The written Draft Judgment was received by me on 3rd July 2003 in the Mrs Fowler v Mr and Mrs Ellis case. Mr and Mrs Fisher were also Defendants but had settled with Mrs Fowler. The Judgment was handed down about 12:25 pm on 16 January at Court 5, Hull Combined Courts. This is when an Order was given.
The Judgment itself can be read from my electronic copy. The Order made designates a plan and only that plan (because of variations in ones at the Land Registry). The plan (with explanations) shown below is different. The remaining defendants who lost pay all costs and £500 damages. They may not themselves or encourage others to trespass over number nine's section of the access track and, to be clear, may not use the northern access track to enter into the Paddock Field.
This here is not a reproduction of the Judgment made by His Honour Judge Peter Heppel QC, the Designated Civil Judge, or his arguments, but is my commentary after reading it. This is given from my perspective and attempts as best as possible to be accurate in matters here raised.
The background is this. Manchester Square has narrow access roads behind the houses to adjacent parking or garage spaces and land. Each part of the tenfoot passing the back of the houses is owned by each adjacent house, though garages, parking spots and land on the eastern side of the north-south access are staggered along. Each part of the tenfoot gives access to other residents only for residential purposes. The only exception has been access to the Laundry House and Laundry Land at the north eastern corner. A Paddock Field lies to the east of the parking spaces and for some time occasionally agricultural access was made into the Paddock Field from the Laundry Land. Once the Paddock Field came into the hands of the Defendants a gate was created at its north western corner and a great deal of traffic of a different nature went in and out. As well as home and work traffic there seemed to be a scrapped car business going on using the buildings and storage units in a partly fenced area forming a compound known as the Orchard. There were trucks, visitors' cars, white vans, trailers attached to various vehicles, scrapped cars, transporting lorries, and more taken in and out. Large numbers of males were passing in and out too, some being effectively an occasional workforce. This was hardly access for Manchester Square residents for residential purposes as stipulated on property deeds.
Now the north-south tenfoot on the eastern side of Manchester Square, lying to the west of the Paddock Field, had been legally blocked off to traffic crossing to the Orchard and Paddock Field area. This was due to a previous court case (although some continued this way) when the defendants tried to get in through the number 11 parking spot just to the south of this house, even before they had use of the Paddock Field but had taken the Orchard. So with the new gateway to the north west the vast majority of traffic went on the northern route running east-west. The vehicles were visible to this house emerging from and going into that northern route and moving on the Paddock Field to the compound known as The Orchard. One of the residents on the east-west access to the north, Mrs Fowler, who suffered excessive use decided to protect her access road property in court. She claimed trespass, limited damages and wanted an injunction to stop it.
As this proceeded two defendants settled for their own foot access only and a reduction of the gateway to up to a metre, which would only come into force if the other defendants lost.
Listed as taking place in The Great Grimsby County Court, Claim No: Sc201212, the case was heard in Sheffield over three days on 11th, 12th and 13th June 2003.
I gave log evidence in support of Mrs Fowler. Another witness described the traffic. Other evidence (including mine) related to the continuous boundary fence that ran north-south at the western edge of the Paddock Field, the changing nature of access from parts of Oxmarsh Lane, and a later east-west fence from the early 1980s at the south end (where access eventually became impossible). One important piece of evidence tackled first was whether the east-west northern boundary of the field had moved south (thus the gate to the Laundry Land now was into the Paddock Field before, justifying a new gate into the Paddock Field). An impressive expert witness for the claimant showed that this had not been the case, using aerial photographs he discovered spanning decades. A witness for the Defendants, perhaps unaware of this strong evidence, came along on the second day and said the boundary had moved. In the Judgment the Judge rejected that argument because errors on the series of plans explained apparent boundary changes, and nothing on the ground, as the photographic witness had shown. The photographic witness also demonstrated lack of access and little vehicle and other passage across the boundary with the Laundry land at various years according to what would be and was and was not visible from the air as seen on photographs.
