“Please shut the gate. Movement & work with livestock in progress. Thank you.”
“the right for the Purchasers and their successors in title at all times hereafter and for all purposes connected with the use and enjoyment of the Property the right with or without vehicles of any description to pass and repass over and along that section of the yard on the plan coloured yellow in common with the Vendors and others so entitled for the purpose of gaining access to and egress from the Property.”
“AND UPON the Court having determined that the double gates which were erected by the Defendant in place of the aforesaid gate and fence, and across the Claimants’ right of way on or about17th December 2021 (‘the Double Gates’), not in themselves but when taken together with (a) the sign which the Defendant affixed to the Double Gates (‘the Sign’) and (b) the Defendant’s conduct in challenging various of the Claimants’ visitors who attempted to drive onto the part of the yellow land which lies to the east of the Double Gates, amounted to a substantial interference with the Claimants’ aforesaid right of way; … AND UPON the Court having determined that the Claimants are under no obligation to keep the aforesaid sliding door closed; … AND IT IS ORDERED AND UPON the Court having determined that the Claimants are under no AND IT IS ORDERED 3. The Defendant: a) shall forthwith remove the Sign from the Double Gates; b) shall by12th November 2024 erect a sign or signs stating “Lower Fenemere Farm and Turning for Lower Fenemere Court. Please shut gate after use to prevent the escape of farm livestock”
“67 It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.”
“The appeal is therefore an appeal on a pure question of fact. The approach of an appeal court to that kind of appeal is a well-trodden path. It is unnecessary to refer in detail to the many cases that have discussed it; but the following principles are well-settled: (i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong. (ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. (iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it. (iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him. (v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable. (vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract.”
“The [Barn] Door is left open by the [Respondents], or those authorised by them, for extended durations of time in connection with the [Respondents] or their agents access to and from the [Respondents’] Property through the [Barn] Door or use of that part of the [Respondents’] property. When the [Barn] Door is left open and unmanned the [Appellant] has had to take steps to mitigate the impact of this on the operation of her farm as when the [Barn] Door is left open it defeats the objective of the [Appellant’s] otherwise contained yard on the [Appellant’s] Property, and treatment area for the [Appellant’s] sheep.”
“Leaving the Barn Door open: There is evidence that, on occasion (particularly when the Portaloo was delivered) the Barn Door was left open. However, the Defendant has failed to satisfy me that there is any prohibition, whether in the grant or otherwise, on leaving the Barn Door open. The fact that it causes difficulty for her if the Claimants’ animals stray into Lower Fenemere Farm or her sheep should stray into the milking shed does not mean that she is legally entitled to insist on the Barn Door being kept closed, though it is clearly unneighbourly of the Claimants to open the milking shed to Lower Fenemere Farm without warning and without placing a barrier in the entrance to prevent sheep entering the milking shed of animals escaping from it, leaving the Defendant to do so.”
“The inconvenience of opening one or both of the Double Gates on the few occasions when it is necessary would not, in my judgment, amount to a substantial interference with the right of way, particularly given that, before they were erected, there were times when all drivers had to open and close the Original Gate. Mrs Leonard’s evidence was that she sometimes left Lower Fenemere Court six or eight times in a day. Opening and then closing the Original Gate on the way in and out up to 8 times a day would be 32 times per day, and that is just for Mrs Leonard’s journeys, on days when the Original Gate needed to be closed. The serious inconvenience to her was clear from her message to the Defendant and Mr Grovell. In my judgment, the inconvenience to the Claimants and their visitors, who need open the Double Gates only for very large vehicles, is likely to be less than having to open the Original Gate for every vehicle at times when the Original Gate was closed.”
“However, it is clear that the Claimants did keep the Original Gate closed when requested, and they do not appear to have suggested to Mrs Whiston that they were not obliged to do so.”