We are pleased to announce that we have finally settled our longstanding legal case over access rights over the private road at East Northdown . Only now that matters are no longer ‘sub judice‘ can we set out a record of some the key claims , witness statements, and concluding orders and judgements. I try and do this in an impartial way setting out both sides of the argument in reciprocal witness statements , with 3rd party statements , judgements and decisions . The dispute has been a terrible blight on our lives over three and a half decades , an exhausting and debilitating struggle and a terrible waste of resources, but one that could not be left unresolved .
The Northdown Estate has been in the Friend , Tomlin , Sackett families since records began. The properties along the East Northdown private road have each been granted easements, upon their sale, for use a single private dwelling and an obligation to pay towards the road maintenance costs. I came to run the family farm at East Northdown in the autumn of 1985 at the age of 21 , having freshly graduated from Christ Church , Oxford in agricultural and forest sciences. I took over the business from F.A. Steed t/a Steed and Nicholass Ltd in June 1986 , after 9 months as farm manager . Percy Walter Steed took the tenancy from my grandfather, Cpt.(WWI, Major WWII) James Irvine Hatfeild Friend, MC, JP, OBE in 1937. My father Irvine James Cowley Friend, started his dairy farming business in Staffordshire. Throughout this time , the farm occupier maintained the road , on behalf of the landlord under the terms of their tenancy. My unmarried great aunt , Maude Irvine Friend , JP and scouts commissioner, held a tenancy for life of Lawn cottage , East Northdown House and East Northdown Cottage , from my grandfather , JIHF , which passed to my father IJCF on her death in 1963 as part of JIHF’s estate,( even though he predeceased her) . Maude made no contribution to the maintenance of the road, this was paid by JIHF. The road , and all adjoining properties belonged entirely to James Taddy Friend , JIHF and IJCF in turn, until the sale of Oast Cottage in the 1970’s .
1977 bill to Oast cottage for the road maintenance charges.
2013 Witness statement explaining the road maintenance provisions at East Northdown
The original 1982 sales contract setting out the agreed terms of sale and use of East Northdown House is now finally appended to the deed of grant on the title deeds of East Northdown House , Paddock and Orchard . The property was to be used as a single private dwelling only with no conversion of the outbuildings . A regular road maintenance levy was to be paid annually. My father sold the house to raise funds for death duties on my maternal grandfather, Sir Henry Hinchliffe, ‘s estate at Mucklestone Staffs. My father always intended that one of the family would return to run the farm in due course. I was the one who was interested in horticulture , whereas my brothers are a vet, a dairy farmer , and one sister has a fish farm.
The agreed sale price of £75,000 (£70k house, £5k for the paddock) reflected the reduced value of the property restricted in use to a single private dwelling , rather than potential value of the site for development or commercial uses.
The 1982 transfer includes a protective covenant for East Northdown Cottage, that the use of the blue land , the side access to the garden paddock (and orchard) should only be used for ‘reasonable’ purposes’ -this covenant has always been registered at the land registry.
The value of the property for development, multiple dwellings or commercial uses , would be roughly 4 times the actual value of the property used in accordance with the sales terms and covenants . The 35 year dispute has therefore centred on the enforceability/validity of this covenant. My position has always been that uses beyond or in breach of the terms set out in the agreement – to serve secondary dwellings , converted or additional outbuildings ancillary to secondary dwellings , or use by traffic for additional commercial uses cannot be ‘reasonable’ uses and therefore would be beyond the scope of the easement granted over my roadways. The ‘retained land’ is the blue land and road , in my ownership , East Northdown Cottage and Lawn cottage – the benefit of the covenants passes from the original vendor to the new owners. In 1990 we initiated proceedings to rectify the East Northdown House title to include the full terms of the contract . The root cause of the dispute is the difference between the value of the property used as a single private dwelling and its potential value with unfettered access over the roads for development, commercial uses and multiple dwellings – roughly four fold greater than the agreed sale price with the covenants in place. We have sought to settle the dispute by repeatedly offering a means of access for further development, by a route that would not unduly impact on neighbouring dwellings and could be brought up to necessary highways standards without undue harm to the heritage assets.
