Rosling and others v Pinnegar

Defendant granted restoration grant on condition property opened to public – Access to property via single-track lane shared with neighbours – Neighbours claiming excessive user – Injunction granted preventing unreasonable use – Plaintiff applying for variation claiming change in circumstances – County court dismissing application – Appeal dismissed In 1982 the defendant acquired Hammerwood House, Hammerwood Park, East Grinstead, a Grade I listed building, which was the only surviving major house in Britain designed by Benjamin Latrobe (who later designed the White House and the Capitol building). He restored the house with the benefit of a grant from the Department of the Environment, which was awarded, subject to a condition that there was public access to the house for not less than 30 days per year. At Easter 1983 the defendant opened the property to the public for three days per week. The only vehicular access to the house was via Hammerwood Lane over which the defendant had a right of way in common with the residents of Hammerwood Hamlet. The lane was half a mile long, narrow, winding and single track with occasional passing places. The plaintiffs, residents of Hammerwood Hamlet, complained of the increase in traffic in the lane caused by the opening of the house to the public and claimed excessive user. They obtained an injunction against the defendant preventing unreasonable interference with the right of way. The defendant’s appeal to the Court of Appeal was refused: see (1987) 54 P&CR 124. Subsequently, the defendant applied to the county court to vary the terms of the injunction contending that it was appropriate that the order should be varied because he had acquired ownership of the northern section of Hammerwood Lane and a substantial part of the underdeveloped southern section. Furthermore he had received consent to fell certain trees, in order to construct a number of passing-places for traffic, and had offered an undertaking to construct passing places to the satisfaction of the local planning authority. The county court refused the application and the defendant appealed. Held The appeal was dismissed. The critical question was not whether the court had the jurisdiction to make an order but whether there was such a fundamental change of circumstances that the court should reconsider the injunction. The construction of passing places would be more likely to increase traffic than reduce it, which had been the foundation of the injunction. The defendant’s acquisition of the freehold did not involve the defendant acquiring a greater right of way and, therefore, there had not been sufficient change in fundamental or unforeseen circumstances to warrant a change of the injunction. Graham Platford (instructed by the Rosling Partnership) appeared for the plaintiffs; Barry Payton and Philip Norman (instructed by Arthur Pyke & Co, of East Grinstead) appeared for the defendant. Thomas Elliott, barrister