Carey & Anor v Burgoyne & Anor [2016] EWHC 1867 (Ch)

[2016] EWHC 1867 (Ch)

Case No B30MA104

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Date 22/07/2016

WREXHAM DISTRICT REGISTRY

The Law Courts, Bodhyfryd

Wrexham, LL12 7BP

Before

MR JUSTICE NEWEY

Between

(1) MRS LISA CAREYClaimants

(2) MR MARTIN CAREYClaimant

(1) MRS SUSAN BURGOYNEDefendants

(2) MR RICHARD BURGOYNEDefendant

The Claimants appeared in person for in person

Mr D. C. Green (instructed by Emrys Jones & Co, Welshpool) for Defendants

Hearing Hearing dates: 17-20 May 2016

Judgment Approved

Mr Justice Newey :

[1]This case concerns two adjoining properties close to the border between England and Wales in Powys.

[2]The larger property, Rhos Farm, has been owned by the defendants, Mr Richard Burgoyne and his wife Susan, since 2008 and nowadays comprises some 45 acres. It is a working farm on which beef cattle are raised. The Burgoynes also carry on a horse livery business there and run a building company called Burgoyne Developments Limited (“Burgoyne Developments”) from it.

[3]The other property is known as “Higgery Piggery” and has belonged to the second claimant, Mr Martin Carey, since 2006. Higgery Piggery was formerly part of Rhos Farm and used as a piggery. When Mr Carey bought it, the piggery was a semi-derelict agricultural building and was not habitable. Mr Carey and his wife Lisa, the first claimant, have since converted the building into a home.

[4]Rhos Farm can be approached from either the east or the west. Both routes lead to a yard lying immediately to the north of the farmhouse. Neither drive is a public highway, but a public footpath runs through the yard. To the north-east of the yard, there is a large building used as an indoor riding school. A little to the south and west of the farmhouse, there is a pond.

[5]Higgery Piggery’s western boundary is immediately adjacent to the pond at Rhos Farm. The plot contains a single building, the former piggery. The property has the benefit of a right to use the eastern (or “front”) drive to Rhos Farm; a track to Higgery Piggery branches off to the left as the roadway approaches Rhos Farm from the east. There is no easement over the back drive to Rhos Farm.

Narrative

[6]Mr Carey bought Higgery Piggery from the then owners of Rhos Farm, Mr Jonathan Warrington and his wife Ruth, on 14 February 2006 for £100,000. The transfer provided for Higgery Piggery to be transferred together with a number of rights in common with the transferors and others so entitled. The rights included (as well as the right to use the front drive) the following: “13.2.3 A right to lay a water pipe (the precise route of which is to be agreed in writing by the Transferors such agreement not to be unreasonably withheld) connecting into the Severn Trent mains supply at the approximate point marked X on the Plan [i.e. the plan annexed to the transfer] and thereafter to the free and uninterrupted passage and running of water to and from the Property 13.2.4 A right to lay an underground electricity cable (the precise route of which is to be agreed in writing by the Transferors such agreement not to be unreasonably withheld) connecting into the mains supply at the approximate point marked Z on the Plan and thereafter to the free and uninterrupted passage and running of electricity to and from the Property”.

[7]Certain other rights were reserved for the benefit of Rhos Farm. They included:

“13.3.4 A right to retain the existing pipes drains and conduits for the drainage of surface water and the overflow from the pond the approximate line of which are shown coloured purple on the Plan 13.3.5 A right to enter onto the Property [i.e. Higgery Piggery] at reasonable times and on giving reasonable notice to the appropriate owner (except in the case of emergency) with or without workmen plant and equipment for the purpose of inspecting cleaning maintaining repairing and renewing the Septic Tank Bio Disc Sewerage System electricity cables and poles and the surface water drains causing as little damage as reasonably possible in the exercise of these rights and making good any damage caused”

. The transfer also contained a provision (clause 13.6.2) by which it was “agreed and declared” that: “Save as expressly granted the Transferees shall not become entitled to any privileges easements quasi easements or rights over any part of the Estate and the terms and effects of section 62 of the Law of Property Act 1925 are expressly excluded from this Transfer”.

[8]When Mr Carey acquired Higgery Piggery, it did not have independent supplies of water and electricity. Both came from Rhos Farm. So far as water is concerned, a building survey report that the Warringtons had obtained on Higgery Piggery in 2002 explained:

“The property is currently connected to a private water supply which enters the property via a blue alkathane type pipe located in the redundant drainage system. Obviously the water supply was only used for feeding purposes. The remainder of the farm is served with a combination of a mains water supply and a private water supply from a bore hole.”

As regards electricity, the report said:

“The property currently has the benefit of mains electricity for lighting purposes only…. The remainder of the farm is served with mains electricity via an overhead supply to a transformer located behind the machinery shed.”

[9]In practice, the Warringtons agreed to allow the Careys to have water and electricity from Rhos Farm while they were working on Higgery Piggery. Mr Carey explained in evidence that Mr Warrington had volunteered the arrangement. Mr Warrington himself spoke of a “gentlemen’s agreement” and said that he did not initially anticipate that there would be much use of the services. He spoke in his witness statement of a fee being paid for the supply, but in cross-examination he referred to Mr Carey reimbursing him “in one way or another” and of having a pint. It seems to me that there was no more than an informal understanding that the Careys would in some way return the favour that the Warringtons were doing them. I do not think that the Careys will have acquired any contractual right to water or electricity.

[10]The Careys did not initially live at Higgery Piggery, but in May 2009 they and their children moved into a static caravan that they had by then brought onto the property. In about October 2009, they moved into the former piggery building.

