Mohit Dutta and Another v Thomas Hayes
| Jurisdiction | England & Wales |
| Judge | JUDGE SIMON BARKER QC |
| Judgment Date | 31 May 2012 |
| Neutral Citation | [2012] EWHC 1727 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No. 1BM30250 |
| Date | 31 May 2012 |
[2012] EWHC 1727 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre,
3. Bull Street,
Birmingham,
B4 6DS.
His Honour Judge Simon Barker QC
Sitting as a Judge of the High Court
Case No. 1BM30250
MR JAMAL DEMACHKIE(instructed by Actons Solicitors, 20 Regent Street, Nottingham, NG1 5BQ) appeared on behalf of the Claimants.
MRS FRANCES PIGOTT(instructed by Whatley Weston & Fox Solicitors, 15 & 16 the Tything, Worcester, WR1 1HD) appeared on behalf of the Defendant.
This action concerns a right of way along a track ('the track') running across the Claimants' land from a public highway known as Stocks Lane to the Defendant's land.
Although the Defendant's land has a small section of frontage to the same public highway the only route for vehicular access to the Defendant's land is said to be along the track.
The Defendant's land comprises approximately 37 acres of field or farmland and approximately one acre of woodland. It is irregular in shape. Apart from a frontage of approximately 100 metres or thereabouts to Stocks Lane, the Defendant's land is surrounded to the north by Leigh Brook, to the east by the continuation of Leigh Brook and by woodland, to the south by the Claimants' land and to the west by the Claimants' land.
For some years prior to 1991 the Claimants' land and the Defendant's land were in the common ownership of a Mr Timothy Siviter, who has given evidence in this trial. The right of way was created on 1 st November 1991 when he sold the land over which the track runs in two parcels, one to a Mr and Mrs Stokes and the other to a Panamanian company as nominee for the Swiss trustee of a settlement created by and/or for Mr and Mrs Stokes.
In the recent past, and in order to access his land other than by the track, the Defendant has attempted to build a hardcore-based track that would support the weight of vehicles along the line of a public footpath running across his land from the point where it meets Stocks Lane. However, the Malvern Hills District Council had not given permission for the construction of this route and they required the Defendant to remove the hardcore he was laying down and to reinstate the land, which he has done.
The right of way, as reserved by Mr Siviter for the benefit of what is now the Defendant's land, is, so far as material, in the following terms: '…a right of way at all times with or without vehicles over and along the track' and then there is an identification plan reference 'for the purpose only of pursuance of the agricultural use of' and then there is a reference to what is now the Defendant's land.
This right of way was subject to a condition to pay a proportion of the cost of maintenance and repair of the track to which I shall refer later.
At the time, the land retained by Mr Siviter included in addition to what is now the Defendant's land other land to the south of the track and to the south of the Defendant's land some of which is now owned by the Claimants.
The Defendant purchased his land in 2003 with a view to breeding horses on the land. Although horses had been grazed and exercised on the land, there is no evidence that prior to that time it had been used for stabling or breeding horses.
The best evidence of use of the land prior to and at the time of the November 1991 conveyances creating the right of way was given by Mr William Lambert, a witness for the Defendant, who was born at Lower Tundridge Farm, which is now the Claimants' home and on the Claimants' land, in July 1943. By that time Lower Tundridge Farm had been occupied by Mr Lambert's forebears, initially as tenants and then as owners, for upwards of a century. After marrying in 1973 Mr Lambert moved to a nearby cottage, where he still lives. Thus he is a valuable source of some 70 years' worth of direct knowledge of the land in the locality.
Mr Lambert notes that the right of way is also a public footpath; although Mr Demachkie submitted that it is not, he did not challenge Mr Lambert's evidence that it is.
Mr Lambert makes clear that until 1978 the fields now owned by the Defendant were hop yards. In 1978 the hop yards were removed and the fields were mainly used for growing corn, with some fields being left for pasture for grazing horses. Following the purchase of the Claimants' and Defendant's land by Mr Siviter in 1987, some of the fields were let to a local farmer, who grazed sheep and cattle until 1991.
