David Heneage Wynne-Finch v Natural Resources Body for Wales
| Jurisdiction | England & Wales |
| Judge | Lord Justice Henderson,Arnold LJ,Birss LJ |
| Judgment Date | 12 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1473 |
| Docket Number | Case No: A3/2020/1616 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1473
Lord Justice Henderson
Lord Justice Arnold
and
Lord Justice Birss
Case No: A3/2020/1616
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY, TRUSTS AND PROBATE LIST (ChD)
MRS JUSTICE FALK
Royal Courts of Justice
Strand, London, WC2A 2LL
Fenner Moeran QC and Oliver Radley-Gardner QC (instructed by Forsters LLP) for the Appellants
Mark Wonnacott QC and Harriet Holmes (instructed by Hugh James) for the Respondent
Hearing dates: 30 June and 1 July 2021
Approved Judgment
Introduction
This case is mainly about the ownership and exploitation of Welsh mudstone, which is the prevailing bedrock in large areas of mid-Wales.
The claimants (and appellants in this court) (“the Trustees”) are the trustees of the Williams-Wynn 1987 Settlement, and in that capacity are the legal owners of substantial parts of a rural estate in Powys (formerly Montgomeryshire) which has been held in trust over many generations for members of the Williams-Wynn family. The estate as a whole is generally known as the Wynnstay Estate. That 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 defendant (and respondent to the appeal), the Natural Resources Body for Wales (“the NRBW”), is a public body corporate which was formed in 2012 to take over the devolved Welsh functions of the Environment Agency and the Forestry Commission. Relevantly for present purposes, the NRBW occupies and manages land contained in some 40 freehold or long-leasehold titles, as statutory successor to the Forestry Commission, on behalf of the National Assembly for Wales, which is the registered owner of each of the titles. Nearly all of the land with which this case is concerned falls within the Manors of Arwystli (also known as Arustley) and Cyfeiliog (“the Manors”).
I will follow the approach of both parties and the judge below (Falk J) in treating the NRBW as if it, rather than the National Assembly for Wales, were both the registered owner and the occupier of the relevant land. Nobody has suggested that there is any relevant distinction between the two bodies: see paragraph [3] of the reserved judgment which Falk J handed down on 27 July 2020 (“the Judgment”) following a seven-day trial on issues of liability before her in June 2020. The neutral citation of the Judgment is [2020] EWHC 1924 (Ch). In the rest of this judgment, I will refer to the NRBW as “the Respondent”.
As the judge explained in the introductory section of the Judgment at [4], the Trustees' case is that the land in question was formerly nearly all rough open pasture and formed part of 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.”
By the date of the trial, there was no longer any dispute about the means by which the 1987 Settlement became entitled to the rights asserted by the Trustees. The rights are now held by the Trustees under a trust of land, having previously been subject to a strict settlement governed by the Settled Land Act 1925.
As the judge went on to explain at [6], the Trustees “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 Respondent to the Trustees' agent in September 2016, enquiring whether it could acquire stone by licence. This resulted in the Trustees becoming aware that the Respondent had previously extracted what they say “is a considerable volume of stone from the property”. The Trustees were prepared to agree terms for future use of stone, but only if they were compensated for stone that had been taken in the past. This was refused by the Respondent, which then argued that the Trustees had no rights to the stone, or (if they ever did) that those rights had long since been barred by adverse possession. These contentions were developed in the statements of case following issue of the claim form on 27 February 2018 in the Business and Property Courts of England and Wales (Property, Trusts and Probate List).
At the trial, the parties were represented by Mr Fenner Moeran QC leading Mr Paul Stafford for the Trustees and Mr Mark Wonnacott QC leading Ms Harriet Holmes for the Respondent. For the reasons given in her careful, comprehensive and scholarly judgment, which runs to 194 paragraphs with an appendix containing comments on individual titles, the judge dismissed the claim in its entirety.
The judge summarised her conclusions in the Judgment at [194], as follows:
“(i) Subject to the mapping issues referred to at [16] above, the Claimants have retained a corporeal title to minerals in those parts of the titles in dispute that fall into category A, B or D.
(ii) In none of those categories does the Claimants' title extend to ownership of mudstone, including interbedded sandstone and shales of the kind found on the Defendant's land. Specifically in relation to sandstone, the Claimants' title does not extend to interbedded sandstone of the kind disturbed or extracted from the Defendant's titles to date. No finding is made as to whether it could, in principle, extend to sandstone if it was found in quantities making it practicable to extract it as a separate material.
(iii) If the conclusion at (ii) above is incorrect, then the Defendant has established adverse possession to the mudstone (including interbedded sandstone and shales, as above) to whatever depth might be required for activities undertaken by the Defendant as surface owner of the relevant forested area. There was also no concealment or deliberate commission of a breach of duty for limitation purposes.
(iv) In respect of category C, as against the Claimants the Defendant has an undifferentiated title to the surface and everything beneath it. The title of the Claimants' predecessors has been extinguished by adverse possession.
(v) The Defendant is not liable in damages for trespass or conversion in respect of any of the activities pleaded in the Amended Particulars of Claim.
(vi) The Claimants have also not established any breach of Convention rights, and the Defendant is not liable in damages or otherwise under the Human Rights Act.”
Following a hearing on consequential matters on 4 September 2020, the judge's order of that date dismissed the claim. The Trustees were ordered to pay the Respondent's costs on the standard basis, with a payment on account of £750,000 to be paid in two instalments in September 2020 and January 2021. Permission to appeal was refused.
The Trustees now appeal to this court, with permission granted by Floyd LJ on 4 December 2020.
Before coming to the grounds of appeal, I will first set out some more of the relevant background, including some of the key findings of fact made by the judge. The grounds of appeal are almost entirely concerned with questions of law, and unless I state otherwise it can be taken that the judge's findings to which I refer are unchallenged.
Background
(1) Geology and terrain
The judge found the facts that she considered relevant to the scope of the minerals reservations at [56] to [82] of the Judgment. She began by describing the land in dispute, under the sub-heading “The terrain”:
“56. The land in dispute is… hilly. It is now all or virtually all forested, with access by forest roads and tracks as discussed below, having been acquired by the Forestry Commission or a predecessor body from the 1930s onwards. Before that it was generally used for grazing. However, woodland did exist. The area was described as “well wooded” in Tudor times, and it is also clear that there was some woodland in the Manors in the early twentieth century.
…
57. Throughout the area in question the geology of the bedrock (the solid rock) is sedimentary rock of a significant depth, predominantly comprising Silurian mudstone with some interbedded sandstone and shales. It is possible that there may be pockets or seams of other materials, but the experts agreed that the common rock of the district is mudstone. Although none have been identified within the land in dispute, there is evidence of old mine workings in the area, including evidence of lead mining in particular. There is also a disused slate mine just outside the area of one of the titles.
58. In a number of places there are exposed outcrops of the bedrock at the surface…”
The judge then referred to some of the evidence given by the expert chartered mineral surveyors on each side, Mr Alastair Duncan for the Trustees and Mr Michael Sherratt for the Respondent. Mr Duncan described the landscape as “dotted” with outcrops. Otherwise there is generally a thin layer of topsoil and other organic material, normally less than 20 centimetres in depth, and beneath that subsoil, with occasional deposits of peat or boulder clay. As the judge explained in [58]:
“The subsoil tends to comprise a mixture of organic matter and broken mudstone in the upper layers, with what Mr Sherratt described as regolith...
To continue reading
Request your trial