England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 June 2005

His Honour Judge Seymour, Q.C.:

1. This action is concerned with the proper construction and effect of a right of way granted in a transfer dated 27 January, 1995 of some 7.65 acres of land at London Road, St. Ives, Cambridgeshire. That land was formerly part of a farm called Cullum Farm, and is now known as Ashfield Farm. It is convenient to refer to the land concerned by the name Ashfield Farm, even when dealing with the time when in fact it remained part of Cullum Farm.
2. Ashfield Farm was sold by Mrs. Joyce Edwards to Mr. Keith Hyde, who is the Defendant in this action. The terms of the right of way granted were these:

"A right of way for the buyer and his successors in title to the property at all times and for all purposes in connection with the present and any future agricultural use of the property both with or without vehicles, animals or equipment over and along the access way, having a width of 4m or thereabouts, the position of which is shown hatched black and coloured brown on the plan annexed as shall be necessary or convenient for the purpose of obtaining access to and from the property, subject to payment of a fair proportion according to use of the costs of repairing and maintaining the said access way to a reasonable standard."

3. That right was granted over land retained at that time by Mrs. Edwards which had also been part of Cullum Farm as it originally existed. In fact, by the date of the transfer of Ashfield Farm to Mr. Hyde, Mrs. Edwards had disposed of all of the original Cullum Farm save the land over which the right of way ran.
4. Adjacent to the left-hand side of the right of way, looking from London Road, was an area of land formerly part of the original Cullum Farm which it is convenient to refer to as 'the workshop premises'. The freehold title to the workshop premises had been transferred by Mrs. Edwards to her son, Jonathan, by a Deed of Gift dated 23 March, 1987. On the death of Mrs. Edwards in 1996, Mr. Jonathan Edwards inherited the freehold title to the land over which the right of way ran.
5. It is convenient to refer to the plot of land which included the workshop premises and the land over which the right of way ran together as Cullum Farm, notwithstanding that there is in fact another farm of that name, again part of the original Cullum Farm, adjacent to what I shall refer to as Cullum Farm. The other Cullum Farm is now owned by a Mr. and Mrs. Saunders.
6. Mr. Jonathan Edwards, in his turn, sold Cullum Farm on 6 April, 2001 to Mr. Mark Gainsborough-Field, the Claimant in this action, subject to the right of way to which I have referred. Mr. Gainsborough-Field occupies Cullum Farm for the purposes of a business which he carries on of restoring and maintaining classic sports cars.
7. It will be necessary to set out the background to the disputes which have given rise to the present action in a little more detail, but in essence the main issue is whether the right of way permits access to the land the subject of it for the purposes of activities connected with the keeping and grazing of horses and ponies for recreational riding rather than for use in connection with the traditional functions of horses in agriculture, such as ploughing and drawing farm vehicles. It is convenient to refer to the keeping and grazing of horses and ponies for recreational riding as 'equestrian activities'. Mr. Hyde wishes to let Ashfield Farm for equestrian activities and has already attempted to do so once.
8. Mr. Gainsborough-Field objects to the use of the right of way for the purposes of equestrian activities. An aspect of the disputes concerning the right of way has related to the use of it by motor vehicles. At the London Road end of the right of way, and also at the point at which the right of way crosses the boundary of Ashfield Farm, there are gates. Certainly the gate at the boundary of Ashfield Farm is normally kept shut, if not locked. The gate at the London Road end of the right of way is sometimes shut, and sometimes locked. Thus it is that anyone using the right of way in a vehicle may have to stop, having passed through the London Road gate, if he wishes to close it, and may have to stop again at the boundary of Ashfield Farm in order to open the gate at that point. On leaving Ashfield Farm the process may have to be reversed.
9. There was, until almost the end of the trial, an issue as to whether the right granted by the right of way permitted stopping on the right of way for these, or indeed any, purposes. However, shortly before Mr. Bruce Monnington, who appeared on behalf of Mr. Hyde, came to begin his closing submissions, Mr. James Hanham, who appeared on behalf of Mr. Gainsborough-Field, proposed amendments to the relief sought in the action which included an express recognition that stopping for the purposes of opening and closing gates was permitted. The issue as to stopping therefore ceased to be live at that point.
10. A question also arose as to whether the right granted by the right of way included a right to park vehicles upon it. However, during the trial it seemed to be accepted on all sides - as I think correctly - that there was no such right.
11. Mr. Gainsborough-Field told me in his evidence - and I accept - that he has been familiar with Ashfield Farm and Cullum Farm since about 1982 when he first came to know Mr. Jonathan Edwards. They had a shared interest in classic sports cars - in the case of Mr. Edwards, specifically Triumph TRs. In 1983 Mr. Edwards established business with a Mr. Gary Bates at the workshop premises. That business was the restoration and maintenance of Triumph TRs. In about September 1984 Mr. Gainsborough-Field went to work with Mr. Edwards and Mr. Bates in a freelance capacity. Mr. Bates left the business in about 1986. At that time Mr. Gainsborough-Field purchased Mr. Bates' interest in the business, and became a partner of Mr. Edwards. Mr. Edwards ceased to work in the business in about 1987, and ceased to have any interest in it after about June 1999.
12. At the time Mr. Gainsborough-Field first knew Ashfield Farm and Cullum Farm - that is to say, in 1982 - some stables had just been built on Ashfield Farm. Mrs. Edwards had three horses, called respectively, "Ling", "Patience" and "Toby". They were kept on Ashfield Farm, along with a horse belonging to a Flight Lieutenant Dutton. Mr. Gainsborough-Field told me - and again I accept - that in 1982 not only horses, but also cows, were kept on Ashfield Farm. In about 1986 Flight Lieutenant Dutton removed his horse from Ashfield Farm. Mrs. Edwards' horse, "Ling", was put down at about the same time. "Patience" was put down in about 1987, leaving only "Toby" as a horse kept at Ashfield Farm.
13. Mrs. Edwards moved to Cyprus for about six months in 1989. "Toby" was sent elsewhere to be looked after. The stables at Ashfield Farm at that time were used only to store Mrs. Edwards', and other, belongings.
14. In 1992 Mrs. Edwards' daughter, Sarah, thought of opening a riding school at Ashfield Farm. A ménage was built, and fencing repaired. But, in the end, the venture was abandoned without ever having started.
15. "Toby" returned to live at Ashfield Farm. However, he was by this time of some age. Mr. Gainsborough-Field thought that he had been put down quite soon after his return to Ashfield Farm. However, Mr. Hyde, in his evidence, told me that "Toby" was still around in the latter part of 1994, when Mr. Hyde was first interested in purchasing Ashfield Farm, although he was put down before completion of the purchase. I prefer the evidence of Mr. Hyde on this point.
16. Although Mr. Gainsborough-Field considered, as I find incorrectly, that there were no horses at Ashfield Farm for a period before 1994, it was common ground that in the latter part of 1994 there were horses at the farm. A Mrs. Shepherd was permitted by Mrs. Edwards to keep her daughter's pony at Ashfield Farm, pending a vacancy at the livery run by Mr. and Mrs. Saunders next door. It seems that it had been decided before Mr. Hyde's purchase that that arrangement should cease, but that in the event it continued for a week or so after completion.
17. Also, a Mr. Mawditt was allowed by Mrs. Edwards to exercise his horses on Ashfield Farm, but not to keep them there. It seems that that arrangement had ceased before Mr. Hyde's purchase.
18. When, towards the end of 1994, Mrs. Edwards decided to offer Ashfield Farm for sale, she caused an advertisement to be placed in the 3 November, 1994 edition of The Hunts Post newspaper. The material terms of the advertisement for present purposes were these:

"Paddock For Sale. St. Ives area. Approximately 10 acres fenced with post and rail with three brick stables plus two other stables and storage buildings. Water and electricity to site. Easy access to A14. Offers in the region of £25,000"

19. Mr. Hyde told me in his evidence that after he had responded to that advertisement, a process of informal tender developed. In the course of that process he wrote a letter dated 27 November, 1994, marked 'Subject to Contract', to the solicitors acting on behalf of Mrs. Edwards, a firm called Winters. In his letter, Mr. Hyde said this:

""Further to your invitation to make an offer to purchase the land and stables in London Road, St. Ives, my offer is £35,000 for the freehold, plus if my offer is successful it would be my intention to use the property for the grazing and stabling of horses and ponies, but if the land was sold for any commercial development during the lifetime of the vendor, I would agree that one-half of any profit should go to the vendor. Also, if successful, I would allow all horses and ponies now on this land to remain. I enclose a note of the name of my solicitor."

20. A contract for the sale and purchase of Ashfield Farm was executed between Mrs. Edwards and Mr. Hyde, and dated 17 January, 1995. In that contract the property to be sold was described in the First Schedule in this way:

"All that piece or parcel of land situate at London Road, St. Ives in the district of Huntingdonshire in the county of Cambridgeshire comprising 7.65 acres or thereabouts and being ordnance survey parcel nos. Part 5100 and Part 5800 on the metric edition for the said county, formerly Part 89, Part 90, and Part 187 on the 1926 edition, together with the stable building and other outbuildings erected thereon or on part thereof all which said property is delineated on the plan and thereon edged red."

21. Clause 10 of the contract provided that:

"The property is sold with the benefit of the following rights ----"

and there was set out at Clause 10.1.1 a right of way in the terms of that which I have already quoted and which was included in the transfer as executed.

22. There was a Clause 13 also in the contract which was to this effect:

"The buyer admits that he has inspected the property and purchases it with full knowledge of its actual state and condition, and shall take the property as it stands, and the buyer now admits that he enters into this agreement solely as a result of his own inspection and on the basis of the terms of this agreement, and not in reliance upon any representation or warranty either written or oral or implied made by or on behalf of the seller save for any representation or warranty contained in the replies given by the seller's solicitors to any preliminary inquiries raised by the buyer or the buyer's solicitors of anything whatsoever subject to this agreement, and that this agreement contains the entire agreement between the parties."

23. The significance of the reference to representations or warranties contained in the replies given by the seller's solicitors to preliminary inquiries is that there were preliminary inquiries and replies were given. Those replies included Reply 31:

""This is not applicable as the property being sold is pasture land and the buyer must rely on his own inspection and survey of any buildings erected thereon.

Reply 32:

"Stables and other outbuildings erected many years ago."

Reply 33:

"Pasture land many years ago."

