BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

England and Wales High Court (Chancery Division) Decisions


You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Guise v. Drew [2001] EWHC Ch 410 (8th June, 2001)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/410.html
Cite as: [2001] EWHC Ch 410

[New search] [Context] [Printable version] [Help]


Guise v. Drew [2001] EWHC Ch 410 (8th June, 2001)

 

Case number: HC 199905205

Date of judgment: 6 June, 2001

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BEFORE HIS HONOUR JUDGE BOWSHER Q.C
.

 

 
BETWEEN:
Claimant
 
Richard Jonathan Brett Guise
 
 
AND
 
 
John Drew
Defendant

Dates of trial: 15, 16, 17 May, 2001

For the claimant: Gary Cowen (Hunters, solicitors)
For the defendant: Philip Noble (Baker Macdonald, solicitors)

JUDGMENT

I direct that no further note or transcript be made of this judgment

Judgment of His Honour Judge Bowsher Q.C.:

Introduction

  1. This is a dispute over a right of way over the claimant's property to the defendant's property. It is accepted that there is a right of way by prescription, but the nature of the permissible usage of that right of way is disputed.
  2. This action was begun by writ dated 13 December, 1999.
  3. The claimant is the freehold owner of residential property known as Staplehurst Farm, Kingsmill Lane, Redhill, Surrey. He and his family have lived there since 1969.
  4. The defendant is the freehold owner of a property known as Robins Cook Farm. The defendant and his family have lived there since 1965.
  5. One means of access to the buildings at Robins Cook Farm from the highway at the moment is across the claimant's property from Staplehurst Lane. However, Robins Cook Farm includes some property contiguous with that highway and access could made from the same highway to the buildings at Robins Cook Farm if planning permission could be obtained. The driveway in question also gives access to a property known as Little Staplehurst.
  6. The claimant has never disputed that the defendant should have access to Robins Cook Farm for residential purposes.
  7. In addition to a claim for damages for inconvenience and loss of amenity, the claimant initially claimed a declaration in the following terms:
  8. "A declaration that nether the defendant nor anyone else on the defendant's behalf has acquired a right of way by prescription (or by any other means) over the road way coloured blue on the plan annexed for the purpose of access to and egress from Robins Cook Farm for business purposes."

    In the light of evidence given at the trial, application was made to amend the terms of that application for a declaration to delete the words, "for business purposes" and substitute

    "for the purposes of a motor vehicle repair, servicing, maintenance or storage business or for any purpose ancillary thereto (save in respect of any motor vehicle owned or operated by the veterinary practice now known as Gayton Veterinary Group of 40 Hatchlands Road, Redhill, Surrey."

    The words of the declaration were adapted for an injunction that was claimed and request was made for permission to make a similar amendment to the injunction.

    For reasons that will later appear, I grant permission to make those amendments to the particulars of claim.

