England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE ROYAL COURTS OF JUSTICE
ON APPEAL FROM THE COUNTY COURT AT OXFORD
ORDER OF HHJ CHARLES HARRIS QC DATED 19th JANUARY 2017

		Royal Courts of Justice 7 Rolls Building, Fetter Lane, London, EC4A 1NL
		24/04/2018

Mr Justice Hildyard:


The nature of this application and my conclusions in summary

1. The Claimant and applicant (to whom I shall refer to "the Appellant") has sought permission at an oral hearing to appeal an order of HHJ Charles Harris QC dated 19 January 2017 ("the Order") by which, after a two-day trial in the County Court sitting at Oxford, the Court declared the position and extent of two disputed rights of way granted in a conveyance dated 17 November 1967 (the "1967 Conveyance"), and refused permission to appeal.
2. The oral appeal hearing followed an order made by Rose J on 7 April 2017 refusing the Appellant's application on the papers for reasons she set out at some length, but (as is usual) granting permission to the Appellant to renew his application to be heard orally.
3. At the oral hearing, the Appellant was represented by Mr Jonathan Gaunt QC, with notable clarity, expertise and moderation. The Respondent appeared by Ms Amanda Hadkiss of Counsel. The matter is not without its obscurities; and even though Ms Hadkiss entirely properly confined herself to emphasising the approach of Rose J without further elaborating the arguments which had succeeded before her, the hearing lasted considerably longer than the customary half-hour, largely due to my questioning of Mr Gaunt. At the end of the oral hearing I reserved my judgment.
4. I have concluded that, despite the obscurities, there is no sustainable basis for an appeal in respect of either of the two disputed rights of way, and I refuse permission accordingly. I set out the context and basis for my conclusion below.

The disputed rights of way

5. By the 1967 Conveyance, Messrs John and Gerald Sweet ("Messrs Sweet"), the then owners of a plot of land surrounding Aynhoe Park in north-east Oxfordshire which had previously been owned as a single unit, sold a western section of the land (known as the "Green Land") to Lieutenant Colonel Robert De Brinton and retained the eastern part (known as the "Red Land"). The Green Land has been owned and occupied by the Respondent and her husband, Mr Jeremy James ("Mr James"), since 1980. The Appellant acquired the Red Land in 2005 or 2006.
6. The 1967 Conveyance reserved rights of way in the following terms:

"… EXCEPTING AND RESERVING unto the Vendors and their successors in title a right of way at all times and for all purposes with or without vehicles over and along the tracks the approximate position of which are coloured blue on the planannexed [sic] hereto between the points marked 'E' 'F' and 'X' 'Y' on the said plan …" (clause 1).

7. Annex A to this judgment is a copy of the annotated plan annexed to that conveyance. Neither right of way has been used since the date of their grant, which has obviously contributed to the difficulty of establishing their true positions and extent.

The northern right of way

8. The right of way between points E and F (which I refer to as the "northern right of way") crosses a northern section of the Green Land. Point F lies at the boundary between the Green Land and the Red Land, where concrete tracks built by the Army during the Second World War (the "wartime tracks") enter the Green Land from the east.
9. At trial and now it was and is common ground that the line F to E follows the wartime tracks as far as they extend into the Green Land. However, the wartime tracks end at a point within the Green Land and from there the remainder of the line F to E runs in a north-westerly direction through thin woodland where no path is now discernible. The primary focus of the trial was the precise location of point E.
10. The Appellant's case was that the northern right of way terminates at a substantial stone wall of approximately six feet in height along the northern boundary of the Green Land and dividing it from a public highway named Croughton Road. Stressing that the right granted was use "with or without vehicles", the Appellant contended that, unless point E was where the way meets the highway at Croughton Road, the right would be of no practical benefit to the Red Land. The Appellant accepted that this required an opening to be made in the stone wall to achieve access to Croughton Road, which was not expressly provided for by the 1967 Conveyance; but he contended that the grant of an easement carries with it such rights as are necessary to its enjoyment, which would include making such an opening, as he would wish to make, so as to run a hard-surface roadway sufficient for lorries and cars to pass through the northern end of the Respondent's land to Croughton Road for his commercial business.
11. The Respondent's case was that point E lies at a point along the western boundary wall of the Green Land some yards south of the Croughton Road and is contiguous to a public footpath running alongside the western boundary of the Green Land. The Respondent pointed out that the reference in the 1967 Conveyance to 'tracks' must be to actual tracks existing at the date of that conveyance, and that aerial photographs taken in 1968 showed foot-worn paths leading from the wartime tracks (of which about 60% of the line from F to E consists) to a point at the northern end of the western wall where the wall had collapsed, offering access to a public footpath on the western side of the Green Land and leading to Souldern village. Since then, the Respondent had built a pedestrian gate in the western boundary wall at the place that she maintains is point E. After a complaint from the Appellant, the Appellant has been given a key to that gate, so as to enable the Appellant to enjoy what, on the Respondent's case, is the northern right of way.

