This then is the physical appearance of the Servient Land and the properties situated to the south. The dispute arises in this way. When Nabiganj began to develop No 263 – the first of the three properties to be redeveloped – it had difficulties in obtaining access to the rear yard (on No 261) for skip lorries. The dispute is evident from the correspondence commencing with the letter from Mr Chowdhury’s solicitors dated 7^th June 1999 at page 179. I need not describe this dispute in detail: suffice it to say that it became apparent at that stage that the Respondents’ predecessors in title were challenging Mr Chowdhury’s claim that he had a right of vehicular access over the Servient Land to the rear of Nos 261 and 263. Eventually, this led to applications by both Applicants – against both the freehold and leasehold titles – “for prescriptive easements in the nature of a right of way with or without vehicles, a right to park and a right to unload and unload to be registered as appurtenant to their respective registered estates”. In respect of both applications, the Case Summary notes that “The Objector has agreed to the entry of the benefit and burden of rights of way granted in a Transfer dated 16 December 1963 made between (1) The London County Council and (2) Mann Crossman & Paulin Limited” (“the 1963 Transfer”). The applications were made on 18^th March 2005, and the dispute was referred to the Adjudicator under section 73(7) of the Land Registration Act 2002 on 20^th October 2005.

 

8. As will be apparent from the preceding paragraph, it has always been accepted by the Respondents that the Applicants are entitled to the rights of way contained in the 1963 Transfer. Although the Applicants did not have a complete copy of that document when they made their original applications, they did obtain one soon after, but have nevertheless persisted in the application for the registration of prescriptive rights over the Servient Land. There seem to be two reasons for this. First, because the express rights – which I shall refer to in detail – do not include a right to park, which is claimed by the Applicants. Secondly, because the prescriptive rights claimed may extend to the entirety of the Servient Land, whereas the rights under the 1963 Transfer may be limited to a 12-foot wide strip of land. The practical effect of the latter point is to limit the Respondents’ ability to re-develop the former pub and car park, which of course puts the Applicants in a strong bargaining position. This is a perfectly legitimate position for the Applicants to adopt, and I only mention it so as to explain why, it seems to me, the Applicants wish to claim rights which exceed those granted by the 1963 Transfer.

 

9. I shall now consider the terms of the 1963 Transfer, whereby the London County Council sold the Servient Land to the predecessors in title of the Respondents. It contained an exception and reservation in the following terms:

“EXCEPT AND RESERVING to the Council in fee simple and its successors in title the owner or owners for the time being of the lands to the south of the said land the full right and liberty (in common with the company and the persons deriving title under it) from time to time and at all times hereafter and for all purposes to pass and repass with or without vehicles from and to the lands to the south to and from Follett Street over part of the said land such part to be a strip not more than twelve feet in width on so much of the said land as is not built upon”

 

10. The “lands to the south” which have the benefit of the exception and reservation are nowhere defined. However, the land is transferred by reference to a plan, and the plan shows three properties immediately to the south of the Servient Land, which are numbered 261, 263 and 265. Nos 267 and 269 are also marked but these do not directly abut the Servient Land. It appears, therefore, that the Council owned these three properties at the time of the 1963 Transfer, and the right of way was reserved for the benefit of the properties, namely the Dominant Land, which are now in the ownership of the Applicants.

 

11. In the light of the concession by the Respondents with regard to the rights granted by the 1963 Transfer, the position is as follows. There ought to be registered against both the Respondents' titles a note of the burden of the easement, in favour of the Dominant Land. This will be in the terms of the 1963 Transfer, which I have already recited. However, that is insufficient from the Applicants' point of view - they want additional rights to be noted on the title, as set out in the Form AP1: "a right of way with or without vehicles, a right to park and a right to load and unload".

 

12. In order to achieve this outcome, they must show at least 20 years' user, as of right, of the activity in question, so as to qualify for a prescriptive right under the Prescription Act 1832 or the doctrine of lost modern grant. Furthermore, they must necessarily establish that the rights they have been enjoying, if any, are different from or exceed the rights which have been expressly granted to them under the 1963 Transfer. This is because they could not, in my judgment, prescribe for rights which they already enjoy pursuant to the 1963 Transfer. The underlying purpose of the doctrine of prescription is to provide a lawful basis for activities which have been enjoyed for a long time. If the activities are already authorised by an instrument the doctrine of prescription has no place. Alternatively, prescription is defeated by consent: the user is not “as of right”. It follows, I think, that I must first analyse the nature and extent of the express rights before considering whether the Applicants have acquired any additional rights.

