This is a dispute
over a right of way over the claimant's property to the defendant's property.
It is accepted that there is a right of way by prescription, but the nature
of the permissible usage of that right of way is disputed.
This action
was begun by writ dated 13 December, 1999.
The claimant
is the freehold owner of residential property known as Staplehurst Farm, Kingsmill
Lane, Redhill, Surrey. He and his family have lived there since 1969.
The defendant
is the freehold owner of a property known as Robins Cook Farm. The defendant
and his family have lived there since 1965.
One means of
access to the buildings at Robins Cook Farm from the highway at the moment
is across the claimant's property from Staplehurst Lane. However, Robins Cook
Farm includes some property contiguous with that highway and access could
made from the same highway to the buildings at Robins Cook Farm if planning
permission could be obtained. The driveway in question also gives access to
a property known as Little Staplehurst.
The claimant
has never disputed that the defendant should have access to Robins Cook Farm
for residential purposes.
In addition
to a claim for damages for inconvenience and loss of amenity, the claimant
initially claimed a declaration in the following terms:
"A declaration
that nether the defendant nor anyone else on the defendant's behalf has acquired
a right of way by prescription (or by any other means) over the road way coloured
blue on the plan annexed for the purpose of access to and egress from Robins
Cook Farm for business purposes."
In the light
of evidence given at the trial, application was made to amend the terms of
that application for a declaration to delete the words, "for business purposes"
and substitute
"for the purposes
of a motor vehicle repair, servicing, maintenance or storage business or for
any purpose ancillary thereto (save in respect of any motor vehicle owned
or operated by the veterinary practice now known as Gayton Veterinary Group
of 40 Hatchlands Road, Redhill, Surrey."
The words of
the declaration were adapted for an injunction that was claimed and request
was made for permission to make a similar amendment to the injunction.
For reasons
that will later appear, I grant permission to make those amendments to the
particulars of claim.
History
It is common
ground that the defendant and his family have used the driveway in question
for more than 20 years to go to and from Robins Cook Farm for residential
purposes.
However, the
traffic along the driveway has been greater than one would expect, say, to
a semi-detached residential home in Surbiton.
I do not think
that the defendant would object if I describe him as a rough diamond. He said
that he received no education except what he received in the RAF where he
trained as a radio operator. That is a sad commentary on the State education
system where he endured some years of compulsory education but I accept it
as substantially true. He is essentially a law-abiding man but he does have
a tendency to do what seems to him to be sensible without first asking for
permission.
After the RAF,
the defendant took over the family business at Three Arch Road, Redhill. Those
premises are about one and a half miles from Robins Cook Farm. At those premises
in Three Arch Road, there had been operated since about 1936 a family business
of a Knacker's Yard and a Pet Food business.
Until 1965,
the defendant lived with his family at 14 Maple Road, Redhill.
In February,
1962, the defendant bought two cottages known as 1 and 2 Staplehurst Cottages
together with 32 acres of farm land. He demolished those cottages and built
a bungalow that became his family home in 1965.
Because of the
fear of criminal damage that might be caused by animal liberation groups,
the defendant had parked his business vehicles for the knacker's business
overnight at Maple Road and continued that practice at Robins Cook Farm. There
were two HGVs and some smaller vans.
He was told
that he had to have a licence to keep the HGVs at Robins Cook Farm and a term
of that licence was that he should provide a workshop to make repairs to those
vehicles, which he did in one of the farm buildings.
The defendant
has two quite exceptional sons. Both of those sons have a remarkable interest
in and talent for the care of mechanical vehicles.
The defendant
described his son John Junior as a "diesel nut". He was working on engines
from the age of 6 and he owned his first Austin when he was 7 years old. His
only ambition was to work on motor vehicles, but his father insisted that
he should first obtain a qualification by working an apprenticeship at APV
Limited at Crawley.
The claimant's
second son, David, is also an enthusiast for motor vehicles.
The defendant
said that John Junior joined the family business in 1974 and David joined
the business in 1976. Both of them are licensed slaughtermen and they worked
in the knacker business as well as in the pet food business and they did some
work on vehicles. John Junior was the fitter appointed to look after the two
HGV vehicles used in the knacker business and the pet food business. Any work
done on the vehicles was done at Robins Cook Farm.
It is accepted
that for a period of more than 20 years the vehicles belonging to the knacker
yard and the pet food business have used the driveway when a member of the
family wanted to come home to lunch or when the vehicles were to be parked
in the evening or when work was to be done on the vehicles. But that business
ceased in 1995. The defendant retired. The present use of the driveway to
which objection is taken is use by a different business run by the defendant's
sons with help from the defendant that is unconnected with the knacker yard
and the pet food business.
The defendant
says that having obtained his licence to store and maintain heavy goods vehicles
at Robins Cook Farm, he then started to maintain and repair vehicles belonging
to other people. He said that that work increased to such an extent that in
1974 his son John Junior joined him as a full time fitter and he was joined
by his son David in 1976. In fact, neither of them was working full time on
vehicles. They both accepted in evidence that they also worked in the knacker
and pet food business as well as on vehicles. The proportion of time spent
on each side of the business was unclear.
