Case No: B2/2010/2196
Neutral Citation Number: [2011] EWCA Civ 1099
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
His Honour Judge Cotter QC
9Pl00989 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 7th October 2011
Before :

PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE MOORE-BICK
and
LORD JUSTICE PATTEN

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Between :

	ELLEN MARY ALFORD	Claimant/
Appellant	
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	(1)	ANTHONY PETER BROADRIBB HANNAFORD
(2)	LAURINDA SUSAN HANNAFORD	Defendants/Respondent	

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Emily Windsor (instructed by Clarke Willmott LLP) for the Appellant
Myriam Stacey (instructed by CKFT) for the Respondents

Hearing date : 21st June 2011
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Judgment
Lord Justice Patten : 
Introduction
1.	This is an appeal by the claimant, Mrs Ellen Mary Alford, against an order of His Honour Judge Cotter QC made in the Plymouth County Court on 6th October 2010.  The dispute between the parties concerned a right of way that was granted to Mrs Alford under a transfer dated 29th April 1991 when she purchased some 40.146 acres of agricultural land from Mr John Hitchon.
2.	Mrs Alford is the owner of Moortown Farm at Whitchurch near Tavistock.  To the north of her farm is Proutatown Farm which was then owned by Mr Hitchon.  Her son, Mr Robert Alford (who farms in partnership with his mother), is the owner of Dennithorne Farm which lies further north of Proutatown Farm.  The two farms (Proutatown and Dennithorne) are connected by a track which runs along part of the southern boundary of O.S. 719 and then turns north through the same field and on until it reaches the most northerly boundary of what was then Mr Hitchon’s land.  It then runs on towards Dennithorne Farm.  
3.	Under the 1991 transfer Mrs Alford acquired most of the land surrounding Proutatown Farm.  But Mr Hitchon retained the farmhouse, some outbuildings and about 6.5 acres of land adjacent to and on both sides of the farmhouse.  This area of land forms an island in the middle of the land sold to Mrs Alford but Mr Hitchon also retained ownership of the track running north of the farmhouse.  As a result of this, Mrs Alford acquired two blocks of land which lie to the west and east of the farmhouse and the retained land but which are at no point contiguous.  The closest they come to each other is to the north of the retained land where they abut each side of the track up to the northern boundary of O.S. 711 and 712.
4.	The 1991 transfer granted a right of way over the track from the most northern point of Mr Hitchon’s ownership to a point in the eastern boundary of the retained land where it adjoins the land sold to Mrs Alford.  From this point on Mr Hitchon reserved to himself a right of way along the remainder of the track across the sold land and on to Dartmoor.
5.	Clause 2 of the transfer was in these terms:
“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”
6.	By clause 3 of the transfer Mrs Alford covenanted:
“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”.
7.	The two principal disputes between the parties concern the construction of the grant of the right of way contained in clause 2 and whether Mrs Alford is entitled to make use of the track from a gate in field O.S. 703 at a point marked ‘X’ on the agreed plan.  This lies in the north-west corner of that field immediately to the south of where the track coloured brown on the transfer plan begins to turn to the north. 
8.	The point of construction is whether the right of way granted to Mrs Alford includes a right to drive animals along the track or is limited to pedestrian and vehicular use.  The judge held that it was the latter.  The dispute about the right to access the track and therefore the right of way through gate ‘X’ depends in part on whether the right of way is enjoyed over the whole of the area coloured brown on the transfer plan.  This marks a strip which runs immediately adjacent to the field boundary between the retained land and O.S. 703.  On the basis that the retained land subject to the right of way is contiguous with O.S. 703, Mrs Alford claims to be entitled to open up a point of access to the right of way through gate ‘X’.  If, on the other hand (as the judge found) the grant was intended to be limited to the identifiable track which existed and was in use at the date of the grant, this runs some 15 feet to the north of gate ‘X’ and there is therefore an area of land between the two which was retained by Mr Hitchon and over which Mrs Alford has no right of way under clause 2.  In that event, she relies upon the implied grant of an easement from gate ‘X’ up to the track under s.62 of the Law of Property Act 1925. 
