Besley v John [2003] EWCA Civ 1737

Case No A3/2002/2633[2003] EWCA Civ 1737
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MERTHYR TYDFIL COUNTY COURT
(HIS HONOUR JUDGE MOSELEY QC)
Venue Royal Courts of JusticeDate Wednesday, 29 October 2003
Strand
London, WC2
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE LAWS
Between
BESLEYRespondent-v-
Between
JOHNAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR L BLOHM (instructed by John Collins & Partners of Swansea) appeared for AppellantMR S LLOYD (instructed by James Tonner H John & Co of Swansea) appeared for Respondent
J U D G M E N T

LORD JUSTICE BUXTON:

This

[1]is an appeal from the order of His Honour Judge Moseley QC, sitting in the Merthyr Tydfil County Court. It concerns competing claims in relation to an area of common land. For reasons which will become apparent the case in one respect has taken a slightly unusual course before this court which is going to require - reluctantly but, we think, unavoidably - further submissions from the parties when they have had the benefit of this court's judgment. At the moment we envisage that those submissions should be in writing; we will say more about that at the appropriate time in the judgment.[2]Vaynor Common in Merthyr Tydfil covers some 3,700 acres. The respondent is the freehold owner of a golf course on part of the common. I shall refer to that body simply as the golf club. In 1994 the golf club extended the course from what had previously been 9 then 11 holes to 18 holes, necessarily therefore covering a further 14 acres of additional mown areas of the common, mown to provide greens, tees and fairways.[3]Mr John, the appellant, owns two farms adjacent to the common. He has grazing rights on the common which are registered under the Commons Registration Act 1965. We have not seen the entry in the register, but can take it from Mr John's witness statement, where he said:
"3 My grazing rights are made up from 3 entries on the commons register. The main entry which is against my farm (entry number 11 in the register) which entitles me to graze 1,136 sheep or equivalent. The register states 1 pony equals 1 sheep and 1 beast equals 5 sheep ..... 4 I have additional common rights registered against Dan-Y-Darren Farm, Cwmtaff. This gives me rights to graze 150 sheep together with a right of Estovers ..... "
We are not concerned in this case with estovers or the right to take bracken, nor are we concerned with grazing of cows or other beasts. We are solely concerned with Mr John's rights with regard to his sheep.[4]We are not told, because nobody knows, what was the ultimate origin of these rights of common. They were presumably originally acquired either by express grant or by custom or by prescription in favour of the owners of the farms. Their status and extent is now contained and only contained within the Commons Registration Act, ("the 1965 Act"). In particular, Section 15 of that Act provides for the quantification of the number of beasts in relation to which the right can be exercised, as set out in Mr John's registration. Section 15 of the Act makes reference to a "right to graze" without further elaboration or explanation. The general understanding of the nature of that right is set out in Halsbury's Laws, Vol 6, at Section 652. Drawing on ancient and uncontested authority, the learned editor states: "The interest which a commoner has in the common is, in the legal phrase, to eat the grass from the mouths of his cattle or to take such ever produce the soil has or may be entitled to" - that being right of common pasture, which is what we are concerned with, a right to eat the grass on the common. That definition is not in dispute and was agreed in paragraph 3.1 of the appellant's skeleton argument.[5]Mr John's flock is "hefted", an expression that indicates in general terms that the sheep are kept, by a combination of training and upbringing, on a particular part of the common. Mr John's evidence was that at least half of the area used by his sheep was on land owned by the golf course. The choice that he has made to deploy his sheep in that way does not, however, affect the nature of his rights.

The judge said in paragraph 4 of his judgment:

"Other commoners have hefted their flocks as well and those flocks tend to graze on other parts of the common. The fact that his flock is hefted however does not diminish Mr John's rights save insofar as he has reached an agreement or accommodation with other commoners. He has a right to graze his sheep over the whole of the common, of which the golf course forms a very small part."
