England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
CHANCERY BUSINESS
HIS HONOUR JUDGE WORSTER

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/11/2015

Sir Timothy Lloyd:

Introduction and summary

1. This appeal is brought by the Defendant, Convoy Investments Ltd ("Convoy"), against most of an order made by His Honour Judge Worster on 21 August 2014, sitting in Chancery Business in the County Court at Birmingham, at the end of the trial of an action in which he had to resolve issues as to boundaries and rights of way as between Mr Adam Page, the Claimant, and Convoy, who own neighbouring land in Leicestershire. Mr Dale Murphy is the individual behind Convoy. Permission to appeal was granted by Lord Justice Lewison.
2. The judge handed down his reserved judgment on 11 July 2014, heard argument then on consequential matters, and handed down his judgment in its final form dealing with all matters in issue including consequentials on 21 August 2014. His judgment deals carefully with the various issues debated before him.
3. On the appeal Convoy was represented by Mr Harpum (who did not appear below) with Mr Taylor (who did), and Mr Page by Mr Sissons (who did not). I am grateful to Counsel for their clear and helpful submissions, amplifying the skeleton arguments and clarifying the position on the ground, particularly by reference to a number of photographs, of which the copies in the bundles as originally supplied were barely legible. Much better copies were provided at the hearing.
4. I should record that Mr Sissons indicated shortly before the hearing that he would apply to put in further evidence, but he did not press this application, as it related to matters which had occurred since the trial.
5. For the reasons set out below, I would dismiss the appeal against the finding that Convoy has infringed Mr Page's right of way, but on the other points in issue I would allow the appeal.

The facts in summary

6. In 2000 Mr Page bought some farm land at auction from a Mr McLeod, the then owner of Bybrook Hall. In particular, he bought two separate lots which are relevant for present purposes: lots 1 and 2. Both lots were sold with a right of way over land retained by Mr McLeod. The roadway over which the right of way extends leads to each of lots 1 and 2 from a public highway, Swithland Road. Each lot is farm land and the right of way was defined as being for agricultural purposes only, with or without agricultural vehicles of all descriptions. It is in the following terms:

"13.2 The Property is transferred together with the benefit of a right of way (in common with all other persons entitled to use the same) for agricultural purposes only with or without agricultural vehicles of all descriptions at all times over and along so much of the roadway coloured brown on the annexed plan as is necessary in the exercise of such right for the purpose of gaining access to and egress from the Property from and to Swithland Road subject to the Transferee or other the person or persons exercising this right paying and contributing a fair proportion from time to time of the cost of periodically upkeeping and maintaining the roadway."

7. The roadway was marked on the plan with brown colouring, and is shown on the filed plan at HM Land Registry. At the time of the grant it was metalled, and it widened out near Swithland Road to allow vehicles to turn in and out in both directions. From Swithland Road the roadway proceeds first in a north-easterly direction and then curves to the left so as to go almost northwards, then turning right, almost at right angles, passing to the right of Bybrook Lodge Farm and of Bybrook Hall Farm Stables, which I will call the stables. Just before the stables there is a spur to the north which gives access to lot 2. Not far from Swithland Road there is an entrance to the roadway from the north, a driveway serving Bybrook Hall itself. Farther to the east a barn stands to the north of the roadway, with an area to its east referred to as the apron. That too opens on to the roadway.
8. The sale of lot 1 was subject to an exception and reservation in the following terms:

"13.4 There is excepted and reserved out of the Property unto the Transferor or other the owner or owners or occupiers for the time being of Bybrooke Hall and its adjoining land abutting the north-western boundary of the property and all persons authorised by any of them or entitled thereto the whole of the boundary structure shown on the annexed plan and marked "T" outwards on the north-western boundary of the Property (so far as the same is co-extensive with the said adjoining land) together with full rights of entry on the Property with or without workmen materials and appliances at all reasonable times and upon giving reasonable notice for the purposes of maintaining repairing or renewing such boundary structure the Transferor or other the person or persons exercising such rights doing as little damage as possible and forthwith making good any damage thereby occasioned."

