ON APPEAL FROM PLYMOUTH COUNTY COURT
His Honour Judge Cotter QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE PATTEN
| ELLEN MARY ALFORD
|- and -
|ANTHONY PETER BROADRIBB HANNAFORD
LAURINDA SUSAN HANNAFORD
Myriam Stacey (instructed by CKFT) for the Respondents
Hearing date : 21st June 2011
Crown Copyright ©
Lord Justice Patten :
"The Property is sold together with the benefit of a right of way in favour of the Transferee and her successors in title at all times and for all purposes with or without vehicles to pass and repass over and along the track shown coloured Brown on the Plan annexed hereto SUBJECT TO the Transferee paying a fair proportion of the cost of maintaining or repairing the same according to user
EXCEPT AND RESERVING unto the Transferor and his successors in title for the benefit of the Transferors' retained property edged Yellow on the Plan annexed hereto:-
(a) A right of way at all times and for all purposes without or without vehicles and animals to pass and repass over and along the track shown coloured Blue on the Plan annexed hereto SUBJECT TO the Transferor or his successors in title paying a fair proportion of the cost of maintaining and repairing the same according to user"
"that she will erect to the satisfaction of the Transferor a stock-proof post and wire fence at least 4 feet 6 inches in height between the Property and the Transferor's retained Property where such fences do not exist at present and further to install to the satisfaction of the Transferor a galvanised steel gate between the points marked 'A' and 'B' on the Plan annexed hereto WHICH fence and gate shall become the property of the Transferor and his successors in title".
The construction of clause 2 of the 1991 transfer
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man."
The position of the track
"127. I find that what was being referred to within the agreement reached by the parties, by that I mean what they both intended and also what I believe that any reasonable man standing at Proutatown as at 1991 would have immediately appreciated, was a right of way along "the track" parallel to the pinch point and as had long been used by Mr Hitchon, being so sufficiently well established to be shown in the maps of 1964 and 1982.
128. This right of way led up to the area at A-B as referred to within the agreement and had either party wished to exercise their rights they could have done so the next day. This is significant as the grant of an easement must always be construed, as far as possible, in such a way as to render it effective.
129. Accordingly I reject the submission within the skeleton argument served on behalf of the Claimant that
"The meaning that the transfer would convey to a reasonable person, in the circumstances of the parties at the time, is that the route of the right of way extends across the land coloured brown on the transfer plan which includes access to the gate at point X and runs up to the boundary between fields 719 and 703"."
"(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
(4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained."
The 2003 agreement
"Mr Dors When Mary Alford was discussing this with you, she said that if you put the crossover gates in then she could drive animals from the land on the western side of the track, straight across the track, that would avoid the need to drive them down past the farmhouse.
Mrs Venner Yes.
Mr Dors When you put the, discussing the double gates at the top …
Mrs Venner Yes.
Mr Dors … she said to you that if those gates were put in, any animals she's bringing from Dennythorn could be brought down through those gates and run straight up that hedge line, up to the …
Mrs Venner Yes.
Mr Dors … top of the land, so that those animals didn't need to go past the house. So as far as the installation of both the crossover gates and the double gates are concerned, she told you that it would reduce the need for her to go past the house?
Mrs Venner Yes, that was certainly the indication. Why else would, would it be done?
Mr Dors It wouldn't affect her need to go between the two properties, if you were trying to go from Dennythorn to Moortown, for example, or vice versa, would it?
Mrs Venner Well, she, it's only a very, very short diversion to go around the edge of Prowtytown. She'd bought all the land around the edge.
Mr Dors She never said to you "I will not use the track beyond the crossover gate." What she said was that "By installing these gates, I won't need to use it for those purposes."
HHJ Cotter Sorry, which purposes?
Mr Dors For the purposes of getting stock from Dennythorn to the moor or from the land on the western side of the track, across, to the rest of her land.
Mrs Venner That, that wasn't discussed and I just couldn't imagine that she would use that route past the farmhouse. (Inaudible) the land, why didn't she want to use it?
HHJ Cotter Sorry, I am going to deconstruct this through some questions. Mrs Venner, what was said (inaudible) in relation to the use of the track close to the house, if the gates went up? So if the crossover gates went up, what was said about the use of the track below that and by the house, what was the agreement?
Mrs Venner I think it was, I mean, it was only verbal, sadly, but it was along the lines that the track near the house wouldn't need to be used.
HHJ Cotter Was there any differentiation in terms of that use? At any stage in your discussions, negotiations prior to the agreement, was the use of the track ever discussed in terms of the difference between driving …
Mrs Venner No.
HHJ Cotter … vehicles, animals?
Mrs Venner No.
HHJ Cotter The purpose that you had in mind of selling the property, what were you hoping to gain from this? What were you looking to gain out of the agreement that she gave, that she'd use those two gates?
Mrs Venner That it would be more attractive to anybody who, any future people living at Prowtytown.
HHJ Cotter Why?
