LC-2023-000815 - [2024] UKUT 263 (LC)

Fecha: 01-Ene-2024

Identification of the Sandbach Site

Identification of the Sandbach Site

30.

Although the 1997 Sandbach Plan, as originally entered into, is now missing, and although the copies of the 2000 Sandbach Plans which I have seen leave something to be desired, in terms of their identification of the Sandbach Site, it seems to me that it is possible, with the assistance of the photographs and Mr Powell’s evidence and notwithstanding the absence of colouring on the 2000 Sandbach Plans, to identify the extent of the Sandbach Site, as the same was identified in the 1997 Agreement and the 2000 Supplemental Agreement.

31.

Starting with the Sandbach Landscaping Plan, it shows an area marked as “EXISTING COMPOUND”, together with an adjacent area marked as “PROPOSED COMPOUND EXTENSION”. There are gates shown on the Sandbach Landscaping Plan which appear to be either the gates shown in the photographs, or gates in the same position. My reference to the gates shown on the photographs means (i) the gate in the post and rail fence which provides access from the neighbouring field into the area of land within which is located what I am referring to as the compound (housing the Sandbach Equipment), and (ii) the gate to the compound itself. So far as the post and rail fence is concerned, I also note that the Sandbach Landscaping Plan identifies this fence as “STOCK FENCE TO BE MAINTAINED BY THE FARMER”.

32.

Moving on to the Sandbach Site Plan, it shows an enclosed area which appears to comprise the areas shown on the Sandbach Landscaping Plan as the then existing compound and the proposed compound extension. The Sandbach Site Plan also shows that this enclosed area is located within a larger fenced area. The boundary lines of the enclosed inner area are identified as “PROPOSED NEW 1.8m HIGH DIRICKX FENCING WITH 3 STRANDS BARBED WIRE ON TOP”. The boundary line of the larger area is identified as “EXISTING ELECTRIC STOCK PROOF FENCE TO BE REPLACED WITH WOODEN POST AND FIVE RAIL FENCE”. The double gates to the inner area are identified as “COMPOUND ACCESS GATES min [illegible figure] mm WIDE”. The gate to the larger area is identified as “EXISTING GATE AND FENCING TO BE RETAINED”.

33.

The 1997 Agreement made reference to “the Site” and “the Premises”. I have already set out the definition of the Site, which I am referring to as the Sandbach Site. The Premises were defined in the 1997 Agreement to mean “any land, property or buildings under the control of the Owner of which the Site forms part”. The Premises were further defined in the 2000 Supplemental Agreement to mean “The property known as land at Fields Farm, Congleton Road, Sandbach, Cheshire, as more particularly described in the Existing Agreement.”. The relevant points are (i) that the Premises clearly constituted a larger area than the Sandbach Site, and (ii) that the Sandbach Site lay within the Premises. This is consistent with the evidence of the photographs and the Sandbach Plans which show the fenced compound housing the Sandbach Equipment as contained within the larger area of land in the ownership of APW. This larger area of land is registered under title number CH718616. The registered title plan shows the larger area, edged in red, but also shows, within the red edging, an inner area which roughly corresponds to the fenced compound.

34.

Clause 5.1.8 of the 1997 Agreement imposed the following obligation upon Orange to erect fencing.

“5.1.8
to erect a stock fence to fully enclose the PCN Equipment and to maintain the stock fence in a good and safe state of repair and condition,”

35.

In his witness statement Mr Powell describes a visit he made to the Sandbach Site, when he spoke to Mr Thornhill, who had previously owned “the land”. I take the reference to “the land” to be a reference to the land in which the Sandbach Site is situated. According to Mr Thornhill, the Sandbach Site was originally built around 1992 and had always been fenced off, originally with a lower timber stock fence, which was subsequently upgraded to the current wire (metal mesh) fence topped with barbed wire. Mr Thornhill was apparently not sure when the fence was upgraded. Mr Powell speculates that this was done in or around November 2000; being the date of the 2000 Supplemental Agreement. It seems to me that the information provided by Mr Thornhill is broadly consistent with the evidence of the Sandbach Site Plan, which shows the “PROPOSED NEW 1.8m HIGH DIRICKX FENCING WITH 3 STRANDS BARBED WIRE ON TOP” along the boundary lines of the enclosed inner area. It seems reasonable to assume that the proposed new fencing corresponds to the upgraded wire fence referred to by Mr Thornhill. It also seems reasonable to assume that this upgrading took place around the time of the 2000 Supplemental Agreement, and replaced the stock proof fence erected pursuant to Orange’s obligation under clause 5.1.8 of the 1997 Agreement (quoted above).

36.

I draw the following inferences from (i) the 2000 Sandbach Plans, (ii) the terms of the 1997 Agreement, and (iii) the photographs:

(1)

The enclosed area of compound which can now be seen in the photographs is the same area as the two areas shown on the Sandbach Landscaping Plan as “Existing Compound” and “Proposed Compound Extension”.

(2)

The enclosed area of compound which can now be seen in the photographs is the same area as the area shown on the Sandbach Site Plan which is enclosed by a fence described as proposed new Dirickx fencing of 1.8m height.

(3)

Subject to the qualification in my next sub-paragraph, the enclosed area of compound which can now be seen in the photographs is the same area as the area identified in the 1997 Agreement and the 2000 Supplemental Agreement as “the Site”; that is to say what I am referring to as the Sandbach Site.

(4)

The area of the Sandbach Site was increased by the 2000 Supplemental Agreement. I say this because (i) there are the references to “EXISTING COMPOUND” and “PROPOSED COMPOUND EXTENSION” on the Sandbach Landscaping Plan, (ii) these two areas coincide with the Sandbach Site, as it now appears in the photographs, (iii) the 2000 Supplemental Agreement substituted new plans, namely the 2000 Sandbach Plans, which were not necessarily required if the Sandbach Site was not being enlarged, and (iv) the tariff payable under the 1997 Agreement was increased, in proportionate terms, by quite a significant amount. It is difficult to be certain that the area of the Sandbach Site was increased by the 2000 Supplemental Agreement, in the absence of express reference to enlargement of the Sandbach Site in the 2000 Supplemental Agreement. In my view there is sufficient evidence to draw the inference that there was an increase in the area of the Sandbach Site, which was effected by the 2000 Supplemental Agreement. I add this point. Assuming that there was such an enlargement of the Sandbach Site, the 1997 Agreement was clearly intended to continue to apply to the Sandbach Site, as enlarged.