Jelbert v Davis
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DANCKWERTS,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 14 February 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J0214-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 February 1968 |
[1968] EWCA Civ J0214-1
The Master of the Rolls (Lord Denning)
Lord Justice Danckwerts and
Lord Justice Edmund Davies
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From His Honour Judge Chope Penzance County Court.
MR MICHAEL LYNDON-STANFORD (instructed by Messrs White & Leonard and Corbin Greener, Agents for Messrs Jewill, Hill & Bennett, Penzance) appeared as Counsel for the Appellants.
MR JULIAN PRIEST (instructed by Messrs T. J. Chellew & Son, St. Ives, Cornwall) appeared as Counsel for the Respondent.
Mr Jelbert is the owner of a considerable area of land at Kenegie, Gulval near Penzance. He bought it in 1961. It was used as agricultural land at that time. It lies back from the highway from Penzance to St. Ives. It does not adjoin the highway at any point. In order to get from his land to the public highway, Mr Jelbert has to go along a lane or driveway which does not belong to him. But his conveyance of the 5th October, 1961, gives him a right of way along it. He was granted the land "together with the right of way at all times and for all purposes over the driveway retained by the vendor leading to the main road in common with all other persons having the like right subject to the purchaser or his successors in title paying a proper proportion of the cost of repairing and maintaining it in repair". There was another clause which I will read but I do not think it affects the matter we have to decide. It said that "the property is sold subject to but with the benefit of all rights of way whether public or private and other rights easements and quasi-easements as now used and enjoyed for or against the same whether by the vendor or other persons". That is only a sweeping-up clause which is put in so as to cover any rights of way which were not expressly granted. It does not affect the express grant along the driveway which I have read.
At first Mr Jelbert used his land for agricultural purposes only; and his farm vehicles used the driveway. But in 1964 he was minded to turn a portion of his land into a caravan and camping site. He applied to the Planning Authority, the Cornwall County Council, for permission. He proposed that the campers should use the lane as a means of access to the highway. At first the County Council refused permission. They thought that such use of the lane would give rise to considerable traffic problems. But two years later they changed their minds. On the 23rd June, 1966, the Planning Authority granted permission to Mr Jelbert, allowing him to use the land as a tourist caravanand camping site. They attached conditions to the permission. In particular, there were not to be more that 200 touring caravans or tents stationed on the land: it was only to be used from the 1st April to the 31st October in each year: and no caravan was to remain on the site for longer than three weeks. The Planning Authority must, therefore, have been satisfied that the traffic problems could be overcome.
The planning permission did not affect the legal rights of the owners of the soil. The Planning Authority could not, and did not, give Mr Jelbert any right to go along this lane for himself or for the campers. He had to rely on his conveyance for such aright. The lane was a strip of land about 180 yards long. Some of it was owned by Mr Davis and the rest by Mr Osborne. It was a drive bordered on each side by trees and with a metalled portion in the middle. Those two gentlemen objected to the right of way being used by caravans and cars. They put up notices at the entrance saying: "Private drive. No entry for campers or caravans". Mr Jelbert took objection to these notices. He took the two gentlemen to Court. He said that the notices were a nuisance and a slander of his title. Mr Davis and Mr Osborne denied the charge. They counterclaimed for an injunction to restrain Mr Jelbert from using this right of way in connection with the tourist caravan and camping site. The learned Judge, in a most careful and helpful judgment, decided in favour of Mr Jelbert. He said: "I have no doubt that the congestion in the summer months will indeed be considerably worse but the mere fact that there may be congestion of that nature does not enable the defendants to say the plaintiff's right of way, if it otherwise extends to the type of vehicle concerned, is to be cut down". Mr Davis and Mr Osborne appeal to this Court.
The issue has been exceptionally well argued before us by counsel on both sides. It turns eventually on the true construction of the grant contained in the conveyance of the 5th October, 1961. In particular, of the words "the right of wayat all times and for all purposes over the driveway leading to the main road". What is the extent of that right when the land is changed from agricultural use to a caravan and camping site? The change will mean no doubt that a different kind of vehicle; will be used for different purposes. But that change is, by itself, quite permissible. It is covered by the words of the grant "at all times and for all purposes". That is shown by White v. Grand Hotel, Eastbourne, Ltd., 1913, 1 Chancery, p. 113. In that case a private dwelling house was turned into a hotel. That meant a different user. But it was held to be within the grant. That case was applied in Robinson v. Bailey, 1948, 2 All England Reports, p. 791. In that case a plot of land, which was expected to be used as a dwelling house, was turned into a place for storing building materials. The different user was held to be within the right of way. In view of those cases Mr Lyndon-Stanford (who appears for Mr Davis and Mr Osborne) conceded that he could not complain that the way was to be used for caravans instead of agricultural vehicles, such as carts or tractors. He could not object, for instance, to a user in connection with ten caravans. But he did object, he said, to excessive user.
In my opinion a grant in these terms does not authorise an unlimited use of the way. Although the right is granted "at all times and for all purposes", nevertheless it is not a sole right. It is a right "in common with all other persons having the like right". It must not be used so as to interfere unreasonably with the use by those other persons, that is with their use of it as they do now, or as they may do...
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