[2025] EWHC 2899 (Ch)

The Facts

The Judge set out a factual chronology of the background to the issues which he had to decide in the Judgment, at [1] to [15] and [20] to [22]. It is also necessary to set out briefly the background to the claim for trespass and the counterclaim for interference with the right of way because they are also relevant to this Appeal:

“1.

The claimant, AJP Homes Ltd, was at the times material to this claim, the registered owner of 106 Station Parade, Harrogate. I shall refer to it hereafter as “106”. It is a large, residential property which, before it was acquired by the claimant on 30 June 2021, had been converted into 3 flats. That is the format in which it remains.

2.

To the west and rear of 106 lies 108 Station Parade. 106 and 108 are separated by a small alley. 108 is owned by the first defendant, Tate Estates (Lambert House) Ltd to whom it was transferred on 18 October 2018.

3.

108 is accessed by a minor private road called Back York Place. That runs down the southern elevation of 106 and 108. Back York Place is, and was at the material time, owned up to the centre line by 106. Included within 106’s ownership is a parking area which runs along the southern elevation of 106. The alley to which I refer comes off Back York Place at 90 degrees so that the eastern elevation of 108 and the western elevation of 106 abut the alley. The majority of the width of the alley in so far as the alley abuts 108 and 106 is also owned by 106. I have attached to this judgment as Appendix 1 a plan which, amongst other things, gives a pictorial representation of the position on the ground.

4.

108 has rights of way over Back York Place and the alley and also a right to park in part of the parking area I have referred to. Those were granted by a transfer of 29 November 2016 (the 2016 Transfer), the terms of which are central to this case. The rights of way are over an area of land coloured green on a plan attached to the 2016 Transfer. That plan is the one reproduced in Appendix 1. The parking area is roughly, but not quite, rectangular and is within the green land and is delineated by edging coloured pink.

5.

At various times relevant to this claim, the area upon which 108 stands has been an office cum depot called Lambert House operated by a sun glasses manufacturer, an empty site (the office/depot having been demolished) and is currently an apartment block containing 12 apartments.¹ The first defendant was the developer in respect of 108 in its current form. When it was Lambert House and was operating as a commercial depot, vehicular access to the interior was achieved via a roller shuttered entrance along the southerly elevation of Lambert House in an area to which the green shading on the 2016 Transfer does not extend.

1 I shall refer to it as Lambert House in its guise as the office/depot but as 108 when I refer to it in its current form. It is right to record that 108 actually has a smaller footprint on the ground than Lambert House had.

6.

The build of 108, at least in the period relevant to this claim, was undertaken by the second defendant, Harris CM Ltd. It does not appear to be in dispute that it did so under a JCT Design and Build contract.² The essence of such a contract is that the builder (contractor) becomes responsible for all aspects of the build and the building site other than those obligations relating to health and safety and workers’ welfare which are non-delegable pursuant to the Construction (Design and Management) Regulations 2015 (CDMR). The second defendant entered into administration in August 2022 and has now been dissolved. These proceedings against it have been stayed and, consequently, it takes no part in this hearing.

2 Surprisingly, the contract is not in the bundle having apparently not been disclosed by the first defendant but the claimant, in advancing its claim for trespass, has not asserted that, at least in the period when it suffered trespass, the contractual relationship between the first and second defendant was not governed by a design and build contract.

7.

By this claim the claimant seeks damages, including negotiating and exemplary damages and injunctive relief for 31 acts of trespass by the second defendant over 106 between 2 July 2021 and 20 October 2021. It asserts that the first claimant is jointly responsible for those acts of trespass because the second defendant was its contractor and was acting at its direction.

8.

In fact, the claimant does not pursue any injunctions at this time but reserves its right to do so at a later date. If it should do so then the first defendant reserves its right to argue that such an application would be an abuse because it should have been pursued at the trial which, as Lewison LJ once memorably remarked is the “opening and closing night of the show”

9.

The first defendant concedes that the second defendant committed 4 of the acts of trespass about which the claimant complains but asserts that they were de minimis -- as were such of the other acts of trespass pleaded in so far as the second defendant is indeed found to be guilty of them.

10.

Many of the disputed acts of trespass relate to a complaint that, during the construction of 108, commercial vehicles stopped on the land belonging to 106 but over which 108 has rights of way to load and unload building materials and, further, materials were stored on 106 when there was no right to do so.

