Gainsborough v Hyde
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Seymour, Q.C. |
| Judgment Date | 21 June 2005 |
| Neutral Citation | [2005] EWHC 2229 (QB) |
| Docket Number | Case No: 05/TLQ/0624 |
| Court | Queen's Bench Division |
| Date | 21 June 2005 |
[2005] EWHC 2229 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: His Honour Judge Seymour, Q.C.
Case No: 05/TLQ/0624
MR. J. HANHAM (instructed by Messrs. Hextalls) for the Claimant.
MR. B. MONNINGTON (instructed by Messrs. Copleys) for the Defendants.
Approved Judgment
His Honour Judge Seymour, Q.C.:
This action is concerned with the proper construction and effect of a right of way granted in a transfer dated 27 January, 1995 of some 7.65 acres of land at London Road, St. Ives, Cambridgeshire. That land was formerly part of a farm called Cullum Farm, and is now known as Ashfield Farm. It is convenient to refer to the land concerned by the name Ashfield Farm, even when dealing with the time when in fact it remained part of Cullum Farm.
Ashfield Farm was sold by Mrs. Joyce Edwards to Mr. Keith Hyde, who is the Defendant in this action. The terms of the right of way granted were these:
“A right of way for the buyer and his successors in title to the property at all times and for all purposes in connection with the present and any future agricultural use of the property both with or without vehicles, animals or equipment over and along the access way, having a width of 4m or thereabouts, the position of which is shown hatched black and coloured brown on the plan annexed as shall be necessary or convenient for the purpose of obtaining access to and from the property, subject to payment of a fair proportion according to use of the costs of repairing and maintaining the said access way to a reasonable standard.”
That right was granted over land retained at that time by Mrs. Edwards which had also been part of Cullum Farm as it originally existed. In fact, by the date of the transfer of Ashfield Farm to Mr. Hyde, Mrs. Edwards had disposed of all of the original Cullum Farm save the land over which the right of way ran.
Adjacent to the left-hand side of the right of way, looking from London Road, was an area of land formerly part of the original Cullum Farm which it is convenient to refer to as 'the workshop premises'. The freehold title to the workshop premises had been transferred by Mrs. Edwards to her son, Jonathan, by a Deed of Gift dated 23 March, 1987. On the death of Mrs. Edwards in 1996, Mr. Jonathan Edwards inherited the freehold title to the land over which the right of way ran.
It is convenient to refer to the plot of land which included the workshop premises and the land over which the right of way ran together as Cullum Farm, notwithstanding that there is in fact another farm of that name, again part of the original Cullum Farm, adjacent to what I shall refer to as Cullum Farm. The other Cullum Farm is now owned by a Mr. and Mrs. Saunders.
Mr. Jonathan Edwards, in his turn, sold Cullum Farm on 6 April, 2001 to Mr. Mark Gainsborough-Field, the Claimant in this action, subject to the right of way to which I have referred. Mr. Gainsborough-Field occupies Cullum Farm for the purposes of a business which he carries on of restoring and maintaining classic sports cars.
It will be necessary to set out the background to the disputes which have given rise to the present action in a little more detail, but in essence the main issue is whether the right of way permits access to the land the subject of it for the purposes of activities connected with the keeping and grazing of horses and ponies for recreational riding rather than for use in connection with the traditional functions of horses in agriculture, such as ploughing and drawing farm vehicles. It is convenient to refer to the keeping and grazing of horses and ponies for recreational riding as 'equestrian activities'. Mr. Hyde wishes to let Ashfield Farm for equestrian activities and has already attempted to do so once.
Mr. Gainsborough-Field objects to the use of the right of way for the purposes of equestrian activities. An aspect of the disputes concerning the right of way has related to the use of it by motor vehicles. At the London Road end of the right of way, and also at the point at which the right of way crosses the boundary of Ashfield Farm, there are gates. Certainly the gate at the boundary of Ashfield Farm is normally kept shut, if not locked. The gate at the London Road end of the right of way is sometimes shut, and sometimes locked. Thus it is that anyone using the right of way in a vehicle may have to stop, having passed through the London Road gate, if he wishes to close it, and may have to stop again at the boundary of Ashfield Farm in order to open the gate at that point. On leaving Ashfield Farm the process may have to be reversed.