[11]By this stage, Mr and Mrs Burgoyne had purchased Rhos Farm from the Warringtons. The property was transferred to them on 11 June 2008, although the family did not move in until about November 2009.

[12]Mr and Mrs Burgoyne each testified, and I accept, that the Warringtons had not told them of the “gentlemen’s agreement” relating to the supply of water and electricity to Higgery Piggery. Mr Warrington said in his witness statement that the Burgoynes were made aware of his arrangement with the Careys, but he was much less definite on the point in cross-examination. I find that the Burgoynes first heard of the agreement only in the course of these proceedings.

[13]Soon after acquiring Rhos Farm, the Burgoynes concluded that water was leaking. A diary entry for 15 June 2008 records, “Water Leak at Rhoes farm” and “reservoir empty”. In August 2008, the Burgoynes said this in a response to a questionnaire from Severn Trent Water:

“We have recently purchased this property and have already encountered problems with the water. The previous owner sold off various pieces of land and didn’t bother to alter pipes to the names of the new owners. We have also inherited many leaks and [appalling] pipework so any help or assistance would be very welcome at this stage!”

Around this time, the mains water pipe to Rhos Farm was disconnected and a temporary overhead supply installed instead.

[14]The water supply to Higgery Piggery was disconnected shortly after the Burgoynes bought Rhos Farm. In cross-examination, Mrs Burgoyne said that the supply was turned off because it was evident that there were leaks. She and her husband could not afford, she commented, to let water just run away in the fields or down the drain.

[15]In about June 2009, the electricity supply that Higgery Piggery had been enjoying was also cut off. Mr Burgoyne said this on the subject in a witness statement:

“[W]e discovered by accident after moving into Rhos Farm that there was an electricity connection leading to Higgery Piggery from Rhos Farm. There was no meter on it and no disclosure had been made in relation to it by [the Careys] to my wife or myself and when we realised what was happening I simply disconnected the supply.”

During his oral evidence, Mr Burgoyne explained that he went to the utility room when a trip switch was triggered and, when there, saw a switch marked “Piggery”, which he turned off. He observed that he had no knowledge of any “gentlemen’s agreement” and that he was in no particular state to take on someone else’s responsibilities. He asked rhetorically how he was to know that there was an electricity supply to a neighbouring property.

[16]Mr Carey did not approach the Burgoynes at this stage about reconnecting the electricity supply. Mr Carey said in cross-examination that he did not want to play their “mind games”. He instead bought a generator.

[17]In July 2009, a water pipe intended to serve Higgery Piggery was laid through Rhos Farm. As had been agreed between the Careys and the Burgoynes, Burgoyne Developments was responsible for work in the yard at Rhos Farm, for which it charged £300.

[18]In the event, it was not until 2010 that Higgery Piggery had the benefit of mains water. It was connected to the mains water system on 25 March 2010 and the meter was commissioned on 19 May.

[19]In the meantime, Mr Burgoyne had at least twice found Mr Carey drawing water from Rhos Farm without his permission. Subsequently, it was agreed that Higgery Piggery should receive water from Rhos Farm’s supply on a temporary basis with a meter installed to show usage. The documents in the trial bundle include one recording an £80 payment by Mr Carey to the Burgoynes early in 2010 for: “Temp water supply to Piggery up to 25/1/10 (60 m³) to date”.

[20]In the course of 2010, Mr Carey was diagnosed as suffering from bipolar affective disorder and post-traumatic stress disorder. As Mr Carey explained during his oral evidence, someone suffering from bipolar affective disorder can say “Forget about it” one day and the opposite the next. The condition can produce mood swings and manic behaviour. Mr Carey’s mental health problems will, I think, have done much to generate the difficulties that arose between the Careys and the Burgoynes and, now, this litigation. Mr Carey has also had the misfortune to suffer from bladder cancer.

[21]An incident on 13 April 2010 is illustrative of the tensions between the Careys and the Burgoynes. Mr Burgoyne employed a Mr Stephen Smith to carry out some drain repairs at Rhos Farm. Mr Smith found that contractors working for Mr Carey had damaged a drainage pipe as a result of which there was water “running everywhere”. Unfortunately, Mr Smith himself caught and damaged a pipe belonging to Mr Carey as he did his work. He telephoned for materials that would enable him to repair both pipes, but, before he had achieved this, the Careys came to see what he was doing. Mr Carey was abusive and threatened to drag Mr Smith out of the digger he was in.

[22]Mrs Burgoyne telephoned the police to complain of Mr Carey’s behaviour. This was by no means the only occasion on which the police were to be involved with issues at Rhos Farm and Higgery Piggery.

[23]In August 2010, Mr Burgoyne went to Higgery Piggery to tell the Careys that there appeared to be a leak from a water pipe of theirs in a field at Rhos Farm. Mr Carey found, he said in evidence, that two nuts were very loose. He was inclined to suspect the Burgoynes of having caused the problem, but I entirely reject any such allegation.

[24]At the end of 2010, it seems that the Careys were briefly deprived of water when a pipe of theirs at Rhos Farm froze. The Burgoynes had uncovered the Careys’ pipe when laying a new pipe of their own and, although the pipework was covered up each night, the weather appears to have caused the water in the Careys’ pipe to freeze for a short time. Mr Carey has said that Mr Burgoyne “was clearly deliberately trying to freeze and cut off the water supply” to Higgery Piggery. There is no justification for the accusation, and I reject it.

[25]By the beginning of 2011, the Careys, who had been using generators to provide electricity, were pursuing the idea of obtaining access to the mains by means of an overhead cable. Mr Burgoyne, however, was unwilling to agree to an overhead cable.

