Page v Convoy Investments Limited [2015] EWCA Civ 1061
Page v Convoy Investments Limited [2015] EWCA Civ 1061 was a case in which P had purchased a field fronting a highway. The field was said to extend to a fence marked with “T” marks on the attached plan, but that the fence was retained by C as part of the land retained on sale in 2000. There were no such marks on the plan, however extrinsic evidence showed such a fence in existence at the date of conveyance. The field was accessed by a right of way along the fence over C’s land. The original access point to the field from the right of way was at the point furthest from the highway, accessed from the highway via a fully open gate. P relocated the access point to a point nearest the highway. C replaced the gates with electronic gates. The case therefore considers the question, infrequently encountered in the law reports but often encountered in practice, of what, precisely, a servient owner may do on land subject to a right of way to control access and egrees.
The Court of Appeal decided that (1) The absence of a T mark on the relevant plan could be remedied by construction. It was intended to be the fence, so the fence belonged to C, and P had not been entitled to remove it, and had not been entitled either to open a new access to the field some other point than existed in 2000. In this context, the principles in Ali v Lane [2007] 1 P&CR 26 were considered, though held inapplicable on the facts.
(2) At the time of the conveyance there were no usable gates. The appropriate question involved a comparison between the position with the given gates installed and in operation, and the previous position without gates in place. This followed the approach in West v Sharp (2000) 79 P. & C.R. 327 applied. The comparison was not with some other hypothetical permissible obstruction.
Charles Harpum appeared for the appellant and Philip Sissons for the respondent
The full judgment appears here
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