Morris & Perry (Gurney Slade Quarries) Ltd v Hawkins

Mining – Right of entry – Quarry – Claimant enjoying right to win and work minerals under defendant’s farm land – Issue arising whether claimant having right to enter farm and carry out works in anticipation of application for planning permission to work minerals – Defendant obtaining summary judgment – Claimant appealing – Whether works reasonably necessary for purpose of winning minerals – Appeal allowed The claimant was a quarrying company which owned Cockill Quarry, Merchants Hill, Binegar, Somerset. The defendant owned the adjoining land known as Cockhill Farm which comprised a farmhouse, buildings and approximately 29½ acres. By a transfer dated 5 September 1975, the claimant’s predecessor in title of the quarry transferred the farm to the defendant’s predecessor in title, with the exception and reservation of the mineral rights, all “necessary ancillary rights” and appurtenant “liberties”. There was no dispute that the claimant now enjoyed the right to win and work the minerals under the farm. However, an issue arose whether the claimant enjoyed the right, on notice, to enter the farm to erect a fence, plant trees in specific locations and undertake landscaping works (the works) in anticipation of it making an application for planning permission to work the minerals under the farm. The works were works that the claimant proposed to do, rather than any it had already effected. The question turned upon the true construction of the transfer and the ancillary rights and liberties conferred by it. The claimant argued that the works were of a type which were inevitably a prerequisite to new quarrying operations and, by carrying them out, it would maximise its prospects of obtaining the necessary planning approval for such operations. The defendant considered that the terms of the transfer did not permit carrying out the works in advance of the grant of planning permission. In addition, the works would not relate to working the minerals under the farm but were instead proposed for facilitating further working of minerals at the adjoining quarry. The district judge ruled against the claimant on the existence of a right to carry out the works under the terms of the transfer and granted the defendant’s application for summary judgment. The claimant appealed against that decision. Held: The appeal was allowed. (1) The answer to the principal question turned upon whether or not the works could be regarded as reasonably necessary for the purpose of winning the minerals under the farm. If the relevant language of the transfer supported the provisional conclusion that they could be so regarded then, before permitting it to stand, the conclusion had to be tested against any other material provisions in the transfer and also by reference to its commercial consequences. The key provision in the transfer was clause 2(a). In addition to the right of entry, the clause 2(a) rights were “all necessary ancillary rights in connection with winning and working” the minerals. Clause 2(a) referred to “necessary” ancillary rights but the issue turned upon what was reasonably necessary for the purpose of winning the minerals because that concept was qualified by the concept of what was “convenient or necessary” at Part I, para (h) of the transfer. Part I, para (a) also referred to carrying out such works “as may be convenient” for obtaining them. That was an indication that “necessary” did not mean absolutely essential. The authorities showed that, even in the absence of such Part I liberties, there would be an implied grant of such ancillary rights as were reasonably necessary for the enjoyment of the right expressly granted. It was improbable that, by using the word “necessary” in the transfer, the parties intended to narrow the extent of the ancillary rights which would have been conferred had they not been expressed: Dand v Kingscote (1840) 151 ER 370, Jones v Pritchard [1908] 1 Ch 630, General Accident Fire & Life Assurance Corp Ltd v British Gypsum Ltd [1967] 1 WLR 1215, Besley v John [2003] EWCA Civ 1737; [2003] PLSCS 249 and Moncrieff v Jamieson [2007] 1 WLR 2620; [2007] PLSCS 201 considered. (2) The concept of winning the minerals embraced the whole process of obtaining them. It included, but was not confined to, the mechanical process involved in making them sufficiently accessible to be worked and the defendant had offered no principled explanation as to why it should be so confined. If the claimant needed regulatory permission to get to the minerals under the farm and in order to get that permission things needed to be done to the surface then those surface activities were all part of the process of winning them. There was a two-pronged test to establish whether or not, as a matter of principle, a particular activity fell within the concept of “winning”: (i) to consider the purpose for which the works were being done; and (ii) to consider the reasonable necessity of them having to be done in support of that purpose. The question was whether the purpose was that of obtaining the minerals from the farm. The clause 2(a) rights were wide enough to accommodate the works being undertaken in anticipation of an application for planning permission to work the minerals under the farm. The phrase “in connection with” was broad language which was inclusive rather than exclusionary. (3) Paragraph (b) of Part II of the schedule (which contained the conditions attached to the exercise of the clause 2(a) rights) expressly contemplated the claimant giving one week’s notice of entry upon the farm for the purpose of making an exploration or survey. It was difficult to see which limb of the clause 2(a) rights supported that activity if not that which referred to winning the minerals. An initial exploration or survey of the farm would be no less speculative and remote from the mechanical activity of digging out the minerals, or the overburden, than making an application for planning permission to do so. The draftsman had, on occasion, chosen to refer to the transferor “obtaining” the minerals instead of “winning” them. That was open-textured language indicating that “winning” had no particularly restricted meaning. It was necessary to secure planning permission in order to “obtain” them. Further, he had directed his mind to what was necessary or convenient (or reasonably necessary) for the purpose of obtaining them. The summary judgment against the claimant would be set aside. Stephen Jourdan QC (instructed by TLT LLP, of Bristol) appeared for the claimant; Ewan Paton (instructed by Lyons Davidson, of Bristol) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of Morris & Perry (Gurney Slade Quarries) Ltd v Hawkins