• PROPERTY

Waterman & Anor vs Boyle & Anor [2009] EWCA Civ 115

(England and Wales Court of Appeal (Civil Division) Decisions

The property in dispute is a Hog Lane Farm. Before 1993, they were known as Hog Lane Farm and were all owned by the appellants, Mr Boyle and Ms Gwilt. They developed Hog Lane Farm and divided it into three dwellings. They retained 1, Hog Lane Farm, but sold on 2 and 3, Hog Lane Farm. The respondents to this appeal, the Watermans, now own 2, Hog Lane Farm. The disputes all arise in connection with the parking of vehicles, often a contentious issue between neighbours. One of the issues is whether in this case the right to park is to be implied from a right of vehicular access.

Naturally, Mr Boyle and Ms Gwilt wished to limit the access and parking rights of 2 and 3, Hog Lane Farm when they sold those properties. Thus, when they sold 2, Hog Farm Lane, the transfer gave 2, Hog Lane Farm a shared right of access and egress with or without vehicles at the north end of the property via part (only) of the entrance drive to 1, and 2, Hog Lane Farm. In addition, the transfer gave 2, Hog Lane Farm the right to park private cars on two designated parking spaces to the left of the front door. The transfer also gave 2, Hog Lane Farm a shared right of access to and egress from, with or without vehicles, that part of the rear of 2, Hog Lane Farm on which a double garage now stands (but not the adjacent concrete hard standing, which was rendered landlocked by the construction of the garage by the original purchaser of 2, Hog Lane Farm). Mr Boyle and Ms Gwilt provided the plans used (for identification purposes only) in the transfers by them of 2 and 3, Hog Lane Farm. Ms Gwilt's employment background was in cartographic and topographical mapping. She said in her witness statement (and this is relevant to the issue about the southern boundary of 2, Hog Farm Lane) that she found it pleasing to the eye to line things up in straight lines.

There is a common misunderstanding that an Englishman's home is his castle in the sense that he can build walls, put up gates and do other acts on his land whenever he chooses, and without regard for his neighbours. In this case, Mr Boyle and Ms Gwilt, in an effort to stop parking on the northern drive, had even engaged a clamping firm and put up warning notices about the risk of clamping (which never in fact occurred). While it is often true that a person can do what he wants on his own land, it is not always so. The law expects neighbours to show some give and take towards each other. The parties to this litigation should keep that point in mind for the future and now draw a line under the past. Parties to other boundary disputes and their advisers should also, at all times, have this point firmly at the forefront of their minds, and seek to resolve their disputes accordingly, and without resort to complex and expensive litigation.

• ENVIRONMENT

Trafalgar Leisure Ltd v R [2009] EWCA Crim 217

England and Wales Court of Appeal (Criminal Division)

On 26 June 2008, in the Crown Court at Newcastle-upon-Tyne before Miss Recorder Davies and a jury, Trafalgar Leisure Limited ("the company") was convicted, on count 2 of an indictment, of failure to control or prevent the escape of waste contrary to sections 34(1)(b) and 34(6) of the Environmental Protection Act 1990 ("the 1990 Act"). On the following day, the company was given a conditional discharge for a period of 12 months. There was no order as to costs. The company was acquitted of unlawfully depositing controlled waste contrary to sections 33(1)(a) and 33(6) of the 1990 Act (count 1). The company appeals against conviction by leave of the single judge.

In our judgment, a jury required to "set the standard" were entitled to further guidance as to how to do it. This was not a negligence case but a criminal charge. On count 2, given the very limited number of previous incidents which might have alerted the company to the desirability of a lock, and the small percentage of commercial premises, including public houses, with locked bins, the prosecution case that the company was guilty of an offence under 1990 Act was thin. Guidance was required as to how to approach the evidence. There was a danger, for example, that, without guidance, the jury would conclude that, since the bin was unlocked when a lock had been requested, it inevitably followed that the company was guilty. Further, in a case of this kind, the jury should at least have been told that they would have to consider whether the company's conduct fell below a proper standard to the extent that it should be judged criminal. The jury were not required to consider general standards for rubbish control in Newcastle-upon-Tyne but whether a particular defendant was guilty of a specified criminal offence. However, we have decided to allow the appeal on other grounds, on which we heard fuller argument, and do not propose to rule on whether the lack of guidance would have been fatal to the conviction. The appeal is allowed and the conviction on count 2 quashed.