9.	There are two other matters raised on the appeal.  The first concerns the effect of an oral agreement made in 2003 between Mrs Alford and Mr Hitchon’s daughter, Mrs Venner.  The judge found that Mrs Alford was allowed to erect some cross-over gates at the northern limit of the section of track which is bounded on both sides by the land sold in 1991.  These gates open across the track so as to allow livestock to pass from the western block of land acquired by Mrs Alford to the block on the eastern side of the track and vice versa.  The judge found that it was a term of this agreement that Mrs Alford would no longer use for farm purposes any part of the track from the cross-over gates south through the retained land.  Farm purposes meant the use of the track with animals and vehicles.  As a consequence, she was now estopped from asserting a right to use the track over the retained land south of the cross-over gates (whether from gate ‘X’ or at all) except as a pedestrian.  His finding is said to be unsupported by the evidence and wrong as a matter of law.
10.	The second matter concerns the form of order made on 6th October 2010.  Mrs Alford contends that, on a proper reading of the judgment, the judge found that she continues to enjoy a right of way along the whole of the track both on foot and with vehicles for non-farming purposes; that one of the declarations is unclear and serves no useful purpose; and that the judge was wrong to grant an injunction restraining her from obstructing the track when there was no finding or evidence of any risk of future interference.
The construction of clause 2 of the 1991 transfer
11.	As the judge himself recognised, transfers like other deeds or contractual documents require to be read in the light of the guidance contained in Lord Hoffmann’s speech in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896.  It is enough to recite the first and second of the general principles set out at page 912H of the report:
“(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.”
12.	The use of background facts to assist in the construction of a contract can be traced back to the speech of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 but in Investors Compensation Scheme and the earlier decision of the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 these established principles were used to support even a departure from the recognised meanings of words and conventional grammar where it is obvious from the contract itself that (to use Lord Hoffmann’s words) something must have gone wrong with the language.  But, absent those special circumstances, the court has to give the language used by the parties its natural meaning consistent with the context in which the words are used.
13.	There is nothing unconventional or obviously wrong about the language of clause 2 of the 1991 transfer.  It employs familiar conveyancing language appropriate to the grant and reservation of a right of way.  It was professionally prepared and would have been submitted to the purchaser (Mrs Alford) for approval in the usual way.  The contract of sale does not survive.  But it is evident from the form of the transfer itself that the draftsman gave consideration to the scope of the rights granted and reserved by spelling out in the reservation (in clause 2(a)) in favour of Mr Hitchon a right of way “with or without vehicles and animals”.  The issue for the judge and now for this court is whether the absence of the reference to “and animals” in the terms of the grant in favour of Mrs Alford should be read in the context of the transfer as a whole as limiting the grant to pedestrian and vehicular use.
14.	The judge held that use of the track with animals was excluded and in my judgment he was right to do so.  Mrs Venner told the judge that her father was a cautious man who chose his words carefully but one does not need that evidence in order to construe clause 2.  The contrast between the wording of the grant and that of the reservation is striking and there is no evidence to suggest that it was an error on the part of the draftsman.  This is not a complicated document and if the discrepancy between the language used had been a mistake it is almost impossible to believe that it would not have been picked up by Mrs Alford’s solicitors or their client.
15.	Ms Windsor referred us to a passage in Gale on Easements (18th edition 2008) at para. 9-18ff which states a number of principles relevant to the construction of grants of this kind.  These are that the instrument must be construed as a whole; that regard must be had to the physical features of the land to which it relates; and that, as a last resort, the grant must be construed against the grantor.  But in this case the application of the first of those principles confirms the judge’s construction of clause 2 and there is nothing which is so ambiguous as to require us to apply the rule of last resort even if (which I doubt) it still retains any intellectual respectability.
16.	One element of the factual matrix which Ms Windsor particularly relies upon is a statutory declaration which Mr Hitchon executed 3 days before the transfer to Mrs Alford.  The purpose of the statutory declaration was to deal with the rights of way which Mr Hitchon enjoyed over the track to the north of his land.  He had no paper title to the track at this point but says in the declaration that he had used it without interruption since 1952 to pass and repass with or without vehicles and with or without animals for all purposes connected with Proutatown Farm.