9. No T mark appears on the relevant part of the plan. As it happens, the transfer of lot 2 included a somewhat similar provision as regards "the whole of the boundary hedge shown on the annexed plan and marked "T" outwards on the south-western boundary of the Property". The plan annexed to the transfer of lot 2 did not have a T mark on the relevant boundary, but aerial photographs show that there was a hedge on the relevant boundary. It is common ground that the reference to the T mark outwards shows that it would have been marked outside the property conveyed, and would have indicated that the relevant boundary feature belonged with the land retained rather than the land conveyed.
10. An old aerial photograph (taken on a date unknown but before 2000), to which the judge referred at his paragraphs 14 and 15, shows a white fence to the south of the roadway, which appears to be more or less continuous from Swithland Road as far as a point opposite the barn. Expert evidence showed that this point is 64 metres from the Swithland Road end of the roadway. Then there was an opening which, from tracks visible on the photograph, one can deduce was used by vehicles getting access between the barn and the field that became lot 1. To the east of the barn, the fence started again, continuing to the point at which the roadway turns eastward past the stables, which is as far as the photograph extends. The evidence showed that, by 2000, the part of the fence to the east of the barn no longer existed. Thus we can conclude that, at that time, the extent of the white fence was from the entrance to Swithland Road all the way along the southern side of the roadway as far as the barn. The photograph shows gates at the Swithland Road end of the roadway, which were then fully open. The southern gate and the pier from which it hung stood to the north of the fence.
11. Convoy is Mr McLeod's successor in title to Bybrook Hall and the land adjoining it to the northwest of lot 1, including the roadway and the barn, and also to the stables, which has boundaries with each of lot 1 and lot 2. It does not own Bybrook Lodge Farm, but nothing turns on that.
12. The white fence is made of concrete posts and metal tube rails. As it now stands, the fence runs from a point not far in from Swithland Road in a straight line to a point opposite the eastern corner of the barn. Convoy contends that the fence is the boundary structure mentioned in the transfer of lot 1, and that this fence remained in the ownership of Mr McLeod. Mr Page removed part of the fence near the entrance from Swithland Road soon after his purchase, so that vehicles getting access to lot 1 did not have to drive far beyond the entrance. He said in evidence that there had been no objection to this from Mr McLeod, but there was no evidence as to Mr McLeod's knowledge of this change or of his attitude to it.
13. The evidence also shows that at the time of the sale to Mr Page there were wooden gates near the entrance of the roadway from Swithland Road, hanging off brick piers either side of the roadway. There is no photograph recording the state of the gates in 2000, but by 2008 they were very dilapidated.
14. Mr Page's evidence was that he obtained access to the field with vehicles – sometimes very large vehicles towing substantial equipment – regularly throughout the growing season, that is to say for up to ten months of the year. Convoy disputed this evidence but the judge accepted it. He also accepted Mr Page's evidence that the old wooden gates had never been closed, and could not have been closed, since his purchase, and for quite a long time before that, as he knew from his local knowledge having farmed in the area for years.
15. Some time after Convoy's purchase of Bybrook Hall, Mr Murphy decided that, in the interests of security, new gates should be installed at the entrance to the roadway, in order to protect his property against intruders. It seems that he first installed metal gates, operated manually, but that they did not last long. Later, in 2011, he installed new gates, electronically operated so that they could be opened only by the use of a fob or by a four digit code. They hang from gate piers which are either the same as those of the old gates, though higher, or they are new piers but in the same location as the old piers. Accordingly the gates should be taken as being in the same place as the old gates, when closed. It seems to have been at this stage that relations between the neighbours started to deteriorate. Mr Murphy offered to Mr Page a fob and the code but Mr Page declined to accept them.
16. Mr Page does have an alternative route for access to lot 1, which does not involve going over Convoy's land, but this is not as satisfactory as the roadway, if the latter is not obstructed. Mr Page takes the view that the electronic gates are a substantial obstruction to the reasonable use of the right of way. They can only be opened either by the use of a fob, which is effective at a distance of at least 50 yards (Convoy says 100 yards), or by entering a code in a panel by the gate. That means that a vehicle whose driver has not been given a fob must pull up outside the gates, the driver must get out and put in the code, and then get in to drive through. There was a dispute as to how long it took for the gates to open fully. It was not in dispute that the position of the gates is such that a large vehicle, such as a tractor with a trailer, cannot pull off the road completely if the driver has to stop in order to get the gates open. That is said to be unsatisfactory because of the danger to other road users. Convoy pointed out that the position in that respect would be the same if manually operated gates were in place and were closed when a vehicle approached them from the road.
17. Of course, if the driver of a vehicle, approaching the gates when closed, has a fob to hand, it is easier to open electronic gates than manual gates, since this can be effected remotely from inside the vehicle. But it is understandable that the judge should say, as he did at paragraph 38(2), that the use of a fob or code by those coming to Mr Page's property has some obvious drawbacks: "fobs get lost or dropped in the bottom of the cab of a tractor, codes are forgotten and periodically changed, visitors may not have been given a fob or may not know whether to ask for one" and so on. At paragraph 27 he had said that "fobs and codes may be a convenient way of opening gates in a domestic context, but not being a farmer, Mr Murphy perhaps did not appreciate or understand the more practical difficulties that these arrangements presented".

