Loveluck-Edwards & Anor v Ideal Developments Ltd. & Anor [2012] EWHC 716 (Ch)

[2012] EWHC 716 (Ch)

Case No 9CF30134

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue CARDIFF DISTRICT REGISTRY, Cardiff Civil Justice Centre, 2 Park Street, Cardiff, CF10 1ET

Date 22/03/2012

Before

MR JUSTICE MORGAN

Between

(1) WILLIAM EWART LOVELUCK-EDWARDSClaimants

(2) BEATRICE PATRICIA DAWN LOVELUCK-EDWARDSClaimant

Mr George Newsom (instructed by David and Snape) for Claimants

Mr Jonathan Russen QC (instructed by Robertsons) for First Defendants

Mr John Sharples (instructed by Berry Smith LLP) for Second Defendants

Hearing Hearing dates: 17 th– 20 th and 24 th January 2012

Judgment

Introduction

[1]This case concerns a claim by the Claimants to a right of way, with or without vehicles, and on foot, over a lane or track known as Broadlands Lane and over an area of land which at one time formed part of the farmyard of Broadlands Fawr Farm and which more recently has become part of the curtilage of Broadlands Fawr Farmhouse. The Claimants are the owners of adjoining or neighbouring land known as Broadlands House, which they say is the dominant tenement in relation to the right of way. The land which the Claimants say is the servient land is in two separate ownerships. Broadlands Lane is owned by the First Defendants and the Broadlands Fawr Farmhouse and its curtilage is owned by the Second Defendants.

[2]The claim to a right of way is put in various ways. Two of those ways are based on the circumstances surrounding a conveyance in 1920, which severed the title to the two parcels of land which are now said to be the dominant and the servient tenements respectively. The Claimants say that the claimed right of way passed to the purchaser under the conveyance (the purchaser being a predecessor in title of the Claimants) either pursuant to the general words to be inserted by section 6 of the Conveyancing Act 1881 or by implication in accordance with the general rules as to the implication of a grant of an easement. The Defendants contend that no such grant is to be read into, or implied into, the 1920 conveyance. In the alternative, the Claimants say that they are entitled to an easement by prescription, based on long use of the way. The claim to prescription is based on the doctrine of lost modern grant, alternatively on the Prescription Act 1832. The Defendants deny that a right has been acquired by prescription and contend, in particular, that the use which is relied upon by the Claimants was permitted by the owner of the alleged servient tenement and was therefore not use as of right.

[3]The resolution of these issues principally raises matters of fact, first, as to the state of affairs on the ground at the time of the 1920 conveyance and, secondly, as to whether there was permission for the use on which the Claimants rely for the purposes of their claim in prescription.

[4]If I were to hold that the Claimants did have the benefit of a right of way over the land of the First Defendants and of the Second Defendants then a number of further issues would arise. These would include an issue as to whether the court should grant an injunction to require the Defendants to remove obstructions to such right of way or whether the court should leave the Claimants to their remedy in damages. If damages were to be awarded, then there is an issue as to the amount of such damages. Further, if the Claimants did have the benefit of a right of way over the land of the Second Defendants, the Second Defendants, who bought their land from the First Defendants claim damages from the First Defendants; that claim raises a large number of issues, some of fact and many of law.

[5]As will be seen, my conclusion is that the Claimants have failed to establish that they had the claimed, or any, right of way. It follows that they are not entitled to a remedy against the Defendants, whether a remedy by way of injunction or by way of damages. Nonetheless, I will indicate in this judgment, what I would have decided in relation to the further issues arising in relation to the Claimants’ claim if those further issues had needed to be decided. Furthermore, the Second Defendants’ Part 20 claim to damages against the First Defendants does not arise. In these circumstances, I have decided that I will not determine, in this judgment, the many issues which would have arisen in relation to the Part 20 Claim if the Claimants had established the easement which they claimed. I will consider with counsel following the handing down of this judgment whether, and in what way, I should indicate what I would have decided in relation to the Part 20 claim if it had been necessary to decide it.

[6]Mr Newsom appeared on behalf of the Claimants, Mr Russen QC appeared on behalf of the First Defendants and Mr Sharples appeared on behalf of the Second Defendants. I am grateful to all counsel for the assistance which they gave me.

The Claimants’ land

[7]The Claimants, Mr & Mrs Loveluck-Edwards, are the freehold owners of land and buildings known as Broadlands House, Laleston, Bridgend. That land is registered at the Land Registry under title number CYM6344. The land in this registered title, together with other land, was the subject of an indenture dated 14th December 1920, to which I will later refer in detail. Mr Loveluck-Edwards acquired the freehold of Broadlands House on 21st March 1969 and he transferred the title to himself and his wife on 21st December 2000. Following that transfer, title to the land was registered at the Land Registry. Since the initial registration of Mr & Mrs Loveluck-Edwards, they have transferred a part of the registered land by a transfer dated 19th January 2007 in favour of a Mr Poor. The transferred land is now registered under title number CYM341631 and the current registered proprietor of that land is a Mr Byrne.

The 1920 indenture

[8]The Claimants’ land was, together with other land, conveyed by the indenture dated 14th December 1920. The terms of that indenture are of central importance in this case. A plan annexed to the indenture identified three parcels of land in particular. The principal area of land conveyed was shown coloured pink and edged red. A second area of land conveyed was shown coloured green. The plan also identified two large areas of land coloured brown. The land coloured green, which was a drive or roadway, ran between the two areas coloured brown.

[9]The indenture dated 14th December 1920 was made between Mr John as the Vendor and Mr Rees as the Purchaser. Mr John’s address was in Bridgend and not at or adjoining the land conveyed. Mr Rees’ address was given as “Broadlands” which was the then name of the house on the land conveyed. Mr John appears to have acquired his title to the land which he was conveying by an earlier indenture dated 28th March 1919.

[10]The land conveyed by the 1920 indenture was described as: “All those pieces of land situate and being in the Parish of Laleston in the County of Glamorgan together with the dwelling house greenhouses outbuildings and premises occupied therewith and known as “Broadlands” in the Parish of Laleston aforesaid and now in the occupation of the Purchaser and Together also with the carriage drive leading thereto from the main road from Laleston to Merthyr Mawr and which said land dwelling house outbuildings and premises are more particularly delineated on the plan drawn hereon and thereon coloured pink and the carriage drive being coloured green and which said premises containing the whole by admeasurement as to the portion coloured pink three acres and sixteen perches or thereabouts and as to the carriage drive coloured green eight hundred and eleven square yards or thereabouts”.

[11]The 1920 indenture contained an express grant of a right to the purchaser in the following terms: “Together with the following rights and easements namely the right of ingress egress and regress for the Purchaser his heirs and assigns and his and their workmen and others over and along the adjoining land of the Vendor for the purpose of laying and maintaining one line of water pipes for the purpose of supplying “Broadlands” with water from a well to be sunk on land belonging to the Vendor or from a place where pipes may be connected with the pipes of the Bridgend Water Company”.

[12]The 1920 indenture was subject to two reservations in favour of the Vendor. The first reservation was in these terms: “Reserving nevertheless unto the Vendor and heirs and assigns owners for the time being of the adjoining piece of land coloured brown on the said plan and his and their servants, workmen and other persons authorised by him or them the right in common with the Purchaser his heirs and assigns to pass with or without horses carts motors or agricultural machines or other vehicles over and along the road coloured green on the said plan and to cross same from one side to the other in the use of his lands on both sides of the said road making good all damage to the said road occasioned by his use thereof or paying to the Purchaser a fair proportion of the cost of repairing the same”.

[13]The second reservation in the 1920 indenture was in these terms: “And also reserving to the Vendor his heirs and assigns owners for the time being of Broadlands Farm the like right of way and passage over and along the roadway between the points marked “A” and “B” on the said plan”.

[14]There are several points to notice as to the express terms of the 1920 indenture. The land conveyed was known as “Broadlands”. The land conveyed in 1920 is now owned by the Claimants, save that the Claimants have sold off the eastern part of that land and have also transferred a further part of it by the transfer of 19th January 2007 (to which I have referred). At the time of the indenture, the Purchaser was in occupation of the land conveyed. The land conveyed in 1920 included a number of buildings referred to as the dwelling house, greenhouses and outbuildings.

[15]The easement expressly granted to the Purchaser by the 1920 indenture refers to “the adjoining land of the Vendor” and “land belonging to the Vendor” but that land is not more specifically described. The first reservation contained in the indenture refers to the “adjoining piece of land coloured brown”. The second reservation refers to the owners for the time being of “Broadlands Farm”, which is not more specifically described. The second reservation refers to points marked “A” and “B” on the annexed plan. Point A is on the land coloured brown, which was clearly land retained by the Vendor. Point B lies to the north of the land conveyed and the land surrounding point B is not coloured on the plan.

[16]The plan shows a number of buildings on the land conveyed and these buildings can be identified as the main house, a structure behind the main house (now known as the mews property) and a further structure behind the mews property (now known as the Long House).

[17]The evidence before me included an aerial photograph of the complex of buildings at Broadlands House and the buildings to the north. The aerial photograph shows the position before the major housing development on adjoining land which has more recently been carried out by the First Defendants. The buildings on the land conveyed in 1920 can be readily identified in this aerial photograph.

[18]To the north of the land conveyed in 1920, further buildings are shown on the plan annexed to the 1920 indenture. First, there is a building which appears to abut directly onto the Long House. In more recent times, continuing up to the present, this building has been used as a substantial house. Further north still, there are other buildings and it is possible to see these other buildings on the aerial photograph to which I have referred. I would deduce that in 1920 these other buildings were farm buildings. The aerial photograph shows many more farm buildings than were depicted on the 1920 plan, but nothing turns on that.

