England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY

		Birmingham Civil Justice Centre, 33 Bull Street, Birmingham, B4 6DS.
		31st May 2012.

JUDGE SIMON BARKER QC :

1. This action concerns a right of way along a track ('the track') running across the Claimants' land from a public highway known as Stocks Lane to the Defendant's land.
2. Although the Defendant's land has a small section of frontage to the same public highway the only route for vehicular access to the Defendant's land is said to be along the track.
3. The Defendant's land comprises approximately 37 acres of field or farmland and approximately one acre of woodland. It is irregular in shape. Apart from a frontage of approximately 100 metres or thereabouts to Stocks Lane, the Defendant's land is surrounded to the north by Leigh Brook, to the east by the continuation of Leigh Brook and by woodland, to the south by the Claimants' land and to the west by the Claimants' land.
4. For some years prior to 1991 the Claimants' land and the Defendant's land were in the common ownership of a Mr Timothy Siviter, who has given evidence in this trial. The right of way was created on 1^st November 1991 when he sold the land over which the track runs in two parcels, one to a Mr and Mrs Stokes and the other to a Panamanian company as nominee for the Swiss trustee of a settlement created by and/or for Mr and Mrs Stokes.
5. In the recent past, and in order to access his land other than by the track, the Defendant has attempted to build a hardcore-based track that would support the weight of vehicles along the line of a public footpath running across his land from the point where it meets Stocks Lane. However, the Malvern Hills District Council had not given permission for the construction of this route and they required the Defendant to remove the hardcore he was laying down and to reinstate the land, which he has done.
6. The right of way, as reserved by Mr Siviter for the benefit of what is now the Defendant's land, is, so far as material, in the following terms : '…a right of way at all times with or without vehicles over and along the track' and then there is an identification plan reference 'for the purpose only of pursuance of the agricultural use of' and then there is a reference to what is now the Defendant's land.
7. This right of way was subject to a condition to pay a proportion of the cost of maintenance and repair of the track to which I shall refer later.
8. At the time, the land retained by Mr Siviter included in addition to what is now the Defendant's land other land to the south of the track and to the south of the Defendant's land some of which is now owned by the Claimants.
9. The Defendant purchased his land in 2003 with a view to breeding horses on the land. Although horses had been grazed and exercised on the land, there is no evidence that prior to that time it had been used for stabling or breeding horses.
10. The best evidence of use of the land prior to and at the time of the November 1991 conveyances creating the right of way was given by Mr William Lambert, a witness for the Defendant, who was born at Lower Tundridge Farm, which is now the Claimants' home and on the Claimants' land, in July 1943. By that time Lower Tundridge Farm had been occupied by Mr Lambert's forebears, initially as tenants and then as owners, for upwards of a century. After marrying in 1973 Mr Lambert moved to a nearby cottage, where he still lives. Thus he is a valuable source of some 70 years' worth of direct knowledge of the land in the locality.
11. Mr Lambert notes that the right of way is also a public footpath; although Mr Demachkie submitted that it is not, he did not challenge Mr Lambert's evidence that it is.
12. Mr Lambert makes clear that until 1978 the fields now owned by the Defendant were hop yards. In 1978 the hop yards were removed and the fields were mainly used for growing corn, with some fields being left for pasture for grazing horses. Following the purchase of the Claimants' and Defendant's land by Mr Siviter in 1987, some of the fields were let to a local farmer, who grazed sheep and cattle until 1991.
13. Throughout all this period there was a variety of equestrian use of and activity on what is now the Claimants' and the Defendant's land. Mr Lambert also spoke of farm horses being stabled on the Claimants' land and working the fields, including what is now the Defendant's land, during his family's ownership of Lower Tundridge Farm.
14. Adults and children are said to have exercised and ridden horses and ponies across the Claimants' and the Defendant's land and along the track, and the North Ledbury Hunt did (and still does, according to Mr Lambert) ride across the Claimants' and the Defendant's land.
15. After 1991 and in the years leading up to the Defendant's purchase of the fields accessed by the track the fields (or some of them) were used for growing oilseed rape.
16. Mr Lambert's evidence is clear. Having observed him during cross-examination, I have no hesitation in accepting his evidence as reliable.
17. The Claimants do not object to the Defendant using the right of way in connection with or for the furtherance of the grazing or the exercising of horses.