From Easter
1980, the defendant employed a Mr. Zapotincznyj. He worked in the knacker
yard and also did some work on vehicles. It was not said that he did work
on any vehicles other than those belonging to the knacker yard and pet food
business.
One of the main
issues of fact in this action has centred on the question what was the activity
at Robins Cook Farm between 1974 and 13 December, 1979, the date 20 years
before this action was started.
There is no
documentary evidence whatever that shows unequivocally any vehicle repairing
business being carried on at Robins Cook Farm before 1980. The only business
documents that pre-date 13 December, 1979 are documents evidencing small purchases
of vehicle parts mainly from a specialist in Land Rover parts. The defendant's
sons were and are interested in Land Rovers and military vehicles such as
Jeeps and I find that that small quantity of documents relates mainly to their
hobby, though some may relate to the maintenance of vehicles belonging to
the practice of a veterinary surgeon, to whom I shall refer later.
By way of very
late disclosure of documents, the defendant has disclosed on the first day
of trial two bundles of documents that appear to have been torn from books
each dating from about 1981 to 1986. The documents appear to show some business
in repair and maintenance of vehicles between those dates at a very low level
of activity. The numbering of the pages suggests that there was little other
activity. The numbering and dating of one small bundle (which is incomplete)
suggests that it took 5 years to fill up a small book of the sort that one
sees in most stationers shops supplied either with a sheet of carbon paper
to interleave the pages or (as in this case) with alternate pages chemically
treated to produce the same effect. The defendant says that he has no duty
to keep documents for more than 6 years and all other documents have been
destroyed. The documents disclosed were, it is said, found at a late stage
down behind a desk. Business documents relating to the past 6 years, which
presumably have not yet been destroyed, might have been helpful but have not
been offered. The defendant says that he has employed an accountant and has
sent documents to his accountant in the ordinary way but has not asked his
accountant for documents to use in this action. Not only are there no documents,
the defendant and his sons have declined to give any evidence of the amount
of the turnover of the business that they claim has been operated for more
than 20 years using this driveway.
The defendant
and his sons say that the financial side of the business is in the hands of
a book-keeper, Mrs. Shirley Robinson. Mrs. Robinson used to live in the north
of England and came to live in Lindfield in Sussex in 1968. Since then she
has worked as the defendant's book-keeper and, as he stated frequently in
evidence, he has a very high regard for her integrity and efficiency.
In correspondence
before trial and in the answers to the Case Management Questionnaire it was
made plain that the solicitors to the defendant intended to call Mrs. Robinson
as a witness at the trial. In evidence, the defendant said that he had seen
Mrs. Robinson at work in the week before trial and she was fit to attend trial.
In the event, the defendant's advisors did not call Mrs. Robinson to give
evidence and no witness statement from her was provided.
What we do have
from Mrs. Robinson is a letter dated 11 January, 1994 addressed to a Mr. Beach.
At that time Mr. Beach was acting for the defendant in a planning matter.
The planning authority had received a complaint about change of use of the
defendant's property and the defendant was concerned to demonstrate change
of use for the previous 10 years and obtain a certificate to that effect.
Mrs. Robinson's letter was written to be produced to the planning authority
and was in these terms:
"I have worked
as a secretary/book-keeper for
Mr. & Mrs.
J. Drew of Robins Cook Farm, Kingsmill Lane,
Redhill on a
regular basis, in the office
attached to the
rear of their bungalow commencing July 1968.
Since early in
1980, the vehicle maintenance
was used for
contract work on outside customers'
vehicles, this
work taking place in the barn
adjacent to the
bungalow. This work was
invoiced on a
fully commercial basis - recent
sight of some
old invoice books does confirm.
my statement."
In writing that
letter, Mrs. Robinson was only concerned to deal with the previous 10 years,
but having looked at some old invoice books she was able to speak to the position
going back to early 1980. It is very significant that Mrs. Robinson says that
it was in early 1980 that the vehicle maintenance was used for contract work
on outside customers' vehicles. "Outside customers' vehicles" I take to be
an expression to contrast a new garage business with the old work of maintaining
the vehicles of the knacker's yard and pet food business and work for a veterinary
practice to which I shall now refer. If there was a change in the business
in early 1980, it would follow that there was a change in the use of the driveway
at the same time.
The defendant
and his sons obviously place great reliance on Mrs. Robinson and in my view
her evidence would have been of enormous help in getting to the truth of this
matter. She kept the books and in the absence of the books she would have
been the best source of information as to the business that was being carried
on. Reliable evidence about the business being carried on would have been
a guide to the use made of the driveway.
Since the defendant
and his advisers have plainly made a deliberate decision to avoid calling
Mrs. Robinson as a witness, I infer that her evidence would have been unwelcome
to them and that at the very least she would have given evidence in the terms
of her letter of 11 January, 1994. The gist of that letter is that business
use of the premises began less than 20 years before the commencement of these
proceedings.