    History

  9. It is common ground that the defendant and his family have used the driveway in question for more than 20 years to go to and from Robins Cook Farm for residential purposes.
  10. However, the traffic along the driveway has been greater than one would expect, say, to a semi-detached residential home in Surbiton.
  11. I do not think that the defendant would object if I describe him as a rough diamond. He said that he received no education except what he received in the RAF where he trained as a radio operator. That is a sad commentary on the State education system where he endured some years of compulsory education but I accept it as substantially true. He is essentially a law-abiding man but he does have a tendency to do what seems to him to be sensible without first asking for permission.
  12. After the RAF, the defendant took over the family business at Three Arch Road, Redhill. Those premises are about one and a half miles from Robins Cook Farm. At those premises in Three Arch Road, there had been operated since about 1936 a family business of a Knacker's Yard and a Pet Food business.
  13. Until 1965, the defendant lived with his family at 14 Maple Road, Redhill.
  14. In February, 1962, the defendant bought two cottages known as 1 and 2 Staplehurst Cottages together with 32 acres of farm land. He demolished those cottages and built a bungalow that became his family home in 1965.
  15. Because of the fear of criminal damage that might be caused by animal liberation groups, the defendant had parked his business vehicles for the knacker's business overnight at Maple Road and continued that practice at Robins Cook Farm. There were two HGVs and some smaller vans.
  16. He was told that he had to have a licence to keep the HGVs at Robins Cook Farm and a term of that licence was that he should provide a workshop to make repairs to those vehicles, which he did in one of the farm buildings.
  17. The defendant has two quite exceptional sons. Both of those sons have a remarkable interest in and talent for the care of mechanical vehicles.
  18. The defendant described his son John Junior as a "diesel nut". He was working on engines from the age of 6 and he owned his first Austin when he was 7 years old. His only ambition was to work on motor vehicles, but his father insisted that he should first obtain a qualification by working an apprenticeship at APV Limited at Crawley.
  19. The claimant's second son, David, is also an enthusiast for motor vehicles.
  20. The defendant said that John Junior joined the family business in 1974 and David joined the business in 1976. Both of them are licensed slaughtermen and they worked in the knacker business as well as in the pet food business and they did some work on vehicles. John Junior was the fitter appointed to look after the two HGV vehicles used in the knacker business and the pet food business. Any work done on the vehicles was done at Robins Cook Farm.
  21. It is accepted that for a period of more than 20 years the vehicles belonging to the knacker yard and the pet food business have used the driveway when a member of the family wanted to come home to lunch or when the vehicles were to be parked in the evening or when work was to be done on the vehicles. But that business ceased in 1995. The defendant retired. The present use of the driveway to which objection is taken is use by a different business run by the defendant's sons with help from the defendant that is unconnected with the knacker yard and the pet food business.
  22. The defendant says that having obtained his licence to store and maintain heavy goods vehicles at Robins Cook Farm, he then started to maintain and repair vehicles belonging to other people. He said that that work increased to such an extent that in 1974 his son John Junior joined him as a full time fitter and he was joined by his son David in 1976. In fact, neither of them was working full time on vehicles. They both accepted in evidence that they also worked in the knacker and pet food business as well as on vehicles. The proportion of time spent on each side of the business was unclear.
  23. From Easter 1980, the defendant employed a Mr. Zapotincznyj. He worked in the knacker yard and also did some work on vehicles. It was not said that he did work on any vehicles other than those belonging to the knacker yard and pet food business.
  24. One of the main issues of fact in this action has centred on the question what was the activity at Robins Cook Farm between 1974 and 13 December, 1979, the date 20 years before this action was started.
  25. There is no documentary evidence whatever that shows unequivocally any vehicle repairing business being carried on at Robins Cook Farm before 1980. The only business documents that pre-date 13 December, 1979 are documents evidencing small purchases of vehicle parts mainly from a specialist in Land Rover parts. The defendant's sons were and are interested in Land Rovers and military vehicles such as Jeeps and I find that that small quantity of documents relates mainly to their hobby, though some may relate to the maintenance of vehicles belonging to the practice of a veterinary surgeon, to whom I shall refer later.
  26. By way of very late disclosure of documents, the defendant has disclosed on the first day of trial two bundles of documents that appear to have been torn from books each dating from about 1981 to 1986. The documents appear to show some business in repair and maintenance of vehicles between those dates at a very low level of activity. The numbering of the pages suggests that there was little other activity. The numbering and dating of one small bundle (which is incomplete) suggests that it took 5 years to fill up a small book of the sort that one sees in most stationers shops supplied either with a sheet of carbon paper to interleave the pages or (as in this case) with alternate pages chemically treated to produce the same effect. The defendant says that he has no duty to keep documents for more than 6 years and all other documents have been destroyed. The documents disclosed were, it is said, found at a late stage down behind a desk. Business documents relating to the past 6 years, which presumably have not yet been destroyed, might have been helpful but have not been offered. The defendant says that he has employed an accountant and has sent documents to his accountant in the ordinary way but has not asked his accountant for documents to use in this action. Not only are there no documents, the defendant and his sons have declined to give any evidence of the amount of the turnover of the business that they claim has been operated for more than 20 years using this driveway.
  27. The defendant and his sons say that the financial side of the business is in the hands of a book-keeper, Mrs. Shirley Robinson. Mrs. Robinson used to live in the north of England and came to live in Lindfield in Sussex in 1968. Since then she has worked as the defendant's book-keeper and, as he stated frequently in evidence, he has a very high regard for her integrity and efficiency.
  28. In correspondence before trial and in the answers to the Case Management Questionnaire it was made plain that the solicitors to the defendant intended to call Mrs. Robinson as a witness at the trial. In evidence, the defendant said that he had seen Mrs. Robinson at work in the week before trial and she was fit to attend trial. In the event, the defendant's advisors did not call Mrs. Robinson to give evidence and no witness statement from her was provided.
  29. What we do have from Mrs. Robinson is a letter dated 11 January, 1994 addressed to a Mr. Beach. At that time Mr. Beach was acting for the defendant in a planning matter. The planning authority had received a complaint about change of use of the defendant's property and the defendant was concerned to demonstrate change of use for the previous 10 years and obtain a certificate to that effect. Mrs. Robinson's letter was written to be produced to the planning authority and was in these terms:
  30. "I have worked as a secretary/book-keeper for

    Mr. & Mrs. J. Drew of Robins Cook Farm, Kingsmill Lane,

    Redhill on a regular basis, in the office

    attached to the rear of their bungalow commencing July 1968.

    Since early in 1980, the vehicle maintenance

    was used for contract work on outside customers'

    vehicles, this work taking place in the barn

    adjacent to the bungalow. This work was

    invoiced on a fully commercial basis - recent

    sight of some old invoice books does confirm.

    my statement."

  31. In writing that letter, Mrs. Robinson was only concerned to deal with the previous 10 years, but having looked at some old invoice books she was able to speak to the position going back to early 1980. It is very significant that Mrs. Robinson says that it was in early 1980 that the vehicle maintenance was used for contract work on outside customers' vehicles. "Outside customers' vehicles" I take to be an expression to contrast a new garage business with the old work of maintaining the vehicles of the knacker's yard and pet food business and work for a veterinary practice to which I shall now refer. If there was a change in the business in early 1980, it would follow that there was a change in the use of the driveway at the same time.
  32. The defendant and his sons obviously place great reliance on Mrs. Robinson and in my view her evidence would have been of enormous help in getting to the truth of this matter. She kept the books and in the absence of the books she would have been the best source of information as to the business that was being carried on. Reliable evidence about the business being carried on would have been a guide to the use made of the driveway.
  33. Since the defendant and his advisers have plainly made a deliberate decision to avoid calling Mrs. Robinson as a witness, I infer that her evidence would have been unwelcome to them and that at the very least she would have given evidence in the terms of her letter of 11 January, 1994. The gist of that letter is that business use of the premises began less than 20 years before the commencement of these proceedings.
  34. I heard evidence from Mrs. Heather Nestel. Mrs. Nestel is a veterinary surgeon. She and a partner of hers were the only individuals who had had cars repaired by the Drews to be called to give evidence. In 1977 she bought the practice of Mr. Graham Joss in Redhill. From 1977 until 1991 when she retired, she practised with partners under the name Nestel and Clay, then Nestel and Partners, and finally under the name Gayton Veterinary Group. Mrs. Nestel said that in 1977 her practice had 2 vehicles increasing to 4 in 1978 and 5 or 6 in 1979. In addition she and her children had a further 2. All of those vehicles were serviced by the Drew boys and were driven to Robins Cook Farm along the driveway in question in this action.
  35. There has been a family friendship between Mrs. Nestel and the Drews going back to the 1940s and continuing to this day. In addition, there was close business and professional co-operation. Mr. Drew was very co-operative about collecting carcases of horses that had to be put down by a vet in the practice and he was also co-operative in allowing facilities for post mortem examination of carcases at his yard. That co-operation was friendly but also brought considerable benefits to both parties. The vets. were helped in the running of the practice and Mr. Drew received more carcases for his business.
  36. How it came about that Mrs. Nestel started having the vehicles of the practice maintained at Robins Cook Farm was never explained. It was certainly not as a result of advertising because there was not any advertising. Presumably it started as a result of friendly conversation.
  37. I do not know whether any money changed hands to pay for the maintenance in the early years. There is no evidence, written or oral, that money did change hands before 1980. Normally, of course, one would expect car maintenance to be paid for, but in the light of the friendly and co-operative relationship between the parties and the enthusiasm of the Drew boys to work on motor vehicles, I do not think it would be at all reasonable to assume payment in this case at all events in the early years. Payment in the years before 1980 would be inconsistent with the letter from Mrs. Robinson.
  38. The documents that have been supplied show that between November, 1983 and July, 1986, 13 charges were made to the Nestel practice. 4 bills were for work on one car. 3 were for work on 2 cars. 5 were for work on 3 cars. 1 was for work on 8 cars. Most of the charges were for parts without charges for labour to fit the parts. There is no VAT number on the copy bills disclosed, but each ends with a charge of 15% which I assume to be for VAT.
  39. Mrs. Nestel said that at the outset, cars could be booked in for service at any time that suited the practice, but that changed and it became "more than a hobby" for the Drews. The Drews became too busy to take her cars just when she wanted. She said, "I could not swear to the year but it became from a small business to a very busy small business before I retired in 1991." In response to further questions she then said that it was in 1988 or 1989, 10 or 11 years before the commencement of these proceedings.
  40. The senior partner of the practice now known as Gayton Veterinary Group, is now Mr. Raymond Heathcote. He joined the practice in 1980. He said in evidence that John Junior has been inundated with work since 1985. Before then he always did whatever work was required promptly, but for the last 13 years, although all work required for safety reasons was done promptly, other items have been waiting to be done because John does not have time to do it.
  41. In about 1988, the Drews obtained work from a Citroen Main Dealer doing pre-delivery servicing of new Citroen cars. Contrary to the wishes and instructions of John Drew Senior, sometimes low loaders and less frequently high loaders carrying new cars were driven up the drive. The claimant was aware of that usage from 1994, though the contract ceased in 1994. Before 1994, he was aware that the Drews had some commercial use of the drive but it was not of a scale or nature that affected use of the drive. The defendant said that his instructions were that vehicles for pre-inspection should be unloaded outside the claimant's premises and the cars driven up the drive. On occasions, these heavy vehicles were badly driven and damaged the drive and the verges. The defendant did some repair work to the drive and the verges. That repair work is relied on in support of a plea of estoppel. However, it should be remarked at this stage that the defendant was not asserting any right to have those lorries driven up the claimant's drive because he instructed that they should not be driven up the drive. The claimant said that he thought that the defendant did the repairs as an act of good neighbourliness and that seems to be a reasonable view of it since Mr. Drew would have recognised that he had failed to ensure compliance with his instructions. I should add that this is not one of those cases familiar to the courts where neighbours behave in an unneighbourly and aggressive way towards each other. In correspondence they address each other by Christian names, their conduct towards each other has been civilised, and they come to court to have their rights determined.
  42. For reasons that do not matter for the purpose of this action, the Drews lost the contract to do the pre-delivery servicing and that business has ceased. No documents at all were disclosed in relation to that business or its cessation.
  43. Another source of evidence comes from documents created in connection with a planning application made by the defendant.
  44. In 1993, the defendant was informed of objections (not by the claimant) to the use made of Robins Cook Farm. The defendant instructed George R. Beach & Associates, Planning Consultants, to act for him in making an application for a Certificate of 10 years lawful use of the premises for the repair and servicing of motor vehicles. By letter dated 24 September, 1993, Mr. Beach sent to the Planning Officer at Reigate an application for such certificate together with supporting documents, including the letter from Mrs. Robinson to which I have already referred.
  45. Mr. Beach in his application claimed that there had been lawful use for 15 years. He referred to the HGV licence for the vehicles for the knacker and pet food business. He also referred to the pre-delivery service of new Citroens and he enclosed certain supporting documents.
  46. The claimant by letter dated 23 October, 1993 opposed the application. In that letter, among many detailed points made on the application and supporting material, the claimant wrote:
  47. "I therefore suggest that the very limited level of vehicle repairing which has continued for over 20 years does not constitute a 'business' and that therefore neither planning permission nor a Lawfulness Certificate should be either necessary or granted."