Throughout all this period there was a variety of equestrian use of and activity on what is now the Claimants' and the Defendant's land. Mr Lambert also spoke of farm horses being stabled on the Claimants' land and working the fields, including what is now the Defendant's land, during his family's ownership of Lower Tundridge Farm.
Adults and children are said to have exercised and ridden horses and ponies across the Claimants' and the Defendant's land and along the track, and the North Ledbury Hunt did (and still does, according to Mr Lambert) ride across the Claimants' and the Defendant's land.
After 1991 and in the years leading up to the Defendant's purchase of the fields accessed by the track the fields (or some of them) were used for growing oilseed rape.
Mr Lambert's evidence is clear. Having observed him during cross-examination, I have no hesitation in accepting his evidence as reliable.
The Claimants do not object to the Defendant using the right of way in connection with or for the furtherance of the grazing or the exercising of horses.
Indeed over the period 2008–2010 the Claimants permitted the Defendant to graze horses on their land to the south of the track and to the south of the Defendant's land pursuant to a grazing licence; and, over the same two-year period, the Claimants also granted the Defendant a lease of stables originally built, according to Mr Lambert, as hop workers' barracks, situated adjacent to and, in my judgment and notwithstanding evidence to the contrary from the First Claimant, necessarily and inevitably accessed via the track in which stables the Defendant kept thoroughbred horses.
In March 2009 the Defendant was granted planning permission to use the barn which he had built on his land as stables, and in 2010 a retrospective application for an all weather manège was also granted.
At about this time the Defendant also brought a mobile home on to his land for use by an employee during the foaling season. Planning permission was refused for the mobile home and it has been removed.
These events in and around 2010 mark the establishment of "Tundridge Stud" as a business. The Claimants object to the use of the track in connection with this business. Examples of use objected to by the Claimants include the passing and re-passing of horse lorries, JCBs, dumper trucks, cars and 4x4 vehicles. The Claimants contend that every journey along the path by vets, farriers, feed suppliers, commercial visitors, oil suppliers and manure contractors also constitute unlawful use of the track.
The Defendant's land is for the most part registered with DEFRA as Grade 3 or Grade 4 agricultural land. Grade 4 is poor quality land mainly suited to grass or pasture. Grade 3 is land in a somewhat better condition suitable for crops but subject to moderate limitations.
Against that summary of the factual background I return to the relevant words of the right of way by which the Defendant is entitled to use the track:
- at all times
- with or without vehicles
- for the purpose only of pursuance of the agricultural use of the land.
Mr Demachkie, the Claimants' counsel, submits correctly that the starting point for the court is to consider whether or not the parties have used unambiguous language and that if they have the court must simply apply the language used to the facts of the case, (see Rainy Sky S.A. v Kookmin Bank [2011] UKSC 50 and in particular the speech of Lord Clarke at para. 23).
The issue here is whether the phrase 'pursuance of the agricultural use of the land' is unambiguous.
Mr Demachkie submits that there is no ambiguity about the phrase because (1) the key to the permitted use of the track is the meaning of the word 'agricultural' and (2) whether reference is made to definitions in statute, standard dictionaries or case law, the word 'agricultural' does not encompass the keeping (i.e. the stabling, rearing or breeding) of horses unless that use is ancillary to the main agricultural use of the land. As a fallback submission, Mr Demachkie submits that even if that is wrong and reference is properly to be made to the actual use of the Defendant's land at the time of and prior to the 1 st November 1991 conveyances, there is no evidence that the Defendant's land had been used for the breeding or stabling or training of horses.
Mrs Pigott, the Defendant's counsel, acknowledges that agricultural use does not ordinarily extend to running a stud farm. She submits however that: (1) the Defendant's land is used as agricultural land, being grazing land; (2) since 9 th March 2009 the Defendant has had permission to keep horses in the building originally built as a barn i.e. to stable horses on the land; (3) in and before 1991 the track was habitually used by Mr Siviter and others as well and before him for equestrian purposes; (4) that the Claimants acknowledged that equestrian use was consistent with the right of way granted by leasing the stables on or adjacent to...
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