The southern right of way

12. The location of points X and Y was and is not in dispute. The right of way between these points (which I refer to as the "southern right of way") crosses a southern area of the Green Land between: point Y, which is on the boundary between the Green Land and the Red Land; and point X, which is on the western boundary of the Green Land, where the Green Land adjoins a strip of land known as Lime Tree Walk. Lime Tree Walk was transferred by Messrs Sweet to a Mr Derek Kirkman by a conveyance dated 28 March 1968 (the "1968 Conveyance") and is now owned by the Respondent's neighbours, Mr and Mrs Swann.
13. The Respondent's contention at trial was that the southern right of way had been abandoned. This was disputed by the Appellant.

The Judgment of HHJ Charles Harris QC and the Order

14. For reasons given in a judgment dated 24 October 2016 (the "Judgment"), the Judge found in favour of the Respondent in respect of both the northern right of way and the southern right of way.
15. Further to the Judgment, at paragraphs 1 and 2 of the Order, and by reference to a plan annexed thereto, HHJ Harris declared as follows:

"1. The Claimant is entitled to a right of way over the Defendant's property which has the following features –

a. It is a right of way between points E and F;

b. Point "E" is the pedestrian gate on the Western boundary of the Defendant's land and abuts a public footpath (not Croughton Road);

c. It is a right that may be enjoyed for all purposes connected with the occupation and use of the land shown edged in red on the Plan;

d. It is a right of way which permits passage on foot;

e. It is a right of way which also permits the passage of such vehicle (or vehicles) as it is both practical and lawful to manoeuvre through the pedestrian gate and along the public footpath referred to in sub-paragraph b. above;

2. The Claimant is not entitled to the benefit of any right of way along the route between points "X" and "Y" on the Plan, that right of way having been abandoned."

The Judge's determination of point E on the northern right of way

16. The Judgment reveals that the Judge carefully addressed his mind first to the principles applicable to the issue of interpretation to which the dispute as to the position of Point E gave rise.
17. He cited the following extract from the speech of Lord Neuberger of Abbotsbury in Arnold v Britton [2015] AC 1619, [2015] UKSC 36 (a case concerning the meaning of a service charge clause in a lease) at [15]:

"When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to "what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean", to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 14, [2009] 4 All ER 677. And it does so by focussing on the meaning of the relevant words, in this case cl 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of: (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions."^[1]

(For comprehensiveness, I note that these principles have been held to apply to the construction of documents which create easements.^[2])

18. The Judge then cited the decision of Carnwath LJ (as he then was) in Ali v Lane [2006] EWCA Civ 1532 (at paragraphs 28, 36 and 38) in support of the proposition that:

"In the modern law the conveyance … is undoubtedly the starting point. It is only to the extent that it is unclear that extrinsic evidence may have a place.

….