18. Indeed over the period 2008-2010 the Claimants permitted the Defendant to graze horses on their land to the south of the track and to the south of the Defendant's land pursuant to a grazing licence; and, over the same two-year period, the Claimants also granted the Defendant a lease of stables originally built, according to Mr Lambert, as hop workers' barracks, situated adjacent to and, in my judgment and notwithstanding evidence to the contrary from the First Claimant, necessarily and inevitably accessed via the track in which stables the Defendant kept thoroughbred horses.
19. In March 2009 the Defendant was granted planning permission to use the barn which he had built on his land as stables, and in 2010 a retrospective application for an all weather manège was also granted.
20. At about this time the Defendant also brought a mobile home on to his land for use by an employee during the foaling season. Planning permission was refused for the mobile home and it has been removed.
21. These events in and around 2010 mark the establishment of "Tundridge Stud" as a business. The Claimants object to the use of the track in connection with this business. Examples of use objected to by the Claimants include the passing and re-passing of horse lorries, JCBs, dumper trucks, cars and 4x4 vehicles. The Claimants contend that every journey along the path by vets, farriers, feed suppliers, commercial visitors, oil suppliers and manure contractors also constitute unlawful use of the track.
22. The Defendant's land is for the most part registered with DEFRA as Grade 3 or Grade 4 agricultural land. Grade 4 is poor quality land mainly suited to grass or pasture. Grade 3 is land in a somewhat better condition suitable for crops but subject to moderate limitations.
23. Against that summary of the factual background I return to the relevant words of the right of way by which the Defendant is entitled to use the track :

- at all times

- with or without vehicles

- for the purpose only of pursuance of the agricultural use of the land.

24. Mr Demachkie, the Claimants' counsel, submits correctly that the starting point for the court is to consider whether or not the parties have used unambiguous language and that if they have the court must simply apply the language used to the facts of the case, (see Rainy Sky S.A. v Kookmin Bank [2011] UKSC 50 and in particular the speech of Lord Clarke at para. 23).
25. The issue here is whether the phrase 'pursuance of the agricultural use of the land' is unambiguous.
26. Mr Demachkie submits that there is no ambiguity about the phrase because (1) the key to the permitted use of the track is the meaning of the word 'agricultural' and (2) whether reference is made to definitions in statute, standard dictionaries or case law, the word 'agricultural' does not encompass the keeping (i.e. the stabling, rearing or breeding) of horses unless that use is ancillary to the main agricultural use of the land. As a fallback submission, Mr Demachkie submits that even if that is wrong and reference is properly to be made to the actual use of the Defendant's land at the time of and prior to the 1^st November 1991 conveyances, there is no evidence that the Defendant's land had been used for the breeding or stabling or training of horses.
27. Mrs Pigott, the Defendant's counsel, acknowledges that agricultural use does not ordinarily extend to running a stud farm. She submits however that : (1) the Defendant's land is used as agricultural land, being grazing land; (2) since 9^th March 2009 the Defendant has had permission to keep horses in the building originally built as a barn i.e. to stable horses on the land; (3) in and before 1991 the track was habitually used by Mr Siviter and others as well and before him for equestrian purposes; (4) that the Claimants acknowledged that equestrian use was consistent with the right of way granted by leasing the stables on or adjacent to the track to the Defendant and by granting a licence in respect of the fields to the south of the track as a gallop and as a paddock; and, (5) that in the context of Part III of the Highways Act 1980, which concerns the creation or adoption of new roads and paths, agriculture is defined as including the breeding or keeping of horses. That is a reference to Section 29 of that Act.
28. In addition, Mrs Pigott submits that the words surrounding the phrase 'agricultural use' in the right of way are not to be ignored or regarded as unnecessary verbiage. In particular she observes that (1) 'pursuance' is a noun which is predicated upon there being an existing state of affairs; (2) the use of the definite article before 'agricultural use' transforms an abstract concept into a particular situation; and, (3) the reference to 'the Vendor's land' provides the context by reference to which the agricultural use is to be objectively understood.