  48. By letter dated 8 November, 1993, Mr. D.G. Willis of Humphrey and Willis wrote that he had been supplying motor parts for car repairs in the defendant's workshop at Robins Cook Farm for about 20 years. That letter is consistent with the Drew boys pursuing their hobby.
  49. Mr. Blythe of J.T. Blythe Limited wrote on 11 November, 1993 that he first had a car worked on by Mr. Drew on or after September, 1985 and that Mr. Drew canvassed him for about 2 years before that for maintenance of his vehicles. That letter may have helped the defendant in his application for a certificate of 10 year use but it does not help him much in this action.
  50. Mr. Beach provided a Statutory Declaration from Mr. Heathcote. That document gave evidence of work for his practice only "since the autumn of 1980".
  51. On 10 December, 1993, Mr. Murrell wrote that he had known John Drew to do vehicle repairs and servicing "on a casual basis for at least 15 years and more so on a regular and permanent basis for over 10 years."
  52. Mrs. Marshall wrote on 21 December, 1993 that she had known John Drew for 16 years. But she was only able to speak for him maintaining her car for the previous 11 years, that is back to 1982.
  53. A Mr. Blunt wrote on 4 January 1994 that he had had his Land Rover serviced by the Drews but only since 1982.
  54. Mr. Charles Dunn provided a statutory declaration dated 21 September, 1983, that his business had its fleet of 9 cars serviced by John Drew "for at the least the last 9 years" i.e. since 1984, so he was not even supporting the period of use of 10 years then required by the defendant. By letter dated 8 January, 1994, Mr. Dunn sought to suggest that the servicing work done for him began earlier than stated in his statutory declaration but gave no credible reason for his suggestion. He said that John Drew was servicing Mr. Blythe's Mercedes and the vehicles of some veterinary surgeons and it was because of John Drew's experience with Mercedes that he entrusted his Citroens to John Drew. As I have said, Mr. Blythe first went to John Drew in September, 1985.
  55. Mr. B.E. Drew wrote a letter dated 21 January, 1994 in which he said that his business passed some mechanical repair work to John Drew but does not say when. Between 1981 and 1987 his business moved several times and on those occasions took temporary accommodation at Robins Cook Farm. I do not read that letter as convincing evidence of any business use by him before 1980, and after 1980 such business use that he made of the defendant's premises and the drive was plainly as a family favour.
  56. In 1993, a Certificate of Lawful Use was issued to the defendant. He then fenced off an area near his house with security gates, installed two further porta cabins and erected promotional signboards. (The first porta cabin had been installed in about 1990, and that installation marked the start of a significant change in the use of Robins Cook Farm). Aerial photographs show a large number of vehicles on the premises. At about1993, John Drew started using a trade name "Carprep" and signs using that name were erected on the claimant's property near the end of the drive. The claimant protested and the signs were removed. Similar signs were then erected on the defendant's property near the entrance to the drive directing prospective customers to the drive. A large number of differently signed delivery vehicles started using the drive to deliver to the defendant's premises. The name Carprep now appears in the business section of the local telephone directory with the address of Robins Cook Farm and a separate telephone number from the defendant's home. When that listing was first used was not established, but it must have been in recent years because the name Carprep was not used before 1993 or 1994. There are now at least 5 full-time mechanics (including the Drew brothers) employed in the business.
  57. As to VAT, John Drew said that in his motor business he used the VAT registration of the knacker yard and pet food business until 1997 despite the fact that that business had ceased in 1995. It would follow that until 1995 the inputs and outputs of the motor business such as it was would have been intermingled with the inputs and outputs of the knacker yard and pet food business. Mrs. Robinson would have been best placed to tell us how this worked out in practice. On 25 November, 1997, HM Customs and Excise made a VAT inspection and as a result the trade classification was amended to "Maintenance and repair of motor vehicles".
  58. The claimant's oral evidence was that he became aware of a change in the character of the usage of the drive in 1994. He did check the volume of usage and it was not any change in volume of use that concerned him but a change in the character of use. His written evidence put the change in character a little earlier. No doubt the change was gradual and it was difficult to set a point in time, but there is no doubt that there was a change. The evident change in the character of use caused some local people to make objection to the Planning Authority leading to the application for a Certificate of Lawful Use.
  59. In his written evidence, the claimant wrote that before 1980 there was some maintenance work done at Robins Cook Farm but it was confined to work done on the vehicles of the family business, work done as part of the boys' hobby, and a very small amount of work on other vehicles that he thought as done for "pin-money". In his view the use of Robins Cook Farm and the drive was confined to use that was residential in character.
  60. The claimant gave uncontested evidence about the agricultural use of the defendant's premises, which include what was formerly a piggery and about 25 acres of grassland. The piggery has been converted for use as a workshop and the grassland is mostly let out to farmers. The users of the grassland gain access from a gate opening directly onto the road. There has been no perceptible use of the drive for agricultural use during the last 20 years.
  61. In 1996, the defendant, without planning permission, used a part of the grassland for a rough terrain go-karting track. The go-karts were stored in the old piggery. Access was mostly direct across the grassland from the road but there were some deliveries along the drive. The activity was soon stopped by the planning authority after complaint from people living in houses nearby.
  62. The defendant has allowed telephone masts to be erected on his property, presumably for reward. A 15 metre mast was erected in 1994, replaced in 2000 by first a temporary and then a permanent 25 metre mast. This time, the defendant applied for planning permission. His application for the 25 metre mast included reference to access across the defendant's fields in summer and dry weather and along the drive in winter and wet weather. No advance warning was given to the claimant. Several mobile cranes, HGVs and other vehicles have used the drive for the purpose of erecting and maintaining those masts. Those vehicles caused blockage of access and damage to the verges.
  63. In an application for planning permission dated 15 March, 1999 for a new access to Robins Cook Farm across the defendant's land, estate agents for the defendant said that along the claimants drive there were then on average 40-50 vehicular movements each day with the vehicles ranging from cars to large container lorries. In the same letter, the agent wrote, "...the existing green access way is shared with two other residential properties. Their amenity and enjoyment is severely hampered by the intrusions of the many vehicles using the roadway during the daytime".
  64. I do not accept the claimant's view that before 1980, while there was some maintenance work done a Robins Cook Farm, the activity was residential in character. I accept his evidence as to the facts, but I do not accept his description of what was going on as being residential in character. On the evidence I have heard, it was not residential in character. The maintenance and storage of the vehicles of the knacker and pet food business could hardly be called residential nor could the maintenance of the vehicles of the veterinary practice. The former was known to the claimant while the latter was not. I do however accept the evidence of the claimant that the repairs then carried on were minimal and were certainly not publicly promoted as a commercial service.
  65. The Law as to Right of Way