 

13. The terms of the 1963 Transfer are clear. The grant is of a full vehicular right of way "over … a strip not more than twelve feet in width on so much of the said land as is not built upon". Manifestly, the maximum width of the land subject to the rights may be limited to twelve feet. It seems to me that the servient owner may nominate a strip of land over which the way runs. It is a moot point whether, once nominated, it is possible for the servient owner to re-align the route: I think probably he cannot. However, there is an issue in this case as to whether the servient owner has ever nominated a specific route over which the dominant owner may exercise his rights. There has never been an express nomination, that much is clear. However, the Applicants contend that there has been an implied nomination, based on the fact that a car park was constructed on the servient land, with an entrance denoted by concrete bollards and a dropped kerb. They argue that this denoted the access point into the servient land, and then between the entrance and the dominant land the route followed whatever route was not obstructed by parked vehicles. I am not persuaded by this argument. In my judgment, no definite route was ever demarcated by the servient owner. The fact that the entrance to the car park was marked does not in itself constitute the demarcation of a twelve-foot wide strip of land: it is not as though the land was permanently altered by the construction of a building. The bollards can be removed and a new dropped kerb installed elsewhere. Accordingly, it is still open to the servient owner to nominate the route of the right of way. However, until that nomination, in my view the dominant owner must have been entitled to exercise his rights over the entirety of the car park. In my view, therefore, any exercise of rights within the ambit of the 1963 Transfer was an exercise of those rights, not of any additional or alternative rights.

 

14. What rights are included within the express grant? Obviously, the right to pass and re-pass with or without vehicles. There are may also be certain rights which may be regarded as ancillary to a right of way. In Bulstrode v Lambert [1953] 1 WLR 1064 it was held that a vehicular right of way to commercial premises carried an ancillary right for the dominant owner to stop its vehicles on the way for the purpose of loading and unloading. Without such an ancillary right the purpose of the grant could not be achieved. In that case, however, there was no other place for the loading and unloading to take place. In contrast, in London and Suburban v Carey (1991) 62 P & CR 480 the court held that there was no such ancillary right. This was because the dominant land included a large forecourt where vehicles could load and unload, and there was accordingly no necessity for vehicles to unload on the servient land itself.

 

15. In the present case, there may be a distinction between Nos 161-163 East India Dock Road and No 165. This is because No 161 used to contain a rear yard of reasonable size – before the renovation works - which would have been sufficient to allow vehicles to stop for the purpose of loading and unloading. Furthermore, rear access to No 163 was obtained from this yard. The outline sketch plan of the Dominant Land contained in the 1963 Transfer shows this feature. On the other hand, it appears that No 165 was accessed through a rear door which opened out into the car park: there was no loading yard or bay within the curtilage of the property itself. The scope of the grant made in the 1963 Transfer must be ascertained on the basis of the instrument itself, in the light of the circumstances existing at that time, which includes of course the physical configuration of the site. Having regard to these matters, I conclude that there was no ancillary right to stop vehicles on the access road or car park for the purpose of loading and unloading for the benefit of Nos 161-3: but there was such a right in relation to No 165.

 

16. Additionally, the Applicants claim a right to park on the servient land. A general right to park is capable of being acquired as an easement: however, it would clearly be outside the scope of the 1963 Transfer. In my judgment, therefore, the only rights which might have been acquired by the Applicants by prescription are (a) a general right to park and (b) a right to stop vehicles on the servient land for the purpose of loading and unloading vehicles serving Nos 161-163 East India Dock Road. I must now examine the evidence relied on by the Applicants to support the alleged prescriptive rights..

 

17. In order to establish a prescriptive easement, user as of right for a period of 20 years must be proved. Since this application was made in May 2005, the user must be shown as from 1985 at the latest. The Applicants relied on the evidence of Mr Chowdhury, which he gave orally and in the form of a Witness Statement. They also relied on Statutory Declarations of a Mr Panesar and a Mr Mehmet. Mr Chowdhury’s knowledge of the site did not precede 1998, and therefore the evidence of Mr Panesar and Mr Mehmet are critical to the Applicants’ case. Neither of these witnesses attended the hearing. Therefore, they could not be cross-examined on their statements. Although of course I am bound to have regard to their declarations, I entertain considerable reluctance to make conclusive findings about the nature and extent of rights allegedly acquired by the Dominant Tenement based solely on these untested statements, relating to activities which are said to have taken place up to 30 years ago. I note that Mr Mehmet, who made his statement in 2005, gave his address as 4 East India Dock Road, yet no explanation has been given for his failure to attend the hearing.