17.	Ms Windsor makes the point that the prescriptive rights of way to drive animals over the track to the north of the section in Mr Hitchon’s ownership were of no real use to Mrs Alford if she had no corresponding rights over the track to the south.  But, in my view, it does not follow that Mr Hitchon did not intend to restrict those rights through the land which he retained.  The stock-proof fences which Mrs Alford was to erect between the land she was buying and the vendor’s retained land would not assist Mr Hitchon in respect of the length of track over the retained land.  It is easy to envisage (as the judge observed in paragraphs 131 and 139 of his judgment) that he did not wish Mrs Alford to drive stock over that land.  Although he had used the whole of the track both through his farm and beyond both with and without animals during his working life, that does not mean that he wished to confer upon her the same rights during his retirement.
18.	Finally it is said that the words in clause 2 “with or without vehicles” are words of enlargement or clarification rather than words of restriction and that the judge should therefore have construed them as a general grant.  In British Railways Board v Glass [1965] 1 Ch 538 the question was whether the grant of a right to cross a railway “with all manner of cattle” was a grant for all purposes including for use in connection with a caravan site.  The defendant was held to have acquired a prescriptive right of this kind but the Court of Appeal did express the view that the words quoted above were intended to make it clear that the right of way granted was not restricted to a way on foot or with horses but included a driftway for cattle: see at pages 553 and 557.
19.	It is not clear to me how this helps the claimant.  It could be said that the reference in the grant in clause 2 to “with or without vehicles” enlarges the right beyond a right of way on foot.  But in the context of clause 2 read as a whole it is clear that it goes no further than that.  If one applies the reasoning in British Railways Board v Glass to the reservation of a right of way “with or without vehicles and animals” it merely serves to confirm that the right granted to Mrs Alford was a right of way in a lesser form.  
20.	The judge was therefore right in my view to have held that clause 2 did not give Mrs Alford a right to drive animals along the track marked brown on the transfer plan.  
The position of the track
21.	The next issue concerns the location and extent of the track over which the right of way was granted.  As mentioned earlier, the transfer plan shows the track turning through a semi-circle to the east of the farmhouse and then occupying a strip across the southern boundary of field O.S. 719 with the area narrowing in the centre.  As things stand today the track follows the same line south but turns in a semi-circle towards the east (the converse of what is shown on the transfer plan) before running straight along a line about 15 feet to the north of the field boundary.  It then passes through a gate on to Mrs Alford’s land which was intended to be between the points ‘A’ and ‘B’ referred to in clause 3 of the transfer.  The judge found that Mrs Alford had in fact placed the gate in the most inaccessible place on the boundary in order to discourage the owners of the retained land from using the right of way reserved over what is now her land.  There is an established ash tree which makes it impossible to use the gate in any way but on foot and even that is difficult.  But Mrs Venner did not challenge this at the time because of the oral agreement reached in 2003 under which she says that Mrs Alford agreed to give up effective use of the track through the retained land south of the cross-over gates.
22.	Mrs Alford claimed in her evidence that from 1988 she had been a tenant of Mr Hitchon in respect of O.S. 703 and had accessed the track from the field through gate ‘X’.  The judge found her evidence to be unreliable and disbelieved her.  He held that there had never been a tenancy of O.S. 703 and that the most that Mrs Alford had ever enjoyed was a grass keep agreement in respect of some of Mr Hitchon’s land including O.S. Nos. 713, 715, 716, 718 and 719.  This in itself had led to a dispute with Mr Hitchon’s widow in October 2003 when Mrs Alford claimed to have the benefit of an agricultural tenancy of this land and the judge was critical of her attempt to raise the allegation again in these proceedings.  He also held that there was no regular use of gate ‘X’ by Mrs Alford prior to 1991 but that she was allowed to use it only very occasionally in connection with the grass keep and on other odd occasions with the ad hoc consent of Mr Hitchon.  There is no challenge to these findings of fact.
23.	The judge held (which again is not disputed) that the draftsman of the 1991 transfer used an out of date map to refer to what had been agreed.  By then the pinch point in the brown strip marked on the plan had become an overgrown ditch and had not been used as a path or track for several decades.  It was also blocked by the large ash tree.  It was therefore impossible to use what had undoubtedly been an old track along and adjacent to the southern boundary of O.S. no. 719 either on foot or by vehicle.  The judge’s conclusions as to the “track” over which the right of way was intended to pass are set out in paras. 127-129 of his judgment as follows:
“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”.”
24.	The 1964 and the 1982 O.S. maps both show a new track passing to the north of and parallel to the strip coloured brown on the transfer plan and the only significant change since then is that the track now passes to the east of what used to be an old barn before turning towards the gate at ‘A’-‘B’.  Even in the position shown on the 1982 plan it was some distance north of gate ‘X’.  The judge held that, in the light of his finding that the track was not contiguous with the field entrance at gate ‘X’, the transfer could not be construed as giving Mrs Alford a right to access the right of way at that point.  Ms Windsor, I think, accepts that that must follow but she contests the premise on which it is based.  
25.	The judge was, she says, wrong not to have treated the colouring on the plan as paramount.  On his own findings it was physically possible to pass from gate ‘X’ to the original track even though the land coloured brown was overgrown further to the east.  He should therefore have given effect to the plan but recognised that Mrs Alford would have been entitled to deviate on to the new track in order to avoid the areas of the right of way which had become impassable.  
26.	I am not persuaded by this.  The judge was entitled to have regard to the situation on the ground when considering what rights Mr Hitchon intended to grant to Mrs Alford.  It seems to me most unlikely that his intention was to grant her a right of way over land which had been totally impassable for some years and which, as a consequence, had been replaced by a new track running to the north.  These facts clearly formed part of the relevant background against which clause 2 of the transfer fell to be construed.  Clause 2 did not simply grant Mrs Alford a right of way over the area coloured brown on the plan.  The grant was of a right of way over and along the track shown coloured brown on the plan.  By 1991 the track in that location had largely disappeared and was unusable.  The only track leading to point ‘A’-‘B’ was the one to the north of the brown land.  There is therefore an ambiguity in the terms of the grant when considered in the light of the surrounding circumstances.  Where the facts are as stark as they are in the present case and it is clear that an out of date plan was used then the reference to “the track” must be read as one to the only usable track which existed at the time on the ground regardless of the inaccuracies in the plan.  This is the only sensible meaning which the parties, given the relevant factual background, could reasonably have understood the grant to have. 
27.	The consequence of this is that Mrs Alford cannot establish a right of access to the track through gate ‘X’ as a matter of construction of the transfer on the principles discussed in Pettey v Parsons [1914] 2 Ch 653 which I reviewed in Perlman v Rayden [2004] EWHC 2192 (Ch).  To succeed she must be able to establish an implied grant under s.62.  I should add that even if I had taken a different view about the situs of the right of way, I am still unconvinced that she could have established a right of access to the right of way through gate ‘X’.  It is clear from clause 3 of the transfer that the fences and gates which Mrs Alford was to erect would become the property of Mr Hitchon.  The same would seem to follow in respect of existing fences and gates such as gate ‘X’.  If this is right there would still have been a physical barrier between O.S. no. 703 and the right of way which remained in the ownership of the vendor and is inconsistent with Mrs Alford having an unfettered right of access to the land coloured brown.
Section 62
28.	Mrs Alford’s alternative case in respect of access to the track from gate ‘X’ is that there was an implied grant of such a right of way under s.62 of the Law of Property Act 1925.
29.	The grant of a right of way may be implied as an incident of the sale of land either under the principle of non-derogation from grant or from the general words set out in the conveyance or transfer.  Particular applications of the principle of non-derogation can be found in the law about easements of necessity or in the rule in Wheeldon v Burrows (1879) 12 Ch D 31 under which the purchaser of land from a common owner takes the benefit of any quasi-easements over the retained land of the vendor which were continuous and apparent at the date of the sale.  Thesiger LJ described these (at page 49) as meaning all those easements which are necessary to the reasonable enjoyment of the property sold and which have been and are at the time of the grant used by the common owner for the benefit of the land being sold. 
30.	Mrs Alford does not rely on the rule in Wheeldon v Burrows and would have had obvious difficulties in doing so.  Although gate ‘X’ existed prior to 1991, there is no evidence of the degree of use to which it was put by Mr Hitchon nor any indication that such user was for the benefit of O.S. 703 as opposed to Mr Hitchon’s benefit as the owner of the whole farm.  Nor can it be suggested that O.S. 703, when sold to Mrs Alford, could not reasonably be enjoyed absent a right of access through gate ‘X’ and over the retained land.  Mrs Alford could enter the eastern block of her land by driving along the track to point ‘A’-‘B’.
31.	Mrs Alford’s pleaded case is that she acquired a right of way through gate ‘X’ and on to the track (including with animals) because she had, prior to April 1991, been a tenant of O.S. 703 and had, as a tenant of that land, used gate ‘X’ and the track across what is now the retained land to drive livestock up to Dennithorne Farm.
32.	The judge rejected this case on the evidence but Ms Windsor now submits that, even on the basis of the very occasional use of gate ‘X’ in connection with the grass keep which he did find, the judge was wrong to have rejected the s.62 claim.  Her argument is that the key to the operation of the section is enjoyment in fact.  It does not depend upon the legal basis on which the right has been asserted or exercised. 
33.	Section 62 provides that 
“(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.”
34.	Its purpose (like that of s.6 of the Conveyancing Act 1881 which it replaced) was to include in a conveyance of land the general words which, prior to 1881, had to be expressly included in order to confer on the purchaser the benefit of quasi-easements and similar privileges which had previously been exercised over the retained land for the benefit of the land sold.  Those rights are now included in the conveyance or transfer of the property as a term of the grant which incorporates the general words.  Although described as a species of implied grant, the court is simply called upon to identify which privileges, easements, rights and advantages were, in the words of s.62(1), appertaining to the land sold or enjoyed with it at the date of the sale.  Subject to those rights being capable of taking effect as a legal easement then they are included in the conveyance.  The operation of s.62 therefore depends upon proof of the prior exercise of such rights and the most common cases of implied grant under the statute are where the dominant tenement has been let prior to the sale with the benefit of rights over the servient tenement which are then retained as incidents of the freehold of the dominant tenement when it is sold.  This was the case relied upon by Mrs Alford.
35.	This has led to the view that s.62 cannot operate to pass the benefit of quasi-easements to the purchaser unless there has been diversity of occupation prior to the sale.  Where that condition is satisfied (as under a lease) it is possible to identify the rights which the common owner has allowed his tenant to exercise over the retained land.  Assuming that the use is sufficiently substantial to amount to an easement or other right enjoyed with the demised land then it will be caught by the general words incorporated into the conveyance under s.62(1).  “Enjoyed with” does not mean enjoyed as a term of the lease.  It can include a right exercised by the tenant with the permission of the landlord during the currency of the lease: see International Tea Stores Co v Hobbs (1903) 2 Ch 165; Wall v Collins [2007] EWCA Civ 444. 
36.	But where there has not been diversity of occupation prior to the sale, the generally held view is that s.62 can only operate to grant easements over the land retained by the vendor where the exercise of the relevant rights has been continuous and apparent in the sense described in Wheeldon v Burrows.  There are dicta to this effect in Sovmots Investments Ltd v Secretary of State for the Environment [1979] AC 144 at pages 169 and 176 and the existence of continuous and apparent easements or quasi-easements as an exception to the requirement for diversity of occupation has been recognised in the decision of this court in P & S Platt Ltd v Crouch [2003] EWCA Civ 1110 at paragraph 42. 
37.	Ms Windsor seeks to steer a course through this state of the law by contending that the limited rights to use gate ‘X’ conferred on Mrs Alford under the grass keep agreement were sufficient to constitute diversity of occupation coupled with permissive user of the kind recognised in International Tea Stores Co v Hobb.  But there are difficulties in my view about her case on this point.  The grass keep agreement was, on the evidence, no more than a grazing licence which enabled Mrs Alford to place some of her livestock on various fields for limited periods of the year.  A licence of this kind would not have given her exclusive possession of those fields and did not therefore oust Mr Hitchon from possession or even occupation of his land.  The grant of a licence to use land for grazing did not therefore amount to occupation of the land by Mrs Alford sufficient to engage the general words in s.62(1) by creating identifiable rights over the retained land.  It is not therefore necessary to consider Ms Stacey’s argument that the quality of the user of the track and gate ‘X’ in connection with the grass keep was in any event too sporadic and temporary to be capable of being converted into a permanent right of way under s.62(1).