29. Mrs Pigott refers to a passage in the judgment of Mr Justice Farwell in Toddrick v Western Omnibus Co [1934] Ch 190 at 206 and also to the Scottish appeal case in the House of Lords of Moncrieff v Jameson [2007] 1 WLR 2620 and the speech of Lord Hope at para. 7, and takes them together as authority for the proposition that when deciding upon the meaning of an easement or a grant account may be taken of the use to which the dominant tenement was being put or might then reasonably have been expected to be put in the future.
30. Mr Demachkie did not argue to the contrary and I have no reason to do other than to accept that proposition.
31. However, this must not be taken too far; and, the court must always bear in mind that, when faced with a dispute as to the meaning of a document, the task is to conduct an objective inquiry in order to ascertain what a reasonable person having all the background knowledge which would be available to the parties would understand the document to mean. The court may not attempt to improve the document but it must identify and state its objective meaning.
32. Mr Demachkie submits that in this case the words surrounding the phrase 'agricultural use' including the preceding definite article 'the' are merely stylistic and are of no significance. To support this proposition he relies upon the use of the definite article later in the same right of way grant in the charging proviso.
33. In my judgment, the words used in the grant do, as Mrs Pigott submits, admit of more than one possible meaning. On the one hand, they may be, as Mr Demachkie submits, entirely neutral in their impact upon the phrase 'agricultural use.' On the other hand, there may have been something about the use of the land retained by Mr Siviter which was in context objectively to be understood to be agricultural and capable of continuing or being likely to be followed in the future. In reaching this conclusion, I have borne in mind the reliance placed by Mr Demachkie on Partridge v Lawrence [2003] EWCA Civ 1121, Vitol BB v Compagnie European des Petroles [1988] 1 Ll.Rep 574, and the cited extracts from Sir Kim Lewison's book on the Interpretation of Contracts 5^th ed. However, I consider it necessary in this case to have regard to the factual matrix in order to ensure that the meaning of the right of way granted may be properly determined.
34. Mr Demachkie and Mrs Pigott have referred with different emphasis to three further authorities.
35. First, in Sykes v Secretary of State for the Environment [1980] PCR 19, the Divisional Court had to consider whether planning permission was required for the keeping of horses on land. This question was determined by adopting a purposive approach to the use of the land. Grazing horses did not require planning permission. However, keeping horses did. Both Lord Justice Donaldson (as he then was) and Mr Justice Kilner-Brown acknowledged that the use might be mixed, in which case their view was that the purpose was to be determined by the predominant or substantial use.
36. Next, in Whitsbury Farm and Stud Ltd v Hemens [1988] 1 AC 601, the House of Lords was concerned with whether stud buildings were agricultural buildings for rating purposes and, if so, were thus exempt from rating. In that case, the land was used for pasturing the ratepayer's thoroughbred horses. The buildings were used for breeding, rearing and keeping the horses. The House of Lords unanimously held that such was an independent purpose which was not agricultural.
37. Lord Keith, with whom Lords Brandon, Griffiths and Oliver agreed, held that when considering the buildings on agricultural land their use is to be accessory to the land which is to be regarded as principal. Lord Goff arrived at the same conclusion by a different route. In particular, he did not follow the principal / accessory analysis and cited as a reason for not doing so an example in modern day farming in which the buildings and land may be regarded as equally important. For Lord Goff, the litmus test was whether the operations being performed on the land, including the buildings, viewed as a whole were agricultural or not. Lord Goff expressly held that the operation of breeding and rearing of thoroughbred horses for the purposes broadly described as recreational does not properly fall within the definition of an agricultural operation.
38. Finally, Mr Demachkie and Mrs Pigott referred to Gainsborough-Field v Hyde and others [2005] EWHC 2229 QB which concerned a right of way granted 'for all purposes in connection with the present and any future agricultural use of the property both with or without vehicles, animals or equipment.' The main issue was whether the right of way permitted access for the purposes of keeping and grazing ponies for recreational riding. The judge, His Honour Judge Seymour QC, was referred to both Sykes and Whitsbury Farm and Stud.
39. The learned Judge held that (1) whether or not it was logical, the authorities drew a well-established distinction between grazing and agricultural activity and keeping, stabling and looking after horses, so that keeping would have to be ancillary to grazing for it to be an agricultural use or purpose; and, (2) livestock, as a matter of ordinary English, does not include horses kept for recreation as distinct from working horses used in agriculture. The judge held that when construing the grant he could also consider whether the convention of the parties at the date of the grant was that keeping horses was an agricultural use. In fact both counsel before him agreed that this was a proper approach for the court to take. It was by that route that the judge came to the conclusion that stabling and grazing for horses and ponies was by convention between the parties an agricultural use. It is the approach by reference to a convention which Mrs Pigott urges upon me as the correct approach.
