Peter Bramwell and Others v Peter Robinson
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 21 October 2016 |
| Neutral Citation | [2016] EWHC B26 Ch |
| Court | Chancery Division |
| Date | 21 October 2016 |
| Docket Number | Case No: A90NE055 |
[2016] EWHC B26 (Ch)
IN THE COUNTY COURT
SITTING IN NEWCASTLE UPON TYNE
Chancery Business
The Combined Court Centre
The Quayside
Newcastle Upon Tyne NE1 3LA
His Honour Judge Behrens
Case No: A90NE055
Richard Selwyn Sharpe (instructed by Hodgson & Angus) for the Claimants
Stephanie Jarron (instructed by Bond Dickinson) for the Defendant
Hearing dates: 4, 5 and 6 October 2016
Judgment Approved
This is a right of way dispute between neighbours. As with many such disputes it would have been far better if it could have been resolved amicably or with the assistance of an experienced mediator. In Oliver v Symons [2012] EWCA Civ 267, another dispute between neighbours in County Durham Elias LJ's judgment included
This is a case which was crying out for mediation, even assuming that it could not have been settled more informally than that. It ought never to have come near a court, and with a modicum of good will on both sides, it would not have done so.
On the same topic Ward LJ said:
I wish particularly to associate myself with Elias L.J.'s pointing out that this is a case crying out for mediation. All disputes between neighbours arouse deep passions and entrenched positions are taken as the parties stand upon their rights seemingly blissfully unaware or unconcerned that that they are committing themselves to unremitting litigation which will leave them bruised by the experience and very much the poorer, win or lose.
There have been a number of attempts at mediation in the case. Regrettably none of them have succeeded. It is however plain that relations between these two families have sunk to such a low ebb that each side is prepared to assert that the other has made threats against them and that they are frightened to walk on the lane unaccompanied.
It is thus necessary for the Court to resolve the dispute. I, of course, have to apply the strict rules of the law of easements which may give results which do not satisfy either side.
Mr and Mrs Bramwell are owners of a farmhouse, buildings and land at Low Meadows Farm, Lanchester County Durham. Mr Robinson is the owner of the adjoining farmhouse, farm buildings and land known as Lizards Farm.
In order to gain access to Low Meadows Farm from the public highway Mr and Mrs Bramwell have the benefit of a prescriptive right of way over a track known as Kitswell Road much of which is on Mr Robinson's land.
There is no dispute that Mr and Mrs Bramwell are entitled to the right of way but there are disputes as to the extent of the right of way and as to whether Mr Robinson has interfered with it. On the other hand Mr Robinson accuses Mr and Mrs Bramwell and their licencees of excessive user and trespass.
The extent of the right of way.
It will, of course, be necessary to describe the right of way in more detail later in this judgment. For present purposes the issues relating to the extent of the right of way can be summarised:
1. Mr Robinson contends that the right of way is confined to the track itself. Mr and Mrs Bramwell on the other hand contend it is more extensive. They contend that it includes a right to pass over the verges, to use the passing places on the track and to what is described as "swingspace".
2. Mr Robinson contends that the right can be used by Mr and Mrs Bramwell and their visitors at any time. However, in so far as it is used by customers of the livery it can only be used between 7 a.m and 9 p.m. Mr and Mrs Bramwell, on the other hand contend that the use of the right of way is unlimited in time. In her closing submissions Miss Jarron accepted that the evidence did not support a time restriction and in those circumstances I can deal with the issue quite shortly.
3. Mr Robinson contends that heavy vehicles over 17 tonnes cannot use the right of way. Mr and Mrs Bramwell do not accept that there is any such restriction
Interference with the right of way
It is not in dispute that since the middle of July 2012 Mr Robinson has made the use of the right of way more difficult for Mr and Mrs Bramwell and their clients. Mr and Mrs Bramwell contend that these acts constitute interference with the use of the right of way. There are nine groups of acts that are alleged to constitute this interference:
1. In July 2012 Mr Robinson removed 3 passing places beside the track. Mr Robinson asserts that these passing places are not within the right of way and thus there is no interference.
2. At or about the same time Mr Robinson placed boulders on the right of way which are alleged to restrict the width. Mr Robinson accepts that he placed boulders on the verges but denies that this restricts the width of the right of way. In his closing submissions Mr Selwyn Sharpe accepted that the boulders do not now interfere with the right of way at all. In those circumstances he was content not to pursue any allegation in relation to the boulders.
