ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE FIELD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ETHERTON
LORD JUSTICE PATTEN
| Maioriello & Ors
|- and -
|Ashdale Land and Property Company Limited
Ms Emily Windsor (instructed by Charles Russell) for the Respondent
Hearing dates : 17th November 2011
Crown Copyright ©
Lord Justice Etherton :
"a right of way in common with the Vendor and all other persons authorised by it who have or may have a like right at all times and in connection with the use of the property hereby transferred for agricultural purposes only with or without vehicles farm machinery and animals over and along [the access road] "
The trial and the judgment
" The usual remedy of injunctive relief had been tried and found to be seriously wanting because the court's orders had been repeatedly ignored and it was not practicable to enforce those orders through committal proceedings. If Ashdale were entitled only to an injunction, whether to restrain access for purposes other than agricultural purposes, or all access, gypsies would be back on the Defendants' land using it as a caravan site within a short period of time. Moreover, there was a risk that land to the south of Mr Cash's land would be put to similar use. A Land Registry Plan obtained by Ashdale's Property Manager, Mr William Bromwich, shows the lotting up of that parcel of land into small plots access to which would likely be sought via the road and Mr Cash's land. Miss Windsor also submitted that unless Ashdale were allowed to deny all access to the Defendants' land, it would continue to suffer physical damage to the road (which was unmade up) and damage to the value of 6 West End Cottages and the paddock, because, short of such a measure, those occupying the Sammon land would remain there and continue to gain access thereto by coming on and passing along the road."
"If in the circumstances of the case in question, an injunction prohibiting any user that was not permitted by the grant were an effective remedy, I apprehend that an English Court would not grant a declaration sanctioning steps which prevent any user of the right. However, where such an injunction would not be an effective remedy, I think that such a declaration might be granted if, having regard to the interests of all those affected by the steps proposed to be taken, such relief were proportionate, just and appropriate."
" The named Defendants and the 7th Defendants purchased the land intending to use it as a gypsy caravan site, a use that would inevitably make them trespassers on Ashdale's land. Further, at the very least, they have all been complicit in the repeated breach of the court's orders and I am quite satisfied that if there were vehicular access to the Sammon land, gypsies would return in numbers to live there in caravans with the result that the road would be physically damaged and the value of 6 West End Cottages and the nearby paddock would be significantly depreciated. Mr Cash purchased his parcel of land to sell it on to gypsies on the back of the development of the Sammon land as a gypsy caravan site. He is an experienced business man. He could and should have consulted his solicitor and raised standard enquiries before contracting to buy his parcel of the land. Had he taken these elementary precautions he would have known before agreeing to purchase the land, as he did before completing the transaction, that access to his land and to the Sammon land was dependent on a right of way limited to use for agricultural purposes only. He would have known that the use intended for the Sammon land and his land would inevitably involve non-permitted user of the road. Thus, in completing the transaction as he did, he took a calculated risk that planning consent would be forthcoming and that the owner of the right of way could be persuaded to enlarge the right. That gamble has seriously back-fired, as he acknowledged in evidence. In my judgement, he has no genuine intention to use the land for agricultural purposes and is adopting the stance he has taken in these proceedings in an attempt to pressurise Ashdale into buying him out. The prevention of all access to his land will therefore have considerably less impact than it would if he genuinely intended to use his land for agricultural purposes. On the other hand, anything less than complete obstruction of all access to Mr Cash's land and the Sammon land will be ineffective in preventing future acts of trespass on Ashdale's land. In the circumstances of this exceptional case, I am of the view that Ashdale's interests must prevail over those of Mr Cash and that the court should make the declaration sought against all of the 2nd to 12th Defendants. "
"1. There shall be a declaration that the Claimant (and any successors in title) are entitled to obstruct all access over the access road forming part of HM Land Registry Title No SY221051 and leading from Ripley High Street, Ripley, Surrey and shown coloured blue on the plan annexed hereto ("the Access Road") to the site behind West End Cottages, Ripley shown edged blue on the same plan ("the Site").
2. The Second to Twelfth Defendants are restrained, whether by themselves, their employees or agents or otherwise howsoever from entering upon or passing along the Access Road, with or without vehicles (or from licensing or inviting any other persons visiting the Site to do so) SAVE THAT the Second to Twelfth Defendants may on such date prior to 28 February 2011 as the Claimant shall specify upon at least 7 day's notice, between the hours of 11am and 3pm only, use the Access Road for the purposes of removing their possessions from the Site.
3. The Second to Twelfth Defendants shall have liberty to apply for the modification of this order in the event that such an application can be justified by subsequent events."
Between judgment and the hearing of the appeal
"However, I doubt whether any excessive user, at least of a discontinuous easement, in whatever respect the user may be excessive, will ever of itself bring to an end or indeed suspend such an easement: see Gale on Easements, 14th ed., pp. 346, 347. The owner of the servient tenement upon which, ex hypothesi, the excessive burden is placed is entitled to have that excessive user restrained. The fact that a court may grant an appropriate injunction or make a declaration to this end does not in my judgment either extinguish or suspend the easement. Provided that the owner of the dominant tenement subsequently reverts to lawful use of the easement, his prior excessive use of it is then irrelevant."
"where a party has a limited right of this kind, and exercises that limited right in excess, so as to produce a nuisance, the only remedy, and the only way whereby the party can protect himself is by stopping the whole, as was done in a case deciding that if a man has a limited window, and he enlarges it considerably, the only way in which the person who is annoyed by the enlargement of the window can prevent that nuisance is by erecting a barrier and stopping the whole up. The party who is in that way prevented from the exercise of a limited right because he has turned it into a larger claim, has no other resource than to reduce his window to a proper size and then insist on having it, in that altered condition, tolerated in overlooking the tenements in the neighbourhood."
"If a man has a right to send clean water through my drain and chooses to send dirty water, every particle of the water ought to be stopped, because it is all dirty."
"There is no doubt that the action of the respondents was aimed at preventing the use of the way by motor vehicles. Such a user by the appellants and their agents would have been an excessive user and, in my judgment, if the excessive user of an easement cannot be abated without obstructing the whole user of the easement by the person who is making an unlawful excess of the user, the owner of the servient tenement may obstruct the whole of that user.
"It has been held, in the case of the right of way, that if the excessive user cannot be abated without obstructing the whole user, the servient owner may obstruct the whole of that user, but this is probably wrong, because the servient owner may obtain an injunction restraining the dominant owner from use in excess of the grant, leaving it to the dominant owner to devise means to ensure compliance."
"that was a compromise and is not, of course, binding authority, but nevertheless it does suggest that where it is possible, however, difficult, to make lawful use of a right of way or other discontinuous easement, the servient owner is entitled to an injunction to restrain excessive user and throw the burden of disentangling the two users and stopping the excessive user upon the dominant owner, but not to obstruct the user altogether."
"For the moment, and unless and until there is a need to use parcel D for interment, I can see no real obstruction of this right should the gate be kept locked and a key provided to the parish council so that it can be made available for anyone needing access to parcel D. That may not be a sufficient solution when the time comes for the parish council to use parcel D for interment, and, if not, then the defendants must not obstruct the parish council's right as I have declared it to be. I will give both parties liberty to apply: the parish council so that it can apply should there be any threatened obstruction of the right that the court has declared, and the defendants so that they may apply to restrain any threatened or actual excessive use in future."
Lord Justice Patten
Lord Justice Rix