This latter point was important in weighing up whether there was continuous access over a necessary twenty years to establish a prescriptive right of way. Whilst the Defendants accepted they had passed over Mrs Fowler's land both on foot and in vehicles, they also claimed that Section 2 of the Prescription Act 1832 gave them the right to do this by 20 years' continuous use running up to the start of proceedings (which stopped the clock of unchallenged use). It was the Defendants who had to prove this, not the Claimant. If there had been 20 years continuous use then the defendants argued for coming on to the access road from the nearest most practical spot given that they could no longer go through the Laundry Land. Thus the importance of whether the boundary had moved. It had not and movement was little anyway over the Laundry land boundary.
The arguments were lengthy and complex, but it was simply the principle requirement of the defendants to establish 20 years continuous access which failed.
Mrs Fowler thus won her claim. This means it was established that there is no agricultural right of way into the Paddock Field. The previous court case regarding access from the north south access ensures that there is no right of way at all into the Paddock Field via this constructed gate. It further means that no vehicle can pass from the Laundry Land into and from the Paddock Field because such a vehicle originally from the Laundry land would have to have come either from the north or south of the access roads. Mr and Mrs Fisher have to install a metre wide (maximum) gate according to their settlement. This must remain locked and offer foot access only to themselves. Anything else needs the Claimant's permission.
It failed to get twenty years because the judge found that access began in March 1984. Previous owners showed a patchy and ambiguous access at best, and that the Laundry House was lived in by Mr Dent who acquired the Laundry Land alongside it stretching east later in 1984. He started his more reliably known access then. One of the previous owning brothers came up from Brigg, whose father in the Laundry House might only go over into the Paddock field on foot to look at the horses kept there. Other times these field operating brothers entered from the south.
The route the Defendants relied upon in their argument to gain a prescriptive right had been first through the legal access (according to Manchester Square property deeds) to the Laundry Land and then the unlawful extension of movement into the Paddock Field. That continuation might have been stopped by an action (by Mrs Fowler) anytime then (even though it was then only agricultural vehicles then moved perhaps daily or less by Mr Dent, not causing the intensity of disturbance). Part of the legal argument in the case was whether such an action would ever have been practical. A vehicle could have been driven legally into the Laundry Land and only some time later gone into the field. How could the claimant have made the disctinction? To add to this, a tractor was driven on to the Laundry Land certainly at one point, but it made backward and forward movements occasionally between the Laundry Land and Paddock Field. Yet this was also a side argument, as was whether the field activity benefitted from the Laundry Land. This is where the produce was cut on the field but it gained its value by being stored in the Laundry Land.
Had twenty years been established the issue would have been whether a right of way had been created going through the intervening property of the Laundry Land, whether the right of way could have been passed to eventual legal owners (the Defendants) from a found unlawful occupant, the effect of benefit the Laundry Land gave to the Paddock Field, the amount and type of traffic going in and out, and how the claimant legally and practically could have stopped any vehicle going lawfully into the Laundry Land in the previous years only to see (or not to see) perhaps much later that vehicle cross over into the Paddock Field. The Judgment makes the point that had twenty years been established, and had these arguments not been sufficient to prevent entry, even then only a limited agricultural access would have been granted, rather different from the traffic that had been going in and out.
The defence barrister was only asking for this limited access anyway; the claimant's barrister asked one defendant in court when they had changed their mind as regards agricultural access only, as the original written submission was for unfettered access in both directions.
The Judge was satisfied that this agricultural access was not the nature of the traffic that had been going in through the created gateway. That gateway now ceases to allow traffic in except by each time agreement between the Fishers and Mrs Fowler, such traffic obviously being less than a metre wide. Even foot access is prevented for the Ellis Defendants.
Quite separately, but again due to local complaint, the Local Council has initiated an Enforcement action against those active Defendants to restrict activity in the Paddock Field and The Orchard. They have objected, which constitutes an appeal. This has gone to Bristol and could result in hearings.
After the court case but before the judgment was made the Defendants opened up a new southern entrance and exit made between the Paddock Field and Oxmarsh Lane. A house has been purchased linking boundaries and creating a way through. Observation of its use was made at this time. This was not mentioned at the court case itself at all whereas the resultant lack of access from Oxmarsh Lane (that was once available) was part of evidence. Also for some time during and between the court case and the Judgment there was non-agricultural traffic going into and out of the Paddock Field's northern installed gate, although this stopped just after the new access was first observed.
Manchester Square with sections highlighted relevant to the Judgment and my explanation.