24. Mr. Monnington relied upon those replies as representations, in effect, that there were stables at Ashfield Farm, and that save for those stables and other outbuildings, the remainder of the property was pastureland.
25. Mr. Hyde's evidence, which I accept on this point, is that at the time of his purchase of Ashfield Farm he was renting land elsewhere on which he kept horses of his own. His evidence was that having purchased Ashfield Farm, he put four horses or ponies on the land. I accept that evidence. There were differences between his evidence and that of Mr. Gainsborough-Field about the extent of the use made by Mr. Hyde of Ashfield Farm for keeping horses and for keeping cattle. Mr. Gainsborough-Field, who had no particular reason at the time to give the matter much attention, had the impression that although there were some horses at some points, the greater use of the land was as grazing for cattle - in particular, calves being fattened for slaughter. Mr. Hyde, on the other hand, told me that he certainly had kept cattle for a period of a year to eighteen months, or perhaps as long as two years, but that until about 2001, when he gave up riding himself, he had kept sometimes as many as six of his own horses at Ashfield Farm, and, in addition, provided livery to others on a paying basis. However, he also told me that he used Ashfield Farm for his own horses only during the winter, because during the summer he kept them on land he rented in the village in which he lived - a village called Houghton. The use of Ashfield Farm to provide livery to others ceased, according to Mr. Hyde, in about 1998.
26. Such documentary evidence as there was bearing on the use of Ashfield Farm after Mr. Hyde purchased it concentrated on the cattle-rearing aspect. At some point prior to 20 July, 1997 Mr. Hyde caused to be erected at Ashfield Farm four new buildings in which he told me he intended to keep calves. The question arose whether he needed planning permission for the buildings which had been constructed. He decided to make application for retrospective planning permission for those buildings. The application was dated 20 July, 1997. In completing the application form, Mr. Hyde indicated that the purpose for which the buildings had been constructed was as 'housing for livestock'. He described the present and previous use of Ashfield Farm as 'agricultural with some stables for my own ponies'.
27. After the making of the application for planning permission it seems that a Mr. Hinks, a development control officer of Huntingdonshire District Council, visited Ashfield Farm. Following the visit, he wrote a letter dated 4 September, 1997 to Mr. Hyde, of which the material terms were as follows:

"I have now inspected this site, and note that the building in question is not in use at present. I am also aware of previous correspondence on this matter, but would be grateful if you would confirm the exact nature of the use to which these buildings will be put. My inspection would seem to suggest that the whole site is used as a riding school, for which consent was granted in 1975, whereas correspondence indicated that the buildings are to be used for calf-rearing. Perhaps you would clarify the situation.

My inspection also revealed that there are six stables along the rear boundary, all of which appear contemporary. The application relates to four only. I would be grateful if you would also clarify the extent of the buildings to which the proposal relates."

28. Mr. Hyde replied to that letter in a letter dated 10 September, 1997 in which he said, so far as is presently material:

"I reply to your recent letter. The property is not used as a riding school. The buildings in question are for livestock, particularly for calves. It is now advisable to keep young stock separately to minimise the possible spread of infection. The two stables that you mentioned are existing, with re-build fronts to harmonise with the four buildings referred to in my application."

29. At para. 28 of his witness statement, Mr. Gainsborough-Field said:

"I have seen livestock on Mr. Hyde's land on a number of occasions, mainly between 1995 and 2000. Mr. Hyde has previously told me that he was using the land for the purpose of fattening livestock, namely buying in calves and bringing them on in readiness for market and slaughter."

30. Mr. Hyde was asked about that conversation, and he said that he did not recall it. However, there is quite likely to have been such a conversation in about 1997 when Mr. Hyde did have in mind to fatten calves on the land.
31. There was a dispute between Mr. Gainsborough-Field and Mr. Hyde as to whether there had been a gate at the boundary between Ashfield Farm and Cullum Farm at the date of Mr. Hyde's purchase. Mr. Gainsborough-Field said that there had not been, but that there had been a gate across the yard on Ashfield Farm, just inside the boundary. Mr. Hyde's evidence was that there was a gate on the boundary at the time of his purchase, but no gate across the yard. He himself had installed the gate across the yard. On this point I think that Mr. Gainsborough-Field had become confused. He seemed to recognise that in his instructions to Mr. Hanham as to the terms of the declaration which should be sought concerning stopping on the right of way. Mr. Hyde should know which gate he installed, and I accept his evidence on this question.
32. By about August 2003 Mr. Hyde had decided that he wished to let Ashfield Farm. At about that time, in circumstances which were not very clear, Mr. Gainsborough-Field took advice from his solicitor as to the construction and effect of the right of way over Cullum Farm. He was advised that it did not permit the use of the right of way in connection with equestrian activities. There was evidence that over quite a long period Mr. Gainsborough-Field had intermittently expressed interest to Mr. Hyde in acquiring at least part - specifically the yard and stables which adjoined Cullum Farm - of Ashfield Farm. It was suggested to Mr. Gainsborough-Field that his taking of advice from his solicitor, and his actions subsequent thereto, in particular the commencement of the present action, were in fact manoeuvres designed to put pressure on Mr. Hyde to sell to Mr. Gainsborough-Field the land he wants. I am not sure that the motivation of Mr. Gainsborough-Field for taking advice and commencing this action are relevant to any issue which I have to decide in any event. However, I reject the suggestion that in acting as he has, Mr. Gainsborough-Field has been actuated by a desire to apply commercial pressure to Mr. Hyde.
33. Mr. Gainsborough-Field's evidence as to events since about August 2003 are set out in his witness statement at paras. 32 to 40 inclusive. There he said:

"During the following month [that is, in September 2003] there was a lot of activity around Mr. Hyde's property. It appeared that the prospective new tenants were tidying up, and repairing fences which had not been done previously since Mr. Hyde was not using his land at that time. I met one of these people - Guy - over the fence during the latter part of September 2003. During the course of our conversation, he told me that he was a committee member of the Shetland Pony Welfare Trust, and that the Trust were going to take a five year lease over Mr. Hyde's property. When I asked him what use they were going to put the property to, he told me that they were going to run a visitor centre for adopted Shetland ponies. When quizzed about the number of visitors he expected, he told me that numbers were light during the week, but they expected around 140 visitors a day on weekends. I immediately informed him that he had no rights of access over my land for that use.