  66. It is agreed between the parties that in order to establish the right of way for which the defendant contends, the defendant must show 20 years of uninterrupted user before the issue of the writ.
  67. The use for which the defendant contends is a right of way for vehicles going to Robins Cook Farm for the purposes of a business of repair, maintenance, servicing and storage of motor vehicles at Robins Cook Farm. That is contested by the claimant. What is not contested is a right of way for residential purposes.
  68. It is ancient law that a right of way may be for one purpose to the exclusion of other purposes. It is a question of fact on the evidence whether a right of way is for a limited purpose or purposes or is a general right for all purposes: Cowling v. Higginson (1838) 4 M & W 245.
  69. In Williams v. James (1867) LR 2 CP 577 at 580, Bovill CJ said:
  70. "In all cases of this kind which depend upon user the right acquired must be measured by the extent of the enjoyment which is proved. When a right of way to a piece of land is proved, then that is, unless something appears to the contrary, a right of way for all purposes according to the ordinary and reasonable use to which that land might be applied at the time of the supposed grant. Such a right cannot be increased so as to affect the servient tenement by imposing, upon it any additional burthen."

    In the same case, Willes J. at page 582 said:

    "Where a way has to be proved by user, you cannot extend thepurposes for which the waymay be used, or for whichit might be reasonably inferred that parties would have intended it to be used. The land in this case was a field in the country,and apparently only used for rustic purposes. To be a legitimate user of the right of way, it must be used for the enjoyment of the Nineacre field, and not colourably for other closes. I quite agree also with the argumentthat the right of way can only be used for the field in its ordinary use as a field. The right could not be used for a manufactory built upon the field. The use must be the reasonable use for the purposes of the land in the condition in which it was while the user took place."

  71. The decision in Williams v. James was approved by the Court of Appeal in Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch D 362 where it was held that the immemorial user of a right of way for all purposes for which a road was wanted in the then condition of the property does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement.
  72. In British Railways Board v. Glass [1965] 1 Ch 538, Lord Denning M.R., dissenting, said:
  73. "It is quite clear that, when you acquire a right of way by prescription, you are not entitled to change the character of your land so as substantially to increase or alter the burden upon the servient tenement. If you have a right of way for your pasture land, you cannot turn it into a manufactory and claim a right of way for the purposes of the factory. If you have a right of way by prescription for one house, you cannot build two more houses on the land and claim a right of way for the purposes of those houses also. I think this rule is not confined to the character of the property. It extends also to the intensity of the user. If you use your land for years as a caravan site for six caravans and thereby gain a prescriptive right over a level crossing, you are not thereby entitled to put 30 caravans on the site and claim a right for those 30."

