England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/12/2010

Mr Justice Field :

1. This is an expedited trial of claims for declaratory and/or injunctive relief to prevent alleged repeated breaches of a right of way. The Claimant ("Ashdale") is the freehold owner of an unmade up access road ("the road") and a cottage, known as 6 West End Cottages, in the village of Ripley, Surrey. Ashdale also owns a paddock opposite the cottage. The road leads from Ripley High Street down to an area of land owned by the 12^th Defendant, Mr Felix Cash ("Mr Cash"). The cottage is one of a small number of dwellings known as West End Cottages sited on either side of the road. Running along close to Mr Cash's land parallel with the High Street is a line of cottages called Grandis Cottages. Next to Mr Cash's land on the other side is a site consisting of a number of small plots owned individually by various of the 2^nd – 6^th and 8^th – 11^th Defendants ("the named Defendants"), all of whom are gypsies.
2. The land owned by Mr Cash and the named Defendants was once a single site in the nature of a field owned by Ashdale. In 1995, Ashdale sold this site to the 1^st Defendant's father, Mr Domenico Maioriello, with the benefit of an easement in the following terms:

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 approach roads between the points marked ….. on the plan leading into High Street Ripley aforesaid …..

3. The restriction of the use of the road to use for agricultural purposes was consonant with a restrictive covenant given in the conveyance by the purchaser to bind the conveyed land and for the benefit of retained land (as defined) not to use the land conveyed for any purpose other than agricultural or equestrian use. Unfortunately for Ashdale, the definition of retained land seems to have been erroneously drafted, with the consequence that this restrictive covenant is now unenforceable.
4. In April 2003, Mr Domenico Maioriello transfered the site to his son, Girolomo Maioriello, the 1^st Defendant.
5. In August 2003, the 3^rd Defendant sold part of the site to a Jeanette Sammon, the 3^rd Defendant who, on various dates in 2008, sold off plots that she carved out of her land to the 4^th, 5^th and 6^th Defendants respectively.
6. The 1^st Defendant sold another part of the site to a Mr Miles Cash in October 2006. On 12 January 2009, this parcel of land was sold by Mr Miles Cash to the 2^nd Defendant. On 13 May 2009, the 11^th Defendant acquired a plot within the site.
7. I shall refer to the land on which are situated the plots owned by the named Defendants as "the Sammon land".
8. Mr Cash purchased his part of the original site on 23 November 2009. The purchase was not registered until 28 January 2010. I shall return to the circumstances of Mr Cash's purchase below.
9. As I have said, access to Mr Cash's land is achieved by passage along the road. Access to the Sammon land depends on passage along the road down to Mr Cash's land and then along a track over Mr Cash's land to the Sammon land.
10. At the end of March 2009, a number of gypsies moved onto the Sammon land and started to live there in caravans, to the consternation of the occupiers of West End Cottages and the Grandis Cottages. The gypsies gained access to their site by passing along the road and they did so as trespassers since their use of the road was not for agricultural purposes. (A year earlier a group of gypsies occupying 8 caravans had moved on to the land owned by Mr Miles Cash and Jeanette Sammon but they vacated the site on 21 June 2008). In early April 2009, large quantities of hardcore were deposited on the Sammon land and the gate at the entrance onto the land still in the ownership of the 1^st Defendant was removed. Lorries, vans and cars were frequently driven along the road to the Sammon land, often at high speed, creating noise and causing dust.
11. On 29 June 2009, Guildford Borough Council ("GBC") issued an Enforcement Notice for service on the 2^nd, 3^rd, 4^th Defendant and the occupiers of land to the rear of West End Cottages, ordering that the use of that land as a caravan site should cease. On 25^th September 2009, the 2^nd, 4^th, 5^th and the 8^th -11^th Defendants, together with some of the occupants of the Sammon land, applied retrospectively for planning permission for the change of use of the Sammon land to a private gypsy and traveller site comprising eight pitches each with an amenity building and associated hard standing.
