England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand. London. WC2A 2LL
		29th July 2005

Mr Michael Furness QC:

1. In this action the claimants, Mr and Mrs Wilkins, claim an injunction and damages for trespass against the defendant, Mr Lewis. The alleged trespass arises out of the use made by Mr Lewis and his employees and visitors, of a road ("the roadway") which runs through the grounds of Morghew Park ("the house"), which the claimants own and live in. The defendant is the owner of the adjoining Morghew Park Estate. He has two lines of defence to the claim. First he says that the use made of the roadway is permitted under the terms of a right of way granted to his predecessor in title as owner by the claimants' predecessor in title. Secondly, to the extent that the use made of the roadway exceeds that permitted by the right of way, the Defendant argues that he and his predecessors have acquired the right to use the road in all of the ways complained of by prescription. This hearing is by way of preliminary issue and is confined to the first line of defence. For the purpose of this hearing the parties have agreed a statement of facts which forms the basis of the findings of fact set out below.

The facts

2. In 1978 the house and its grounds were in the same ownership as the adjacent agricultural estate known as the Morghew Park Estate. By a transfer dated 9^th October 1978 the then owners of the estate, Wadhurst Park Ltd, conveyed the house and its grounds to a Dr and Mrs Graham-Brown. The access from the public highway to the Estate ran along the roadway, through the grounds of the house, and so a right of way was reserved over the roadway in favour of the estate. The grant of the right of way over most of the length of the roadway was expressed to be "for all times and for all purposes with or without motor vehicles" but was limited to the period of one year from the date of the transfer. This was because in the transfer Wadhurst Park Ltd covenanted during the year in question to construct a new access to the public highway which would have avoided the need to use the roadway to gain access to the estate.
3. For reasons now unknown, the new access to the highway was not constructed and in consequence the right of way over the roadway was re-granted by Dr and Mrs Graham Brown in a transfer dated 1^st November 1979, this time without time limit but with significantly different words of grant. It is this wording which falls to be construed in this action. So far as relevant it reads as follows:

" ... the Transferors as beneficial owners hereby grant ... in fee simple to the Transferee and its successors in title owner or owners for the time being of the whole or any part or parts of the land known as Morghew Park Estate comprised in title numbers [here follow a list of title numbers] and its and their invitees and licensees a full and free right of way (in common with all others similarly entitled) with or without vehicles or animals over and along the private roadway coloured red and blue on the said plan in connection with the use of Morghew Park Estate as an agricultural and forestry estate and for the purpose of obtaining access to and egress from such dwellinghouses as and are now erected including the two unoccupied dwellings or former dwellings at Old Heronden and also including not more than two new dwellings that may be erected for agricultural and forestry workers on the said Morghew Park Estate or any part thereof ... "