The proceedings

18. Mr Page issued proceedings on 2 December 2011 complaining of obstruction to his right of way and trespass on his land. The obstruction was said to be the construction of a fence along the roadway, the installation of the electronic gates at the entrance to the roadway and the erection of a gate pier and fencing; the fence and the gate pier were said to involve trespasses. He therefore sought a declaration that he was entitled to a right of way as set out in the original transfer, an injunction restraining interference with the right of way, and damages.
19. By Convoy's Defence and Counterclaim it did not dispute the existence of a right of way for Mr Page, asserting that it was exercisable over the existing private tarmac road. It contended that the white fence did not pass to Mr Page, and that therefore a narrow strip of land between the roadway and the fence also remained in the ownership of Mr McLeod and passed to Convoy. It therefore asserted that Mr Page's right of way was limited to the width of the roadway and did not extend to the verges, nor did it give him a right to cross the southern verge in order to get access to lot 1. Furthermore it asserted that the terms of the grant of the right of way allowed its exercise only by passing along the whole length of the roadway, to get access to lot 1 at the end farthest from Swithland Road. Its position as to access points has changed since then.
20. As for the new fence erected by Convoy, this was said not to encroach on the roadway but to be placed on the northern verge, even if slightly closer to the roadway in some parts than had been the previous fence.
21. Convoy admitted installing the electronically operated gates which were said to have replaced manually operated metal gates first installed by Convoy after August 2007 which had themselves replaced the dilapidated wooden gates.
22. By the counterclaim, Convoy complained of trespass by Mr Page by getting access to lot 1 from the roadway close to the entrance from Swithland Road. Other trespasses were also alleged which were not pursued. Convoy claimed a declaration that the right of way was only exercisable by passing along the full length of the roadway, not through the line of the white fence or over the verges, and injunctions accordingly, and also a declaration that Convoy was entitled to reinstate the parts of the white fence that had ceased to exist, together with damages.
23. The trial had an unfortunately protracted course, spread over a year and a half, partly because Mr Page's original Counsel became ill and ceased to practise after the start of the trial. Oral evidence was given by Mr Page, and by Mr Murphy on behalf of Convoy on the first day, in January 2013. A single joint expert had been instructed in the course of the case, Mr David Beaumont. A large scale plan of the relevant area prepared by him was before the judge and is in the appeal bundle. Mr Beaumont was not asked to give oral evidence. We were told that some written questions had been put to him in the light of his report, which he answered. We have not seen either his report or the questions and answers. I should say that it is not suggested that the judge's judgment suffered from the protracted course of the trial; he had good notes, a transcript of evidence, and a lot of written material by way of submissions.

The judgment

24. By his judgment, the judge held that the white fence was not the boundary structure referred to in the exception and reservation in clause 13.4, because of the absence of any T mark on the relevant plan, that the right of way was exercisable over the whole metalled width of the roadway, that the edge of the metalled surface was the boundary of lot 1, and that Mr Page was not limited to passing along the whole length of the roadway in order to get access to lot 1 but could gain access to lot 1 at any point or points of his choice. He also held that the electronic gates were a substantial interference with the exercise of the right of way, and must therefore be removed. Further, he held that the southern gate pier was on Mr Page's land.
25. By the judge's order it was declared that the right of way was exercisable over and along the whole of the metalled surface of the roadway as it was at the date of the hearing on 28 March 2014, and that in exercise of the right of way Mr Page may enter and leave lot 1 at any point on the south-easterly and southern sides of the roadway, as well as at its north-eastern end, and that Convoy had unlawfully interfered with the right of way by closing off the roadway with electronically operated gates attached to the two gate piers. It declared that the boundary between Convoy's land and Mr Page's land as regards Lot 1 was the south-eastern and southern edges of the roadway, that the white fence belonged to Mr Page and that he was entitled to remove it, that the southern gate pier stands on land owned by Mr Page, and that if Convoy did not remove it then Mr Page was entitled to do so.

