ON APPEAL FROM NORTHAMPTON COUNTY COURT
(HIS HONOUR JUDGE HARRIS QC)
Strand, London, WC2A 2LL
B e f o r e :
|- and -
Tarry and Anr
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No : 020 7404 1400 Fax No : 020 7831 8838
Official Shorthand Writers to the Court )
The Respondent did not appear and was not represented.
Crown Copyright ©
Lord Justice Kitchin:
"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..."
"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?"
"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 31st 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 31st 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."
Order: Application granted