4. The extent of the estate has changed over the years. At the date of the conveyance in 1979, Wadhurst Park Limited owned the land comprised in the title numbers for the benefit of which the right of way was granted. That land has been described in these proceedings as the core estate. The core estate comprises approximately 1200 acres.
5. On various dates since the date of the 1979 conveyance, Wadhurst Park Limited acquired other land (approximately 686 acres) adjacent to the core estate. The Defendant acquired the estate as enlarged by these acquisitions in April 2001 from Wadhurst Park Limited. The Defendant has since acquired a small field on the other side of the public highway to the entrance to the roadway. These additional parcels of land are now farmed together with the core estate and, in these proceedings, are known as collectively "the neighbouring land". The neighbouring land now totals approximately 800 acres.
6. The position of the various parcels of land can be summarised as follows. The house lies to the north of the core estate, and the highway lies to the north of the house. The roadway runs north-south through the grounds of the house, and quite close to the house itself, connecting to the roadway in the north, and to the network of roads which runs through the estate to the south. The neighbouring land is in three blocks. The two largest blocks lie to the east and northwest respectively of the core estate. Each of these blocks is connected by roads or tracks to the road network on the core estate and thence to the roadway. The smallest part of the neighbouring land lies to the north of the house, across the public highway from the point at which the roadway enters the highway. It is possible to gain access to the public highway from the core estate and from each of the blocks of neighbouring land without using the roadway. It is however much less convenient to use these access points than to use the roadway, which is why the roadway remains the principal means of access to the estate.
7. Wadhurst Park Limited and, since April 2001, the defendant, have farmed the core estate and the neighbouring land together as one estate. The farm buildings, offices and dwellings on the estate are and have at all material times been situated on the core estate. The neighbouring land has always been bare land, and is currently used for arable farming or set aside.
8. The agreed statement of facts gives a fairly detailed account of the use made of the roadway in relation, in particular, to the neighbouring land. This account is impossible to follow without the benefit of a plan, but for present purposes it is sufficient to appreciate that the roadway is used for two basic purposes. One is as a means of access to the estate from, as it were, the outside world. For example, all deliveries for use on the estate including the neighbouring land are made over the roadway and goods, materials, supplies, equipment, machinery delivered to and used on any part of the estate including the neighbouring land are brought down the roadway and stored on the core estate. The other use is as means of communication between the core estate and the neighbouring land. For example, at harvest time most, though not all, of the grain harvested from the neighbouring land is taken by lorry directly from the neighbouring land on to the public highway and driven on the highway to the top of the roadway, and thence to the storage facilities on the core estate.
9. All crops harvested on the estate including the neighbouring land are stored on the core estate for anything up to a year (depending on the price the defendant can obtain for the grain at any given time). When sold they are transported off the estate via the roadway.
10. In 1979 there was no storage of crops belonging to third parties, but in the 1980s, Wadhurst Park Ltd converted an existing building into a 750 tonne storage facility and also built a 750 tonne storage facility on the core estate. Wadhurst Park Ltd stored their own crops in them. When they had the capacity they also used the storage facility for third parties' crops. Crops belonging to third parties would be transported to and from the estate via the roadway. The defendant now intends to store other farmers' potatoes on the estate, whenever he has the capacity to do so.
11. There are various cottages on the core estate. The only vehicular access to these cottages to and from the highway is and was at all material times over the roadway. In 1979 all the habitable dwellings on the estate were occupied by employees or former employees of the estate. Since 1979 but before the acquisition of the estate by the defendant the freeholds of two of the dwelling houses had been sold out of the core estate for use as private residences.
12. Today, some of the cottages are occupied by estate workers. Other properties are let out or are intended to be let out by the defendant on the open market under assured shorthold tenancies.
13. There was no farm shop, or other direct sale of produce to the public, on the estate in 1979. From sometime in the 1980s until the estate was sold to the defendant in April 2001, Wadhurst Park Ltd ran "the Morghew Speciality Food Shop" on the core estate. Among other things, this sold wild boar farmed on the estate, venison farmed on the Wadhurst Estate and crayfish farmed on the estate. Initially, until new office and retail premises were built following a major fire at the estate offices, customers would purchase produce directly from freezers in the farm manager's house. From November 2001 the defendant sold potatoes to the public from one of the estate buildings (on Saturdays only), rebranding it as "The Potato Shop". This operation is now closed. The defendant now maintains an "honesty" stall located outside the estate office on the core estate. Potatoes are sold from this store to the local public. The store is advertised with signs and leaflets in the locality.
14. All visitors to the previous shop and the present honesty stall gain access via the

roadway.

15. There was no shoot in operation on the estate in 1979. For the 2004/2005 season the defendant put down 1500 pheasants and 500 ducks. He sold about 6 to 8 days of semi-driven shooting for 6 to 8 guns, and arranged twilight duck shooting for 2 to 5 guns. The Defendant intends to do the same for the 2005/2006 season. The shooting activity takes place on both the core estate and the neighbouring land. The guns pay for the shooting. The defendant's paying guests access the estate for the purpose of shooting along the roadway. Some of the farms and estates in the locality conduct shooting of one kind or another on their land and did so in 1979.
16. The claimants' objections to the alleged excessive use of the roadway can be

grouped under three headings.

(1) The roadway is being used in substance for the purpose of obtaining access and egress to and from land outside the dominant tenement. This stems from the fact that the roadway is being used for the purpose of farming the entire Estate, including the neighbouring land;

(2) The roadway is being used to gain access to dwelling houses which are no longer used for the purpose of the estate, because they have been let to people who do not, and never have, worked there; and

(3) The roadway is being used for certain other purposes outside the

permitted user.

I will deal with each of these heads of objection in turn.