Despite my warning the Trust moved in and started placing its ponies in the fields, and abusing the right of way by parking on, and using it, for activities connected with the Trust. This activity continued, and subsequently escalated when a member of the Trust dragged a waste metal skip away from its location, and into the centre of my yard.

This action prompted me to write to Mr. Hyde about his tenant's behaviour, and remind him about his rights of way, and that although I had tolerated certain abuses of the rights of way to date, my position was going to have to change.

This letter prompted a face-to-face meeting with Mr. Hyde, during which I told him of my concerns about the right of way. He replied that before my purchase of the land from Mr. Edwards, he had set a precedent of past use without challenge. I told him that I did not agree with him on this issue.

After this incident, two members of the Trust board approached me and we discussed the right of way over my land. They informed me that Mr. Hyde had told them that they could take access at all times and for all purposes with or without vehicle, animals and equipment, as he has quoted in his letter to me dated 8 December, 2003. I dis-abused them of this, and they subsequently vacated the premises.

Mr. Hyde persisted in attempting to let his land out for equine purposes, despite our discussions about the right of way, and placed an advertisement in the local saddlers. It was subsequently brought to my attention in May 2004, during the conversation with a lady called Lorna Couldstock and her daughter, Anna, who keep their horses at Cullum Farm [that is to say, the premises of Mr. and Mrs. Saunders] that three women were interested in renting Ashfield Farm as they had fallen out with their current landlord. These three ladies are the Second, Third and Fourth Defendants in this claim.

My girlfriend, Vicki, also keeps her horse at Cullum Farm and was attending her horse on a weekend morning in May 2004 when she saw some people looking around, one of whom we now know was Anna Kennerley, along with some others we do not know. Vicki noted that they had in fact parked on my land while looking around, and so Vicki politely introduced herself and told the individuals concerned that they were not to park on my property. They told her that they were interested in taking a lease out over Mr. Hyde's land. Vicki advised them that there was a dispute currently going on regarding the right of way, and urged them to proceed with caution as she did not want to see them caught up in something about which they had no knowledge. Their response was that they knew all about the dispute, and they knew that they were not to park on my land, but they did not have a key to the gate at Ashfield Farm as they had not signed the lease yet - so, where else were they to park?

Vicki also advised them that it might be prudent to at least talk to me before they signed any lease or documents. It appears that they chose to ignore this advice, and moved into Mr. Hyde's land after signing a lease.

Initially Mr. Hyde's new tenants - the Second, Third and Fourth Defendants - stabled their own horses, but quickly expanded their operation, and now have other people's horses liveried. I have observed six people who use the right of way at least twice a day, and on the weekends it would appear that their partners, children and friends come along as well. Initially there were up to twelve horses present in the field. But currently the horses present are ten in number. I have counted ten different cars which use the right of way on a very regular basis ----"

Mr. Gainsborough-Field then set out a table of the makes, models, and registration numbers of those cars.

"I have observed and noted between the dates of 5 October, 2004 and 17 November, 2004 the registration numbers of another thirteen different vehicles that have gained access to Mr. Hyde's land across my property, and have observed many more vehicles crossing my land, but have not always been able to obtain the registration numbers. Those registration numbers I have observed and noted can be seen in my manuscript notes. There is also an element of pedestrian traffic and bicycles. As I am not permanently present at my premises I can only suppose that this list is not exhaustive.

There is a core of cars which use the right of way at least twice daily and through observation it can be seen that some of the vehicles using the right of way are delivering hay, straw and other paraphernalia connected with equine livery. Despite written assurances, cars and lorries are still parked on the right of way and I have taken photographs to prove this.

Mr. Hyde has decided to lock the gated access to his land which is directly on the boundary between his and my land. This forces anyone using the right of way, in order to gain access to his land, to stop their vehicle on my land in order to unlock/lock the gate. This action causes an obstruction to the access to one of my buildings to which I should have access to at all times. I have noted that if one of Mr. Hyde's tenants has forgotten the key to the gate, they sometimes park on the right of way and proceed on to his land on foot. As the gate is obscured from view behind a building, it appears that they think this action cannot be seen.

The condition of the right of way has quickly fallen into a bad state of disrepair because of the amount of traffic over it, and frequency of visits made since Mr. Hyde let his land. When I challenged Mr. Hyde about this fact in a letter dated 11 December, 2003, he replied in a letter dated 14 December, 2003, 'I think it is fair to say that, like you, my use, with few exceptions, has always been light. I think the blame for the poor condition of the track lies elsewhere'.

The visits I have observed have been between 0700 and 22.30, but because I am currently engaged in business away from my premises, I do not have the opportunity to record all of the traffic movements along the right of way. Mr. Hyde and some of his tenants seem to have very little regard for the condition of the right of way and drive at an inappropriate speed along it. This action has added to the decline of the condition of the right of way."