I heard evidence
from Mrs. Heather Nestel. Mrs. Nestel is a veterinary surgeon. She and a partner
of hers were the only individuals who had had cars repaired by the Drews to
be called to give evidence. In 1977 she bought the practice of Mr. Graham
Joss in Redhill. From 1977 until 1991 when she retired, she practised with
partners under the name Nestel and Clay, then Nestel and Partners, and finally
under the name Gayton Veterinary Group. Mrs. Nestel said that in 1977 her
practice had 2 vehicles increasing to 4 in 1978 and 5 or 6 in 1979. In addition
she and her children had a further 2. All of those vehicles were serviced
by the Drew boys and were driven to Robins Cook Farm along the driveway in
question in this action.
There has been
a family friendship between Mrs. Nestel and the Drews going back to the 1940s
and continuing to this day. In addition, there was close business and professional
co-operation. Mr. Drew was very co-operative about collecting carcases of
horses that had to be put down by a vet in the practice and he was also co-operative
in allowing facilities for post mortem examination of carcases at his yard.
That co-operation was friendly but also brought considerable benefits to both
parties. The vets. were helped in the running of the practice and Mr. Drew
received more carcases for his business.
How it came
about that Mrs. Nestel started having the vehicles of the practice maintained
at Robins Cook Farm was never explained. It was certainly not as a result
of advertising because there was not any advertising. Presumably it started
as a result of friendly conversation.
I do not know
whether any money changed hands to pay for the maintenance in the early years.
There is no evidence, written or oral, that money did change hands before
1980. Normally, of course, one would expect car maintenance to be paid for,
but in the light of the friendly and co-operative relationship between the
parties and the enthusiasm of the Drew boys to work on motor vehicles, I do
not think it would be at all reasonable to assume payment in this case at
all events in the early years. Payment in the years before 1980 would be inconsistent
with the letter from Mrs. Robinson.
The documents
that have been supplied show that between November, 1983 and July, 1986, 13
charges were made to the Nestel practice. 4 bills were for work on one car.
3 were for work on 2 cars. 5 were for work on 3 cars. 1 was for work on 8
cars. Most of the charges were for parts without charges for labour to fit
the parts. There is no VAT number on the copy bills disclosed, but each ends
with a charge of 15% which I assume to be for VAT.
Mrs. Nestel
said that at the outset, cars could be booked in for service at any time that
suited the practice, but that changed and it became "more than a hobby" for
the Drews. The Drews became too busy to take her cars just when she wanted.
She said, "I could not swear to the year but it became from a small business
to a very busy small business before I retired in 1991." In response to further
questions she then said that it was in 1988 or 1989, 10 or 11 years before
the commencement of these proceedings.
The senior partner
of the practice now known as Gayton Veterinary Group, is now Mr. Raymond Heathcote.
He joined the practice in 1980. He said in evidence that John Junior has been
inundated with work since 1985. Before then he always did whatever work was
required promptly, but for the last 13 years, although all work required for
safety reasons was done promptly, other items have been waiting to be done
because John does not have time to do it.
In about 1988,
the Drews obtained work from a Citroen Main Dealer doing pre-delivery servicing
of new Citroen cars. Contrary to the wishes and instructions of John Drew
Senior, sometimes low loaders and less frequently high loaders carrying new
cars were driven up the drive. The claimant was aware of that usage from 1994,
though the contract ceased in 1994. Before 1994, he was aware that the Drews
had some commercial use of the drive but it was not of a scale or nature that
affected use of the drive. The defendant said that his instructions were that
vehicles for pre-inspection should be unloaded outside the claimant's premises
and the cars driven up the drive. On occasions, these heavy vehicles were
badly driven and damaged the drive and the verges. The defendant did some
repair work to the drive and the verges. That repair work is relied on in
support of a plea of estoppel. However, it should be remarked at this stage
that the defendant was not asserting any right to have those lorries driven
up the claimant's drive because he instructed that they should not be driven
up the drive. The claimant said that he thought that the defendant did the
repairs as an act of good neighbourliness and that seems to be a reasonable
view of it since Mr. Drew would have recognised that he had failed to ensure
compliance with his instructions. I should add that this is not one of those
cases familiar to the courts where neighbours behave in an unneighbourly and
aggressive way towards each other. In correspondence they address each other
by Christian names, their conduct towards each other has been civilised, and
they come to court to have their rights determined.
For reasons
that do not matter for the purpose of this action, the Drews lost the contract
to do the pre-delivery servicing and that business has ceased. No documents
at all were disclosed in relation to that business or its cessation.
Another source
of evidence comes from documents created in connection with a planning application
made by the defendant.
In 1993, the
defendant was informed of objections (not by the claimant) to the use made
of Robins Cook Farm. The defendant instructed George R. Beach & Associates,
Planning Consultants, to act for him in making an application for a Certificate
of 10 years lawful use of the premises for the repair and servicing of motor
vehicles. By letter dated 24 September, 1993, Mr. Beach sent to the Planning
Officer at Reigate an application for such certificate together with supporting
documents, including the letter from Mrs. Robinson to which I have already
referred.