    The majority of the court, Harman and Davies LJJ disagreed with Lord Denning MR as regards what he said about intensity of user. Having cited the passage from Williams v. James that I have quoted, Harman LJ said:

    "Applying that to the present case, you must do what the judge did, namely, base your conclusion on a consideration of what must have been the supposed contents of the lost grant on which the prescription rests. If this be supposed to be a grant of the right to use the " blue land " as " a caravan site," then it is clear that a mere increase in the numbers of the caravans using the site is not an excessive user of the right. A right to use a way for this purpose or that has never been to my knowledge limited to a right to use the way so many times a day or for such and such a number of vehicles so long as the dominant tenement does not change its identity. If there be a radical change in the character of the dominant tenement, then the prescriptive right will not extend to it in that condition. The obvious example is a change of a small dwelling-house to a large hotel, but there has been no change of that character according to the facts found in this case. The caravan site never became a highly organised town of caravans with fixed standings and roads and all the paraphernalia attendant on such a place ..."

  74. I think it likely that with a little further discussion Lord Denning could probably have persuaded the majority members of the court that there would come a point where an increase in the numbers of caravans on the site (perhaps greater than an increase of 6 to 30) would amount to a change in the identity of the dominant tenement without "fixed standings and roads and all the paraphernalia attendant on such a place". That is a matter of fact rather than law. In saying that, I do not seek to question the decision in British Railways Board v. Glass or the binding nature of that decision on me as a matter of law. It is important in this area to distinguish issues of law from issues of fact. That distinction was made more clearly in Williams v. James in the context of trial by jury.
  75. Have the Defendants established a right of way for business purposes?

  76. In my view, on the evidence before me, the defendant has not shown a right of way for business purposes save to a limited extent.
  77. It is accepted by the claimant that the defendant has a right of way for residential purposes. It is also accepted by the claimant that he had a right of way for purposes connected with his family business which is now defunct. A right of way for a defunct family business cannot possibly be enlarged into a right of way for business generally. It is also accepted that for more than 20 years the vehicles of Mrs. Nestel's practice have been repaired and serviced at Robins Cook Farm. On the basis of Mrs. Robinson's letter and the bills produced to me, I find that at least from 1983 and possibly from a date in 1980, that work was done for some reward though to a large extent on a "parts only" basis. However, the precise nature of that work is less important since the claimant is willing that any order made should allow its continuance.
  78. There is no credible evidence before me of any repair or maintenance work being done at the premises before 1980 other than for the family business of the knacker and pet food business, the veterinary practice, and for the hobby of the Drew sons. It would be correct to say that before 1980, the use of Robins Cook Farm was predominantly residential with some subsidiary non-residential use. The use has now become predominantly commercial with subsidiary residential use. After 1980, for some years a very small amount of work was done by way of business for people on the basis of personal friendship or personal solicitation. That was a significant change in the use of the premises and the use of the drive. There was then the Citroen pre-sale maintenance contract now terminated. Then there was an even greater change when the Drews started public promotion of the business. At that point, the use of the drive was no longer limited to use by those over whom the Drews had some influence and control. Everyone was invited to use it.
  79. There have been significant changes in the volume of use of the drive. There have also been significant changes in the character of use both of the dominant tenement and of the drive. This is illustrated, and it is only an illustration, by one of the complaints made by the claimant in support of his claim for damages. He says that the high volume of non-resident traffic leaves a considerable quantity of litter in discarded cigarette packets, confectionery wrappers, cans, bottles, etc which he has to clean up. The vets and the drivers of the defendant's business vehicles would not have thrown things out of the window. Drivers of vehicles personally known to the defendant and his family would be unlikely to have done so. But regrettably, when the English public generally is invited to drive along a way, rubbish is thrown out of the windows.
  80. Estoppel

  81. By paragraph 7 of the Defence it was pleaded:
  82. "Further the Defendant has contributed towards the expense of maintaining the driveway and carried out repairs and maintenance using his own machinery in the knowledge of the Claimant that he was carrying out the said work in the belief that he was entitled to use the driveway for all purposes including in connection with the horse slaughtering business and car repair business. By reason thereof, the Claimant is estopped from denying that he is entitled to use the driveway for those purposes."

  83. That pleading is unclear in that it is not plain whether the words "in the belief" are intended to refer to the belief of the defendant or the claimant or both. Whatever the pleading was intended to mean by those words, it is insufficient to support a plea of estoppel. However, I will deal with the plea as it was put in the opening and closing speeches of counsel for the defendant.
  84. In his opening speech, counsel for the defendant said that the second issue in the action was:
  85. "Has the Claimant represented that the defendant is entitled to use the driveway for the purposes of his business and as a result has the defendant paid towards the maintenance and improvement of the road? If yes, then an estoppel will arise."

