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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Oliver & Anor v Symons & Anor [2011] EWHC B9 (Ch) (14 April 2011) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2011/B9.html Cite as: [2011] EWHC B9 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY

		The Law Courts The Quayside Newcastle-Upon-Tyne NE1 3LA
		14th April 2011

Judge Behrens:

1 Introduction

1. This is an unfortunate neighbour dispute. As with all such disputes it would have been far better if the parties could have resolved their differences by some form of alternative dispute resolution. Neighbour disputes are expensive. The results are unpredictable. Often the solution provided by the Court is one that neither party really wants. Furthermore the parties are still neighbours when the dust has settled and judgment is given.
2. Both parties own land at Thornley Moor Farm, Cassop, County Durham ("Thornley Moor Farm"). Before May 1999 the whole of Thornley Moor Farm was owned by John and Ida Walker and was registered under Title DU104379.
3. On 20^th May 1999 Mr and Mrs Walker transferred the whole of DU104379 to members of the Oliver family. Most of Thornley Moor Farm was transferred to two brothers Colin and John Oliver ("the Claimants"). However the Farmhouse and approximately 2 acres of land to the north of the Farmhouse (described in the Transfer as "the paddocks adjoining") were transferred to the Claimants' mother – Christine Oliver. Mrs Oliver's title was registered under Title DU 228530.
4. There is a cart track which commences in Luke Avenue, Cassop and runs approximately east-west along the northern boundary of DU104379 and DU 228530. At the north-eastern corner of DU 228530 the track turns south initially down the eastern boundary of DU 228530. At a point approximately halfway down the eastern boundary the track leaves the boundary and turns in a south westerly direction so as to pass to the west of the Farmhouse itself and eventually emerge back into DU104379 through the centre of the southern boundary of DU 228530. The track is shown coloured yellow on all relevant transfer plans.
5. Immediately to the south of DU 228530 just to the east of the track are a number of farm buildings which were used by Mr and Mrs Walker as part of their farming activities.
6. By virtue of express reservations and grants in the two transfers of 20^th May 1999 Mrs Oliver was granted a right of way over that part of the track on DU104379 and the Claimants were granted a right of way over that part of the track on DU 228530.
7. Some 6 weeks later, on 5^th July 1999 the Claimants exchanged some land with their mother. Mrs Oliver transferred to the Claimants the northern part of the paddocks which had formed part of DU 228530. That part is now registered under Title DU 230239. The Claimants transferred to Mrs Oliver part of the field to the east of the Farmhouse (OS 2019). That part is now registered under Title DU 230238.
8. Thus, as a result of these transactions the Claimants became registered proprietors of DU104379 and DU 230239 and Mrs Oliver became the registered proprietor of DU 228530 and DU 230238.
9. In September 1999 Mrs Oliver sold both her plots of land to Mr and Mrs Fletcher. On 12^th January 2001 Mr and Mrs Fletcher sold the two plots to the Defendants who are accordingly now the registered proprietors of DU 228530 and DU 230238.
10. On 4^th May 2007 the Claimants transferred land immediately to the south and east of the Defendant's land (being the remainder of OS 2019 and OS 1508) to a development company under their control - Haswell Moor Developments Ltd ("HMDL"). That land which was originally part of DU104379 has now been registered under Title DU 302381.
11. HMDL are in the process of developing the land by the construction of 3 dwellings. Part of the development included the construction of a new access to the development on a road or track to the west of DU 228530. There were negotiations between the parties in 2006 and 2007. During those negotiations the Claimants offered to surrender their right of way and to permit the Defendants to connect up to new water pipes which were being installed in a different part of DU104379 as part of the development. However those negotiations were unsuccessful and there was no concluded contract. In those circumstances the Claimants contend that they are entitled to continue to use the right of way even though they have an alternative access. They also contend that the Defendants have no right to connect to the new water pipes.
12. There are a number of disputes between the parties:

1.1 Entitlement to a right of way.

13. It is common ground between the parties that the Transfer of 20^th May 1999 granted the Claimants a right of way over that part of the track included within the Defendants' title. However the Defendants contend that the Claimants released this right of way on 5^th July 1999. They rely on a clause in the Transfer to the Claimants of DU 230239 had this effect.
14. The Claimants do not accept this construction. If, however, they are wrong they contend that have an equivalent right of way as a result of estoppel by convention. The Defendants do not accept that this case gives rise to any estoppel by convention or otherwise.

1.2 Extent of any right of way

15. If the right of way has not been released there is a dispute as to its extent. In particular there are disputes as to the width over which the right of way may be exercised and as to the types of vehicles that can exercise the rights.

1.3 Interference with the right of way

16. The allegations of interference are to some extent tied up with the disputes over the extent of the way. The Defendants have erected 3 gates crossing the right of way.
17. On two occasions but only for short periods one of the gates has been locked. This is conceded to be interference albeit for a short period.
18. It is alleged that the presence of 3 gates over a relatively short area is, of itself interference. It is further alleged that the presence of these gates makes the exercise of the right of way by the Claimants especially with large agricultural vehicles significantly more difficult and thus constitutes interference. Each of these assertions is denied by the Defendants.

1.4 Excessive User

19. There is a Counterclaim by the Defendants for excessive user and trespass. There are a number of broad allegations made by the Defendants:

1. Excessive user of the right of way so as to turn it into a mud bath;

2. Trespass and/or excessive user in driving over parts of the Defendants' land not included in the right of way and/or with vehicles not permitted under the terms of the grant. This includes the driving over and/or removal of kerb stones placed on the grass close to but not on the right of way.

3. Causing damage to the gates and posts. There are a number of incidents where it is alleged that the Claimants have collided with the gates and on at least one occasion actually damaged one of the gates

1.5 Assault

20. On one occasion in the evening of 2^nd December 2008 there was an incident when Mr Oliver attempted to open one of the gates (Gate B) and Ms Symons attempted to stop him. Mr Oliver was the stronger and managed to force the gate over. In doing so Ms Symons fell over on two occasions. It is alleged that Mr Oliver assaulted Ms Symons.

1.6 Boundary Disputes

21. Up until the beginning of the trial there were a number of disputes between the parties as to the boundaries between the parties. Fortunately these disputes have now been resolved with the assistance of the experts. It is however common ground that the northern fence erected by the Defendants trespassed significantly on the Claimants' land.

1.7 Water rights

22. There is a separate dispute between the parties as to whether the Defendants are entitled to connect into new water pipes constructed by HMDL in DU104379 for the purpose of the new development. This also depends on the true construction of the parties' Deeds.