Mr. Beach in
his application claimed that there had been lawful use for 15 years. He referred
to the HGV licence for the vehicles for the knacker and pet food business.
He also referred to the pre-delivery service of new Citroens and he enclosed
certain supporting documents.
The claimant
by letter dated 23 October, 1993 opposed the application. In that letter,
among many detailed points made on the application and supporting material,
the claimant wrote:
"I therefore
suggest that the very limited level of vehicle repairing which has continued
for over 20 years does not constitute a 'business' and that therefore neither
planning permission nor a Lawfulness Certificate should be either necessary
or granted."
By letter dated
8 November, 1993, Mr. D.G. Willis of Humphrey and Willis wrote that he had
been supplying motor parts for car repairs in the defendant's workshop at
Robins Cook Farm for about 20 years. That letter is consistent with the Drew
boys pursuing their hobby.
Mr. Blythe of
J.T. Blythe Limited wrote on 11 November, 1993 that he first had a car worked
on by Mr. Drew on or after September, 1985 and that Mr. Drew canvassed him
for about 2 years before that for maintenance of his vehicles. That letter
may have helped the defendant in his application for a certificate of 10 year
use but it does not help him much in this action.
Mr. Beach provided
a Statutory Declaration from Mr. Heathcote. That document gave evidence of
work for his practice only "since the autumn of 1980".
On 10 December,
1993, Mr. Murrell wrote that he had known John Drew to do vehicle repairs
and servicing "on a casual basis for at least 15 years and more so on a regular
and permanent basis for over 10 years."
Mrs. Marshall
wrote on 21 December, 1993 that she had known John Drew for 16 years. But
she was only able to speak for him maintaining her car for the previous 11
years, that is back to 1982.
A Mr. Blunt
wrote on 4 January 1994 that he had had his Land Rover serviced by the Drews
but only since 1982.
Mr. Charles
Dunn provided a statutory declaration dated 21 September, 1983, that his business
had its fleet of 9 cars serviced by John Drew "for at the least the last 9
years" i.e. since 1984, so he was not even supporting the period of use of
10 years then required by the defendant. By letter dated 8 January, 1994,
Mr. Dunn sought to suggest that the servicing work done for him began earlier
than stated in his statutory declaration but gave no credible reason for his
suggestion. He said that John Drew was servicing Mr. Blythe's Mercedes and
the vehicles of some veterinary surgeons and it was because of John Drew's
experience with Mercedes that he entrusted his Citroens to John Drew. As I
have said, Mr. Blythe first went to John Drew in September, 1985.
Mr. B.E. Drew
wrote a letter dated 21 January, 1994 in which he said that his business passed
some mechanical repair work to John Drew but does not say when. Between 1981
and 1987 his business moved several times and on those occasions took temporary
accommodation at Robins Cook Farm. I do not read that letter as convincing
evidence of any business use by him before 1980, and after 1980 such business
use that he made of the defendant's premises and the drive was plainly as
a family favour.
In 1993, a Certificate
of Lawful Use was issued to the defendant. He then fenced off an area near
his house with security gates, installed two further porta cabins and erected
promotional signboards. (The first porta cabin had been installed in about
1990, and that installation marked the start of a significant change in the
use of Robins Cook Farm). Aerial photographs show a large number of vehicles
on the premises. At about1993, John Drew started using a trade name "Carprep"
and signs using that name were erected on the claimant's property near the
end of the drive. The claimant protested and the signs were removed. Similar
signs were then erected on the defendant's property near the entrance to the
drive directing prospective customers to the drive. A large number of differently
signed delivery vehicles started using the drive to deliver to the defendant's
premises. The name Carprep now appears in the business section of the local
telephone directory with the address of Robins Cook Farm and a separate telephone
number from the defendant's home. When that listing was first used was not
established, but it must have been in recent years because the name Carprep
was not used before 1993 or 1994. There are now at least 5 full-time mechanics
(including the Drew brothers) employed in the business.
As to VAT, John
Drew said that in his motor business he used the VAT registration of the knacker
yard and pet food business until 1997 despite the fact that that business
had ceased in 1995. It would follow that until 1995 the inputs and outputs
of the motor business such as it was would have been intermingled with the
inputs and outputs of the knacker yard and pet food business. Mrs. Robinson
would have been best placed to tell us how this worked out in practice. On
25 November, 1997, HM Customs and Excise made a VAT inspection and as a result
the trade classification was amended to "Maintenance and repair of motor vehicles".
The claimant's
oral evidence was that he became aware of a change in the character of the
usage of the drive in 1994. He did check the volume of usage and it was not
any change in volume of use that concerned him but a change in the character
of use. His written evidence put the change in character a little earlier.
No doubt the change was gradual and it was difficult to set a point in time,
but there is no doubt that there was a change. The evident change in the character
of use caused some local people to make objection to the Planning Authority
leading to the application for a Certificate of Lawful Use.
In his written
evidence, the claimant wrote that before 1980 there was some maintenance work
done at Robins Cook Farm but it was confined to work done on the vehicles
of the family business, work done as part of the boys' hobby, and a very small
amount of work on other vehicles that he thought as done for "pin-money".
