[2023] UKUT 200 (LC)

Westcott was part of Lt Lucas-Shadwell’s estate, and like Lunsford Farm the conveyance was by way of purchase and sub-purchase. There were four parties to it:

The conveyance recited that Lt Lucas-Shadwell held the land to be conveyed in fee simple subject to Mrs Jones’ lease; that Mr Harvey had contracted to buy it and had paid the price but that no conveyance to him had yet been executed; Mrs Jones’ agreement to buy the land; and Mrs Jones’ entitlement under her lease to a right of way along “so much of the private road shown on the plan hereinafter mentioned as is coloured brown.”

That brown land is the application land. It can be seen from figure 1 above that the application land gives access to Westcott, and we can now see from this conveyance that Mrs Jones as tenant of Westcott had an easement over it. The next recital read as follows:

“And whereas the said Thomas Parker Dunlop has recently agreed to purchase the property known as Lunsford Farm of which the said private road forms part subject to existing rights of way

And whereas to enable a merger of the term granted by the said Lease [of Westcott to Mrs Jones] to be effected the said Thomas Parker Dunlop at the request of the Sub-Purchaser has agreed to concur in these presents for the purpose of the grant of the right of way over and upon … the said portion of road…”

The operative clauses then state that the Vendor grants and conveys to Mrs Jones, that the Purchaser conveys and confirms to her, and that “the said Thomas Parker Dunlop as to the right of user and repair of the said private road doth hereby convey and confirm unto the Sub-Purchaser” the land conveyed, being Westcott as seen on the modern plans, and a right of way with or without horses or motors or other vehicles over the brown land, which is the application land. Mrs Jones covenanted with Mr Dunlop that she would keep the application land in good order and condition for her own enjoyment until it was adopted by the local authority.

To summarise: this conveyance was a conveyance of Westcott to the tenant of Westcott, Mrs Jones. Her lease had included a right of way over the application land. Thomas Dunlop was a party to the conveyance, and the conveyance recited that he had contracted to purchase land of which the application land formed part. He joined in the conveyance of Westcott in order to confirm the grant of a right of way over the application land to Mrs Jones, and she covenanted with him (and with nobody else) that she would keep it in repair.

It was argued before the FTT that this conveyance was inadmissible because it was evidence at most of the subjective intentions of the parties to the later conveyance of Lunsford Farm. If it was evidence of subjective intentions I agree that it would be inadmissible, but the judge found that it was relevant and admissible evidence that Thomas Dunlop had contracted to buy Lunsford Farm, of which the application land formed part. Mr Mills said the judge found as a fact that Thomas Dunlop had contracted to buy the application land; the judge’s words are not crystal clearly to that effect but Mr Maynard did not disagree that the judge so found, and I also agree that that was his finding of fact.

Accordingly, I pause here to note that, on the basis of the facts found in the FTT, at the start of 6 June 1918 and at the point during that day when the Westcott conveyance was completed Thomas Dunlop was entitled to call for a conveyance of the application land along with the rest of the Lunsford Farm and Lt Lucas-Shadwell and Mr Harvey were legally obliged to convey it to him. It would therefore be surprising, to say the least, if they did not proceed to do so.