[26]On 14 January 2011, Mr Carey said this in a letter to the Burgoynes:

“Further to our conversation earlier this week. I note that you stated during this conversation where we discussed my proposals to connect a mains electricity supply; that you were ‘unhappy’ in having an overhead connection to supply mains to our property over your yard as granted in contract by easement and already discussed in contract …. Please note that it is my intention to advise Scottish Power of my intent to connect in this manner to ensure connection to the mains at the earliest opportunity. You will already be aware that it is no longer appropriate, nor is it acceptable for us to continue using a generator to supply temporary power to our property.”

[27]Mr Burgoyne replied on 3 February 2011:

“We note the content of your letter, however, having allowed you the easement agreement of your water pipe and the discharge pipe from your biodisc, you have not yet settled the accounts for the repairs we have had to make in order to ‘make good’ your inferior workmanship across our land. Until this account is settled in full without disagreement, then we shall not enter into any discussion regarding electrical supply to your property.”

[28]Shortly after this, Mr Carey paid the Burgoynes £520.97 in respect of the “Balance Outstanding”.

[29]Police records testify to continuing difficulties between the Careys (and, in particular, Mr Carey) and the Burgoynes. An incident on 25 June 2011 led to Mr Carey receiving a penalty notice for disorder for using “insulting words or behaviour causing harassment, alarm and distress to the Burgoyne family”.

[30]By the beginning of 2012, the Burgoynes had planted leylandii trees along much of their boundary with Higgery Piggery. Mr Burgoyne said this about them in a witness statement:

“The … Leylandi are in our field and are only some 4-5 feet in height simply put there to offset the eyesore of Higgery Piggery and to lessen the intimidation from the [Careys] and to provide us with privacy when working in our fields…. [The planting] does not affect light to solar panels nor does it interfere with the views of the [Careys] because it is at a materially lower level than Higgery Piggery….”

The trees have also been attributed to providing a stockproof barrier. During cross-examination, for example, Mr Burgoyne said that the trees were planted for stockproof purposes. He said that Mr Carey had not maintained the fence and had taken barbed wire off at least a third of it.

[31]On 12 May 2012, Mrs Carey wrote to the Burgoynes in these terms:

“I have contacted a third party contractor JM Contractors who have provided me with a works schedule to action all required groundworks, for the underground electricity supply to the Higgery Piggery. With your consent Scottish Power will provide ducting and lay cable therein. Alternatively, Scottish Power have also indicated that you may wish to complete these groundworks across your property, to my boundary yourselves. If this is your preferred option, please could you advise me of your proposals and costs. You will no doubt appreciate that a swift conclusion to this matter will be mutually beneficial.”

[32]Mr Burgoyne replied on 14 August 2012. After apologising for the delay (which stemmed in part from the fact that Mr Burgoyne had consulted a solicitor), Mr Burgoyne said:

“It is appreciated that to effect the connection of mains electricity to your property … ground works are necessary. As these would be under the adjoining ground belonging to my wife and myself I would only be happy for them to be undertaken either by Scottish Power or Burgoyne Developments Limited, on whose behalf I write this letter. For the avoidance of doubt, I would not want third party contractors on our ground.”

Later in the letter, Mr Burgoyne asked for:

“Formal confirmation from you as to whether you wish Burgoyne Developments to undertake the work or whether you wish to have Scottish Power deal with it.”

[33]Mr Carey said in cross-examination that at this point he probably put Mr Burgoyne’s letter down and said, “That’s that then”. He explained that he read the letter as meaning that the Burgoynes were not prepared to have the work done by anyone other than Burgoyne Developments. That, however, was neither the Burgoynes’ intention nor what the letter said. To the contrary, the letter plainly referred to the work being undertaken by either Burgoyne Developments or Scottish Power. None the less, the Careys took no further steps to arrange for Higgery Piggery to have mains electricity.

[34]During 2014, matters went from bad to worse.

[35]Early in the year, there was an incident relating to an old tree on the Rhos Farm side of the boundary with Higgery Piggery. Mr Burgoyne gave this description of what occurred in a witness statement:

“[I]n early 2014 a bough from one of the trees was damaged due to the wind and became, in the [Careys’] view, unsafe. The [Careys] did not make any contact with us in relation to this but on the day in question we returned home to find that the [Careys] had called the Police and fire brigade. We straight away indicated that we take the bough down but the [Careys] refused us entry to their property by stating this to the Fire officers and indeed refused to speak to us about it. When the emergency services had left the [Careys] parked a number of their vehicles under the bough in question presumably hoping to increase the risk of damage. We attempted to contact a Tree Surgeon but he was not available due to his workload and such windy weather conditions to attend that might. As a result we borrowed a wire rope from a neighbour and with our children worked into the night to secure the bough simply because the [Careys] would not permit entry onto their property. The following day we were able to contact the Tree Surgeon and make the bough safe”

[36]In cross-examination, Mr Carey said that there had been no need for the Burgoynes to come onto his property and Mrs Carey said that she had parked a car near the tree so that it would break any fall.

[37]On 27 June 2014, Mr Carey took down two gate panels which formed part of the fence between Higgery Piggery and Rhos Farm. The panels in question were in the north-western corner of the boundary between the properties and close to the back drive to Rhos Farm. Mr Carey has explained that 27 June was the due date for his wife to give birth to their youngest child and that he acted as he did in case an ambulance needed to be called (although, of course, Higgery Piggery did not have the benefit of an easement over the back drive).

