Banks and another v Blount

Easement – Right of way – Significant interference – Appellant appealing against finding by county court of substantial interference with respondents’ right of way and grant of mandatory injunctions – Whether judge erring in finding as to width of right of way – Whether judge applying correct test of substantial interference – Whether award of damages illogical – Whether injunctions wholly excessive and oppressive – Appeal dismissed The respondents owned the yard at Bishops Wood Lane, Crossway Green, Stourport-on-Severn, consisting of buildings and land. Included in their property was a right of way from the main road across the appellant’s land to the yard, granted in 1992. The appellant owned a nursery and land which was subject to the respondents’ right of way. An issue arose whether the whole of the road/track and the grass verges and the tree-lined sides from fence to fence either side of the service road was covered by the right of way or just a smaller, narrower part consisting of the track or roadway used by vehicles. In February 2020, the respondents issued proceedings claiming various declarations and injunctions. The county court judge found that the appellant had substantially interfered with the respondents’ right of way in that he had failed to maintain the trees and bushes adjoining the right of way, failed to maintain the road surface, which caused the respondents to repair the surface themselves, and installed a moveable fence with concrete footings across the chicane leaving a gap so small that it obstructed vehicular access to the yard. The judge awarded the respondents £2,000 in damages, and granted mandatory injunctions for 10 years preventing the appellant from obstructing the right of way and telephone services running over it to the yard and requiring him to maintain the adjoining trees. The appellant appealed contending that: (i) the judge erred in his findings as to the width of the car park; (ii) the judge erred in finding substantial interference with right of way; (iii) the award of damages for substantial interference was illogical; and (iv) the injunctions were wholly excessive and oppressive. Held: The appeal was dismissed. (1) Pursuant to CPR part 52, the court could overturn decisions which were wrong or procedurally or otherwise unjust. This was not a rehearing. The Practice Direction to CPR 52 directed that “only” the relevant documents required for the appeal were to be put in the appeal bundle. The appeal bundle had to be lodged and contain all relevant documents relied upon. Here, the appellant served an appeal bundle of 508 pages. It included transcripts of some of the evidence. It did not include the trial bundle.  By Practice Direction 52B, para 6.6 late documents should be added into the appeal bundle at the latest by seven days before the appeal hearing. In contravention of the practice direction the appellant tried to file the whole trial bundle but did not add it to the appeal bundle.  (2) When considering findings of fact on the evidence which the judge heard, the powers of the appeal court were limited to overturning decisions made where there was no evidence to support them or which no reasonable judge would make: Perry v Raleys [2019] UKSC 5; [2020] AC 352 applied. None of those grounds were made out in the present case. The judge, in a well-reasoned judgment had set out the law on rights of way and no criticism was made of his summary of the law and rulings therein. He ruled that verges might be included in a right of way if the factual matrix at the time of the grant so established but he found as a fact that there was no such evidence before him. Further, the judge had dictated the order relating to the width of the right of way and the appellant had specifically asked for the word “verges” to be included. The judge had been entitled to conclude that the beaten track caused by tyres of HGVs and other vehicles before and at the date of grant in 1992 was the evidential limit of the right of way. There was plentiful evidence to support the judge’s finding that there was a substantial interference with the respondents’ right to services; and that the appellant had not cut back the trees between 2010 and 2019. The judge was entitled to prefer the evidence of the respondents. The appeal was totally without merit and would be dismissed: Pettey v Parsons [1914] 2 Ch 653 and Johnstone v Holdway [1963] 1 QB 601 considered. (3) The judge had focused on the correct test in determining whether there had been substantial interference with the right of way which was a question of fact in each case. The test of an actionable interference was not whether what the grantee was left with was reasonable, but whether his insistence on being able to continue the use of the whole of what was contracted for was reasonable. It was not open to the grantor to deprive the grantee of his preferred modus operandi and then argue that someone else would prefer to do things differently, unless the grantee’s preference was unreasonable or perverse. If the grantee had contracted for the relative luxury of an ample right, he was not to be deprived of that right in the absence of an explicit reservation merely because it was a relative luxury and the reduced, non-ample right would be all that was reasonably required: Emmett v Sisson [2014] EWCA Civ 64; [2014] PLSCS 41 applied. The argument that the judge did not make a genuine attempt to assess damages for substantial interference was totally without merit. (4) The appellant had failed to show that the injunctions granted were wholly excessive and oppressive. The judge found that the appellant was a long-term nuisance and obstructer of the respondents’ right of way. He was unrepentant at trial and his evidence was rejected as lacking credibility; and he adopted the same approach on appeal. A 10-year injunction in the context of his long history of unneighbourly behaviour was justifiable. Had the appellant admitted his default and promised to do better at the hearing the term might have been shorter. Overall, the appeal would be dismissed on all grounds. Pursuant to CPR 52.20(5) and (6) the court had given consideration to making a civil restraint order against the appellant but had chosen not to do so. However, this was a “yellow card warning”. Adam Boyle (instructed by Harrison Clark Rickerbys Solicitors) appeared for the claimants; John Stenhouse (instructed by Direct Access) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of Banks and another v Blount