The use of the roadway to gain access to the neighbouring land

17. As noted above, the neighbouring land is outside the land comprised in the title numbers referred to in the 1979 deed. The roadway is however in part used to gain access to the neighbouring land (either directly or via the core estate) and is used for the transport of supplies, materials and equipment for use on the neighbouring land. This form of use is objected to by the claimants.
18. The basic rule that a right of way can only be used to gain access to the dominant tenement and cannot be used for the purpose of gaining access to other land was already well established by the time the Court of Appeal came to decide the leading case of Harris v Flower (1904) 74 LJ Ch 127. That case involved the exercise of a right of way granted for the benefit a dominant tenement referred to in the judgments as "the pink land". In fact, the way was being used to gain access to a factory which was partly built on the pink land and partly on an adjoining piece of land, referred to as "the white land". The owner of the servient tenement said this user was excessive because the right of way was being used in substance to gain access to land other than the dominant tenement. The Court of Appeal agreed. Vaughan Williams LJ said this at page 132:

"I cannot help thinking that there not only may be, but there must be, many things done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land .... under these circumstances it seems to me that, notwithstanding the fact that the buildings on the white and on the pink lands are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the use of the way is for the purpose of giving access to land to which the right of way is not appurtenant."

The learned lord justice then explained that the use of the factory would increase the volume of traffic on the way beyond the level permitted by the grant and says this:

"This particular burthen could not have arisen without the user of the white land as well as of the pink. It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole of object of this scheme is to include the profitable user of the white land as well as the pink, and I think access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink, and I think we ought under these circumstances to restrain this user."

19. There is then the well known case of Bracewell v Appleby [1975] 1 Ch 408, which reiterated the basic principle that a right of way cannot be used for the purpose of gaining access to land which is not comprised in the dominant tenement. An important part of the present case, however, is the use of a right of way for a mixed or joint purpose, namely for the purpose of gaining access both to the core estate and the neighbouring land. A more instructive case on this part of the case is therefore the more recent Court of Appeal decision in Peacock v Custins [2001] 2 All ER 827 which dealt with this very issue.
20. In Peacock the claimants owned two parcels of land, the red land and the blue land, which were adjoining fields. They had a right of way over the defendants' land for all purposes in connection with the use and enjoyment of the red land. The red land and the blue land were farmed by the claimants' tenant as a single unit, and he used the right of way to gain access to it. At page 830h Scheimann LJ said this:

"[the tenant] did not claim to use the yellow roadway for the purpose of accessing the red land and then, as an incidental activity, picnic or stroll on the blue land. The defendants rightly do not contend that incidental activity of this nature would involve any excess of the grant. But [the tenant] was using the access for the joint purpose of cultivating both properties, the red and the blue."

At page 835 Scheimann LJ summarised the issue in the following terms:

"The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However, in some circumstances a person who uses the right of way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the right of way is to cultivate land other than the dominant land for whose benefit the grant was made."

After an extensive review of the authorities, Scheimann LJ, giving the judgment of the Court said this at page 835j:

"The right to use a right of way is determined by the terms of the grant, specifying the dominant tenement for the purpose of which the right is created. Trespass is whatever is not permitted by the grant. The right is not to use the way for the purposes of benefiting any property provided that the total user does not exceed some notional maximum user which the beneficiary might have been entitled to make for the purposes of the dominant tenement. ... The right is to use the way for the purposes of the dominant tenement only."

He went on to hold (page 836g) that the grantor did not authorise the use of the way for the purpose of cultivating the blue land, which could not sensibly be described as ancillary to the cultivation of the red land.

21. The question whether the use of a right of way to gain access to land outside the dominant tenement is merely incidental to, or ancillary to, the use of the way to gain access to the dominant tenement itself was referred to in both Harris v Flower and Peacock v Custins, as appears from the passages quoted above. It has fallen for decision in a number of other cases. For example, in National Trust v White [1987] 1 WLR 907 Ferris J held that the use of a right of way to a historic site permitted the use of the way to gain access to an nearby carpark, even though the carpark was not on the dominant tenement. The only purpose of going to the carpark was to enable visitors to visit the site, and that use was merely ancillary to the enjoyment of the dominant tenement. In Massey v Boulden [2003] All ER 87 the Court of Appeal held that use of a right of way for the benefit of a cottage could still be used even though the cottage had been extended so that two rooms now stood on land not part of the dominant tenement. Access to the additional rooms was merely ancillary to access to the

cottage itself. On the other hand, in Das v Linden Mews [2003] 2 P&CR 58 the Court of Appeal seem to have taken a much more restrictive view of what constitutes permissible ancillary use. These decisions are not easy to reconcile, as Mr Gabriel Moss QC (sitting as deputy high court judge) found in Macepark (Whittlebury) Ltd V Sargeant [2004] 3 All ER 1090. However, in the present case I find it unnecessary to ascertain the precise limits of what is permissible ancillary use, because it seems to me that if the right of way is to be construed as being simply for the benefit of the core estate (as to which see below) I cannot see how it can possibly be said that using the way for the further purpose of gaining access to 800 additional acres of land forming the neighbouring land can be said to be merely ancillary to the use of the core estate. Even if I were not minded to form that view I think I would effectively be constrained to it by the Court of Appeal's decision in Peacock v Custins. But for the existence of Miss Hutton's argument based on construction of the words of the grant, which I now turn to, the facts of the present case are in a real sense those of Peacock v Custins writ large.

