Case No: B2/2007/0720 
B2/2007/0720 (C)
Neutral Citation Number: [2008] EWCA Civ 259
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
(HER HONOUR JUDGE HAMILTON QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 26th February 2008

Before:

LORD JUSTICE MAY 
LORD JUSTICE LATHAM 
and 
LORD JUSTICE MOORE-BICK
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Between:

	ETG DEVELOPMENTS LTD	Appellant
	
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NOAH	
Respondent 	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr A Skelly (instructed by Messrs Raja & Co) appeared on behalf of the Appellant.
Mr G Lidington (instructed by Messrs Aldridge & Brownlee) appeared on behalf of the Respondent.

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Judgment
Lord Justice Moore-Bick:

1.	This is an appeal by the defendant to the proceedings, Mr Pierre Noah, against the judgment of HHJ Hamilton QC sitting in the Bromley County Court.  The dispute between the parties arises out of a small housing development carried out by the claimant in Bromley known as 5 Oaks Mews.  The driving force behind the claimant company is one of its directors, Mr Esse Saber.  The piece of land under development was oblong in shape with a curved access road running into the bottom left-hand corner from the adjoining road, as viewed on the plan.  The development itself comprised a number of two-storey houses ranged along one of the longer sides of the land, with one rather larger house situated on Plot 1 which was at the right hand end, opposite to the access road.  The house on Plot 1 was completed at an early stage and was furnished in order to act as a show house.

2.	When the development was finished parking spaces for the occupants of the houses were laid out at the side of the access road itself and in part of the area in front of the houses into which it opened, but the majority of the area in front of the houses stretching along to Plot 1 was laid out as a communal area to which vehicles are said not to have been intended to have access.  That area was partially paved and was interspersed with trees and shrubs.  Provision was made for vehicles to have access over it, but that appears to have been intended for emergency vehicles.  Otherwise the area was intended for pedestrian use only.

3.	Mr Noah became interested in the show house in July 2004 at a time when construction of the other houses was still in progress.  On 19 July he entered into an informal agreement with Mr Saber on behalf of the claimant to purchase the house, complete with furnishings and fittings, for the sum of £349,950.  He paid a deposit to secure the sale.  

4.	In September 2004 Plot 1 was valued by Mr Noah’s mortgage lender at £340,000 and, as a result, Mr Noah attempted to renegotiate the price he had agreed with Mr Saber.  However, Mr Saber would not budge and Mr Noah says that he eventually agreed to pay the price they had originally fixed on in return for the claimant’s agreement to install a permanent staircase to the loft so it could be used as an additional room and to provide him with a second parking space.  

5.	On 14 September the claimant and the defendant Mr Noah exchanged contracts for the sale and purchase of the show house and its contents for the total sum of £349,950, being £340,000 for the house and £9,950 for the contents.  The contract was completed on 6 October 2004 and Mr Noah and his family moved in shortly afterwards.  The transfer of the legal title to No 1, 5 Oaks Mews was made using form TP1.  Under the heading “Rights granted for the benefit of the Property”, there appeared the following clauses:

“13.2.1 A right of way at all times for all reasonable purposes over and along the access roads and by foot only over the footpaths and the communal courtyard and amenity areas provided for that use now comprised in or hereafter during the Perpetuity Period constructed on the land now or formerly included in the title above mentioned.
…

13.2.5 The right to part a single private motor car within the car parking area shown coloured yellow on the plan or on a temporary basis in such other location within the Estate as the Transferor may from time to time allocate.”

6.	On 8 October 2004 the claimant installed some stairs to the loft room of No 1, 5 Oaks Mews.  A dispute subsequently arose as to Mr Noah’s liability to pay for that work, but the judge found him liable to pay for it and the appeal against her decision on that point is no longer pursued.  However, that was not the end of the matter.  When Mr Noah and his family first moved into their house, work was still going on at the end of the development nearer to the access road.  The courtyard area had not been laid out and the occupants of some of the other houses were using it as a parking area and were also using the space outside No 1 as a convenient place to turn their cars.  When the development was finished, however, the claimant had laid out the area in the manner described earlier.  

7.	Between the latter part of 2004 and the early part of 2006 Mr Noah and Mr Saber did a certain amount of business together but as time went on the relationship between them became strained.  Eventually, in May 2006, the claimant brought the present proceedings against Mr Noah to recover a sum of money which was said to be outstanding, mainly in respect of the stairs.  Mr Noah brought a counterclaim seeking specific performance of the agreement he said had been made to provide him with a second parking space,   a declaration that his property enjoyed a vehicular right of way over the access way leading to it and an injunction requiring the claimant to remove the obstructions to that right of way, alternatively damages.

8.	Judge Hamilton rejected those claims.  Much of her judgment is taken up with the dispute about the stairs, but she also found as a matter of fact that there had been no agreement between Mr Noah and Mr Saber for the provision of a second parking space.  She also noted that there had been no conveyance of any of the parking spaces, merely the creation of a right to park in spaces identified for that purpose on land that remained in the claimant’s ownership.  

9.	Mr Noah’s claim for a declaration that his property has the benefit of a vehicular right of way over the area now described as the courtyard is founded squarely on clause 13.2.1 of the form TP1.  The expression “communal courtyard” which one finds in that clause is not defined as such but a plan of the area was annexed and the judge accepted that the proper approach is to look, if necessary, at the surrounding circumstances, including the state of the land at the time of the grant, as an aid to its construction.  She found that at the time the TP1 was executed temporary arrangements were still in place for the use of the area as a turning and parking area; that Mr Noah had not adduced evidence relating to the use of the land at the time of the grant which supported his case; and that in any event she would not exercise her discretion to grant a declaration which might prejudice other residents of 5 Oaks Mews who were not parties to the proceedings.  

10.	The main ground of appeal is that the judge was wrong in failing to take account of the evidence adduced by Mr Noah of the circumstances in existence at the time of the grant and that she was wrong in thinking that the interests of other residents was a proper factor to take into consideration in exercising her discretion.  At the trial, evidence of the state of affairs at the time of the grant was given by Mr Saber and Mr Rawlings, who lived close to the development and acted as an unofficial sales agent for the claimant, and by Mr Noah and his partner, Miss Burton, on his behalf.  Miss Burton, who was subject to a very limited degree of cross-examination at the trial, confirmed that when she and Mr Noah moved in the residents were given temporary parking spaces because the development was not complete and the access road from the local highway had not been completed.  She referred to the fact that other residents were turning their cars outside her front door, an experience which I can well understand she found most disagreeable.  Some months later, however, she said the claimant began laying down the bricks which currently form part of the courtyard and the strip of land described as the access way across it.  That evidence was broadly consistent with the evidence given by Mr Saber and Mr Rawlings.  Mr Noah himself, although he gave evidence, did not deal with that aspect of the matter in any detail.

11.	Mr Noah now wishes to adduce in support of his appeal certain evidence on the conditions pertaining at the time of the grant which was not adduced at the trial.  That consists of a statement of Mr Asif Malik, who was the solicitor acting for him in relation to the conveyancing; some photographs said to have been taken at about the time of the grant; a DVD containing pictures of the courtyard taken fairly recently; and some correspondence between Mr Noah and his mortgage lender.  In my view none of this evidence should be admitted at this stage of the proceedings.  Apart from the DVD it could all have been made available at the hearing below if those acting for Mr Noah had appreciated, as they say they now do, that it was relevant to the issues.  No good reason has been provided for the failure to do so.  To say that no-one realised that the evidence might be of relevance until the judgment had been studied betrays a simple failure to understand properly the issues in the case and the evidence that might be relevant to them.  In any event it is by no means clear in my view that any of this evidence would be likely to have had any significant bearing on the outcome of the trial.  The DVD was produced some time after the event; indeed we have been told that it was produced after the trial itself.  It does not contain evidence that bears directly on the condition of the land at the time of the grant and, in my view, is not helpful to either side.  

12.	The primary task of the court in a case of this kind is to construe the grant itself.  But it is common ground that, in doing so, the court is entitled to take into account not only the language of the grant but also the plan attached to it and evidence by way of background of the condition of the land at the time of the grant and other matters including, in this case, documents submitted for the purposes of obtaining planning permission: see Scott v Martin [1987] 1 WLR 841.  

