Giles v Tarry and another

Agricultural land – Right of way – Restrictive covenant – Respondent having restricted right of way over driveway to paddock only – Appellant disputing use of right of way to access land beyond paddock – Whether judge erring in conclusion that respondent’s use of right of way lawful – Whether judge properly finding use of hovel temporary – Appeal allowed in part The trustees of a charity owned a farm which they split up in 1975 when they sold the farmhouse and outbuildings to the appellant’s predecessor in title. Access to and from that property was principally over a driveway that passed between fields on either side. The driveway was included in the conveyance but the fields were not. In the western field immediately adjacent to the driveway and close to the farmhouse there was an open barn or hovel. The trustees reserved a right of way over the driveway for the benefit of the fields. The trustees also entered into a restrictive covenant for the benefit of the land conveyed “not to use the hovel … otherwise than for normal agricultural purposes apart from the keeping of animals or poultry except on a temporary basis”. The fields, including the hovel, were conveyed to the respondent who took the benefit of the right of way reserved over the driveway and was subject to the restrictive covenant as to the use of the hovel. The field to the east of the driveway (“the paddock”) adjoined a much larger field (“the green land”) which was rented by the respondent. There was no physical division between the paddock and the green land. The respondent covenanted to erect a fence along the boundary but did not do so. There were two ways of getting into the paddock: one from a gate onto the driveway, which required the respondent to exercise his right of way; the other at the northern end of the paddock, where a gate opened onto the public highway, upon which there were no restrictions. There was no gateway from the green land onto the public highway. In 1991, the appellant bought the farmhouse, outbuildings and driveway. Disputes arose between the parties which were compromised when the respondent undertook not to exercise the right of way over the driveway for the purpose of gaining access to the green land. Further disputes arose and the judge declared that the respondent might make use of the right of way over driveway to drive sheep into the paddock and that, if the same sheep left the paddock via the northern end gate and then re-entered and grazed in the green field, there was no impermissible use of the right of way. Further the respondent was entitled to use the hovel for lambing, treatments, winter feeding or emergency purposes. The appellant appealed. Held: The appeal was allowed in part. (1) In order to determine whether there had been legitimate user of the right of way, the court had to take account of the physical features of the land at the date of the grant of the right of way and consider the substance and intention of the user claimed. In the present case, the judge had erred in law in not asking himself that question but instead focussing on the actual movement rather than the ultimate intention of the user. Once the judge had identified that the respondent’s objective was to graze his sheep both on the paddock and the adjacent green land, he was bound to conclude that the respondent was, in substance and intention, using the driveway for the purpose of gaining access to the paddock and the green land as a single agricultural unit. The respondent was using an artificial devise or expedient to achieve that end and so was not using the right of way for the benefit only of the paddock: Harris v Flower (1904) 74 LJ Ch 127; Peacock v Custins [2001] 1 EGLR 87, [2001] 13 EG 153; and Das v Linden Mews Ltd [2002] 2 EGLR 76, [2002] 28 EG 130 considered. (2) As regards the use of the hovel, the words of the covenant were far from clear but the parties agreed that some animal usage was permissible if it was temporary. The meaning of the word “temporary” was in the context of the conveyance and did not have a single meaning in all legal contexts. The judge had correctly recognised that “temporary” was an ordinary English word containing a variety of nuances. The question whether a particular use was “temporary” was a question of fact and degree. The application of an ordinary English word to a set of primary facts was itself a question of fact and the appeal court would not disturb the application by an experienced county court judge of the working document he had construed to the facts he found: Fitzroy House Epworth Street (No 1) v Financial Times Ltd [2006] 2 EGLR 13, [2006] 19 EG 174 considered. Alexander Hill-Smith (instructed by BrookStreet des Roches, of Abingdon) appeared for the appellant; Lindsay Johnson (instructed by JC Lawrence & Co, of Daventry) appeared for the respondent. Eileen O’Grady, barrister