38.	I should, however, say something about her other submission that the operation of s.62 was in any event excluded by a contrary intention in the form of the fencing covenant contained in clause 3 of the transfer.  This required Mrs Alford to erect stock-proof fences to the specified height “where such fences do not exist at present” and to erect a gate at point ‘A’-‘B’ which would become the property of the vendor.  Although the first part of the clause seems to be directed to the fencing of otherwise open boundaries, Ms Stacey submits that the obligation to create a gate at point ‘A’-‘B’ carries with it the implication that there were to be no other points of access on to the sold land from the retained land.  Put this way, the argument really amounts to saying that the grant of an additional right of way on to the sold land via gate ‘X’ is inconsistent with the express grant of the right of way along the track to the sold land at point ‘A’-‘B’.
39.	As a matter of authority, the express grant of a right of way does not necessarily exclude the possibility of a grant under s.62 of a similar easement: see Gregg v Richards (1925) Ch 521.  One needs therefore to identify other factors in the admissible surrounding circumstances or the terms of the grant for it to have that effect.  If the covenant could only be performed by fencing across gate ‘X’ that would, I think, be a clear contrary indication sufficient to displace any reliance on s.62.  But I do not read the words “where such fences do not exist” as including places where there is already a gate.  Had that been the intention I would have expected the draftsman to say so.  The more natural reading of the words is that the covenant applies to boundaries where, at the time of the sale, there was no fencing at all.  On this basis Mrs Alford was not required to fence over gate ‘X’.
40.	But the clear implication from clause 3 is that there were to be secured boundaries at all points and if gate ‘X’ did not require to be fenced over it was, as I read the clause, only to be on the basis that it formed part of such a boundary.  The erection of a garage wall (or a gate) has been held to satisfy an obligation to erect a stock-proof fence (see Shrewsbury v Adam [2005] EWCA Civ 1006) and, by the same process of reasoning, the fencing covenant in this case would be satisfied by the erection of gate ‘X’.  But the clear implication in my view is that it was to be retained as part of a fence with the only opening on to the land sold to Mrs Alford being the gate at point ‘A’-‘B’.  The transfer did therefore express a contrary intention sufficient to exclude the grant of a right of way through gate ‘X’ under s.62 or, for that matter, under the rule in Wheeldon v Burrows. 
The 2003 agreement
41.	The defendants alleged that after Mr Hitchon’s death in May 2003 Mrs Venner, on behalf of her mother, approached Mrs Alford with a view to ensuring that the fencing covenants contained in the 1991 transfer had been complied with.  This led to an agreement under which Mrs Alford was permitted to erect the cross-over gates so as to allow livestock to be moved across the track and some double gates in the far north-western corner of O.S. 733 to provide vehicular access to the track at that point.  In return, she is alleged to have agreed that she would no longer use the track south of the cross-over gates.  The defendants did not contend that this amounted to an enforceable agreement.  Their case at trial was that both they and Mrs Alford were estopped from denying its terms and were bound to comply with them.
42.	Mrs Alford did not deny that she had agreed with Mrs Venner that she would install the cross-over gates and the double gates.  But she did deny any agreement by her not to use the track south of the cross-over gates.  Her case was that the cross-over gates were installed to replace a cross-over point that had existed closer to Proutatown Farm and that the purpose of the 2003 agreement was simply to decide where the fencing which Mrs Alford was obliged to erect under the transfer would go and the location of the gates which she could use.  
43.	The judge found that Mrs Alford did agree to give up using the track south of the cross-over gates for farming purposes.  This included use of the track both with animals and vehicles.  But it did not include the use of the track up to the gate at point ‘A’-‘B’ on foot for private use unconnected with Mrs Alford’s farming activities.  It did not therefore amount to an extinguishment or abandonment of the right of way.
44.	These findings are challenged as being against the weight of the evidence.  The defendants, as successors in title, could give no evidence about what was agreed in 2003.  Their case therefore depended upon the recollections of Mrs Venner.  She said in her first witness statement that Mrs Alford suggested that if the cross-over gates were installed she would not use the track south of that point.  In her second witness statement she described the proposal as mutually beneficial.  But she said that she would not have agreed to the installation of the gates if Mrs Alford was to retain the use of the right of way along the track near the house.  The farmhouse was to be sold and she was concerned that, on a sale of the house, purchasers would be discouraged by the existence of the right of way.  
