David Heneage Wynne-Finch v Natural Resources Body for Wales
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Falk |
| Judgment Date | 27 July 2020 |
| Neutral Citation | [2020] EWHC 1924 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: PT-2018-000155 |
| Date | 27 July 2020 |
[2020] EWHC 1924 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mrs Justice Falk
Case No: PT-2018-000155
Fenner Moeran QC and Paul Stafford (instructed by Forsters LLP) for the Claimants
Mark Wonnacott QC and Harriet Holmes (instructed by Hugh James) for the Defendant
Hearing dates: 17, 18, 19, 22, 23, 24 and 26 June 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This case relates to a claim that the Claimants, acting in their capacity as trustees of the Williams-Wynn 1987 Settlement (the “1987 Settlement”), own everything below the surface of large tracts of land in rural northern Wales. The area concerned is in the former county of Montgomeryshire, and is now part of Powys.
The Defendant is a public body that was formed in 2012 to fulfil the Welsh devolved functions of the Environment Agency and the Forestry Commission. The particular claim the subject of these proceedings affects 40 freehold titles that are managed by the Defendant as statutory successor to the Forestry Commission. The land is used for forestry purposes. In most cases the claim relates to the whole geographic area covered by the registered title.
The registered owner of each of the titles is the National Assembly for Wales, and the Defendant manages the land on its behalf. It is convenient to refer to the Defendant throughout this judgment as if it, rather than the National Assembly for Wales, was both the registered owner and occupier. This was the approach that both parties took in submissions, and it was not suggested that any relevant distinction should be drawn between the two bodies.
The Claimants' case is that the property in question was formerly nearly all rough open pasture and formed part of the Manor of Arwystli 1 or the Manor of Cyfeiliog (the “Manors”). The Manors have been owned, the Claimants say for several centuries, by or on behalf of members of the Williams-Wynn family. Most of the land formed part of the “wastes and commons” of the relevant Manor. By a process that started with awards made under the Arwystli Enclosure Act 1816 (the “1816 Act”), continued with a series of private enclosure agreements and culminated in sales made by the estate shortly after the First World War, the Claimants say that the surface land was disposed of by the family but what was beneath it, including in particular all stone under the surface, was retained and is now held by them 2.
Both parties on occasion used the term “Wynnstay Estate” to refer to the Claimants. Strictly, this expression refers to the property interests held by a number of individual family members and trustees of family settlements, of which the 1987 Settlement is one.
The Claimants are not themselves seeking access to the sites to exploit the rights that they claim to have. The dispute arose following an approach by the Defendant to the Claimants' agent in September 2016 enquiring whether it could acquire stone by licence. This resulted in the Claimants becoming aware that the Defendant had previously extracted what the Claimants say is a considerable volume of stone from the property. The Claimants say that they were prepared to agree terms for future use
The Claimants are seeking a declaration of their rights and damages for trespass and for breach of their property rights under the Human Rights Act 1998 (“ HRA”). This decision follows a trial on liability only.
The trial was conducted on a “hybrid” basis, with only leading Counsel and one other legal representative for each party (a solicitor for the Claimants and junior Counsel for the Defendant) physically present in the court room with me. All other participants took part through videoconferencing, other than one witness, the Third Claimant, who gave evidence in the court room and participated remotely for the remainder of the trial. The hearing was conducted in public, not only because the court room was open to the public (subject to social distancing requirements in force at the time) but also because the court permitted identified members of the press and public remote access through a link.
The trial was conducted in this manner because I had concluded that, given the nature of the trial and the documentary evidence, which included a large number of historical documents and plans, it was not in the interests of justice to attempt to conduct the trial on a wholly remote basis (as most hearings were being conducted at the time, as a result of the Covid-19 pandemic). I had also concluded that it was not in the interests of justice to postpone the trial. Instead, a balance needed to be struck which allowed an effective trial to be conducted in the circumstances whilst ensuring that most participants were able to take part remotely. Those participants included a significant number based in Wales, including most witnesses and all of the Defendant's solicitor team, for whom it would have been practically difficult or impossible to attend court in London given the lockdown arrangements still in place. In allowing members of the public (as well as press) remote access in the way described, I was also conscious of the legitimate interest in this case that other landowners and manorial rights holders might well have, and that physical presence in London was likely to be difficult or impossible for many of them.
The structure of this decision is as follows:
Evidence
| Heading | Paragraph |
| Evidence | 11 |
| Concepts: manors and enclosure | 21 |
| The Manors and the events of the 1570s and 1629 | 28 |
| The four categories of claim | 39 |
| Category A: conveyance by estate with express exception and reservation | 41 |
| Category B: the 1864 Crown grant | 42 |
| Category C: contractual enclosure agreements | 45 |
| Category D: awards under the 1816 Act | 47 |
| The scope of the minerals reservations: the facts | 56 |
| The scope of the minerals reservations: relevant case law and the parties' submissions | 83 |
| The scope of the minerals reservations: application to the facts (categories A, B and D) | 101 |
| Category C: the effect of the enclosure agreements and subsequent conveyances | 129 |
| Adverse possession: categories A, B and D | 142 |
| Incorporeal rights and prescription | 180 |
| Land Registry aspects | 188 |
| 193 | |
| Conclusions | 194 |
| Appendix: comments on individual titles |
I heard evidence from nine witnesses of fact, two for the Claimants and seven for the Defendant. There were also two expert witnesses, one for each party.
The Claimants' two witnesses of fact were Rupert Mead and Ralph Collins. Mr Mead is a solicitor and a partner in the Claimants' solicitors, Forsters LLP. He became a trustee of the 1987 Settlement in 2016, and in that capacity he is the Third Claimant. He specialises in advising landed estates on trusts, capital tax planning and succession issues. He does not have a conveyancing specialism, but he is clearly interested in historical sources and has obviously spent a great deal of time considering the issues raised by this case. His witness statement included a schedule which sets out in detail the basis of the Claimants' claim in respect of each title.
Mr Collins is a chartered surveyor and partner in Carter Jonas LLP, who have acted as land agents for the Wynnstay Estate since 1995. Mr Collins specialises in rural estate management and has been involved in work for the Wynnstay Estate since he joined Carter Jonas as a partner in 2007. Mr Collins, like Mr Mead, has obviously done a great deal of work researching the Wynnstay Estate's mineral rights. His evidence also included the results of mapping exercises undertaken by Carter Jonas staff which sought to indicate the geographical relationship between the rights claimed and the Defendant's registered titles.
The Defendant's witnesses of fact were all current or former employees of the Defendant. They were Kirsty Lees, John Griffith, Mark Trumper, William Parry, Antony (Glyn) Fletcher, Antony Wallis and Mari Sibley. Ms Lees and Ms Sibley are both qualified surveyors, Mr Trumper and Mr Griffith are specialist civil engineers, Mr Fletcher is a land management senior officer and Mr Parry is a site supervisor. Mr Wallis is a retired senior staff member who is also a chartered surveyor and chartered forester. Before his retirement Mr Wallis became head of corporate assets for the Defendant (a role which did not cover the property in dispute), but before that he held the role of Country Land Agent for Wales at the Forestry Commission.
Witnesses of fact
To the extent that the witnesses' evidence covered matters of fact, I accept that evidence subject to minor corrections identified during the course of the trial. (For the avoidance of doubt, this includes evidence given by the Defendant's witnesses about the level...
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David Heneage Wynne-Finch v Natural Resources Body for Wales
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