The issues on the appeal

26. Not every point which was contested at the trial is a live issue on the appeal. There are now six issues:

i) What is the true scope and extent of the roadway over which the right of way was granted to Mr Page in 2000, and how should it be defined in the court's order?

ii) Can Mr Page enter lot 1 from any point on the roadway, or must he enter it only at a certain point? Convoy now contends that he may have access at any point beyond the end of the white fence, near the barn, but not at any point to the west of that. This point arises both on the Appellant's Notice and, in varied form, on the Respondent's Notice if either or both of issues (iv) and (v) below are determined in favour of the appellant.

iii) Are the electronic gates installed by Convoy a substantial interference with Mr Page's right of way?

iv) What is the line of the true boundary between the roadway and lot 1?

v) Who owns the white fence?

vi) Who owns the gate pier on the southeast of the entrance to the roadway near Swithland Road?

27. The issues thus cover both boundary points and right of way points. However, they are bound up with each other. I propose to start with the issues about the white fence. In my judgment that enables most of the issues to be determined, leaving aside the question of the electronic gates and the relatively minor issue of how the extent of the roadway should be defined.

The white fence

28. It is not in dispute that a conveyance is to be construed as a whole and in the light of all relevant surrounding circumstances, including the physical condition of the relevant land at the time. Mr Sissons pointed out that in the present case we have neither the contract which led to the sale to Mr Page (though we do have the plan used for the contract) nor the transfer by which that sale was completed. It was this sale that led to the land being registered for the first time. All we have is the various entries on the titles as registered. Fortunately, the filed plans are relatively detailed, but of course they only show general boundaries, so they do not provide the answer to any issue as to the exact position of any boundary.
29. Mr Sissons submitted that assistance could be derived from matters subsequent to the sale, including the conduct of the parties, and he showed us Ali v Lane [2006] EWCA Civ 1532, [2007] 1 P&CR 26, in particular passages in the judgment of Lord Justice Carnwath at paragraphs 26, 27, 29, 36 and 37. At paragraphs 36 and 37 he said:

"36. … In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.

37. The qualification is crucial. When one speaks of "probative value" it is important to be clear what needs to be proved. In this case the issue concerns the line of a boundary which was fixed not later than 1947. Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related, to physical features which were in existence in 1947. Similarly, evidence of Mr Attridge Senior's understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value, even if admissible. Such evidence begs the questions whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, particularly having regard to the disused state of the disputed land during that period. "