[38]Mr Carey’s behaviour attracted the attention of two visitors to Rhos Farm, Miss Margaret Duncan and Mrs Patricia Pyke. Miss Duncan and Mrs Pyke heard a noise which they initially took to be that of a horse kicking. When they went towards the source of the sound, they realised that it derived from what Mr Carey was doing on the other side of the fence. Mrs Pyke spoke in cross-examination of the noise being “tremendous”, of its being obvious that Mr Carey was bashing at the fence and of Mr Carey “bellowing”. She and Miss Duncan were both alarmed and distressed and, when they told Mrs Burgoyne, she was “shaking” and “beside herself”. The police were called.

[39]Within a matter of days, the Burgoynes put up a CCTV camera that was directed at the area in which Mr Carey had removed the gate panels. On 12 November 2014, Mr Carey rang the police about this camera, as a result of which a police officer visited Rhos Farm and viewed the camera. The police log records:

“[The camera] is pointed at the gates between the two properties, and overlooks the Carey’s property slightly due to its positioning but does not cover any of the windows, the camera does not go that far.”

[40]By this point, there had been a number of other calls to the police since 27 June 2014. I do not need to detail all of them, but will refer to a few: i) Mrs Burgoyne said this in a witness statement about an incident on 20 August 2014: “On this date I telephoned the Police as [Mr Carey] was walking up and down along the back of our house holding a dustbin lid like a shield and a torch like a weapon or sword and was shouting the whole time stating that he was exercising his right to walk a public footpath and would do so until the end of his days…. This incident occurred from 21.17 until 21.33…”; ii) A police anti-social behaviour incident log records this for 1 November 2014: “Call from Martin Carey reporting the Burgoyne’s shining a powerful light into his sons bedroom. On arrival although light was dazzling on front of property it was not shining into his sons bedroom…. I have then attended to speak to the Burgoynes who stated that the light [had] been there for over 6 years and has recently been made motion sensitive as the[y] suspect Carey to be snooping around at night”; iii) An entry for the following day states: “[Mrs Burgoyne] stated that at around 07.20hrs this morning (02.11.14) for around 1/2hr Mr Carey was walking up and down their yard (public footpath) ranting. He wasn’t making threats or saying any defamatory comments, but was carrying a camera and was saying things as if he were gathering evidence for a judge”.

[41]Powys Environmental Health Service had also been involved. On 28 October 2014, Powys Environmental Health Service wrote to the Careys to inform them that there had been a complaint about noise caused by a generator and a wind turbine. By 5 November, Mr Carey had himself complained to Powys Environmental Health Service about machinery at Rhos Farm that was said to give rise to noise nuisance, odour from manure and artificial light.

[42]During the evening of 15 November 2014, Mr Carey telephoned the police twice. The police log records that Mr Carey said that he was planning to make a citizen’s arrest for various harassment offences that his neighbour had committed but was repeatedly told that he could not do this. He nevertheless went to Rhos Farm and assaulted Mr Burgoyne.

[43]Between about 16 and 26 November 2014, Mr Carey was admitted to a mental hospital.

[44]The Careys issued the present proceedings in January 2015. They also applied for an interim injunction. That application came before Judge Pelling QC on 12 February 2015. No injunction was granted, but the Burgoynes gave an undertaking: “until the determination of the Claimants’ application for an interim injunction, to use their best endeavours to ensure that, as far as reasonably possible, the CCTV camera at point C on the attached plan [i.e. the CCTV camera mentioned in paragraph 39 above] is directed to film only the gates at point G on the attached plan giving access onto the defendants’ property and does not film any door, window or living space on the Claimants’ property other than merely incidentally”.

[45]Soon afterwards, on 21 February 2015, the Burgoynes had the position of the CCTV camera adjusted, and on 27 April 2015 Judge Keyser QC refused the application for an interim injunction.

[46]In July 2015, Mr Carey told the police that he had murdered his neighbour with hammers. Happily, there was no foundation for this statement.

[47]On 23 July 2015, Mr Carey was convicted of aggravated burglary on the basis of the incident on 15 November 2014. He was subsequently sentenced to 18 months’ imprisonment, suspended for 24 months.

[48]The Careys are no longer living at Higgery Piggery.

The Protection from Harassment Act 1997

[49]The Careys’ case is focused principally on the Protection from Harassment Act 1997 (“the PHA”). During his oral evidence, Mr Carey observed that the claim is not about easements or contract, but about harassment.

[50]Section 1 of the PHA contains a prohibition of “harassment”. The section provides:

“(1) A person must not pursue a course of conduct— (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. … (2) For the purposes of this section … , the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other. (3) Subsection (1) … does not apply to a course of conduct if the person who pursued it shows— (a) that it was pursued for the purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”

[51]A person who pursues a course of conduct in breach of section 1(1) of the PHA is guilty of an offence (section 2). Moreover, “[a]n actual or apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question” (section 3(1)). On such a claim, “damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment” (section 3(2)).

[52]Section 7(2) of the PHA provides that references to “harassing” a person “include alarming the person or causing the person distress”. By section 7(3), a “course of conduct” must involve, in the case of conduct in relation to a single person, conduct on at least two occasions in relation to that person.

[53]In Majrowski v Guy’s and St Thomas’s NHS Trust

[2006] UKHL 34

[2007] 1 AC 224

, Lord Nicholls said (at paragraph 30):

“Where … the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2.”