40. In the case before me there is clear evidence of recreational equestrian use of the Defendant's land at the time of the grant and of the use of the track for the purpose of accessing the Defendant's land. In that context, I reject as unrealistic the Claimants' evidence that the horses stabled in the converted hop barracks made or could have made their way to and from the stable without setting hoof on the track. However, that is quite different from operating a stud farm from the Defendant's land and using the track to access the stud farm.
41. Referring again to Whitsbury Stud and Farm, I note that Lord Keith identified as the use of building the breeding, rearing and keeping of thoroughbreds and held that that purpose did not serve the agricultural use of the land and that thoroughbred horses were not 'livestock' in the context of a statutory reference to 'buildings used for the keeping or breeding of livestock'. However, Lord Goff excluded from agricultural operations the breeding and rearing of thoroughbreds but not – at least not expressly – keeping them in buildings.
42. Just as dairy farming had moved on in the century between the publication of Tess of the D'Urbervilles and the House of Lord's decision in Whitsbury Stud and Farm, so too has the general approach of farmers to animal husbandry. Grazing horses, whether they be shires for agricultural use or point to point ponies or brewery shires or racing thoroughbreds, is an agricultural activity – in plain English and under the statutory definition to which I have been referred; and, this proposition is not contradicted by case law.
43. In my judgment, the activity of grazing or use of the land for grazing would not cease to be agricultural if there was a stable on the land and the horses were kept there overnight and/or in inclement weather. That would be a matter of good husbandry and not a matter which would dominate the grazing use of the land.
44. In my judgment, keeping horses on the land for grazing would not cease to be an agricultural activity if the land was insufficiently fertile or productive to yield sufficient fodder or if hay or other food had to be brought in provided the land was suitable itself for grazing, which in the case of the Defendant's land appears to be the case according to the DEFRA classification.
45. Thus, the use of the track to bring horses to and from the Defendant's land for grazing, for the carriage of fodder, for access by vets, farriers, other suppliers or contractors, and staff to bring in and turn out the horses grazing on the land are in my judgment all permitted uses of the track. For the avoidance of doubt, this includes transporting the horses by vehicle to and from the Defendant's land for grazing.
46. Where the line is crossed is, my judgment, in the operation of a stud farm. That falls outside the ordinary meaning of agriculture, outside the statutory definition of agriculture to which I have been referred, and outside the case law definitions of agriculture and agricultural use or operations, and outside the scope of any convention between the parties or their predecessors in title in operation on or prior to 1^st November 1991. Nor is there any evidence of such use being considered to be a likely future use of the land at that time in 1991.
47. Thus, in my judgment it is not open to the Defendant to use the track as a means of access to and from his land for the purpose of the Tundridge Stud Farm.
48. The remedies sought are declaratory, injunctive and pecuniary. As to the declaration sought, it seems to me that there is little point in formulating an alternative version of the right of way; and so, on the formula that has been proposed I am not inclined to make a declaration.
49. As to an injunction, that is the usual remedy and damages in lieu should only be awarded in exceptional circumstances. Exceptional circumstances however include whether it would be oppressive to the Defendant to grant an injunction. In my judgment, it would be impractical - at least at present - as it is not possible simply to turn off the operation of a stud farm. Other arrangements will have to be made in the meantime (which is not of course a reference to an endless piece of string) to have the stud horses fed pending their removal elsewhere and existing contracts in relation to breeding or exercising may have to be honoured.
50. As to a pecuniary remedy, the First Claimant has given evidence as to the nuisance effect of the passage of vehicles, including horse transporters, along the track. The Second Claimant has given written evidence but as she has decided not to attend for cross-examination I attach no weight to her statement. In terms of the disturbance however, the rural idyll described by the First Claimant is also blighted by what he has described in a planning objection referred to in evidence as constant overflying by test flights and RAF training flights. By comparison, traffic noise likened to that on a countryside public highway is not likely to be particularly intrusive.
