Andrew David Scott Walby and Another v Malcolm Seamus Scott Walby and Another

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Morgan
Judgment Date02 November 2012
Neutral Citation[2012] EWHC 3089 (Ch)
Docket NumberCase No: HC10C02654
Date02 November 2012

[2012] EWHC 3089 (Ch)


Royal Courts of Justice

Rolls Building. Fetter Lane,

London. EC4A 1NL


Mr Justice Morgan

Case No: HC10C02654

(1) Andrew David Scott Walby
(2) Richard Scott Walby
(1) Malcolm Seamus Scott Walby
(2) Laura Christina Scott Walby

Ms Emily Windsor (instructed by Clarke Willmott LLP) for the Claimants

Mr Mark Wonnacott (instructed by Wilsons Solicitors LLP) for the Defendants

Hearing dates: 2, 3 and 4 October 2012

Mr Justice Morgan



This judgment concerns a transfer of land dated 30 th November 1989 and made between Richard Walby, known as Dick Walby, as the transferor and his son Malcolm Walby, as the transferee. In these proceedings, Dick Walby claimed rectification of the transfer so as to exclude certain land and buildings. That claim was based on his assertion that he had made a mistake at the time of the transfer which led to the extent of the land transferred being wrongly expressed. I have already given judgment in relation to the claim for rectification of the transfer. I held that Dick Walby did not make any relevant mistake at the time of the transfer and the transfer should take effect in accordance with its terms.


At the trial of the rectification claim, the Claimants raised a further question as to whether, if the transfer were not rectified, the transferor impliedly reserved to himself two easements, the first being an easement of drainage and the second being an easement of support for buildings retained by the transferor. I reserved my decision on that question and that is now the subject matter of this judgment.

The background facts


In my judgment dealing with the rectification claim I set out the factual history in some detail. In order to understand the present judgment dealing with the possible reservation of easements, I need to summarise some of those factual matters.


The land and buildings which were the subject of the transfer were at Upton Farm, Berwick St John, Shaftesbury, Dorset. In the 1970s, the land and buildings at Upton Farm were all owned freehold by Dick Walby. In 1974, Dick Walby and his wife entered into a farming partnership to farm Upton Farm. On the same day, Dick Walby as freeholder granted a tenancy of Upton Farm to himself and his wife. At some point, their eldest son (Andrew) began to assist his parents in running the farm. On 31 st March 1986, Andrew was taken into the farming partnership with his parents. It was agreed that the tenancy of the farm was held for the benefit of the partnership. In 1984, Dick Walby transferred part of Upton Farm to Andrew, subject to the existing tenancy. Dick Walby's wife died in 1988 whereupon the legal title to the tenancy vested in Dick Walby alone, by survivorship. The tenancy has continued in existence at all times thereafter up to the present day. The tenancy was protected by the Agricultural Holdings Act 1948 and later the Agricultural Holdings Act 1986. The succession provisions contained in Part IV of the Agricultural Holdings Act 1986 apply to the tenancy.


On 30 th November 1989, Dick Walby executed two transfers of two parts of Upton Farm, subject to the existing tenancy. One transfer was to another son (Alistair). The other transfer was the transfer to Malcolm which is now material. I will refer to the terms of that transfer in more detail later in this judgment. In around 2001, Dick Walby sold to Andrew all of the land which he had retained at the time of the 1989 transfers. By two transfers executed in 2010, Malcolm Walby transferred most of the land, which had been the subject of the 1989 transfer to him, to his wife Laura. He retained the farm yard and buildings which were the subject of the 1989 transfer.


If the transfer to Malcolm had impliedly reserved an easement of drainage and/or an easement of support, then the servient land is still owned by Malcolm (i.e. it was not part of the land transferred to Laura) and the dominant tenement is now owned by Andrew (having been sold to him by Dick Walby in 2001).


