“This case has been extraordinarily expensive in terms of court resources. Important cases due to be heard by this Court have had to be adjourned, holidays have been cancelled, and the increased sitting hours have taken a considerable physical and mental toll on court staff, litigants and lawyers.”
“I Vivien Saunders confirm that I accept that there is a conviction for assault but do not want the Judge to see the videos because I am concerned that there could be an adverse impact on my application to the CCRC (Criminal Cases Review Commission).”
“We are sure that when the car was driven forward, that Jill Beresford-Ambridge was still in front of the vehicle, and at that point, the vehicle did make contact with Jill Beresford-Ambridge and nudged her backwards, whilst Ms Saunders repeatedly told her to get her out of the way. And on that key point, we found the respondent’s witnesses credible in terms of the fact that it had made contact, as I say, supported by video evidence, which makes in our view, that clear. We are satisfied that we are sure that the contact was deliberate and an attempt to physically force Ms Jill Beresford-Ambridge to move out of the path of the motor vehicle. That being the case, we are satisfied, so that we are sure, that the offence of assault has been committed, and therefore, Ms Saunders, we find you guilty in relation to the assault, and therefore, this appeal against conviction is dismissed.”
“Hi Denise Further to our telephone conversation earlier today. I can confirm that the water meter reading was taken on 15 September the day PIE acquired the site & it was 4632cu.m As we mentioned we had hoped that we could work to half yearly readings and invoice for water usage, say June & December. Perhaps you could speak to Vivien & let me know how she feels about it”
“(1) During the emergency period, no person may leave the place where they are living without reasonable excuse.
“she received a wad of cash out of my purchase price; she took£30,000 ”
“If you keep fucking about with my life; I will fuck with you”; “I have just moved in… I am not to be messed with. If you do it again [turn off the water] I will strangle you.”
“I don’t care you go back on your land. Go on. Darren Honeywill, or whatever your name is, get on your own land and don’t get on mine. Go on, go. Just get off my land. Just get off my land.”
“I don’t believe her to be violent personally … she knows of this attack and I fear that she could encourage Colm to show violence to me.”
“Who would deprive a whole community of mainly elderly residents of water for 10 days in the middle of a heatwave when temperatures reached a record breaking 40 degrees? Not only cruel and spiteful but dangerous.”
“Not to occupy the Lodge for more than 11 months in each and every calendar year (it being acknowledged that the Lessee will ensure that the Lodge is vacated from time to time for a minimum period of one month in each year) nor permit the same to be used for permanent residential accommodation but solely as holiday accommodation.”
“2. There is no limit on the time people can spend at a lodge provided they are using it as holiday accommodation. It is the nature of their use, not the time people spend there that determines whether the condition is being complied with. 3. A lodge owner who did not have a primary address where they resided for significant period would in my view find it difficult to demonstrate that they were complying with the condition if they spent significant periods at their lodge.”
“No. Not a contract, no consideration. Just saying your pipe needs to go from here to there. There is no separate oral agreement and nothing is evidenced in writing.”