[6]The common therefore accommodates both the golf course club and Mr John's activities as a sheep owner. Unfortunately however these two seemingly innocent enterprises in this rural setting have not succeeded in living peaceably with each other. The golf course complains of excessive and unreasonable use by Mr John of his rights and extension of those rights beyond that which the law properly provides, with physical damage caused to the golf course by the vehicles that Mr John uses to tend his sheep. In particular, the golf club assert that(1) Mr John has no right to bring feed on to the land for sheep in addition to what they can take from the grass already grown;(2) therefore vehicles cannot be driven on to the land for that purpose, and not at all except in a case of necessity connected with the welfare of a particular animal;(3) any right involved in the common pasture must be exercised reasonably and so as not to interfere with the golf club's enjoyment of the land.[7]As to physical damage, the judge noted that the land had contained hard tracks on which a vehicle could be driven without causing damage. He found - and I do not understand it to be disputed - that Mr John had gone further than that. He said in paragraphs 8 and 9 of his judgment:
"Two photographs are particularly important. They show that Mr John had driven, probably in a quad bike, over a green when it was snowing. There is also a photograph of what appears to be the same building after the snow disappeared, showing marks on the ground. So, in my view, it has been amply demonstrated by the evidence that Mr John has not confined his driving to the hard roadways or tracks that I have mentioned and that he has driven over soft ground and caused damage in the process. The evidence does not go so far as to support the assertions of the club that he has driven down the fairways. I accept Mr John's evidence that he tries to keep to the rough and that when he has to drive over soft ground he tries to keep to existing routes."
[8]Mr John's response to these complaints was to assert a right, contingent on his right of pasture, to drive on to the land to bring feed to his sheep. The matter was put thus in paragraphs 3 and 5 of the defence:
"3 The defendant claims that the right to use motor vehicles for the purposes of bringing feed onto the common and attending to the welfare of livestock is necessary for the reasonable enjoyment of the right to graze the common. ..... 5 It is admitted and averred the right to drive onto land and deposit feed thereon, as a reasonably necessary right ancillary to the right to graze, must be exercised reasonably and for the purposes of assisting and enabling commoner's livestock on the common land to graze and thrive ..... "
[9]Although paragraph 3 asserts a more general right to drive on to the land in order to attend to the welfare of the sheep, that does not seem to have been at the forefront of the case as it was originally pleaded. That now may be, as Mr Lloyd for the golf club told us, the main bone of contention, but the dispute that his clients originally saw themselves as having with Mr John was in relation to delivery of feed. However, the "welfare" point had certainly entered the case by the time the judge came to give judgment, and no objection was taken to the point being asserted in grounds 6 and 7 of the notice of appeal at page 10 of our bundle:
"6 The learned judge was wrong in law to hold that the appellant's right to drive on the common with motor vehicles was limited to the purposes of recovering dead or injured animals, or alternatively was restricted to private or public rights of way across the common. 7 Further or alternatively, the finding by the learned judge that the purposes for which he accepted the appellant obtained access to the common with vehicles (shepherding, inspecting animals and the carrying of feed) was not necessary for the reasonable enjoyment of the right to graze animals on the common was a finding of fact which no reasonable tribunal of fact could properly have reached ..... "
[10]Mr John originally asserted also that he acquired a right to bring feed on to the common by means of easement or prescription. The judge found against that claim on the merits and, wisely, there is no appeal.[11]Mr John also counterclaimed. He said that the expansion of the golf course by the creation of the new holes in 1994, and thus the inevitable increase in the area that was mown, had unreasonably interfered with his right to graze his sheep. The matter was pleaded thus in paragraph 15 of the counterclaim:
"15 Since the said expansion of the course the Merthyr Tydfil Golf Club have from time to time mown the land subject to the defendant's rights of common in order to create fairways and greens. It is averred that prior to the said expansion, there was no surplus land over and above that sufficient to provide grazing in accordance with the rights of common to which the defendant and his fellow commoners are entitled. In the premises, it is averred that the said mowing of the common, and the resulting reduction in grazing, is an interference with the defendant's rights of common."