  86. In support of that proposition counsel relied on paragraph 2-03 of the current 16th edition of Gale on Easements. That paragraph is as follows:
  87. "Natural rights of immunity against nuisance or the like, or against trespass, may be abrogated by an estoppel based on acquiescence. The principle appears to be that A cannot restrain B from doing something which invades a natural right incident to A's land if what is done is, or is the reasonable consequence of, something that has been encouraged or countenanced by A, but mere abstinence by A from legal proceedings does not amount to acquiescence. B knows, or may be assumed to know, of A's rights, but is led to believe that they will not be asserted. The equitable estoppel which is established does not depend on a mistaken belief by B that he has an existing right. It is enough that, although B knows, or may be assumed to know, A's rights, B is encouraged by A's words or actions to believe that those rights will not be asserted, or that a new right, for example, a right of access, will be granted to B, so that B, relying on this belief, acts to his detriment. In this way B may acquire, by means of an estoppel, something in the nature of an equitable easement. In Crabb v. Amn Distiict Council Scarman L.J. said that the law was correctly stated in Lord Kingsdown's dissenting speech in Ramsden v. Dyson. Lord Kingsdown said:

    "The rule of law applicable to the case appears to me to be this: If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation."

    As Scarman L.J. said, that statement of the law was put into the language of landlord and tenant because it was a landlord and tenant situation with which Lord Kingsdown was concerned, but it has been accepted as being of general application."

  88. Guidance on the application of that principle is to be found in paragraph 2-04 of Gale:
  89. "The requirements of such an estoppel were set out in more detail in Willmott v. Barber by Fry J., referring to "five probanda". These probanda have been recited and applied in some cases but not regarded as essential in others. The courts have now consistently indicated that they prefer a broad approach based on determining whether the behaviour of the person alleged to be estopped is unconscionable. Thus in Taylors Fashions Ltd v. Liverpool Victoria Trustees Co. Ltd, Oliver J. said:

    'The more recent cases indicate that the application of the Ramsden v. Dyson principle-whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial-requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.' "

  90. I do not regard any activity or non-activity of the claimant in relation to the repair of the drive as unconscionable.
  91. First, I should say that when the parties first bought their properties, the drive was unmade. In 1973 or 1974, the claimant persuaded the defendant and the other user of the drive to share the cost of making the drive up with tarmac. The cost was shared because it was agreed that there was a right of way for residential purposes. The question of business use had not then arisen and there could be no question of estoppel.
  92. It is not at all clear what is the conduct or alleged misconduct on the part of the claimant that is relied on.
  93. In his closing speech, counsel for the defendant first relied on two letters dated respectively 31 August, 1994 and 13 May, 1996 written by the claimant to the defendant. Both letters begin "Dear John" and are written in friendly and courteous terms about matters of disagreement that have arisen between the parties. Neither letter complains about a change in character or amount of the use of the drive.
  94. The letter of 31 August, 1994 complained about signs erected by the defendant. That letter was plainly written by the defendant under a misapprehension. He plainly thought that there was some written agreement about the right of way and the permissible use of that way. In one paragraph he wrote:
  95. "As far as I am aware the agreement for you to use our driveway has no specific provisions for you to erect signs. If I am wrong in this, please let me have a copy of the relevant extract and, on verification against our copy, I shall be happy to abide by the terms."

  96. In the letter dated 13 May, 1996, the claimant dealt with some complaints made by the defendant about sight lines on the drive, about drainage, and about redirecting of visitors who went to the wrong house on the drive.
  97. Counsel for the defendant submitted that at the time of the 1994 letter, the drive was being used for the vehicles related to the knacker and pet food business, for the pre-delivery inspection of Citroens, and for the garage business that had either taken off in 1989 or was about to take off in 1995. In the light of that letter, said counsel, the defendant thought he could use the driveway for whatever he wanted. But that remains a matter of submission. There is no evidence that the defendant thought any such thing or that he relied on the letter in any way.
  98. By the date of the 1996 letter, the pre-delivery inspections of Citroens had ceased. There is again no evidence that the defendant's mind was in any way affected by this letter as regards any belief that the claimant would or would not exercise his rights. The express indication from the previous letter was that, whatever those rights turned out to be (and the claimant thought they were in writing), the claimant would rely on them and enforce them. The 1996 letter was written before there was any public solicitation of business.
  99. It is not clear what work or expense the defendant is relying on in this connection. The defendant has not specified what the work was that was done or when it was done or what it cost. The claimant accepts that the defendant did do some work on the drive. I have the impression that some of that work was done by the defendant to repair damage done by low and high loaders delivering Citroens. Those vehicles went up the drive contrary to the defendant's instructions, and if he repaired damage done by them, he cannot have thought that he was expending money on the exercise of something he had a right to do because he had forbidden it. The claimant said that he thought that the defendant did what he did as a neighbourly act. In any event, the defendant did not give notice that he was going to do repairs and it is difficult to suggest that the claimant acquiesced in the doing of repairs. If he did see the defendant doing a repair, it would be reasonable for him to think that the repair was related to a residential use. However, from 1999, he did stop the defendant from doing any more repairs. Again on some occasions, on dates that are not clear, the claimant himself did repairs to the drive and asked for contributions to the cost from the other users of the drive. Since it is clear that the other users of the drive did have a right to use the drive for residential purposes, it was reasonable for the claimant to ask them for a contribution. There is no evidence that by asking for a contribution the claimant was sanctioning any use other than residential use.
  100. The first formal objection to the use of the drive was by letter dated 15 August, 1997 from the claimant to the defendant. That letter was prompted by the claimant seeing two go-karts on a trailer going up the drive. By this time the claimant had ascertained that although there was written definition of the right of way enjoyed by Little Staplehurst, there was no written definition of the right of way enjoyed by the defendant. The claimant asked for an agreement to be drawn up clarifying the matter. That letter was followed up by a letter from the claimant's solicitors inviting the defendant to put forward any document relied on in support of any claim to a right of way.
  101. The claimant has been slow to raise objection to the activities of the defendant, but it is clear that he is a peaceable man and the activities have been changing over a long period of time. The last straw appears to have been the public solicitation of business by the erection of signs accompanied by a large increase in business.
  102. I do not see that the claimant has acted in any way unconscionably nor that the defendant has been led to believe that the claimant would not enforce his rights once he ascertained what they were.
  103. I reject the suggestion that there is any estoppel here.
  104. Damages

