England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL ( CIVIL DIVISION )
ON APPEAL FROM NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE HARRIS QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th November 2011

Lord Justice Kitchin:

1. This is an application for permission to appeal against an order of HHJ Charles Harris QC made on 2 December 2010 following the trial of this action between the appellant, Mr Giles, and the respondent, Mr Tarry, in the Nothampton County Court. Neither side was legally represented. The claim relates to a dispute over a right of way and the use of a small barn described as a hovel. The essential background may, I think, be summarised as follows.
2. Mr Giles has lived at Hall Farm House in Preston Capes in the west of Northamptonshire since 1991. His drive runs from the house down to Charwelton Road. Mr Tarry, a local farmer, has a right of way down the drive and over a yard at its northern end. He uses this right of way to access the hovel at the west side of the yard and to access the fields which he owns on either side of the drive. Unfortunately, as the judge recorded, the parties have fallen out and, indeed, have been in dispute for many years.
3. Mr Tarry bought the hovel and the fields on either side of the drive in 1975. The conveyance included the following covenants:

"Not to use the hovel … on the plan otherwise than for normal agricultural purposes apart from the keeping of animals and poultry, except on a temporary basis

...

Not to enlarge develop or otherwise alter the structure or external appearance of the said hovel without the written consent of the purchasers..."

4. The field which Mr Tarry owns to the east of the drive is known as the paddock. It is contiguous with another field immediately to its east, which was referred to at trial as "the green field". Mr Tarry rents the green field and there is no fence or gate between it and the paddock, nor is there any gate giving direct access to the green field from the highway.
5. Mr Tarry's conveyance provides for access to the paddock by a right of way over Mr Giles's land, subject to the limitation that it is to be used for the benefit of what is defined as "the red land" only, that is to say the paddock and the field on the other (the west) side of the drive.
6. The judge decided a number of issues between the parties. The first concerned a complaint by Mr Giles that Mr Tarry and his family and, in particular, his daughter and granddaughter who assist him with his farm have used the hovel for lambing, for feeding sheep and for treating sheep. So far as the lambing is concerned, Mr Tarry and his family use the barn for the lambing of 43 ewes between April and July each year. Mr Giles contended that this use was in breach of the covenant in the conveyance because it was not temporary. The judge rejected this contention, concluding that the use made of the hovel did not infringe the terms of the conveyance and that Mr Giles was not entitled to prevent what he described as "this existing pattern of usage".
7. The judge then turned to consider a complaint by Mr Giles that Mr Tarry had altered the appearance of the hovel by putting new gates on it. The issue the judge had to decide was whether or not this constituted an alteration of the structure or external appearance of the hovel and therefore a breach of the covenant. He concluded that it did.
8. The judge then addressed the dispute concerning the right of way. As to this, the judge concluded that for Mr Tarry to drive sheep from the farmyard right of way into the paddock for the purpose of accessing the green land to graze was not permissible. He characterised the activity of Mr Tarry designed to avoid this prohibition in the following terms in paragraph 23 of his judgment:

"What is done by the defendant's daughter and granddaughter is to drive the sheep into the paddock and, without going on to the green land, up to and through the gate onto the public highway at Forge Lane. There they pause, more or less briefly, before driving them back into the paddock where they are left free to pass, if they want to, on to the green land. Thus the entry into the paddock immediately preceding the entry into the green land is not via the right of way. Is this practice sufficient to avoid the restriction on the right of way to the benefit of the paddock?"

9. The judge considered that this practice was permissible, because when the sheep were in Forge Lane they were not in the paddock and not on the green land. The judge concluded that Mr Tarry and members of his family were then entitled to take them back into the paddock and to allow or drive them onto the green land, because in doing so no use was being made of the right of way.
10. The judge then turned to consider Mr Tarry's counterclaim. He recorded that Mr Giles had erected a series of stakes in sockets which restricted the width of the drive. This, the judge considered, constituted an interference with Mr Tarry's right of way and that Mr Giles must therefore remove the stakes.
11. The judge also recorded that there was evidence before him that Mr Giles, his tenants and visitors sometimes obstructed Mr Tarry's ability to get to his fields, often by cars and occasionally with dustbins and in other ways and that Mr Tarry was entitled to unobstructed access to the gates and to the hovel at all times.
12. The judge concluded at paragraph [30] of his judgment:

"Accordingly I make the following declaration and/or orders:

(1) the Defendant is entitled to make use of the hovel for not more than 45 sheep to the extent and in the way that he presently does, that is for lambing, treatments, going to feed them or emergency purposes;

(2) that the Defendant is to remove the gates hung at the front of the hovel by 31^st December 2010, but that he is at liberty to make use of hurdles or other fencing in the barn;

(3) that the Defendant may make use of the right of way over the brown land to drive sheep into the paddock and that if the same sheep leave the paddock via the northern end gate and then re-enter and thereafter graze in the green field there is no impermissible use of the right of way;

(4) that the Claimant himself or by members of his household or his tenants or visitors is not to obstruct vehicle or pedestrian access at any time to the hovel, field gates or drive by the parking of vehicles or otherwise;

(5) that the Claimant is to remove the stakes and sockets set into the right of way leading from the yard to the Charlwelton Road by 31^st December 2010 and is not to obstruct the said right of way in any other matter, save that any existing gates may remain so long as they are not locked;

(6) neither party, their servants or agents, tenants or animals is to trespass upon land belonging to the other;

(7) neither party by themselves their servants or agents is to commit any act of nuisance; and finally

(8) I make no order for costs in favour of either side. Happily significant legal expense been avoided and I do not think it would be of any assistance to the future relationship of the parties were I to make such an order."

13. Mr Giles now seeks permission to appeal against the judge's findings and orders on two issues only, namely: 1) did the judge correctly find that the use by Mr Tarry of the right of way was in accordance with his terms? 2) did the judge correctly find that the use by Mr Tarry of the hovel was not in breach of the covenant?
14. As to the first issue, Mr Hill-Smith who has appeared on this application on behalf of Mr Giles, contends that there is no dispute that the right of way provided for it to be used "for the benefit of the red land only" and it follows from this that the right of way may not be used for the benefit of the green land. Mr Hill-Smith continues that, even on the judge's own findings, the use of the right of way by Mr Tarry and his family has been not only for the benefit of the red land, but also for the benefit of the green land and that this is not changed by the fact that Mr Tarry and his family perform a manoeuvre of first driving the sheep on to the highway and then back again. He submits that the judge was in error in seeking to compartmentalise the actions of Mr Tarry in passing through the red land out on to the highway and then back for the purpose of grazing on the paddock and the green land. In truth, all of these steps were taken for the purpose of enabling the sheep to graze on the red and the green land and this is contrary to the express terms of the right of way.
15. Further, Mr Hill-Smith continues, it would not be consistent with the normal use of the right of way to use it for the purpose of taking the sheep out on to the highway via the red land. The right of way is not to be used for obtaining access to another parcel of land and this includes the highway.
16. In my judgment, these are serious arguments and Mr Hill-Smith has persuaded me that Mr Giles has a real prospect of persuading the Court of Appeal that the judge fell into error on this first issue.
17. The second issue concerns the use by Mr Tarry of the hovel. This is a short point and it concerns the meaning of the word "temporary". Mr Hill-Smith submits that the judge fell into error because the regular and systematic use of the hovel for lambing every year cannot be described as temporary, because it is neither transient nor does it meet what may be described as a passing need. I am persuaded -- just -- that on this point too Mr Giles has a real prospect of success.
18. Accordingly, I accede to the application and give permission to appeal on these two issues in respect of which permission is sought.
19. I would, however, add this. It does appear to me to be a most unfortunate continuation of a long running dispute between the parties and were they able to resolve their differences other than by means of litigation that would seem to me to be infinitely preferable.

Order: Application granted