“[15] When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean,” to quote Lord Hoffman in Chartbrook Ltd v Persimmon Homes Ltd[2009] AC1101 . And it does so by focussing on the meaning of the relevant words… in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party’s intentions… [16] For present purposes, I think it is important to emphasise seven factors. [17] First, the reliance placed in some cases on commercial common sense and surrounding circumstances … The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and surrounding circumstances, the parties have control over the language they use in a contract. Again, save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision. [18] Secondly, when it comes to considering the centrally relevant words to be interpreted, I accept that the less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. That is simply the obverse of the sensible proposition that the clearer the natural meaning the more difficult it is to justify departing from it. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning. If there is specific error in the drafting, it may often have no relevance to the issue of interpretation which the court has to resolve. [19] The third point I should mention is that commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made … [20] Fourthly, while common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed… [21] The fifth point concerns the facts known to the parties. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time that the contract was made, which were known or reasonably available to both parties. Given that a contract is a bilateral, or synallagmatic, arrangement involving both parties, it cannot be right, when interpreting a contractual provision, to take into account a fact or circumstance known only to one of the parties. [22] Sixthly, in some cases an event subsequently occurs which was plainly not intended or contemplated by the parties, judging from the language of their contract. In such a case, if it is clear what the parties would have intended, the court will give effect to that intention… [23] Seventhly, reference was made in argument to service charge clauses being construed “restrictively”
“[10] The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. It has long been accepted that this is not a literalist exercise focused solely on a parsing of the wording of the particular clause but that the court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. In Prenn v Simmonds[1971] 1 WLR 1381 (1383H-1385D) and in Reardon Smith Line Ltd v Yngvar Hansen-Tangen[1976] 1 WLR 989 (997) , Lord Wilberforce affirmed the potential relevance to the task of interpreting the parties' contract of the factual background known to the parties at or before the date of the contract, excluding evidence of the prior negotiations. When in his celebrated judgment in Investors Compensation Scheme Ltd v West Bromwich Building Society[1998] 1 WLR 896 Lord Hoffmann (pp 912-913) reformulated the principles of contractual interpretation, some saw his second principle, which allowed consideration of the whole relevant factual background available to the parties at the time of the contract, as signalling a break with the past… [11]. Lord Clarke elegantly summarised the approach to construction in Rainy Sky [SA v Kookmin Bank[2011] UKSC 50 at para 21f. In Arnold all of the judgments confirmed the approach in Rainy Sky (Lord Neuberger paras 13-14; Lord Hodge para 76; and Lord Carnwath para 108). Interpretation is, as Lord Clarke stated in Rainy Sky (para 21), a unitary exercise; where there are rival meanings, the court can give weight to the implications of rival constructions by reaching a view as to which construction is more consistent with business common sense. But, in striking a balance between the indications given by the language and the implications of the competing constructions the court must consider the quality of drafting of the clause … Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. [12] This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated … To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each. [13] Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation. Rather, the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the objective meaning of the language which the parties have chosen to express their agreement. The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements. Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals. The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example because of their informality, brevity or the absence of skilled professional assistance. But negotiators of complex formal contracts may often not achieve a logical and coherent text because of, for example, the conflicting aims of the parties, failures of communication, differing drafting practices, or deadlines which require the parties to compromise in order to reach agreement. There may often therefore be provisions in a detailed professionally drawn contract which lack clarity and the lawyer or judge in interpreting such provisions may be particularly helped by considering the factual matrix and the purpose of similar provisions in contracts of the same type… [14] On the approach to contractual interpretation, Rainy Sky and Arnold were saying the same thing. [15] The recent history of the common law of contractual interpretation is one of continuity rather than change. One of the attractions of English law as a legal system of choice in commercial matters is its stability and continuity, particularly in contractual interpretation.”
“… whatever the legal character of the document in question, the starting point – and usually the end point – is to find “the natural and ordinary meaning” of the words there used, viewed in their particular context (statutory or otherwise) and in the light of common sense” 338. 328.Popplewell J in The Ocean Neptune[2018] EWHC 163 sets out the principles for the construction or interpretation of commercial documents as follows: (1). The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement; (2). The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant; (3). The court must consider the contract as a whole and, depending on the nature, formality and quality of the drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used; (4). If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; (5). The court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each; (6). The formality and quality of the drafting of the contract does have an impact on the approach of the court to its interpretation. Thus, in the case where the contract has been “negotiated and prepared with the assistance of skilled professionals” the court will interpret the agreement “principally by textual analysis” ( Wood v Capita Insurance). 345. 329.While reference was made to with what was said by Smith LJ in Maggs v Marsh[2006] BLR 395 for guidance with consideration of an oral contract, where she said that “Determining the terms of an oral contract is a question of fact. Establishing the facts will usually, as here, depend upon the recollections of the parties and other witnesses …”
“This was to be the water main supply potable water to the caravan site to be connected to the Anglian Water main on Potton Road…”
“To pay and discharge all existing and future fates charges duties assessments impositions and outgoings of any kind whether parliamentary parochial local or of any other description now or in the future imposed or charged upon or payable in respect of the Property or any part or parts of it or the supply of Utilities to the Property whether or not of a capital or non-recurring nature and whether payable by the Superior Landlord or the Tenant or any occupier of the Property or any part or parts thereof ….” 369.Pursuant to clause 3.7.1 the tenant is to put and keep the conduits in good and substantial repair and condition “and whenever necessary to rebuild and renew the same.”