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

19. It is perhaps appropriate to record that Carnwath LJ cautioned that, though not necessarily confined to evidence of long usage by the original parties to the conveyance in question, only evidence of a long period of usage and/or acceptance by both parties affected could be relied on. But it is not suggested in the Grounds of Appeal that the Judge erred in his approach to the principles of interpretation, although in argument the Appellant did not accept, as regards their application, that in this case there was any evidence of subsequent conduct which was probative of the parties' intentions (and see further below).
20. In applying these principles, the Judge, having set out the express terms of the reservation in the 1967 Conveyance, noted especially that the conveyance did not simply grant "a right of way" between points E and F: it stipulated a right of way "over and along the tracks, the approximate positions of which are coloured blue."
21. This, the Judge reasoned, was "likely to have been a reference to existing not notional tracks and not to lines on pieces of paper. The use of the definite article makes this clear. There were indeed existing tracks, but where did these terminate?" For the answer to this question, the Judge (in accordance with the principles of interpretation he had identified) looked to the available background evidence, and especially photographic evidence dated 17 April 1968 (and thus almost contemporaneous with the 1967 Conveyance) showing tracks, albeit in feint reticulation, leading ultimately not to the Croughton Road, but rather to the collapsed half wall some 4 to 10 yards to the south.
22. The Judge observed that this was supported by the fact that "it would have been very strange if a track had led to the base of quite a high wall through which there was no means of passing, because it would have been a pointless track to nowhere"; whereas it was "not surprising that a track led to a public footpath which could be got upon by walking through the gap over the collapsed piece of pathway or indeed now, through a pedestrian door."
23. The Judge referred to the evidence of Mr David Belcher ("Mr Belcher"), a local farmer who was born in the area in 1940 (or thereabouts) and has lived there ever since, and who gave a witness statement dated 7 April 2016. In his statement, Mr Belcher explains that the dilapidated section of wall was used by local residents in the 1950s and 1960s as a means of crossing from the public footpath into the woodland in the Green Land. He describes how, as a child, he and other children would go to the woods to bird nest or play and ride bicycles on the wartime tracks. To get to the woods, the young Mr Belcher and his friends:

"… just clambered over the wall (at point E) from the footpath were it had fallen down and went down the worn tracks to the army road."

In later life, Mr Belcher and others would go into the woods to shoot rooks. He also explains that men from the area would go into the woodland to collect wood, using a pram to take the wood home. They would either lift the pram over the broken-down section of wall and wheel it down the foot-worn paths into the woodland, or leave the pram on the footpath and carry the wood over the collapsed wall.

