Right of way – Access to premises – Right granted in 1921 for access to premises as then used by the tenant – Appellant operating bar on premises – Whether right of way extending to use by customers – Judge making inferences from limited evidence as to use in 1921 and concluding that right not then used by customers – Whether falling into error – Appeal dismissed
The appellant owned a property in St Ives, Huntingdon, for which, in 2005, he obtained a liquor licence and planning permission for conversion into a bar. He turned a yard at the rear of the premises into a beer garden, which could be accessed by a covered passageway that passed alongside a residential property, owned by the respondents. The passage lay within the respondents’ ownership, although there was a right of way over it for the benefit of the appellant’s property.
The respondents complained about the use of the passage by patrons of the bar and the noise and mess that they created. In proceedings against the appellant, seeking an injunction and damages, they argued that the right of way did not extend to use by the appellant’s customers. In determining the extent of the right, the judge was required to make findings of fact as to the use of the passage as at the date of the grant in 1921, since the grant was confined to a right to pass and repass from and to the relevant premises “as now used by [the] tenant” at that time. The judge found that the available evidence was slender but showed that the street adjoining the premises had, in 1921, been a major shopping street and the premises had then been used by a fishmonger and had stabling at the rear. He inferred that the fishmonger’s shop fronted the street, with the yard being used purely by tradesmen and staff and not by customers. He declined to grant an injunction, but made a declaration in favour of the respondents.
The appellant was granted permission to appeal limited to the finding of fact as to the extent of the use of the passage in 1921.
Held: The appeal was dismissed.
The use issue was a question of fact for the judge and was not a question of construction of the 1921 conveyance. The judge had been entitled to make inferences relevant to the use issue as long as they were justified by the evidence. The making of permissible inferences from proved or admitted facts, in order to arrive at the probable explanation or proper interpretation of them, involved practical reason, good sense and general knowledge. The Court of Appeal could not interfere with the judge’s factual conclusions on the use of the passage in 1921 unless they were shown to be wrong in the sense that no judge could have arrived at them by a process of reasoning and probable inference from the few facts that had been directly established. It was reasonable to infer from the established facts that the tenant’s retail customers in 1921 would probably have used the front entrance to the shop from the street and would not have gone, or been authorised to go, to the back of the premises via the passage. The judge’s conclusions of fact were correct and the court was not entitled to interfere with them.
Christopher Stoner (instructed by RPM Legal, of Huntingdon) appeared for the appellant; Martin Strutt (instructed by DMH Stallard, of Brighton) appeared for the respondents.
Sally Dobson, barrister