[12]The judge had to determine the parties' rights, and sought a sensible accommodation between them. He was conscious, as this court is conscious, that a dispute of this nature can only be satisfactorily resolved by a clear determination on the part of the court as to what respective actions are permitted in the case of each party. In summary, he held as follows. First, Mr John's right to graze sheep was just that, and did not extend to bringing on to the land extra feed. Second, any use of a motor vehicle could only be justified in a case of necessity, and not for what I would term general purposes of shepherding. The fact that it was more convenient to use a vehicle was irrelevant. Third, the extension of the golf course and the consequent mowing of the larger area of the common did not unreasonably interfere with Mr John's rights. The judge accordingly dismissed the counterclaim. After counsel had considered the terms of the judgment a declaration was made in terms that reflected the limited right of common that the judge had recognised. The declaration was in these terms (page 28 of our bundle):
"It is hereby declared that the defendant is not entitled as a right of common or a necessary incident of a right of common or otherwise: (1) to bring feed on to the claimants' land; (2) to drive a motor vehicle (including a tractor) on the claimants' land save and except when the use of a vehicle is necessary for the removal of sick or injured animals or carcasses and providing that the use of a vehicle is confined as far as possible to vehicle tracks already existing on the claimants' land and the defendant takes all reasonable care to avoid encroaching further than is necessary on the claimants' land and causing damage to the claimants' land."
An injunction was also issued restraining Mr John from acting contrary to the terms of that declaration; since it mirrors the declaration, I do not need set it out.[13]I turn to the issues in the appeal. The first attack on the judge's conclusions is as to his treatment of the right to graze. That arises in two ways. First, the right to bring on to the land additional or ancillary feed; and, secondly, the right to perform general shepherding functions, as I will call them, by vehicle rather than on foot. The complaint about the judge's declaration that there was no right to bring feed on to the claimants' land was put thus in paragraph 1 of the grounds of appeal:
"The judge was wrong in law to hold that the appellant did not enjoy as a right ancillary to his rights of common of grazing, the right to feed his animals on the common."

The judge put the matter thus in paragraphs 10 to 12 of his judgment:

"10 Mr John claims, as an ancillary right to his right of common of grazing, the right to take a vehicle on to the common for the purpose of feeding his sheep during the months of December to February. The existence of such a right is disputed by the golf club. The Law on ancillary rights in the case of profits à prendre, such as rights of common is the same as it is in the case of easements. The issue has been referred to in numerous cases, one of which is the case cited to me of Earl of Antrim v Dobbs. That is a decision of the Queen's Bench Division for Ireland, reported in the law reports, the Irish series volume 30 at page 424. Holmes J, in that report, at page 432, states the principle in the following terms: [a term of probation] 'It seems to me that the true and only test to be applied in any work for the purpose of ascertaining whether it is covered by the reservation is whether having regard to all the circumstances, it is reasonably necessary for working the mines and carrying away the ore.' 11 That was a case concerning reservation of mines and minerals and the issue in the case was whether the owner of the servient tenement had the right to construct a railway. 12 I apply that test which in my view is the correct test to be applied in the present case, that is whether it is reasonably necessary for the right enjoyed in all the circumstances of the case."
[14]It is therefore necessary in all such cases to look at the nature of the right or grant which is asserted. If we go to Antrim, we find at page 424 an account of what the grant had been. A predecessor in title of the plaintiff Lord Antrim had made what appears to have been a lease of certain lands:
" ..... excepting to the grantor all mines and minerals, with the right to him, his servants, horses and carriages, to enter, dig, bore, search for, and carry away the same, he and they paying reasonable compensation for any injury done to the lands in exercise of these rights."
That right therefore had two limbs, a mining right and a right to carry away the product of the mine. Mr Blohm, for the appellant, pointed out that in their judgment their Lordships did not confine themselves to looking at the situation before then, that is to say where there was a specific grant of a right to carry away the minerals. He points out that they accepted - certainly Mr Justice O'Brien was accepting - that where there is a mining right it is a necessary incident of that right, even if unstated, to carry away the minerals. That, I would accept. It is not sensible to think that a grant of a mining right on land only enables the miner to mine the product, but not to take it away. That therefore is a case where, even if the right had been to mine only, it would be a necessary incident of that right to be assumed as implied in the grant to take away the minerals.[15]The question was how that right should be exercised in modern circumstances. Mr Justice O'Brien, having held that where a right to carry away is not expressly reserved it must be inferred, said at page 429:
"In either case" [I interpose, either of express or implied right to carry away] "the customary and reasonable method of working the mines must be the test. And could anyone be found to say, with mines worked everywhere in the Kingdom with tramways and railways, with tramways under and over and on the ground, and in and out from pits, and up and down high places leading to piers and ships, that this was not a proper and necessary mode of working the mine, or in fact that there was any other mode, or that Lord Antrim must load the backs of men and horses with his iron ore, and take it in that way to the sea."