22. Miss Hutton, for the Defendant, is fully alive to the difficulties posed by the authorities but seeks to avoid them by adopting a particular construction of the grant of the easement. She focuses on the fact that the right of way is granted "in connection with the use of Morghew Park Estate as an agricultural and forestry estate". She submits that this wording allows the use of the roadway for purposes connected with the running of an agricultural estate from the core estate, however great the extent of the land comprised in that estate. She says that the words used in the grant show that what was intended was that access could be gained for the purposes of the agricultural and forestry business which is "Morghew Park Estate". She does not seek to say that the roadway could be used by someone whose sole purpose was access to the neighbouring land, for example, a tenant of part of the neighbouring land, who had no interest in accessing the core estate save as a means of getting to the land he rented. But she does say that any access to the core estate for the genuine and substantial purpose of gaining access to the estate as a whole is within the words of the grant. In her view, this is the case where the purpose for which the right of way can be used is wider than simply the carrying out of activities on the dominant land itself.
23. If one applies Miss Hutton's argument to the actual use made of the roadway, so far as it relates to the neighbouring land, she says that using the roadway to access the core estate from the outside, for example bringing in seed and fertiliser for storage on the core estate, is permissible even if that the seed and fertiliser is in part destined for use on the neighbouring land. As I understand her case, she does so because she says the purpose for which the right of way is granted is to get access to the estate business carried on from the core estate. The fact that that business may involve the onward transmission of part of the seed or fertiliser to the neighbouring land is irrelevant. It is within the purposes for which the grant was made that this should be done. In that sense the benefit to the neighbouring land has been merely incidental to the permitted use of the right of way. So far as the other type of use is concerned, namely using the roadway as a means of access from the core estate to the neighbouring land, she says the same. Using the roadway for this purpose is not, in her view using it solely for the purpose of gaining access to the neighbouring land. It is using it for the purpose of the Morghew Park Estate (which nowadays includes the neighbouring land) which is run from the core estate and is therefore within the scope of the purpose of the grant.
24. In support of her arguments Miss Hutton referred to two cases not mentioned above, which I should mention now. The first was Simpson v The Mayor etc of Godmanchester [1897] AC 696, which she cited for the proposition that it was no objection to an easement that it conferred an incidental benefit on land outside the dominant tenement. That of course is true, but does not really take her case on construction any further. The other was Williams v James (1867) LR 2 CP 577. In that case the jury found that stacking of hay on the dominant tenement, which had been cut from adjoining land, was an honest and reasonable use of the dominant tenement and therefore, in the view of the Court its transport over a right of way for the benefit of the dominant tenement in its ordinary use as a field was permissible. The case was discussed at some length in Harris v Flower. The Court of Appeal in Harris v Flower case clearly felt that the case was consistent with the principles they themselves laid down.
25. When considering these two authorities it is important to bear in mind that the activity of using the roadway to bring seed and other supplies for storage on the core estate which are destined for use on the neighbouring land gives rise to two questions. The first is whether using the right of way for the purposes of farming the neighbouring land, or partly for those purposes, is outside the terms of the grant. That is the question I am considering at the moment. The second is whether the activity of using the core estate to store things which are not for use of the core estate is of itself a use of the core estate for the purpose of an agricultural or forestry estate. That is a question which I address under the third set of issues, below. It is possible for Miss Hutton to lose the first point, but win the second. If she wins on the second point then she is entitled, in the words of Williams v James to say that storage is an honest and reasonable use of the dominant tenement having regard to the purpose for which the right of way was granted. And the fact that that storage activity may incidentally benefit other land will be immaterial, as the Godmanchester case makes clear. But I do not consider that those authorities really assist her on the point now under consideration.
26. It seems to me that to have any chance of success on this issue Miss Hutton must persuade me that it is possible to construe the grant as having the wide effect she contends for. If the grant is to be construed simply as a grant for the stated purposes for the benefit of the land identified by title numbers as the dominant tenement, then the authorities must, I think be fatal to her case. Using the roadway to bring seed or fertiliser, or workers or equipment or whatever, for the purpose, at least in part of conducting farming on the neighbouring land is, as I have found, using the way in part for purpose going beyond mere ancillary use. Using the roadway to get access from the core estate to the neighbouring land would also be using it for the purpose of accessing land outside the dominant tenement for a purpose not merely ancillary to the dominant tenement.