34. That evidence was not the subject of any significant challenge, save in relation to the question of the status of the ladies referred to as to the Second, Third and Fourth Defendants.
35. Mr. Hyde told me, and I accept, that although a draft lease between him and those ladies has been prepared, it has not in fact been executed. No doubt that is pending the outcome of this litigation.
36. The terms of the draft lease were put before me. If a lease were to be executed in the terms of the draft, then it would seem that use of Ashfield Farm would be confined to the three ladies proposed to enter into it who would be permitted only to stable their own horses upon Ashfield Farm. The draft lease contemplates specific prohibitions upon letting, or selling, the grass and upon taking in paying customers in order to provide livery to their horses.
37. The present action was commenced by a claim form issued on 13 October, 2004. Four persons were named as Defendants, they being Mr. Hyde, Anna Kennerley, Jo Ruddy and Marie Asquith. The female Defendants are those currently interested in entering into a lease of Ashfield Farm with a view to using it to stable their horses. By an order made in Cambridge County Court on 1 March of this year by Deputy District Judge Attwood, at para. 2, it was recorded that:

"The Second, Third and Fourth Defendants agree to be bound by the decision of the court in respect of the split trial."

The reference to the split trial is to another part of the order by which a trial of issues only between Mr. Gainsborough-Field and Mr. Hyde was ordered. In the circumstances, the Second, Third and Fourth Defendants have taken no part in the present trial.

38. The relief sought by Mr. Gainsborough-Field, following amendment during the trial, and insofar as it remained controversial at the end of the trial, was this:

"(1) A declaration that upon a true construction of the grant of the right of way contained in Clause A of Schedule 1 to the conveyance, the First Defendant, his successors in title, and those deriving title under them, are (a) permitted to use the right of way as a means of access at all times and for all purposes connected only with the cultivation, gathering of crops, the farming and rearing of livestock and/or husbandry upon the First Defendant's land; and are (b) not permitted to use the right of way (i) as a means of access to and from the First Defendant's land for any purpose connected with the stabling, grazing, and maintaining or keeping of horses on the First Defendant's land insofar as such usage of the First Defendant's land is neither connected with, nor incidental to, the cultivation, gathering of crops or husbandry carried out on the First Defendant's land, nor with the combined activities of the rearing and farming of livestock thereupon;

(2) An injunction restraining the Defendants from using or permitting or encouraging the use of the right of way (a) as a means of access to and from the First Defendant's land for any purpose connected with the stabling, grazing and maintaining or keeping of horses on the First Defendant's land insofar as such usage of the First Defendant's land is neither connected with, nor incidental to, the cultivation, gathering of crops or husbandry carried out on the First Defendant's land, nor with the combined activities of the rearing and farming of livestock thereupon."

39. A defence and counterclaim were served in the action on behalf of Mr. Hyde. That revealed no major factual disputes. However, para. 7 included these averments:

"1. The First Defendant avers that on its true construction in light of the surrounding circumstances, the right of way permits inter alia use in connection with the stabling and grazing of horses;

2. Further or alternatively, the First Defendant avers that the grantor, Joyce Margaret Edwards, of the right of way in the conveyance was estopped from denying such use following the transfer of the First Defendant's land, and that this bound all future owners of the land over which the right of way exists so long as the First Defendant is owner of the First Defendant's land."

40. Particulars were given of those allegations. When the First Defendant purchased the land in 1995 it had been advertised as 'Land and Stables' inter alia in The Hunts Post, and the stables had been on the land since the 1960s. The land was adapted for use by horses, and was being used by the transferor for use in connection with horses immediately prior to the conveyance. In a letter dated 23 November, 1994 to the First Defendant regarding the tender, the grantor's solicitors stated that a right of way would be granted at all times and for all purposes. By letter dated 27 November, 1994 to the grantor's solicitors, Winters, the First Defendant stated that it was his intention to use the property for the grazing and stabling of horses and ponies, and would allow all horses and ponies then on the land to remain. The First Defendant was also invited by the grantor to continue an arrangement for a Mr. Mawditt to keep his horses on the land. Mrs. Eve Shepherd was also a tenant, grazing and stabling horses on the land at the time of the transfer.
41. At para. 11 of the defence and counterclaim was set out the relief which was counterclaimed on behalf of Mr. Hyde as follows:

"1. A declaration that upon the true construction, the right of way contained in Clause A of Schedule 1 to the conveyance permits and includes use in connection with stabling, grazing, maintenance and use of the land by horses, ponies, donkeys, and like beasts, and the right to park and stop vehicles thereon in accordance with general principles of law;

2. Further or alternatively, a declaration that the Claimant is bound by an estoppel between the said Joyce Margaret Edwards as pleaded in para. 7.2 above, and thereby the First Defendant is entitled to use or to so authorise the use of the right of way in connection with stabling, grazing, maintenance and use of the land by horses, ponies, donkeys and like beasts."

42. Mr. Hanham put his client's case in relation to the effect of the right of way very simply. He submitted that the definition of the word 'agricultural' in the Shorter Oxford English dictionary was:

"Of and pertaining to agriculture, connected with husbandry or tillage of the ground"

while the definition of the word 'agriculture' was:

""the science or art of cultivating the soil, including allied pursuits of gathering in the crops and rearing livestock, tillage and husbandry, farming in the widest sense."