51. The trespass began in the late Spring of 2010 and has continued unabated since. It is not trifling and it does cause some intrusion. Viewed from this perspective, it seems to me that an award measured at the rate of about £100 per calendar month would be fair and just compensation. On the basis that the nuisance started in May 2010 at the latest we are now 25 months further on.
52. I must also have regard to the benefit which the Defendant has derived from the abuse of the right of way. Use of the track was and is essential to the operation of the stud farm. In a hypothetical negotiation between persons in the Claimants' position and a person in the Defendant's position before the trespass, and taking into account the Claimants' trump card of having the only viable means of access to and from the stud farm for vehicles, and also having regard to the Defendant's obligation to contribute to the maintenance and the repair of the track, and on the basis that the Defendant would expect to make some profit from the stud farm, I ask rhetorically would the resultant negotiation yield a tariff in excess of £100 per calendar month? If, as should be, it is a hypothetical prospective negotiation, the actual profit would be unknown and there would be a realistic risk that no profit at all would result from the operation of a stud business.
53. I was referred in the context of the hypothetical negotiations to both the Court of Appeal and the further decision of Mr Justice Vos in the case of Stadium Capital Holdings v St Marylebone Property Co [2011] EWHC 2856 Ch, which is the reference back to Mr Justice Vos following the Court of Appeal decision. There are however two points of distinction between that case and the position of the Claimants and the Defendant : (1) the Claimants and Defendant are neighbours; and, (2) the trespass is not solely in furtherance of an operation geared to the maximisation of profit. I therefore think and hold that a higher tariff than £100 per calendar month would not be achieved as the result of a hypothetical negotiation.
54. I now come to the final issue, which is the apportionment of the agreed cost of the works to be undertaken to the track in accordance with the Defendant's obligation under the right of way to pay on demand a fair proportion of the costs and expenses of maintenance and repair of the track. Such contribution is ordinarily to be calculated by the surveyor for the time being of (on the facts of this case) the Claimants whose decision is to be final except in the case of manifest error.
55. As I understand the First Claimant's evidence, his surveyor's view is that because only the Defendant made use of the track it is obvious that the entire costs should fall on the Defendant. Were that to be his decision it would in my judgment constitute a manifest error. Reasons would include that such a view (1) would entirely disregard the Claimants' obligations as an occupier and servient tenement holder, and (2) would entirely disregard all factors other than actual use, which is of course relevant but by no means determinative.
56. Whatever view the Claimants' surveyor may have expressed to the First Claimant, upon advice the Claimants' case is that the Defendant should contribute 75% of the costs as his proportionate share. That proportion takes into account the fact that user is not the only relevant factor and makes allowance for the fact the track is an asset of the Claimants in which they have an interest and which they have a further interest in preserving. It also takes account of the fact that over time weather will cause the surface of both the tarmacadam length of the track and the compressed stone length of the track to deteriorate and that is not something that is solely attributable to the Defendant.
57. The First Claimant's evidence is that the track was in good condition when he and his partner acquired Lower Tundridge Farm; that there was no drain alongside any length of the track; that he and his partner have made minimal use of the track and no vehicular use of the track; that all damage is attributable to the Defendant's use; and, that the Claimants have deferred attending to the track pending the outcome of this case. Mr Lambert gave evidence that there used to be a ditch alongside the track into which rainwater would run off, which evidence I accept.
58. Mrs Pigott submits that (1) the Claimant is under no obligation to maintain the track but that he neglected to do so at his own risk and (2) a further consequence of such neglect given the right to repair and demand a proportion of payment from the Defendant is that the Claimant should bear the consequential cost of delay.
59. It is also relevant that when the Defendant sought a self-help remedy by hiring labour to dig a ditch alongside the track he was politely told to desist by the First Claimant.
60. The allocation of a proportion of the cost is not an exact science and there is little evidence about the effect of weather – rain and ice – coupled with delay in effecting repair. In my judgment though the effect of weather is not immaterial, neither is the delay, and as a burden this should fall significantly on the Claimants as they have chosen to retain the track and exercise control over its maintenance and repair. I must also have regard to the Defendant's use, which is unauthorised and extensive. Bearing in mind all the circumstances to which I have been referred, I consider that the Defendant should contribute 60 % of the repair costs pursuant to his obligation under the right of way. That is my judgment.
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