27. Mr Small, for the claimants, makes two responses to Miss Hutton's arguments on this issue. The first is that as a matter of construction the grant simply does not bear the interpretation which Miss Hutton seeks to place upon it. He says it should be interpreted as a grant for the benefit of the identified title numbers, with the consequences outlined in the preceding paragraph. The second is that it is in any case not possible in law to grant an easement in favour of unidentified land which is not part of the dominant tenement. He says that in substance that is what Miss Hutton's construction is seeking to achieve.
28. In my view Mr Small is correct on his first point. The expression "the Morghew Park Estate" is used throughout the grant as shorthand for the parcels of land in the title numbers set out in the grant, that is to say the dominant tenement. So the purpose for which the roadway can be used is "in connection with the use of [the dominant tenement] as an agricultural and forestry estate:' I do not believe it is possible to spell out of that wording an intention also to allow the roadway to be used in connection with the use of other land as part of the same estate. It is an odd feature of Miss Hutton's argument that what appear to be words limiting the use of the roadway turn out to be words which substantially expand the use which can be made of it. This can be seen from the fact that she accepted in argument (as she had to in the light of the authorities) that had the grant been simply a right of way to the Morghew Park Estate "for all purposes" she would not have been able to run her argument. She would have fallen squarely within Harris v Flower and Peacock v Custins. It is hard to believe that the parties intended that the changing the grant from a grant for "all purposes" (the expression found in the 1978 grant) to a grant in connection with the use of the estate as an agricultural and forestry estate, should also have the effect of widening the permitted use. On Miss Hutton's construction it has just this effect, by allowing access for the purpose of an estate which includes as much neighbouring land as the dominant owner was able and willing to purchase. Had that really been intended one would have expected the parties to have expressed themselves much more clearly.
29. Miss Hutton also accepts that it is a consequence of her construction that if any land in the core estate is sold separately from the remaining land forming part of the core estate, the right of way will no longer enure for the benefit of the land sold. This is because using the right of way to gain access to land not part of the Morghew Park Estate is not a permitted purpose of the right of way. This seems an unlikely consequence for the grantee of the right of way to have intended or agreed to, and is very difficult to square with the fact that the right of way is expressed to be for the benefit of the grantee's successors in title as owners of the whole or any part of parts of the estate.
30. In my view the right of way was granted for the benefit of the Morghew Park Estate, as meaning the land comprised in the title numbers referred to in the grant, and it was not intended that the right of way should be used for purposes which extended beyond purposes connected with the use of that land. Accordingly the neighbouring land stands in the same relation to the core estate as the white land stood to the pink land in Harris v Flower and the blue field stood to the red field in Peacock v Custin. This means that using the roadway for the purpose of farming the neighbouring land, or for the joint purpose of farming the neighbouring land and the core estate is outside the purpose for which the right of way was granted.
31. Mr Small's second argument was to the effect that even if I was against him on the construction argument, it was in law impossible to create an easement which granted a right of way in favour of land not comprised in the dominant tenement (except to the limited extent that access to the land outside the dominant tenement was merely ancillary). He based this argument on two propositions. The first was that easements cannot exist in gross, but must accommodate and benefit some other land. The second was that the dominant tenement must be identified at the date of the grant. Miss Hutton's response was that her argument was not affected by these propositions. She was not arguing that the neighbouring land was part of the dominant tenement. The dominant tenement was the core land. But at the same time she was not arguing for an easement simply for the benefit of the neighbouring land. She was arguing for an easement which accommodated the dominant tenement, but that one of the ways (but not the only way) in which the dominant tenement was accommodated was by permitting onward passage from the dominant tenement to adjoining land. The reason this onward passage benefited the dominant tenement was that the purpose of the right of way was to benefit the business carried on the dominant tenement, ie the business of running an agricultural and forestry estate.
32. Although I have paraphrased and compressed Miss Hutton's submissions, I hope that I have conveyed the thrust of them in the preceding paragraph. In the end I do not need to form a concluded view on this point, because of the view I have taken on the construction of the grant. I merely observe that I do not consider that the objections raised by Mr Small to the creation of an easement of the sort contended for by Miss Hutton are fatal to her argument. I think it may be that by appropriate words a right of way of the sort contended for by Miss Hutton could be created, provided that the extended purpose of the easement truly accommodated the dominant tenement, in the necessary sense of being reasonably necessary for its better enjoyment.