In his view the use of Robins Cook Farm and the drive was confined to use
that was residential in character.
The claimant
gave uncontested evidence about the agricultural use of the defendant's premises,
which include what was formerly a piggery and about 25 acres of grassland.
The piggery has been converted for use as a workshop and the grassland is
mostly let out to farmers. The users of the grassland gain access from a gate
opening directly onto the road. There has been no perceptible use of the drive
for agricultural use during the last 20 years.
In 1996, the
defendant, without planning permission, used a part of the grassland for a
rough terrain go-karting track. The go-karts were stored in the old piggery.
Access was mostly direct across the grassland from the road but there were
some deliveries along the drive. The activity was soon stopped by the planning
authority after complaint from people living in houses nearby.
The defendant
has allowed telephone masts to be erected on his property, presumably for
reward. A 15 metre mast was erected in 1994, replaced in 2000 by first a temporary
and then a permanent 25 metre mast. This time, the defendant applied for planning
permission. His application for the 25 metre mast included reference to access
across the defendant's fields in summer and dry weather and along the drive
in winter and wet weather. No advance warning was given to the claimant. Several
mobile cranes, HGVs and other vehicles have used the drive for the purpose
of erecting and maintaining those masts. Those vehicles caused blockage of
access and damage to the verges.
In an application
for planning permission dated 15 March, 1999 for a new access to Robins Cook
Farm across the defendant's land, estate agents for the defendant said that
along the claimants drive there were then on average 40-50 vehicular movements
each day with the vehicles ranging from cars to large container lorries. In
the same letter, the agent wrote, "...the existing green access way is shared
with two other residential properties. Their amenity and enjoyment is severely
hampered by the intrusions of the many vehicles using the roadway during the
daytime".
I do not accept
the claimant's view that before 1980, while there was some maintenance work
done a Robins Cook Farm, the activity was residential in character. I accept
his evidence as to the facts, but I do not accept his description of what
was going on as being residential in character. On the evidence I have heard,
it was not residential in character. The maintenance and storage of the vehicles
of the knacker and pet food business could hardly be called residential nor
could the maintenance of the vehicles of the veterinary practice. The former
was known to the claimant while the latter was not. I do however accept the
evidence of the claimant that the repairs then carried on were minimal and
were certainly not publicly promoted as a commercial service.
The Law as to
Right of Way
It is agreed
between the parties that in order to establish the right of way for which
the defendant contends, the defendant must show 20 years of uninterrupted
user before the issue of the writ.
The use for
which the defendant contends is a right of way for vehicles going to Robins
Cook Farm for the purposes of a business of repair, maintenance, servicing
and storage of motor vehicles at Robins Cook Farm. That is contested by the
claimant. What is not contested is a right of way for residential purposes.
It is ancient
law that a right of way may be for one purpose to the exclusion of other purposes.
It is a question of fact on the evidence whether a right of way is for a limited
purpose or purposes or is a general right for all purposes: Cowling v. Higginson
(1838) 4 M & W 245.
In Williams
v. James (1867) LR 2 CP 577 at 580, Bovill CJ said:
"In all cases
of this kind which depend upon user the right acquired must be measured by
the extent of the enjoyment which is proved. When a right of way to a piece
of land is proved, then that is, unless something appears to the contrary,
a right of way for all purposes according to the ordinary and reasonable use
to which that land might be applied at the time of the supposed grant. Such
a right cannot be increased so as to affect the servient tenement by imposing,
upon it any additional burthen."
In the same
case, Willes J. at page 582 said:
"Where a way
has to be proved by user, you cannot extend thepurposes for which the waymay
be used, or for whichit might be reasonably inferred that parties would have
intended it to be used. The land in this case was a field in the country,and
apparently only used for rustic purposes. To be a legitimate user of the right
of way, it must be used for the enjoyment of the Nineacre field, and not colourably
for other closes. I quite agree also with the argumentthat the right of way
can only be used for the field in its ordinary use as a field. The right could
not be used for a manufactory built upon the field. The use must be the reasonable
use for the purposes of the land in the condition in which it was while the
user took place."
The decision
in Williams v. James was approved by the Court of Appeal in Wimbledon and
Putney Commons Conservators v. Dixon (1875) 1 Ch D 362 where it was held that
the immemorial user of a right of way for all purposes for which a road was
wanted in the then condition of the property does not establish a right of
way for all purposes in an altered condition of the property where that would
impose a greater burden on the servient tenement.
In British Railways
Board v. Glass [1965] 1 Ch 538, Lord Denning M.R., dissenting, said:
"It is quite
clear that, when you acquire a right of way by prescription, you are not entitled
to change the character of your land so as substantially to increase or alter
the burden upon the servient tenement. If you have a right of way for your
pasture land, you cannot turn it into a manufactory and claim a right of way
for the purposes of the factory. If you have a right of way by prescription
for one house, you cannot build two more houses on the land and claim a right
of way for the purposes of those houses also. I think this rule is not confined
to the character of the property. It extends also to the intensity of the
user. If you use your land for years as a caravan site for six caravans and
thereby gain a prescriptive right over a level crossing, you are not thereby
entitled to put 30 caravans on the site and claim a right for those 30."