13.	It is undoubtedly the case that some of the background evidence could be said to support Mr Noah’s position.  At the time of the grant the access road from the street into the development continued without significant interruption across the front of the houses before terminating at what has been described as a ‘hammerhead’ in front of Plot 1 where there was enough room to turn a vehicle.  It is also the case that for some time after Mr Noah and his family moved in other residents did drive along that part of the land up to Plot 1 in order to turn their cars and that cars were parked in the area which has now been described as the courtyard.  

14.	However, there are also important pieces of evidence pointing the other way.  Mr Rawlings, whom the judge accepted as an honest and generally reliable witness, says that he explained to Mr Noah and other potential purchasers whom he showed round that it was the claimant’s intention to create a pedestrianised area in front of most of the houses which would not be generally accessible to cars.  Moreover, at the time of the grant it was reasonably clear that the development was incomplete and that the current arrangements for motor vehicles were only temporary.  In my view, these two matters are of some importance because they help to explain the context in which the grant falls to be construed. 

15.	At the trial Mr Noah made much of the fact that as he said the claimant had failed to comply with the terms of its planning permission.  It is unnecessary for present purposes to decide whether that was the case or not but it does indicate that at some stage Mr Noah took some interest in that aspect of the matter.  Whether he did so at the relevant time or not, however, (and his evidence is that he was not aware of the planning documents) the permission was a public document and the plans submitted in support of the application for permission can therefore be treated as part of the background against which the grant of the right of way is to be construed.

16.	The document prepared for planning purposes shows the eventual layout of the development as a whole, including what is now termed the courtyard, which is shown as an area of garden with footpaths leading to the individual properties and a paved way which is marked as “Access for emergency vehicles into courtyard.”  The plan shows vehicles parked in designated parking spaces, including a vehicle parked in a place where it would obstruct the right of way which Mr Noah now claims to enjoy.  The plan, as a whole, tends to support the conclusion that it was not the claimant’s intention that vehicles should routinely drive into or through the area described as the courtyard, although, in fact, the owner of a garage, Mr Rawlings, situated just outside the boundary of the development, did enjoy such a right of access through the courtyard to his garage.  However, that was not something that was referred to in any of the documents and it is not at all clear that Mr Noah was aware at the time of the grant that Mr Rawlings enjoyed that right. 

17.	Clause 13.2.1 of the conveyance granted Mr Noah a general right of way “along the access roads” and also a right of way by foot only over:

“The communal courtyard and amenity areas…now comprised in or hereafter…constructed on the land.”

The reference to the communal courtyard, which was otherwise not defined, might have been capable of referring to the whole of the space in front of the development as shown on the plan but read in conjunction with the words “now comprised in or hereafter… constructed on the land” must in my view be understood to refer to such part of that area as might at the completion of the whole development be laid out as an area intended primarily for pedestrians.  The plan attached to the conveyance is not as detailed as that submitted for planning permission but it also shows an area in front of the houses marked off in such a way as to indicate that it was separated from the access road, with paths leading from a central path or roadway to the individual houses.  Moreover, on this plan too, cars are shown parked in bays across the end of the access road where they would obstruct the free movement of vehicles into and through the paved area.  

18.	Having regard to all these indications, I have little doubt that the grant, which was worded, at least in part, in prospective terms, was intended to and did grant rights over the land as it might be in its fully developed state, that is, after the construction of the footpaths and the completion of the communal courtyard and amenity areas to which it referred.  Although there clearly is room for a vehicle to pass through the courtyard, it was clearly not intended, in my view, that the courtyard was to be treated as an access road as that term was used in the grant.

19.	For these reasons I am satisfied that Mr Noah did not obtain a right of way through that part of the land otherwise than on foot and that the judge was right for that reason to refuse the declaration and the other relief which he sought.  I would therefore dismiss the appeal.

Lord Justice Latham:  

20.	I agree.

Lord Justice May:  

21.	I also agree that this appeal should be dismissed, for the reasons which Moore‑Bick LJ has given.  The one remaining issue before this court on which Sir Henry Brooke gave permission is whether Mr Noah enjoys a vehicular right of way along what his counterclaim refers to as an access road, marked blue on the plan attached to the defence and counterclaim.  This access road, if it is properly so described, would lead from the hammerhead area outside Plots 12, 13 and 14 at the head of what undoubtedly is an access road, upon which Mr Noah is entitled to park a car on one of three parking spaces marked yellow on the plan attached to the transfer.  