11.

The first defendant does not deny that building materials were unloaded and that wagons stopped on the green land for that purpose but argues that the rights it has over the green land granted by the 2016 Transfer permit it, and those authorised by it, to do so. This is a contention with which the claimant disagrees. The court’s first task therefore is to determine the meaning of the rights contained in that 2016 Transfer.

12.

However, perhaps more fundamentally, the first claimantdefendant asserts (albeit that this was not pleaded in terms in the defence) that, in law, it is not liable for any trespass committed by its independent contractor, the second defendant.

13.

There is one further act alleged by the claimant which it contends is a continuing act of trespass and/or private nuisance. It has, understandably, assumed major importance in this trial. This particular claim comes about by virtue of an amendment made to the Particulars of Claim for which permission was given on 23 February 2023. It was not one of the claimant’s original pleaded allegations.

14.

108 has undercroft parking for the use of the apartment occupiers. The entrance to this parking facility is some way down the alley separating 106 from 108 to which I have referred. As I have said, by reason of the right of way granted by the 2016 Transfer, 108 has vehicular rights of way over a sufficient length of the alley to enable access to the entrance to the undercroft if the right of way is sufficiently extensive so as to permit the authorised users of 108 to use it for that purpose.

15.

The claimant argues that a true construction of the right of way does not permit that interpretation. It argues that the right of way into and over the alley permits nothing more than to use that part of it over which there is a right of way as a vehicular turning point to enable vehicles to reorientate so they can exit onto Station Parade without reversing onto it. This too, of course requires the court to determine the extent of the right of way over the green land granted by the 2016 Transfer. Does it give the dominant tenement (108) the right to use it for access to and egress from the undercroft or not?

16.

There is a counterclaim by the First Defendant for damages for wrongful interference by the claimant with the first defendant’s rights of way and the parking easement. It is not in dispute that between 21 August 2021 and 05 June 2022 the claimant erected Heras fencing which prevented the first defendant and those authorised by it from accessing the green area edged pink. It argues that, as well as the Heras fencing frustrating the right to park, it also made it very difficult and, indeed, sometimes impossible for larger commercial vehicles to make the turn from Back York Place into the alley because the fencing made the angle too acute. This caused significant difficulties in delivering materials to site and those difficulties resulted in the completion of the site being significantly delayed. The major part of the counterclaim is to recover the additional expenses incurred by the first defendant arising from the delay caused by that contended infringement of their rights.

17.

The counterclaim is resisted on the basis that a proper construction of the rights of way and the easement to park does not support such a claim. Essentially it is argued that the right of way over the green land edged pink is limited to a right of way to access that land for parking purposes. It does not permit that area to be used as a route to the alley which avoids the need for an acute turn from Back York Place into the alley. Inevitably this issue also requires the court to construe the extent of the first defendant’s rights by reference to the 2016 Transfer.

18.

However, the claimant argues that, in so far as it is determined on a true construction of the 2016 Transfer, it has infringed the first defendant’s rights then the second defendant with the connivance of the first defendant intended to use those rights in furtherance of an unlawful purpose (i.e. to breach planning controls and CDMR). It is argued that, as a result, the right to damages has been forfeited. Further, the claimant argues that no loss has been sustained by the first defendant by reason of any interference by the claimant with their rights. The claimant argues that any delays were not caused by the claimant’s infraction of the first defendant’s rights but by other factors independent of any alleged interference with those rights.”

“20.

In my judgment, having heard the evidence and submissions those issues upon which determination is now required are:

1.

The meaning and extent of the rights conferred by the 2016 Transfer, in particular;

a.

Whether, pursuant to the 2016 Transfer, the first defendant and those authorised by it are permitted to stop vehicles and/or unload/load them on the area shaded green in the plan appended to the 2016 Transfer.

b.

Whether the 2016 Transfer allows the first defendant and those authorised by it unfettered passage to the entrance to the undercroft at 108

c.

If there is a right to stop, does that right extend to a right to stop at the entrance of the undercroft in order to lift the roller shutter that protects the entrance to it?

d.

Does the right of way over the area coloured green and edged in pink extend to an unrestricted right of way or is it only a right of way appurtenant to the right to park a vehicle?