45.	Ms Windsor contends that the thrust of her oral evidence was rather different.  It is said that when cross-examined she said that the installation of the double and the cross-over gates would reduce the need for Mrs Alford to use the right of way past the farmhouse and she agreed when it was later put to her that Mrs Alford had never said that she would not use the track beyond the cross-over gates.  
46.	There is, however, an obvious danger in picking out selected answers in this way and I therefore set out the relevant exchanges below:
“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.”
47.	The judge regarded Mrs Venner as an entirely honest witness who was doing her best to recall what was discussed in 2003.  By contrast, he considered Mrs Alford’s account not to be a true reflection of events.  The judge was obviously entitled to compare the witnesses’ recollections with the purpose of the agreement looked at from both sides and to consider what it is probable that they agreed.  The obvious incentive from Mrs Venner’s point of view in agreeing to the installation of the cross-over gates was that it really removed the need for Mrs Alford to drive animals or vehicles containing animals along the track south of that point.  Stock could be moved from east to west of the track and vice versa without needing to be driven along the track to the gate at point ‘A’-‘B’.
48.	When considered in its entirety there was, in my view, ample material in Mrs Venner’s evidence to justify the judge’s finding that there had been an agreement by Mrs Alford to desist from using the track for farming purposes south of the cross-over gates and that the agreement was not solely concerned with the position of fencing.  Mrs Venner’s acceptance that Mrs Alford did not agree to give up all use of the track was given effect to by the judge’s findings.  The agreement, as found, is also consistent with what one would suppose was Mrs Venner’s objective in seeking the agreement and one which it is likely Mrs Alford would have accepted once she had been given permission to install the double and the cross-over gates. 
49.	One of the grounds of appeal about the form of the order centres on what rights the judge in fact decided that Mrs Alford was left with following the 2003 agreement.  It is said that his findings on what constituted non-farming use included both pedestrian and vehicular use of the right of way up to point ‘A’-‘B’.  That is not how I read his judgment.  In paragraphs 175 and 208 of his judgment he refers farming use as covering use of the track both with vehicles and with animals and then says in paragraph 219 that:
“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.”
50.	In paragraph 222 he refers to Mrs Alford still being able to use the right of way to point ‘A’-‘B’ on foot and it is clear from his later judgment of 23rd August 2010 on the form of the order that he regarded Mrs Alford’s rights as having been limited in this way. 
51.	I would therefore reject the criticisms that the judge’s findings of fact about the 2003 agreement so far as it related to the track south of the cross-over gates were not ones open to him on the evidence.  That leaves, however, the position in relation to the remaining length of track in the defendants’ ownership north of the cross-over gates.  This point was not raised as an issue in the pleadings but it had become an issue during the course of the proceedings when the parties attempted to agree the form of order following the handing down of the judgment after the trial.  
52.	Further submissions were therefore lodged in which the claimant sought a declaration that she was granted under the 2003 agreement the right to use the track north of the cross-over gates for farming purposes.  The judge then gave a further judgment on 23rd August 2010 in which he specifically addressed this issue and made findings on the basis of the evidence which he had already heard.
53.	The strongest argument put to the judge in favour of Mrs Alford being able to drive stock down the track as far as the cross-over gates was that, without that right, she would be unable to drive stock between Dennithorne Farm and her land at Proutatown.  The animals would have to be transported as far as the cross-over gates.  Counsel for Mrs Alford suggested to the judge that the purpose of the 2003 agreement was to deal with farming use of the right of way south of the cross-over gates.  It was never part of the agreement or understanding between the claimant and Mrs Venner that she would not be entitled to use the track to the north of the cross-over gates for farming purposes.   
54.	The judge dealt at some length with the issue of what was agreed about this: 
“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.”