[54]In R v Smith

[2012] EWCA Crim 2566

[2013] 1 WLR 1399

, Toulson LJ, giving the judgment of the Court of Appeal, explained (at paragraph 24):

“In construing section 1 of the [PHA] it is right to have regard to the type of mischief at which it was aimed. It is also right to have regard to what the ordinary person would understand by harassment. It does not follow that because references to harassing a person include alarming a person or causing a person distress (section 7(2)), any course of conduct which causes alarm or distress therefore amounts to harassment: Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 29. So to reason would be illogical and would produce perverse results. A person who habitually drives too fast in a built up area may cause alarm to other road users, but conduct of that sort was not what Parliament was invited to consider and would not fall within the ordinary understanding of what is meant by harassment. In R v Curtis [2010] 1 WLR 2770 the court referred to the definition of the word ‘harass’ in the Concise Oxford Dictionary, 10th ed (1999), as meaning to ‘torment by subjecting to constant interference or intimidation’. Stalking is the prime example of such behaviour, but not the only possible form. It may occur, for example, between neighbours or in the workplace: Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224, para 18. Essentially it involves persistent conduct of a seriously oppressive nature, either physically or mentally, targeted at an individual and resulting in fear or distress: Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30.”

The heads of complaint

[55]I shall take in turn the particular matters in respect of which the Careys make complaints in their particulars of claim.

Electricity

[56]It might have been better if Mr Burgoyne had not simply turned the “Piggery” switch off (as to which, see paragraphs 15 and 16 above). However, he and his wife were unaware of any “gentlemen’s agreement” that Mr Warrington had made with the Careys. Moreover, the Burgoynes were under no obligation to provide Higgery Piggery with electricity, let alone to do so for free (as they had in fact been doing). The “gentlemen’s agreement”, which I have already said lacked contractual force, cannot have been binding on the Burgoynes. On top of that, there can be no question of the Burgoynes having subsequently refused unreasonably to restore the electricity supply. They were never asked to reconnect it.

[57]Nor are the Burgoynes open to criticism for failing to agree to let the Careys have an overground power cable on Rhos Farm. Clause 13.2.4 of the transfer of Higgery Piggery entitled the Careys to “lay an underground electricity cable”. They had absolutely no right to insist on an overground connection.

[58]Come 2012, Mrs Carey wrote to the Burgoynes about an underground electricity supply. Mr Burgoyne’s response indicated that he and his wife were willing to have the requisite work done by either Burgoyne Developments or Scottish Power. The Careys nevertheless took matters no further. In the circumstances, the Burgoynes cannot be said to have refused to allow Mr Carey to lay the underground electricity cable for which the transfer of Higgery Piggery provided. Moreover, they never disputed the existence of the relevant easement.

[59]In short, the Careys have not demonstrated that the Burgoynes’ conduct in respect of their electricity supply amounted to harassment.

Water

[60]Some of the same points can be made in relation to water. Just as the Burgoynes had no knowledge of any “gentlemen’s agreement” for the supply of electricity to Higgery Piggery, they did not know of any “gentlemen’s agreement” relating to water. In any case, they were under no obligation to supply the Careys with water, still less to do so without payment. What the Careys had (by virtue of clause 13.2.3 of the transfer of Higgery Piggery) was a right to lay a water pipe connecting with the mains supply. This they exercised. The Burgoynes agreed a route, and a pipe was laid through Rhos Farm in July 2009.

[61]In the event, for whatever reason, Higgery Piggery was not finally connected to the mains water system until 2010. The Burgoynes cannot be blamed for this, and they agreed an interim arrangement under which the Careys took water from Rhos Farm on a metered basis.

[62]With regard to the August 2010 leak (as to which, see paragraph 23 above), the Burgoynes were not responsible for it but nevertheless reported it to the Careys. Their behaviour cannot be characterised as “harassment”.

[63]That leaves the occasion when, in late 2010, the Careys’ water pipe briefly froze as a result of work that the Burgoynes were undertaking (see paragraph 24 above). As I have indicated, this was an accident: the Burgoynes did not intend the Careys’ pipe to freeze. That being so, I do not think the incident can lend any support to the accusation of harassment. Can, however, the Careys complain of interference with their easement?

[64]As was pointed out by Mr David Green, who appeared for the Burgoynes, an action for disturbance of an easement requires a “substantial interference with the right” (see Gale on Easements, 19th ed., at paragraph 13-03). On balance, I do not consider the brief interruption of the Careys’ water supply that unintentionally occurred when their pipe froze involved a “substantial” interference with their easement. I shall not, therefore, award any damages. Even had I concluded that there had been a “substantial” interference, I would have awarded no more than nominal damages and refused to grant any injunctive relief.

[65]In the circumstances, I do not consider that the Careys have proved behaviour in relation to their water supply that could constitute harassment.

Pond overflow

[66]As already mentioned, the transfer of Higgery Piggery reserved for the benefit of Rhos Farm: “A right to retain the existing pipes drains and conduits for the drainage of surface water and the overflow from the pond the approximate line of which are shown coloured purple on the Plan”.

[67]The line shown coloured purple on the plan annexed to the transfer runs more or less due east from the pond at Rhos Farm and immediately north of one end of the former piggery. Water enters the overflow from the pond through a concrete inlet chamber adjacent to the boundary between Rhos Farm and Higgery Piggery (“Manhole 1”) and proceeds through an underground pipe running slightly downhill to a second manhole immediately to the east of the former piggery (“Manhole 2”). Water is then meant to flow down a pipe at a slightly greater gradient before being discharged into a field forming part of Rhos Farm via a third manhole (“Manhole 3”). The total distance from Manhole 1 to Manhole 3 is about 58 metres and Manhole 2 is some 16 metres from Manhole 1.

[68]Mr Warrington explained in cross-examination that the pond overflow was already there when he and his wife bought Rhos Farm in 1997. He also said that the pipe did not cause any problems during the period he and his wife owned Rhos Farm.

[69]The particulars of claim contain this allegation relating to the pond overflow:

“Due to lack of maintenance and general malicious disregard, the [Burgoynes’] Pond has overflown onto the [Burgoynes’] land since June 2009. When it rains heavily, the pond overflows thousands of litres of Water on to the [Careys’] land, and then down the track back into the [Burgoynes’] own Field.”