What was complained of was that the mode of removal in the 1880s was not by road but by a tramway or railway. Mr Justice O'Brien said that that was the customary and necessary mode now of exercising that right. The same view was taken by Mr Justice Holmes at page 432:
"The object of the reservation is to enable the owner of the mines to work them in the usual way and with reasonable profit; and the requisites for this purpose vary with the circumstances of the time and the locality. Dand v Kingscote [6 M & W 175] and McDouell v Kenneth [IR. C.L.R 2 113] are authorities that a reservation of this kind is not to be confined to a right to employ such a appliances as were in use or in contemplation at the date of the deed."
Though we were shown no other authority in any detail, that, with respect, seems to be a correct statement of the law. The railway could be built in the Antrim case because that was the modern and reasonable way of exercising the right actually granted in that case of carrying away minerals; and would have been the modern and reasonable way of exercising what clearly would be a right ancillary to the mining grant.[16]But so far as the claimed right to feed is concerned, the approach in Antrim is not available. That is because - as the judge said in paragraph 13 of his judgment - the right to graze is only to take what of the grass the sheep can eat, and no more. That seems to me to be the end of the point so far as bringing feed on to the land is concerned. The right is - and is only - for the sheep to graze. The right is not to use the common land for all the functions and services that might be attached to the keeping of sheep; or, in other words, to treat the common simply as an extension of Mr John's farm. If the latter were to be the right, it would not be expressed as a right to graze but as an easement.[17]For that reason the evidence before the judge as to what are modern practices and expectations in the keeping of sheep - and in particular, as Mr John asserted, that he would be open to criticism if he did not provide feed - is not in point.[18]Taking away the product of the mine is reasonably necessary to enjoy the act of easement granted, that is to say the right to mine, as Antrim provided. Otherwise, you would simply have to leave the product at the top of the mine. But, by contrast, the provision of extra feed cannot be regarded as reasonably necessary for the grazing of the sheep. It is, indeed, if anything, contradictory of such right, because when the sheep are eating the provided feed they are not doing what the right of common provides, and all that it provides, eating the grass. If that means that the common is not usable by the sheep for a period of the year, that only demonstrates the limited nature of a right of pasturage. If the pasture available is by nature, rather than by interference, insufficient, then it is not open to the commoner to supplement that limitation by a different activity on the common land.[19]The judge was therefore right to hold that it was not an incident of right of pasture to bring additional feed on to the land over which the right existed.[20]I turn to the more elusive question of the right to drive on to the land for what might be called general shepherding purposes. Mr John explained in paragraph 8 of his witness statement how he had to check on the health of the sheep every day, and to look for and if necessary bring home any sheep that were ill. Mr John in his evidence was particularly directing himself to the matter of bringing in of feed, but another witness, Mr Jones, also a commoner, gave evidence as follows at paragraph 9 of his witness statement:
"Without being able to use vehicles for shepherding it would not be viable to exercise my commoner's rights. We need to check the animals daily for welfare reasons. We are required to move dead animals from the common. In the old days, some of this work was carried out on horse back. In the modern farming age horses had fallen into disuse and it would seem odd to suggest that commoners were restricted to such outdated farming practices given the availability and common usage for many years of vehicles."
[21]The parties in their pleading on this matter and in their argument before the judge were largely influenced by the judgment of Mr Justice Buckley in White v Taylor 1 Ch [1969] 160. There the claimants had what were called "sheep rights" on a portion of land known as Martin Down. These rights were created, as the judge found, by a conveyance in 1920, and not in fact by any right of common exercisable against the Lord of the Manor. Nonetheless, the rights were effectively treated as rights of common. The question arose as to whether that contained a right to carry water on to land to water the sheep. Mr Justice Buckley said at page 198 B:
"I reach the conclusion that if, in 1920, anyone concerned with Martin Down had been asked whether sheep grazing there needed to be watered he would have said 'Yes,' and that the same would be so today. The object being to discover the presumed intention of the parties to conveyances in 1920, the earlier date seems to me to be the relevant one. In these circumstances I find that the evidence establishes that in 1920 the watering of sheep grazing Martin Down was regarded as being, and was in fact, necessary for the reasonable enjoyment of the right to graze the down and, if this be of any significance, I find that the same remains so at the present time."
