Giles v Tarry and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Norris,Lord Justice Lewison,Lord Justice Ward |
| Judgment Date | 21 June 2012 |
| Neutral Citation | [2012] EWCA Civ 837 |
| Docket Number | Case No: B2/2011/0125/CCRTF |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2012 |
[2012] EWCA Civ 837
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORTHAMPTON COUNTY COURT
HHJ HARRIS QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Lewison
and
Mr Justice Norris
Case No: B2/2011/0125/CCRTF
Alexander Hill-Smith (instructed by BrookStreet des Roches) for the Appellant
Lindsay Johnson ( instructed by J C Lawrence & Co) for the Respondent
Hearing date: 30 May 2012
The trustees of Sir Thomas White's Charity owned a farm at Preston Capes in Northamptonshire. In February 1975 they split it up.
By a Conveyance dated 24 February 1975 they sold the farmhouse and outbuildings to the Claimant's ("Mr Giles'") predecessor in title. Access to and from the farmhouse and buildings was principally over a driveway that passed between fields on either side. The driveway was included in the Conveyance, but the fields to the west and the east were not. In the western field immediately adjacent to the driveway and close to the farmhouse there was an open barn or hovel. On the plan to the Conveyance the driveway was coloured brown and the fields between which it passed were edged in red. In the Conveyance the trustees reserved a right of way
".. For the benefit only of that part of the vendors' neighbouring land edged red on the said plan… a right of way at all times and for all purposes over the land coloured brown on the said plan…".
In the Conveyance the trustees also entered into a restrictive covenant for the benefit of the land thereby conveyed
"Not to use the hovel…otherwise than for normal agricultural purposes apart from the keeping of animals or poultry except on a temporary basis".
On 25 February 1975 the fields edged red (on one of which the hovel stood) were conveyed to the Defendant ("Mr Tarry"). The Conveyance was expressed to be "subject to but together with the benefit of… the exceptions and reservations and covenants…contained in [the Conveyance dated 24 February 1975]". Mr Tarry took the benefit of the right of way reserved over the driveway and was subject to the restrictive covenant as to the use of the hovel. The field edged red to the east of the driveway ("the Paddock") adjoins another much larger field ("the Green Land"). This was also owned by the trustees at that time and is now rented by Mr Tarry. There was no physical division between the Paddock and the Green Land. In the Conveyance of 25 February 1975 Mr Tarry covenanted to erect a fence along this boundary: but he has not done so, and the Paddock and the Green Land still form a single agricultural unit.
There are two ways of getting in and out of the Paddock. One is from a gate onto the driveway: so to use this Mr Tarry has to exercise his right of way. The other is at the northern end of the Paddock, where a gate opens to an Old Forge Lane, which is a public highway. These two gateways can be used differently. If Mr Tarry uses the gate onto the driveway he can only do by exercising a private right of way and he must abide by the limits of the grant. Although the right of way may be exercised at all times and for all purposes the right exists "for the benefit only of [the land edged red]"; and the use of the driveway is so limited. But if Mr Tarry uses the gate which opens onto Old Forge Lane, that is a public highway upon which there are no restrictions: he can use that gate to gain access to any land which is physically served by that gateway. There is no gateway from the Green Land itself onto Old Forge Lane: so the most convenient way of getting to the Green Land is through the northern gateway on the Paddock.
In 1991 Mr Giles brought the farmhouse and outbuildings and driveway comprised in the Conveyance dated 24 February 1975. Since that purchase a state of virtual war has existed between Mr Giles and Mr Tarry. I make no suggestion as to who is responsible for that state of affairs. I simply record the fact. Court proceedings were started by Mr Giles in 1993. In those proceedings Mr Tarry brought his own Counterclaim. Those disputes were compromised in 1995. As part of the compromise Mr Tarry undertook
"Not to exercise the right of way over the land coloured brown for the purpose of gaining access to [the Green Land]".
That compromise itself was back before the court in 1996 – twice. There were further differences which did not reach court in 2000, 2001, 2003, 2004 and 2008. But the proceedings were eventually revived again in a somewhat unorthodox way in 2010 by Mr Giles acting in person. Mr Tarry (who was then an aged man) also acted in person with the assistance of his family. All procedural deficiencies were overcome and HHJ Harris QC case-managed the dispute so as to identify what issues fell for decision. Amongst those issues were disputes over the use of the right of way and over the use of the hovel. But I would record that the trial Judge was called upon also to determine a range of other disputes.
