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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Giles v Tarry & Anor [2012] EWCA Civ 837 (21 June 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/837.html Cite as: [2012] EWCA Civ 837 |
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ON APPEAL FROM NORTHAMPTON COUNTY COURT
HHJ HARRIS QC
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LEWISON
and
MR JUSTICE NORRIS
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Giles |
Appellant |
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- and - |
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Tarry & Anor |
Respondent |
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Lindsay Johnson (instructed by J C Lawrence & Co) for the Respondent
Hearing date: 30 May 2012
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Crown Copyright ©
Mr Justice Norris:
".. For the benefit only of that part of the vendors' neighbouring land edged red on the said plan… a right of way at all times and for all purposes over the land coloured brown on the said plan…".
"Not to use the hovel…otherwise than for normal agricultural purposes apart from the keeping of animals or poultry except on a temporary basis".
"Not to exercise the right of way over the land coloured brown for the purpose of gaining access to [the Green Land]".
That compromise itself was back before the court in 1996 – twice. There were further differences which did not reach court in 2000, 2001, 2003, 2004 and 2008. But the proceedings were eventually revived again in a somewhat unorthodox way in 2010 by Mr Giles acting in person. Mr Tarry (who was then an aged man) also acted in person with the assistance of his family. All procedural deficiencies were overcome and HHJ Harris QC case-managed the dispute so as to identify what issues fell for decision. Amongst those issues were disputes over the use of the right of way and over the use of the hovel. But I would record that the trial Judge was called upon also to determine a range of other disputes.
"Wants to be able to graze his sheep on the green [land] from time to time as well as in the paddock. It can only be got to from the paddock."
The Judge noted that for Mr Tarry to drive sheep from the right of way into the Paddock for the purposes of going thence onto the Green Land to graze was not permissible (and he commented on the undertaking which Mr Tarry had given). He then continued:
"Appreciating this, what is done by [Mr Tarry's] daughter and granddaughter is to drive the sheep into the paddock and without going onto the green land, up to and through the gate onto the public highway at Forge Lane. There they pause more or less briefly, before driving them back into the paddock where they are left free to pass, if they want to, onto the green land. Thus the entry into the paddock immediately preceding the entry into the green land is not via the right of way. Is this practice sufficient to avoid the restriction on the right of way to the benefit of the paddock?...It is clearly a somewhat artificial device or expedient, but if it is efficacious in law [Mr Tarry] is entitled to make use of it. … [I] approach the question as one of principle and logic. The objective of the Defendant has been to graze his sheep both on the paddock and on the adjacent green land. To get to the paddock with his sheep he is perfectly entitled to utilise the right of way. It is quite legitimate then for him to take his sheep out of the paddock via the Forge Lane gate for whatever purpose…When the sheep are in Forge Lane they are not in the paddock and not on the green land. He is then entitled to put them back into the paddock and to allow or drive them onto the adjacent green land… because he is not then putting the sheep onto the green land via the right of way over Mr Giles' land… Usage of a right of way must be analysed in terms of actual movement, not the ultimate intention of the user".
"That the Defendant may make use of the right of way over the brown land to drive sheep into the paddock and that if the same sheep leave the paddock via the northern end gate and then re-enter and thereafter graze in the green field there is no impermissible use of the right of way".
"The law really not is in dispute. If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B".
"These authorities appear to establish the principle that, if the Defendants here had directly used the road in question as a way over the grantor's land through Wheeler's close to Glenister's, that would have been an excess of the right. The question was whether they had not substantially done so".
The other judges agreed.
"It is… clear… that where a person has a right of way over one piece of land to another piece of land, he can only use such right in order to reach the latter place. He cannot use it for the purpose of going elsewhere. In most cases of this sort the question has been whether there was a bona fide or mere colourable use of the right of way".
In his judgment Willes J held (at p.582) that :-
"To be legitimate user of the right of way it must be used for the enjoyment of the Nine Acre field, and not colourably for other closes".
"We have to consider here what was in substance and intention the user claimed by the defendants in the present case".
He immediately went on to deal with how an appellate court should deal with such a question, saying:-
"The question of user is a question of fact; but if we come to a conclusion different from that at which [the trial judge] arrived, it will not be on a question of fact such as those questions of fact on which the Court of Appeal very unwillingly and reluctantly comes to a different conclusion from that taken in the Court below, because here the question of fact does not depend on any conflict of evidence, but is a question of the proper inference to be drawn from the facts which are not in dispute. Under these circumstances we are bound to deal with the matter according to our own view of the proper inference to be drawn from the facts".