In more general terms he said at page 199 B:
"Anyone having a right to depasture sheep on the down must also incidentally be entitled to go on to the down, either himself or by his servants or agents - for instance, by his shepherd - to do anything necessary for the proper care and management of his sheep; but this does not mean that the owner of sheep rights can drive anywhere on the down in a vehicle. There may be occasions when it will be necessary to take a vehicle on the down not on any right of way for the purpose of doing something necessary in connection with sheep on the down, butt where the use of a vehicle would not be necessary for purposes connected with the welfare of the sheep but would be merely a convenience for someone in the vehicle, such use would not, in my judgment, be permissible."
These two statements have been subsequently treated as if they were akin to a statute, as they had been so treated in the claimants' pleading.[22]The judge in our case drew from Mr Justice Buckley's remarks that the entry on to the Down for the purposes of attending to the welfare of the sheep was permissible, but use of the vehicle was only permitted where necessary. As we have seen, he was prepared to categorise as a case of necessity the removal of sick or injured animals or carcasses, functions that plainly could not be performed on foot. Any other use of a vehicle would, in Mr Justice Buckley's terms, be merely a convenience. The judge summarised his view in paragraph 39 of his judgment in the following terms:
"[Counsel for Mr John]"
I interpose, not Mr Blohm who appears today, "put to me an argument to the effect that it would be highly inconvenient for Mr John if his rights were defined ..... " I interpose, so as to be restricted to recovery of dead or maimed sheep, and he gave an example of inconvenience of Mr John going on to the common, finding a dead or injured sheep, and having to get it back in his vehicle. He pointed out that that could take hours of time:
"That does not appear to me to be an argument in favour of giving Mr John any further rights. He has rights which are created by the law. The fact that he would, in the interests of convenience, wish to have further rights seems to me irrelevant. There are other ways of going on to the common for shepherding purposes. The fact that it would be convenient to take a vehicle on to the common for those purposes does not appear to me to be a material factor which I should take into account."
[23]The judge's approach to this part of the case seems to me not to be entirely correct. The issue at this stage of the case is not the issue that was ventilated in respect of the bringing on of feed, that is to say whether the function in question was an incident of the right of common at all. The question at this stage of the case is what is the reasonable and necessary mode of exercising what is an incident of the right of pasture, that is to say the right to attend to the welfare of sheep. That tending to the welfare of the animals is a necessary incident of the right of common is not challenged by the respondents, and is, in my view, a matter that does not admit of much argument. Certainly I am not prepared to say Mr Justice Buckley and the parties were wrong in recognising attention to the welfare of the sheep and what might be called general shepherding activities as an incident of a right to graze. So the question is whether, as the judge thought, it has to be exercised on foot except in extreme circumstances. While the extent of the right is to be determined at the date of the grant - or, in this case as I would think since the date of the grant is not known, the date of registration - that does not mean that the means of exercise of that right are fixed by the means customarily available at that earlier date. That that is not so is demonstrated by the quotations I have cited from Antrim: the requisites and mode vary with the requirements of time and locality. If that had not been the law the Earl of Antrim would not have been permitted to build a railway, unknown in the eighteenth century, to exercise a right that was granted in 1737.[24]It seems to me that the judge did not address that issue save by suggesting that Mr John's argument involved an extension of his rights. As I have made plain, in contradistinction to the position in regard to the bringing on of feed, I do not agree. The question is the mode of exercise of rights rather than their extent. In the light of the evidence and, I am bound to say, of common sense, shepherding by vehicle over a large area seems, in the year 2003, to be prima facie a reasonable way to exercise a right to care for the welfare of sheep.[25]That right must however be exercised reasonably and with the minimum interference with the rights of the landowner. It is at this stage that we enter into the difficult area of the case. The judge did not have to deal with this in any detail, nor, in the event, did the parties. As we have seen, he took so limited a view of Mr John's rights as to lead to the very limited order that he made. But what the court now has to consider is what is the reasonable way of exercising Mr John's welfare rights which prima facie may be exercised by vehicle. There must be protected the interests of the landowner in not having his land interfered with or damaged more than is reasonably necessary. It is also highly desirable, particularly against the history of this case, that an order be drawn that so far as possible puts the parties in a position to know exactly what they may do and may not do, in the hope of avoiding further litigation on this subject.