“To indemnify the Landlord [Abbotsley] for all costs and expenses payable by the Landlord in respect of the supply of water to the Property and in addition to pay to the Landlord on demand a management charge equal to 10% of such water.”
“The right for the free and uninterrupted passage and running of water soil gas electricity telephone and other services or supplied from the Adjoining Property in and through any Conduits which now are or may hereafter during the Term be in upon through under or over the Property.” 398. 372.The Lease is entirely clear and comprehensive. It is a severe strain on the language of the Lease to contend that the only water that the “chalet land” has supplied, or at the very least flowing, from the Abbotsley land is the irrigation water. 399. 373.As set out above, the Agreement does not provide for the connection to mains water to be from Anglian Water. There is nothing in the Lease to suggest that Luddington was obliged to obtain a water supply from Anglian Water. Given the comprehensive nature of this Lease such a provision, if it existed, would have been included. While, in her evidence, Ms Saunders laughed at the suggestion that “connected to the mains at the route of the water supply” meant connection to the alkathene pipe which carried the mains water, that is clearly what it meant. Ms Saunders was intent on interpreting the completion statement signed by Bruce Weller as meaning that a pipe had been laid across the golf course. It plainly did not mean that. No such pipe has ever been found – even with the use of surveying equipment by both professionals and Mr Simon Jefferies and on2 April 2020 , Ms Saunders knew there was no such pipe as she was telling Mr Walker that it was “up to Pheasantland” to get the pipework laid. 400. 374.Instead, reading this Lease in accordance with the principles enunciated by Lord Neuberger in Arnold v Brittan and the other cases referred to above, the “chalet land” let to Luddington has the right for the free and uninterrupted passage and running of water. The cutting off of the water supply is an interference with that right and a breach by Abbotsley of the covenant for quiet enjoyment. 401. 375.Clause 3.27 provides for Luddington (and its successors including Pheasantland) to indemnify against the costs and expenses payable by Abbotsley in respect of the supply of water and to pay a management charge equal to 10% of such costs and expenses. As is set out above, the strained interpretation given to the Agreement and the Lease by the claimants and claimants’ counsel that the supply of water only relates to the irrigation system is simply wrong. Clause 2.6 of the Agreement granted unrestricted access to Luddington to enable Luddington to carry out the Infrastructure Works, including the right to connect into the irrigation system of Abbotsley for the purpose of carrying out those Infrastructure Works. The irrigation system is entirely separate to the water supply which was part of the Infrastructure Works themselves. 402. 376.At the time of entering into the Lease with Luddington, Ms Saunders had instructed her solicitors that the land was being developed with habitable dwellings. It would make no commercial sense for those properties to be without a supply of water and, while it is submitted on behalf of Abbotsley that if there were an obligation to 403. supply water then that would be included within part 5 of the Lease, I do not accept that would have been necessary. The submissions on behalf of Abbotsley with respect to the supply, or even flow, of water across Abbotsley land is predicated upon a construction of the Agreement which is wrong for the reasons set out above. Clause 3.27 is not a reference to the irrigation system but to a supply of water. That is clear from the wording of the Agreement and from the Lease. Had the only supply of water to the “chalet land” been limited to a connection to the irrigation system then, given the unusual nature of such arrangement then (again applying the principles in Arnold v Brittan) it could be expected that it would have expressly stated. Clause 3.27 simply would not have been included in the Lease had Abbotsley not been supplying water to the “chalet land”. 404. 377.The Agreement to Lease therefore provides for a water connection to the Abbotsley pipe and clause 3.2.1 requires Pheasantland to pay for the supply of utilities, including water. The Lease further provides for the supply and charging of the water supply by Abbotsley to Pheasantland. Other Documentation 405. 