Mrs Venner Because it's not very nice for anybody living in the farmhouse at Prowtytown to have people, it's an invasion of their privacy, and also any, inevitably, any stock that was brought along that route went right across the paddock.
HHJ Cotter Thank you. Thank you, Mr Dors. Sorry, I wanted to (inaudible).
Mr Dors Can we just conclude on this point then, Mrs Venner, before I move on? You accept that Mrs Alford did tell you that the stock that she was bringing down to Dennythorn, she could take it through the double gates and up to the moor, so she wouldn't need to take that stock past the house.
Mrs Venner Yes.
Mr Dors Do you accept that, that she said that to you? And do you accept that she also said to you that if she had the crossover gates, she could bring stock from those fields straight across the track, without …
Mrs Venner (Inaudible)
Mr Dors … the need to go past …
Mrs Venner Yeah.
Mr Dors … the house. It was not said by her specifically that she would not use the track at all for any purpose south of the crossover gates, she didn't say that, did she?
Mrs Venner No, that was the implication and I couldn't see why she would need to.
Mr Dors You assumed that because you thought from what she'd told you about the installation of the crossover gates and the double gates that she wouldn't need to use it for any other reason.
Mrs Venner No, I thought that was very reasonable.
Mr Dors I think you've already said earlier that you had assumed that Mary Alford wouldn't need to use the track past the farmhouse. It was never explicitly agreed between you that she would give up her legal right of way, it was your assumption.
Mrs Venner Well, that was what I understood from what she was saying, which I thought was very reasonable and …
Mr Dors It was what you understood from what she was saying, but she did not say "I will give up my legal right of way."
Mrs Venner I don't remember, but I'm sure she would never say something like that. (Inaudible) but that was, that was what I understood her to mean.
Mr Dors Did you say to your solicitors that your understanding was that she was not going to use the track at any point ever, for any purpose, south of the gates at Point X? Did you tell your solicitors that that was the understanding?
Mrs Venner Certainly words to that effect, it would have been, yeah. But he probably wouldn't, he might not have necessarily understood the importance of that, I suppose."
"It is also my finding that by the 2003 agreement use was in any event restricted so as [to] exclude vehicles and animals; such constituting the potentially intrusive farming use that concerned Mrs Venner and may concern any prospective purchaser."
"53. Although the submissions make the points set out above it is of course essential that my judgment reflects the agreement that I find was reached rather than what agreement could, or perhaps on one view should have been reached given the matrix of relevant legal rights (including as subsequently determined by the court) or what either party would have wanted to enshrine in an agreement given a free hand and no need to compromise.
54. It is my judgment that the term crossover was and indeed still is easily understood and both parties used the term to reflect the passage of animals across the track. It was also agreed that the new ability to move animals across the track at this point would obviate the need to move them along the track to north or south of the gates. For Mrs Venner this halted damage and returned maters, as regards animal movement, very largely to the right set out in the 1991 agreement.
57. It is my judgment that the agreement actually reached was that animals would not be taken along the track from the crossover gates north to the double gates. This reduced the risk of future damage to the track and inconvenience for Mrs Venner or more specifically a potential purchaser. Further the installation of the new gates also eased the Claimant's difficulties in movement of stock.
58. However, it was not in my judgment the agreement reached that the Claimant's vehicular access as enshrined in the 1991 agreement would cease from the northern boundary down to the crossover gates. I am satisfied that in light of the easier movement of stock, and the agreement in relation to the cessation of faring use, including vehicular use below the crossover gates that neither party envisaged significant vehicular use and this may explain why such use was not excluded. Indeed as the Claimant indicated it is difficult to turn out of or into either of the gates with a tractor. However, whatever the reasoning was I do not believe that the agreement went as far as dealing with the vehicular use. It was in my judgment an agreement that covered only the passage of animals between the two sets of gates.
59. It is my judgment that the 2003 agreement granted to the Claimant the right to access the track at the northern end of the Defendants' track from the double gates for farming use i.e. with vehicles and/or animals."
The form of the order
"There be a declaration that the Claimant and her successors in title are not entitled to bring an action for interference with the right of way referred to in Paragraphs 2-4 above by virtue of the lie of the Defendants' land existing as at the date of this order or the vegetation thereon as recorded in the photographs attached to the reports of the two experts referred to within the judgments, provided that the same is not materially altered or allowed to alter to further impede the said right of way."
"This is an attempt to reconcile the fact that, although the fence and gate A-B now belong to the Defendants, the effect of the judgment is perceived to be that the route of the right of way as it crosses the eastern boundary of the Defendants' land is now fixed at point A-B as acquiesced in by Mrs Venner in 2003. If it was the Claimant's wish to put the gate there, it would be unjust to require the Defendants to improve the land to prevent a claim for impeding the right of way, or indeed allow the Claimant to improve the right of way against the Defendants' wishes, let alone at their cost."
Lord Justice Moore-Bick:
The President of the Family Division: