Churston Golf Club Ltd v Richard Haddock
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Baker,Mr Justice Nugee |
| Judgment Date | 03 April 2019 |
| Neutral Citation | [2019] EWCA Civ 544 |
| Docket Number | Case No: A3/2018/0626 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 April 2019 |
[2019] EWCA Civ 544
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL (CHANCERY DIVISION)
AND FURTHER ON APPEAL FROM THE COUNTY COURT AT TORQUAY AND
NEWTON ABBOT
Birss J: [2018] EWHC 347 (Ch)
HH Judge Carr: B00TQ111
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Baker
and
Mr Justice Nugee
Case No: A3/2018/0626
Ms Joanne Wicks and Mr Malcolm Warner (instructed by Kitsons LLP) for the Appellant
Mr Leslie Blohm QC and Mr John Sharples (instructed by Stephens Scown LLP) for the Respondent
Hearing dates: 13–14 February 2019
Approved Judgment
This is an appeal by Churston Golf Club Limited (“the Golf Club”) against an order of Birss J dated 23 February 2018 dismissing their appeal against the earlier order of HH Judge Carr dated 8 December 2017 who held that the Golf Club is under a positive obligation to erect and maintain a substantial stock-proof fence, wall or hedge along the boundary between its property and that of the claimant, Mr Haddock. The appeal requires us to consider two issues: (1) whether the provisions of clause 2 of a conveyance of the Golf Club's land to the Mayor, Aldermen and Burgesses of the County Borough of Torbay (“the Old Council”) on 20 December 1972 falls to be construed simply as a covenant to fence or rather, as Mr Haddock contends, as the creation of an easement of fencing in favour of Mr Haddock's property as the dominant tenement; and (2) if the latter whether, as the courts below have held, it is possible to create such an easement by express grant.
Permission was given by Asplin LJ for a second appeal in relation to issue (2) on the basis that it raises a point of law of some general importance but the Golf Club was left to apply to this Court for permission to appeal on ground (1). Although questions of construction of this kind do not ordinarily satisfy the test for a second appeal contained in CPR 52.7(2), I am satisfied in this case that the issue of construction is so obviously bound up with the ground of appeal for which permission has been granted as to create a compelling reason for granting permission to appeal on that ground also.
It is convenient at this stage to summarise the factual and procedural background to the appeal. The case concerns two adjacent parcels of freehold registered land at Churston in Devon. The land now occupied by the Golf Club was until December 1972 owned by The Churston Golf Club Limited (“CGC”). The other parcel of land with which we are concerned was owned at that time by the trustees of the Churston Barony Settlement (“the Trustees”). Clause 2 of the conveyance of the Golf Club land sold by CGC to the Old Council on 20 December 1972 contained a covenant between the Old Council as purchaser and the Trustees (who were also parties to the deed) in the following terms:
“The Purchaser hereby covenants with the Trustees that the Purchaser and all those deriving title under it will maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stockproof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto”.
As a result of changes due to local government re-organisation, Torbay Borough Council (“the Council”) has now replaced the Old Council as the owner and registered proprietor of the Golf Club land but it is common ground that nothing turns on this for the purposes of what we have to consider. There was a statutory vesting of the property in the Council under The Local Authorities (England) (Property etc.) Order 1973 ( SI 1973/1861) para 16(3)(a)-(b) and Schedule 4 Part II which included the transfer to the Council of any contractual or other obligations imposed on the Old Council under the 1972 conveyance.
The parties to this appeal are lessees of their respective parcels of land from the Trustees and the Council. Mr Haddock has been the tenant of Churston Court Farm since 2002. The Golf Club are the tenants and registered proprietors of their land under a lease for a term of 999 years granted by the Council on 3 April 2003. On 31 March 2015 Mr Haddock issued proceedings against both the Council and the Golf Club alleging that his farming operations had been adversely affected by their failure to maintain an effective fence or hedge along the boundary between the two parcels of land in accordance with the terms of clause 2 of the 1972 conveyance. He sought a declaration that both the Council and the Golf Club were liable to erect and maintain such a fence or hedge and damages for the loss of use of his land as pasture for cattle raising. Prior to the trial he took an express assignment of the benefit of the clause 2 covenant so as to avoid any argument as to whether the benefit of it had passed to him under s.78 of the Law of Property Act 1925 (“ LPA 1925”).
The claim against the Council was settled shortly before trial leaving the Golf Club as the only defendant. The claim for damages was originally pleaded in a sum of £150,000 to £200,000 based on a calculation of the value of the use of the farm land had a stock-proof fence been in place. But at the trial the judge awarded Mr Haddock £1,000. He held, however, that clause 2 of the 1972 conveyance created a fencing easement and not merely a covenant to fence so that its burden fell on and was enforceable against the Golf Club as the lessees of the servient tenement. But he also expressed the view that the burden of clause 2 passed, if by no other means, under s.79 LPA 1925.
On appeal Birss J (see [2018] EWHC 347 (Ch)) affirmed Judge Carr's decision that, on its true construction, clause 2 created a fencing easement but did not accept that, looked at simply as a covenant, the burden would have passed to the Golf Club under s.79. That part of Judge Carr's reasoning was, he said, contrary to the decision of the House of Lords in Rhone v Stephens [1994] 2 AC 310.
The decision that clause 2 created a fencing easement so-called raises the question whether such an easement can be created by express grant as opposed to custom or prescription. In Crow v Wood [1971] 1 QB 77 Lord Denning MR certainly expressed the view that an easement of fencing could be created by a grant under s.62 LPA 1925 and from this Birss J reasoned that such an easement lay in grant and could therefore be created by express grant between the parties to the 1972 conveyance. This is the first time that this point has been directly considered by the Court of Appeal but it only arises if the courts below were correct in their construction of clause 2 of the 1972 conveyance. I propose to deal with that question first even though it involves some consideration of the nature of the fencing easement which is said to have been created in this case.
Construction
An easement is a right over land in separate ownership. The right is not personal but is appurtenant to the land of the dominant owner. As such, it must accommodate the dominant tenement and be capable of forming the subject matter of a grant. These essential characteristics of an easement were set out authoritatively in the judgment of the Court of Appeal in Re Ellenborough Park [1956] 1 Ch 131 as recently confirmed by the decision of the Supreme Court in Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd [2018] UKSC 57; [2018] 1 WLR 1630. Easements may impose negative restrictions on the servient tenant such as preventing the servient owner from interfering with light, water or support derived from the servient tenement. But easements properly so-called do not ordinarily impose obligations to repair on the servient owner. Even where the easement is positive in nature, such as a right of way, the servient owner is not required to keep the road or other land over which the right is exercisable in good repair and if he chooses to carry out repairs he will have no legal right to recover a contribution from the owner of the dominant tenement absent an agreement to that effect.
There are, however, instances in which an obligation to repair may arise either from custom or by statute and so-called fencing easements are no more than instances where the law will impose on the owner of land an obligation to keep his land fenced for the benefit of the owners or users of the adjoining land. Such an obligation is not an easement in the sense described above. It does not grant the owner of the dominant tenement the right to do anything on the servient tenement or the right to prevent the servient owner from interfering with rights such as light or support provided by his land. Instead it imposes an obligation on the servient owner which the owner of the dominant tenement may enforce for his benefit qua owner and which the owner of the servient tenement comes under as an incident of his ownership of that land.
Fencing easements (which I shall refer to in this judgment by that name simply for convenience) have a long history but an uncertain legal basis. In Egerton v Harding [1975] 1 QB 62 the issue was whether the owner of a cottage adjoining a common was under an obligation to fence off her garden against the common so as to prevent cattle from straying from the common. The duty to fence was found by the judge in the County Court to be based on custom and to be enforceable by those, like the defendant, who chose to exercise the right to graze cattle on the common as a defence to an action for cattle trespass.
The defendant had originally pleaded the existence of a fencing easement based on prescription but was allowed to amend at the trial to plead that it was based on custom. Dealing first with prescription, Scarman LJ said (at page 68):
“We...
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Table of Cases
...v Temple [2010] EWHC 3369 (Ch), [2011] 1 EGLR 73, [2011] 17 EG 72, [2010] All ER (D) 170 (Dec) 158 Churston Golf Club Ltd v Haddock [2019] EWCA Civ 544, [2019] All ER (D) 46 (Apr), [2019] 4 WLUK 17, CA; [2018] EWHC 347 (Ch), [2018] 4 WLR 53, [2018] 2 P & CR 27, [2018] All ER (D) 157 (Feb) 7......