Maioriello and Others v Ashdale Land and Property Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Etherton,Lord Justice Patten,Lord Justice Rix |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1618 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No:A3/2011/0093 |
| Date | 21 December 2011 |
[2011] EWCA Civ 1618
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE FIELD
HC09C04646
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Etherton
and
Lord Justice Patten
Case No:A3/2011/0093
Mr George Laurence QC and Mr Graeme Kirk (instructed by The Hawkesley Partnership LLP) for the Appellant
Ms Emily Windsor (instructed by Charles Russell) for the Respondent
Hearing dates : 17th November 2011
Introduction
This is an appeal by the twelfth defendant, Felix Cash, from the order of Mr Justice Field dated 20 December 2010 by which, among other things, he granted a declaration that the claimant, Ashdale Land and Property Company Limited ("Ashdale"), is entitled to obstruct all access over an access road ("the access road") leading to land owned by Mr Cash ("Mr Cash's land") and he granted an injunction restraining Mr Cash and the second to eleventh defendants from entering upon or passing along the access road, save for the purpose of removing their possessions.
Mr Cash claims that the declaration and injunction in the order are wrong in principle in preventing him lawfully exercising an undisputed right of way over the access road attaching to his land. The appeal raises the unusual issue as to whether, and in what circumstances, the owner of land subject to a right of way, is entitled to block the way in such a manner as to preclude the excessive and so unlawful use of the way by one dominant owner if that is the only way to prevent unlawful use of the way by one or more other dominant owners of a similar easement.
The background
The land which is the subject of this dispute is situated in the village of Ripley in Surrey. The access road is an unmade road running from Ripley High Street, past some cottages known as West End Cottages, to a plot of open land, which was originally owned as one site ("the Site") by Ashdale, but is now divided into different plots owned by various of the twelve defendants. Ashdale owns the access road, one of the West End Cottages and a neighbouring paddock. The Site and the access road are conveniently schematically represented in Mr Cash's skeleton argument as follows:
In 1995 the Site was sold by Ashdale to Domenico Maioriello ("Mr Maioriello"), the father of the first defendant, Girolomo Maioriello, with the benefit of a right of way over the access road in the following terms:
"a right of way in common with the Vendor and all other persons authorised by it who have or may have a like right at all times and in connection with the use of the property hereby transferred for agricultural purposes only with or without vehicles farm machinery and animals over and along [the access road] …"
In April 2003 Mr Maioriello transferred the Site to the first defendant.
In August 2003 the first defendant sold part of the Site ("the Sammon land") to the third defendant, Jeanette Sammon, together with a right of way "with or without vehicles farm machinery and animals" from the end of the access road, where it joined the Site, along a track across the first defendant's retained land to the Sammon land. That right of way, therefore, was not limited to agricultural purposes. On various dates in 2008 the third defendant sold off parts of the Sammon land to the fourth, fifth and sixth defendants respectively with the benefit of that right of way for all purposes over the first defendant's retained land.
The first defendant sold off various parts of his retained land to other defendants. Mr Cash's land, which comprises about eight acres, was transferred to him by the first defendant on 23 November 2009. He purchased it prior to auction for the guide price of £82,000. The transfer was subject to, among other things, the right of way of way for all purposes to the Sammon land.
At the end of March 2009, prior to Mr Cash's purchase, a number of travellers moved onto the Sammon land and started to live there in caravans. They gained access by passing along the access road and then along the track over that part of the first defendant's retained land which was subsequently sold to Mr Cash. In early April 2009 large quantities of hardcore were deposited on the Sammon land, and a gate at the entrance onto the Site was removed. Lorries, vans and cars were frequently driven along the road to the Sammon land, often at high speed.
