Hambling and another v Wakerly and another

Land – Easement – Right of way – Appellants claiming right of way over track owned by respondents between cottage and field – County court dismissing claim – Appellants appealing – Whether easement permitting appellants to pass directly from cottage to field – Whether right of way over track to field ancillary to use for purpose of original grant – Appeal dismissed The appellants owned two areas of land near Polstead, Suffolk. To the left was their residential property (a cottage called Garden Cottage, gardens and a stable block) and to the right was a field. Between them was a track owned by the respondents. The transfer of the property to the appellants’ predecessors by the respondents’ predecessors granted an easement over the track which was for the benefit of at least the field. It was common ground that the track could be used to pass between the field and the highway. It was also common ground that it could not be used to pass between the cottage and the highway. An issue arose whether the easement permitted the appellants to pass directly between their cottage to the left and the field to the right. The county court held that the appellants were not so entitled on the true construction of the easement or on the basis of “ancillary use”. The appellants appealed against that decision. The judge also decided against them on claims based on proprietary estoppel and rights to light (the latter based on the erection by the respondents of a high close-boarded fence along the cottage/track border). Those issues were not raised in the appeal. There was also a small triangular piece of land at the south-western corner of the cottage property. It was covered by the same easement as the track and gave access to the highway from the cottage. There was no dispute about that land. Held: The appeal was dismissed. (1) The extent of the right granted depended on the express terms of the grant which had to be construed in accordance with the general rules as to the interpretation of legal documents. Consequently, the construction of the express grant of a right of way over the track, as set out in the transfer, required the meaning of the words to be assessed in light of their natural and ordinary meaning; any other relevant provisions in the transfer of the overall provisions; the facts and circumstances known or assumed by the parties when the transfer was executed; and commercial common sense. In taking into account the context of the words of the transfer themselves, it was important that the process of construction was objective and did not take into account subjective intentions, albeit that all facts and circumstances could be taken into account as an aid to interpretation: see Gale on Easements (21st Ed) paragraphs 3.14 and 9-18 and 9-26. (2) The natural and ordinary meaning of the words of the express grant in the context of the transfer, and the locus in quo appearing on the face of the transfer, was that the track was only to be used for access and egress to the field and not to cottage. There was nothing complex in the construction of the wording of the express grant and there was no need to go any further. The straightforward, objective, construction of the transfer was supported by the surrounding evidence. The wording of the right of way had two elements, the apparently general grant of the right and then a qualification about access to cottage. The wording of the qualification was apparently absolute. It was difficult, if not impossible, to see how the words could have any meaning other than those contended for by the respondents. The first part gave “a right of way”; then that “access” was qualified in apparently absolute terms. (3) Access was a central concept in the mind of the draftsman. The track was described as an “access road”. It was a means of giving access. The other end of the “access” was not defined. The first part of the grant was capable of allowing passage over track between the dominant tenement (cottage and field) at one end and anywhere lying along it at the other. The word then appeared in the qualification. There was the limitation in which that “access” was to be used only “for access to the field”. That concept had to be taken to be a two-way access. It could not sensibly be taken to be a one-way access; there was a presumption against that in the absence of clear wording. It would be a nonsense to suppose otherwise on the facts of this case. It was a bidirectional concept: Giles v Tarry [2012] 3 EGLR 5 considered. The track could be used to go to and from the field to the highway and any property which was contiguous with the track, but that did not include the cottage because there was to be no access “to or from” the cottage along the track. The closing words of the grant made it clear that notwithstanding that the main words of the grant apparently make the cottage part of the dominant tenement so far as the track was concerned, the effect of the closing words was to take that right away. The express terms of the grant of the easement prohibited the use of the track as a means of access between the cottage and the field. The words of prohibition meant what they said and it was not possible to force another interpretation on them. (4) The appellants had sought to argue that use of the right of way over the track to the field was ancillary to, or part and parcel of, the use of the way for the purpose of the original grant. However, such a construction would be contrary to the plain words of the grant. It was now firmly established that a grant of a right of way might authorise access to premises whose use was genuinely ancillary to the identified dominant tenement but did not extend the dominant tenement. Having considered authority, the judge rightly concluded that the use of the cottage was not ancillary to the field (the dominant tenement). The grant actually forbade access to and from the cottage, and that had to mean wherever one was coming from. There was no scope for arguing for “ancillary” use in those circumstances: National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907 considered. Dermot Woolgar (instructed by Holmes & Hills) appeared for the appellant; Charles Irvine (instructed by DAS Law) appeared for the respondent. Eileen O’Grady is a barrister Click here to read a transcript of Hambling and another v Wakerly and another