The dwelling houses

33. The claimants complain that several of the dwelling houses which were in existence in 1979 ("the existing dwelling houses") are now let to tenants who do not work on the estate. The claimants' case is that the right of way to the existing dwelling houses is restricted to occupants who are agricultural or forestry workers on the estate. Mr Small accepts that that part of the grant which deals with the existing dwelling houses is not, in terms, subject to any limitation of that sort, but he argues that such a limit is to be implied. He derives this implication from the following circumstances:

(1) The grant reveals an "over-arching" intention to restrict the use of the right of way to purposes in connection with the use of the estate as an agricultural or forestry estate

(2) All of the existing buildings (other than the two disused ones) were in

fact in use for those purposes in 1979

(3) The final part of the grant, which concerns the construction of two additional dwelling houses for the use of agricultural or forestry workers, shows an intention to restrict the use of all dwelling houses to these purposes.

34. On this point I prefer the defendant's case. There is clearly no necessity to make the implication contended for by the claimants. Nor is it at all clear that restriction of the sort contended for is implicit in the words used. The structure of the wording of the grant of the right of way, and the way in which it deals separately with the use of the roadway in connection with the estate and its use as a right of way to the dwelling houses shows that the latter part of the grant was intended to be construed on its own terms. I am therefore of the view that the right of way to the dwelling houses is exercisable whether or not the dwelling houses are occupied for the purposes of an agricultural or forestry estate.
35. There is a further issue concerning the dwelling houses on which I am asked to form a view, although it is not an issue which has yet arisen in practice. It concerns the final part of the grant which permits the owner of the estate to use the Roadway for access to not more than two new dwellings erected on the estate for agricultural or forestry workers. The claimants argue that this right extends only to access for the first two of such dwellings to be erected. The defendant argues that it extends to access to any two new dwellings erected for the specified purpose, so long as not more than two such dwellings are accessed during any given period of time. Thus on the defendant's construction the owner of the estate could build three or more such dwellings and from time to time nominate any two of them to have the benefit of the right of way.
36. It seems to me likely that this is a question which never occurred to the parties or the draftsman in 1979, which is why the words of the grant offer little assistance in answering it. On balance I think the defendant is right on this point too. The grant is for obtaining access to no more than two new dwellings. It does not stipulate that it always has to be the same new dwellings. So far as the grantors are concerned the grantee is free to build as many new dwellings as it can lawfully do so. What matters from the grantor's point of view is the amount of use made of the right of way. From that point of view it matters not which two new dwellings are accessed as long as at any given time not more than two are accessed.

Other activities

37. The final set of issues I am asked to consider concern three specific uses of the

right of way which are objected to by the claimants. They are:

(1) The use of the roadway to gain access to commercial shoots held on the

estate

(2) The use of the roadway by vehicles bringing produce grown outside the

estate for storage on the estate and

(3) The use of the roadway to gain access to the potato stall, or to any other

form of farm shop conducted on the estate.

38. The first point to bear in mind is that my decision that the roadway can only be used for the purpose of gaining access to the core estate, and not for the purpose of gaining access to the neighbouring land, or for the joint purpose of gaining access to the core estate and the neighbouring land, of itself will have the effect of curtailing some of these uses. Thus access for the purpose of a shoot which is conducted across the entire estate and is not confined entirely to the core estate would not be permissible for that reason alone, even if access for the purpose of a shoot was otherwise permitted under the words of grant.
39. The claimants' case on these issues is that the words of grant are tantamount to a restriction on use of the right of way for agricultural and forestry purposes. None of the three types of uses involve agriculture or forestry. Therefore none of them are permitted.
40. The claimants say that agriculture is the activity of cultivating land for the purpose of growing crops and the raising of livestock. By this definition none of the three activities complained of are agriculture. In the case of shooting the claimants pray in aid the observations of the House of Lords in Normanton v Giles [1980] 1 WLR 28. That case was concerned with whether the rearing of pheasants for sport was an agricultural occupation so as to come within the meaning of "agriculture" in section l(1)(a)(i) of the Rent (Agriculture) Act 1976. The case turned on the statutory definition of "agriculture" in that section, which included "livestock keeping and breeding" and which defined "livestock" as including "any animal kept for food wool skins or fur or for the purpose of its use in the carrying on of any agricultural activity."
41. At page 35A Viscount Dilhorne said this:

"'Agriculture' is defined in the Oxford English Dictionary (1933) Vol 1 p191 as: 'the science and art of cultivating the soil, including the allied pursuits of gathering in the crops and rearing livestock.' And 'livestock' is defined in the dictionary vol 6 p 364 as: 'domestic animals generally, animals of any kind kept or dealt in for use or profit'"

He then goes on to describe the work of Mr Giles, who was a gamekeeper and said at page 36A:

"I cannot regard any of his activities which 1 have described as agricultural activities. They were all directed to one end, to provide good sport for the respondent and those who came to shoot with him."

Reference was also made to the observations of Lord Wilberforce on page 33E to H, quoting Lord Scarman in Lord Glendyne v Rapley [1978] 1 WLR 601 and Lord Russell at page 39D.

42. While it is true that that case concerned the construction of the word "agriculture" as used in the statute, Mr Small is correct to say that their lordships were, in the passages referred to above, considering the meaning of "agriculture" in its general sense as well. I agree with him conducting commercial shoots on the estate is not an agricultural activity.
43. So far as storage of crops is concerned, Mr Small referred me to the decision of the Court of Appeal in Jobson v Record [1998] 1 EGLR 113, where the court held that a right of way for agricultural use did not permit the use of the way for the removal of produce stored, but not grown, on the dominant tenement. As Morritt LJ (as he then was) observed at page 114K: " ... neither forestry nor agriculture includes the separate activity of storing timber felled elsewhere."
44. So far as concerns the potato stall Mr Small says, I think correctly, that the

retail sale of farm produce is not of itself an agricultural activity.

45. I am therefore in agreement with Mr Small on this issue to this extent, namely that if it is correct to say that the words of grant effectively confine the permitted use of the roadway to the purposes of agriculture and forestry then none of the purposes set out above satisfy those requirements.
46. Miss Hutton however takes issue with the premise of Mr Small's submissions. She says that use of the roadway in connection with the use of the estate as an agricultural and forestry estate means that there is a wider range of permitted uses than just agricultural and forestry uses strictly so called. She argues that agricultural estates have a wider range of uses and carry on a wider range of activities than just agriculture. She says it must therefore have been in the contemplation of the parties to the deed in 1979 that the estate would or might be used for shooting, as a site for the storage of agricultural produce, and as a location for a farm shop. But Miss Hutton went so far as to submit that any economic activity which could lawfully be carried on the estate would be something done in connection with the use of the estate as an agricultural or forestry estate, provided only that the sum of those activities did not detract from the essentially agricultural or forestry character of the estate. She adopted as part of her submissions the views of her expert Mr Moody, who outlined in his report the wide range of business activities which estates nowadays carry on. Many of them are aimed at making money from tourism and from the market which now exists for rural leisure pursuits. As I understand Miss Hutton's submissions it would be permissible for the estate to use the roadway for access to activities such as hot air ballooning, a go-kart track, a gift shop, a cafe and so on. All these would be permissible uses of the roadway so long as the predominant activity carried on on the estate was agriculture and forestry.
47. I think this approach goes to far, and I cannot believe that the parties to the 1979 deed ever intended the words used to have this effect. But I do think that there is room for an interpretation which is less restrictive than Mr Small's meaning, but less extensive than Miss Hutton's. To my mind the use of the estate as an agricultural and forestry estate envisages not only agriculture and forestry strictly so called, but also other activities which one might expect to be carried on on such an estate. I think it is likely that the parties to the 1979 deed would have had such uses in mind. But I think they would only have envisaged activities which could be regarded as intrinsic to, or part and parcel of the running of such an estate.
48. I think activities could fairly be said to fall within this category to the extent that they either make use of the fact that the estate land is devoted to agriculture or forestry, or make use of the agricultural or forestry produce of the estate. In either case the activity would have to be conducted on such a scale that the estate did not lose its character as an agricultural or forestry estate. This formulation extends the range of permitted uses of the roadway to activities which, although not strictly agricultural or forestry are nonetheless part and parcel of running an agricultural or forestry estate. However, it excludes activities which could be carried out on land anywhere in the countryside, and which are not connected to the running of an agricultural or forestry estate or to the produce grown on it. It has the attraction of recognising that the usual activities carried on an agricultural or forestry estate may be wider than just agriculture and forestry, but ties any additional activities closely to the use of the estate for those purposes.
49. In my view shooting over the estate is an activity which makes use of the agricultural and forestry nature of the estate land. Running a produce stall or a farm shop which sold estate produce would also be a permissible purpose. But using the roadway as access to estate buildings used as a storage facility for crops grown outside the estate seems to me to fall outside the permitted use. Although I accept that this is an activity closely connected with agriculture, and an extension of an activity already carried on the estate (namely the storage of the estate's own produce) it is not an activity which is connected with the use of the estate as an agricultural estate. It makes no use of the fact that the estate's land is devoted to agriculture (it could be carried on anywhere in the countryside with good access to the highway) and it makes no use of the estate's own produce. If this activity were permitted one could see the way open to the conduct of a range of other agriculture related business, such as equipment hire and feed and fertiliser storage and supply. Activities of this sort do not seem to me fairly to be comprehended in the use of the estate as an agricultural estate. I therefore consider that using the right of way to gain access to the core estate for the purpose of using the core estate as an agricultural storage facility is not permitted
50. The fact that the right of way cannot be used to access the core estate for storage as an end in itself means it cannot be used for the transport of produce grown on the neighbouring land for storage on the core estate. Nor can the defendant justify using the roadway to access the core estate for the purpose of using the core estate for storing seed, fertiliser equipment or other materials which are destined for use on the neighbouring land. This answers the question left over from paragraph 24 above.