[19]The 1920 plan contains some markings to which it may be relevant to refer. The plan shows the carriage drive leading from the main road running between Laleston and Merthyr Mawr, now the A48. The carriage drive runs between the two fields (coloured brown) retained by the Vendor and enters to the south of the principal property which is conveyed. The lines on the plan suggest that the carriage drive widened out significantly as it entered the principal property which is conveyed. The plan shows a turning to the right from the wider part of the carriage drive and this turning runs along the front of the main house. Further, a dotted line on the plan suggests that the area intended to be used for carriages or cars came to an end south of the northern boundary of the land conveyed. At this point, there is a line running east west on the plan. North of this east west line is an open area which might have been a yard giving access to buildings surrounding the yard.

[20]Apart from what is shown on the 1920 plan, I was not given evidence as to the physical position on the ground at the date of the 1920 indenture but I was given evidence as to the buildings on the Claimant’s land in and after 1969 and the various changes to those buildings.

[21]It is possible to speculate as to what is shown on the 1920 plan. The line running east west is potentially significant. That line might have been depicting something which was a barrier to a vehicle, and possibly even to a pedestrian, moving from the carriage sweep into the yard to the north, that is, above the line on the plan. If that had been the case, then one can speculate as to how a vehicle might have accessed the yard, if at all. One possibility is that a vehicle might have accessed the yard by coming over land to the north, which was not conveyed, and driving south into the yard. The plan is not dated. It is also possible that the position on the ground at the date of the conveyance was not identical to what is shown on the plan.

[22]To the right of the Long House there was in 1920, and still is today, a building which has been referred to as the Coachman’s House or the Coach House. Mr Loveluck-Edwards told me that even as late as 1969 when he acquired Broadlands House, the access to this building was over the land to the north which had not been conveyed in 1920. Subsequently, Mr Loveluck-Edwards created an alternative access into this building from his own land and blocked up the entrance from the land to the north.

[23]The 1920 plan has the words “Broadland Fawr” written beside the buildings shown on the plan. The terms of the indenture itself refer to “Broadlands” and “Broadlands Farm” but these descriptions are not used on the plan. From the position of the words “Broadland Fawr” on the plan it is not completely clear whether those words refer to all of the buildings shown on the plan (i.e. both the buildings which are conveyed and those not conveyed) or whether they refer only to the buildings which are not conveyed.

[24]I should also refer to other features, relating to the land which was not conveyed by the 1920 indenture, as those features appear on the 1920 plan. The plan shows a marked track running from west to east and then turning southwards into an open area, probably a farmyard, in front of the various farm buildings. The plan shows further marked tracks running in an easterly direction away from the farm buildings.

[25]It is convenient at this point to refer to a physical feature which was undoubtedly later in existence on the land to the north of the land conveyed in 1920 but which was not shown on the 1920 plan. At some time after 1920, there was a lawn laid out in front of Broadlands Fawr Farmhouse. The western edge of the lawn was marked by a wall and to the west of the wall was a track. The track led up to the northern boundary of Broadlands House. This physical feature is shown, for example on the 1970 Ordnance Survey for the area but was not shown on the 1920 plan. I was also given evidence that, at the point where this track reached the northern boundary of Broadlands House, there were two stone pillars, one on either side of the track. There was no evidence as to when the pillars were erected. A gate was hung on one of the pillars and whilst the gate could be closed, it was usually left open.

The First Defendants’ land

[26]Ideal Developments Limited and Westbury Homes (Holdings) Limited are together the First Defendants. The First Defendants are the freehold owners of an area of land registered at the Land Registry under title number CYM71370. I will refer later in this judgment to the circumstances in which the First Defendants acquired this title. The First Defendants’ title includes the freehold of the track which has been referred to as Broadlands Lane. The western end of Broadlands Lane starts at Gypsy Lane and Broadlands Lane then continues up to the land (known as Broadlands Fawr Farmhouse) conveyed by the First Defendants to the Second Defendants, Mr & Mrs Dyke, on 27th February 2004. I understand that at all material times, there has been a public right of way on foot along Broadlands Lane.

The Second Defendants’ land

[27]On 27th February 2004, the First Defendants transferred to the Second Defendants the freehold of the land known as Broadlands Fawr Farmhouse and the Second Defendants became registered proprietors of that land under title number CYM172113. There is a point of detail which I should mention in relation to the precise position of the northern boundary of the Second Defendants’ land. The plan which is part of the Second Defendants’ registered title, CYM172113, shows the boundary in a certain place whereas the plan to the First Defendants’ title CYM71370 shows the same line as on the Second Defendants’ title but also shows two small additional areas of land. The boundary structures erected by the Second Defendants, with the express approval of the First Defendants, enclose a larger area which includes these two small additional areas but yet these two small additional areas are not part of the registered title of the Second Defendants and remain in the registered title of the First Defendants.

Further conveyancing history

[28]The conveyancing documents indicate that, on 1st July 1967, Evan Howell and John Howell acquired land described as Broadlands Fawr Farm which, at that time, included the track known as Broadlands Lane and the farmyard and farm buildings and farmhouse known as Broadlands Fawr Farmhouse.

[29]By 1991, the land at Broadlands Fawr Farm was plainly being considered for redevelopment because on 12th September 1991, Evan Howell and John Howell granted an option over a large part of Broadlands Fawr Farm in favour of Ideal Developments Limited. It is clear from the plan annexed to that option that, at that date, the Howells were the owners of Broadlands Fawr Farm which included the farmhouse and farmyard later conveyed to the Second Defendants, Broadlands Lane and also a number of fields surrounding the farmyard and, indeed, surrounding Broadlands House. Those fields included the land coloured brown on the 1920 indenture. On 20th January 1993, Ideal Developments Ltd assigned its rights under the option of 12th September 1991 to Ideal Developments Ltd and Westbury Homes (Holdings) Ltd.

[30]In the early 1990s, the Claimants were obviously aware of such plans as existed for the redevelopment of the area around their property. The Claimants appointed a Mr Joseph of the firm of John David Watts & Morgan (later Watts & Morgan) to act on their behalf. In December 1994, Mr Joseph and Mr Rix of Ideal Developments Ltd met to discuss possible collaboration in relation to the possible redevelopment. On 20th December 1994, Mr Joseph wrote to Ideal Developments Ltd stating that Mr Loveluck-Edwards was prepared to give up “his existing vehicular access arrangements, access land strips and rights of way”. The letter did not specifically identify the position of these matters on the ground although that may have been considered at the meeting between the parties.

[31]On 22nd December 1994, Ideal Developments Ltd replied to Mr Joseph. There was a plan attached to that letter. The Claimants’ property was shown edged red on the plan. The land edged red included the main drive from the A48 running north to Broadlands House. A route leading from Gypsy Lane to Broadlands House was marked brown on the plan. The brown colouring ran from the western end of Broadlands Lane (beginning at Gypsy Lane) along Broadlands Lane, through the farmyard at Broadlands Fawr Farmhouse right up to the northern boundary of Broadlands House. The letter of 22nd December 1994 referred to “the driveways” and “the existing driveways” but these were not more specifically identified.

[32]On 24th March 1995, Ideal Developments Ltd wrote again to Mr Joseph. The letter referred to “the driveways” and “the existing driveways” but these were not more specifically identified. A plan attached to this letter showed the same position as was shown on the plan attached to the letter of 22nd December 1994, save that the way leading from Gypsy Lane to the northern boundary of Broadlands House was coloured red rather than brown.

[33]On 5th April 1995, the option agreement of 12th September 1991 was varied. The First Defendants exercised this option on 4th April 1997.

[34]On 30th October 1997, Persimmon Homes wrote to Mr Joseph. The letter was signed by Mr Andrew Crompton on behalf of Persimmon Homes. Persimmon Homes was effectively the trading name for Ideal Developments Ltd and Westbury Homes (Holdings) Ltd who had become the owners of the land which was beginning to be developed. Mr Crompton stated that the development had started on site and that he noticed from “my files” that Mr Joseph had entered into “much correspondence” with his predecessor at Ideal Developments Ltd.

[35]On 28th November 1997, Mr Joseph wrote to Mr Crompton of Persimmon Homes, following a meeting the previous day. Mr Joseph raised a number of matters as regards the development to be carried out by Persimmon Homes and the possibility of a development by the Claimants of Broadlands House. The letter referred to a possible sale of the eastern part of the land of Broadlands House and this sale later took place. The letter then referred to the Claimants’ “access road and prescriptive rights of way (over what is now their rear access to Gypsy Lane)”. This was clearly a reference to the means of access from Gypsy Lane along Broadlands Lane and in front of Broadlands Fawr Farmhouse to the northern boundary of Broadlands House. The letter discussed changes to the main driveway from the A48 to Broadlands House. As regards “the prescriptive right of way”, the letter referred to this right being surrendered and the fact that it would be “most helpful” if Persimmon Homes would agree “some form of rear access”.

[36]On 3rd February 1998, Mr Crompton replied to the letter of 28th November 1997. He did not question the statement that the Claimants had a prescriptive right of way as described by them. He responded to the suggestion that the prescriptive right of way be surrendered and the possibility of some form of rear access to Broadlands House. He stated that he did not see any problems in accommodating this requirement which could be designed into the new road system.

[37]On 29th July 1998, Persimmon Homes wrote to Mr Joseph with revised heads of terms relating to the proposed arrangements with the Claimants. The heads of terms provided for the house builders to acquire the eastern part of the land at Broadlands House and, in addition, to be granted an option which, in summary, would allow the house builders to build a distributor road for their housing development which cut across the pre-existing access drive to Broadlands House, following which the southern part of the access drive would be transferred by the Claimants to the house builders. These heads of terms did not mention the question of rear access which had been referred to in the letters of 28th November 1997 and 3rd February 1998.

[38]In accordance with the above heads of terms, Mr Loveluck-Edwards granted an option to the First Defendant on 24th November 1998. Mr Loveluck-Edwards was himself a solicitor and the option agreement identified his solicitors as Loveluck-Edwards & Co. In the event of the First Defendants exercising this option, they were entitled to construct a distributor road for the purposes of their housing development so that the distributor road would cut across the driveway from the A48 to Broadlands House and, following the construction of the distributor road, Mr Loveluck-Edwards would convey the southern part of the existing driveway (that is between the A48 and the new distributor road to the north) to the First Defendants. In view of certain evidence given at the trial by Mr Loveluck-Edwards to the effect that the owners of Broadlands Fawr Farmhouse had a right of way across Broadlands House and in particular along the drive from Broadlands House to the A48, it may be relevant to note that under the option agreement, Mr Loveluck-Edwards was obliged to transfer good title free from incumbrances and the option agreement did not mention any pre-existing incumbrance over the driveway in favour of Broadlands Fawr Farmhouse.

[39]In February 2002, the First Defendants raised enquiries of the Howells. It is not clear which parcel of land was the subject of those enquiries because the plan referred to the enquiries has not been identified. Following the enquiries, on 22nd April 2002, there were two transactions between the First Defendants and the Howells. On the 22nd April 2002 the Howells transferred to the First Defendants the freehold in part of their farm and the land transferred included the western part of Broadlands Lane. On the same day, the Howells entered into a contract with the First Defendants to transfer the remaining part of Broadlands Fawr Farm. This land included the remainder of Broadlands Lane and the farmyard of Broadlands Fawr Farmhouse. Accordingly, whether the enquiries related to the land transferred or the land the subject of the contract, that land included a part of Broadlands Lane. Enquiry 4.3 enquired as to any “paths” or rights of way over the land. If there were paths or rights of way, the enquiry asked for details of easements or grants or similar rights. The Howells answered this enquiry by saying there was a “public footpath only”. As I have already described there was a public right of way on foot over Broadlands Lane but not over the farmyard itself. Enquiry 7.1 was in these terms:

“ Is the Seller aware of any rights or informal agreements specifically affecting the Land, other than any already disclosed to the Buyer’s Solicitors prior to today’s date, which are exercisable by virtue of an easement, grant, wayleave, licence, consent, agreement or otherwise or which are in the nature of public or common rights?”

The Howells answered this enquiry “no” but stated that the land was sold subject to any that might exist.

[40]Enquiry 7.2 enquired as to overriding interests as defined by section 70(1) of the Land Registration Act 1925 and the Howells answered “no” but again the land was stated to be sold subject to any that might exist.

[41]I have referred to the transfer dated 22nd April 2002 relating to part of the Howell’s land and the agreement of the same date relating to the remainder of the Howell’s land. That agreement was to be completed on the 22nd April 2002 and it seems that the land was transferred on or about that date. Up to this time, Mr Evan Howell occupied the farmhouse at Broadlands Fawr and it is not clear whether he vacated the farmhouse in April 2002 although it seems more likely that he continued to occupy the farmhouse and the farmland for a time under a farm business tenancy. In any event, it seems to be common ground that the Howells vacated Broadlands Fawr Farmhouse some time before the sale of Broadlands Fawr Farmhouse to the Second Defendants on 27th February 2004.

[42]There were enquiries raised of Mr Loveluck-Edwards by Westbury Homes (Holdings) Ltd. The enquiries and the answers were undated but it seems likely that they were raised and answered prior to July 2002 when there were certain transactions between the Claimants and the First Defendants. Although the enquiries refer only to Mr Loveluck-Edwards and not Mrs Loveluck-Edwards and refer only to Westbury Homes (Holdings) Ltd and not to Ideal Developments Ltd the enquiries were plainly intended to be between all parties to the transactions of July 2002. In view of the evidence Mr Loveluck-Edwards gave at the trial that the owners of Broadlands Fawr Farmhouse had a right of way over the drive from Broadlands House to the A48, I refer to the fact that Mr Loveluck-Edwards’ answers to enquiries7.1 and

7.2 were to the effect that he was not aware of any rights or informal agreements affecting the land or any overriding interests in relation to it.

[43]On 23rd July 2002, the Claimants and the First Defendants entered into an option agreement which was supplemental to the earlier option agreement of 24th November 1998. On the same day, the Claimants transferred to the First Defendants the southern part of the drive from Broadlands House to the A48 with the intent that the First Defendants would construct a distributor road which would cut across the driveway. Also on 23rd July 2002, the First Defendants granted to the Claimants certain temporary rights of way and also a permanent right of way which allowed the Claimants to leave Broadlands House by entering upon a new estate road to be constructed and via that estate road to reach and then travel along the new distributor road.

[44]In January 2004, solicitors acting for the Second Defendants raised General Enquiries before Contract of the First Defendants in connection with a proposed sale by the First Defendants to the Second Defendants of Broadlands Fawr Farmhouse. Enquiry 5 related to adverse rights and was in these terms:

“5.1 Are there any – a) adverse rights of way, water, drainage or light, wayleaves, or any other easements, rights or liabilities, public or private; b) cables, wires, pipes or other things lying under, across or over the Property and not solely serving it? 5.2 Are there any present or anticipated adverse claims by neighbouring owners or occupiers?”

[45]Enquiry 7 related to disputes and was in these terms:

“7.1 Are there any disputes regarding any aspect of the Property or its use? 7.2 Is any such dispute anticipated?”

[46]The form used for the enquiries before contract contained a column for the replies and the heading to this column stated:

“The following replies are given to the best of the Seller’s knowledge, information and belief.”

The First Defendant’s answer to enquiry 5.1 was:

“Please see the draft Transfer for the rights granted and reserved.”

[47]The First Defendant’s answer to enquiries 5.2,7.1 and

7.2 were in the same terms, as follows: “None to the Vendor’s knowledge”.

[48]On 27th February 2004, the First Defendants contracted to sell Broadlands Fawr Farmhouse to the Second Defendants for the price of £200,000. The agreement was subject to the Standard Conditions for Sale (Third Edition) insofar as those standard conditions were not inconsistent with the terms of the contract. Clause 9.2.4 of the contract specifically amended standard condition 3.1.2 in a way to which I will refer. By clause 10.4, the property was sold subject to all easements, quasi easements, rights, exceptions or other similar matters whether or not apparent on inspection or disclosed in any of the documents referred to in the contract. By clause 12.2, it was agreed that the contract formed the entire contract between the parties to the exclusion of any antecedent statement or representation whether oral written or implied or whether contained in any advertisement particulars or other matters issued or in any correspondence entered into by the Seller or his servants or agents and the Buyer acknowledged that they had not entered into the contract “in reliance upon any such statement or representation other than those (if any) which may have been given in any written reply from the Seller’s solicitors prior to today’s date”.

[49]Standard condition 3.1.2 identified a number of incumbrances subject to which the property was sold. Condition 3.1.2(A) referred to incumbrances mentioned in the agreement. Other parts of condition 3.1.2 referred to incumbrances discoverable by inspection before the contract and to incumbrances which the Seller did not and could not know about. This standard condition was extended by clause 9.2.4 of the contract which provided that the property was sold subject to all overriding interests and all matters which would be revealed by the searches, enquiries and inspection which a prudent buyer would make. Standard condition 7 dealt with remedies. Condition 7.1 under the heading “errors and omissions” included the following:

“7.1.1 if any plan or statement in the contract, or in the negotiations leading to it, is or was misleading or inaccurate due to an error or omission, the remedies available are as follows. 7.1.2 when there is a material difference between the description or value of the property as represented and as it is, the injured party is entitled to damages.”

[50]Completion of the contract took place on the same day as the contract was entered into and the property at Broadlands Fawr Farmhouse was transferred by the First Defendants to the Second Defendants. The transfer granted a number of rights and contained a number of covenants. By paragraph1.1 of Part Two of the transfer, the First Defendants granted to the Second Defendants a right of way over Broadlands Lane but only until adoption of certain roads (defined as “the Adoptable Roads”) which were to be constructed within the First Defendants’ development and which were intended to become maintainable at public expense. By

1.2 of Part Two of the transfer, the First Defendants granted to the Second Defendants the right at all times and for all reasonable purposes to pass and re-pass with or without vehicles over the Adoptable Roads. The plan attached to the transfer showed the land transferred and in particular, showed that the land transferred abutted on to an intended estate road which was to be one of the Adoptable Roads. The right of way over this intended Adoptable Road would result in anyone leaving Broadlands Fawr Farmhouse turning right over the Adoptable Road and following the Adoptable Road out of the surrounding housing development. Paragraph 3 of Part Four of the transfer was a covenant by the Second Defendants with the First Defendant to erect a fence between points A, B, C, D, E, F, G and H on the attached plan with the height, type and materials of construction to be agreed with the First Defendants prior to commencement of the work. The points marked on the plan followed the boundary between the land transferred and the First Defendants’ intended housing development. The boundary between the transferred land and Broadlands House was not the subject of this fencing covenant.

Events between 2003 and the commencement of proceedings

[51]It is appropriate at this point to give a brief account of certain events between 2003 and the commencement of these proceedings on 21st December 2009. In around 2003, the Howells moved out of Broadlands Fawr Farmhouse. There was then an incident witnessed by Mrs Loveluck-Edwards where some intruders stole certain doors which had been stored outside Broadlands House. The intruders had driven in through the open gates which separated Broadlands Fawr Farmhouse from Broadlands House. The Claimants wished to erect some barrier to prevent intruders gaining access to their property at that point. They put down some logs or cut sections of tree trunk to prevent the gate being opened. It is not clear whether this arrangement prevented pedestrian access at that point but it did prevent vehicular access. That arrangement remained in place for a few months, possibly continuing until early 2004, and then the Claimants removed the logs or tree trunks.

[52]Although the Second Defendants completed their purchase of Broadlands Fawr Farmhouse on 27th February 2004, they did not immediately move into the house. Instead, Mr Dyke, who is a builder, set about doing certain building works at the property. By July 2004, this building work had resulted in a blockage of the route through from Broadlands House to Broadlands Fawr Farmhouse. Mr Dyke had dug a trench for an intended wall to close off the opening between the two properties and Mr Dyke had erected some Heras fencing across that opening.

[53]On 14th July 2004, Mr Loveluck-Edwards wrote to the First Defendants stating that, by agreement between the Claimants and the Second Defendants, the point of access was temporarily impeded. On 22nd October 2004, Mr Loveluck-Edwards wrote to Mr Dyke stating that the Claimants were quite happy with the “temporary gate” but stressed that the Claimants were not abandoning the right of way through the curtilage of Broadlands Fawr Farmhouse. On 3rd October 2005, that is more than 1 year after the letter of 14th July 2004, Mr Loveluck-Edwards wrote to Mr Dyke formally protesting about a pile of stones which had been placed against the fencing which closed off the opening between the two properties. On 1st November 2005, the solicitors for the Claimants wrote to the solicitors for the Second Defendants asking the Second Defendants to remove their obstructions to the route of the way within 7 days of the letter. On 23rd January 2006, Mr Joseph on behalf of the Claimants wrote to the Second Defendants asking the Second Defendants to remove the obstacles to the claimed right of way. On 24th January 2006, Mr Joseph wrote to the Second Defendants giving them permission to block the opening between the two properties for a period of 3 months i.e. up to 24th April 2006. On 28th April 2006, Mr Joseph extended the period of the permission to 24th July 2006. On 26th June 2006, Mr Joseph extended the period of the permission to 30th September 2006. One year from 24th January 2006 expired on 24th January 2007; there does not appear to have been any letter from the Claimants to the Second Defendants protesting at the obstruction of the route of the way between 30th September 2006 and 24th January 2007. It was not until 3rd October 2008, that Mr Joseph wrote again to the Second Defendants, this time stating that the Claimants were not prepared to agree to the construction of a permanent stone wall but agreeing to allow the Second Defendants to continue to block the route of the way for a further period of 3 months, that is until 3rd January 2009. The present proceedings were brought on 21st December 2009.

The statutory general words

[54]The first way that the Claimants put their case is to rely on section 6 of the Conveyancing Act 1881 and/or section 62 of the Law of Property Act 1925. Section 6 of the 1881 Act was in force at the time of the 1920 conveyance and the 1925 Act had not then been passed. However, section 6 of the 1881 Act was re-enacted by section 62 of the 1925 Act and section 62(6) provides that section 62 applies to conveyances made after 31st December 1881. Accordingly, I will refer to the provisions of section 62 of the 1925 Act rather than to the identical provisions of section 6 of the 1881 but it matters not as the provisions are the same.

[55]Section 62 of the 1925 provides:

“62 General words implied in conveyances (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses, other buildings conveyed, or any of them, or any part thereof. (3) … (4) This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance and to the provisions therein contained. (5) This section shall not be construed as giving to any person a better title to any property, right, or thing in this section mentioned than the title which the conveyance gives to him to the land or manor expressed to be conveyed, or as conveying to him any property, right, or thing in this section mentioned, further or otherwise than as the same could have been conveyed to him by the conveying parties. (6) This section applies to conveyances made after the thirty-first day of December, eighteen hundred and eighty-one.”

[56]The Claimants say that, by reason of this statutory provision, the 1920 conveyance has effect as if it contained an express grant of the right of way which the Claimants assert. The section potentially applies in a number of different circumstances. It refers to easements rights and advantages which appertain or which are reputed to appertain. It further refers to easements rights and advantages which are occupied or enjoyed with or reputed or known as part or parcel of or appurtenant to the land and/or the buildings conveyed. There can be some overlap between these possibilities. A right or advantage which is enjoyed with the land conveyed may also be reputed or known as appurtenant to the land conveyed. In this case, the Claimants contend that the right of way which they claim was enjoyed with the land and buildings when they were conveyed in 1920.

[57]The established rules as to the operation of section 62 are not in dispute in this case. In a case based on the claimed right being “enjoyed with” the land conveyed, the operation of the section turns upon whether the claimed right was enjoyed in fact. As regards section 62(4) of the 1925 Act, which refers to the possibility of a contrary intention, the search is for a contrary intention “expressed in the conveyance”. The fact that the claimed right is not expressly granted does not amount to the expression of a contrary intention. Further, the express grant of a more limited right would not by itself amount to the expression of an intention contrary to a wider grant.

[58]Accordingly, whether the conveyance has the effect, by reason of the statutory provision, as if it contained an express grant of the right which is claimed, turns on whether the claimed right was enjoyed with the land and buildings at the time of the 1920 conveyance. The burden of proving the necessary facts as to such enjoyment is on the Claimants. The standard of proof is on the balance of probabilities.

[59]I have already described in some detail the information which is provided by the express terms of the 1920 conveyance and the plan referred to in it. Apart from that information, there was no further direct evidence as to the position on the ground in 1920. It may be possible to infer from evidence which relates to a later period what the position might have been at an earlier period. I will therefore consider the information provided by the 1920 conveyance and its plan but I will also take into account any later relevant evidence even though it directly relates to a period after 1920.

[60]The evidence appears to me to support the following statements: i) Mr John, the vendor under the 1920 conveyance owned land in addition to the land conveyed; ii) Mr John owned the land coloured brown on the plan, to the south of the land conveyed; iii) Mr John also owned some land to the north of the land conveyed; the extent of his land to the north is not identified in the conveyance or on the plan; iv) It is known that in 1967, the Howells bought Broadlands Fawr Farm which at that time included the farmhouse, the farmyard, the fields surrounding the farmhouse and the farmyard and Broadlands Lane; v) It is more probable than not that the land which the Howells bought in 1967 was owned by Mr John at the time of the 1920 conveyance; vi) Mr Rees, the purchaser under the 1920 conveyance was, prior to the conveyance, in occupation of the land conveyed; vii) There is no information as to the occupier of the land owned by Mr John and not conveyed to Mr Rees; viii) The land owned by Mr John and not conveyed to Mr Rees may have been occupied by Mr John or by a third party or even by Mr Rees; ix) If the land conveyed in 1920 and the land then retained by Mr John were in common occupation in 1920, then it is quite possible that such common occupier might have used Broadlands Lane and the farmyard to gain access to Broadlands House and that such common occupier might have used the carriage drive at Broadlands House to gain access to the farmyard and the farmhouse; x) If the land conveyed in 1920 and the land then retained by Mr John were not in common occupation in 1920, then there is no direct evidence dating from 1920 or thereabouts as to whether the occupier of the farmyard and farmhouse used the carriage drive at Broadlands House to gain access to the farmyard and farmhouse nor as to whether the occupier of Broadlands House used Broadlands Lane and the farmyard to gain access to Broadlands House; xi) There is evidence that Broadlands Lane and the farmyard were used to gain access to Broadlands House in the 1950s and it is likely that such use had started before 1956 so that it was well established by 1956; xii) The existence of a track through the farmyard and leading to Broadlands House was clear from the 1970 Ordnance Survey and the track was created in a fairly permanent way by the laying out of a lawn in front of Broadlands Fawr Farmhouse and the building of a wall along the edge of that lawn, separating the lawn from the track; xiii) The track referred to in (xii) above is not shown on the plan to the 1920 conveyance; that suggests that the arrangement which existed in the years before 1970 was not there at the time that the plan to the 1920 conveyance had been drawn up; xiv) There is no precise evidence as to the date of the plan to the 1920 conveyance but it is likely to have been shortly before the date of the conveyance; xv) It is probable that the arrangements which existed in the years before 1970 were not in existence at the date of the 1920 conveyance; this means that there were physical changes after the date of the 1920 conveyance so that it is not possible to extrapolate backwards from the years before 1970 and conclude that the position in those years was also the position in 1920; xvi) The 1920 plan contains two lines which suggest that there was a barrier of some sort which would prevent a vehicle from moving from the carriage drive of Broadlands House into the farmyard, and vice versa; xvii) The first of the lines referred to in (xvi) above is on the boundary of the land conveyed; the second of the lines is the east west line to which I have already referred; xviii) In more recent times, there was an opening and a gate (with gate pillars) along the first of the lines referred to in (xvii) above; there is no evidence as to the age of the gate pillars; xix) There is no evidence as to what physical feature is marked by the east west line at the northern end of the carriage drive and a little way south of the northern boundary of Broadlands House; xx) It is not possible to tell from the plan to the 1920 conveyance whether one could drive a vehicle, and if so how, into the area between the line on the northern boundary of Broadlands House and the east west line; xxi) In 1969, the only access to the Coach House (upon the land conveyed in 1920) was through the land at Broadlands Fawr Farm.

[61]I next need to consider whether the statements I have been able to make allow me to conclude that the right which is claimed by the Claimants was enjoyed with Broadlands House at the date of the 1920 conveyance.

[62]In my judgment, it is a matter of speculation only as to whether the right which is claimed by the Claimants was enjoyed with Broadlands House at the date of the 1920 conveyance. I do not think that I am able to decide on the balance of probabilities whether it was so enjoyed or whether it was not.

[63]The burden of proof of the necessary facts is on the Claimants. Apart from the information contained in the 1920 conveyance and its plan, the Claimants did not call any evidence as to the facts on the ground in 1920. I find that the evidence as to the facts on the ground in the 1950s and later does not justify a finding that those facts (or something similar) also existed in 1920. Accordingly, I find that the Claimants have not established on the balance of probabilities that the right which they claim was enjoyed at the date of the 1920 conveyance.

[64]If one were to speculate, it might be possible to suggest that one possibility was somewhat more likely than another possibility. But even if I felt able to speculate (which I do not) that it was slightly more likely that the right claimed was enjoyed at the date of the conveyance, that would not in my judgment enable me to find that that was so on the balance of probabilities. The matter remains one of speculation and not proof on the balance of probabilities. This point is illustrated by the decision in Rhesa Shipping SA v Edmunds

[1985] 1 WLR 948

(in particular at 951C-D) applied in Sienkiewicz v Greif

[2011] 2 AC 229

at [193] per Lord Mance. I should also pay attention to the warning given by Mummery LJ in Wilkinson v Farmer

[2010] EWCA Civ 1148

at [35] about the dangers of speculating about historic facts which existed at the date of a conveyance many years earlier.

[65]I have also considered whether the fact that the 1920 conveyance does not contain an express grant of a right of way through the farmyard and along Broadlands Lane is material to the exercise of finding the facts as to whether the claimed right was enjoyed at the date of the conveyance. It is clear that the fact that the conveyance does not contain an express grant of the claimed right is not the expression of a contrary intention for the purposes of section 62(4). But I do not see why that fact is not admissible for whatever weight might properly be given to it when considering what probably were the facts on the ground. On that basis the absence of an express grant might be said to support the conclusion that the claimed right was not enjoyed at the date of the 1920 conveyance. However, I do not rest my decision on this point as I have already decided that the Claimants have not established on the balance of probabilities that the claimed right was enjoyed with Broadlands House at the date of the 1920 conveyance.

[66]The Claimants’ case in reliance on section 62 of the 1925 Act rested on the assertion (which I have not accepted) that the claimed right was enjoyed with Broadlands House in 1920. Although the Claimants did not develop any separate argument based on the other phrases in section 62, such as those which refer to a right appertaining to, or reputed to appertain to the land conveyed or a right demised, occupied or reputed or known as part or parcel of or appurtenant to the land conveyed, I ought to state expressly that in view of the state of the evidence to which I have referred above, the Claimants would not have been able to succeed on any of these alternative ways of putting their case.

Implied grant

[67]The Claimants next contended that the right which they claim should be implied into the 1920 conveyance pursuant to the rule in Wheeldon v Burrows (1879) 12 Ch. D. 31. The rule in that case was stated by Thesiger LJ in these terms at 49:

“The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”

[68]For the purposes of applying the rule to this case, I need to consider what findings of fact I can make as to whether the right claimed was used and enjoyed at the time of the 1920 conveyance, whether the right claimed was continuous and apparent at that time and whether the right claimed was then necessary to the reasonable enjoyment of the property conveyed.

[69]Based on my earlier analysis of the state of evidence as to the facts on the ground in 1920, the Claimants have failed to prove on the balance of probabilities that the right which they claim was used and enjoyed and/or was continuous and apparent at the time of the 1920 conveyance. There was no evidence as to the existence of any contract before the entry into the 1920 conveyance nor as to the facts on the ground at the time of any such contract. Accordingly, the Claimants have failed to bring the case within the rule in Wheeldon v Burrows.

[70]If I had held that the right claimed was used and enjoyed and/or continuous and apparent at the time of the 1920 conveyance, then it would have been necessary to go on to consider whether the right claimed was necessary for the reasonable enjoyment of the land conveyed. As the Claimants have not shown that the right claimed was being used and enjoyed or even continuous and apparent at the time of the 1920 conveyance, there would have been further difficulty in their way in establishing that the right claimed was necessary for the reasonable enjoyment of the land conveyed. However, as the Claimants in any event fail on the first limb of the rule in Wheeldon v Burrows it is not necessary to consider the second limb on the false assumption that the right claimed was used and enjoyed and/or continuous and apparent at the time of the 1920 conveyance.

[71]The Claimants next contended that the right which they claimed should be implied into the 1920 conveyance on the authority of Pwllbach Colliery v Woodman

[1915] AC 634

. The principle which was applied in that case was explained by the Court of Appeal in Stafford v Lee

(1992) 65 P & CR 172

at 175. The principle requires it to be shown that:(1) there was a common intention to put the land to some definite and particular use; and

(2) the claimed right is necessary to give effect to that common intention.

[72]The land conveyed in 1920 was described in the 1920 conveyance as a dwelling house and various outbuildings and grounds occupied with it. It might be said that the 1920 conveyance does disclose a common intention that the land conveyed would continue to be so used. There was no evidence of any other common intention or any more definite and particular use than that. In my judgment, it cannot be said that the claimed right was necessary at the time of the 1920 conveyance to give effect to a common intention to use the land conveyed as a dwelling house, outbuildings and grounds. The land conveyed was all readily capable of beneficial use for that purpose on the basis that there was an access along the carriage drive leading to the main house.

[73]It follows from the foregoing that I reject the Claimants’ case that the purchaser under the 1920 conveyance acquired the claimed right either under section 6 of the Conveyancing Act 1881 or by way of a grant to be implied into the conveyance.

Prescription

[74]The Claimants next contend that they have acquired the right which they claim by prescription by reason of their long use of the right of way. There are three separate sets of rules governing the acquisition of a right, such as an easement, by prescription. The first set are the common law rules, the second set relates to the doctrine of lost modern grant and the third set is contained in the Prescription Act 1832.

[75]In the present case, the Claimants cannot rely upon the common law rules as to prescription, not least because Broadlands House, the claimed dominant tenement, and Broadlands Lane and the farmyard appear to have been in common ownership for some time prior to 1920. The Claimants do, however, rely upon both the doctrine of lost modern grant and upon the 1832 Act.

[76]The doctrine of lost modern grant and the provisions of the 1832 Act, certainly in relation to an easement such as a right of way, have a number of features in common. One such feature is that the use in question can only give rise to a right acquired by prescription where the use is “as of right”. This phrase does not mean that the person carrying on the use had a pre-existing right to do so. A pre-existing right to carry on the use would normally prevent a right being acquired by prescription. The phrase “as of right” has been explained as meaning “as if of right”: see R (Beresford) v Sunderland City Council

[2004] 1 AC 889

per Lord Walker at [72]. In order for the use to be as of right it must be nec vi, nec clam and nec precario or, in English, not by force or contentiously, not secretly or by stealth and not precariously or by permission.

[77]Some confusion can be caused by the word “user” in this context. It has been traditional to use the word “user” to describe the relevant activity on the land which is being relied upon to claim that a right to continue that activity has been acquired by prescription. Thus, the traditional phrase is “user as of right” or “prescriptive user”. However, the word “user” is also used to refer to the person carrying on the activity. It was pointed out by Lewison LJ in London Tara Hotel Ltd v Kensington Close Hotel Ltd

[2011] EWCA Civ 1356

at [75] that it would aid clarity if the relevant activity was described as the “use” and the person carrying on that activity was described as the “user”. I will adopt the terminology which he suggests but it must be recognised that many of the judgments in the decided cases refer to the activity as the “user”.

[78]In the end there was only a limited amount of dispute about the fact that Broadlands Lane and the farmyard were used for a lengthy period to get from Gypsy Lane to Broadlands House. The dispute was not so much about whether such use happened but was more about the intensity and frequency of the use.

[79]The evidence establishes that, from at least the 1950s, Broadlands Lane and the farmyard were used as a means of access from Gypsy Lane to Broadlands House. As it happened, Mr Loveluck-Edwards had a job in 1956, when he was a student, which involved him driving a bread van up Broadlands Lane and across the farmyard to deliver bread to Broadlands House. The then owners of Broadlands House did not wish to have delivery men and tradesmen using the carriage drive to gain access to Broadlands House. The evidence supports the finding that this attitude on the part of the owners of Broadlands House was a general one and that delivery men and tradesmen complied with the requirements of those owners and gained access by way of Broadlands Lane and the farmyard. Mr Loveluck-Edwards’ specific evidence related to events which took place in 1956. However, it is more likely than not that the people who owned Broadlands House in 1956 had owned it for some period before that date so that the practice I have described was already an established practice by 1956. The evidence was that those owners continued to be the owners of Broadlands House until a few years before 1969, but there was no specific evidence as to when they first acquired that property.

[80]In the 1960s, Mr James used the same route to gain access to Broadlands House when he was visiting his aunt who was working there. By the time of the survey for the 1970 Ordnance Survey, there appears to have been a clearly demarcated track which ran in front of Broadlands Fawr Farmhouse and led to the northern boundary of Broadlands House. Where the track met that boundary there was an opening with gate pillars and a gate which was usually kept open. Mr Loveluck-Edwards bought Broadlands House in 1969. Before he bought it he saw the track which led through the farmyard and he knew of the route along Broadlands Lane. After he had bought Broadlands House, he used the route of the way which he now claims and so too did tenants and occupiers of various parts of the residential complex at Broadlands House and some at least of their visitors. The use was on foot and with vehicles. The users of the route would sometimes walk their dogs.

[81]The use of Broadlands Lane and the farmyard as an access to Broadlands House would have been obvious to the owner of Broadlands Lane and the farmyard. Certainly from 1967, that owner (or one of the two joint owners) lived in Broadlands Fawr Farmhouse and the use of the track was obvious, being right in front of the farmhouse.

[82]This use of the track through the farmyard and, therefore, the use of Broadlands Lane as an access to Broadlands House was briefly interrupted by the Claimants’ own actions in around 2003, continuing for a few months until possibly early 2004, by putting logs or tree trunks across the opening. It may be possible to disregard that relatively short period of non-use by the Claimants. The Claimants use was interrupted more significantly by the work done by the Second Defendants prior to July 2004 to close off the opening between the properties. The way has not been used at all by the Claimants since that time.

[83]The above description of the use is not a comprehensive statement of all of the evidence given as to such use but it suffices to identify the character and the extent of the use and the period during which it continued. In my judgment, and subject to an all important point which I must later address, the use I have described was of a character which was sufficiently definite and continuous as to bring home to a reasonable person in possession of Broadlands Fawr Farm that a right of way, with or without vehicles, was being asserted and ought to be resisted if such right were not to be recognised.

[84]The Defendants say that the use of Broadlands Lane and the farmyard as a means of access to Broadlands House was not use as of right and did not result in a use being acquired by prescription. The Defendants say that the use was not as of right because it was with the permission of the owners of Broadlands Lane and the farmyard from 1967 until they sold that land to the First Defendants in April 2002. There was no evidence as to the existence of, or as to the absence of, any permission before 1967. Conversely, it was not contended that the evidence established that there had already been 20 years use as of right before 1967. Accordingly, I need to examine the period from 1967 to 2002 (or 2003). I do not need to decide whether there is a legal burden on the Claimants to establish use as of right which would require them to negative the possibility of there being a permission in this case or whether the legal burden of proving permission is on the Defendants. In my view, there is at least an evidential burden on the Defendants in relation to their allegation that there was an express permission in this case. In any case, on the evidence, I am able to come to clear findings as to what took place in relation to the giving of permission in this case so that nothing turns on the burden of proof.

[85]The permission was said to have been given by Mr Evan Howell. He and his brother were the joint owners of Broadlands Farm and were therefore the joint owners of the farmyard and Broadlands Lane. The Howells bought Broadlands Farm in 1967 and Mr Loveluck-Edwards bought Broadlands House in 1969. Mr Evan Howell lived in Broadlands Fawr Farmhouse so that he was directly affected by any use of the farmyard and Broadlands Lane by the owner of Broadlands House. It was not suggested that a relevant permission given by one only of the two joint owners would have been ineffective as a grant of permission for the use of the farmyard and Broadlands Lane. Mr Evan Howell died shortly before these proceedings were brought and it was not suggested that he had made any witness statement on this question of the use of the way being with permission. His wife is still alive but I was told that, on account of her age and condition, she was not able to assist with any relevant evidence.

[86]I heard evidence from Mr Evan Howell’s son and daughter, Mr John Howell and Mrs Ruth Lock. Mr John Howell was born in 1968. He lived at Broadlands Fawr Farmhouse until just after it was sold to the First Defendants. The sale was in 2002 but it seems that the family continued to live there until 2003. I have already referred to the fact that the sale agreement provided for the vendors to remain on the farm following completion of the sale. Mr Howell’s witness statement described the use of the way. He referred to the fact that the gates on the boundary between the farmyard and Broadlands House were usually kept open. He then added:

“The reason we did so was because my father had what he always referred to as a “gentleman’s agreement” with the First Claimant (which was purely verbal) whereby the Claimants and their visitors etc had my father’s permission to cross the Farm and use the Lane. In return, my family and our visitors had the Claimants’ permission to use the driveway of Broadlands House so as to access the A48. My father spoke of having had a similar agreement with the previous owners of Broadlands House as well. Although I was not present when my father made this agreement with the First Claimant (I assume he did so when I was just a baby), he spoke of it frequently over the years and its existence was common knowledge among our family and friends. We all made the most of it and used the driveway to Broadlands House regularly (as and when it suited us) right up to the sale of the Farm in 2003. As I understand it, the Claimants are now saying that they did not have permission to cross the Farm and use the Lane. That is simply not the case. As I have explained, my father was always adamant that he had an agreement with the First Claimant in the terms I have set out above … and my family and I acted upon that agreement. The Claimants never challenged us or led us to believe that we were mistaken about the agreement or that it did not exist.”

[87]When he was cross-examined on behalf of the Claimants, Mr John Howell agreed that his father and Mr Loveluck-Edwards were acting as good neighbours and did not stop each other from using the two routes i.e. the route along the lane and across the farmyard to Broadlands House and the route through Broadlands House to the farm. He agreed that the owners were “just permitting or just tolerating one another to use the routes”. He repeated that his father had said that he had a verbal agreement with Mr Loveluck-Edwards and with the previous owners of Broadlands House.

[88]Mrs Lock was born in 1970 and lived at Broadlands Fawr Farmhouse until 1992. Thereafter until 2003, she visited the farmhouse almost daily. Her witness statement contained the same evidence as that of her brother; in fact, the relevant passages are in identical terms. She agreed with her brother’s answers in cross-examination.

[89]Mr Crompton of Persimmon Homes Ltd, an associated company of the First Defendants, was involved in the negotiations to buy Broadlands Fawr Farm from the Howells. He gave evidence of certain conversations he had with “the Howells” about the use by the owners of Broadlands House of a way over the farmyard and Broadlands Lane. Mr Crompton’s witness statement stated that the Howells told him that there was no right of way for the benefit of Broadlands House but that, as good neighbours, the Howells did not stop the owners of Broadlands House using the way. When cross-examined on behalf of the Claimants, Mr Crompton said that the Howells told him that the Claimants were using the way “with our consent as good neighbours”. Later in that cross-examination, he said that the Howells “would turn a blind eye to the use”. When re-examined, Mr Crompton said that the use of the way was the result of turning a blind eye and “an understanding”.

[90]Mr and Mrs Dyke gave evidence that their understanding of the arrangement between the owner of Broadlands Fawr Farm and the owner of Broadlands House was based on what they had been told by Mr John Howell and Mrs Lock.

[91]In his witness statement, Mr Loveluck-Edwards stated:

“I recall that not long after I moved into the Property a member of the Howells family who then owned and occupied Broadlands Fawr Farmhouse came to me with a document which he asked me to sign. It was an agreement to the effect that I would only pass and re-pass from the north of the Property to Gypsy Lane (that is to say across the right of way) with his consent or permission. I refused to sign the document or to enter into any agreement whatsoever with him. I had been aware prior to completion of the purchase that there appeared not to be an express grant or reservation in respect of the right of way but I considered that either there was a right of way or that I would obtain one by prescription. After my refusal to agree any terms Mr Howells (sic) withdrew and at no point from then until the Howells family sold Broadlands Fawr Farm was the matter ever again raised with me.”

[92]Mr Loveluck-Edwards gave further evidence in chief about his dealings with Mr Howell. He said that Mr Howell had no objection to Mr Loveluck-Edwards walking in the fields of the farm. He could go wherever he liked provided he closed the gates. This suggests that there was a conversation between Mr Howell and Mr Loveluck-Edwards when the latter was given permission to walk in the fields of the farm. Mr Loveluck-Edwards also gave evidence in chief confirming that Mr Howell used the drive at Broadlands House to get to Broadlands Fawr Farm. As to that Mr Loveluck-Edwards said:

“I did not give him a permission. We never discussed it.”

[93]When cross-examined on behalf of the First Defendants, Mr Loveluck-Edwards confirmed that Mr Howell used the drive at Broadlands House to gain access to Broadlands Fawr Farm and that Mr Loveluck-Edwards did not object to this use. He said that he “got on” with Mr Howell but that they did not have a great deal to do with each other. He explained again that he had had a conversation with Mr Howell when the latter permitted him to walk in the fields of the farm. He stated that this permission concerned the fields and not the farmyard and Broadlands Lane. He said that there never had been a gentleman’s agreement about the farmyard and Broadlands Lane. As to that route, he thought that he either had a right granted by the 1920 conveyance or he would “create a right” by reason of his use of the route. When Mr Howell used the drive at Broadlands House, he was not using it pursuant to any express right. As to the draft written agreement, he stated that he did not know how it was given to him and that all that he knew was that he did not sign it. He specified in this evidence that he was using the route with Mr Howell’s “acquiescence and not his permission”.

[94]When cross-examined on behalf of the Second Defendants, Mr Loveluck-Edwards stated that he did not give Mr Howell permission to use the drive at Broadlands House. He accepted that it followed that the owner of Broadlands Fawr Farm or Farmhouse had a right of way over Broadlands House. It was a case of two owners both acquiring rights without any agreement or conversation between them. He said the draft written agreement said something like:

“you can cross my land if I can use the carriage way”

. At first, he said that he “refused” to sign the draft agreement. Then he said that he did not recall if he communicated his position to Mr Howell.

[95]Mrs Loveluck-Edwards said that she adopted her husband’s witness statement. She was not asked any questions about a possible agreement between Mr Howell and her husband.

[96]The first matter I need to consider in relation to the allegation that the relevant use was pursuant to an express permission is what, if anything, did Mr Howell and Mr Loveluck-Edwards say to each other about the use of the route through the farmyard and along Broadlands Lane and about the use of the drive through Broadlands House.

[97]The alleged agreement was between Mr Howell and Mr Loveluck-Edwards. Mr Howell was not available to give evidence as to this alleged agreement but Mr Loveluck-Edwards did give evidence on that subject. Mr John Howell and Mrs Lock gave evidence as to what their father had said to them about the alleged agreement. Mr Loveluck-Edwards’ evidence is direct evidence whereas the evidence of Mr John Howell and Mrs Lock is hearsay evidence. On the other hand, Mr Loveluck-Edwards is an interested party whereas Mr John Howell and Mrs Lock are not; I do not think that they were motivated in any way by any possibility that there could be any adverse consequences for the Howell family if it were to turn out that the land sold to the First Defendants in 2002 was subject to an undisclosed right of way.

[98]Mr John Howell and Mrs Lock gave their evidence in a straightforward way. They were both quite clear about what their father had told them on a number of occasions. He had told them that he had made a gentleman’s agreement with Mr Loveluck-Edwards which gave the latter permission to use the farmyard and Broadlands Lane and Mr Loveluck-Edwards had in turn given Mr Howell permission to use the drive at Broadlands House. Both of these permissions were acted upon.

[99]I found Mr Loveluck-Edwards’ evidence to be less satisfactory. There were passages in his evidence, in particular(1) as regards the importance to him of having a route through the farmyard and along Broadlands Lane, now that the land around Broadlands House had been redeveloped and

(2) the difficulty of turning from the new distributor road into Broadlands Lane, where I felt that he was significantly overstating the matter which he was describing. Further, in his evidence he appeared to want to minimise the suggestion of any friendship or relationship with Mr Howell but yet the evidence as a whole established that Mr and Mrs Howell attended a party or parties at Broadlands House and that Mr and Mrs Howell were generally friendly and receptive to persons using the route through the farmyard. Further, I found Mr Loveluck-Edwards’ description of being asked to sign a written agreement about the use of the route and his refusing to do so to be unconvincing. He could not remember who asked him to sign the agreement and he could not remember whether he told Mr Howell that he would not sign the agreement but yet Mr Howell, having gone to the trouble of preparing a draft agreement, never referred to the matter again and did not even ask what Mr Loveluck-Edwards’ attitude was to the draft agreement. In addition, I found Mr Loveluck-Edwards’ description of the position in relation to the drive at Broadlands House to be unconvincing. On his account, Mr Howell was using the drive without permission and Mr Loveluck-Edwards was acquiescing in that use, knowing that if the use continued for 20 years, which it did, Mr Howell would acquire a prescriptive right of way over the drive. I find it very difficult to believe that Mr Loveluck-Edwards would have knowingly allowed Mr Howell to acquire such a right of way. It is far more likely that Mr Loveluck-Edwards permitted Mr Howell to use the drive because Mr Howell was permitting the use of the farmyard and Broadlands Lane and because Mr Loveluck-Edwards fully appreciated that Mr Howell’s use of the drive could not mature into a right of way because that use was with permission and not as of right. I do not say that Mr Loveluck-Edwards was deliberately misleading the court but I do think that he has persuaded himself that the history of the matter supports his case when it does not.

[100]I did not find Mr Crompton’s evidence to be particularly helpful as to the existence of an agreement between Mr Howell and Mr Loveluck-Edwards. Mr Crompton described the position in different ways; some of his descriptions were helpful to the Defendants’ case whereas others might be suggested to help the Claimants’ case.

[101]My conclusion on the facts is that at an early point following Mr Loveluck-Edwards’ purchase of Broadlands House in 1969, he and Mr Howell did discuss the future use of the route through the farmyard and along the lane and the future use of the drive. They made an entirely understandable agreement that each would have the permission of the other to use a way through the other’s property. That agreement governed the position thereafter for all of the period that the Howells owned Broadlands Fawr Farm, that is until at least 2002. The position was therefore governed by an express permission. The position went beyond mere acquiescence by the Howells in the use of the farmyard and the lane.

[102]I find that Mr Howell described the arrangement to his son and daughter as “a gentleman’s agreement”. I am not able to find whether that phrase was used in the oral discussion which took place between Mr Howell and Mr Loveluck-Edwards. It is possible that the phrase was only used by Mr Howell when describing the matter to his son and daughter. Conversely, it is also possible that the phrase was used in the oral discussion between Mr Howell and Mr Loveluck-Edwards. The use of that phrase might fit quite well with Mr Loveluck-Edwards evidence that he was asked to sign a written agreement but then the agreement was not signed; one possibility is that the parties agreed that the matter did not need to be the subject of a written agreement because it could be left as an unwritten gentleman’s agreement. Even if the phrase was used in the discussion between Mr Howell and Mr Loveluck-Edwards, it would not detract from the fact that each owner gave the other a permission to use the relevant ways. The phrase does not perhaps have a precise legal meaning. It is often used to describe a personal understanding or arrangement based on honour and not intended to be legally binding. The phrase is therefore often used to make the point that the agreement does not have contractual effect but is binding in honour and not at law. In the present case, it is probably the case that the arrangement between Mr Howell and Mr Loveluck-Edwards did not amount to the grant of reciprocal contractual licences. Nonetheless, in my judgment, the arrangement did involve the grant of reciprocal permissions.

[103]The evidence as to the grant by Mr Howell of permission to Mr Loveluck-Edwards’ predecessor in title in the period 1967 (when the Howells bought the farm) to 1969 (when Mr Loveluck-Edwards bought Broadlands House) was fairly slight but was to the effect that Mr Howells made a gentleman’s agreement to the same effect with Mr Loveluck-Edwards’s predecessor in title. In view of my finding as to what was agreed between Mr Howell and Mr Loveluck-Edwards, an earlier agreement to the like effect seems eminently likely. I would therefore hold that use of the route through the farmyard and along the lane was with the permission of the owner of the farmyard and the lane between 1967 and until at least 2002.

[104]The result of the above is that the use of the route between 1967 and at least 2002 was with permission i.e. it was precario and it was not prescriptive use. Mr Loveluck-Edwards has not established use as of right for 20 years before 1967 and if he had done there would have been a question as to whether any right thereby acquired had survived the arrangement he made with Mr Howell in or shortly after 1969. Accordingly, Mr Loveluck-Edwards cannot establish 20 years uninterrupted use as of right at any time. He therefore has failed to show that he has acquired a right of way by reason of the doctrine of lost modern grant or by reason of a period of 20 years use, as of right, under section 2 of the Prescription Act 1832.

[105]In addition to relying on a period of 20 years use for the purposes of section 2 of the 1832, Mr Loveluck-Edwards also relied on what he said was use as of right for a period of 40 years for the purposes of that section. Section 2 of the 1832 Act requires the use which is relied upon, whether for the purpose of the 20 year period or the 40 year period, to be use as of right. Generally speaking, use which is pursuant to permission is not use as of right. If that were the only relevant consideration, then it would seem that use pursuant to permission, whether an oral permission or a written permission, whether given during the period of user or before the period of user, would not be use as of right. However, in relation to the period of 40 years, section 2 of the 1832 Act expressly refers to consent given by deed or writing in a way which suggests that the result of 40 years use will be different depending on whether the consent was given in writing or given orally. The way of reconciling these apparently conflicting pointers is to hold that in relation to a claim based on a period of 40 years use, a written consent given before the commencement of the use and extending throughout defeats such a claim whereas an oral consent given before the commencement of the use does not defeat such a claim: see Megarry & Wade, The Law of Real Property, 8th ed., at 28-076, citing Gardner v Hodgson’s Kingston Brewery Co Ltd

[1902] Ch 198

at 215,

[1903] AC 229

at 236 and Healey v Hawkins

[1968] 1 WLR 1967

. However, a permission given during the period of use, whether the permission is given orally or in writing, will produce the result that use pursuant to that permission is not as of right and is not prescriptive use, whether for the period of 20 years or of 40 years. The permission which is relied on by the Defendants in the present case is an oral permission. Therefore, in relation to the 40 year period, it is important to know whether the permission was given before the commencement of the use or during the period of the use. The evidence suggests that Mr Howell gave Mr Loveluck-Edwards permission after the latter had bought Broadlands House and after the latter had begun to use the way, although the evidence is not particularly clear on the point.

[106]Moreover, in relation to the claim based on 40 years use, I also need to consider the decision in Jones v Price

(1992) 64 P&CR 404

. In that case there had been 40 years use of a track. The owner of the track had given oral permission for this use before the use began. The county court judge held that although this permission was not specifically renewed, there was a tacit understanding that did not need to be expressed overtly that the continued use of the track was pursuant to a permission that was still in force. On appeal, it was argued that a prior oral permission could not be relied upon to defeat a claim to prescription based on 40 years use. That submission was rejected on the facts of that case. Parker LJ said at page 407:

“Oral permission given within the period will of course negative user as of right or any claim to user as of right, but so also, in my view, will a user which continues on a common understanding that the user is and continues to be permissive. If both parties have such a common understanding it cannot be, in my judgment, that there is an assertion to a claim as of right, nor could any such user bring home to the mind of the alleged servient owner that a claim of right was being asserted.”

[107]The decision in Jones v Price comes close to eliminating the distinction between an oral permission given before the commencement of the use and an oral permission given during the period of the use. I am bound by the decision in Jones v Price and I will therefore seek to apply it in this case. In my judgment, the approach in that case applies in the present case also. Even if Mr Howell’s oral permission to the use which is relied upon for the 40 year period was given before that use began, then at all times the use continued on the common understanding that the use was permissive. That matter must be judged objectively. Further, in view of the fact that there was such a common understanding, there was no assertion of a claim as of right and the use could not bring home of the owner of the alleged servient tenement that a claim of right was being pursued. Accordingly, in relation to the claim based on the 40 year period, the oral permission in this case defeats that claim.

[108]In any event, the claim based on the Prescription Act 1832, whether in relation to a 20 year period or a 40 year period, does not satisfy section 2 when read together with section 4 of the 1832 Act. Section 4 provides that in relation to a claim based on the Prescription Act 1832, whether the Claimants rely on use for the period of 20 or of 40 years, such periods during which the use continues must be “next before”, i.e. immediately before, the commencement of the action in which the claim to a right of way is brought into question. In the present case, the action was brought on 21st December 2009. The relevant 20 year period is therefore from December 1989 to December 2009 and the relevant 40 year period is from December 1969 to December 2009. However, the use of the route over which a right of way is claimed stopped before July 2004. At that point, the route of the way was obstructed by fencing, albeit removable fencing, which the Second Defendants erected on the boundary between Broadlands House and Broadlands Fawr Farmhouse. That fencing remained in position until the commencement of the action and indeed has remained there until the present time. Section 2 of the 1832 Act refers to use for the relevant period “without interruption”. As a matter of fact, the erection of that fencing amounted to or caused an interruption of the continuation of the use. Section 4 of the 1832 Act refers to interruptions of which the putative dominant owner has notice. It is not contended that the Claimants did not have notice of the fencing at the time it was erected. Under section 4 of the 1832 Act, an interruption of under a year, even if submitted to or acquiesced in, is disregarded. However, an interruption which continues for a year or more is taken into account unless the putative dominant owner can prove that he did not submit to or acquiesce in the interruption for more than one year. It was held in Dance v Triplow

(1991) 64 P&CR 1

that in the context of section 4 of the 1832 Act, “acquiescence” occurs where the putative dominant owner is satisfied to submit to the interruption and “submission” occurs where the putative dominant owner is not content to submit but does not make his opposition to the interruption apparent in a direct way: see at page 5 per Glidewell LJ. In the present case, the Claimants went further than submitting to or acquiescing in the interruption. I have already described the stance which was adopted by the Claimants from July 2004 to December 2009. For periods in excess of 1 year, the Claimants either positively gave consent to the interruption or at least acquiesced in the interruption. In my judgment, the fact that the Claimants went further than mere acquiescence or submission does not enable them to say that they therefore did not acquiesce in or submit to the interruption. In this context, the more extensive behaviour of giving consent embraces the less extensive behaviour or acquiescence or submission. It may be that the way in which the Claimants expressed themselves would enable them to argue that they had not abandoned any easement which had previously come into existence whether by implied grant or by virtue of the doctrine of lost modern grant. But insofar as the Claimants seek to rely on the Prescription Act 1832, they are unable to do so by reason of the fact that the use of the way was interrupted between a date before July 2004 and the commencement of the action in December 2009 and by reason of the fact that the Claimants consented to and/or acquiesced in that interruption.

