Chamberlain v Lindon
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SULLIVAN,MR JUSTICE ROSE |
| Judgment Date | 18 March 1998 |
| Neutral Citation | [1998] EWCA Civ J0318-3 |
| Docket Number | CO/3663/97 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 March 1998 |
[1998] EWCA Civ J0318-3
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London W2A 2LL
Lord Justice Rose
and
Mr Justice Sullivan
CO/3663/97
MR B DEAN (instructed by Messrs Willson Hawley & Co., DX44450 Strand) appeared on behalf of the applicant.
MR M FORDE (instructed by Messrs Newsome Vaughan, Coventry CV1 2GW) appeared on behalf of the respondent.
Wednesday 18th March 1998 JUDGMENT
Mr Chamberlain appeals by way of case stated against a decision of Nuneaton Magistrates' Court dismissing an information preferred by him against the respondent, Mr Lindon, alleging that the respondent had, without lawful excuse, destroyed a new garden wall belonging to the appellant, contrary to section 1(1) of the Criminal Damage Act 1971.
After a five day hearing the magistrates dismissed the information because they were of the opinion that the respondent had a lawful excuse under section 5(2)(b) of the 1971 Act.
Section 5 applies to offences under section 1(1) and so far as material subsection 2(b) provides:
"A person charged with an offence to which this section applies shall, whether or not he would be treated for the purposes of this Act as having a lawful excuse apart from this subsection, be treated for those purposes as having a lawful excuse —
(b) if he destroyed … the property in question … in order to protect property belonging to himself … or a right or interest in property which was or which he believed to be vested in himself … and at the time of the act or acts alleged to constitute the offence he believed —
(i) that the property, right or interest was in immediate need of protection; and
(ii) that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all of the circumstances.
(3) For the purposes of this section it is immaterial whether a belief is justified or not if it is honestly held.
(4) For the purposes of subsection (2) above a right or interest in property includes any right or privilege in or over land, whether created by grant, licence or otherwise."
The magistrates concluded that the respondent had a lawful excuse under section 5(2)(b) because:
"(a) he had destroyed the wall in order to protect a right or interest in his property which he had believed to be vested in himself;
(b) he had honestly believed that the right or interest was in immediate need of protection;
(c) He had honestly believed that the means adopted were reasonable, having regard to all the circumstances of the case."
The magistrates pose two questions for the opinion of this court:
"(i) Were we on the facts found proved entitled to find that the Respondent had a lawful excuse for the purposes of section 5(2)(b) of the Criminal Damage Act 1971?
(ii) Were we on the facts found proved entitled to acquit the Respondent?"
Although, as a matter of form, this appeal comes before the court by way of case stated from the magistrates in a criminal matter, it is in substance a dispute between two neighbours as to their respective rights under the civil law and should have been resolved, in so far as litigation was required at all, in the County Court.
A criminal prosecution was, in my view, a manifestly inappropriate procedure to adopt in the circumstances which I will now describe by way of summarising the very detailed findings of fact made by the magistrates.
Mill Farmhouse and the Mill are two adjacent properties in Mill Lane, Fillongley. Both had been in the appellant's ownership since the mid-1980s. He agreed to sell the Mill to the respondent in 1988. To obtain access to the Mill from the highway it is necessary to cross a parcel of land measuring 26 feet by 12 feet, which was retained as part of Mill Farmhouse.
The parcel of land is shown coloured brown on the plan before the court and was referred to by the magistrates as the "brown land".
Following proceedings for specific performance, the appellant, by deed of transfer, in May 1991 granted the respondent the right to pass and repass over and along the roadway shown coloured brown on the said plan; ie over the brown land.
Since 1988 the respondent had used the brown land to gain both pedestrian and vehicular access to the Mill. The brown land is aligned roughly along a north-west south- east axis.
The respondent had taken to driving diagonally across the brown land (that is to say in approximately an east to west direction) to gain access to his property. Because of landscaping work undertaken by him on his own land it was not possible for him to drive into the Mill from the north-western end of the brown land.