2 Evidence

23. Apart from the oral evidence there was a significant amount of documentary evidence. This included aerial photographs both before 1999 and after 2008, photographs of various parts of the site taken at various dates, video and/or CCTV clips taken by the Defendants showing many of the incidents of which they complain in the Counterclaim and plans. Some of the plans were those attached to copies of the parties' title deeds. In addition there were a number of plans prepared by the parties' experts based on surveys commissioned by them.
24. On the first day of the trial I had the benefit of a site view. During the course of that view I witnessed a number of demonstrations by the Claimants designed to show the difficulty or (in some cases) impossibility of manoeuvring some pieces of agricultural machinery through the gates as they now exist.
25. The principal witness called by the Claimants was Mr John Oliver. ("Mr Oliver") However short oral evidence was given Mr Ken Hall, an employee of HMDL, Mr Peter Tindale, an agricultural contractor employed by the Claimants, Mr Andrew Fletcher, the previous owner of the Defendants' land and Mr William White, a tenant of Bridgend Cottage, one of the houses developed by HMDL. I was invited to read witness statements from Ms Sonia Smith and Ms Ayleen Smith on the ground that their evidence was not relevant to any of the matters in issue between the parties. I was also invited to read Mr Colin Oliver's witness statement. Mr Colin Oliver was too ill to attend court. Mr Colin Oliver's witness statement corroborated the evidence of his brother but did not add to it.
26. The principal witness called by the Defendant was Ms Symons. Mr Burgess gave evidence but was only (by agreement between the parties) cross-examined shortly. In so far as he corroborated Ms Symons's evidence he adopted her answers to the cross-examination. He was able to give some additional evidence about the cost of the repairs to one of the gates (Gate B) which was damaged by Mr Oliver.
27. In addition to the evidence of fact I had the benefit of short oral evidence from the experts – Mr Barras for the Claimants and Mr Bainbridge for the Defendants. There was, in fact, very little between the experts by the time they gave their evidence. Their oral evidence was short and was designed more to clarify matters in their reports rather than to take issue with their conclusions.

3 The relevant provisions in the Title Deeds

3.1 The right of way.

The Transfers of 20^th May 1999

28. I summarised the relevant Transfers in the Introduction. It will be recalled that on 20^th May 1999 Mr and Mrs Walker sold DU104379 partly to Mrs Oliver and partly to the Claimants.
29. The Transfer to Mrs Oliver was first in time. The land transferred to Mrs Oliver was described as follows:

"the land shown and edged with red on the attached plan being known as Thornley Moor Farmhouse, … aforesaid and the paddocks adjoining comprising two acres or thereabouts TOGETHER WITH the benefit of the rights set out in the First Schedule hereto and EXCEPTING AND RESERVING unto the Transferors and their successors in title to the remainder of the land comprised in Title Number DU104379 ("the Retained Land") and all persons authorised by them the rights as set out in the Second Schedule hereto.

30. The plan was based on the then current OS plan and was drawn on a scale of 1/2500. The thickness of the red line is equivalent to half a metre on the ground.
31. Paragraph (a) of the First Schedule granted Mrs Oliver the right:

to go pass and repass with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the accessway over the Retained Land shown coloured yellow on the said plan.

32. Paragraph (a) of the Second Schedule mirrored these provisions and reserved to the Transferors equivalent rights over the land transferred to Mrs Oliver:

to go pass and repass with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the accessway over the Property shown coloured yellow on the said plan.

33. As already noted the plan shows a cart track commencing at Luke Avenue, Cassop within the boundary of DU104379 running approximately due east into the land transferred to Mrs Oliver and then turning south at the eastern end of her land passing lengthwise through her land as already described. It is that cart track which has been marked yellow on the plan. The yellow marking ceases at the southern boundary of Mrs Oliver's land but the cart track continues due south for a considerable distance beyond the farm buildings shown on the plan and thus past the area now developed by HMDL.
34. The land transferred to Mrs Oliver was duly registered under DU 228530
35. The Transfer to the Claimants mirrored these provisions. The land transferred was defined as

Thornley Moor Farm … less that part shown edged red on the plan annexed hereto which the Transferors immediately before the execution hereof have transferred to [Mrs Oliver].

36. By clause 17 of the Transfer the land was transferred:

…with the benefit of the rights excepted and reserved and subject to the rights granted in [the] Transfer [to Mrs Oliver].

The Land Exchange of 5^th July 1999

37. As can be seen from the plan the two acres sold to Mrs Oliver were long and thin. A decision was accordingly made between Mrs Oliver and her two sons, the Claimants to effect a land exchange. Mrs Oliver would transfer to her sons the northern part of her paddocks. In return for this the Claimants would transfer to their mother an equivalent (but no doubt more convenient) piece of land immediately to the east of the farmhouse and being part of OS 2019.
38. The Exchange was effected by two Transfers both dated 5^th July 1999. Each Transfer was said to be made in consideration of the other.
39. The Transfer to the Claimants was of:

"the land lying to the north west of Thornley Moor Farmhouse… shown and edged with red on the attached plan and being part of the land comprised in [DU 228530] EXCEPTING AND RESERVING unto the Transferor and her successors in title to the remainder of the land comprised in … DU 228530 and all persons authorised by them the right to go pass and repass with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the accessway over the Property shown coloured yellow on the said plan.

40. Clause 2(i) of the Transfer provided:

IT is hereby agreed and declared as follows:

(i) The Transferees shall not be entitled to any rights of way or easements or rights equivalent to any quasi rights or quasi easements over the remainder of the land comprised in the title [DU 228530] ("the Retained Land") save such (if any) as are contained herein;…

41. The land transferred to the Claimants was duly registered as DU 230239.
42. The Transfer to Mrs Oliver can be dealt with quite shortly. The land transferred was defined as:

"the land lying to the east of Thornley Moor Farmhouse … shown and edged with blue on the attached plan and being part of the land comprised in … title [DU104379].

43. Clause 2(i) of the Transfer is in identical terms to the Transfer to the Claimant save that the reference to the retained land is a reference to the remainder of DU104379. Thus it reads:

(i) The Transferees shall not be entitled to any rights of way or easements or rights equivalent to any quasi rights or quasi easements over the remainder of the land comprised in the title [DU104379] ("the Retained Land") save such (if any) as are contained herein;…

3.2 The water rights

44. The water rights were granted to Mrs Oliver in the May 1999 conveyances in paragraph (b) of the First Schedule in the following terms:

"the free and uninterrupted right of connection to and passage of water … and other services into and through the sewers drains watercourses pipes …and other service conducting media (…"the Service Installations") now constructed or to be constructed in or under the Retained Land with full rights to enter upon so much thereof as shall be reasonably required for the purpose at all reasonable times and upon giving reasonable notice (except in the case of emergency) for the purpose of inspecting repairing enlarging relaying cleansing renewing removing maintaining and replacing such Service installations the Transferee or other the persons exercising such rights doing as little damage as possible to the Retained Land in the exercise thereof and forthwith making good any damage thereby caused SUBJECT TO the Transferee or other the person exercising such rights paying a due and proportionate part of the expense of keeping the Service Installations in good repair and condition.

45. A substantially similar reservation is contained in paragraph (b) of the Second Schedule. It is not necessary to set it out in full.