30. The only subsequent material that Mr Sissons sought to rely on was Mr Page's having made an opening in the white fence near the gateway soon after his purchase, without objection from Mr McLeod. Without any evidence as to whether Mr McLeod knew of this, or of his attitude to it if he did know of it, it seems to me that this is of no probative value. I therefore ignore that as irrelevant to the true construction of clause 13.4.
31. Mr Sissons submitted that the judge was right to hold that the exception was inoperative, on the basis that effect could not be given to either of the two indications in the clause as to what was its subject matter. No boundary structure is shown on the annexed plan, nor is any boundary structure marked on the plan by a T mark. That being so, he argued, it is nothing to the point to show (as the evidence does show) that there was at the time a boundary structure, namely the white fence, to which the clause could have applied if it had been shown on the plan and identified with a T mark. He accepted (as did the judge) that the white fence was the only possible candidate to be a boundary structure, though he argued that it would have been an odd choice for the boundary, given that it ran along less than half of the boundary, and could not be projected for the rest of the boundary because that did not lie in a straight line.
32. In my judgment, given the small scale of the auction plan, nothing turns on the fact that the white fence is not shown on the plan separately from the edge of the roadway. The phrase in clause 13.4 "shown on the annexed plan and marked "T" outwards on the north-western boundary of the Property" does not contain two distinct requirements which had to be satisfied. If there had been the T mark on the plan, as contemplated by the terms of the clause, that would have been sufficient to identify the white fence, as it then existed, as the boundary structure in question.
33. Mr Sissons suggested that the clause may have been a standard provision applying to other lots in the auction, and used in this instance by mistake. But the different provision on the sale of lot 2 contradicts this proposition. Nor does it look like a standard provision, with its repeated references to the north-western boundary and the reference to the benefit of the reservation as accruing to the owners and occupiers of Bybrook Hall and its adjoining land. I cannot, therefore, accept this as an adequate explanation for the error which would leave a doubt as to what had gone wrong.
34. That being so, it seems to me that the omission of the T mark is a deficiency resulting from an error which can be corrected as a matter of construction. It is not in doubt that there has been an error, and there is equally no doubt how that error should be corrected. Since there was at the relevant date a boundary structure (and only one) on the relevant boundary, it is clear that the omission was of a T mark, pointing away from lot 1, on the north-western boundary of that lot. If such a T mark were inserted, or treated as having been inserted, the clause would have the effect that Mr McLeod retained ownership of the white fence, by the effect of the exception, and moreover acquired (by the reservation) the right to enter on the land conveyed for the purposes of maintaining, repairing and renewing the fence. I therefore respectfully disagree with the judge's conclusion at paragraph 44, and hold that the boundary structure referred to in clause 13.4 is the white fence, as it existed in September 2000.
35. It follows that, for its length as it then stood, from Swithland Road to a point opposite the eastern corner of the barn, the line of the white fence marks the boundary between Mr Page's land and that retained by Mr McLeod and now owned by Convoy.
36. I see the force of the judge's comments in paragraph 45, including that Mr Page may have expected to acquire the fence with the field, and that it would be in his interest to do so. But that is inconsistent with the clear intention shown by clause 13.4. The absence of any indication on the relevant plans (including the filed plan) that there was a tiny strip of land between the edge of the metalled roadway and the boundary of the land sold is of no relevance, given the general boundaries rule and the scale of the plans.
37. A number of consequences follow from that conclusion. First, the definition of the boundary shows that the southern gate pier is not on Mr Page's land but on that of Convoy, so it is not a trespass. Secondly, the terms of clause 13.4 show that Mr Page was not entitled to take down any part of the fence in 2000 so as to open up a new access to his field. Convoy's position now, notwithstanding a different contention advanced earlier, is that clause 13.2 gives Mr Page the right to have access between lot 1 and the roadway at any point to the east of the end of the fence as it stood in 2000, but not at any point further west. In my judgment that is correct. Mr Sissons argued, and the judge accepted, that clause 13.2 gave Mr Page the right of access to lot 1 at any point along the roadway. That cannot stand with the construction of clause 13.4 which I consider to be correct. It could not be right that Mr Page could legitimately take down part of the existing fence which Convoy could immediately put back under the terms of that clause. I do not need to consider the separate point, said to arise on the true construction of clause 13.2, as to whether Mr Page could have access at any point along the roadway. Convoy's ownership of the fence, and the terms of clause 13.4, are incompatible with that for the length of the fence as it was in 2000, and no issue arises on this matter as regards the roadway east of the end of the fence.
38. Convoy is therefore entitled to require Mr Page to reinstate the gap in the fence which he made near the entrance, or to reinstate it itself, so that he cannot have access to his field at that point. Whether, having established that point, it needs to do so is a matter for it to decide. Mr Sissons suggested that it might be beneficial in the interests of all users of the roadway for Mr Page's vehicles to be able to come off the roadway soon after going through the gateway, so as to reduce the length of the roadway in which vehicles may have to pass each other.
39. As for the line of the boundary to the east to the end of the fence, Mr Harpum argued that in practical terms it does not matter, on the basis that Mr Page can get access from the roadway to the field at any point along that part of the roadway. Just as Mr Page is not entitled to take down any part of the fence as it existed in 2000, so Convoy cannot put up a new fence in place of that which had existed before 2000 but had ceased to exist by then. If it has to be decided it seems to me that the boundary to the east of the eastern end of the fence is the edge of the metalled roadway, because there was no other feature on the land at the time which could constitute the boundary. I do not see that it could be appropriate or sensible to hypothesize for this purpose a reconstruction of the line of the white fence farther east as it had once existed, both because of the difficulty of drawing it correctly from what we know about it from the old aerial photograph, and, more importantly, because it was not there on the ground in 2000. Its past line was not one of the surrounding circumstances relevant or admissible for the construction of the parcels clause in the transfer.
40. The determination of the true construction of clause 13.4 thus provides the answer to each of the second, fourth, fifth and sixth issues set out above.

The electronic gates

41. The judge held that the installation of the electronic gates constituted a substantial interference with Mr Page's exercise of his right of way. For Convoy Mr Harpum did not suggest that the judge had applied the wrong test, nor did he argue that, if the judge had applied it on the correct basis, his conclusion was wrong. His argument was that the judge's application of the test was on the wrong basis, and involved the wrong comparison. The judge referred to part of the judgment of Lord Justice Mummery in West v Sharp (1999) 79 P&CR 327 at 332 which includes this sentence:

"There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the alleged obstruction."

42. Lord Justice Mummery relied on Keefe v Amor [1965] 1 QB 334 among other cases. In that case Lord Justice Russell put the test slightly differently, in drawing conclusions from the earlier case of Dyer v Mousley (1962 unreported) at pages 346-7:

"First, that, where a right of way exists in respect of a strip of land it is not necessarily open to the grantee to complain of obstacles on every part of the strip; he can only complain of such obstacles as impede the user of the strip for such exercise of the right granted as from time to time is reasonably required by the dominant tenant. Secondly, if the true conclusion is that the right granted embraces potentially the whole of the strip, the fact that the physical characteristics of the site (for example, the existence of walls) make the exercise of the right at the time of the grant impossible over any but a limited route will not contradict or limit the scope of the grant."

43. The judge asked himself the question as posed by Lord Justice Mummery. In my judgment, that question is the more appropriate for the circumstances of this case; the judge did not misdirect himself in this respect. He compared the position as it was with the electronic gates in place, on the one hand, with the previous position with no gates, or at any rate no gates capable of being used, on the other; see paragraph 38(1) of the judgment:

"The true comparison as between the position at grant and the position now is that as between an open entrance and one which is gated."

44. Of course, it is not just that the entrance is gated, but that it is gated in the particular way at issue. He concluded that the installation of the electronic gates did constitute a substantial interference. Mr Harpum's argument is that the correct comparison is between the position with electronic gates, on the one hand, and with effective manually operated gates, on the other, on the basis that, because of the existence of the old gates, albeit no longer usable, Mr Page could not have objected to the reinstatement of gates of that kind.
45. He showed us two of the few authorities that have any bearing on this point: Dawes v Adela Estates Ltd [1970] EGD 900 and Cardwell v Walker [2003] EWHC 3117, [2004] 2 P&CR 122. They show two applications of the principle to very different facts, but it does not seem to me that they take the matter any further than the cases which I have cited above.
46. I can see that, if a right of way in such terms as those of clause 13.2 in the present case were granted over a roadway which, at the time, was capable of being, and was from time to time, closed by manually operated gates, it might not be open to the grantee of the easement to assert that the existence and normal use of those gates constituted a substantial interference with his right of way. That, however, is not the present case. At the time of the conveyance there were no practicable gates. If the servient owner chose to install or reinstate manually operated gates, the issue would be whether those gates, as constructed and used, would themselves constitute a substantial interference with the exercise of the right of way. It may be that they would not have done.
47. If, instead, the servient owner chooses to install electronic gates the question should be the same, and should start from the same point: a comparison between the position with the given gates installed and in operation, and the previous position without gates in place. Accordingly, it does not seem to me that the judge either applied the wrong test or applied the right test in the wrong manner. It is not relevant or helpful, when considering whether a particular obstruction constitutes a substantial interference with a right of way, to ask whether a hypothetical different obstruction would do so.
48. For that reason I do not accept Mr Harpum's submission that, so far as the gates are concerned, the judge was in error and that his order should be set aside so far as it was based on interference with the right of way.
49. Accordingly, Mr Page is entitled to require that the gates be kept open. The judge recorded that Convoy offered to keep the gates open at harvest times on dates and at times to be agreed or fixed, which he said was a sensible concession and welcome: see paragraphs 32 and 38. However he also said at paragraph 38 that it seemed most unlikely that the parties would be able to find a workable regime which involves the use of the electronic gates. On that basis, this offer does not solve the problem or eliminate the substantial interference with Mr Page's right of way. Nevertheless, the judge also recorded that Mr Page recognised the legitimacy of Mr Murphy's concern for security. If, despite their difficulties hitherto, the parties can attempt by discussion to come to a practical solution on the several points of dispute which allows for their respective concerns and interests, that would be highly desirable.