[26]Mr Lloyd told us that substantial assistance had been given in that respect by clarification of the position about feed. So be it, but the matter cannot be left there. I have had the benefit of discussing this aspect of the case with my Lord and I think he agrees with the approach I am about to suggest. I have endeavoured to set out what the law is on the subject and the limits that the parties must preserve. Tempting though it is for the court to draft an order for them, possibly with some brief comments by counsel, we do not think that would be a fair course in this case, granted that neither the parties nor their advisers have had occasion properly to consider this aspect of the case before. Therefore we think that the appropriate course would be for the parties, in the light of our observations in this judgment, to seek to agree an appropriate order that would meet the criteria that the court has set out.[27]It may help if we advance further considerations that the parties may wish to have in mind. First, there is reference in the judge's order to keeping "so far as possible" to the tracks and other paths on the course. We are concerned about that order, not because it is not sensible that the track should be used, but by the degree of latitude the phrase "so far as possible" may give. We hope it may be possible to agree a more detailed statement of the circumstances in which it is reasonably necessary to come off the tracks. Second, we think there should be, and it should be understood, that certain particularly vulnerable parts of the course should be visited by vehicle; we have in mind, in particular, the greens and tees should an emergency arise in those areas. We cannot see it would be unreasonable for them to be approached by foot. Third, we heard submissions, but not in the light of evidence, as to the mode of shepherding or collecting the sheep, as opposed to the mode of travelling to inspection of them. Mr Lloyd expressed concern at what we understood to be a practice of using a vehicle simply for rounding up sheep in the way that previously was, and often still is, done by dogs. As presently advised, and subject to further submissions, it is my view that it would not be a reasonable exercise of Mr John's rights to use vehicles in that way. His rights are to graze beasts, and to care for the welfare of those beasts. It does not seem to follow from those rights that he has further rights with regard to the movement of shepherding and so on of the beasts. That may be necessary in order to get them on and off, but, as at present advised, the use of vehicles in that respect should be limited.[28]In the course of argument a draft was produced as to a scheme that might be introduced to protect everyone's interests. We encourage the parties to refer to that to see if agreement can be reached. Any agreed order must be in any event submitted to the court. It does not necessarily follow that what the parties agree will be thought appropriate by the court. If the parties are not able to agree in the light of the guidance we have sought to give they must make submissions in writing to this court supported by such limited written submissions as the parties think appropriate. Those must be exchanged between the parties. I would be minded to direct that the parties return, in writing, to the Registrar of this Court documents to be clearly marked for my attention no later than 28 days from today, that is 28 November. We hope that will enable this most unfortunate dispute to be resolved in a way that gives everyone a fair and proper interest in this land, and sets down limited rules that do not require further litigation.[29]I turn finally to the counterclaim which, as we assumed, was an allegation that the creation of new greens and fairways and the consequent mowing of the grass was an interference with the rights of Mr John and other commoners. The judge's findings in respect of that were set out in paragraphs 40 to 42 of the judgment in the following terms:
"40 ..... The proportion of post-1994 greens, fairways and tees to the common as a whole is very small indeed: it is the proportion which 13.94 bears to 3.750 or .37%. It is clear that the sheep enjoy the grass on the fairways, tees and greens because there are photographs of them in large numbers on these features of the golf course. I accept the evidence of Mr Price"