12. On Saturday 28 November 2009, just three days after he had purchased his parcel of land from the 1^st Defendant, Mr Cash organised the transportation of large quantities of hardcore onto his land. This involved dozens of very large lorries passing along the road at all hours of the day and night. Mr Cash used the hard core to lay a road through his land and also to form hard standing for 8 caravan plots. It need hardly be said that the passage of these lorries along the road constituted a flagrant trespass.
13. On 3 December 2009, Ms Rebecca Woodhatch, a GBC planning enforcement officer visited the site and saw that Mr Cash's land had been excavated and post and rail fencing erected to form 8 separate land units. The following day (4 December 2009), GBC issued a Temporary Stop Notice addressed to the occupiers of land to the rear of 1-14 Grandis Cottages, High Street, Ripley. The notice ordered that the formation of hard surfaces, paths, roadways and any activity including the provision of sewerage, water and electricity infrastructure associated with the use of caravans for residential purposes should cease immediately.
14. Mr Cash was aware of the issuance of this notice at the latest by the following morning, but lorries and men under his direction continued to work on his land during Saturday 5 December 2009. He said in evidence that this work was to repair the track over his land used by the occupants of the Sammon land to gain access to their site: the track had become a muddy strip and the families occupying the Sammon land were complaining.
15. On 8 December 2009, Sales J granted Ashdale an interim injunction restraining the first 7 defendants (i.e. including persons unknown using the road for non-agricultural purposes) from passing along the road onto the site with any vehicles or trailers other than motor cars and/or with any construction equipment or building equipment. This order was continued by Sales J on 18 December 2009 until 12 January 2010. On 23 December 2009, GBC obtained an interim injunction restraining the 1^st and 7^th Defendants and Mr Cash from using the site in breach of planning control. These orders were flagrantly ignored by the occupiers of the Sammon land and their associates. Lorries, trailers, vans, caravans and construction equipment passed along the road throughout the day and night. Thus when on 12 January 2010 Ashdale sought a further continuation of injunctive relief, it sought and was granted by Mrs Justice Proudman an injunction in wider terms that restrained until final judgement the passage along the road with any vehicles with or without any construction equipment.
16. However, the order obtained by GBC and the injunction granted by Mrs Justice Proudman were ignored, just as the earlier orders had been, and the lives of the residents of West End Cottages continued to be badly affected by the heavy use of the road by caravans, lorries, vans and cars. Anxious consideration was given by Ashdale to the question whether committal proceedings would bring about compliance but it was faced with the twin difficulties of the requirement to give 14 days' notice of committal proceedings and in naming the many individuals who were acting in breach of the orders. The police made it clear that they could not assist because they had no power of arrest for suspected breach of the injunctions. In the end, Ashdale decided to take self-help measures and after consultation with the local fire, police and ambulance services it had four large concrete blocks placed towards the end of the road where it abuts Mr Cash's land. This was done on 22 January 2010. The blocks were arranged so as to prevent vehicular access to the site, whilst at the same time allowing for wheelchair and stretcher access. As a result, vehicles were successfully excluded from the site, but the occupiers of caravans on the Sammon land continued to use the road as pedestrians to gain access to their caravans. They also started to park vehicles along the road which greatly inconvenienced the residents in the cottages. This use of the road itself constituted a trespass – the right of way being a right to pass along the road and not to remain stationary upon it.
17. On 2 March 2010, the concrete blocks were moved temporarily to allow 8 caravans to leave the site. Previously, on 15 February 2010, the retrospective planning application made for use of the Sammon Land as a gypsy and travellers caravan site had been refused and on 25 February and 1 March some of the Defendants had attempted to "break through" the blocks, causing damage to Ashdale's paddock and fence.
18. On 22 March 2010, GBC issued an Enforcement Notice ordering that: (i) the use of the site as a caravan site should cease; (ii) all caravans and mobile homes be removed from the land; and (iii) all hard surfaces and the resulting materials be removed from the land.
19. On 21 June 2010, GBC obtained an injunction unlimited as to time against the 1^st Defendant, Mr Cash and persons unknown who were occupiers or owners of the land to the rear of 1-14 Grandis Cottages in Ripley, restraining them, inter alia, from occupying the land for residential purposes or using it for stationing caravans or mobile homes for human occupation or residential occupation.