The majority
of the court, Harman and Davies LJJ disagreed with Lord Denning MR as regards
what he said about intensity of user. Having cited the passage from Williams
v. James that I have quoted, Harman LJ said:
"Applying that
to the present case, you must do what the judge did, namely, base your conclusion
on a consideration of what must have been the supposed contents of the lost
grant on which the prescription rests. If this be supposed to be a grant of
the right to use the " blue land " as " a caravan site," then it is clear
that a mere increase in the numbers of the caravans using the site is not
an excessive user of the right. A right to use a way for this purpose or that
has never been to my knowledge limited to a right to use the way so many times
a day or for such and such a number of vehicles so long as the dominant tenement
does not change its identity. If there be a radical change in the character
of the dominant tenement, then the prescriptive right will not extend to it
in that condition. The obvious example is a change of a small dwelling-house
to a large hotel, but there has been no change of that character according
to the facts found in this case. The caravan site never became a highly organised
town of caravans with fixed standings and roads and all the paraphernalia
attendant on such a place ..."
I think it likely
that with a little further discussion Lord Denning could probably have persuaded
the majority members of the court that there would come a point where an increase
in the numbers of caravans on the site (perhaps greater than an increase of
6 to 30) would amount to a change in the identity of the dominant tenement
without "fixed standings and roads and all the paraphernalia attendant on
such a place". That is a matter of fact rather than law. In saying that, I
do not seek to question the decision in British Railways Board v. Glass or
the binding nature of that decision on me as a matter of law. It is important
in this area to distinguish issues of law from issues of fact. That distinction
was made more clearly in Williams v. James in the context of trial by jury.
Have the Defendants
established a right of way for business purposes?
In my view,
on the evidence before me, the defendant has not shown a right of way for
business purposes save to a limited extent.
It is accepted
by the claimant that the defendant has a right of way for residential purposes.
It is also accepted by the claimant that he had a right of way for purposes
connected with his family business which is now defunct. A right of way for
a defunct family business cannot possibly be enlarged into a right of way
for business generally. It is also accepted that for more than 20 years the
vehicles of Mrs. Nestel's practice have been repaired and serviced at Robins
Cook Farm. On the basis of Mrs. Robinson's letter and the bills produced to
me, I find that at least from 1983 and possibly from a date in 1980, that
work was done for some reward though to a large extent on a "parts only" basis.
However, the precise nature of that work is less important since the claimant
is willing that any order made should allow its continuance.
There is no
credible evidence before me of any repair or maintenance work being done at
the premises before 1980 other than for the family business of the knacker
and pet food business, the veterinary practice, and for the hobby of the Drew
sons. It would be correct to say that before 1980, the use of Robins Cook
Farm was predominantly residential with some subsidiary non-residential use.
The use has now become predominantly commercial with subsidiary residential
use. After 1980, for some years a very small amount of work was done by way
of business for people on the basis of personal friendship or personal solicitation.
That was a significant change in the use of the premises and the use of the
drive. There was then the Citroen pre-sale maintenance contract now terminated.
Then there was an even greater change when the Drews started public promotion
of the business. At that point, the use of the drive was no longer limited
to use by those over whom the Drews had some influence and control. Everyone
was invited to use it.
There have been
significant changes in the volume of use of the drive. There have also been
significant changes in the character of use both of the dominant tenement
and of the drive. This is illustrated, and it is only an illustration, by
one of the complaints made by the claimant in support of his claim for damages.
He says that the high volume of non-resident traffic leaves a considerable
quantity of litter in discarded cigarette packets, confectionery wrappers,
cans, bottles, etc which he has to clean up. The vets and the drivers of the
defendant's business vehicles would not have thrown things out of the window.
Drivers of vehicles personally known to the defendant and his family would
be unlikely to have done so. But regrettably, when the English public generally
is invited to drive along a way, rubbish is thrown out of the windows.
Estoppel
By paragraph
7 of the Defence it was pleaded:
"Further the
Defendant has contributed towards the expense of maintaining the driveway
and carried out repairs and maintenance using his own machinery in the knowledge
of the Claimant that he was carrying out the said work in the belief that
he was entitled to use the driveway for all purposes including in connection
with the horse slaughtering business and car repair business. By reason thereof,
the Claimant is estopped from denying that he is entitled to use the driveway
for those purposes."
That pleading
is unclear in that it is not plain whether the words "in the belief" are intended
to refer to the belief of the defendant or the claimant or both. Whatever
the pleading was intended to mean by those words, it is insufficient to support
a plea of estoppel. However, I will deal with the plea as it was put in the
opening and closing speeches of counsel for the defendant.
In his opening
speech, counsel for the defendant said that the second issue in the action
was:
"Has the Claimant
represented that the defendant is entitled to use the driveway for the purposes
of his business and as a result has the defendant paid towards the maintenance
and improvement of the road? If yes, then an estoppel will arise."