The questions for determination

51. I finally turn to the questions I am asked to determine on the preliminary issue, which for the reasons given above, I answer as follows:

(i) Does the right of way entitle the defendant and his invitees and lawful visitors to use the roadway for the purposes of access to or egress from the neighbouring land either (a) via the core estate or (b) via the public highway for the purpose of carrying out any agricultural or forestry activity thereon? Answer: No

(ii) Does the right of way entitle the defendant and his invitees and lawful visitors to use the roadway for the purposes of transporting produce grown on the neighbouring land onto the core estate?

Answer: No

(iii) Does the right of way entitle the defendant and his invitees and lawful visitors to transport off the core estate produce which is grown on the neighbouring land but subsequently stored, handled or processed on the core estate?

Answer: No

(iv) To the extent that the answers to any of the above questions may be in the negative, does the right of way entitle the defendant, his invitees or lawful visitors to use the roadway if on anyone occasion the purpose of so doing is in substance both for (i) a purpose permitted by the 1979 transfer and (ii) a purpose not permitted by that transfer?

Answer: A joint purpose of this sort is not permitted

Third Party Storage

(v) Does the right of way entitle the defendant and his invitees and lawful visitors to use the roadway for the purposes of transporting produce grown outside the estate (other than for use on the estate) onto the core estate for the purposes of storage, handling or processing thereon?

Answer: No

(vi) Does the right of way entitle the defendant and his invitees and lawful visitors to use the roadway for the purposes of transporting produce grown outside the estate (other than for use on the estate) and which has been stored, handled or processed on the core estate from the core estate?

Answer: No

The Existing Dwellings

(vii) Does the right of way entitle the defendant and his invitees (including the occupiers of the existing dwellings) and his or their lawful visitors to use the roadway for the purposes of access to or egress from the existing dwellings to the extent that any of them are occupied by persons who neither work on the Estate nor have retired from working on the estate nor are members of the households of such persons?

Answer: Yes

Future Dwellings

(viii) Does the right of way for any dwellings erected after the 1979 transfer extend to (a) any two such dwellings at the nomination of the defendant from time to time or (b) the first two such dwellings erected after the transfer; Answer: any two such dwellings at the nomination of the defendant from time to time

The Shop

(ix) Does the right of way entitle the defendant and his invitees and lawful visitors (including his customers) to use the roadway for the purposes of access to and egress from the shop if the shop is selling produce (i) grown exclusively on the core estate (ii) grown exclusively on the neighbouring land or (iii) grown on both the core estate and the neighbouring land;

Answer: Access is permitted only if the shop sells produce grown exclusively on the core land

The Shoot

(x) Does the right of way entitle the defendant and his invitees and his lawful visitors to use the roadway to go to and from the core estate for the purposes of his commercial shoot operated on the estate?

Answer: yes, provided the shoot is limited to the core estate

(xi) Does the right of way entitle the defendant and his invitees and lawful visitors to use the roadway for the purposes of going to and from the neighbouring land for the purposes of his commercial shoot operated on this estate either (i) via the core estate or (ii) via the public highway?

Answer: No, unless the use falls within (x) above.

(xii) To the extent that the answer to either of the two preceding questions are in the negative, does the right of way entitle the defendant, his invitees or lawful visitors to use the roadway if on anyone occasion the purpose of so doing is in substance both for (i) a purpose permitted by the 1979 transfer and (ii) a the purpose of the defendant's commercial shoot?

Answer: Use for a joint purpose of this sort is not permitted.