Land – Right of way – Interference – Claimants seeking injunction and damages alleging interference by defendants with their right of way over defendants’ land – Whether defendants interfering with claimants’ exercise of right of way – Whether claimants misconstruing deed of release effecting relocation of roadway – Claim allowed in part
The claimants were the owners and occupiers of the freehold land and premises at and known as The Gro, Llansantffraid, Powys, a Georgian property situated in about three acres of land. Within the grounds were also barns, which the claimants had converted into holiday accommodation for up to 12 people. The claimants had lived there since about January 1998, initially as tenants, and they purchased it in March 1999. The property was situated about 400 yards from the public highway. Access from the highway was along a roadway that ran over freehold land at Bryn Tanat Hall, Llansantffraid, a hotel in 15 acres of grounds, which also contained holiday lodges.
Bryn Tanat was owned by the defendants, who all carried on business in partnership at the hotel. The claimants alleged that since 2007, when they opposed the defendants’ application for planning permission to develop land at Bryn Tanat, the defendants had engaged in a persistent and systematic course of conduct that had been intended to and did substantially interfere with the exercise of their right of way. They claimed an injunction and damages.
The defendants denied that they had committed any substantial interference with the exercise of the right of way and contended that the claimants’ case rested on a misconstruction of a deed of release which formally effected the relocation of the roadway in 1993 and amounted to an attempt to gain rights over a larger area of land than was referred to in it.
Held: The claim was allowed in part.
(1) When interpreting a written contract, the court was concerned to identify the intentions of the parties by reference to what a reasonable person with all the background knowledge available to the parties would have understood them to be using the language in the contract. It focused on the meaning of the words in their documentary, factual and commercial context to be assessed in the light of the natural and ordinary meaning of the clause, any other relevant provisions of the contract, the overall purpose of the clause and the contract, the facts and circumstances known or assumed by the parties at the time the document was executed and commercial common sense, but disregarding subjective evidence of any party’s intentions: Dairy Containers Ltd v Tasman Orient CV [2005] 1 WLR 215 and ABC Electrification Ltd v Network Rail Infrastructure Ltd [2020] EWCA Civ 1645 applied.
In the present case, the intention of the parties to the deed of release was to be ascertained by reference to the deed as a whole. That included the plans referred to in the deed. In the context of conveyances of land or other deeds that granted or reserved rights over land, where the extent of the way over which rights of access were granted was unclear from the conveyance, conduct subsequent to the deed was in principle admissible as an aid to construction, provided that it was of probative value in ascertaining the intentions of the parties to the deed: Ali v Lane [2006] EWCA Civ 1532; [2007] 1 EGLR 71 applied.
(2) The dominant owner was entitled to enter the servient land to effect repairs or alter the surface of the servient land to accommodate the right granted. Once the way existed, the servient owner was under no obligation to maintain or repair it; similarly, the dominant owner had no obligation to maintain or repair the roadway. The servient owner (who owned the land over which the way passed) could maintain and repair the way, if he chose. The dominant owner (in whose interest it was that the way be kept in good repair) was entitled to maintain and repair the roadway and, if he wanted it to be kept in repair, had to bear the cost himself. He had a right to enter the servient owner’s land only to do necessary work in a reasonable manner: Gale on the Law of Easements, 21st edition.
Therefore, it appeared that the claimants, though under no obligation to maintain the roadway, were entitled to carry out upon the access roadway necessary works of maintenance and repair, for the purpose of putting or keeping the roadway in a satisfactory condition for their permitted user of it, provided that they carried out the works in a reasonable manner.
(3) The right of way granted was exercisable at all times, on foot and with or without animals and motor vehicles, and for all purposes connected with the use and enjoyment of the dominant land. The defendants’ argument would mean that, if the roadway were maintained to a standard that was suitable for agricultural use but not for any other kind of use, the dominant owners would be unable either to complain about disrepair or to take remedial action themselves. Thus, the breadth of the grant would be illusory. Moreover, the positive covenant to maintain the way in good repair and condition did not run with the land and did not bind successors in title.
The reference to “a roadway suitable for agricultural access only” had a different function. It simply specified the extent of the dominant owner’s obligation to contribute to maintenance costs. That made sense because the roadway was to be used as a common access by the dominant and the servient owners; the dominant owners might well be content with a more basic form of track, while the servient owner might wish to upgrade the road to a higher standard. The servient owner was prevented from imposing a charge on the dominant owner in respect of works that the latter did not want.
(4) In this case, it would be appropriate to grant some injunctions despite the delay in bringing the claim. The court accepted the claimants’ evidence that they sought to avoid litigation because of the expense and uncertainty involved and only brought proceedings when they felt that enough was enough. On the other hand, the delay could not be ignored and the injunctions had to be formulated with sufficient precision to enable the defendants and everyone else to know what was required or prohibited.
An award of general damages for inconvenience would be made in the sum of £1,000 plus interest.
Gwydion Hughes (instructed by Irwin Mitchell LLP) appeared for the claimants; David Hoffman (instructed by Direct Access) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read a transcript of Barre and others v Martin and others