24. The Judge also identified two other features of the 1967 Conveyance itself as requiring particular mention. One was that the two lines (E to F and X to Y) on the annexed plan were drawn only to indicate "the approximate positions" of the rights of way. The second was that, whilst the 1967 Conveyance did include stipulations requiring the purchaser to erect and forever maintain a "post and two rail fence along the boundary" between the Red Land and the Green Land, and "suitable new oak field gates" at the points marked F and Y to "allow free access and egress at the points marked E and X on the said plan", it did not require the purchaser to open up the northern wall to enable access through to Croughton Road, nor to install a gate there; and nor was there any provision stipulating what sort of gate or roadway might be constructed.
25. As to the latter point, the Judge reasoned that if it had been envisaged by the parties to the 1967 Conveyance that the wall was to be opened up and a gate inserted, provision would surely have been made for that in the 1967 Conveyance, stipulating the requisite materials and design, just as had been made for gates and fencing elsewhere. The Judge concluded that "the lack of any mention of such work supports the conclusion that the parties to the agreement did not envisage a right of way through an existing boundary wall, but rather were explicitly sanctioning the use of an existing track to an existing exit where the wall was down."
26. The Judge accepted that, so far as it consisted for part of its length only of a foot-worn path, the 'track' thus identified was not one suitable for use with 'vehicles' as that expression is generally understood. As to this, the Judge suggested that the expression 'vehicles' "might well have been understood by the parties to apply [only] to the southern right of way or might conceivably have been meant to embrace such bicycles, prams or handcarts as were taken over the land by pedestrians." He relied also on the subsequent conduct of the parties, "for nothing happened": by which he meant that there was never any attempt to move vehicles up and through the wall into the Croughton Road.
27. Overall, he concluded that he was "quite satisfied that the parties to the original conveyance did not intend motor vehicles to pass through the wood to the top left hand corner of the Green Land, that is the north-western corner and to pass through the wall there to get onto the Croughton Road." He added that: "This conclusion is supported by the explicit reference to "the tracks", by the contemporary photographs which show these tracks going to the footpath not to the Croughton Road wall and by the absence of any reference to the installation of a gate in the north wall. These considerations show that the parties, in my judgment, did not intend to grant a right of way onto Croughton Road, but merely to the public footpath."
28. In the last part of his Judgment in relation to the northern right of way, the Judge rejected two counter-arguments. The first related to a later conveyance in 1974 ("the 1974 Conveyance") in which, as part of a sale of the Lodge at the northwest corner of the Red Land, it was agreed by the then surviving owner of the Red Land (which had been owned by the two brothers, Messrs Sweet, of whom Mr Gerald Sweet had by then died) that, if the Lodge's exit to the main road was closed by any competent authority, they would grant a right of way, with or without vehicles, along a path which a plan shows as terminating in the northwest corner of the Green Land, "or such other land as may be substituted for the land coloured yellow at the vendor's sole discretion". The Judge noted that the land coloured yellow approximated to the depiction of the track from the military drive in the 1967 Conveyance. However, the Judge considered that this did not assist the Appellant because: (1) the 1974 Conveyance was made by only one of the parties to the 1967 Conveyance and so (by reference to Ali v Lane [supra]) was no guide to the objective determination of the intention of the others; (2) the plan for the 1974 Conveyance lacked sufficient precision to show where the track terminated; and (3) the provision for a substitute route did "not imply confidence in the existence or validity of the right of way contended for."
29. The second counter-argument was based on a witness statement of a Mr Peter Cullen ("Mr Cullen") dated 13 April 2016 which was served on behalf of the Claimant and admitted under a Civil Evidence Act 1995 notice, since Mr Cullen had died before the trial. Mr Cullen had stated that he had been informed by the owner at the time of the 1967 Conveyance that there was a right of way reserved over the Green Land for the benefit of the Red Land and leading to the Croughton Road. The Judge dismissed this evidence, which could not of course be tested by cross-examination, as, "whatever its relevance… not necessarily likely to be correct" given that Mr Cullen had stated in 2016 that he had lived at the Lodge for 50 years, but in fact he was not on the electoral roll there before 1967.
30. Lastly in this description of the Judgment, it seems that one more general point weighed with the Judge, as follows. The Appellant has never explained why it is that he wishes to drive a roadway through the Green Land to emerge a short distance further down Croughton Road, rather than come out of an exit on his own Red Land (which would be cheaper and more straightforward). The Judge was thus unable to establish any practical purpose that would be served if the Appellant were permitted, as he said he planned, to run a substantial roadway through the northern end of the Respondent's land to Croughton Road. Vehicular access between the Red Land and Croughton Road could be provided by simply installing a gate a short distance east, through the Appellant's northern wall, and onto Croughton Road.
31. An explanation was offered by Mr James, who gave a witness statement dated 11 April 2016 (to which the Respondent affirmed her agreement by a witness statement of the same date), in which he suggested that the Appellant might be using the northern right of way "as a pressure point on us in order force us into a sale of the southern part" of the Green Land, which would be of greater value to the Appellant than the northern right of way, as it would allow him to connect the Red Land to other land which he owns to the southwest of the Green Land. This, the Judge suspected, was "[w]hat the [Appellant] really wants" (see paragraph 10 of the Judgment). Indeed, the Respondent and Mr James have offered to buy the northern right of way for £10,000, but the Appellant is not prepared to sell it.
32. The Judge recognised that commercial common sense is not to be invoked retrospectively (Arnold v Britton at [19], per Lord Neuberger), but found the context described above to be worthy of mention as a "matter of background".

Grounds of Appeal in relation to the northern right of way

33. The Appellant's Grounds of Appeal in support of the contention that the Judge was wrong to find that point E abutted the footpath of the western boundary to the Green Land, as opposed to the highway on the northern boundary of the Green Land, are admirably concise; and are that, contrary to the Judge's conclusion:

"The only sensible interpretation of the words of the reservation in context was that the parties' intention was that the vendors should have a right to make up a way suitable for motor vehicles over and along the route marked F-E on the plan, and it would have been impossible and unlawful for motor vehicles to exit the land onto the footpath as opposed to the highway."