20. On 19 August 2010, those Defendants who had appealed the dismissal of their retrospective application for planning consent withdrew their appeals, save only in respect of the time for compliance.
21. On 9 September 2010, the concrete blocks were temporarily lifted at the request of Mr Doran and the 8^th Defendant to allow a further 4 caravans to leave the site. Five caravans remain on the Sammon land. They are occupied by 3 men who work for a paving business called Marshalls, a group of three women and 2 young children who arrived in September 2010, and a further male who arrived at about the same time. Mr Hughes, who lives as Ashdale's tenant in 6 West End Cottages, said in his witness statement dated 20 October 2010 that he regularly saw the three men who worked for Marshalls walking to and from the field, often being picked up and dropped off by a Marshalls van.
22. In its Amended Particulars of Claim, Ashdale seeks: (i) damages for trespass on the road; (ii) a declaration that it is entitled to obstruct all access, alternatively all vehicular access, to the site from the road; (iii) an injunction restraining the Defendants from entering on or passing along the road with or without vehicles; (iv) alternatively, an injunction restraining the Defendants from entering on or passing along the road for any purposes other than agricultural purposes.
23. Counsel for Ashdale, Miss Windsor, submitted that the only effective permanent way of preventing repeated acts of trespass on the road by the Defendants is for Ashdale to obstruct all access to the Defendants' land. 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.
24. The usual remedy for excessive user of a right of way is not the obstruction of the user altogether but an injunction to restrain use other than that permitted by the easement; see Hamble Parish Council v Haggard and Another [1992] 1 W.L.R. 122 per Millet J at 134 D-E. Where, however, it is impossible to sever the good user from the excessive user, the servient owner may prevent any use of the right. Thus, in Cawkwell v Russell (1856) 26 L.J. Ex. 34, where the dominant user used a right of drainage to drain foul water when the right was to drain clean water, the Court of Exchequer observed that where a party has a limited right in the nature of drainage and exercises the right excessively so as to produce a nuisance, the only remedy is by stopping the whole.
25. Miss Windsor drew my attention to the decision of the Court of Appeal of Trinidad and Tobago in Bernard and Bernard v Jennings and Hilaire (1968) 13 W.I.R. 502, where it was held that a servient owner of a right of way on foot was entitled to put a fence across the path in question to prevent use of the path with motor vehicles. The view is expressed in Gale on Easements, 18^th Ed para 9-95, that this decision is probably wrong. 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.
26. On the first day of the trial, the 1^st Defendant and Ashdale agreed terms of settlement, and the 2^nd and 3^rd Defendants were debarred from defending the claim by an unless order made by Master Price on 2 June 2010. As for the remaining Defendants, the 4^th – 6^th and 8^th – 11^th did not appear to contest Ashdale's claim. I was told that their solicitors, Bramwell Browne and Odedra were in the process of coming off the record. That leaves the 12^th Defendant, Mr Cash who, whilst he was prepared to submit to an injunction restraining any use of the road for any purpose other than for an agricultural purpose, strongly opposed the granting of any more extensive relief, particularly a declaration sanctioning obstruction to any access to his land.
27. Mr Cash is an ethnic gypsy of Irish descent who, despite the fact that he can neither read nor write, has been successful in business. He owns and operates a paving company, Terra Firma Paving Ltd, which has 6 vans and a staff of about 6 employees. He also owns two gypsy caravan sites, one at 9 Mile Ride, Wokingham, Berkshire, the other at 212 Bearwood Road, Wokingham. At the former there are 13 caravan pitches for use by gypsies and non-gypsies for which planning consent has been obtained and a further 22 pitches for mobile homes in respect of which he is appealing the refusal of the necessary planning consent. At 212 Bearwood Road, he has submitted an application for retrospective planning consent for 8 caravan pitches, which he says has been recommended for approval.