There was, until almost the end of the trial, an issue as to whether the right granted by the right of way permitted stopping on the right of way for these, or indeed any, purposes. However, shortly before Mr. Bruce Monnington, who appeared on behalf of Mr. Hyde, came to begin his closing submissions, Mr. James Hanham, who appeared on behalf of Mr. Gainsborough-Field, proposed amendments to the relief sought in the action which included an express recognition that stopping for the purposes of opening and closing gates was permitted. The issue as to stopping therefore ceased to be live at that point.
A question also arose as to whether the right granted by the right of way included a right to park vehicles upon it. However, during the trial it seemed to be accepted on all sides—as I think correctly—that there was no such right.
Mr. Gainsborough-Field told me in his evidence—and I accept—that he has been familiar with Ashfield Farm and Cullum Farm since about 1982 when he first came to know Mr. Jonathan Edwards. They had a shared interest in classic sports cars—in the case of Mr. Edwards, specifically Triumph TRs. In 1983 Mr. Edwards established business with a Mr. Gary Bates at the workshop premises. That business was the restoration and maintenance of Triumph TRs. In about September 1984 Mr. Gainsborough-Field went to work with Mr. Edwards and Mr. Bates in a freelance capacity. Mr. Bates left the business in about 1986. At that time Mr. Gainsborough-Field purchased Mr. Bates' interest in the business, and became a partner of Mr. Edwards. Mr. Edwards ceased to work in the business in about 1987, and ceased to have any interest in it after about June 1999.
At the time Mr. Gainsborough-Field first knew Ashfield Farm and Cullum Farm—that is to say, in 1982—some stables had just been built on Ashfield Farm. Mrs. Edwards had three horses, called respectively, “Ling”, “Patience” and “Toby”. They were kept on Ashfield Farm, along with a horse belonging to a Flight Lieutenant Dutton. Mr. Gainsborough-Field told me—and again I accept—that in 1982 not only horses, but also cows, were kept on Ashfield Farm. In about 1986 Flight Lieutenant Dutton removed his horse from Ashfield Farm. Mrs. Edwards' horse, “Ling”, was put down at about the same time. “Patience” was put down in about 1987, leaving only “Toby” as a horse kept at Ashfield Farm.
Mrs. Edwards moved to Cyprus for about six months in 1989. “Toby” was sent elsewhere to be looked after. The stables at Ashfield Farm at that time were used only to store Mrs. Edwards', and other, belongings.
In 1992 Mrs. Edwards' daughter, Sarah, thought of opening a riding school at Ashfield Farm. A ménage was built, and fencing repaired. But, in the end, the venture was abandoned without ever having started.
“Toby” returned to live at Ashfield Farm. However, he was by this time of some age. Mr. Gainsborough-Field thought that he had been put down quite soon after his return to Ashfield Farm. However, Mr. Hyde, in his evidence, told me that “Toby” was still around in the latter part of 1994, when Mr. Hyde was first interested in purchasing Ashfield Farm, although he was put down before completion of the purchase. I prefer the evidence of Mr. Hyde on this point.
Although Mr. Gainsborough-Field considered, as I find incorrectly, that there were no horses at Ashfield Farm for a period before 1994, it was common ground that in the latter part of 1994 there were horses at the farm. A Mrs. Shepherd was permitted by Mrs. Edwards to keep her daughter's pony at Ashfield Farm, pending a vacancy at the livery run by Mr. and Mrs. Saunders next door. It seems that it had been decided before Mr. Hyde's purchase that that arrangement should cease, but that in the event it continued for a week or so after completion.
Also, a Mr. Mawditt was allowed by Mrs. Edwards to exercise his horses on Ashfield Farm, but not to keep them there. It seems that that arrangement had ceased before Mr. Hyde's purchase.
When, towards the end of 1994, Mrs. Edwards decided to offer Ashfield Farm for sale, she caused an advertisement to be placed in the 3 November, 1994 edition of The Hunts Post newspaper. The material terms of the advertisement for present purposes were these:
“Paddock For Sale. St. Ives area. Approximately 10 acres fenced with post and rail with three brick stables plus two other stables and storage buildings. Water and electricity to site. Easy access to A14. Offers in the region of £25,000”
Mr. Hyde told me in his evidence that after he had responded to that advertisement, a process of informal tender developed. In the course of that process he wrote a letter dated 27 November, 1994, marked 'Subject to Contract', to the solicitors acting on behalf of Mrs. Edwards, a firm called Winters. In his letter, Mr. Hyde said this:
““Further to your invitation to make an offer to purchase the land and stables in London Road, St. Ives, my...
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