22.	The critical clause of the transfer is clause 13.2.1, on the construction of which the issue depends.  This clause provides that rights granted for the benefit of the property include:

“13.2.1 A right of way at all times for all reasonable purposes over and along the access roads and by foot only over the footpaths and the communal courtyard and amenity areas provided for that use now comprised in or hereafter during the Perpetuity Period constructed on the land now or formerly included in the title above mentioned.”  

The plan attached to the transfer shows two straight lines running from a blocking parked car to a small hammerhead shape directly in front of Mr Noah’s house.  Off these straight lines are shown footpaths leading to other properties.  Photographs show that the ground through which these footpaths go is scarcely flat.  The question of construction is whether the two straight lines represent, within the words of clause 13.2.1, an “access road” or whether this ground is part of what the clause refers to as “the communal courtyard or amenity areas”.  If this is part of the communal courtyard or amenity areas then, by the clear terms of the clause, there is no vehicular right of way over it.

23.	I would accept that extrinsic evidence might in principle be admissible, if the clause were ambiguous, to show the state of the land at the time of the transfer and, perhaps, because the clause has itself a prospective effect.  But I do not in fact consider that any of the extrinsic evidence that is before this court has any great bearing on the issue of construction.  In particular, it seems to me that whatever may be the relationship between the claimants and Mr Rawlings does not really have any bearing on Mr Noah’s right or otherwise to drive a car along this area.  

24.	Mr Skelly has pointed out that the clause itself has “access roads” in the plural and one might be looking to find more than one.  He has also pointed out, as is obvious, that what the plan shows is a pair of straight lines perhaps capable of being an access road.  However, there are, in my judgment, two clear reasons why this grant does not give Mr Noah vehicular right of access over the ground in question.  The first is that the plan shows a car parked blocking this right of access, if access it were.  That seems to me to be inconsistent with Mr Noah having a right to drive his car up to the front of his house.  Secondly and, to my mind, importantly one has to search for what is intended in clause 13.2.1 by the expression “the communal courtyard and amenity areas”.  Once one asks that question and looks at the plan in my view there is only one answer to be provided.  The area between the houses running from Plot 11 through to Plot 3, and then encompassing Mr Noah’s house at Plot One, is not what might usually be thought of as a courtyard, in the sense of an enclosed perhaps paved or cobbled area with buildings on three and possibly four sides of it.  But there is in my judgment no other possibility as to what is the courtyard than the area bounded by the several houses on the topside by Mr Noah’s house towards the bottom, by the dividing line between this area and the allotments on the lower side, and by the line in front of the four cars as they are parked at the larger hammerhead.  That, in my judgment, has to be the communal courtyard and amenity areas combined in one and I am not deflected from that by noting that there are footpaths as Mr Skelly has pointed out within that area.  Footpaths are separately referred to in the clause in question. 

25.	It follows in my judgment that although there are two straight lines leading to a shape in front of Mr Noah’s house those cannot be an access road within the terms of clause 13.2.1.  In my judgment that alone is sufficient to decide this case.  But if perchance it were not, it seems to me that the plan which, on the evidence, had been submitted for planning purposes albeit Mr Noah did not know about it, which is page 274 in the bundle, answers this point conclusively.  It is accepted that this plan is admissible and able to be taken into account by the court.  What this plan shows among other things is a foot access to the area which I have referred to as a courtyard.  It shows what appears to be a brick path leading from the parked car to Mr Noah’s house.  It shows the area overshadowed by representational trees and, importantly, it has a note pointing to the path in question, which says access for emergency vehicles into courtyard.  The fact that that shows that vehicles were in some circumstances to go into the courtyard is neither here nor there.   What it does do is for the purposes of that plan to define what the courtyard is and the courtyard in that plan being defined in exactly the same way as I have thought it should be defined for the purpose of the plan attached to the transfer.  It seems to me that that would, if necessary, be quite conclusive as to whether this was, as in my judgment it is not, an access road but on the contrary part of the communal courtyard and amenity areas.  For these reasons and for those given by Moore-Bick LJ I too would dismiss this appeal.

Order: Appeal dismissed.