55.	Ms Windsor submits that there was no satisfactory support in Mrs Venner’s witness statements or in her oral evidence for a restriction being placed on driving livestock between the double gates and the cross-over gates.  But this argument does not really assist her.  The judge deduced from the evidence that Mrs Venner was willing to allow Mrs Alford to drive stock down from Dennithorne Farm at least as far as the new double gates.  This represented an improvement in her position over the 1991 transfer which, as the judge found, did not include a right to drive animals along any part of the track.  It was no part of Mrs Alford’s case or her evidence that she had asked for any rights to drive stock along the track. Her case was that she already had those rights under the 1991 transfer (or perhaps under an implied grant) and that the 2003 agreement was about fencing.  It must follow that even if Mrs Venner’s evidence did not support a variation of Mrs Alford’s right to use the track north of the cross-over gates then the consequence is that Mrs Alford had no right to drive animals along that section of the track.  The judge’s finding that she was permitted to drive stock down as far as the double gates was therefore a concession against which there is no cross-appeal.  But there is no material on which the judge could possibly have based a finding that Mrs Alford was permitted under the agreement to drive her animals as far south as the cross-over gates.  The judgment on this point must therefore stand. 
Estoppel
56.	The judge held that both parties were estopped from denying the effects of the 2003 agreement.  It is said that he was wrong to reach this conclusion because the agreement gave rise at most to some form of promissory estoppel which is not of permanent duration but may permit the representor to return to his former position upon reasonable notice to the promisee.
57.	The judge is criticised by Ms Windsor for failing to make clear findings about the nature and effect of any estoppel but the short answer to this is that he was not required to do so.  As he makes clear in his first judgment, both parties conceded that they were estopped from resiling from the terms of the 2003 agreement.  They were expressly asked to confirm that they were willing to be bound by the terms of the agreement as found by the judge.  They therefore asked the judge to resolve their differences as to what had been agreed with Mrs Alford taking the risk that she could lose the use of the right of way over at least part of the track.  The judge accepted those concessions and proceeded to rule only on the dispute about the terms of the agreement.
58.	I think that we should hold the parties to the concessions which they made to the judge.  Mrs Alford should not be permitted to re-open the issue of estoppel simply because she is dissatisfied with the judge’s conclusions about the 2003 agreement.  We are here to review the decision of the judge.  The case was conducted and judgment was given on that basis.  It is not open to Mrs Alford to seek to litigate this issue for the first time on an appeal. 
The form of the order
59.	The final two grounds of appeal concern the form of the order.  The first point taken is that paragraphs 2 and 3 of the order do not contain a declaration making it clear that Mrs Alford does retain the right of way granted by the 1991 transfer south of the cross-over gates to point ‘A’-‘B’ for non-farming purposes. But, as already explained, the judge’s finding was that under the 2003 agreement Mrs Alford agreed to limit her use of the track to a way on foot and this is reflected in paragraph 2 of the order.
60.	The other challenge is to paragraphs 5 and 7 of the order.  Paragraph 5 states that:
“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.”
61.	The justification for this paragraph of the order was contained in the defendants’ written submissions to the judge about the form of order.  They said that:
“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.”
62.	The positioning of the gate at ‘A’-‘B’ was, as mentioned earlier, a decision by Mrs Alford designed on the judge’s findings to make the gate all but unusable except on foot due to the nature of the terrain and the presence of the ash tree.  The defendants’ concern (whilst not seeking to challenge the position of the gate) was that they should not become involved in future disputes or incur further liabilities which would have been avoided had the gate been positioned in line with the existing track further to the north. 
63.	The judge made the declaration with these considerations in mind having invited submissions from the claimant about the form of the order.  It is perhaps worth noting that in his original notes on closing in July 2010, counsel for Mrs Alford indicated that paragraph 5 was agreed and that it was only later that it came to be challenged. 
64.	I think the judge was entitled to make this order with a view to preventing future unnecessary disputes between the parties.  The substance of the order is consistent with his findings about the situs of the right of way and, in my view, there are no grounds for interfering with his order.
65.	The other dispute is about paragraph 7 of the order.  This is an injunction prohibiting the claimant from obstructing the track.  Ms Windsor says that the judge made no relevant findings to support the grant of an injunction.  But there was an admitted incident in 2008 when the track was blocked by the claimant’s farm machinery, as a result of which the police were called.  It was, in my view, within the discretion of the judge to have included the injunction in his order.
Conclusion
66.	For these reasons, I would dismiss the appeal.
Lord Justice Moore-Bick:
67.	I agree.
The President of the Family Division:
68.	I also agree.