3. At about the same time Mr Robinson placed posts in the verge which are alleged to interfere with the swingspace.
4. In May 2013 and December 2013 Mr Robinson has placed 13 speed bumps on the right of way. These are said to be unnecessary, too high and/or excessive. Mr Robinson makes the point that some of the speed bumps replace old worn out speed bumps and contends that they do not constitute an interference.
5. In April 2013 there emerged a pothole some 20 m away from one of the speed bumps. It was initially filled in by Mr Bramwell. Mr Robinson believed that Mr Bramwell was not entitled to fill in hole and removed the filling. It is not suggested that the hole made the track impassable. However in November 2013 the hole was eventually filled in by the local authority on the instructions of Mr Bramwell
6. In May 2014 Mr Robinson commenced the construction of a further 7 speed bumps. He did not however complete the work. Mr Robinson does not accept that this constitutes an interference with the right of way.
7. Mr Robinson has blocked the right of way, stopped vehicles, harassed the occupants, accused them of speeding, demanded to the know the purpose of the visit claiming they were overloaded and demanding to inspect the load. Mr Robinson accepts that on occasions he has prevented vehicles from using the track before 7 a.m. he contends there was an understanding that there would be no use of the track before 7 a.m.
8. In June 2014 Mr Robinson commenced works of construction of a new cattle grid and gate. The construction of the cattle grid is admitted. Mr Robinson contends that it replaced one that was damaged by construction traffic when Mr and Mrs Bramwell were building the indoor riding school. He denies it amounts to an interference. In his opening submissions Mr Selwyn Sharpe accepted that the construction of the cattle grid did not interfere with the right of way. Thus I need say no more about it.
9. In June 2014 Mr Robinson installed 3 gates across the way which were initially kept open. In January 2016 he shut the 2 gates while sheep grazed the verges. In July 2016 he placed a notice saying that "when livestock are in the field gates must be closed at all times"; Mr Robinson has continued to insist that the gates be closed at all times. Mr Robinson denies that the closing of the gates constitutes a nuisance.
Excessive user
Mr Robinson alleges that Mr and Mrs Bramwell have used the right of way excessively. He makes a number of allegations all of which are denied by Mr and Mrs Bramwell. Mr Robinson relies on 4 matters. He contends that vehicles are driven at excessive speed, travel along the track at unreasonably early hours in the morning and late hours in the evening, travel with loud music blaring so as to cause a disturbance to Mr Robinson and his visitors. He also contends that the use of the right of way has increased out of all proportion to the level of use established by prescription. He points out that Mr and Mrs Bramwell now run an equestrian centre from their property which is on a much larger scale than the limited livery business run by their predecessors in title. In reply to this allegation Mr and Mrs Bramwell point out that the Mortons ran a racing yard from the stables with at least 30 horses in training with regular traffic along the way by large horse boxes, together with visits from owners, staff, farriers, vets and deliveries.
Evidence
In support of their claim Mr and Mrs Bramwell called live evidence from Mr Bramwell, Mrs Clembinston, Mr Mason and their daughter, Mrs Bramwell Dunn. In addition I read statements from Mrs Bramwell and Mrs McNeill who were not required to attend for cross examination.
In support of his claim Mr Robinson called live evidence from himself, his girlfriend Miss Turner and Mr Dickman, the previous owner of Lizards Farm.
In addition I attended the premises for a view, was provided with a video showing a car driving down the track both in 2010 and now, a professionally drawn plan ("the plan") of the track showing precisely where the various obstructions gates and passing places are. I was also referred to a number of other documents and photographs including an aerial photograph of Lizards Farm taken in 1964.
Ownership
There is no dispute as to history of the ownership of the respective parcels of land. It is thus not necessary to refer to the deeds. Much of the following is taken from the chronology helpfully provided by the parties.
In the late 1960's Mr and Mrs Morton purchased Low Meadows Farm. At that time the track was a rough track grassed over with no hard surface. Sometime in the late 1980's Mr Morton laid a hard surface to the track.
It is not clear when Mr and Mrs Morton commenced the livery business at Low Meadows Farm. Mr Morton...
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