28. Mr Cash learned that land adjacent to the Sammon land was for sale by auction after his estate manager drew to his attention the application for planning permission made by numerous of the other Defendants for use of the Sammon land as a caravan site. Mr Cash viewed the land and then visited the Hammersmith office of the auctioneers, Barnard Marcus. There he was shown a plan of the land and saw that it was accessed by a road from Ripley High Street. He said in evidence that he assumed that this road was a public road. He was given the auction particulars but did not have them read to him. The particulars did not disclose that the road was private and the right of way restricted to use for agricultural purposes. Describing the land, the particulars said: "It is access (sic) via a right of way continuing from the ear (sic) of West End Cottages, which provides access directly to the High Street close to the village centre. Previously utilised for agricultural and more recently, as a pig farm. The site offers enormous opportunity for a variety of uses, which could include continued agricultural of (sic) possibly equestrian with a development of associated stabling. Any such development would be subject to the necessary consents if and where required. Purchasers are deemed to rely upon their own enquiries in this respect."
29. There and then, Mr Cash signed a contract of purchase for the land at the guide price, £82,000, and paid a 10% deposit. On 27 October 2009, he took the contract to his solicitor, Ms Rebecca Hawksley, who ordered an Office Copy Entry report that showed that the right of way was exercisable for agricultural purposes only. Ms Hawksley on a number of occasions asked the vendor's solicitors for copies of the auction pack but was sent instead the particulars. The land was also subject to a right of way in favour of the Sammon land, but this right was not restricted to use for agricultural purposes. On learning of these matters, Mr Cash could have declined to complete and forfeited his deposit, a course adopted by his wife with respect to a parcel of neighbouring land. Instead, Mr Cash completed the purchase on 23 November 2009. In his witness statement, he says that he used the hardcore he had trucked onto his land to make a road and for hard standings for 8 pitches. He states that he laid the hard standings both because he wanted to cash in on the grant of planning permission to the owners of the Sammon land and because, whilst awaiting planning permission, he wanted to use the land as pigsties or for horses. He goes on to say that in readiness for the use of the land for caravan pitches he applied for and was granted a licence to keep animals on the land.
30. In my judgement, Mr Cash bought the land in the hope that he would obtain planning permission for use in substantial or whole part as a gypsy caravan site enabling him to sell it on to gypsies in smaller plots. He admitted in evidence that he has never raised pigs or run any sort of farming business and I find that the hard standing was put down for the sole purpose of creating caravan pitches which could be sold once retrospective planning permission had been obtained. I also find that he had the hardcore brought onto the land to encourage other gypsies to buy plots and with the intention of trying to persuade GBC to recognise a fait accompli by granting retrospective permission. After the issuance of the Stop Notice by GBC and the grant of the injunctions down to 12 January 2010, he applied to the Rural Payments Agency not for a licence to keep animals but for a County Parish Holding number, on the basis that he already had animals on the land. He had never made such an application before. In my judgement, he made this application once he realised that his hope of selling the land on to gypsies was in severe jeopardy, and he did so to give specious cover to a claim that he intended the land, in part, for agricultural use.
31. Mr Cash defied the Stop Notice issued by GBC by continuing on December 5 2009 to lay hard core or other pieces of hard material on the track that gives access across his land to the Sammon land. Apart from this, I find that he has complied with the various orders made against him, save for a visit to the land with his legal team on 25 August 2010, which was a venial breach, if breach it was. It was submitted on his behalf by Mr Kirk that it would be wholly disproportionate for Ashdale to be permitted to obstruct all access to Mr Cash's land, thereby preventing him from using it for agricultural purposes and seriously depreciating its value.
32. I accept Miss Winsor's submission that the only way for Ashdale to prevent acts of trespass on the road both by persons wanting to expand the existing gypsy caravan site of 5 caravans and by the existing occupants of the Sammon land, is to obstruct all access to the Sammon land and to Mr Cash's land. The named Defendants and the 7^th 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 2^nd to 12^th Defendants.
33. I will, however, give all of the 2^nd to 12^th Defendants liberty to apply to allow for modification of the court's order if this is justified by subsequent events. I am also of the view that the present occupiers of the Sammon land should be given a reasonable opportunity to remove the 5 caravans currently parked there and to leave the site with their other belongings before all access to the Sammon land is obstructed. I shall hear counsel on the appropriate wording of the order to allow for this liberty.