378.While the documentary evidence that is available after the Lease was entered into does not inform the construction of that Lease, or the other documents such as the Agreement to Lease, it is clear that there is nothing in that available documentation which contradicts the construction of the documents being the one I have reached. The site plan produced by the Norwegian Log Buildings is marked up to show both water supply from Golf Couse (metered) and the water supply for putting green. Two separate supplies. In February 2011, an ordnance survey map set out: 2 no 63 water supply from Golf Course (metered) and water supply for putting green. An ordnance survey map was plotted by Tom James identifying the route of the pipes on the Abbotsley land and where it enters the “chalet land”. 406. 379.In a letter dated18 November 2011 from the solicitors to PI Estates (Pheasantland’s predecessors as tenant of the “chalet land”), under the heading “Water Supply” there was reference then to Ms Saunders having set out a clear threat to cut off the water supply on the basis that they had been a failure to pay (which was denied). This is clear evidence that Ms Saunders knew that Abbotsley were supplying the water and were to be paid for it. She was threatening to cut off the water supply because of alleged non-payment for Abbotsley’s supply of water to the “chalet land” not because they were not entitled to water. In the same letter, the solicitor makes complaints against Ms Saunders which are shockingly similar to the behaviour she has exhibited towards the current owners and occupiers of the lodges: “Whether you consider it to be justifiable retaliatory conduct or not, what has transpired recently is simply unacceptable. You have repeatedly stated that there is now a “dispute” of which our clients need to make every prospective purchaser of a Lodge aware. Without being anywhere near an exhaustive list, recent activities on your part include the following – Mr and Mrs Moses experiencing abuse to them on Site (including verbal and arguable racial abuse) such that they felt it necessary to report the incidents to the Police/ Threatening to cut off the water supply to the Lodges (when you have acknowledged it is a supply to which they are entitled)/ The implicit suggestion in your letters to the residents and ourselves that anyone who asserts their legal rights against you normally results in their legal rights against you normally results in them losing, incurring substantial costs and in some cases facing prison/ Constantly referring to the Lodge owners as “inmates” / Leaving abusive voicemail messages, one of which stating that you very much hoped our clients “die over the weekend…” (my emphasis) 380.It is shocking that this seriously abusive behaviour from Ms Saunders towards the owners and occupiers of the lodges appears to have been occurring 14 years ago. Ms Saunders volunteered in cross examination that the potentially racial abuse of Mr and Mrs Moses was “I said to them that maybe you should go back behind the bulrushes”. 381.During the period 2012 to 2017 PI Estates were being charged by Abbotsley for the water supply and those invoices were being paid. By way of example, on10 July 2012 , PI Esates were charged for 196 days of water between21 December 2011 and5 July 2012 in the sum of£359.85 plus VAT, which was paid by cheque; and another invoice dated26 August 2013 showed the respective meter readings for4 January 2013 and1 August 2013 was in the total sum of£1004.12 , it was marked as being “chased” on6 November 2013 , and paid by cheque on18 November 2013 . Ms Saunders knew that Abbotsley were supplying water to the “chalet land” in accordance with the provisions of the Lease and were charging for that supply. Given the concerns of the solicitors for PI Estates that were being expressed on18 November 2011 that Ms Saunders was threatening to cut off the water supply to the” chalet land” which she acknowledged they were entitled to, and the threat of the consequences of anyone asserting their legal rights against her, it is clear that Ms Saunders was, and in my judgment still is, willing to take a stance or promote a stance that suits her own interests which she knew did not accord with the actual position. 