Those definitions did not accurately describe what I have called equestrian activities. So, submitted Mr. Hanham, such activities were not within the scope of a grant of a right of way "for all purposes in connection with the present or any future agricultural use of the property".

43. Mr. Monnington submitted that, in the context of various statutory definitions, it was established that the grazing of horses was an agricultural activity. He further submitted that where the grazing of horses took place, and other activities also took place, it was a question of fact and degree whether the carrying on of the other activities meant that the totality of the activities carried on was predominantly agricultural.
44. In support of his submission he drew attention, first, to a summary of the relevant law to be found in Scammell & Densham's Law of Agricultural Holdings, 8^th edition, 1997 at p.31. That summary was in these terms, under the heading 'Horses':

"The requirement for commerciality can best be illustrated by land used for horses. The trade or business does not itself need to be agricultural so long as the user is. Therefore land let for grazing (an agricultural use) by animals which are not agricultural (because outside the definition of 'livestock') in connection with a non-agricultural business (for example a riding school) will fall within the definition of an agricultural holding if the other requirements of the definition of an agricultural holding are met as well. The position regarding the use of land for horses generally is anomalous and is considered at length because it so frequently has given rise to problems in practice. The result of a series of cases upon the effect of the letting of land for use by horses is as follows:

(i) Horses are not 'livestock' unless used in the farming of land or for the carrying on in relation to land of any agricultural activity (for example, cart horses). This is because they are not kept 'for the production of food, wool, skins, or fur' (except in the rare instance of horses destined for dog food or the continental meat trade). Therefore, land used for keeping horses rather than grazing by horses (as to which see para. (ii) below) is not land used for agriculture within the meaning of Section 96(1) [of the Agricultural Holdings Act].

(ii) On the other hand, if the land is let for grazing, then even though the animals which graze the land are not 'livestock', the land is agricultural land within the meaning of Section 1(4) and Section 96(1). The definition of 'agriculture' includes the use of land as grazing land without restriction on the animals that graze.

(iii) If the land is used not merely for grazing by horses but also for a trade or business (for example for the grazing of horses forming part of a commercial riding school), then the holding will be an agricultural holding if the requirements of that definition are met. This is because the trade or business need not necessarily be an agricultural trade or business. If the land is let for grazing by horses for non-commercial purposes, for example, a pony paddock let for the tenant's personal hunters, hacks, or show jumpers, or those of his children, then the land will not constitute an agricultural holding.

That position has developed in consequence of a series of decisions which cannot otherwise be reconciled. It is, however, the definition and not the decisions upon it which was anomalous. The distinction between using land for keeping horses on it and using land for grazing by horses does seem close to being a distinction without a difference."

45. Mr. Monnington relied in particular in support of his submission upon a dictum of Lord Justice Stamp in McClinton -v- McFall [1974] Estates Gazette Reports, p.16. That was a case concerned with the application of the provisions of the Agricultural Holdings Act 1948. The dictum of Lord Justice Stamp followed a citation of the statutory provisions which were relevant in that case. The dictum then was this:

"The holding [the reference to the holding in that case] is unquestionably used for pasture, grazing and haymaking, which is agriculture, and if you stop there, it cannot be doubted that the holding is agricultural land within the meaning of the Act. Assuming that the breeding of horses is not 'livestock breeding', and so not agricultural, does it make any difference that the holding is also used, to the extent and in the way I have indicated, for that purpose? I share the view of the learned County Court Judge that it does not. The activities in relation to the stud farm which I have described, so far as they consist of the grazing of horses, pasturing of cattle and making of hay, are clearly agricultural. So far as they consist of the breaking-in of horses for riding, the little schooling that is done, the showing of horses to customers, and the jumps and jumping on the five-acre field I have mentioned, they are not, in my judgment, inconsistent with the agriculture carried on. The area of the holding is relative large. Provided the use of the land otherwise than for agriculture does not substantially impede the use for agriculture, the former use does not, in my judgment, prevent the land being agricultural land within the meaning of the Act. Take the example of a farmer who allows his land to be used for point-to-point races. On this ground I would hold that the holding is an agricultural holding within the meaning of the Act."

46. Moving from the field of agricultural holdings to that of rating, Mr. Monnington drew to my attention that in the case of Hemens -v- Whitsbury [1988] 1 AER, p.72 at p.75, the House of Lords indicated that a concession that land used for grazing horses was agricultural land for rating purposes had been correctly made.
47. Mr. Monnington then moved from the field of rating to that of planning, and referred to the decision of the Divisional Court in Sykes -v- Secretary of State for the Environment [1980] Property & Compensation Reports, p.19. At p.23 of the report, Lord Justice Donaldson, as he then was, said this:

"What an inspector in these circumstances has to decide is what is the purpose - and I stress the word 'the' - for which the land is being used? If horses are simply turned out on to the land with a view to feeding them from the land, clearly the land is being used for grazing. If, however, horses are being kept on the land and are being fed wholly or primarily by other means so that such grazing as they do is completely incidental and perhaps achieved merely because there are no convenient ways of stopping them doing it, then plainly the land is not being used for grazing but merely being used for keeping the animals. On the other hand, of course, if animals are put on to a field with a view to their grazing and are kept there for twenty-four hours a day, seven days a week over a period, it would not, I would have thought, be possible to say that, as they were being kept there, they were not being grazed. It is quite possible for horses to be both grazed and kept in the same place.