2.

Whether, in law, the first defendant is liable for any acts of trespass by the second defendant

3.

If so, the extent to which, based on the outcome of the exercise in construing the 2016 Transfer, the second defendant has exceeded the terms of the right of way by their construction operations and has thus committed trespass.

4.

To the extent that the second defendant has trespassed and the first defendant is liable for that, what damages is the claimant entitled to and to what extent should they include negotiating and exemplary damages?

5.

Has the claimant wrongfully interfered with the first defendant’s right of way and its parking easement?

6.

If so, did that interference cause delay in the completion of the development of 108?

7.

If so, the extent to which that should sound in damages

21.

I should record that initially the position of the boundary in the alley between 106 and 108 was in dispute to the extent that the court could have expected to have to decide on precisely where it was. The parties have however agreed on the boundary line in the alley.

22.

I will be corrected if I am wrong but my understanding is that the boundary is contiguous with what would have been the eastern and southern elevations of Lambert House prior to its demolition. It will be remembered that 108 has a smaller footprint than did Lambert House both to the east and the south. It is accepted that the extent of Lambert House to both east and south when it existed is delineated by a pin kerb that now runs along the eastern and southern elevations of 108 and that pin kerb is therefore the boundary.”

“27.

As will be seen by reference to the appendix plan, the area coloured green on Plan 2 runs from Station Parade to the eastern boundary of Lambert House in so far as that was in the ownership at that time of Mrs Cooney and is now in the ownership of the claimant as the owner of 106. It will be noted though that there is excluded from that green area a series of parking spaces that abut the southern wall of the building at 106. It will also be noted that the green land then turns into the alley and runs along what as the eastern elevation of Lambert House.

28.

I have said that the parking spaces abutting 106 were excluded from the green land but not all were. A perusal of the plan at Appendix 1 shows that one such parking area and some land at the angle of the turn from Back York Road into the alley is included in the green land. As well as being part of the land coloured green, that area is also edged in pink and is referred to in clause 2.1 above.”

I adopt the defined terms and abbreviations which the Judge used. In so doing, I bear in mind his comment in footnote 1 to paragraph 5 that although he referred to the building on 108 as “Lambert House” the current building has a smaller footprint than the original depot and office which stood on that property. Mr Horne also pointed out that there was a correction to paragraph 12 of the Judgment which neither counsel had picked up at the time and I have made that correction above.

The 2016 Transfer

By the 2016 Transfer and made between Mary Rose Cooney as the “Seller” (1) and East Coast Developments (Yorkshire) Ltd as the “Buyer” (2) the Seller transferred 108 to the Buyer at a price of £775,000. Two plans were attached to the transfer. The first was the Land Registry plan for title no. NYK 146159 which was defined in clause 1 as “Plan 1” and the second plan was a site plan defined as “Plan 2” and which the Judge annexed at Appendix 1. It bore the following legend in the bottom left hand corner: “108 Station Parade Proposed Site Plan” and was defined in clause 1 as “Plan 2” (and I adopt the same defined terms).

Box 2 of the 2016 Transfer described the Property as “108 Station Parade Harrogate HG1 1HQ comprised in title number NYK146159” and stated that “The Property is shown edged in red on the attached Plan 1”. Clause 1 of the 2016 Transfer defined the “Property” as “the property transferred by this deed and each and every part of it”. Clause 1 also defined the term “Planning Obligation” as “an Agreement under section 106 of the Town and Country Planning Act 1990 made 30 March 2016 between Sophie Cooney (1) The Council of the Borough of Harrogate (2)”. Clauses 2.1, 2.2, 2.3 and 4 of the 2016 Transfer provided as follows:

“2.

