Neutral Citation Number: [2023] EWHC 343 (Ch)
Case No: CH-2021-000244
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS LIST
ON APPEAL FROM THE COUNTY COURT AT NORWICH
DECISION OF HHJ WALDEN-SMITH OF 30.9.2021
Royal Courts of Justice
Rolls Building
Fetter Lane
London EC4A 1NL
Date: 21/02/2023
Before :
SIR ANTHONY MANN
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Between :
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(1) GARY DAVID HARRY HAMBLING (2) (2) KERRY ANNE HAMBLING |
Claimant |
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(1) GARRY LAWRENCE WAKERLY (2) JENNY WAKERLY |
Defendant |
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Dermot Woolgar (instructed by Holmes & Hills LLP) for the Appellant
Charles Irvine (instructed by DAS Law) for the Respondent
Hearing date: 23rd January 2023
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Judgment Approved
Remote hand-down: This judgment will be handed down remotely by circulation to the parties or their representatives by email and release to The National Archives. A copy of the judgment in final form as handed down should be available on The National Archives website shortly thereafter. The deemed time and date of hand down is 10am on Tuesday 21st February 2023.
Sir Anthony Mann :
The background to this appeal
The easement
“All that Cottage known as Garden Cottage 1 Tills Farm Cottages Hadleigh Road Boxford comprising 0.26 acres or thereabouts together with the field formerly part of Tills Farm Boxford comprising 2.05 acres or thereabouts all of which property is for the purpose of identification only shown edged red on the plan annexed hereto together with the right of way for all purposes with or without vehicles at all times of the day and night over and along the access road has coloured yellow on the plan annexed hereto but subject to access over the road marked “Drive” only being used for access to the field not to Garden Cottage.” (emphasis provided - that is the wording of the easement)
“To maintain in good state of repair and condition those boundaries marked with the inward facing ‘T’ marks on the plan and any boundary features erected within the perpetuity period and to bear half the cost with the adjoining owner of the cost of repairing maintaining and renewing any boundary marked with a ‘T’ on both sides this being a shared boundary.”
As will appear, there is one relevant boundary for present purposes, namely the boundary between the cottage and the track, running up from the road. A hedge is shown there with internal “T” marks.
The judge’s determination
“28. As is set out in Gale on Easements (21 st Ed) paragraph 3.14 “the extent of the right granted depends on the express terms of the grant. Those terms must be construed in accordance with the general rules as to the interpretation of legal documents.” Consequently, the construction of the express grant of a right of way over the Track, as set out in the Transfer of 30 March 2001, requires the meaning of the words to be assessed in light of their natural and ordinary meaning; any other relevant provisions in the Transfer of the overall provisions; the facts and circumstances known or assumed by the parties at the time that the Transfer was executed in March 2001; and commercial common sense. In taking into account the context of the words of the Transfer themselves, it is important that the process of construction is objective and does not take into account subjective intentions, albeit that all facts and circumstances can be taken into account as an aid to interpretation. See Gale on Easements (21 st Ed.) paragraphs 3-14 and 9-18 and 9-26.”
“29. The natural and ordinary meaning of the words of the express grant is that the Drive (ie the Track) is only to be used for access and egress to the Field and not to Garden Cottage. There is nothing complex in the construction of the wording of the express grant and there is no need to go any further. The straightforward, objective, construction of the Transfer is supported by the surrounding evidence.”
“36. The express right of way in this matter is clear. Not only is it for the benefit of the Field but it is expressly said not to be for the benefit of Garden Cottage. Garden Cottage is not part of the dominant tenement and while, for the historic reasons already set out, it was transferred with the Field, the Field and Garden Cottage did not take the benefit of the same rights of way.
37. While I was initially attracted to the argument that the right of way for the benefit of the Field has worded included with it a right to pass over the Track to and from Garden Cottage, on reflection I do not consider that to be the correct interpretation of the express right of way. Both the Track and the triangular access to the west of Garden Cottage are described as ‘access road’. That is access from the highway (the A1071 - Hadleigh Road) and not from and to other buildings along the Track. The express right of way further expressly excluded the right to use the Track (marked Drive) as access to Garden Cottage and consequently it would be contrary to the words of the grant to interpret the express right of way to include a right to pass over and across the Track to and from Garden Cottage and the Field.”
The grounds of appeal
“That [subjective] intention does not, however, undermine the proper construction of the right of way granted in the Transfer which is expressly Ltd to the use of the Track for access to and from the Field and not for the benefit of Garden Cottage. If the right of way was also for the benefit of Garden Cottage to access the Field then the Transfer could easily have provided for that.”
I therefore do not consider that this criticism of the judgment is justified.
The true construction of the easement
“ancillary to, or part and parcel of, the use of the way for the purpose of the original grant”.
She referred to Gale on Easements:
“It is now firmly established that a grant of a right of way may authorise access to premises whose use is genuinely ancillary to the identified dominant tenement but does not extend the dominant tenement … ”
Conclusion
It follows that this appeal is dismissed.