The predominant question here is: what use was being made of the land? Was it being used for the purpose of grazing? I do not find any particular difficulty in deciding what is a predominant use. To take an example that I mentioned in argument, if somebody goes to a restaurant and smokes after the meal they do not go to the restaurant in order to smoke: they go for the meal. There is no difficulty about that. I cannot see any difficulty in most cases in recognising whether the land is being used for grazing or for the keeping of non-agricultural horses. It is only if it is being used for the purpose of grazing that no planning permission is required."

48. Mr. Monnington also relied on a publication of the Department for Environment, Food & Rural Affairs concerning what is called 'The Single Payment Scheme'. The relevant citation from that publication is at a page headed 'Land Grazed by Horses':

"You will be able to receive payment from the SPS for land grazed by horses and other grazing animals such as donkeys and llamas. To do so, you must meet the conditions set out on p.4.

Eligible Land.

Any land you use for grazing horses may be eligible for payment under the SPS.

However, areas of land used by horses for other activities, such as stables, and land used for non-agricultural purposes, such as a racecourse, gallops, or a show jumping arena, are not eligible.

Land which you use mainly for grazing but which is occasionally used for non-agricultural purposes, for example an annual gymkhana, is still eligible for payment."

49. All of these references depend upon the construction of particular statutory provisions which are not directly relevant in the present case. The relevant statutory provisions seem to be similar one to another, but if they applied in the present case, the result would not be, as it seems to me, that for which Mr. Monnington contends. In particular, whether logical or not, it seems that there is a well-established distinction in each relevant area that while the grazing of horses is an agricultural activity, the keeping of horses (that is to say, stabling them and looking after them) is not. Only if the predominant activity in any particular case were grazing and other activities were ancillary to it, could the whole be treated as agricultural. Where, as has historically been the case at Ashfield Farm, horses have been stabled and permitted to graze whilst at the Farm, the predominant activity is keeping horses as Lord Justice Donaldson made clear in the Sykes case.
50. Mr. Monnington submitted that, contrary to the submission of Mr. Hanham, the word 'agriculture', as an ordinary English word, encompassed the keeping of horses intended for recreational use. I reject that submission. In my judgment the ordinary meaning of 'agriculture' in the English language is as the dictionary definition records: the cultivation of the soil, the gathering in of crops and the rearing of livestock. Livestock are at any rate stock kept for the production of food, wool, skins, or fur, or for use in farming of the land. Livestock do not, as a matter of ordinary English, include horses kept for recreation, although the expression does include 'working horses used in agriculture'.
51. A further argument advanced by Mr. Monnington depended upon the well-know approach to questions of construction set out by Lord Hoffman in Investors Compensation Scheme -v- West Bromwich Building Society [1998] 1 WLR, p.896 at p.912H-913F. There Lord Hoffman said this:

"The principles may be summarised as follows:

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an under-stated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action from rectification. The law makes this distinction for reasons of practical policy and in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear but this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investments Co. Ltd. -v- Eagle Star Life Assurance Co. Ltd.)

(5) The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A -v- Salen Rederierna A.B.:

'if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common-sense, it must be made to yield to business common-sense' "

52. Mr. Monnington called attention to the fact that the right of way in the present case was expressed to be 'for all purposes in connection with the present and any future agricultural use'. His submission was that applying the approach urged by Lord Hoffman, those words should either be read as indicating that the convention of the parties at the date of the contract for sale and subsequent transfer was that the actual then present use of Ashfield Farm, namely for keeping horses, was an agricultural use, or that the words used should be read as if they were 'for all purposes in connection with the present use and any future agricultural use'. He said that for his purposes it did not matter which of those approaches was adopted. I think that must be right.
53. The difference between Mr. Monnington and Mr. Hanham on this point was not as to the principles enunciated by Lord Hoffman; nor as to the principle that they were theoretically applicable in the present case - rather, the difference between Mr. Monnington and Mr. Hanham was as to the actual application of those principles in this case. Shortly, Mr. Hanham submitted that in the circumstances of the present case, what was necessary was to have regard to the words used by the parties and, in particular, the word 'agricultural' and to give effect to that.
54. Mr. Monnington, in support of his submissions which I have just mentioned, at para. 15 of his skeleton argument made this submission: "In addition to this approach to interpreting the right of way on general principles, there are a number of more specific arguments against the Claimant's case:

(1) Why did the easement distinguish between the present use and any future use? If there was no distinction between the present use and the future agricultural use, surely the grant would have said 'for agricultural purposes'? This suggests that a continuation of the present use, i.e. at the date of the grant was within the user of the easement;

(2) indeed surely the reference to 'the present use' requires the interpreter to look to see what the present use and that in the preceding years was (see Hurt -v- Baumer - a case to which I shall return);

(3) it is submitted that there is an uncertainty in applying the word 'agriculture' to land used for grazing horses and stables used by horses. If, as is submitted, a grazing by horses is within this meaning, then what about the use of stables by horses on the same land? Is this within the meaning of agriculture? This calls aloud for clarification from other evidence;

(4) the wording of the grant is also patently ambiguous in that it is not clear whether it means the present use and any future agricultural use, or whether the present agricultural use and any future agricultural use. This allows for the admission of evidence of what the parties intended;

(5) further or alternatively, the terms of the grant are latently ambiguous in that although it might be said that on the face of the grant it is unambiguous, when the present use is considered and it is seen that this is not agricultural, which is not admitted, then the terms of the grant clearly are ambiguous.