34. These brief grounds were expanded upon in the Appellant's written submissions dated 2 February 2017 in support of his application for permission to appeal (as considered by Rose J on the papers). In summary, the following points were made: (1) the fact that the right of way had not been used was not relevant to the question of the parties' intentions; (2) the normal everyday use of the word "vehicle" is used to mean motor vehicles, and this use of the word should be preferred as being consistent with common sense; and (3) the route F-E starts as an army track capable of supporting lorries and tanks and it is implausible to conclude that, part way along, vehicular use ceases.
35. When the matter came to be reconsidered at the oral hearing, the Appellant put in new written submissions presented by newly-instructed counsel, Mr Gaunt. In these submissions, HHJ Harris and Rose J were said to have erred for six reasons:

"First, the reference to "the tracks" was entirely apposite to refer to the concrete tracks constructed during World War II as suitable for lorries and tanks.

Secondly, the tracks detected by the Judge in the 1968 photograph were merely paths through the woods made by trespassers entering the land through a collapsed section of wall and neither suitable for vehicles nor likely to have been identified as the route of a permanent right.

Thirdly, as the Judge said at [16], the blue line at EF terminated "in the right angled corner at the north west" of the Green Land and not at appoint [sic] further south abutting the footpath.

Fourthly, the right reserved was "for all purposes" and "with or without vehicles", the natural meaning of which expression includes motor vehicles.

Fifthly, the Judge was wrong to suppose that there were no contractual provisions as to access. The purchaser covenanted to allow access at point E. In any event a grantee of a right of way is entitled to form an access if that is reasonably necessary for him to enjoy the right granted.

Sixthly, the grantee's subsequent conduct is inadmissible as to the issue of construction because not probative; the grantee had other points of access to his land and was simply reserving a right which he might wish to use in the future, in which case he would have to form an opening in the wall."

The Appellant concluded that:

"The correct approach would have been to construe the right by giving their ordinary effect to the words used and what was shown on the plan, rather than by reading down the reference to "vehicles" so as to means [sic] prams or bicycles or handcarts by reference to the location of a collapsed section of wall which allowed the entry of trespassers."

36. The first point is couched in terms suggesting that the Judge failed to acknowledge the reference to "the tracks" as including the wartime tracks. However, and as previously indicated, it was not disputed that the reference to the "tracks" included the wartime tracks: the dispute was whether the reference extended also to the foot-worn tracks.
37. As to the second point, the Judge's determination that there were "foot-worn paths on tracks running between a curve in the military roadway and a wall on the east side of the public footpath which runs south from the Croughton Road", two of which could be considered as falling within the description of "the tracks" and both of which "fuse together some yards from the footpath's eastern wall" was based on near-contemporaneous aerial photographs which he described as being of good quality, and on the evidence of their user. There was no dispute that the paths were in all probability made by trespassers; but equally there was no suggestion that the paths were not known to the parties to the 1967 Conveyance. As it seems to me, Mr Gaunt's further sub-points in the context of his second point that these foot-worn paths cannot have been intended to be referred to as "tracks" because they were: (1) created by trespassers and (2) not suitable for "vehicles", fall more naturally to be addressed in the context of his fourth point.
38. The third point is correct, as far as it goes, as is evident from the plan annexed to the 1967 Conveyance; but equally clearly that plan was rough and showed only "the approximate positions", as I have previously noted that the Judge pointed out.
39. The real nub of the application is at points four and five (as set out in paragraph [35] above), for it is those two points which go to the essential reasoning of the Judge to the effect that: (1) the reference to "tracks" must be taken to be a reference "to existing not notional tracks and not to lines on a piece of paper"; (2) those existing tracks constituting the northern right of way comprised not only the wartime tracks, but also the foot-worn paths, which the Judge was satisfied on the evidence were there at the time of the 1967 Conveyance; and (3) those foot-worn paths led, not to the Croughton Road wall, but to the footpath some 10 yards south of the corner of the Green Land and the Croughton Road, so that no opening in the north wall adjacent to the Croughton Road was ever required or envisaged, which explained (4) why no express provision or specifications were made in the 1967 Conveyance in respect of such an opening, as surely they would have been had such an opening been envisaged.
40. As I see it, the question is whether the Appellant, on the evidence available, has any real prospect of demonstrating that this four-part reasoning was wrong.
41. In my judgment, the Appellant does not have any realistic prospect of overturning the Judge's conclusion that the plain and natural construction of the phrase in the 1967 Conveyance "the tracks the approximate position of which…" constitutes a reference to existing tracks. That is, as the Judge pointed out, supported by the use of the definite article, but the phrase also plainly seems to refer to an approximate existing location, rather than a line in contemplation.
42. I do not see that the fact that the foot-worn paths may have been made by trespassers tells against them having been identified and described as 'tracks' in the 1967 Conveyance, and adopted as the route of the right created. Put another way, I do not agree that the Judge's finding that the pedestrian tracks were tracks established before the 1967 Conveyance and were thus capable of falling within the description of the 'tracks' is likely to be unsettled if such pedestrian tracks were made by trespassers.
43. The reality is that, unless the expression "with or without vehicles" must, as a semantic matter, be treated as including a vehicle which could not have been used on the northern foot-worn paths, there is really nothing of substance which seems likely to be able to counter the natural construction of the phrase (assuming that it applies to the northern as well as the southern right of way) as a reference to such tracks (including foot-worn paths) as were in existence at the time of the grant.
44. The Judge did not shy away from the usual meaning of the expression "vehicle". He offered the two solutions recorded at paragraph [26] above (that is, either that the words "with or without vehicles" referred only to the southern right of way, or that the word "vehicles" was intended to bear a particularly restricted meaning), preferring not to decide between them but to adopt the overall synthesis that, whatever else, he was satisfied that the parties did not intend motor vehicles to pass through the wood to the top left-hand corner of the Green Land. I would accept that such ambivalence in the interpretation of the crucial words may not appear to be wholly satisfactory. But I cannot see any realistic prospect on the evidence available of dislodging his overall conclusion that, on one or other of the two alternative bases, the parties cannot have intended rumbling vehicles and articulated HGVs to pass through the woods.
45. As to Mr Gaunt's fifth point, I accept that a grantee of a right of way is entitled to form an access if that is reasonably necessary for him to enjoy the right granted. But that begs rather than answers the question as to the nature and extent of the right intended to be granted. The Judge was not suggesting that the right to form an access might not be implied if the right of way granted was such as to require it. His point was the anterior one: that the lack of any express provision for such a sizable opening in the northern wall strongly suggested that no right of way requiring such an opening was intended at all. I cannot see any realistic prospect of dislodging the Judge's conclusion that the lack of any express provision in the 1967 Conveyance for an opening in the old northern wall through to Croughton Road, and the further lack of any provision regulating what sort of gate or roadway might be constructed, further confirm that no right of way such as to require such an opening was intended. I share the implicit view of the Judge that it is unrealistic and unreasonable to suppose that the vendor, had he intended there to be an opening through the old northern boundary wall of a size sufficient to accommodate cars and HGV trucks, would have left its design and the materials to be used entirely unspecified and unregulated, having been so careful to specify the materials for the post and two-rail fence along the boundary A-B (between the Red Land and the Green Land) and "suitable new oak field gates on oak posts" at the points marked F and Y.
46. That leaves only, in relation to the northern right of way, the Appellant's sixth point. As to that, I would be prepared to accept the Appellant's case that the grantee's failure to make use of the northern right of way is not probative as: (1) the grantee had other points of access and the fact that he did not require to use the right does not necessarily signify that it never existed; and (2) the 'evidence' is only of the subjective intention of one party to the 1967 Conveyance, not the objective intention of both. However, in my judgment, the removal of this further support causes no realistic prospect of upset to the Judge's essential conclusions.

Conclusion as to appeal relating to the northern right of way

47. Accordingly, and having had the benefit of much more detailed examination of his case than is usual on an application for permission to appeal, I do not consider that there would be any real prospect of the Appellant succeeding in his appeal in relation to the northern right of way, and for that reason I refuse the permission sought to bring it.

The southern right of way

48. I turn to the second issue, which is whether permission should be given for the Appellant's appeal against the Judge's decision that the southern right of way between points X and Y had been abandoned.

