Polo Woods Foundation v Shelton-Agar and Another

JurisdictionEngland & Wales
CourtChancery Division
JudgeMR JUSTICE WARREN,Mr Justice Warren
Judgment Date17 Jun 2009
Neutral Citation[2009] EWHC 1361 (Ch)
Docket NumberCase No: CH/2008/PTA/0662

[2009] EWHC 1361 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

ON APPEAL FROM THE ADJUDICATOR TO

HER MAJESTY'S LAND REGISTRY

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Warren

Case No: CH/2008/PTA/0662

Between:
Polo Woods Foundation
Appellant
and
Michael Alan Shelton-Agar (1)
Respondents
Sarah Katherine Shelton-Agar (2)

Timothy Cowen (instructed by Messrs Burley and Geach) for the Appellant

William Batstone (instructed by Messrs Penningtons LLP) for the Respondents

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Hearing date: 5th February 2009

MR JUSTICE WARREN Mr Justice Warren

Mr Justice Warren :

1

This is an appeal from an order dated 19 June 2008 of Ann McAllister (whom I shall refer to as Ms McAllister) sitting as a Deputy Adjudicator to HM Land Registry. The order reflects her decision of that date (“the Decision”). Ms McAllister refused permission to appeal; but permission was granted by Kitchin J on 28 October 2008. I adopt the abbreviations used by Ms McAllister in the Decision thus referring to the appellants as Polo Woods and the respondents as Mr and Mrs Shelton-Agar. Before her, Mr Cowen appeared for Polo Woods and Mr Batstone appeared for Mr and Mrs Shelton-Agar. They both now appear before me.

The Decision

2

In the first few paragraphs of the Decision, Ms McAllister identifies the parties and their respective properties. In particular, she identifies the Farm, the Cottage, the Triangle (the subject matter of the present dispute) and a field known as the Common. The Farm comprises 111 acres and has at all material times been used for rearing polo ponies. The Common forms part of the Farm of which Polo Woods is the registered proprietor. The Cottage is the home of Mr and Mr Shelton-Agar; they are the registered proprietors of it. The Triangle adjoins the Cottage; Mr and Mr Shelton-Agar are the registered proprietors of that too.

3

The only access to the Triangle had for many years been from the Common. Polo Woods and Mr and Mrs Shelton-Agar had believed that the Triangle formed part of the Farm and held that belief until at the earliest some time after 8 February 2001 when first registration of the Farm took place. Mr and Mrs Shelton-Agar acquired the Triangle for £10,000 from the executors of Beryl Hunter Trimmer on 23 November 2004; Ms Hunter had acquired it on 13 October 1966 from the Parish Council of Iping.

4

Ms McAllister next identifies the issue in the case as being whether Polo Woods has established a profit á prendre by prescription to graze a limited number of horses on the Triangle. The original application made by Polo Woods sought the registration of the benefits and the noting of a burden of a profit á prendre by prescription and/or lost modern grant appurtenant to the Farm being “a right of pasturage for up to 20 ponies between the months of March and October each year”. During or following the hearing, the claim was modified: the right claimed is now limited to up to 10 horses for the period 1 March to 31 October each year and is further limited to the hours of 5.30 pm to 6.00 am.

5

Paragraphs 13 to 27 of the Decision are headed “Nature of a profit á prendre” in which Ms McAllister considers the relevant law. I propose to deal with the law after referring to the findings of fact made by her and after considering the reasoning leading to her conclusion to reject Polo Woods' application.

6

Ms McAllister reviewed the evidence in paragraphs 32 to 68 of the Decision. Her central factual conclusions are summarised in paragraph 69 as follows:

“As I have stated I am satisfied that for over 20 years from 1972 onwards an indefinite number of ponies (never more than 10 and frequently less than 5) entered onto the Triangle between the hours of 5.30 pm to 6.00 between March and October as part of their daily routine and that, in the course of so doing, they occasionally grazed. Taken on its own, the Triangle would not be capable of providing enough stocking material for even one horse over the period in question.”

7

She also records at paragraph 75 that the area of the Triangle is 0.8 acres and that only 70% of it can be grazed. She finds that:

“It is not, on any footing, necessary for the Farm to be able to allow ponies to graze on this land [the Triangle]. The value of the grass on the Triangle is negligible. As I have said above, the grass can only provide grazing for less than one horse over the period”.

8

Mr Batstone attacks the conclusion about the number of animals on the Triangle. I will come to that in due course.