 

18. Mr Panesar’s statement does not refer to a general right to park. It refers to parking on the car park for the purposes of loading and unloading goods to No 265 only. As I have already held, this right falls within the express rights granted in 1963 and cannot create any additional right. It does not, of course, support any rights at all in relation to Nos 261-263.

 

19. Mr Mehmet’s statement refers to his purchase of 4 East India Dock Road in 1976. Paragraphs 1 and 2 contain his evidence as to the user of the Servient Land between 1976 and 1988, when his relatives purchased No 261. As I understand the statement, his evidence from paragraph 3 onwards relates to the period after 1988. That being so, the critical evidence – for the period after 1985 – relates to the period before Mr Mehmet’s relatives bought No 261. The sole evidence of user of the Servient Land is that contained in paragraphs 1 and 2. I shall quote the passage in full:

“I purchased 4 East India Dock Road London E14 in March 1976 which was when my family and myself first began to live there. In 1976 Number 261 East India Dock Road was a grocery shop. East India Dock Road had then, as now, very heavy traffic flow along it and therefore when I did my shopping there, I use to take my car and park it in the car park at the rear of 261 and it was impossible to park in East India Dock Road itself, and the great advantage of stopping at 261 East India Dock Road was the fact that there was somewhere to park sufficiently close by and for which parking you did not have to pay.

It was not just myself using the car park at the rear of 261 East India Dock Road, other customers for Number 261 would use it and also I saw the vehicles bring supplies into the shop loading from there and taking the goods into the shop through the rear entrance.”

 

20. Mr Mehmet’s statement does not explain how regularly he used to visit No. 261 in order to shop, or at what time of day. Nor does he explain how he knew that other customers were parking there, and how often they would do so. With regard to the unloading, it is possible that he is referring to the loading and unloading of vehicles within the yard at the rear of No 261 as opposed to within the servient land. Further, without further explanation and clarification, it is impossible to be satisfied that the parking of vehicles falls within the requirement that the user must be “nec clam” – ie done openly. Given that the car park is intended to be used for the parking of cars, it is obvious that the pub landlord might be unaware that any temporary parking by Mr Mehmet during pub opening hours was referable to shopping at No 261. After all, there would be nothing to identify Mr Mehmet’s car as a non-customer of the pub. Accordingly, I do not consider that the limited evidence relied on by the Applicants, in the form of Mr Mehmet’s statement, vague and untested by cross-examination as it is, can possibly satisfy me that the Applicants and their predecessors in title have acquired any easements by prescription over the Servient Land in excess of the express rights they undoubtedly enjoy.

 

21. Since the Applicants are unable to establish user of the required quality from 1985 onwards, it is not necessary for me to analyse Mr Mehmet’s evidence as to the position after 1988. It also follows that Mr Chowdhury’s evidence, relating to the period after 1998, is of no value to the Applicants.

 

22. Accordingly, I reject the application for the establishment of prescriptive rights of way and parking, and shall direct the Chief Land Registrar to cancel the Applicants’ applications. However, in the light of the conditional nature of the Respondent’s objections, I shall also direct that there be noted against the Respondents’ titles – namely the freehold estate under Title No LN214167, and the leasehold estate under Title No EGL397868 – the burden of the easement contained in the 1963 Transfer.

 

23. I did not hear argument as to costs. However, I propose to make an order that the Applicants should pay the Respondents’ costs of the reference, on the basis that costs should follow the event. However, if the Applicants wish to make representations as to the proposed order, they may do so in writing within 14 days of the date of this Decision, serving a copy on the Respondents at the same time. The Respondents will have 7 days to provide a response if they so wish. If no representations are received from the Applicants, the Respondents are directed to lodge a schedule of costs and full breakdown thereof within 28 days of the date of this Decision.

 

 

OWEN RHYS

DEPUTY ADJUDICATOR TO HM LAND REGISTRY

 

18^th DECEMBER 2006