Mr Giles and Mr Tarry's family argued the case before the Judge without the benefit of legal representation. On the 2 December 2010 Judge Harris QC delivered an oral judgment to which, in the circumstances, I would pay particular tribute. It made admirably clear findings of fact, and contained a considered analysis of the relevant legal principles (which must have entailed much conscientious application on the part of the Judge). On this appeal we are called upon to consider those same principles in very different circumstances, having the benefit of written and the oral advocacy and the opportunity to test in argument the suggested application of the relevant principles.
So far as the right of way is concerned, the Judge recorded that Mr Tarry
"Wants to be able to graze his sheep on the green [land] from time to time as well as in the paddock. It can only be got to from the paddock."
The Judge noted that for Mr Tarry to drive sheep from the right of way into the Paddock for the purposes of going thence onto the Green Land to graze was not permissible (and he commented on the undertaking which Mr Tarry had given). He then continued:
"Appreciating this, what is done by [Mr Tarry's] daughter and granddaughter is to drive the sheep into the paddock and without going onto the green land, up to and through the gate onto the public highway at Forge Lane. There they pause more or less briefly, before driving them back into the paddock where they are left free to pass, if they want to, onto the green land. Thus the entry into the paddock immediately preceding the entry into the green land is not via the right of way. Is this practice sufficient to avoid the restriction on the right of way to the benefit of the paddock?…It is clearly a somewhat artificial device or expedient, but if it is efficacious in law [Mr Tarry] is entitled to make use of it. … [I] approach the question as one of principle and logic. The objective of the Defendant has been to graze his sheep both on the paddock and on the adjacent green land. To get to the paddock with his sheep he is perfectly entitled to utilise the right of way. It is quite legitimate then for him to take his sheep out of the paddock via the Forge Lane gate for whatever purpose…When the sheep are in Forge Lane they are not in the paddock and not on the green land. He is then entitled to put them back into the paddock and to allow or drive them onto the adjacent green land… because he is not then putting the sheep onto the green land via the right of way over Mr Giles' land… Usage of a right of way must be analysed in terms of actual movement, not the ultimate intention of the user".
The Judge therefore made an order declaring:—
"That the Defendant may make use of the right of way over the brown land to drive sheep into the paddock and that if the same sheep leave the paddock via the northern end gate and then re-enter and thereafter graze in the green field there is no impermissible use of the right of way".
Against that order Mr Giles appeals. He submits that on the facts found by the Judge the conclusion must embody an error of law. The error is that the Judge has assumed for the purposes of his argument that the use of the driveway to get to the Paddock was lawful: but if (as the judge found) Mr Tarry wants to be able to graze his sheep on the Green Land as well as in the Paddock, and if what he does is clearly a somewhat artificial device or expedient to achieve that end, then he is not using the right of way for the benefit only of the Paddock.
In my judgment this submission is sound. In the course of argument the individual steps in the judge's reasoning were examined, and the limits of the various propositions advanced were tested against differing hypothetical facts. I mean no disrespect to this approach by not doing the same in this judgment. But this is a difficult area of the law with sometimes fine distinctions being drawn. I think it better to ground my decision upon this appeal solely upon the facts of this case, and to decide only those questions that are necessary for the disposal of this appeal.
The classic statement of the applicable principle is that of Romer LJ in Harris v Flower (1904) 91 LT 816 at 819 col.1:—
"The law really not is in dispute. If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B, cannot use the way in substance for passing over close A to close B".
It is significant that the statement of the principle has regard to what "in substance" the person having the benefit of the grant is doing. This requirement reflects earlier statements...
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Giles (Respondent Appellant) v Tarry and Another (Appellants Respondents)
...appeal succeeded as regards paragraph 3, but failed as regards paragraph 1. The judgments of this court on that appeal can be found at [2012] EWCA Civ 837, [2012] 2 P&C R15. 3 In addition to those parts of the order, the judge made other orders as follows: "(5) that the Claimant [Mr Giles]......