I interpose, the Tees and Greens Secretary of the golf club, "that if the grass was not mown not only would golf become impossible to play, but also the common would revert in the end to its original state of long rough grass. 41 In my judgment the mowing of the greens, fairways and tees does not materially diminish the amount of grass available to Mr John's sheep or to the other sheep which are entitled to graze it. On the basis of my own personal knowledge in keeping sheep, sheep enjoy short grass, in contradistinction to cattle, which eat long grass. Moreover, the photographs show a large number of sheep on the fairways enjoying the short grass and appear to me to confirm that the mowing of the fairways is not a substantial interference with Mr John's rights of common. 42 The second leg of [counsel's] arguments on behalf of Mr John concerns the greens, fairways and tees themselves. Irrespective of their mowing, he says that they represent an unreasonable interference with Mr John's rights of access. In my view, there is nothing in that argument, given that Mr John has minimal rights of access with a vehicle in any event. The fairways, greens and tees to which he objects are in any case a small portion of the area of the common as a whole. They do not, in my view, materially interfere with such rights of taking a vehicle on to the golf course as Mr John enjoys, and they do not give him, in these circumstances a cause of action."[30]Mr John's case, at least as I now understand it, is not that the mowing interferes with his bringing on of the vehicles but that mowing interferes with what one might call the basic and unchallenged right of his sheep to eat the grass. Complaint is made that the judge should have concentrated on the "hefted" area occupied by Mr John's sheep. I disagree. As against the landowner, the rights of Mr John extend over the whole common. I have already quoted what the judge said about that in paragraph 4.[31]We were pressed with the decision of Mr Justice Blackburne (Vice-Chancellor of the County Palatine of Lancaster) in B & Q v Liverpool & Lancashire Properties Ltd [2001] 1 EGLR 93, and in particular that judge's adoption of the judgment of Mr Justice Scott in Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204. Those cases are not relevant here. B & Q was a case about a right of way where the mode of use of the whole way, that is to say elimination of the use of the whole way, was restricted by a change in the nature of the servient tenement. Here the "hefting" restriction was of Mr John's choice, not as against the landowner, but presumably as against other commoners.[32]Further, insofar as the general complaint of the commoners is concerned, this case is about Mr John's rights. He is not pursuing it on behalf of other commoners. However those considerations are irrelevant because the judge found in any event that the sheep could graze on the mown course.[33]It is complained that that finding did not give proper weight to some evidence that Mr John gave in cross-examination and also to his assertion - as that also of Mr Jones - that his right of common had been restricted. What Mr John was asked in cross-examination was whether it was the case that sheep graze on the mown area, and whether they liked it because it was sweet, green grass. Mr John replied at page 157 C:
"A. ..... - - to be honest I would'nt say it's any advantage to us that grass there because it's mown so hard that there's hardly any there for the sheep ..... "
[34]Whether it is an advantage to have that particular grass is not the point. What Mr John must demonstrate is the ability of his sheep to eat the grass had been unreasonably restricted in the light of evidence that they did eat the grass.[35]In my judgment the judge was fully entitled to find - having heard that evidence and seen the photographs and evidence of sheep on the fairways - that the golf course was indeed usable for grazing and that the use had not been materially (that is the appropriate phrase) reduced.[36]Complaint is made that the judge drew on his own knowledge as a sheep farmer. It is clear from the structure of his judgment that he regarded that observation as only supplementary to the evidence he had actually seen and heard, and did not draw on his own knowledge for any other purpose. Also I am bound to say that the judge's findings seem to be to be a matter of common sense. By constructing the course, the land was turned from rough ground into mown short grass. I am not a sheep farmer, and I understand my Lord is in similar case, but one does in the course of life come across sheep from time to time, and I find it very difficult to accept that the judge was wrong in thinking that they were better off with short grass rather than the unmown common. But whatever my own view, the judge made his decision and it cannot be challenged.[37]Had I been in more doubt, I would nonetheless not have been willing to grant injunctive relief in this case. The evidence was that the injunction sought would prevent the use of the golf course at all. I do not think that would be a reasonable outcome, not least because of the state of the evidence.[38]I would therefore only allow the appeal to the limited extent set out in respect of the right to bring vehicles on to the land. I would invite the parties to consider, in the light of this judgment and any judgment my Lord may deliver, the terms of an order in that respect.

LORD JUSTICE LAWS: I agree that this appeal should be allowed to the limited extent and for the reasons given by my Lord. I agree also with the course of action proposed by him to be included in due course in an appropriate order in the light of this court's judgment.

Order

Appeal allowed with the appellant to pay two-thirds of respondents costs in Court of Appeal and two-thirds of costs in court below. Permission to appeal was refused.

Cited in 1 later judgment