The particulars go on to say:

“The Pond Overflow has not been maintained since the [Burgoynes] purchased Rhos Farm. As a direct result of this the Pond overflow pipes have been blocked with residue from the overhanging trees, and general debris from the pond. This debris frequently blocks the manhole next to the [Careys’] property.”

[70]The Careys’ thesis is thus that the overflow pipe has been blocked by materials entering it from the pond as a result of lack of maintenance. They explained that water overflowing from the pipe, in particular at Manhole 2, floods onto the track that leads into Higgery Piggery. Mrs Carey spoke of a “small stream” running down the track.

[71]Before turning to the causes of the problem, I should say that the Burgoynes were unaware of any issue with the pond overflow prior to these proceedings. Mr Burgoyne said in a witness statement that “[t]he first [he and his wife] knew of any complaint by the [Careys] about the overflow pipe was after the proceedings began i.e. from the paperwork in the proceedings”, and I accept that evidence. Mr Carey argued that the Burgoynes would have seen that there was flooding either from looking out of their windows or from the CCTV camera put up following the incident on 27 June 2014, but these suggestions strike me as fanciful. Nor do I consider that any pooling of water at the bottom of the hill would have alerted the Burgoynes to defects in the overflow from the pond.

[72]Since learning of the Careys’ complaints, the Burgoynes have taken steps to improve the position with the overflow. In particular, they have cleared away some of the trees around the pond; during cross-examination, Mr Burgoyne explained that he had done work to tidy up the pond in an attempt to remove any problem and dispose of the litigation. The Burgoynes also, in an open letter from their solicitors dated 2 April 2015, put forward a proposal to sort things out for the future. The letter explained what was envisaged in these terms:

“It is estimated that the greater part of the damage [to the pipework], some 85%, has been caused by the digging out of your roadway resulting in damage to the existing pipe and by the works carried out by you at point C referred to above. Our clients’ proposal for resolution of this issue is the installation of a new overflow pipe on our clients’ property that does not cross your property. The cost of such works is estimated at approximately £1,000 plus VAT. The proposal is that our clients arrange for such works and that the cost of such works are borne as to 50% by yourselves and 50% by our clients, such costs not to exceed £1,000 plus VAT. The old pipe would then be redundant save for the fact that you have made a connection to it for the purpose of draining water of one sort or another from your property ‘Higgery Piggery’ through the pipe. As there is no easement for this it would be up to you to relocate your drain within your property as appropriate and the old pipe could be sealed at either end and the easement in favour of our clients could be released.”

[73]Pausing there, it is clear, I think, that nothing that the Burgoynes have done (or not done) in relation to the pond overflow provides any evidence of harassment. They neither caused any problem with the overflow deliberately nor even ignored one once they had been told of it.

[74]Are, though, the Careys entitled to relief on some other basis? In this connection, guidance as to the relevant law is to be found in Jones v Pritchard

[1908] 1 Ch 630

. Parker J there said this (at 638):

“[T]here is undoubtedly a class of cases in which the nature of the easement is such that the owner of the dominant tenement not only has the right to repair the subject of the easement, but may be liable to the owner of the servient tenement for damages due to any want of repair. Thus, if the easement be to take water in pipes across another man’s land and pipes are laid by the owner of the dominant tenement and fall into disrepair, so that water escapes on to the servient tenement, the owner of the dominant tenement will be liable for damage done by such water. Strictly speaking, I do not think that even in this case the dominant owner can be said to be under any duty to repair. I think the true position is that he cannot, under the circumstances mentioned, plead the easement as justifying what would otherwise be a trespass, because the easement is not, in fact, being fairly or properly exercised.”

Someone with the benefit of a right to use a water pipe can potentially, therefore, be liable for trespass if he fails to maintain the pipe.

[75]So far as the causes of the difficulties with the pond overflow are concerned, I have the benefit of a report prepared by a chartered engineer, Mr John Naylor, on the joint instructions of the parties. Having stated that “CCTV surveys and site inspections have revealed numerous defects in the pipe which include displaced/open joints, collapsed pipes, deformed pipes, blockages, debris accumulation and standing water”, the report said this (at paragraph 5.3):

“It is considered that the defects have been caused by a number of factors including overloading by vehicles, construction activity, surcharge loading, poor workmanship, inherent ground movement and poorly discarded material.”

[76]Earlier in his report, Mr Naylor explained that collapsed and deformed pipes are to be found at various points along the route of the overflow. In paragraph 4.2.12 of the report, Mr Naylor said this:

“The writer therefore believes that the structural damage which has occurred to the pipes in the form of collapse, deformation and repair with HDPE [i.e. high-density polyethylene] pipe can be attributed to localised overloading at the surface by the trafficking of vehicles and/or construction activities.”

[77]Mr Naylor went on to explain (in paragraph 4.2.13 of the report): “A number of discrete blockages were encountered in the CCTV survey where the pipe section has been totally or very severely lost causing a major reduction in flow capacity of the drain and precipitating debris accumulation and backing up of water within the system. Blockages were identified at the following locations: 10.3m: severe blockage by plastic toy rake 11.2m: severe blockage by brick restriction at join with plastic pipe 17.0m – 18.0m: partial blockage by 20mm diameter plastic pipe 19.5m: severe blockage by debris accumulation 48.0m: severe blockage by pipe collapse”.

[78]With regard to the first of these blockages (at 10.3 metres from Manhole 1), Mr Naylor said (in paragraph 4.2.14 of his report) that “a discarded purple plastic toy rake of the type commonly used by children at the seaside” is “lodged inside the drain”. The second blockage (at 11.2 metres) has been “caused by poor workmanship at the time the HDPE pipe was laid” (paragraph 4.2.15 of the report). The third blockage (at 17.0-18.0 metres) stems from “the presence of a small diameter plastic pipe which is located within the internal bore of the drain”, the most likely cause for which is that “it has been used as a rodding tool from the access point at [Manhole 2] and has not been removed” (paragraph 4.2.16 of the report). As regards the fourth and fifth blockages (which lie between Manhole 2 and Manhole 3), Mr Naylor said this (in paragraph 4.2.17 of the report):

“The fourth and fifth blockages at 19.5m and 48.0m are shown in the CCTV survey to result from debris accumulation and/or collapse of the pipe. It is therefore considered that this is due to overloading of the pipe at the ground surface by trafficking with vehicles, construction related activities and/or storage of heavy materials. In the writer’s opinion it is likely that there are further blockages in the section of drain between 19.5m and 48.0m, where CCTV access was not possible.”

[79]In answer to questions from the Burgoynes’ solicitors, Mr Naylor also further explained as follows:

“2. … Due to the relatively shallow depth of the drain in the area of the roadway [i.e. the track into Higgery Piggery] it is considered likely that damage to the buried pipe has resulted from road construction and trafficking of vehicles within the grounds of Higgery Piggery. However, at this stage, I cannot comment on the condition of the drain prior to construction of this roadway as I do not have a history of development and usage of the site since the drain was originally laid. As the site was formerly a farm building used as a piggery, it can be assumed that there has historically been movement of vehicles and so forth in and around the area. 3. The drain has been laid at self-cleansing gradients … and therefore in the absence of the defects noted in my report, sediment would tend to be carried through the pipe and deposited in the inspection chambers due to reduction in flow velocity ….”

[80]In the light of all the evidence, I arrive at the following conclusions: i) The problems with the pond overflow have not arisen from “residue from the overhanging trees, and general debris from the pond” (to quote from the particulars of claim). They are rather derived from “structural damage which has occurred to the pipes”. But for that damage, the drain would have been self-cleansing; ii) The blockages between Manhole 2 and Manhole 3, which common sense suggests will be at least mainly to blame for flooding at Manhole 2, are likely to have been caused principally by work and vehicle movements above the pipe on the track into Higgery Piggery and thus not to be the Burgoynes’ fault; iii) While the flooding that has occurred may also be attributable in part to failure on the part of the Burgoynes and their predecessors to maintain the pipework (although, as I have said, the Burgoynes were ignorant of any problem), it has not been demonstrated that discharges for which the Burgoynes can be said to be responsible have been of such a scale or type as to constitute a trespass, especially since the discharges will have consisted of water rather than anything more noxious. It is not apparent that such discharges have of themselves imposed on the Careys a burden greater than they would have borne if the overflow had not existed (when water would presumably have flowed onto Higgery Piggery naturally) or in fact any significant burden at all; and iv) In any event, the flooding from the overflow has not been shown to have caused any damage to Higgery Piggery.

[81]In all the circumstances, I do not consider that I should grant the Careys any relief in respect of the pond overflow.

CCTV camera

[82]The Careys allege in their particulars of claim that the CCTV camera put up following the incident of 27 June 2014 (see paragraphs 37-39 above) has “interfered with and/or disturbed and/or annoyed [them] in the exercise and/or enjoyment of their ownership and/or occupation of [their] property”.

[83]Whilst, however, the particulars of claim speak of the camera being “aimed towards one of the Daughters bedrooms”, it filmed nothing more significant than brickwork even before its position was adjusted on 21 February 2015 (see paragraphs 44-45 above). The camera’s field never extended to any window or door at Higgery Piggery. The building there was included only to the extent of the bottom courses of bricks.

[84]Further, the anti-social behaviour incident log records that the police told Mr Carey on 15 November 2014 that the installation of the camera was an “understandable response” given “the nature of the dispute between the two parties”. I agree, especially in the light of the events of 27 June 2014. In fact, the evidence indicates that the camera was put up at the suggestion of the police.

[85]Mr Burgoyne said in a witness statement:

“The CCTV was installed simply with the … desire to protect ourselves and our property following the incident in June 2014 … and was not malicious at all.”

I have no difficulty in accepting that explanation.

[86]In all the circumstances, it is not surprising that the police saw no reason to object to the camera, and its installation does not, in my view, lend any support to the Careys’ claims in these proceedings.

Lights

[87]The particulars of claim include an allegation that Mr Burgoyne has “frequently … on dark evenings driven his John Deere Tractor up to boundary fence with the [Careys] and parked his Tractor with his Headlights on Main beam pointing into the [Careys’] Dining and Living room … with the intent to cause nuisance and distress”. However, Mr Burgoyne said in a witness statement that he has “never used the tractor or its headlight to cause aggravation to the [Careys]” and the point was not pursued with him or his wife in cross-examination. I do not, therefore, need to deal with it.

[88]The allegation I do have to address is that the Burgoynes installed a floodlight which “shines over the [Careys’] property including the Bedrooms Lounge and Decking Area”.

[89]This allegation is supported by evidence from Mr Roy Radford, Mrs Carey’s father, as well as the Careys themselves. Mr Radford said in his witness statement:

“Recently, in the weeks up to November 2014 every time we were there [i.e. at Higgery Piggery], and it went dark; my daughters property was floodlit by the Burgoyne’s. Again this deliberate provocation was reported to the Police, as it was shining right over their home and living areas.”

Further, a photograph apparently taken at 22.53 on 31 October 2014 seems to show a bright light.

[90]For their part, the Burgoynes have suggested that the complaint must relate to a security light installed by the Warringtons. Mr Burgoyne said this on the subject in a witness statement:

“As I understand it the security light to which the [Careys] refer here is one which is on the end of the indoor riding school at the far side of the Rhos farmhouse from Higgery Piggery which lights up the yard. It is there for our protection and our convenience and has been for a considerable period of time. It is certainly not there for the purposes which the [Careys] seem to assert. The light was not installed in 2014 but was installed by the previous owners, the Warringtons, in 2004 by Martin Pearce Limited, Electricians. This has not been altered in any way since our ownership of Rhos Farm. Also, the light in question is not a movement sensitive light.”

[91]Asked about the subject in cross-examination, Mr Burgoyne confirmed that he and his wife had been under the impression that the complaint related to the security light on the indoor riding school, which (he explained) would be on in the evening during the winter. He said that, if the Careys’ objection related to something other than that security light, he was at a loss to understand, and he expressed regret that Mr Radford had not come round to talk about the light at the time.

[92]This aspect of the case presents something of a puzzle. It seems to me, however, that the entry from the anti-social behaviour incident log that I have quoted in paragraph 40(ii) above provides useful evidence here. Having regard to that entry, the likelihood is, I think, that the relevant light was indeed that on the indoor riding school, that it was (as the log says) “dazzling”, but that it did not shine into any room at Higgery Piggery.

[93]In the end, I do not consider that this allegation lends significant support to the Careys’ claims. The Burgoynes do not appear to have installed the light to which the Careys are objecting, and their use of it was not such as to evidence harassment.

Leylandii

[94]The Careys’ complaints as regards leylandii have two elements. They criticise the Burgoynes(a) for their conduct in relation to the old tree mentioned in paragraph 35 above and

(b) for planting leylandii on the boundary between Rhos Farm and Higgery Piggery.

[95]I can see no basis at all for the first of these criticisms. The Burgoynes took steps to make the tree safe as soon as they learned that there was a problem. Their task was made more difficult by the Careys’ refusal to allow them access to Higgery Piggery (although it is fair to record that Mrs Carey said in evidence that she and her husband had thought that it was best for her husband’s health that the Burgoynes did not come on to their land).

[96]So far as the second criticism is concerned, I can see that the leylandii may make the views from Higgery Piggery somewhat less attractive, although the extent to which they do so must be mitigated considerably by the fact that the building stands above most of the relevant boundary. Be that as it may, however, I do not consider the Burgoynes to have behaved improperly or in a way that could constitute harassment. The trees are on the Burgoynes’ own land and they have not been allowed to grow to an excessive height. Further, while the Careys said that the trees affected solar panels on their land, it emerged from the evidence that the trees pre-dated the panels: they were already there when the panels were moved near them. “Loitering/Stalking/Spying On/Intimidation” etc

[97]The particulars of claim include a variety of further allegations against the Burgoynes. Thus, it is said that: i) Mrs Burgoyne “has repeatedly and deliberately attempted to make unrequested and undesired contact with the [Careys] with intent to cause harassment, alarm and distress; [she] has repeatedly been observed loitering and/or spying on, following, and/or photographing the [Careys’] property, family, children and visitors”; ii) “On the infrequent times the [Careys] have conversed with the [Burgoynes] their manner has always been aggressive, hostile and antagonistic”; and iii) “The [Burgoynes] have waged a surreptitious and malicious campaign of Harassment and Slander against the [Careys] over many years. One Aspect of this behaviour is to have made numerous false, unfounded allegations against … Mr Carey to the Police and … also the Environmental Agency, as well as false allegations of Trespass against … Mrs Carey”.

[98]I can, I think, take these allegations relatively briefly: i) It is apparent that Mrs Burgoyne took photographs of at any rate one incident at Higgery Piggery (the delivery of a generator, from inside the farmhouse), but it has not been established that she took photographs of the Carey family or their visitors other than incidentally or, more generally, that she took photographs on such a scale or in such a way as to give rise to harassment. An entry in the anti-social behaviour incident log for 9 September 2014 is noteworthy. It reads:

“Mr and Mrs Carey state that Mrs Burgoyne often just stares at their property/land, and the previous day had sat in her car for an hour doing it. He believed that she had also taken photos of his children, however Mrs Burgoyne’s camera was checked and only had photos of her horsebox on it. She stated that as Mr Carey was cutting his hedge she was concerned he may damage her horsebox so took photos just in case.”

The Careys’ suspicions thus proved unfounded. It may be worth adding that there is evidence of the Careys photographing (or, in some instances, at least appearing to photograph) the Burgoynes; ii) The Careys suggest that Mrs Burgoyne “stalked” Mrs Carey by accessing her Facebook account and downloading a photograph from it. Contrary, however, to the Careys’ case, the picture in question must have been publicly available and Mrs Burgoyne downloaded it in order to respond to an allegation made by the Careys in these proceedings; iii) It is doubtless the case that Mrs Burgoyne looked to see what was happening at Higgery Piggery from time to time, but nothing that could support the allegation of harassment has been demonstrated. Mr Carey’s accusation during Mrs Burgoyne’s cross-examination that she had an “unhealthy interest” in the Carey family was unwarranted, and I reject it; iv) It is certainly the case that Mrs Burgoyne telephoned the police about Mr Carey on a number of occasions, but I have not been persuaded that she ever did so without some cause; v) The Burgoynes also had reason to complain to Powys Environmental Health Service.

[99]In short, I do not think the allegations advanced by the Careys evidence harassment.

Conclusions

[100]In my view, the Careys have not made out their case. They have not come close to persuading me that the Burgoynes have pursued a course of conduct amounting to “harassment”. Nor do I consider that the Careys have established that they are entitled to relief on any other basis. I shall therefore dismiss the claim.