The Seller grants to the Buyer for the benefit of the Property:

2.1

the exclusive right for the Buyer and its successors in title and those authorised by it or them to park one domestic vehicle or small van within the area edged pink on Plan 2 and/ or for such other use as authorised by planning, provided that the area edged pink shall not be used for the parking of more than one domestic vehicle or small van SUBJECT to maintaining (including any landscaping on) the area edged pink

2.2

a right of way for the Buyer and its successors in title and those authorised by it or them in common with the Seller and other persons having the same right to pass with or without vehicles over the area shaded green on Plan 2 for all purposes connected with the Property SUBJECT to the person exercising such rights paying a fair proportion according to user of the cost of maintaining repairing renewing or cleansing the same

2.3

a right for the Buyer and its successors in title and those authorised by it or them to construct a road (including pavements, lighting signage and other features) and landscaping on (provided that this shall not permanently materially affect access (including parking) to the other parts of the Adjoining Land) and to install Service Media within the area shaded green on Plan 2 and to remove and/ or reposition such part or parts of the wall bounding the Adjoining Property and Station Parade as may be required in order to comply with the requirements of any planning consent in respect of the initial development of the Property or by the Highway Authority and to enter upon the area shaded green for the purposes of doing so in each case and to inspect maintain repair and renew such road (including pavements, lighting signage and other features), landscaping and Service Media FOR THE AVOIDANCE OF DOUBT all costs incurred under this clause 2.3 shall be the sole responsibility of the Buyer and its successors in title and the Seller and its successors in title shall not be required to contribute to any such costs

PROVIDED THAT the rights are subject to and conditional upon the Buyer and its successors in title:

i)

producing to the Seller all necessary consents from the highways authority or local authority or utility provider as the case may be;

ii)

carrying out all works in a good and workmanlike manner using good quality, materials which are fit for purpose for which they will be used and in accordance with any relevant planning permission

iii)

causing as little disturbance and inconvenience as is reasonably practicable to the Adjoining Land and the owners and occupiers of any neighbouring land and to provide reasonable notice of when works are to be undertaken

iv)

doing as little damage as is reasonably practicable and making good all damage forthwith”

“The Buyer covenants with the Seller so as to bind the Property into whosoever hands it may come and to benefit and protect the Adjoining Land and each and every part of it which either remains unsold after the date of this deed or is transferred with the express benefit of this covenant:

4.1

not to block or allow others to block with vehicles or otherwise the area shown shaded green on Plan 2 other than as permitted by clause 2.1 of this Panel 10

4.2

not to use or allow the use of the Property for any purpose or in any manner which may be a source of nuisance or damage to the Seller provided that the works to be carried out in the Development of the Property shall be deemed not to constitute a nuisance or damage

4.3

to observe and perform the obligations on the part of Sophie Cooney under the Planning Obligation and to compensate Sophie Cooney in full on demand for any liability resulting from any failure to do so”

Plan 2 showed 108 shaded in pink and when I refer to 108 as shown on Plan 2 I will refer to it as the “Pink Land”. The “area shaded in green” referred to in clause 2.2 consists of the part of Back York Place running from Station Parade to the edge of the Pink Land and turning a sharp right angle down the alley towards Robert Street. I will refer to this as the “Green Land” and the part of the alley shaded in green on Plan 2 as the “Alley”. Finally, “the area edged in pink” referred to in clause 1 is shown not only edged in pink but also shaded green on Plan 2 and I will refer to it as the “Pink/Green Land”.

The Planning Obligation referred to in the 2016 Transfer consisted a unilateral deed dated 30 March 2016 made between the Seller (1) and Harrogate Borough Council (the “Council”) (2) in which the Seller undertook to pay £80.90 as a contribution to costs and £6,047.27 for the purposes of creating or upgrading public open space on the grant of planning permission for residential development of 108. The Planning Obligation specifically referred to an application for planning permission which had been submitted on 22 December 2015 under reference no. 6.79.7500.C FUL (the “Planning Application”).

On 12 April 2016 the Council resolved to grant planning permission for the development of 108 subject to certain conditions and on terms that the development should be carried out in accordance with approved amended plans received on 16 March 2016 (the “Planning Permission”). Those approved amended plans included the “As Proposed Site Plan 013155-102 Rev C” dated November 2015 (the “November Plan”). This plan was not included in the Appeal Bundle but I was provided with both hard and soft copies of it and both counsel confirmed that the Judge was taken to it and referred to it in the Judgment.

The significance of the November Plan was that it showed four bollards either across or at the end of the Alley which, as I have stated, runs at right angles from Back York Place to Robert Street. Those bollards were never erected by the Buyer or the Respondent. Indeed, neither the Seller nor her successors in title carried out the development for which the Seller obtained the Planning Permission and a wholly new development was undertaken which included the undercroft, as described by the Judge in the Judgment at [14].