Before turning to the terms of the 1989 transfer to Malcolm, it is necessary to describe the physical layout of the farmyard at the time of that transfer. The farmyard lies on a comer formed by a road running to the north and a road to the east of the farmyard. The farmyard slopes downwards from the southern end of the farmyard towards the road to the north. Nearest to the road, which runs to the north of the farmyard, is a building described as a grain dryer or store which was sold to a third party in the 1960s and is not material to the present dispute. To the south of this building, is a farm yard which has been concreted in the past. To the west of the concreted yard is a large portal frame general purpose building. There are silage clamps between this large portal frame building and the grain dryer/store to the north. To the south- east of the large portal frame building is a steel frame stock building sub-divided into stock pens and open-fronted with gates. To the east of the large portal frame building, on the other side of the concreted yard, is a range of older stone-walled buildings. These stone-walled buildings are in two sections, to which I will refer as the front stone buildings and the rear stone buildings. Both the front and the rear stone buildings are L-shaped. There is an area of open yard between the front and rear stone buildings.


There is a drainage system which serves the farmyard and some of the buildings. I will describe the arrangement of this drainage system at the present time and I will then consider what the evidence shows as to the arrangement of the drainage system at the time of the 1989 transfer. In the rear stone building there are two or more catchpits set into the floor of the building. When the catchpits were installed, that building was used to house a dairy herd. Effluent from the herd could run into the catchpits and enter the drainage system at that point. In the yard to the north of the rear stone building there are two or more further catchpits. If animals were standing in the yard near to those catchpits, then effluent from the animals could run into those catchpits and enter the drainage system. In addition, rain falling in that area of the yard could run into those catchpits. In the front stone buildings, there was a further catchpit set into the floor of the building which could receive any effluent or other liquid at that point. As regards the yard between the large portal frame building and the stone buildings, rain falling on that yard would run off in the direction of the road to the north of the yard and would run into two catchpits set into the yard. All of the catchpits to which I have referred gave access to an underground drainage system which drained into a large settlement chamber on the east side of the farmyard. The contents of the settlement chamber could be pumped out into an underground system which ran from the east side of the farmyard and towards the west side of the farmyard. The underground system then continued in a westerly direction through an open field to the west of the farmyard. The underground system then arrived at a point which was described as a "take off" point. Then the underground system turned south underneath an open field passing a second take off point and ending in a third take off point. Up to the point where the system turned south, it ran through a field included in the 1989 transfer. From the point where the system turned south, it ran through a field not included in the 1989 transfer and therefore retained by Dick Walby at that stage. I was not given any detailed evidence as to the drainage of rain water falling on the roofs of the buildings in the farmyard but there were general references in the evidence to rain water falling on such roofs finding its way into the drainage system.


The above description of the drainage system refers to the position at the present time. There was an issue as to when a drainage system of this kind was installed and whether it had been altered between its first installation and its present layout. It should have been obvious that it was critical to the Claimants' case that they establish the existence of and the layout of any drainage system at the time of the 1989 transfer. In fact, the evidence provided by the Claimants was self contradictory and inadequate. What may have happened in that respect is that the Claimants' evidence was served at a time when there was no pleaded issue as to the reservation of easements. Then in August 2012, not long before the trial, the Claimants amended their claim to assert that easements of drainage and support had been impliedly reserved by the transfer to Malcolm. However, the Claimants did not attempt to give any evidence as to the existence or layout of any drainage system at the time of the 1989 transfer. The Claimants did serve a surveyor's report after they had amended their claim; that report gave some information as to the present position in relation to drainage but did not provide any information as to the position in 1989.


To make matters worse for the Claimants, they called Mr Dick Walby as a witness and his witness statement stated: "I installed a drainage system shortly after the Transfer was done" (my emphasis). When Mr Dick Walby came to give his evidence, he confirmed that the contents of his witness statement were true. He was not asked to reconsider his written evidence that the drainage system was installed after the transfer to Malcolm. During his cross-examination, he was asked about a quotation for drainage work which was dated 18 th March 1989, which was before the date of the transfer to Malcolm. This quotation had been provided to the court on the first day of the trial. Dick Walby stated...

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