"The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However, in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made".
The Court held on the facts found that such user was not within the scope of the grant, holding (at paragraph 27 on p1824):-
"It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This cannot sensibly be described as ancillary to the cultivation of the red land. We therefore allow the appeal and declare that the Claimants are not entitled to use the yellow strip for the purpose of obtaining access to the blue land in order to cultivate it".
"[Counsel for the owner says] that he merely intends to pass through the adjacent land and eventually to arrive at number 5… But that is not the reality of this case. What they want to do is to park on the gardens. This is the primary purpose, and that being so it is an attempt to use the way to accommodate [No.] 4 and 5. On the authorities that cannot be done".
"…the overall finding of the Judge is entirely clear, that the asserted use of the way is to access and to serve a separate use on a tenement that is not of the dominant tenement. He found the parking on the garden ground was the primary purpose of this use of the way. That of course poses a formidable difficulty for the owner's case. But it was not necessary for the judge to go that far. Once he found that the use was to access an activity on land that was not the dominant tenement, and which could not be regarded simply as a minor, or indeed any, extension to the access already obtained to No. 4, then that use, whether a primary purpose or not, fatally extends the dominant tenement".
"The Shorter Oxford English Dictionary defines the word "temporary" as: "lasting for a limited time… transient, or made to supply a passing need". A strong element or constituent of the meaning of "temporary" is that it is not permanent. Something which is not permanent can, in many instances, properly be described as temporary. A state of affairs can be regular, but is still temporary".
"What the Defendant, by Moira and Rosie Goodwin, does with the hovel is to use it for the lambing of some 43 ewes out of their total flock of some 120. They lamb late… between the end of April and July, for some 3 months or perhaps a little more. This seems a surprisingly long span of time for 43 ewes, some of whose births would doubtless coincide. I find that on not more than 43 days spread out over about 3 months ewes can give birth in the hovel and no doubt remain in it with their lambs for a few days depending on weather conditions. Between July and October its only ovine use has been for treatments, such as injections and worming or attention to feet or tails. From October to the end of March it is used daily, though only for an hour or two for feeding."
"Ultimately, it seems to me the question is not one of law, but one of fact and degree. While the matter is not wholly straightforward, I have concluded that the use made of this hovel does not infringe the terms of the conveyance. For most of the hours in a year the hovel was not occupied by sheep and when it was occupied it was for limited periods for temporary or short-term purposes, such as giving birth, sporadic physical treatment, or the provision of winter feed. It follows that the Claimant is not entitled to prevent the existing pattern of usage".
The Judge accordingly declared that:-
"[Mr Tarry] is entitled to make use of the hovel for not more than 45 sheep to the extent and in the way that he presently does, that is for lambing, treatments, winter feeding or emergency purposes".
Lord Justice Lewison:
"In an era of increasingly intense land use and housing development, it is predictable that awkward questions should arise over the extent to which an easement created or acquired for the benefit of one tenement, Greenacre, may also be used for the benefit of an adjoining tenement, Redacre."
"… what is done by [Mr Tarry's] daughter and granddaughter is to drive the sheep into the paddock and without going onto the green land, up to and through the gate onto the public highway at Forge Lane. There they pause more or less briefly, before driving them back into the paddock where they are left free to pass, if they want to, onto the green land. Thus the entry into the paddock immediately preceding the entry into the green land is not via the right of way. Is this practice sufficient to avoid the restriction on the right of way to the benefit of the paddock?"
"The objective of [Mr Tarry] has been to graze his sheep both on the paddock and on the adjacent green land. To get to the paddock with his sheep he is perfectly entitled to utilise the right of way. It is quite legitimate then for him to take his sheep out of the paddock via the Forge Lane gate for whatever purpose… When the sheep are in Forge Lane they are not in the paddock and not on the green land. He is then entitled to put them back in the paddock and to allow or drive them onto the … green land… because he is not then putting the sheep onto the green land via the right of way over Mr Giles' land."
"In any case … the paddock is not simply a bridge, it is itself grazing land which the sheep are expected to make use of. They are put there for that purpose as for the purpose of allowing them to move and graze into the green land. A journey over the right of way is just as necessary to utilise the paddock as it is to utilise the green land and the sheep would make the same journey, even if confined simply to the paddock, though possibly … less often."
"If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B."
"To use a private road into one close merely in order to pass over it into an adjacent close is not quite the same thing as to use a private road into a close in order there to make use of a public highway carried through the close subsequently to the grant."
"…it appears to us that it would be impossible to maintain that, if people were to have free access by a private way to new houses built on an allotment, they should be bound as often as they used that way to return by it, instead of using any other road which might happen to be open to them."
"… it is quite wrong to treat the A73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic."
i) Mr Tarry's objective of "has been to graze his sheep both on the paddock and on the adjacent green land"; and
ii) The route taken by the sheep was a somewhat artificial device or expedient,
he ought to have concluded that use of the right of way for that composite purpose was impermissible. The use of the highway as a transient stopping place was itself colourable and it was not possible to dissect the various stages in one overall operation. That is a much more formidable submission.
"Did the defendants really use the way with carts and waggons as a way to Wheelers' land, or did they really use it as a way to the houses they were building? And was the going first to Wheelers' a mere colourable use. Answer. It was a mere colourable use."
"The question which the learned judge left was, whether the defendants used the way as a way to Wheelers' land, or was it a mere colourable use of it for the purpose of getting at their own land. That seems to me to be in substance what the summing-up amounts to. Did the defendants use the way merely for the purpose of carrying the building-materials through Wheelers' close to their own land? I think that was the correct way to leave the question…"
"These authorities appear to establish the principle that, if the defendants here had directly used the road in question as a way over the grantor's land through Wheelers' close to Glenister's, that would have been an excess of the right. The question was whether they had not substantially done so. The jury must be taken to have found that they had."
"In most cases of this sort the question has been whether there was a bonâ fide or a mere colourable use of the right of way."
"The question, therefore, of what was the ordinary and reasonable use of the land, was practically left to the jury. They found that Jenkins acted honestly, and that is equivalent to finding that what had been done was done in the ordinary and reasonable use of the land to which the right of way was claimed, and in the ordinary and reasonable use of the right of way itself. It was for the plaintiff to shew that there had been some excess of user on the part of the defendant, as by shewing that the user of the right of way was only colourable, or that the Nine acre field was used for purposes other than those included in the ordinary and reasonable use of the land. The finding of the jury excludes both these questions."
"Honest user of the Nine acre field must have been understood by the jury in the large sense of bonâ fide and reasonable, not a use in order to get an advantage to which the defendant was not entitled. The finding of the jury was, that the land was used honestly, and not in order to get a right of way further on. This is equivalent to finding that the stacking of the hay on the Nine acre field was in the reasonable and ordinary use of it as a field; also that the carting was from the Nine acre field and not from Parrott's land."
"It is an admitted fact that some of the hay carried from the Nine acre field was grown on Parrott's land, and the carrying away of this hay is the excess in the user of the right of way which is complained of. This alone, however, does not determine the question for the plaintiff. The question is for the jury, whether the stacking of the hay in question and the carrying of it away was in the ordinary and reasonable use of the Nine acre field."
"… we have to consider here what was in substance and intention the user claimed by the defendants in the present case. … The question of user is a question of fact … [H]ere the question of fact does not depend on any conflict of evidence but is a question of the proper inference to be drawn from the facts which are not in dispute."
"… what they are really doing here is, under the guise of the enjoyment of the dominant tenement, to try and make the right of way become a right of way for the enjoyment of both lands, the pink and the blue, and using the land coloured pink as a mere continuation of the right of passage from the pink to the blue."
"However, in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made."
"It is not clear to me what precisely is the point of law which we have to decide. The question in the case stated for the opinion of the court is 'Whether, on the above statement of facts, we came to a correct decision in point of law.' This seems to assume that the meaning of the word 'insulting' in s.5 is a matter of law. And the Divisional Court appear to have proceeded on that footing. In my judgment that is not right. The meaning of an ordinary word of the English language is not a question of law. The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine when that unusual sense is. But here there is in my opinion no question of the word 'insulting' being used in any unusual sense."
"The application of an ordinary English word to a set of primary facts is itself a question of fact."
Lord Justice Ward:
My lords have so carefully covered the ground that there is nothing I can usefully add save to record my agreement.