Dutta and another v Hayes

Right of way – Agricultural use – Defendant having right of way over track on claimants’ land limited by reference to agricultural use – Way used for equestrian purposes – Claimants objecting to use of way in connection with stud farm business  – Whether right of way extending to such use – Claim allowed In 2003, the defendant purchased several acres of farmland for the purpose of breeding horses on the land. Vehicular access to his land from the highway could be gained only by a track across the claimants’ adjoining land. A right of way over the track, with or without vehicles, existed “for the purpose only of the pursuance of the agricultural use of” the defendant’s land. The relevant right was contained in a 1991 transfer effected by a common predecessor in title of the parties and was subject to a requirement to pay a proportion of the cost of maintenance and repair of the track.The claimants did not object to the defendant using the right of way in connection with the grazing or exercise of horses; such use had been made of the track in the past. They also permitted the defendant to graze horses on their land pursuant to a grazing licence, and leased some stables to him, and they were content for him to use the track for those purposes. However, when the defendant began to run a stud farm business on his land in 2010, the claimants took exception to the use of the track in that connection. They contended that the attendant passing and repassing of horse lorries, diggers, dumper trucks, cars and 4×4 vehicles, with visits by vets, farriers, feed suppliers, commercial visitors, oil suppliers and manure contractors, constituted unlawful use of the track.The defendant accepted that agricultural use did not ordinarily extend to running a stud farm. However, he contended that the right of way should be construed in the context of the past use of the land for equestrian purposes and contended that, by granting the stable lease and grazing licence, the claimants had acknowledged that equestrian use was consistent with the right of way. Held: The claim was allowed.When deciding the meaning of an easement or grant, account could be taken of the use to which the dominant tenement was put at the time of the grant, or the use that might reasonably have been expected to be made of it, provided that approach was not taken too far: Todrick v Western National Omnibus Co Ltd [1934] Ch 190 and Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620; [2007] 43 EG 200 (CS) applied. The task of the court was to conduct an objective inquiry to ascertain what a reasonable person, having all the background knowledge that would be available to the parties, would understand the relevant document to mean.The words used in the 1991 grant admitted of more than one possible meaning. It was therefore necessary to have regard to the factual matrix in order to determine the meaning of the right of way.  “Agricultural use” had an established meaning that did not include the stabling and keeping of horses, as opposed merely to grazing them. However, the concept of agricultural use could given an extended meaning by convention of the parties: Gainsborough-Field v Hyde [2005] EWHC 2229 (QB); [2005] PLSCS 190 applied. There had been recreational equestrian use of the defendant’s land at the time of the grant and the track had been used for the purpose of accessing the defendant’s land. The agricultural activity of grazing would not cease to be agricultural if there was a stable on the land and the horses were kept there overnight or in inclement weather. Nor would it cease to be an agricultural activity if the land was insufficiently fertile or productive to yield sufficient fodder or if hay or other food had to be brought in, provided that the land was suitable for grazing. Thus, the use of the track to bring horses to and from the defendant’s land for grazing, for the carriage of fodder, for access by vets, farriers, other suppliers or contractors and staff to bring in and turn out the horses grazing on the land were all permitted uses of the track. That included transporting the horses by vehicle to and from the land.However, the operation of a stud farm fell outside the ordinary and statutory meanings of agriculture, the meanings established by case law and the scope of any convention between the parties or their predecessors in title in 1991: Whitsbury Farm & Stud Ltd v Hemens (VO) [1988] 1 AC 601; [1988] 1 EGLR 159 considered. There was no evidence that such use was considered to be a likely future use of the land at that time. Consequently, the defendant was not entitled to use the track as a means of access to and from his land for the purpose of the stud farm.Although an injunction was the usual remedy, there were exceptional circumstances that justified an award of damages in lieu. It would be impractical to grant an injunction in the instant case since it was not possible simply to turn off the operation of a stud farm. An award of damages of £100 per calendar month was fair and just compensation for the intrusion caused to the claimants. No higher figure was likely to result from a hypothetical negotiation for the grant of the necessary rights: Stadium Capital Holdings (No 2) Ltd v St Marylebone Property Co plc [2011] EWHC 2856 (Ch); [2012] 04 EG 108 considered. The defendant should also contribute 60% of the repair costs in respect of the track, pursuant to his obligation under the right of way. Jamal Demachkie (instructed by Actons Solicitors, of Nottingham) appeared for the claimants; Frances Pigott (instructed by Whatley West & Fox Solicitors, of Worcester) appeared for the defendant.Sally Dobson, barrister