The Judge's reasoning in concluding that the southern right of way was abandoned

49. The Judge dealt with this second issue relatively shortly in his Judgment. The essence of his reasoning was that the sale by Messrs Sweet of Lime Tree Walk effected by the 1968 Conveyance (see paragraph [12] above) resulted in there no longer being any useful destination for the southern right of way at point X; and since thereafter the right of way did not lead anywhere to which the user had a right to go, it should be treated as abandoned.
50. On the test of abandonment, the Judge cited the following passage from the nineteenth edition of Gale on Easements, at paragraph 12-71:

"A presumption of abandonment will arise where there are circumstances adverse to the user and sufficient to explain the non-user combined with a substantial length of time during which the dominant owner does some act clearly indicating the firm intention that neither he nor any successor in title of his should thereafter make use of the easement. It has been said that abandonment is not to be lightly inferred, owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it."

This passage is consistent with the authorities, particularly the summary of the law in the judgment of Buckley LJ in Gotobed v Pridmore (1971) E.G. 759 (with whom the remainder of the Court of Appeal agreed).

51. The Judge noted that non-user, which in the present case had been evident for almost 50 years, was insufficient on its own to establish abandonment. However, he determined that, by selling Lime Tree Walk in 1968, Messrs Sweet:

"… had indeed done an act clearly indicating the firm intention that neither they nor any successor in title should thereafter make use of the easement, this is because they had divested themselves of any destination which it might be used to reach."

52. The Judge cited the following extract from the judgment of Lindley LJ (as he then was) in Midland Railway Company v Gribble [1895] 2 Ch 827 at 831:

"He conveyed the land to Mr Plowman without granting him any right of way over the retained land and without reserving to himself any right of way over the land conveyed to Mr Plowman, that is to say he severed his land in such a way as to show conclusively that this occupation way over the railway was no longer of any use to him and to show conclusively that he never intended to use it thereafter. That appears to be a clear and distinct abandonment of the right of way over the railway."

The Grounds of Appeal and submissions in relation to the southern right of way

53. In his Grounds of Appeal, the Appellant claimed that the Judge was wrong to infer that the southern right of way had been abandoned by the Appellant's predecessors in title by virtue of the 1968 Conveyance:

"… when in fact the words of the conveyance itself made it clear that their express intention was otherwise and/or, there was insufficient evidence to establish an inference that the right of way had been abandoned."

54. In his written submissions in support of his paper application for permission to appeal, the Appellant noted that the 1968 Conveyance contained the following right of way:

"… a right of way for the Purchaser and his successors in title with or without vehicles (in common with the Vendors and others similarly entitled) over and along the track the approximate position of which is coloured blue on the plan B annexed hereto between the points marked A B and C to the public highway (but subject to the right of the Vendors and their successors in title to prescribe an alternative route for such right of way between the points marked A and C) for the sole use of emptying the septic tank situated on the Purchasers adjoining property and for the removal of timber now standing on the property hereby conveyed …"

55. Point "A" in the 1968 Conveyance plan is point "X" in the 1967 Conveyance plan; and point "B" in the 1968 Conveyance plan is close to point "Y" in the 1967 Conveyance plan (point "C" in the 1968 Conveyance plan is in the north-east corner of the Red Land). The Appellant has therefore claimed that it is at least arguable with a real prospect of success on appeal that the reservation of the right of way in the 1968 Conveyance is evidence of "Messrs Sweet's intention to preserve the right of way for their future benefit".
56. I accept, as did Rose J in refusing permission on the papers, that the Judge did not refer in his Judgment to the reservation of the right of way in the 1968 Conveyance, and so it was not clear whether this was pointed out to him at trial (although I see that Rose J also noted that counsel for the Appellant at trial was the same counsel who drafted the Grounds of Appeal and written submissions for the application for permission to appeal).
57. In his oral submissions at the hearing before me, Mr Gaunt made three further points on behalf of the Appellant:

i) It is not correct that Lime Tree Walk is the only place that the southern right of way could have been intended to reach. It might well have been intended to lead to a public footpath a few yards south of point X, which can be seen on the plan annexed to the 1967 Conveyance.

ii) While it was correct that the Respondent needed the permission of the present owners of Lime Tree Walk, namely Mr and Mrs Swann, in order to access Lime Tree Walk, Mr and Mrs Swann could in fact grant permission and there is no evidence that they would not do so. It was not necessarily the case, therefore, that the southern right of way had no practical purpose.

iii) Midland Railway should be distinguished because, unlike the grantor in that case, Messrs Sweet did not sever their land by way of the 1968 Conveyance.