The definition of the scope of the right of way

50. The judge defined the extent of the land over which the right of way is exercisable as being the whole of the metalled surface of the Roadway (regardless of any grass, plants, bushes, trees or any other vegetation or soil that overhang or encroach upon the metalled surface of the Roadway) as it was at the date of the hearing on 28 March 2014. Counsel for Convoy contends that this method of definition is unsatisfactory and likely to give rise to uncertainty in future and to further disputes and litigation, because it is already difficult, and will become increasingly so, to be sure what was the position on the ground at that date. There are some photographs, but none at the relevant date, nor do they show the whole of the way. Instead, he argues, the judge should have used the plan prepared by the expert, which is on a large scale and has measurements taken from enough fixed and ascertainable points, so that if there were to be disputes in future, the plan would provide a sufficiently clear and certain way of identifying where the limits of the right of way lie.
51. The judge's reasons for not using the expert's plan are set out in paragraph 56(1) of the judgment:

"The right of way is defined by the metalled surface. The experts plan is controversial and measurements at certain points are not a lot of help. There are photographs available which can be used."

52. In his submissions Mr Sissons showed us some photographs of a fence put up by Convoy on the northern side of the roadway (since removed) whose fence posts, or some of them, were placed within the metalled surface of the road. The judge referred to these photographs at paragraph 51(a) of his judgment, and one is annexed to his order. He also showed us that the expert's plan appears to show the line of that fence, but does not show it as encroaching on the roadway. It is either exactly on the line of the edge of the roadway (for part of its length) or just outside it, at a distance of 10 or 20 cm in the relevant area (near the barn). He did not identify any other defect in the expert's plan.
53. As I have mentioned, we were told that questions were put to the expert in writing under CPR rule 35.6, and were answered, but we were not shown either his report or those questions and answers. I infer that they did not address the discrepancy between the plan and the position on the ground as identified to us by Mr Sissons. That procedure is the appropriate way to raise and to seek to have addressed any points on which a party is unhappy with the views expressed by the single joint expert: see the White Book 2015 paragraph 35.7.6, referring to Daniels v Walker [2000] 1 WLR 1382 at 1387.
54. In the absence of any step of that kind taken on behalf of Mr Page to question or challenge the expert's report, so far as set out in his plan, it seems to me that it was not appropriate for Mr Page to contend that the plan was not reliable in this or any other given respect. Accordingly, I would respectfully disagree with the judge in discarding that plan as a suitable method of defining the physical extent of the metalled roadway as it stood at the relevant time.
55. There was some debate before us as to the northern limit of the right of way at the two points where the metalled surface extends further away from the boundary, namely at the entrance to the drive to Bybrook Hall, and at the apron to the barn. The latter is unlikely to give rise to an issue, as Convoy has constructed gates at the entrance to the apron, in line with the northern edge of the roadway to the east and west of this point. That is also the point at which, to the south of the roadway, the fence stops so that there should be no difficulty in vehicles passing if necessary. There are also gates at the entrance to the drive to Bybrook Hall. As shown on the expert's plan these are set back a little way from the main course of the roadway. Strictly speaking, as it seems to me, the right of way is not exercisable to the north, or north-west, of a line which continues the northern or north-western edge of the roadway to the east and the west of this drive. But it may be that, Convoy having installed its gates where it has done, no objection will be taken if a vehicle were to go a little way into the entrance to the drive, though not as far as the gates, as might be necessary if two vehicles had to pass at that point.
56. This issue is not a point that would have justified an appeal on its own, but since there are other substantial points on the appeal, it is appropriate that we should deal with it. For the reasons given I would allow the appeal on this point, and hold that reference should have been made to the expert's plan dated 5 December 2012 in paragraph 1 of the judge's order, rather than, in general terms, to the position as it had been on the ground on 28 March 2014.

Conclusion

57. Thus, I would uphold the judge's decision that the installation of the electronic gates was a substantial interference with Mr Page's right of way, but I respectfully disagree with him on the construction of clause 13.4 of the transfer and therefore on the ownership of the white fence. From that it follows that I would allow Convoy's appeal on the question of the position of the boundary, on the ownership of the white fence as it stood in 2000, as to the points at which Mr Page is entitled to have access to the field which is lot 1, and as to the ownership of the land on which the southern gate pier stands. I would also allow the appeal on the minor point of how the land over which the right of way is exercisable should be defined.

Lady Justice King

58. I agree.

Lord Justice Tomlinson

59. I also agree.