The result

[109]It follows from the foregoing that the Claimants have failed to establish that they have the right of way which they claimed. It has never been in dispute that Broadlands Lane is a public footpath. Accordingly, the Claimants are not entitled to the relief which they seek in these proceedings and their claim will be dismissed.

The other issues

[110]This makes it unnecessary to deal with the issues which would have arisen in relation to the Claimants’ claim if they had established that they had the right of way which they claimed. However, I will make brief comments on these other matters.

[111]The First Defendants argued that any right of way which might have come into existence would have been lost or suspended because there was a radical change in the character of the dominant tenement and this change resulted in a substantial increase in the burden on the servient tenement. I would not have accepted that submission. The change in the use of the dominant tenement was not radical and the increase in the burden on the servient tenement was not substantial.

[112]If the Claimants had established the claimed right of way, then it would follow that it has been obstructed by both the First Defendants and the Second Defendants. There was no dispute as to the facts of the obstacles and barriers placed across the route of the way. In my view, those obstacles and barriers would have amounted to an actionable disturbance by both the First Defendants and the Second Defendants, if there had been a right of way from Gypsy Lane along Broadlands Lane and past Broadlands Fawr Farmhouse.

[113]There was substantial argument as to whether the court should grant an injunction requiring the First and Second Defendants to remove such obstacles and barriers as would have amounted to an actionable interference with the claimed right of way. The Claimants applied for such an injunction and the First and Second Defendants submitted that the court should decline to grant an injunction and instead award damages in lieu of an injunction.

[114]The legal principles as to when a court is able to decline to grant an injunction to prevent interference with a legal right are summarised in Snell’s Equity 32nd ed., at paras. 18-043 to 18-044. These principles have been the subject of a large number of cases concerning easements and these cases are discussed in Gale on Easements 18th ed., at paras. 14-86 to 14-111. Although this point does not strictly arise for decision and therefore I know that the indication which I about to give does not have a direct effect on the position of the parties, nonetheless I am able to indicate what I would have done if I had to determine this issue. I would not have granted the injunctions which were sought by the Claimants but I would have awarded damages against both the First Defendants and the Second Defendants for their future obstruction of the claimed right of way. As this point does not arise for decision, I do not need to explain my reasoning in anything like the detail which would have been appropriate if this were a live issue. The point which would have weighed with me is that for a considerable period of time and in particular in the lengthy period since around July 2004 when the claimed right of way was first obstructed, the Claimants’ principal concern has not been to use the way for the benefits which it brings to Broadlands House nor even to keep the way open for the benefits which it brings to Broadlands House in its present layout but to use the ownership of the claimed right to persuade the First Defendants to part with a sum of money and/or other rights of way which would enable the Claimants to develop other parts of their land at Broadlands House. This is shown to be the case by the Claimants’ own correspondence, in particular the letters dated 3rd October 2005, 24th January 2006, 26th June 2006 and 9th October 2008. This attitude would have led me to adopt the approach taken in Gafford v Graham

[1999] 3 EGLR 75

at 79 K – M and to hold that the Claimants’ desire to surrender their easement in return for a sum of money and/or other rights should result in their receiving a sum of money as damages in lieu of an injunction. The fact that the court cannot confer on the Claimants the rights they were hoping to obtain through negotiation with the First Defendants but can only award a sum of money would not have deterred me from adopting this approach. What the Claimants had been prepared to do was to give up their right of way in return for valuable consideration. It will be open to the court when assessing damages in lieu of an injunction to place a monetary amount upon the consideration which reasonable persons in the position of the Claimants and the First Defendants would have negotiated for a release of the right of way.

[115]It may assist if I indicate the sum which I would have awarded if it had been necessary to assess the amount of the damages to be awarded in lieu of an injunction. The legal principles to be applied, with particular reference to cases concerning easements, are summarised in Gale on Easements, 18th ed., at paras 14-112 to 14-139. More recently, the Privy Council has considered the principal authorities in Pell Frischmann Ltd v Bow Valley Ltd

[2011] 1 WLR 2370

[116]I heard evidence from two experts as to the diminution in the value of Broadlands House as a result of the loss the claimed right of way and also as to the likely amount which would be negotiated between the dominant owners and the servient owners in return for the release of the right of way. As regards the evidence as to the diminution in value, the valuers were very far apart but I note that the valuer for the Claimants did not include in the value of Broadlands House any potential development value which might have depended upon the use of the claimed right of way. As regards the evidence as to the likely amount of a negotiated sum in return for the release of the right of way, I did not find the evidence of the valuers particularly helpful as it was not clear that they had directed themselves as to the legal principles which fell to be applied. In any case, the sum to be awarded under that head, certainly in this case, does not turn upon expert evidence alone. I also felt that the importance to the First Defendants of obtaining a release of the claimed right of way had not been fully explored in the evidence. The expert called on behalf of the Claimants identified the importance to the First Defendants of obtaining such a release as being limited to the saving of the costs of repairing and lighting Broadlands Lane, if Broadlands Lane were to be adopted by the local highway authority as a footpath and cycle path. Broadlands Lane would not be adopted in that way if the Claimants were able to exercise a vehicular right of way over it. However, I was not altogether persuaded that the First Defendants would have been liable to repair and light Broadlands Lane if it had not been adopted. Further, it seemed to me to be entirely possible that the importance to the First Defendants of obtaining a release of the right of way went beyond those considerations. The evidence suggested the possibility, but did not establish it, that if the First Defendants had been unable to obtain a release of the right of way and if, in consequence, the highway authority had declined to adopt Broadlands Lane, that would have put the First Defendants into far greater difficulty with their very substantial housing development. However, as that matter was not more fully explored, I would have been unable to make findings of that kind as to the importance of the matter to the First Defendants and I would have had to leave that possibility out of account, as essentially unproven, when I came to assess damages.

[117]As to the form which the notional negotiations would have taken, it is possible that the negotiations would have been between the Claimants and the First Defendants alone. After all, the First Defendants had sold Broadlands Fawr Farmhouse to the Second Defendants at a price which was not reduced by reason of the existence of a right of way through the property. The First Defendants may have felt that it was incumbent on them, whether pursuant to a legal liability to the Second Defendants or otherwise, to clear up the matter of the right of way. Further, the First Defendants may have wished to have had control of the negotiations without the complicating factor of the Second Defendants being involved. Further, the actual negotiations which took place, albeit without a successful outcome, did not involve the Second Defendants. The Claimants seem to have been more comfortable negotiating about money with the First Defendants alone rather than with their neighbours, the Second Defendants. In any event, I do not think that the negotiations would have been between the Claimants and the Second Defendants alone nor do I think it likely that the Second Defendants would have bought off the right of way so as to produce the result that the First Defendants would have been, in practical terms, free of any possible exercise of a right of way over Broadlands Lane without making a contribution to the payment to the Claimants.

[118]Doing the best I could to apply the relevant legal principles to the circumstances of this case, so far as those circumstances were established by the evidence, I would have awarded the Claimants a sum of £75,000 as damages in lieu of an injunction. That sum would have included the lesser sum which it would have been appropriate to award if one confined oneself to damages by reference to any reduction in the value of Broadlands House as a result of the loss of the right of way.

[119]I will not make any determination as to how the figure of £75,000 would have been split between the First Defendants and the Second Defendants. That would have turned to some extent on how those parties would have approached the question of the Second Defendants’ claim against the First Defendants for damages for misrepresentation and breach of a duty of care.

The Second Defendants’ claim against the First Defendants

[120]The Second Defendants have brought a Part 20 Claim against the First Defendants. This claim only arises if the Claimants are found to have a right of way over the Second Defendants’ land. Paragraph 18 of the Part 20 Claim makes this clear. Further, the claim to damages is confined to a claim in respect of the diminution in the value of the Second Defendants’ property by reason of the existence of a right of way in favour of the Claimants. If there is no such right of way, then there can be no resulting diminution in the value of the Second Defendants’ property. In view of the fact that I have held that the Claimants do not have the right of which they have claimed, the Second Defendants’ claim does not arise. There is no alternative claim that even if the Claimants fail to establish the claimed right of way, the Second Defendants are entitled to damages against the First Defendants because there was a misrepresentation as to the existence of a present or future dispute and because the Second Defendants have suffered loss and damage by reason of being joined as defendants to the claim brought by the Claimants.

[121]It follows that it is not necessary to deal with the Part 20 Claim. I have considered whether I should nonetheless indicate how I would have decided the Part 20 Claim if it had been necessary to deal with it. I have considered the many points arising in relation to that claim and the detailed submissions which have been made. The Part 20 Claim gives rise to a large number of points and some at least of them are far from straightforward.

[122]If I were to come to a final determination as to the way I would have decided the Part 20 Claim and to give even succinct reasons for that determination, it would further delay the handing down of the judgment in relation to the Claimants’ claim to a right of way.

[123]In the circumstances, I have decided that the better course is for me to hand down judgment in relation to the Claimants’ claim and not to deal with the Part 20 Claim in this judgment. After judgment has been handed down, I will consider with counsel whether, and in what way, I should indicate what I would have decided in relation to the Part 20 claim if it had been necessary to decide it.