Summary

John Dagnall appeared for three companies (C) who had acquired and developed two adjoining areas of registered land in Poole originally bought from the Canford Estate and subject to Restrictive Covenants. The First Defendant (D1) was a company which had bought the adjoining (originally private) road and an adjoining area (the Blue Land) from the Canford Estate. D1 claimed that there were two areas of ransom strip which were not public highway and which prevented services being laid to C’s land. D1 claimed that private rights of way granted to each of C’s adjoining areas could not be used to construct and use one single entrance over a ransom strip to be used for both of C’s adjoining areas (under the Harris v Flower principle). D1 also sought to enforce the Restrictive Covenants (which had only been released by the Canford Estate after D1 had purchased from it). C claimed adverse possession of the Blue Land through predecessors in title, but D said that even if there had been adverse possession, the resultant title had not been conveyed out of the relevant past dissolved companies. D1 had sought to exercise a self-help remedy (and relied on Site Developments v Barratt [2007] EWHC 415 where C1 had asserted in relation to another development its own control strip and an arguable case for an injunction!) and, following the obtaining of interim injunctions by C, D1 sought permanent injunctions and if not then damages. C claimed damages against D2 (the director/directing mind of D1) and against D3 (the wife of D2 and who had initially been a director of D1). It was common-ground that if C’s land adjoined the public highway (or “private street”) then statutory rights to have services laid existed.

Facts

This is a classic “ransom strip” allegation case (made more ironic by the Site v Barratt decision) involving the issues of (1) what land was originally conveyed (2) adverse possession of any gap and transmission of the relevant title (3) private rights of way, and Harris v Flower (3) public rights of way; together with (4) enforceability of Restrictive Covenants and an example where the usual inconvenient rule of annexation to “each and every part” did not apply (5) a judicial refusal to allow a permanent injunction to landlock a major development (6) (although not specified in the judgment) the availability of statutory rights to lay services where there is an adjoining public/private street and (7) a successful damages claim against a director. The Land Registration Act 2002 has made it more difficult to use the adverse possession mechanism although it will still exist in some cases (such as this one). This case demonstrates the combination of legal, historical, evidential and expert investigation and analysis which has to be used in seeking to maintain or defeat a Ransom/Control Strip//Restrictive Covenant attack on a Development.

Held

(1) the ransom strips did not in the light of the historical material and expert evidence exist as all the relevant land up to the public highway had been conveyed to C’s predecessors in title
(2) in any event C would have adversely possessed (by an earth bund in one case, and by a fence in another) and also the areas of the alleged ransom strips prior to the coming into force of the Land Registration Act 2002 and thus which rights were preserved under the transitional provisions
(3) in any event each of C’s adjoining areas of land had been granted rights of way along the entirety of the original adjoining area and so that Harris v Flower would not have applied
(4) in any event, the public highway (a) as a result of dedication at common-law and (b) as a result of statutory adoption under the Private Street Works code in the Highways Act 1980 adjoined whatever had originally been conveyed to C’s predecessors by the Canford Estate
(5) as a result there were accepted public rights to lay services, although a lmited private right (based on the difference between a “sewer” and a “drain”) also existed
(6) the Restrictive Covenants were only enforceable by someone who owned what could properly be called “the Canford Estate” and there had been no “each and every part” annexation, and so D1 could not enforce them. As a result of this, the Court did not pronounce on C’s argument that none of D1’s land could be reasonably benefited by the Restrictive Covenants
(7) C’s predecessors had adversely possession the Blue Land prior to the coming into force of the Land Registration Act 2002 and thus which rights were preserved under the transitional provisions. While the adverse possession title had not passed to C by implication under section 62 of the Law of Property Act 1925, it had by informal handing-over
(8) C were entitled to certain damages for trespass against D1 and against D2 (as the director of D1’s torts) but not against D3 (and that her merely being a director and authorising D2 to run the company on her behalf would not render her a tortfeasor for his actions)
(9) If D1 had been successful then injunctions would have been refused on grounds of oppression, and some form of damages awarded.