A rectification claim was brought by us in 1990 – this is a simple process to align the transfer documents with the agreed contract. However instead of acceptance, this application was opposed by a complex counterclaim, relating in part to claims to title of an orchard, which belonged jointly to my aunts, defamation claims , fraud and other matters. In 1993 I discontinued our rectification claim , due to the spiralling costs (out of all proportion to the value of the orchard etc.), my father’s deteriorating health with Parkinson’s disease , and my lack of information about, and therefore my inability to counter, the matters raised in the counterclaim. I did not know then, that the two claims of part performance and estoppel being threatened against my aunts had already been assessed as having ‘absolutely no merit ‘ for the reasons set out in the Stephens and Scown 1991 letter , nor did I have details of the many other matters being threatened, that were only disclosed at the 11th hour by which time I had already taken the decision to discontinue. In 2010 we were finally forced to concede possessory title of the ‘Orchard’, on the basis of adverse possession (only). We could not contest , that although occupied under a license, no rent had been paid since 1983. The other two claims of full title by part performance and estoppel still had ‘absolutely no merit’ however ! The Orchard is a land locked parcel of woodland, having no means of access other than on foot from the Paddock of East Northdown House, It is protected woodland in a conservation area and subject to a tree preservation order.
The 1990’s counterclaim set the pattern for future relations – any attempt to resolve , ‘rectify’ or negotiate a settlement ,have been met by further claims and allegations. This strategy that did succeed in leading me to climbdown, without claiming costs in 1990-93, and the ‘costs neutral’ settlement of 2013.
The grounds for refusal to pay the road maintenance levy, as set out in the agreement and transfer, and the claim of unfettered access rights over the private road for purposes beyond those express rights in the agreement granted to him, was based in turn on a claim that my father was never the owner of the road, that I did not have due authority , to act as his ‘agent’ to carry out repairs to the road, or from 2003 as his successor in title to the road. On the one hand it was claimed I was not entitled to carry out repairs or have rights of way up the road ,but on the other that I had failed to carry out necessary repairs. This argument looses sight of the fact that the express registered rights East Northdown House enjoys were granted for it , and for all the other properties fronting the lane, by my father and registered on his title , on the basis of my father’s title to the road being accepted by the land registry in 1982 .
Two years after my fathers death the concerted campaign of allegations against me to public agencies to subvert my control of the road was intensified .
I was faced with conflicting allegations that I had no right of access over the road , no right to maintain the road , but liability for my lack of repair to the road ! Even though the main access to my garden and business centre is and was via the main entrance off George Hill Road , Mr. Miles argued that my planning permission for the business centre should be rescinded , as I had no legal right of way up the private road , and that I had misled the council in 1987 , by serving notice on my father , instead of him, as the owner of the road.
I finally brought the road up to full repair in several phases , with the full blessing of the highways authority and the majority of neighbours making a contribution.
Mr. Miles attacks against me initially focused on the ownership and control of the road ,but broadened out to include my use of the road for commercial purposes and then focused on attacks on the development of my garden centre and business centre .
Thanet Dictrict Council investigated all these complaints at length in an in depth review of the 50 or so allegations made. Following the subsequent report of the local authority ombudsman into the investigations, TDC adopted new policies on handling vexatious complainants in January 2009.
Objections against the 1st registration of the road , following my father’s death in 2003 were finally overcome in 2011 and costs awarded to me.
However in the meantime two further threats of proceedings against me were being made.
attempts have been made on many occasions over the years to reach a negotiated settlement to the dispute and come to normal commercial terms to end the dispute by granting access for development of the orchard .
Instead of engagement , such offers have always been responded to by issuing further threats and claims. The 2010/11 claim of nuisance and damages against me was made on issues that had already been subject to the TDC , highways, police and land registry investigations. A defamation letter of claim was also served on me in Oct 2010.
The claim for damages was in large part a ‘re-run’ of the allegations against me investigated by TDC in their 2005-09 planning review .
A claim for multiple rights of way was made over the private road, that if granted, would have gone well beyond those granted in 1982 -being those for reasonable purposes ancillary to the use of the property as a single private dwelling. The additional rights sought would have included rights of way over the ‘blue land’ that breached the covenants benefitting the occupants of East Northdown Cottage.