In support of
that proposition counsel relied on paragraph 2-03 of the current 16th
edition of Gale on Easements. That paragraph is as follows:
"Natural rights
of immunity against nuisance or the like, or against trespass, may be abrogated
by an estoppel based on acquiescence. The principle appears to be that A cannot
restrain B from doing something which invades a natural right incident to
A's land if what is done is, or is the reasonable consequence of, something
that has been encouraged or countenanced by A, but mere abstinence by A from
legal proceedings does not amount to acquiescence. B knows, or may be assumed
to know, of A's rights, but is led to believe that they will not be asserted.
The equitable estoppel which is established does not depend on a mistaken
belief by B that he has an existing right. It is enough that, although B knows,
or may be assumed to know, A's rights, B is encouraged by A's words or actions
to believe that those rights will not be asserted, or that a new right, for
example, a right of access, will be granted to B, so that B, relying on this
belief, acts to his detriment. In this way B may acquire, by means of an estoppel,
something in the nature of an equitable easement. In Crabb v. Amn Distiict
Council Scarman L.J. said that the law was correctly stated in Lord Kingsdown's
dissenting speech in Ramsden v. Dyson. Lord Kingsdown said:
"The rule of
law applicable to the case appears to me to be this: If a man, under a verbal
agreement with a landlord for a certain interest in land, or, what amounts
to the same thing, under an expectation, created or encouraged by the landlord,
that he shall have a certain interest, takes possession of such land, with
the consent of the landlord, and upon the faith of such promise or expectation,
with the knowledge of the landlord, and without objection by him, lays out
money upon the land, a Court of equity will compel the landlord to give effect
to such promise or expectation."
As Scarman L.J.
said, that statement of the law was put into the language of landlord
and tenant because it was a landlord and tenant situation with which Lord
Kingsdown was concerned, but it has been accepted as being of general application."
Guidance on
the application of that principle is to be found in paragraph 2-04 of Gale:
"The requirements
of such an estoppel were set out in more detail in Willmott v. Barber by
Fry J., referring to "five probanda". These probanda have been recited and
applied in some cases but not regarded as essential in others. The courts
have now consistently indicated that they prefer a broad approach based on
determining whether the behaviour of the person alleged to be estopped is
unconscionable. Thus in Taylors Fashions Ltd v. Liverpool Victoria Trustees
Co. Ltd, Oliver J. said:
'The more recent
cases indicate that the application of the Ramsden v. Dyson principle-whether
you call it proprietary estoppel, estoppel by acquiescence or estoppel by
encouragement is really immaterial-requires a very much broader approach which
is directed rather at ascertaining whether, in particular individual circumstances,
it would be unconscionable for a party to be permitted to deny that which,
knowingly, or unknowingly, he has allowed or encouraged another to assume
to his detriment than to inquiring whether the circumstances can be fitted
within the confines of some preconceived formula serving as a universal yardstick
for every form of unconscionable behaviour.' "
I do not regard
any activity or non-activity of the claimant in relation to the repair of
the drive as unconscionable.
First, I should
say that when the parties first bought their properties, the drive was unmade.
In 1973 or 1974, the claimant persuaded the defendant and the other user of
the drive to share the cost of making the drive up with tarmac. The cost was
shared because it was agreed that there was a right of way for residential
purposes. The question of business use had not then arisen and there could
be no question of estoppel.
It is not at
all clear what is the conduct or alleged misconduct on the part of the claimant
that is relied on.
In his closing
speech, counsel for the defendant first relied on two letters dated respectively
31 August, 1994 and 13 May, 1996 written by the claimant to the defendant.
Both letters begin "Dear John" and are written in friendly and courteous terms
about matters of disagreement that have arisen between the parties. Neither
letter complains about a change in character or amount of the use of the drive.
The letter of
31 August, 1994 complained about signs erected by the defendant. That letter
was plainly written by the defendant under a misapprehension. He plainly thought
that there was some written agreement about the right of way and the permissible
use of that way. In one paragraph he wrote:
"As far as
I am aware the agreement for you to use our driveway has no specific provisions
for you to erect signs. If I am wrong in this, please let me have a copy of
the relevant extract and, on verification against our copy, I shall be happy
to abide by the terms."
In the letter
dated 13 May, 1996, the claimant dealt with some complaints made by the defendant
about sight lines on the drive, about drainage, and about redirecting of visitors
who went to the wrong house on the drive.
Counsel for
the defendant submitted that at the time of the 1994 letter, the drive was
being used for the vehicles related to the knacker and pet food business,
for the pre-delivery inspection of Citroens, and for the garage business that
had either taken off in 1989 or was about to take off in 1995. In the light
of that letter, said counsel, the defendant thought he could use the driveway
for whatever he wanted. But that remains a matter of submission. There is
no evidence that the defendant thought any such thing or that he relied on
the letter in any way.