4 Description of the site.

46. As is clear from the plan attached to the title for DU104379, Thornley Moor Farm originally comprised some 10 large fields. The buildings consisted of Thornley Moor Farmhouse and extensive farm buildings to the south of the farmhouse. The aerial photograph predating 1999 (at p 137) clearly shows Thornley Moor Farmhouse and the buildings. It also shows the cart track passing to the west of the buildings. That photograph also shows a narrow path joining the cart track from the west at a point just north of the farm buildings.
47. As already noted the cart track continues in a southerly direction passing through the remainder of DU104379, and continuing for three further fields (OS 1947, 2636 and 3123) before turning east towards the western side of Carrs House. There are other aerial photographs taken at various times between May 2001 and July 2006 showing the cart track as it was prior to the development.
48. The experts, in somewhat different ways, have attempted to correlate the position of the cart track on the ground with the track as shown on the plan attached to the title Deeds.
49. Mr Barras on behalf of the Claimants commissioned an on site topographical survey by Geomatics UK Ltd using a Trimble R8 GNSS GPS system with a manufacturer's stated accuracy of 5mm. The device readings come from satellites and on land OS control points... A series of plans were drawn to identify surveyed features and overlaid onto the title plans on a best fit basis. Plans 1 and 3 show the current position of the cart track is slightly different from that shown in the title deeds. Plan 6 shows the position of the cart track overlaid onto an enlarged copy the aerial photograph taken in May 2001 (p572). Again one can see that the route of the cart track does not follow the precise position shown on the plan.
50. Mr Bainbridge commissioned a detailed topographical survey by Abacus Surveying & Alignment Ltd. That survey used a Topcon Hiper Pro GPS system with an accuracy of 5 mm. Mr Bainbridge attempted to compare the Abacus survey with a scaled up copy of the Transfer plan. (The original Transfer plan was not available). The result can be seen in Appendix D4. Again one can see that there are small differences between the route of the track as surveyed and the track as shown on the enlarged copy of the copy of the Transfer plan.
51. Mr Bainbridge was provided with an aerial photograph taken on 10^th July 1999. The photograph has been overlaid by the survey plan at a scale of 1:2500. It can be seen that there is a very close correlation. Mr Bainbridge accordingly concluded that the width and route of the track as shown in the 1999 aerial photograph largely coincides with the width and route on the ground to-day. For the majority of its length the track width is less than 3 metres and the maximum width is 3.25 metre wide. However when he gave evidence Mr Bainbridge accepted that the width was greater on the Transfer Plan in the area between Thornley Moor Farmhouse and the southern boundary where the plan can be scaled up to show 4 metres width.
52. On the ground, however, the track is not as wide at that point. Apart from all other matters there are paving stones immediately to the west of Thornley Moor Farmhouse which do not form part of the cart track whereas the Transfer plan appears to show the cart track immediately adjacent to the farmhouse.

5 History of events

5.1 1999 – 2006

53. There is no real dispute that the Claimants used the right of way without any problems throughout this period. For the first 5 months Thornley Moor Farmhouse was owned by Mrs Oliver. She did not live there. During the time of her ownership the right of way was exercised. There was no suggestion that either party lost it by virtue of the July 1999 Transfer.
54. When Thornley Moor Farmhouse was sold to Mr and Mrs Fletcher in September 1999 Mr Fletcher was told that the Claimants retained a right of access. At or about the time of the sale the Claimants erected two gates – one at the southern end (Gate C) just to the south of the boundary; the other (Gate A) significantly to the north of the boundary. It is now agreed that Gate A is 4.57 metres wide and Gate C is 4.47 metres wide. It is plain from the photographs and from the view that the gate posts are placed in the grass on either side of the cart track and that the gates are wider than the track on the ground.
55. In his witness statement Mr Fletcher described the right of way as being used regularly. When he gave evidence he explained that sometimes during peak times – such as lambing or calving the right of way would be used two or three times a day. At other less busy times there could be no traffic for a week.
56. Mr and Mrs Fletcher sold Thornley Moor Farmhouse to the Defendants on 12^th January 2001. In evidence Ms Symons accepted that Mr Fletcher told her that agricultural vehicles used the track intermittently. She also accepted Mr Fletcher's estimate of the extent of the use as being accurate. In his evidence Mr Oliver suggested that the track was used nearly every day. In so far as it is relevant I prefer the evidence of Ms Symons and Mr Fletcher on this point.

5.2 Planning Permission

57. On 8^th June 2006 Mrs Oliver and her two sons were granted conditional planning permission to convert the Farm Buildings to the south of Thornley Moor Farmhouse into 3 dwellings. Conditions 8 and 9 related to the access. The applicants were required to submit an amended plan showing the proposed driveway to the development being moved to the west of Thornley Moor Farmhouse. Furthermore they were required to construct the new access before starting the conversion of the buildings.

5.3 Negotiations

58. Between June 2006 and mid 2007 negotiations took place between the parties. Some of the negotiations were conducted on behalf of Ms Symons by a firm of solicitors – Archers Law and some were conducted by Ms Symons herself. The Claimants used a firm of Surveyors – George F White although some of the negotiations were conducted by Mrs Oliver.
59. If the negotiations had been successful the Claimants would have abandoned their right of way over Thornley Moor Farmhouse and used the alternative access. Furthermore Ms Symons would have been permitted to connect to the new water supply. However it is not contended that the negotiations were successful. All the documents were and were expressed to be made on a subject to contract basis and there was no concluded contract. There was also a problem over a further land exchange. The Claimants wanted the Defendants to exchange land to the south of Thornley Moor Farmhouse with another strip of land to the east. Ms Symons was unwilling to enter into the exchange.

5.4 The Development

60. The new road was constructed between the end of January and mid February 2007. The development commenced in about April 2007. On 4^th May 2007 the Claimants transferred the farm buildings and the remainder of OS 2019 to HMDL. The three Directors and shareholders of HMDL are Mr Oliver (the Second Claimant) and his parents. Title to this land was registered under DU 302381.
61. During the course of the development, development traffic and agricultural vehicles used the right of way. The volume of traffic using the right of way increased.
62. During the course of the development HMDL have constructed a wall in an east westerly direction blocking the cart track at a point close to the northern boundary of its land. The wall can clearly be seen in photograph 115.
63. The effect of the wall is that if the Claimants wish to exercise the right of way from the north it is necessary to make a sharp right turn when they emerge onto their land through Gate C. That turn gets them onto the track which can be seen on the pre 1999 aerial photograph. Equally if the Claimants wish to exercise the right of way from the south they have to make a sharp left turn to get through Gate C.

5.5 Interference/Excessive user

64. Problems between the parties over the use of the right of way appear to have begun in July 2007. There is in the correspondence a letter from the Claimants' solicitors alleging that Ms Symons blocked the right of way by parking a motor vehicle on the road and refusing to move it on request. In evidence Ms Symons explained this incident on the basis that she was unloading a trailer and asked Mr Oliver for a minute to move it. He drove round the trailer and over the tail gate. In correspondence, however, Ms Symons alleged that she had been subject to harassment from Mr Oliver and had had to call the police.
65. According to Ms Symons, on 28^th September 2007 Mr Oliver removed the gate at point C. On 30^th September 2007 Ms Symons installed a gate (Gate B) across the track at point B on plan 3 prepared by the Claimants' expert. A photograph of Gate B can be seen at pp 116, 120 and 123. A number of features of the gate are relevant:

1. It was described by Mr Selwyn-Sharpe as a flimsy wooden gate. It opens by being swung clockwise to the north and being attached to a metal pole. Coming from the north there is a left had bend immediately before the gate which adds to the difficulty in manoeuvring through it.

2. It is agreed between the experts that the width of gate B is 3.63 metres. It is apparent from the photographs and the view that none of the gate posts is on the track. Both are in the grass to the side. However the photograph at p123 demonstrates that the metal post is in fact in the eastern edge of the track itself. That means that when the gate is open a significant part will be over the track itself.

66. It is the Claimants' case that it significantly adds to the difficulty of driving agricultural vehicles from north to south.
67. In evidence Ms Symons justified the installation of Gate B by asserting that she did not want her sheep straying onto the development. At that time Ms Symons had 2 pet sheep but was considering acquiring a horse. She initially said that the Claimants' gates at A and C had been removed. She later said that the gate at C could not be shut anyway. None of the photographs show that Gate C was removed. However the photograph at 117, 118 and 119 appear to show that gate A was indeed removed. There are also photographs on the DVD provided by the Defendants showing Gate A locked open in May and June 2008.
68. There were a number of incidents in December 2007 most of which are shown on the DVD. These include an incident on 13^th December when the Claimants drove onto the grass to the west of the track in order to avoid what appeared to be a fork lift truck coming the other way. At or about that time the Defendants placed a number of kerb stones on the grass immediately to the north west of Gate B. There are a number of examples of the Claimants driving on to the grass and moving the kerb stones. There are a number of CCTV clips between December 2007 and January 2008 of Mr Oliver driving into the gate before opening. There is one clip of him pushing open the gate with his pick up truck.
69. It is the Defendant's case that damage was done to the track by excessive user. However when she gave evidence Ms Symons accepted that she had spent no money on the track since she had bought Thornley Moor Farmhouse. The track did not appear to be in particularly poor condition either in photographs or on the view.
70. On 15^th July 2008 there was an incident where Mr Oliver drove a tractor pulling a trailer past Gate B. The trailer caught the back of the gate and caused some minor damage. Mr or Mrs Oliver offered to repair the gate but the offer was declined because the Defendants wanted it mended immediately. Repairs were carried out by Mr Burgess. He has claimed some £72.50 for the repairs on the basis of 4½ hours labour. Although there was some discussion about this I am satisfied the amount claimed is reasonable.
71. In July 2008 Ms Symons locked Gate B. It was locked for approximately one day. As is clear from the CCTV footage Mr Oliver removed the lock with a hammer thus restoring his right of access.
72. In November 2008 the Defendants erected 2 further gates – one at point A and the other at point C. The Gate at point A can be seen at photograph 117. As can be seen from the photograph the gate posts are entirely on the grass. It is 3.95 metres wide and thus narrower than the gate placed by the Claimants at A. During the course of these proceedings it became apparent that this gate had been placed significantly to the north of the Defendants' boundary. They have therefore moved it to point D. Its width at point D is 3.98 metres. During the course of the view it was agreed between the parties that it is still slightly too far to the north. It has been agreed that (subject to any orders to be made about a gate) it will be moved further south after judgment.
73. The gate at point C was placed within the Defendants' boundary just to the north of the Claimants' Gate at C. It can be seen in the photograph on p 115 with the wall behind it. The 2 gateposts are on grass. The western gate post has been bent backwards – no doubt by vehicles attempting the very sharp right turn made necessary by the construction of the wall. The current width (with the gate post at an angle) is 3.83 metres. If the gate post had been straight it would have been 3.70 metres.
74. On 2^nd December 2008 there was an incident when it is alleged that Mr Oliver assaulted Ms Symons. The incident is captured on CCTV. It happened at 21.11 in the evening at Gate B. It is common ground that it was frosty and the road was icy. Ms Symons attempted to stop Mr Oliver passing through Gate B by standing by it. Mr Oliver pushed Gate B so as to open it. In doing so Ms Symons fell to the ground on two occasions. She did not suffer any serious injuries thought she said that she was bruised. The police were called and Mr Oliver accepted a caution on the basis of "reckless assault".
75. On 6^th January 2009 Ms Symons padlocked her gate at point C and did not remove the padlock until 17^th January 2009 by which time these proceedings had been issued. In evidence Ms Symons explained that the Claimants had themselves blocked the access by depositing stone outside Gate C so as to block the access. However she readily acknowledge that she should not have locked Gate C. These proceedings were commenced at or about that time.
76. On 25^th June 2009 HMDL sold one of the newly developed properties ("The Gin Gang") to Mr and Mrs Walton. It appears to be the most northerly of the three properties. Its northern boundary appears to be close to the wall erected by the Claimants across the cart track to the south of Gate C. Mr and Mrs Walton's title is registered under DU320351. It can be seen most conveniently on Plan 3 of the plans prepared by Geomatics UK for the Claimants.
77. In November 2009 there was some correspondence between the parties solicitors as to the erection of an "L" shaped wall by the Defendants on the eastern edge of the cart track to the south of Gate C. It was alleged by the Defendants' solicitors that the development had annexed a small piece of land (which can be seen on the plan at 543B) owned by the Defendants. The Claimants' solicitors immediately responded by asserting that the proposed wall would interfere with the right of way. There is no further correspondence about the proposed wall which was never built.
78. On 23^rd November 2009 following a land survey the Claimants' solicitors alleged that the gates erected by the Defendants were outside their registered title. On investigation the Defendants recognised that Gate A was erected on the Claimants' land. Accordingly sometime shortly before 2^nd December 2009 the Defendants moved Gate A and repositioned it at the point shown as D on plan 3. They also built a fence between points F and E. It is agreed by the experts that Gate D is 3.98 metres wide and that the fence EF and the gate itself are still on land belonging to the Claimants. At one time there was a slight disagreement as to the extent of the trespass but point E was at least 2.9 metres and Point F at least 4.25 metres too far north. Fortunately the parties were able to agree the true position of the boundary during the course of the hearing and it is not necessary for me to take the matter any further.

5.6 The water

79. Prior to the development Thornley Moor Farmhouse and Thornley Moor Farm shared a water supply. The precise route taken by the water pipes to connect Thornley Moor Farmhouse to the mains was and is unclear. The approximate position is shown on Plan 3 as a dotted green line going due west from Thornley Moor Farmhouse across field OS 8825.
80. There was a private arrangement between the Claimants and the Defendant in relation to water charges. The bill for the water to both Thornley Moor Farmhouse and Thornley Moor Farm was settled by the Claimants. A water meter was installed at Thornley Moor Farmhouse. Ms Symons supplied meter readings to Mr (Colin) Oliver and paid him in cash for the water. There appears to have been no problem with this arrangement which lasted until 2006.
81. The water supply was part of the failed negotiations that took place in 2006 and 2007. Thus in a letter dated 18^th April 2007 the Claimant's surveyor said:

It is planned to lead in new water supply pipes to the development from the Northumbria Water main across my client's retained land. The existing supply pipe along the access road ahs been in situ for a long time and is likely to be nearing the end of its useful life. We propose to install a new dedicated water supply pipe free of charge to your client's property removing liability for the existing supply pipe

82. There are further references in late 2009 to offers to permit the Defendants to connect to the water supply in later correspondence. These refer to the granting of necessary easements but (in some cases) require payment by the Defendants. In any event it is not suggested that there was ever a concluded contract.
83. HMDL and/or the Claimants duly constructed new water supply pipes. The route of the pipes can be seen from Plan 3. The route travels approximately south north to the east of DU 230238 and DU302381 (now owned by HMDL). The route then travels north west through DU104379. Although there was no evidence about this I was informed it then passes through land owned by the Claimants' parents before connecting to the main.
84. The new supply was connected to the main at the edge of Cassop village on or shortly after 14^th July 2007. It now serves all buildings other than Thornley Moor Farmhouse.
85. The Claimants made a request to Northumbrian Water to invoice the Defendants direct for water used. The Defendants objected on the basis that they would have to take responsibility for the supply pipe. Fortunately I do not have to resolve the dispute between the Defendants and Northumbrian Water.
86. Northumbrian Water were unable to trace the route of the pipe but they did carry out tests that led them to believe that there was a leak in the pipe. In particular water registered on the meter even when no water was being used by Thornley Moor Farmhouse.

5.7 Miscellaneous matters

87. A number of other miscellaneous factual matters were mentioned either in the course of the submissions or in the evidence

The public footpath

88. There is a public footpath (Public Footpath No 17, Thornley Parish) along the cart track commencing at Luke Avenue. That footpath continued past Thornley Moor Farmhouse and the farm buildings which were of course being developed by HMDL. The wall constructed by HMDL to the south of Gate C would have blocked the old route of the footpath.
89. As part of the development the Claimants and/or HMDL applied to Durham County Council for a diversion order to divert the footpath along the new road constructed by HMDL in early 2007. The Diversion Order was confirmed on 15^th May 2008 and the new route of the footpath took effect 28 days later.

Section 106 Agreement

90. In July 2008 HMDL made a further application for planning permission to construct an extension to one of the houses that formed part of the development (Unit 2). It would appear that the application was not granted until December 2009 when it was granted subject to HMDL entering into an agreement subject to section 106 of the Town and Country Planning Act 1990. That Agreement is dated 22^nd December 2009. It required HMDL to restrict all vehicular and pedestrian access to the land to be restricted to the new road. It also required HMDL to impose a binding covenant on any purchasers not to use any access to and from the property other than by that route.

The view.

91. At the view Mr Oliver demonstrated 3 vehicles negotiating or attempting to negotiate the gates at D, B and C. The first was a tractor and trailer combination. The combined length was 13.6 metres; the tractor was 2.30 metres wide and the trailer 2.44 metres wide. The combination was able to pass through Gate D and B (with difficulty) but not Gate C.
92. The second was a tractor and machio machine 5.2 metres long and 4.15 metres wide. This did not get through Gate D. Gates B and C were not attempted.
93. The third was a tractor with a Lloyd Fraser trailer. This was 9.60 metres long and 2.38 metres wide. This passed through Gates D, and C (with difficulty). It appeared to go over the grass when manoeuvring Gate C.

6 Release of the Easement

6.1 The construction point

94. Mr Walker argues that the effect of Clause 2(i) of the Transfer dated 5^th July 1999 of DU 230239 to the Claimants the Claimant thereby abandoned or released the right of way over that part of the cart track passing through Thornley Moor Farmhouse (DU 230238) granted to them only some 6 weeks earlier on 20^th May 1999.
95. I have set out Clause 2(i) earlier in this judgment but, for convenience I set it out again:

IT is hereby agreed and declared as follows:

(i) The Transferees shall not be entitled to any rights of way or easements or rights equivalent to any quasi rights or quasi easements over the remainder of the land comprised in the title [DU 228530] ("the Retained Land") save such (if any) as are contained herein;…

96. If Mr Walker is right it would mean of course that Mrs Oliver also released the easements granted to her over DU104379 in the Transfer to her of Thornley Moor Farmhouse of 20^th May 1999. This is because in the Transfer to Mrs Oliver of the land to the east of Thornley Moor Farmhouse (DU 230238) contains Clause 2(i) in identical terms to that in the transfer relied on by Mr Walker. Furthermore the two Transfers were expressly made in consideration of each other and can clearly be considered together.
97. This would have the following practical results:

1. the Claimants would have released their only vehicular access to the farm buildings to the south of Thornley Moor Farmhouse. They would have no vehicular means of getting to the animals housed there.

2. Mrs Oliver would have released her vehicular access to Thornley Moor Farmhouse because she would have released her right of way over that part of cart track starting at Luke Avenue going eastwards until it reached DU 230239. Indeed one wonders why she would expressly reserve a right of way over DU 230239 (as she does expressly in the Transfer) if she was also releasing her right to get to DU 230239 by vehicle.

3. Mrs Oliver would have released her water rights over DU104379. That would of course mean that she had no right to water through the existing pipes and certainly no right to connect to any future pipes.

98. It is perhaps wholly unsurprising that no-one believed at the time that the two Transfers had this quite devastating effect on the occupation of the two pieces of land. Thus the Claimants continued to exercise rights of access past Thornley Moor Farmhouse and Mrs Oliver, Mr Fletcher and the Defendants continued to exercise vehicular access over the northern part of cart track from Luke Avenue. Similarly they have continued to enjoy (if that is the correct word) water rights through the existing pipes in DU104379.
99. In my view it is perfectly plain that there was no intention by either the Claimants or by Mrs Oliver to abandon the rights that had been granted to them 6 weeks earlier in the Transfer of 20^th May 1999.
100. In those circumstances I would only construe clause 2(i) of the relevant Transfers as having this effect if I felt compelled to do so.
101. Mr Selwyn-Sharpe submits that I am not compelled to do so. In support of that submission he made a number of points:

1. Clause 2(i) is not a usual form of express release of an easement. He submits there would normally be a recital of the express terms of the right of way in question and an agreement between the parties to release it. Here the Defendants are seeking to construe the Transfer of 5^th July 1999 as effecting a release of a right of way reserved by the Transfer of 20^th May without expressly saying so. There is thus no clear expression of an intention to abandon the right of way over the track on the part of the Claimants in the 5^th July Transfer.

2. Clauses such as 2 (i) is common place in Transfers of part of an existing title to prevent unintended grants or reservations of rights of way or other easements /quasi-easements over the land retained which would otherwise be implied. That construction is consistent with Form 16 of the Encyclopaedia of Forms and Precedents para 12.8.2 of which provides:

The Transferee shall not be entitled to the continuance of, nor shall he by virtue of this transfer or of the Law of Property Act 1925 section 62 acquire any easement right or privilege or advantage over or in Respect of the Retained Land … save in so far as is specifically granted in this transfer.

Mr Selwyn-Sharpe recognises, of course that Clause 2(i) is expressed differently from this clause but he submits clause 2(i) is aimed at the same mischief.

3. Mr Selwyn-Sharpe referred me to the well-known guidance given by Lord Hoffmann in ICS v West Bromwich Building Soc [1998] 1 WLR 896

My Lords, I will say at once that I prefer the approach of the learned judge. But I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 3 All ER 237 at 240-242, [1971] 1 WLR 1381 at 1384-1386 and Reardon Smith Line Ltd v Hansen-Tangen, Hansen-Tangen v Sanko Steamship Co [1976] 3 All ER 570, [1976] 1 WLR 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of 'legal' interpretation has been discarded. The principles may be summarised as follows.

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352, [1997] 2 WLR 945.

(5) The 'rule' that words should be given their 'natural and ordinary meaning' reflects the commonsense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Cia Naviera SA v Salen Rederierna AB, The Antaios [1984] 3 All ER 229 at 233, [1985] AC 191 at 201:

'... if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.'

102. Mr Walker, on the other hand, seeks to persuade me that the Claimants have indeed released their right of way over Thornley Moor Farmhouse. He submits that the words of clause 2(i) are clear. There is an express declaration and agreement that there are no rights of way over their mother's retained land. He makes the point that the reference to quasi rights and quasi easements is a reference to rights to be acquired under section 62 of the Law of Property Act 1925 or the rule in Wheeldon v Burrows. He submits that the reference to rights of way can only be a reference to the right of way over cart track. Thus he submits the Claimants must be taken to have released the right of way. Otherwise the reference to rights of way is otiose.
103. I unhesitatingly prefer the submissions of Mr Selwyn-Sharpe on this issue. For reasons I have given the parties plainly did not intend to abandon the easements granted to them in the 20^th May 1999 Transfers. In those circumstances I am not required to interpret clause 2(i) in such a way as to attribute to the Claimants and Mrs Oliver that intention. As Mr Selwyn-Sharpe points out there is no express release of the easements. It is referred to as a Declaration or Agreement.
104. To my mind (and without any undue straining of the language of the Transfer) it is possible to interpret Clause 2(i) so as to prevent the Claimants from acquiring any new rights of way easements, quasi-easements etc in favour of DU 230239 over Mrs Oliver's retained land whether by section 62, Wheeldon v Burrows or other form of implied grant. In that way it would not affect the existing rights acquired in the 20^th May 1999 Transfers. It is also in accordance with the purpose of the clause.

6.2 The Harris v Flower point

105. Mr Walker had an alternative argument based on the decision in Harris v Flower (1904) 74 LJ Ch 127. In Gale on Easements the rule is summarised thus:

If a right of way be granted for the enjoyment of close A, the grantee, because he owns or acquires close B cannot use the way in substance for passing over close A. to close B.

106. I have to confess that I did not understand how this rule applied to this case. In his closing submissions Mr Walker explained it in this way:

1. DU 230239 (the northern part of Mrs Oliver's land) was not part of the land originally sold to the Claimants. It did not have the benefit of a right of way over the southern part of Mrs Oliver's land.

2. In those circumstances the Claimants cannot pass over DU 230239 in order to gain access to the remainder of the dominant tenement.

107. This is an ingenious argument but I cannot accept it. It seems to me to involve an impermissible extension to the rule.
108. Where, as here the objective intention of the parties is clear I do not think the rule in Harris v Flower can be prayed in aid by the parties.

7 Estoppel

109. In the light of my clear view on the construction issue it is unnecessary to lengthen this judgment by a detailed analysis of estoppel by convention. In his closing submissions Mr Selwyn-Sharpe relies on the following matters as establishing an estoppel by convention:

the Claimants acted in reliance on the shared assumption in February 2007 by building the new road to the west to access the new Haswell Moor development and diverting the public right of way from the track to the new road , in reliance on the fact that neither the Defendants nor their predecessors in title the Fletchers had ever claimed that the right of way over the track had been released or extinguished and that therefore they could continue to use it for at the very least agricultural traffic See paragraphs 28 and 31]

The Claimants and Defendants entered into negotiations "subject to contract" relating to access to the Haswell Moor Development which involved the possibility of the Claimants releasing the right of way in return for granting an alternative access off the new road to the Defendants : ( see [p 304-307] for draft "Heads of Terms"). However nothing was ever concluded leaving the Claimants to believe (actively encouraged by the Defendants in correspondence) that their right of way over the track was not being challenged on the basis of a release by the 5^th July Transfer. Further the conditions of the planning consent for the development dated 6^th June 2006 [p681-p685] did not require traffic to the development (let alone agricultural traffic) to use the new road [see paragraph 32].

110. There is to my mind no doubt that both the Claimants and the Defendants assumed that the rights of way granted in 1999 subsisted. As Mr Selwyn-Sharpe points out the first suggestion that there was no right of way occurred in a letter dated 12^th December 2008. Up to that time both parties assumed that:
111. both the Claimants and the Defendants were entitled to a right of way over that part of the cart track in each other's ownership
112. that the Defendants were entitled to a right to connect to water pipes under the Claimants' land.
111. Not only were those rights assumed they were also exercised by both parties. However I have considerable difficulty in following Mr Selwyn-Sharpe's argument on reliance. The construction of the access road was not built in reliance on the existence of the right of way. It was built to provide an access for the development. Similarly the diversion of the public right of way did not depend on the existence of the private right of way. Whilst it is true there were negotiations over the release of the right of way the negotiations were unsuccessful. The fact that the Defendants entered into these unsuccessful negotiations does not to my mind preclude them from asserting that the right of way had in fact been released.
112. The law relating to estoppel by convention is not straightforward. The leading authority is the familiar passage in the judgment of Lord Denning, Master of the Rolls, in Amalgamated Investment and Property Co. Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 85, 122C-D:

"When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands."

113. I have great difficulty in seeing why the matters relied on by Mr Selwyn-Sharpe make it "unjust or unfair" for the Defendants to assert that the right of way has been released.
114. The matter does not end there. It seems to me to be well arguable that the conduct of the parties and their predecessors in title over the period between 1999 and 2008 in exercising the rights on the assumption that they had not been released would give rise to such an estoppel. That is not the way the case has been argued or pleaded and it would not be right to express a concluded view on it.
115. For reasons already given it is not necessary to express a concluded view on the question of estoppel.

8 Extent of the easement

116. There is very little dispute between Counsel as to the relevant law. It is common ground that the nature and extent of the right of way reserved by Mr and Mrs Walker under Paragraph (a) of the Second Schedule of the 20^th May 1999 Conveyance to Mrs Oliver must be ascertained from the words of the reservation read in the light of the surrounding circumstances. It must construed in the context of the deed as a whole^[1].
117. As Morritt LJ (as he then was) said in Mills v Blackwell [1999] EWCA 1852:

Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties' intention was as expressed in the deed.

The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances. Thus, in Todrick v Western National Omnibus Co Ltd [1993] 1 Ch 190, St Edmondsbury and Ipswich Diocesan Board of Finance v Clark (No 2) and White v Richards [1993] 68 P&CR 105, the physical circumstances did so operate. But, by contrast, in Bulstrode v Lambert [1953] 1 WLR 1064, Keefe v Amor [1965] 1 QB 234 and Charles v Beach [1993] EGCS 124 they did not.

118. It will be recalled that the reservation is in the following terms:

to go pass and repass with or without motor vehicles and agricultural machinery or on foot only (as appropriate) over and along the accessway over the Property shown coloured yellow on the said plan.

119. A number of points can be made about the reservation. First the reservation is in wide terms in the sense that it is unrestricted in time; it contains no restrictions on the motor or agricultural vehicles that can exercise the right. Second it is granted over and along the accessway over the property. To my mind the accessway can only refer to the cart track. I have set out in section 4 to this judgment the evidence in relation to the physical characteristics of the cart track. I accept the evidence of Mr Bainbridge as to the width of the track and I also accept his conclusion that the width and the route of the track in 1999 coincides with its width and route to-day.
120. The cases where the physical characteristics of the land have not restricted the width of the right of way have in general involved special features. Thus in Bulstrode v Lambert there was a right to pass over the whole of a yard. Upjohn J declined to limit the extent of the easement by reference to the restriction at the point of entry. Similarly in Keefe v Amor the Court of Appeal declined to limit the extent of the right of way by reference to the bottleneck at its entrance. There were special features in the case. The grant was over the whole strip – not merely a 4ft 6in passage down it. In Charles v Beach the Court of Appeal held the existence of an intervening flowerbed was not sufficiently permanent or substantial to qualify the express term of the grant.
121. To my mind this is not a case where there are special features. The right of way is reserved over the accessway. In the light of the plan this can only refer to the cart track. In my view therefore the physical characteristics of the cart track are relevant to the construction. The right of way is over the cart track and vehicles that cannot physical "go pass and repass" on the cart track are excluded from using it. It is not a case where there is a bottleneck or an obstruction (such as a flowerbed) to the full width of the cart track. The cart track is unobstructed throughout its length.
122. I am fortified in this conclusion by the following further passage from the judgment of Morritt LJ in Mills v Blackwell:

It is, of course, the case, as submitted for the Blackwells, that the terms of the reservation are very wide if taken literally and full effect is given to the words "respective" and "respectively". But to my mind their very width indicates the need to construe them by reference to the physical characteristics of the land at the time of the reservation. The yellow strip is physically not capable of accommodating modern construction or agricultural vehicles. Thus, "vehicles of every description" must be limited by reference to those which can physically "go pass or repass along" the strip. To the same extent the right to use the yellow strip for "all purposes" must be limited to those purposes for which it is capable of being used.

123. If, as I think, the right is only over the cart track it means that the Claimants are not entitled to go over the grass verge when exercising it. It equally means that the tractor and machio machine 4.15 meters wide are not entitled to exercise the right of way as the width is greater than the width of the cart track.
124. In his closing submissions Mr Selwyn-Sharpe sought to rely on some observations by Megarry J in VT Engineering v Richard Barland (1968) 19 P & C R 890 when faced with a claim for a strip either side of an 8 foot right of way as "swing space". In rejecting the argument Megarry J said this at pp 894 - 895:

This is a far-reaching contention. It seems to me that the alleged right ought to be analysed into the two sub-heads of lateral swing space and vertical swing space, the latter embracing only what is vertically above any part of the way, and the former extending horizontally beyond the vertical lines bounding the way. Let me take lateral swing space first, and assume as an example the grant of a right of way over a roadway eight feet wide. Let me further assume that there is no wall or hedge on either side. If there is an implied right of lateral swing space, the servient owner can never erect any wall or building abutting on the roadway lest it interfere with the dominant owner's rights. The dominant owner is, on this view, entitled not only to ingress and egress over the eight feet road, and to occupy it with stationary vehicles being loaded or unloaded, but also to have a strip on either side of the roadway, of indefinite dimensions which depend on the size and manoeuvrability of the goods which he or some successor in title of his may later choose to receive on the dominant tenement or despatch from it, kept free from any obstruction which might hinder the loading or unloading.

I can well see that on the grant of a right of way the grantor must accept that over the way granted he cannot thereafter exercise rights which materially interfere with the enjoyment of the easement. It may perhaps be that he must allow some degree of tolerance for wide loads, so that he cannot fence or build up to the very edge of the way granted, but must leave a freeboard of a foot or two, particularly if there are bends in the way. But that is very different from saying that the grant of a way may in effect sterilise a strip of land of indefinite depth on each side of the way, depending on the loads and methods of loading from time to time adopted. This seems to me to go far beyond any necessary or reasonable expectation or implication; and quite apart from the absence of authority on the point, it seems to me that such a right would or might subject the grantor to a quite unjustifiable burden. I accordingly reject such a claim.

125. These observations have to be contrasted with observations made by Millett LJ in the course of his judgment in Minor v Groves (2000) 80 P & C R 136 at 143 where he said:

Further, I am unable to follow the judge when he concluded that the erection of a porch right alongside the right way was a severe restriction of the use of the way. I know of no principle of law which precludes the owner of land from building right up to the boundary of his land. If this land abuts on a right of way, building right up to the edge of his land does not interfere with the right of way. It is of course true that if he leaves the land unbuilt on, it may be that vehicles properly using the right of way may from time to time be able to deviate onto the adjoining land and temporarily trespass upon the land by driving over it, or commit a technical trespass by permitting part of the superstructure of the vehicles to intrude into the airspace over the adjoining land. But they have no right to do so. In the case of dispute, in my judgment, the dominant owner has no cause for complaint if he is restricted in his user of the way to the exact width of the way. I observe that in Todrick's case, Farwell J. and this court both concluded that, even though the way extended for the full width of a roadway, this did not permit the passage of vehicles of such a size that they had to squeeze along, leaving only one and a half inches on either side. It follows a fortiori that Mr Minor has no right to enjoy access to No. 11 by vehicles of such a size that they have extreme difficulty in negotiating the way and cannot do so without intruding onto land on one side of the way or into the airspace above it.

126. I am, of course bound to follow the observations of Millett LJ in the Court of Appeal in preference to the tentative dictum of Megarry J in the case cited by Mr Selwyn-Sharpe.
127. In those circumstances I cannot accept the submissions of Mr Selwyn-Sharpe in paragraphs 37 and 38 of his closing submissions that the extent of the way taking into account "swing space" should be measured at 4.57 metres that is to say the width of the Claimants' gate at A and C and narrowing to 4.5 metes along the remainder of the way. Equally I cannot accept his submission that it should be construed so as to permit any agricultural vehicle to use it, however wide. To my mind that ignores the words "over and along the accessway".
128. In my view therefore the right of way is limited to the cart track and the Claimants are not entitled to any tolerance for wide loads. There is no "swing space".

9 Interference by the Defendants

9.1 Gates

129. A gate is not necessarily an interference with a right of way. To be actionable an interference must be substantial. Whether a gate is or is not an interference is a matter of fact. The matter was neatly summarised by Warner J in National Trust v White [1987] 1WLR 907, 913 cited with approval by Morritt LJ in another passage of Mills v Blackburn:

"Each was concerned [`each' being the cases Cooke v Ingram and Pettey v Parsons] with the resolution, in particular circumstances, of the inevitable conflict between the dominant owner's right of access to the way and the servient owner's right to fence his land. No hard and fast rule emerges from those cases, let alone any rule that could be applied mechanically in the circumstances of the present case. The guidance that those cases do afford is, I think, this, that whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would, in that case, constitute an unreasonable demand depends, of course, in the first instance on the proper construction of the grant and then on the factual circumstances."

Gate B

130. It will be recalled that Gate B was installed on 30^th September 2007. It is wider than the cart track. Neither of the gate posts is on the track. Ms Symons justified its existence as her desire to prevent her livestock getting into the development. Even though there were two other gates (at A and C), these were under the control of the Claimants and not always closed. There are photographs showing Gate A locked open.
131. In my view it was not unreasonable for Ms Symons to install a gate in the position of Gate B. However, as the photograph at 123 shows, the metal pole to which the gate attaches when open is on the track. This means that when the gate is open the Claimants do not have the full use of the track. In the light of the left hand bend approaching Gate B from the north any reduction in the width of the track is likely to interfere with the Claimants' user. Therefore I conclude that the combination of gate B and the metal post did interfere materially with the Claimants enjoyment of the right. If, however, the metal post were moved so that the gate could open in such a way as not to be on the track there would in my view be no actionable interference.
132. There was also a further (more serious) interference when Ms Symons locked Gate B for one day in July 2008. However this interference did not last for long and was resolved by self help by Mr Oliver.
133. There was a further interference with the easement on 2^nd December 2008 when Ms Symons physically attempted to stop Mr Oliver passing through Gate B. That of course was the incident which gave rise to the assault caution.