The perscriptive rights claim over the my road , came before the land registry adjudicator in July 2013, for a scheduled 3 day hearing. The damages claim against me was stayed pending conclusion of the 1st claim. After the site visit a global settlement was reached resolving all issues . The agreed terms were set out in a court order , known as a Tomlin Order. A deed of grant was to be entered into , setting out the scope of the rights of way enjoyed . An indemnity was given for the costs – beyond the original drafting costs of £1,000, for concluding the registration of the deed . My costs of defending the nuisance and perscriptivee rights claims against me were waived , as were all past and future road maintenance contributions on the basis that both sides wanted a lasting end to the dispute such that No further claims over old issues were to be made .
Despite these generous terms, we were unable to complete the deed in 2013 or early 2014. Our chasings letters, seeking to conclude matters, were ignored. Unreasonable letters of objection were made to TDC in 2016 renewing the old pattern of allegations against me in breach of the agreement. I could see we would be back to square 1 unless we pressed ahead with the conclusion of the registration of the Deed in accordance with the 2013 settlement.
Our service of our claim for the court to determine the terms of the Deed of Grant, firstly crossed over with a counter claim for defamation and harassment against me and secondly was further blocked a by an application to ‘strike out’ our claim.
The defamation claim was discontinued and Two days of mediation at the international dispute resolution centre in Fleet street were held in 2018 . The 1st mediation session started with the warning from the mediator that if matters could not be settled , then the further costs of taking it to court would run up to several hundred thousand pounds , as has been the case. I had nothing to gain from the proceeding – other than peace of mind through concluding the dispute , so it appears my neighbour gamboled on the fact that my pockets would not be deep enough to see things through, if he stalled things long enough.
repeated planning applications were made at east Northdown House , possibly relating to the potential division of the property into separate dwellings and apartments , and ending with an application for two new dwellings on the paddock – a clear breach of the agreed terms of the tomlin order and deed of grant .
We made numerous further offers after during and after mediation similar to those of 2010 , but all based on concluding , not amending or abandoning the deed of grant as a first step. No progress could be made and the deed of grant remained unsigned and unregistered .
The strike out application was due to be heard in August 2019 . Mr. Miles’s supporting evidence included a copy of his further draft particulars of claim issued a few days before the hearing . This was largely a repeat of the letters of claims made in 2018, the discontinued 2011 nuisance claim, the 2017 discontinued defamation claim, the 2010 defamation letter of claim, and therefore in breach of the terms of the global settlement . It was again based on the expert opinion of Mr. Miles’ chartered surveyor – Mr. Mitford Slade .
The 2019 letter was in the same general terms as that of his 2009 and 2018 letters . It takes no account of, nor even makes reference to, the maintenance provisions for the road set out in the 1982 transfer , to the the planning review or LAO findings , to the 1st registration of the road and costs award of 2011 , to the limited scope of the access rights set out in the original 1982 contract nor to the subsequent provisions set out in the 2013 Global settlement or Tomlin Order . It holds me responsible for the continuation of the dispute and the consequent blight on property values, not vice versa. Mr. Miles strategy of bringing claims and allegations against me to deter me from my purpose of concluding the dispute seems in part to be due to his success of his counterclaims in 1993 at ‘heading off’ my 1990 rectification claim .
The strike out hearing was held in August 2019 and judgement handed down on 5th November 2019 . The strike out application was dismissed and costs awarded . Even then the other side would not sign the deed . We offered a version under the precise terms set out in the 2013 Tomlin Order , with all the usual supplementary ‘boiler plate’ clauses stripped away.
3rd witness statement of PM Actually 4th as the first ‘3rd witness statement for the August 19 hearing was inadmissible.
at the eleventh hour a further 4th witness statement was submitted well past the deadline , in effect a second strike out application . Mr. Miles was advised to withdraw this application at the opening of the May hearing, as it stood no chance of success and would have caused further delays and expense for all sides .
On 26th May 2020 a final hearing of my 2017 claim to the court to determine the terms of the Deed of Grant was heard – remotely due to the covid 19 restrictions .
Both Judges ended their judgements with the plea that this should be the final end of the dispute . Lets hope that my neighbour will now be content to enjoy his historic and beautiful property as a family home within the constraints against commercial or multiple use placed on its ongoing use by my late father to safeguard this unspoilt historic corner of Thanet..
A final aside is that the 2013 Tomlin order at the centre of this case , takes its name after 1920’s law lord, Lord Tomlin of Ash , whose grandmother Mary was born at East Northdown House, my 3xgreat Aunt . If they are looking down , they can be pleased at playing a part in resolving this dispute and preserving this historic family home for posterity .