  105. The claimant complains that as a result in the change in character as well as volume of traffic along the drive he and his family have suffered from:
  106. (a) Intrusion into their privacy since the drive passes through the middle of their property adjacent to the lawn and main garden area. This intrusion is felt particularly from large commercial vehicles.

    (b) Exhaust fumes, particularly diesel exhaust blown into the main garden area by the prevailing wind.

    (c) Noise from engines and loud radios heard in the house as well as the garden.

    (d) Litter to which I have already referred.

    (e) Inconvenience due to vehicles meeting and being unable to pass.

    (f) Increased use by large vehicles has caused damage to the verges making them unsightly and requiring repair.

    (g) The drive is no longer safe for children to ride bicycles and the claimant's three grandchildren are not allowed to use it.

    (h) If the present state of affairs continues the marketability and potential selling price of the property will be substantially reduced.

  107. I accept that all of those complaints are well founded. Indeed they were not challenged in cross-examination. In his closing speech, counsel for the defendant challenged the complaint in (g) about the loss of use by children. That challenge was put on the basis that there were some ponds near the drive that would make it dangerous for young children to be on the drive in any event. As a father and grandfather I find that objection entirely fanciful.
  108. Since I propose to grant an injunction, the complaint at (h), though well founded, is irrelevant to the assessment of damages. I can well see that if this were a case for damages in lieu of injunction (and no one has suggested that it is) the damages related to complaint (h) would be very substantial. However, I have no evidence of the value of the property with an injunction as compared with the value without an injunction. That is not a complaint. On the case put before me such evidence is irrelevant. Equally, if there were a case for damages in lieu of injunction the damages for the continuance in perpetuity of the nuisances and loss of amenity listed by the claimant would also be very substantial. As it is, the assessment of damages should be on a moderate basis.
  109. There is little guidance as to the assessment of damages in cases such as this. I do not think I should be influenced by what appear to be ludicrously high awards reported in the press for insulting words and what is called harassment over moderately short periods in office life, though I am bound to say that the claimant in my view has suffered far more than many who have been over compensated for the conditions in employments that they could have left for other employment. I say that because the claimant is bound to make his own comparisons. The claimant has suffered many years of daily inconvenience and aggravation that he could only escape by selling his home at a loss, though he has not complained until recent years. For all that he should have at least what he would pay for a fairly decent second hand car. I award the claimant £10,000 damages.
  110. Injunction and Declaration

  111. With some small textual amendments, I grant the declaration and injunction for which the claimant prays in the amended Statement of Claim. That relief is in the following terms:
  1. A declaration that neither the Defendant nor anyone else on the Defendant's behalf has acquired a right of way by prescription (or by any other means) over the roadway coloured blue on the plan annexed to this order for the purposes of access to and egress from Robins Cook Farm for the purposes of a motor vehicle repair, servicing, maintenance or storage business or for any purpose ancillary thereto (save in respect of any motor vehicle owned or operated by the Veterinary Practice now known as Gayton Veterinary Group of 40 Hatchlands Road, Redhill, Surrey).
  2. An injunction restraining the Defendant, whether by himself or by his servants or agents or otherwise howsoever from trespassing on the Claimant's land by using or suffering or permitting others to use the roadway coloured blue on the plan annexed to this order as a means of access to Robins Cook Farm for the purposes of a motor vehicle repair, servicing, maintenance or storage business or for any purpose ancillary thereto (save in respect of any motor vehicle owned or operated by the Veterinary Practice now known as Gayton Veterinary Group of 40 Hatchlands Road, Redhill, Surrey).
96. The plan annexed to the Statement of Claim should be annexed to the order when it is drawn up.

 

 

 

 

 

 

 


© 2001 Crown Copyright


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2001/410.html