Gate C

134. It will be recalled that the Claimants erected a Gate at point C in 1999 when Mrs Oliver sold to Mr Fletcher . Ms Symons erected a gate just to the north of the Claimants gate in November 2008 just to the North of the Claimants' gate. It was her evidence (which I accept) that the Claimants' gate was not always kept shut. There was a dispute (which I do not need to resolve) as to whether from time to time the Claimants gate was removed. In any event Ms Symons's gate C was at the southern end of her boundary and I do not think it unreasonable for her to have a gate at this point.
135. The gate posts are in the grass and the width between them is 3.70 metres. They have been bent by frequent vehicles attempting to get through and turning sharp right.
136. In my view Ms Symons was entitled to fence her land and Gate C in its present position is not an unlawful interference with the Claimants enjoyment of the easement.
137. There was an interference with the right of way between 6^th January 2009 and 17^th January 2009 when Ms Symons padlocked Gate C. I however accept her evidence that at the same time the Claimants had deposited stone outside Gate C so that there was in fact very little inconvenience to the Claimants.

Gate A

138. In principle I do not think it was unreasonable for Ms Symons to place a gate at the northern boundary of her land. In fact of course the gate placed in November 2008 was far to the north of her boundary and clearly constituted a trespass. Similarly, as is now agreed the Gate at point D is also on the Claimants' land. It follows that the trespass is continuing.
139. There have been no problems in relation to the gate at either point D or A. In those circumstances I am satisfied that if Gate D were moved to a position within Ms Symons's land close to her northern boundary with the gate posts, as now on the grass verge there would be no actionable interference with the right of way.
140. I have so far considered each of the gates erected by Ms Symons on an individual basis. Mr Selwyn-Sharpe also submitted that taken collectively it was a material interference with the Claimants enjoyment of the easement for there to be 3 gates over this relatively short piece of track. I, of course have had the benefit of a view when I saw the land and the fields. In my view it is not unreasonable for there to be 3 gates. All serve a useful purpose. Gates D and C are at the northern and southern boundaries of the land. Gate B enables Ms Symons to separate the northern paddock from her house. If she puts sheep in that paddock she does not want them wandering past her house. In my view the existence of 3 gates is not a material interference with the Claimants' rights.

9.2 The kerbstones

141. It is clear from the photographs the video clips and the evidence of Ms Symons (which I accept) that the kerbstones were all placed on the grass verge and thus not on the right of way. In the light of the observations of Millett LJ cited above the Claimants would not normally be entitled to move the kerbstones and would be committing an act of trespass if they did.
142. However for reasons I have given when Gate B is open there is an actionable interference with the Claimants' enjoyment of the right of way. In those circumstances the Claimants would be entitled to move such of the kerb stones that reasonably prevented access through Gate B. They would not, however, be able to move any kerbstones that did not interfere with this access.

10 Excessive User by the Claimants

143. There have in my view been numerous acts of excessive user and therefore trespass by the Claimants in purported exercise of the right of way. Some of these are shown on the video clips and the photographs. I do not propose to set them all out. In summary:

1. There have been numerous acts of trespass and excessive user at Gate C. It may be that this is caused or contributed to by the wall erected by the Claimants or HMDL blocking the original route of the track. This has made it necessary for a sharp right turn to be made for anyone passing south through Gate C. It does not however justify the Claimants going on to the grass verge to make the right turn, or in damaging the gate posts. It is perfectly clear from the angle of the gate posts and from the condition of the grass verge that acts of trespass have occurred on numerous occasions around Gate C. It was also apparent at the attempts to manoeuvre Gate C at the view.

2. The videos demonstrated a number of acts of trespass. These include the incidents when Mr Oliver collided with Gate B before opening it, an incident where Mr Oliver simply drove on the grass to avoid a vehicle exercising the right of way in the other direction, the incident when he opened Gate B by pushing it with his pick up truck. I would also include the incident when Gate B was damaged. It may be that this incident is better treated as an act of negligence because I do not think that the damage was deliberate.

3. There have been many occasions when Mr Oliver has not closed the gates after passing through them. In so far as this is not clear from the videos I accept the evidence of Ms Symons.

4. For reasons I have given I do not think that the moving of the kerbstones by Mr Oliver was an act of trespass. If however the metal post is moved to a position where Gate B can be fully opened without interfering with the right of way it will become one.

5. Equally I was not satisfied on the evidence that the use of the right of way by the Claimants or their contractors damaged the surface of the right of way. As Ms Symons accepted in evidence no money had been spent on it in repair and there was no direct evidence of such damage.

11 The assault

144. I have summarised the incident earlier in this judgment. I have viewed the video of the incident on more than one occasion. As I have set out above the incident was provoked by Ms Symons when she attempted to prevent Mr Oliver from exercising his right of way. Her actions plainly amounted to an interference with his enjoyment of the easement. I am however persuaded that Mr Oliver's actions went beyond what was lawfully permitted. He acknowledged this by accepting the caution. I consider however that the provocation and conduct of Ms Symons very substantially contributed to the assault.

12 Water rights

145. There is a real difficulty in relation to the claim for water rights. Neither HMDL nor the Claimants' parents are a party to these proceedings. In those circumstances no declaration of rights can be made. As the Claimants are directors of HMDL I propose, however, to express provisional views on the issue in the hope that further litigation can be avoided:
146. In my provisional view:

1. the decision in Martin v Childs [2002] EWCA Civ 283 is of little or no assistance in the construction of the clause in this Transfer. The terms of the clause were different; the physical layout at the top of Weardale was different from those in Cassop. That case involved the meaning of the word "install" in the subsidiary part of a clause dealing with the right to run water trough pipes on the retained land. In those circumstances the Court of Appeal upheld my decision that the right did not include a right to insert over an entirely new route a new conduit to serve the house.

2. In this case the right is quite different from the right in the above case. It will be recalled it is:

"the free and uninterrupted right of connection to and passage of water … into and through the …..water pipes ….(hereinafter called "the Service Installations") now constructed or to be constructed under the Retained Land with full rights to enter upon so much thereof as shall be reasonably required for the purpose at all reasonable times and upon giving reasonable notice… for the purpose of inspecting repairing enlarging relaying cleansing renewing removing maintaining and replacing such Service Installations

147. Thus the primary right includes a right of connection into water pipes now constructed or to be constructed under the retained land. As Mr Walker points out the pipes constructed by HMDL are pipes on the retained land. On the face of it the Defendants are entitled to connect to those pipes in accordance with the clause.

3. I say nothing as to whether there is any substance in the suggestion, canvassed in evidence, that the Claimants parents would have the right to prevent the connection. They are not parties and I have not seen any relevant documents. I have equally had no relevant submissions whether as a matter of law they could prevent the Defendants from connecting to the pipes.

13 Damages

148. It will be apparent from the foregoing that the Claimants have valid claims for damages against the Defendants in respect of the interference with the easements and trespass outlined above. It will also be clear that the Defendants have claims for damages in respect of the excessive user and the damage to the gate. There may also be a small claim in respect of the assault, but, as I have noted this was an assault provoked by Ms Symons's interference with the easement.
149. I propose to take a broad brush approach to the question of damages. In my view the damages on both sides cancel each other out. I propose to make no order in favour of either party.

14 Injunction

150. I hope that when the parties have had the opportunity of considering this judgment they will be able to agree on the way forward without the necessity of injunctions. However in the event that this is not possible I agree that this is a suitable case for injunctions against both the Claimants and the Defendants coupled with appropriate declarations as to the rights of the parties. In so far as the Defendants have not sought an injunction in the pleadings I would be minded to permit them to amend the prayer to claim appropriate relief.

Note 1   See the judgments of Sir George Jessel MR in Cannon v Villars (1878) 8 Ch D 415, 420 and of Sir John Pennycuick in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1975] 1 WLR 468    [Back]