By the date
of the 1996 letter, the pre-delivery inspections of Citroens had ceased. There
is again no evidence that the defendant's mind was in any way affected by
this letter as regards any belief that the claimant would or would not exercise
his rights. The express indication from the previous letter was that, whatever
those rights turned out to be (and the claimant thought they were in writing),
the claimant would rely on them and enforce them. The 1996 letter was written
before there was any public solicitation of business.
It is not clear
what work or expense the defendant is relying on in this connection. The defendant
has not specified what the work was that was done or when it was done or what
it cost. The claimant accepts that the defendant did do some work on the drive.
I have the impression that some of that work was done by the defendant to
repair damage done by low and high loaders delivering Citroens. Those vehicles
went up the drive contrary to the defendant's instructions, and if he repaired
damage done by them, he cannot have thought that he was expending money on
the exercise of something he had a right to do because he had forbidden it.
The claimant said that he thought that the defendant did what he did as a
neighbourly act. In any event, the defendant did not give notice that he was
going to do repairs and it is difficult to suggest that the claimant acquiesced
in the doing of repairs. If he did see the defendant doing a repair, it would
be reasonable for him to think that the repair was related to a residential
use. However, from 1999, he did stop the defendant from doing any more repairs.
Again on some occasions, on dates that are not clear, the claimant himself
did repairs to the drive and asked for contributions to the cost from the
other users of the drive. Since it is clear that the other users of the drive
did have a right to use the drive for residential purposes, it was reasonable
for the claimant to ask them for a contribution. There is no evidence that
by asking for a contribution the claimant was sanctioning any use other than
residential use.
The first formal
objection to the use of the drive was by letter dated 15 August, 1997 from
the claimant to the defendant. That letter was prompted by the claimant seeing
two go-karts on a trailer going up the drive. By this time the claimant had
ascertained that although there was written definition of the right of way
enjoyed by Little Staplehurst, there was no written definition of the right
of way enjoyed by the defendant. The claimant asked for an agreement to be
drawn up clarifying the matter. That letter was followed up by a letter from
the claimant's solicitors inviting the defendant to put forward any document
relied on in support of any claim to a right of way.
The claimant
has been slow to raise objection to the activities of the defendant, but it
is clear that he is a peaceable man and the activities have been changing
over a long period of time. The last straw appears to have been the public
solicitation of business by the erection of signs accompanied by a large increase
in business.
I do not see
that the claimant has acted in any way unconscionably nor that the defendant
has been led to believe that the claimant would not enforce his rights once
he ascertained what they were.
I reject the
suggestion that there is any estoppel here.
Damages
The claimant
complains that as a result in the change in character as well as volume of
traffic along the drive he and his family have suffered from:
(a) Intrusion
into their privacy since the drive passes through the middle of their property
adjacent to the lawn and main garden area. This intrusion is felt particularly
from large commercial vehicles.
(b) Exhaust
fumes, particularly diesel exhaust blown into the main garden area by the
prevailing wind.
(c) Noise from
engines and loud radios heard in the house as well as the garden.
(d) Litter to
which I have already referred.
(e) Inconvenience
due to vehicles meeting and being unable to pass.
(f) Increased
use by large vehicles has caused damage to the verges making them unsightly
and requiring repair.
(g) The drive
is no longer safe for children to ride bicycles and the claimant's three grandchildren
are not allowed to use it.
(h) If the present
state of affairs continues the marketability and potential selling price of
the property will be substantially reduced.
I accept that
all of those complaints are well founded. Indeed they were not challenged
in cross-examination. In his closing speech, counsel for the defendant challenged
the complaint in (g) about the loss of use by children. That challenge was
put on the basis that there were some ponds near the drive that would make
it dangerous for young children to be on the drive in any event. As a father
and grandfather I find that objection entirely fanciful.
Since I propose
to grant an injunction, the complaint at (h), though well founded, is irrelevant
to the assessment of damages. I can well see that if this were a case for
damages in lieu of injunction (and no one has suggested that it is) the damages
related to complaint (h) would be very substantial. However, I have no evidence
of the value of the property with an injunction as compared with the value
without an injunction. That is not a complaint. On the case put before me
such evidence is irrelevant. Equally, if there were a case for damages in
lieu of injunction the damages for the continuance in perpetuity of the nuisances
and loss of amenity listed by the claimant would also be very substantial.
As it is, the assessment of damages should be on a moderate basis.
There is little
guidance as to the assessment of damages in cases such as this. I do not think
I should be influenced by what appear to be ludicrously high awards reported
in the press for insulting words and what is called harassment over moderately
short periods in office life, though I am bound to say that the claimant in
my view has suffered far more than many who have been over compensated for
the conditions in employments that they could have left for other employment.
I say that because the claimant is bound to make his own comparisons. The
claimant has suffered many years of daily inconvenience and aggravation that
he could only escape by selling his home at a loss, though he has not complained
until recent years. For all that he should have at least what he would pay
for a fairly decent second hand car. I award the claimant £10,000 damages.
Injunction and
Declaration
With some small
textual amendments, I grant the declaration and injunction for which the claimant
prays in the amended Statement of Claim. That relief is in the following terms:
