Ellen Mary Alford (Claimant/Appellant) v Anthony Peter Broadribb Hannaford and Another (Defendants/Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Moore-Bick,President of the Family Division,The |
| Judgment Date | 07 October 2011 |
| Neutral Citation | [2011] EWCA Civ 1099 |
| Date | 07 October 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2010/2196 |
[2011] EWCA Civ 1099
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PLYMOUTH COUNTY COURT
His Honour Judge Cotter QC
Royal Courts of Justice
Strand, London, Wc2a 2ll
President of the Family Division
Lord Justice Moore-Bick
and
Lord Justice Patten
Case No: B2/2010/2196
9pl00989
Emily Windsor (instructed by Clarke Willmott LLP) for the Appellant
Myriam Stacey (instructed by CKFT) for the Respondents
Hearing date : 21st June 2011
Introduction
This is an appeal by the claimant, Mrs Ellen Mary Alford, against an order of His Honour Judge Cotter QC made in the Plymouth County Court on 6 th October 2010. The dispute between the parties concerned a right of way that was granted to Mrs Alford under a transfer dated 29 th April 1991 when she purchased some 40.146 acres of agricultural land from Mr John Hitchon.
Mrs Alford is the owner of Moortown Farm at Whitchurch near Tavistock. To the north of her farm is Proutatown Farm which was then owned by Mr Hitchon. Her son, Mr Robert Alford (who farms in partnership with his mother), is the owner of Dennithorne Farm which lies further north of Proutatown Farm. The two farms (Proutatown and Dennithorne) are connected by a track which runs along part of the southern boundary of O.S. 719 and then turns north through the same field and on until it reaches the most northerly boundary of what was then Mr Hitchon's land. It then runs on towards Dennithorne Farm.
Under the 1991 transfer Mrs Alford acquired most of the land surrounding Proutatown Farm. But Mr Hitchon retained the farmhouse, some outbuildings and about 6.5 acres of land adjacent to and on both sides of the farmhouse. This area of land forms an island in the middle of the land sold to Mrs Alford but Mr Hitchon also retained ownership of the track running north of the farmhouse. As a result of this, Mrs Alford acquired two blocks of land which lie to the west and east of the farmhouse and the retained land but which are at no point contiguous. The closest they come to each other is to the north of the retained land where they abut each side of the track up to the northern boundary of O.S. 711 and 712.
The 1991 transfer granted a right of way over the track from the most northern point of Mr Hitchon's ownership to a point in the eastern boundary of the retained land where it adjoins the land sold to Mrs Alford. From this point on Mr Hitchon reserved to himself a right of way along the remainder of the track across the sold land and on to Dartmoor.
Clause 2 of the transfer was in these terms:
"The Property is sold together with the benefit of a right of way in favour of the Transferee and her successors in title at all times and for all purposes with or without vehicles to pass and repass over and along the track shown coloured Brown on the Plan annexed hereto SUBJECT TO the Transferee paying a fair proportion of the cost of maintaining or repairing the same according to user
EXCEPT AND RESERVING unto the Transferor and his successors in title for the benefit of the Transferors' retained property edged Yellow on the Plan annexed hereto:—
(a) A right of way at all times and for all purposes without or without vehicles and animals to pass and repass over and along the track shown coloured Blue on the Plan annexed hereto SUBJECT TO the Transferor or his successors in title paying a fair proportion of the cost of maintaining and repairing the same according to user"
By clause 3 of the transfer Mrs Alford covenanted:
"that she will erect to the satisfaction of the Transferor a stock-proof post and wire fence at least 4 feet 6 inches in height between the Property and the Transferor's retained Property where such fences do not exist at present and further to install to the satisfaction of the Transferor a galvanised steel gate between the points marked 'A' and 'B' on the Plan annexed hereto WHICH fence and gate shall become the property of the Transferor and his successors in title".
The two principal disputes between the parties concern the construction of the grant of the right of way contained in clause 2 and whether Mrs Alford is entitled to make use of the track from a gate in field O.S. 703 at a point marked 'X' on the agreed plan. This lies in the north-west corner of that field immediately to the south of where the track coloured brown on the transfer plan begins to turn to the north.
The point of construction is whether the right of way granted to Mrs Alford includes a right to drive animals along the track or is limited to pedestrian and vehicular use. The judge held that it was the latter. The dispute about the right to access the track and therefore the right of way through gate 'X' depends in part on whether the right of way is enjoyed over the whole of the area coloured brown on the transfer plan. This marks a strip which runs immediately adjacent to the field boundary between the retained land and O.S. 703. On the basis that the retained land subject to the right of way is contiguous with O.S. 703, Mrs Alford claims to be entitled to open up a point of access to the right of way through gate 'X'. If, on the other hand (as the judge found) the grant was intended to be limited to the identifiable track which existed and was in use at the date of the grant, this runs some 15 feet to the north of gate 'X' and there is therefore an area of land between the two which was retained by Mr Hitchon and over which Mrs Alford has no right of way under clause 2. In that event, she relies upon the implied grant of an easement from gate 'X' up to the track under s.62 of the Law of Property Act 1925.
There are two other matters raised on the appeal. The first concerns the effect of an oral agreement made in 2003 between Mrs Alford and Mr Hitchon's daughter, Mrs Venner. The judge found that Mrs Alford was allowed to erect some cross-over gates at the northern limit of the section of track which is bounded on both sides by the land sold in 1991. These gates open across the track so as to allow livestock to pass from the western block of land acquired by Mrs Alford to the block on the eastern side of the track and vice versa. The judge found that it was a term of this agreement that Mrs Alford would no longer use for farm purposes any part of the track from the cross-over gates south through the retained land. Farm purposes meant the use of the track with animals and vehicles. As a consequence, she was now estopped from asserting a right to use the track over the retained land south of the cross-over gates (whether from gate 'X' or at all) except as a pedestrian. His finding is said to be unsupported by the evidence and wrong as a matter of law.
The second matter concerns the form of order made on 6 th October 2010. Mrs Alford contends that, on a proper reading of the judgment, the judge found that she continues to enjoy a right of way along the whole of the track both on foot and with vehicles for non-farming purposes; that one of the declarations is unclear and serves no useful purpose; and that the judge was wrong to grant an injunction restraining her from obstructing the track when there was no finding or evidence of any risk of future interference.
The construction of clause 2 of the 1991 transfer
As the judge himself recognised, transfers like other deeds or contractual documents require to be read in the light of the guidance contained in Lord Hoffmann's speech in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. It is enough to recite the first and second of the general principles set out at page 912H of the report:
"(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man."
The use of background facts to assist in the construction of a contract can be traced back to the speech of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381 but in Investors Compensation Scheme and the earlier decision of the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 these established principles were used to support even a departure from the recognised meanings of words and conventional grammar where it is obvious from the contract itself that (to use Lord Hoffmann's words) something must have gone wrong with the language. But, absent those special circumstances, the court has to give the language used by the parties its natural meaning consistent with the context in which the words are used.
There is nothing unconventional or obviously wrong about the language of clause 2 of the 1991 transfer. It employs familiar conveyancing language appropriate to the grant and reservation of a right of way. It was professionally prepared and would have been submitted to the purchaser (Mrs Alford) for approval in the usual way. The contract of sale does not survive. But it is...
To continue reading
Request your trial
-
David Wood and Another v Edward Alexander Waddington
...words before the 1881 Act, there are now the decisions of the Court of Appeal in P & S Platt Ltd v Crouch [2004] 1 P&CR 18 and in Alford v Hannaford [2011] EWCA Civ 1099, both of which proceeded on the basis that there was no such absolute rule. 129 In P & S Platt Ltd v Crouch [2004] 1 P&CR......
-
Wood and Another v Waddington
...always that the right was continuous and apparent." 26 In reaching that conclusion the judge referred to the decision of this court in Alford v Hannaford [2011] EWCA Civ 1099 in which Patten LJ said: "…where there has not been diversity of occupation prior to the sale, the generally held vi......
-
Charles William Michael Lea v David Anthony Ward
...or to animals. I therefore find that whatever the extent of the right of way, it was not one which extended to use with animals (see Alford v. Hannaford [2011] EWCA Civ 1099 at paragraphs [13]–[14]), albeit that I accept that the right of way does extend to use with vehicles. 109 As to the ......
-
Clare Elizabeth Annetts v Nureni Adetunji Adeleye
...42 There is, moreover, authority in this Court that even the obligation to erect a stock-proof fence may not preclude a gate: see Alford v Hannaford [2011] EWCA Civ 1099, [40]. In determining the extent of a fencing covenant, all the relevant circumstances must be considered. 43 In addition......
-
Creation of Easements and Profits
...no diversity of occupation on the basis that the exercise of the relevant rights had been continuous and apparent ( Alford v Hannaford [2011] EWCA Civ 1099) and there is no additional requirement under s 62 in the case of a quasi-easement falling within the category of easements that were ‘......