In 1995, the first defendant purchased land that had until then formed part of a farm. The transfer to him contained a right of way over the farm “in connection with the present and any future agricultural use of the property”. The claimant subsequently acquired the farm.
The first defendant proposed to let his property to the second to fourth defendants for the stabling of their horses. Stables had stood on the land at the time of his purchase, and these had, immediately prior to that purchase, been in use for the stabling of horses. However, the claimant objected to the use of the right of way for equestrian purposes. He took the view that the right did not extend to activities connected with recreational riding, but concerned only those that related to the traditional functions of horses in agriculture, such as ploughing and drawing farm vehicles. He brought proceedings for a declaration that the right of way did not permit access for such purposes, and an injunction restraining such access.
The defendants cited various cases on the interpretation of statutory references to agriculture. They also argued that, in any event: (i) the wording of the right of way should be read as indicating a convention between the parties at the time of the purchase that the actual, then current use of the land for keeping horses was an agricultural use; or, alternatively (ii) the right of way should be read as if it were “for all purposes in connection with the present use and any future agricultural use”, so that although any new uses would have to be agricultural, uses existing at the time of sale would be permitted, whether or not they were agricultural.
Held: The claim was dismissed.
The relevant statutory provisions contained a well-established distinction between the grazing of horses, which was an agricultural activity, and the keeping of horses, consisting of stabling and looking after them, which was not. It was only where the predominant activity was grazing and other activities were ancillary that the entirety could be treated as agricultural. Where, as in the instant case, horses were stabled on the land and were permitted to graze while there, the predominant activity was the keeping of horses: Sykes v Secretary of State for the Environment [1980] 1 EGLR 37; (1980) 257 EG 821 applied. However, the effect of the words used in the right of way was that the parties, by convention between themselves and regardless of what the position might otherwise have been, treated the then existing use of the land as an agricultural use. Accordingly, the right of way permitted a use of the way by the first defendant and his successors for all purposes in connection with the stabling, keeping and grazing of horses and any future agricultural use.
James Hanham (instructed by Hextalls) appeared for the claimant; Bruce Monnington (instructed by Copleys, of St Ives) appeared for the defendants.
Sally Dobson, barrister
