Bee and another v Thompson

Right of way – User – Reasonable use – Appellant having right of way over respondents’ land – Appellant obtaining permission to erect houses – Whether right of way limited to agricultural use – Whether proposed access to houses amounting to excessive use and actionable nuisance – Appeal allowed in part – Cross-appeal dismissed.The respondents owned a property that fronted the south side of a main village street with a garden at the back. A hardcore track ran between the eastern side of the property and a neighbouring house, passing through a gate and crossing the respondents’ back garden to their double garage, which formed part of an extension to the other side of their property. The track provided access to and from an acre of back land (the garth) that was separated by a gate from the garden at the rear of the respondents’ property. The garth was fallow land that had been used only for occasional grazing and for storage in dilapidated buildings.The respondents’ grandmother (T) had inherited the respondents’ house and the garth from her husband. She left the house to the first respondent when she died in 1975, “subject… to a right of way as existing at the date of my death to the garth”: clause 4 of her will. By clause 8 of her will she left the garth to her son together with the right of way. T’s executors made an assent of P the house to the respondents subject to “all rights of way and easements affecting the same”. They also made an assent of the garth to T’s son “together with all rights of way and easements affecting the same”; he later transferred the garth to the appellant by deed of gift. The appellant, as the registered proprietor of the garth, had obtained planning permission to build three houses. The respondents accepted that there was a right of way across the track to and from the garth, but sought a declaration that it was a way of necessity for agricultural purposes only. The judge granted the declaration sought and granted an injunction prohibiting its use for any other purpose. He concluded that: (i) the two assents were part of one transaction to give effect to the dispositions in the will and that the right of way was not one of necessity for agricultural purposes; (ii) clause 8 of the will was restricted by clause 4, the effect of which was to restrict the right of way to agricultural purposes; but (iii) even if access was permissible for other purposes, it would be a case of excessive user, exceeding what was reasonably tolerable and amounting to actionable nuisance. The appellant appealed against conclusions (ii) and (iii). The respondents appealed against conclusion (i).Held: The appeal was allowed in part; the cross-appeal was dismissed.(1) Since T had gifted the two properties under her will and had identified them and expressly mentioned the right of way, the two assents were the appropriate conveyancing mechanism by which the executors gave effect to the terms of the will. Although the vesting of the legal estate in the properties was by force of the assents, it was legitimate in order to ascertain the legal position on the right of way, to read and construe the assents together with the will, all being part and parcel of the same transaction. Effect could thereby be given to T’s expressed intention in her will and the single transaction approach was warranted by both statute (section 36(2) of the Administration of Estates Act 1925) and common law: Phillips v Low (1892) 1 Ch 47 considered. (2) The judge was wrong to limit the right of way to agricultural purposes because his construction of the relevant provisions of the will failed to give full force to the powerful generality of the expression in clause 8 of “at all times and for all purposes”. They were plain words that had to be taken to mean what they said unless the clause, read as a whole, clearly limited “all purposes” to “agricultural purposes”, which was not the case: McKay Securities plc v Surrey County Council [1998] EGCS 180 applied. (3) However, the judge was entitled to conclude that the proposed user would be excessive. It could not be justified simply by reference to “all purposes”, which did not authorise use to the point of an unreasonable level of interference with the rights of the servient owners to their property and to use the way in common with the occupiers of the dominant tenement: Jelbert v Davies [1968] 1 WLR 589 followed.Accordingly, a declaration would be substituted for that of the judge to the effect that the appellant’s right of way to the garth did not permit user for the three proposed residences. Further, the wording of the injunction would be varied to the effect that the appellant was prohibited from using the right of way for the purposes of access to and from those residences.James Thom QC and Richard Selwyn Sharpe (instructed by Hodgson & Angus) appeared for the appellant, Bruce Walker (instructed by Close Thornton) appeared for the respondents.Eileen O’Grady, barrister