My assessment of these arguments

58. As to (i) in paragraph [57] above, it is difficult not to be struck by the incongruity of the argument compared to the Appellant's position in relation to the northern right of way; but by the same token, it might be argued that the possibility that the plan annexed to the 1967 Conveyance may not accurately describe the route of the southern right of way cannot entirely be excluded. However, whereas in the context of the northern route the Appellant's case depended on the disputed nature of the foot-worn path and a dispute as to what was meant by the reference to 'the tracks', no such dispute was raised or appeared from the evidence as to the nature and route of the southern track. The alignment of the southern track with Lime Tree Walk is both clear and entirely logical, given (as Mr Gaunt himself pointed out) that at the time of the 1967 Conveyance, Messrs Sweet (the sellers) owned land on both sides of Ryelands, namely Lime Tree Walk to the west and the land to the east, and the right of way they reserved in 1967 benefited and was appurtenant to both parcels. There is nothing but bare conjecture to support the suggestion that the intended alignment was with a public footpath some yards to the south. If the Sweets had intended for the southern right of way to be used to access the public footpath near point X, they could very easily have provided for it to terminate at this point rather than some distance to the north. Such conjecture is insufficient, in my judgment, to establish or support a real prospect of success on appeal.
59. In my view, point (ii) in paragraph [57] above adds very little. While it is, of course, true that the occupiers of Lime Tree Walk could give permission for passage over their land, if Messrs Sweet had wanted to be able to pass through Lime Tree Walk after they sold it, they might be expected to have reserved rights of way to that effect, as they did in the context of other dispositions.
60. As to point (iii) in paragraph [57] above, I accept that Messrs Sweet did not sever their land, as occurred in Midlands Railway. However, this does not detract from the primary issue: the Judge concluded that the sale of Lime Tree Walk, combined with the lengthy period of non-user, was sufficient to evidence a recognition of intention on the part of Messrs Sweet that they no longer had need for, and therefore intended to divest themselves of, the southern right of way, and I do not see any real prospect of establishing on appeal that this conclusion was incorrect. Further, I agree with Rose J that the limited rights of way contained in the 1968 Conveyance are insufficient to demonstrate an intention to retain the southern right of way.

Conclusion as to the appeal relating to the southern right of way

61. Accordingly, although I bear much in mind the principle that abandonment is not to be lightly inferred, and non-user is not of itself conclusive evidence that a right has been abandoned, I have concluded that there is no real prospect of the Appellant upsetting on appeal the Judge's conclusion of fact on the basis of the surrounding circumstances demonstrated by the evidence before him, and his consequent declaration, that the southern right of way has been abandoned. I do not consider that any of Mr Gaunt's further arguments, though most ably expressed, are sufficient to sustain and justify an appeal.
62. I therefore dismiss the Appellant's application for permission to appeal on the second ground also.

Note 1   Lord Neuberger went on (at [17]-[23]) to emphasise seven factors, of which the first six are relevant to the present case (the seventh being limited to the interpretation of service charge clauses). HHJ Harris QC referred to the third such factor (that commercial common sense is not to be invoked retrospectively) at [14] of his Judgment. Lord Neuberger’s seven factors are: (i) “the reliance placed in some cases on commercial common sense and surrounding circumstances (eg in Chartbrook [2009] AC 1101, paras 16-26) should not be invoked to undervalue the importance of the language of the provision which is to be construed”; (ii) “when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning”; (iii) commercial common sense is not to be invoked retrospectively”; (iv) “while commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight”; (v) “When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, and which were known or reasonably available to both parties;” (vi) “in some cases, an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention”.    [Back]

Note 2   See, e.g., the cases cited atGale on Easements, 9-20, fn. 57.    [Back]