Ms McAllister's analysis and conclusions

9

Having summarised the position in paragraph 69 of the Decision, Ms McAllister then deals with a number of points raised by Mr Batstone.

10

The first points she deals with are interrelated. One is that the ponies did not take all or substantially all of their nutritional requirements from the grass on the Triangle. Another is that the number of ponies on the Triangle fluctuated over time. Her conclusion is that the first of those is not a relevant consideration since the ponies had undoubtedly taken grass from the Triangle. I agree that the mere fact that not all or substantially all of their nutritional requirements were taken from the grass is not sufficient to prevent a profit á prendre being acquired. I am not so sure that that fact is altogether irrelevant. I also agree that the mere fact that numbers fluctuate over time is not conclusive against establishing a profit á prendre in relation to the maximum number. However, the position is not straightforward in relation to a profit acquired by long user. These are matters which I will need to return to later.

11

Next, Ms McAllister deals with an argument concerning “ouster” raised on behalf of Mr and Mrs Shelton-Agar. She rejects the argument, a decision which is challenged by Mr and Mrs Shelton-Agar. I will deal with this aspect in due course.

12

That left Ms McAllister with one final point of substance. She found in favour of Mr and Mrs Shelton-Agar on the point with the result that they were successful in resisting Polo Wood's application. The point in effect is whether the right claimed “accommodates” the dominant tenement or is capable of forming the subject matter of a grant.

13

She deals with the point in paragraphs 75 to 77 of the Decision. I have already set out what she says in paragraph 75. What she then says in paragraphs 76 and 77 is this:

“76. Mr Cowen argues that the test is not whether the right sought is necessary, but whether it is reasonably necessary, and that this is to be tested subjectively. I agree (subject to the points made below) that the test is not one of strict necessity, and also agree with the further point that the test is whether the right benefits the dominant tenement rather than the owner at any given time of the tenement. This is why the question is not (or is not necessarily) whether the right confers a commercial benefit. But I disagree that the test is a subjective one. It is a question of fact in each case, dependent on the nature of the dominant tenement and the right claimed. The connection must be a real one. Even if the test were subjective, I heard no evidence to suggest that any one involved in the Farm seriously believed that the Triangle could provide any real or appreciable benefit to the Farm. On the contrary, it seemed to me quite clear to everyone that there would be no additional benefit in being able to use the Triangle for grazing.

77. The formulation in earlier authorities (such as Lord Chesterfield v Harris) that there must be some relation between the needs of the estate and the extent of the profits, or that the right is limited to the wants of the estate is, in my judgment, another way of articulating the test (whilst also taking account of the particular nature of common rights). It is an important test. It is not enough to say that it is merely an 'accident of title' (as Mr Cowen put it) which means that the Triangle is in separate ownership. Without an objective test relating the profit sought to the needs of the estate, one or two horses, occasionally grazing on any land, however small, and regardless of the extent of the dominant tenement or the real benefit to the dominant land, could create a profit in favour of the dominant tenement. On the facts of this case the benefit to the dominant land is, it seems to me, so slight as to fail this test.”

14

Mr Cowen submits that Ms McAllister has applied the wrong test. There is, he says, no test of “real benefit” when deciding whether an easement or profit á prendre subsists in law; there is no authority for such a test nor for what the threshold should be if there were such a test.

15

Mr Cowen identifies the basis of Ms McAllister's decision in this way. She decided:

a. The rules and principles governing the acquisition of profits are the same as those for easements.

b. The right claimed must accommodate the dominant land and be capable of being the subject matter of a grant.

c. The test is an objective one and must relate the right sought to the needs of the estate. The test is whether there is a real benefit to the estate.

d. On the fact of this case, the benefit to the dominant land is so slight as to fail this test.

Mr Cowen accepts the first two of those propositions (indeed, they are common ground) but not the third and fourth.

16

Mr Cowen submits that the correct test (to be derived from Re Ellenborough Park [1956] Ch 131) and the only relevant test for accommodation of the dominant land is “connection”. He says that, to the extent that benefit is part of the test of whether the right is capable of being the subject matter of a grant, it is a question of the...

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    ...right, and of a right of the measure of that claimed: see White v Taylor (No2) [1969] 1 Ch 160 at 192 per Buckley J cited in Polo Woods Foundation v Shelton-Agar [2009] EWHC 1361. 73 In 1993 the gates were regularly closed from 10.00pm until 7.30am. From 2000 they were more frequently left ......

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