In respect of these arguments the grant must be construed most strongly against the grantor".

55. Hurt -v- Bowmer [1937] 1 AER, p.797 was a decision of Mr. Justice Bennett. Mr. Justice Bennett was concerned in that case with the meaning of the expression 'as at present enjoyed'. Mr. Monnington drew to my attention this part at the beginning of the Judgment:

"The question is to what extent the general right is restricted or limited because of the use in the grant of the words 'as at present enjoyed'. Have these words - and this is the question as I understand it - the same meaning as 'as at present used'? If they mean 'as at present used', it would be necessary to find out exactly what the present user was which the defendant made of the way in question during the years of his tenancy preceding the date of the grant."

56. What I think is to be derived from that part of the Judgment of Mr. Justice Bennett is simply this: that if the court is concerned in construing a document with any reference to 'present user', or words to like effect, it is necessary for the court not simply to consider the position in a micro-second of time, but to have regard to a longer period in order to be able to reach a conclusion. What longer period precisely it may be appropriate consider will no doubt depend upon the circumstances of the particular case. It will not necessarily be the case that it will be necessary, as Mr. Justice Bennett thought that it would have been necessary had the issue arisen in the case before him, to consider a period of years.
57. In my judgment it is important to have regard to the words upon which Mr. Monnington relies in support of those of his submissions now under consideration - that is to say, for all purposes in connection with the present and any future agricultural use. I incline to the view that the effect of those words, so far as is presently material, is that the parties, by convention between themselves, and whatever the situation might otherwise have been, treated the then existing use of Ashfield Farm as an agricultural use. The then existing use of Ashfield Farm, in my judgment, was to provide stabling for horses and ponies and grazing for horses and ponies, and activities incidental to both of those.
58. I see the force in Mr. Monnington's alternative submission that the appropriate way of reading the words with which I am immediately concerned, is so as to differentiate between the present use - as it were 'whatever it may be' - and any future use which would have to be an agricultural use. But, as I have indicated, it does not seem to me really to be necessary to determine which of those two is correct, provided one of them is correct. That, in my judgment, is the situation in the present case.
59. Consequently, I come to the conclusion that the proper construction of the right of way is that it permits a use of the right of way by Mr. Hyde and his successors in title at all times and for all purposes in connection with the stabling, keeping and grazing of horses and any future agricultural use.
60. It remains to consider the other main limb of Mr. Monnington's case - the estoppel argument. Bearing in mind the length of this Judgment already, I hope it is not inappropriate to deal with this aspect briefly. Mr. Monnington drew to my attention that in the decision of the Court of Appeal in Lloyd -v- Dugdale [2001] EWCA (Civ) 1754, in giving the Judgment of the court, Sir Christopher Slade, at para. 26 set out the essential features of a proprietary estoppel, quoting from the summary in Megarry & Wade's Law of Real Property, 6^th edition, 2001 at para. 31-00. (I interpolate that it is a proprietary estoppel upon which Mr. Monnington seeks to rely in the present case.) The summary was to this effect:

"(1) An equity arises where (a) the owner of land (O), induces, encourages, or allows the Claimant (C) to believe that he has or will enjoy some right or benefit over O's property; (b) in reliance upon this belief C acts to his detriment to the knowledge of O; and (c) O then seeks to take unconscionable advantage of C by denying him the rightful benefit which he expected to receive."

61. Mr. Hanham's answer to Mr. Monnington's reliance upon estoppel is, shortly, that the argument fails because on the facts the first of the necessary ingredients identified by Megarry & Wade - that is to say, a representation of some sort - is not satisfied. I accept that submission. In the present case, what happened essentially was this: there was an advertisement in The Hunts Post (and I think also in another paper, although the advertisements, as I understand it, were in identical terms) advertising for sale a pasture and stables. There was then communication between Mrs. Edwards' solicitors, Winters, and Mr. Hyde. In a letter to Mr. Hyde, Winters indicated at one stage prior to the preparation and signature of the contract, that a right of way at all times and for all purposes was contemplated as being granted. Mr. Hyde, in a letter which I have quoted earlier in my judgment, indicated his intention as to future use of Ashfield Farm.
62. Those communications were overtaken, as it seems to me, by the terms of contract between the parties and, in particular, by the terms of Clause 13 which expressly excluded representations made prior to the date of the contract, save representations made in response to pre-contract enquiries. The responses to pre-contract enquiries to which Mr. Monnington drew my attention were, as it seems to me, entirely neutral as to the terms of any future right of way. The terms of the right of way contracted to be granted were set out in the contract itself. Those terms were repeated in the terms of the eventual transfer. Nothing was said by Mrs. Edwards, or on her behalf, so far as the evidence before me goes, subsequent to the execution of the contract, or the execution of the transfer to the effect that the words included in the contract and in the transfer as the words of grant of the right of way had some meaning other than what their meaning on proper construction was.
63. Thus, if I had come to a different conclusion from that which I have in fact reached as to the meaning of those words, I should not have found that Mrs. Edwards, or those claiming through her (such as Mr. Gainsborough-Field), were estopped from relying upon what, on proper construction, the words meant. Thus, the estoppel argument, had it been relevant, would have failed. But, in the event, Mr. Monnington, you succeed on the one point which I have indicated in my judgment.