On 29 June 2009 Guildford Borough Council ("GBC") issued an Enforcement Notice against the second, third and fourth defendants and the occupiers of land to the rear of West End Cottages, ordering that the use of that land as a caravan site should cease. On 25 th September 2009 the second, fourth, fifth and eighth to eleventh defendants, together with some of the occupants of the Sammon land, applied retrospectively for planning permission for the change of use of the Sammon land to a private gypsy and traveller site comprising eight pitches, each with an amenity building and associated hard standing.
Mr Cash did not purchase his land for agricultural purposes, but for use as a traveller caravan site. On Saturday 28 November 2009, which was a few days after Mr Cash purchased his land from the first defendant, he organised the transportation of large quantities of hardcore onto it. He used the hard core to lay a road through his land and also to form hard standing for eight caravan plots.
On 4 December 2009 GBC issued a Temporary Stop Notice addressed to the occupiers of the Site ordering that the formation of hard surfaces, paths, roadways and any activity including the provision of sewerage, water and electricity infrastructure associated with the use of caravans for residential purposes should cease immediately.
Lorries and men under Mr Cash's direction continued to work on his land during Saturday 5 December 2009.
On 8 December 2009 Ashdale issued a claim form against the first to seventh defendants (that is, including persons unknown using the road for non-agricultural purposes) for, among other things, an injunction restraining them from passing along the access road for any purpose other than agricultural purposes. On the same day Mr Justice Sales granted Ashdale an interim injunction restraining the first seven defendants from passing along the access road onto the Site with any vehicles or trailers other than motor cars and/or with any construction equipment or building equipment. That order was continued by Sales J on 18 December 2009 until 12 January 2010.
On 23 December 2009, in separate proceedings, GBC obtained an interim injunction under the Town and Country Planning Act 1990 restraining the first and seventh defendants and Mr Cash from using the Site in breach of planning control.
These orders were ignored by the occupiers of the Sammon land. Lorries, trailers, vans, caravans and construction equipment passed along the access road throughout the day and night. Accordingly, on 12 January 2010 Ashdale sought and was granted by Mrs Justice Proudman in the present proceedings a continuation of injunctive relief until judgment or further order in wider terms than the earlier orders, in that her order restrained the first seven defendants from passing along the access road with any vehicles and/or construction equipment or building materials whatsoever.
The order obtained by GBC and the injunction granted by Mrs Justice Proudman were ignored. Ashdale decided that committal proceedings were impractical. Ashdale decided to take self-help measures. On 23 February 2010 it placed four large concrete blocks towards the end of the access road where it abuts Mr Cash's land. That prevented vehicular access to the Site, but allowed for wheelchair and stretcher access. The occupiers of caravans on the Sammon land continued to use the access road on foot. They began to park vehicles along the access road, which greatly inconvenienced the neighbouring residents.
On 15 February 2010 the retrospective planning application for permission to use the Sammon Land as a gypsy and travellers caravan site was refused. Some of the defendants appealed, but they subsequently withdrew their appeals.
On 25 February 2010 and 1 March 2010 some of the defendants attempted to "break through" the concrete blocks, causing damage to Ashdale's paddock and fence.
On 22 March 2010 GBC issued an Enforcement Notice requiring that the use of the Site as a caravan site should cease; all caravans and mobile homes be removed; and all hard surfaces and the resulting materials be removed.
The eighth to eleventh defendants were in due course joined to the proceedings. Mr Cash was joined as a defendant on his own application by order of Master Price on 2 June 2010.
In the amended Particulars of Claim Ashdale claimed, among other things, a declaration that Ashdale was entitled to obstruct all access, alternatively all vehicular access, to the Site from the access road; an injunction restraining the defendants from entering or passing along the access road with or without vehicles, or alternatively from entering or passing along the access road for any purposes other than agricultural purposes; and damages.
On 21 June 2010 GBC obtained an injunction unlimited as to time against the the first defendant, Mr Cash and persons unknown restraining them, among other things, from occupying the Site for residential purposes or using it for stationing caravans or mobile homes for human occupation or residential occupation.
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