The appellant formed the view that the respondent was not entitled to gain access to the Mill by driving diagonally over the brown land. Extensive correspondence ensued and in July 1995 the appellant laid the foundations of a wall along the south-western boundary of the brown land which would have the effect of preventing the respondent from driving diagonally over it. The respondent promptly drove his vehicle over the foundations and parked it on land belonging to the Mill immediately behind where the wall would be, so it would be trapped if the wall was built.
The wall was built and was completed in July 1995 at a cost of £1800 leaving the respondent's vehicle trapped behind it.
The respondent complained to the applicant, contending ( inter alia) that he had a right of access in whatever direction he chose across the full width of the brown land. The wall not merely prevented him from gaining access to the Mill in a diagonal direction across the brown land, it also reduced the width of the brown land by some 2 foot 9 inches to 9 foot 3 inches since it was built wholly upon the brown land.
There were also discussions and correspondence with the council as to the effect of the wall on a public footpath. Those discussions are not relevant for present purposes.
Following extensive correspondence the respondent gave notice that he would demolish the wall unless the appellant did so. The appellant did not and so the respondent was as good as his word and demolished the wall on 20th April 1996.
The magistrates found the following facts:
"(w) The Respondent in destroying the wall did so in order to protect a right or interest in property that he believed to be vested in himself, namely his right to pass at a tangent by vehicle from the boxed brown area on the Plan onto his own adjoining land and also to use the full width of that area."
"(x) At the time of destroying the wall the Respondent believed:-
(i) That the right or interest was in immediate need of protection and;
(ii) That the means of protection adopted were reasonable having regard to all of the circumstances."
"(y) Both of the above beliefs were honestly held by the Respondent in that at the time of demolishing the wall the respondent believed:-
(a) that his right or interest was in immediate need of protection - that if he did not take immediate action he would be seen as accepting the situation which could ultimately lead to the relinquishing of part or all of his rights of access. The Respondent had entered into correspondence with the Appellant and his solicitors regarding the matter which lasted for almost a year and which was ongoing at the time of the incident. The Respondent could see no end to the dispute. This view was based on his experience of 8 years protracted, continuing and expensive litigation with [the appellant]."
Mr Dean, on behalf of the appellant, originally challenged the magistrates' decision on four grounds. He no longer pursues the first of those grounds and puts forward the fourth as being simply supportive of the third ground.
By way of background I mention that the first ground was a contention that the respondent's right to pass over the brown land onto his own land was not a right that he was entitled to protect under section 5(2)(b). Mr Dean's concession that he can no longer pursue that ground is plainly correct in view of the provisions of section 5(4); which I have already read and which provides that a right or interest in property for the purpose of section 5(2)(b) includes:
"… any right or privilege in or over land whether created by grant, licence or otherwise."
As Mr Forde's skeleton argument for the respondent submits: a right of way falls squarely within that definition.
Although this court is concerned with matters of civil law, only to the extent that it is necessary to decide whether the magistrates were justified in their conclusion that the respondent had a lawful excuse, one does not have to conduct a very elaborate investigation into the civil law to appreciate that obstructing a right of way is a nuisance and that the dominant owner, in this case the respondent, may in principle enter the land of the servient owner, the appellant, to abate the nuisance by removing the obstruction: see 14 Halsbury Laws at paragraph 134, and Gale on Easements 16 th edition, paragraph 14–02 et seq.
In Lloyd v Director of Public Prosecutions [1992] 1 All ER at page 982, Nolan LJ (as he then was) referred at page 989b to the judgment of Kerr LJ in Stear v Scott (unreported) in which the latter said that the ancient remedies of self-help should be carefully scrutinised in the present day and certainly not extended.
It requires no extension of the remedy of abatement to say that a person who finds his right of way obstructed may in principle remove that obstruction. I say "in principle" because of certain observations of the Court of Appeal in Burton v Winters [1993]...
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Unsworth v Dpp
...to an exclusively subjective test. 12 The other authority to which we were referred was the decision of the Divisional Court in Chamberlain v Lindon [1998] EWHC Admin 329, [1998] 1 WLR 1252. (The report does not include the paragraph numbers, so for ease of reference I include both the par......