382.On20 February 2012 , Ms Saunders had purported to serve a notice to re-enter to PI Estates Limited, raising a large number of allegations of breach of covenant. In the long list of complaints, Ms Saunders raised concerns that payments had not been made but there is nothing about any “water trespass”. 383.After the purchase of the lease at auction by Pheasantland in December 2017, on25 September 2018 , Mr Walker wrote on behalf of Pheasantland expressing commiserations about the closure of the course closures because of the damage to the courses and setting out “Given our position as head leaseholders for Abbotsley Country Homes, you’ll appreciate that we are keen to be kept in the loop on any changes or potential changes, that might impact matters such as our water supply and drainage – but that is for the future”
“We have previously made you aware that we are forced to supply water from the main meter to 24 other properties at PE19 6XN. One of these properties is a development site where there will be 9 new houses. The other 23 are all residential. In addition, we supply three properties of our own and one domestic property. The 24 properties we supply all have covenants obliging us to allow them a water supply. Each of these covenants was set up in the 1970s and 1990 before Anglian Water/Wave set this MDD…Can you please confirm whether the MDD is considered to be a standing charge. If it is, then it is my intention to divide this reasonably between the other 24 properties we are forced to supply.”
“We are not obliged to supply you with water. You have the right to free passage of water through the pipes under Abbotsley’s land but we are not obliged to shove water up those pipes ”
“Management charge at 10% of water invoice in accordance with paragraph 3.27 of your lease. Please note that as a management charge this is standard rated for VAT” 388.At this time, therefore, having supplied and charged for the supply of water to the “chalet land” for many years, Ms Saunders alleges that there is no obligation on Abbotsley to supply water to the “chalet land”
“… there is an easement with a negative burden, namely to allow water to flow along the pipe and not to damage the pipe. This would include a duty to allow the pipe to remain in the land and a duty not to interfere with it.” 392. Rance does not help Abbotsley or Ms Saunders in any respect. In this matter there is a contractual obligation on the part of Abbotsley to supply water and a contractual obligation on the part of the tenant, now Pheasantland, to pay for the supply of water together with a management charge to Abbotsley. That is exactly what happened for many years and it was only later that Ms Saunders contended for a different construction to the Lease that she had entered into with the benefit of representation from very experienced property solicitors. 393.In the circumstances, it is not necessary to consider the alternative scenario of whether Pheasantland are entitled to a flow of water. For completeness, it is clear that if there were not the contractual provision for a supply then there was an express grant for a right of flow of water from the Abbotsley pipes and that flow could not be interfered with. The cost of any water flowing through the pipe to the “chalet land” being payable by the tenant, Pheasantland, in accordance with clause 3.27. Allegation of Trespass 408. 394.In the circumstances, the claimants fail in their contentions that there was a trespass on the Abbotsley pipe and that Pheasantland was not entitled to a supply of mains water from the Abbotsley pipe. The submissions on behalf of the Claimants rely heavily upon “mains” meaning the Anglian Water mains. That was not the agreement between Abbotsley and Pheasantland but an ex post facto construct in order for Ms Saunders to seek to excuse her behaviour. Similarly, there is no reference to potable and non-potable water in any of the agreements between the parties. Again, this was a later construct to bolster Ms Saunders’ case. In the letter from Ms Saunders to Pheasantland dated2 November 2020 , she refers to the Lease envisaging two types of water supply – one being the irrigation of the green linked to Abbotsley’s irrigation supply and separately “the 63mm mains across the golf course to be linked to the Anglian Water… You refused to identify where that water mains was laid and why it was never linked to the Anglian Water mains”(my emphasis). It is clear that there were the two supplies and, from Ms Saunders own words, that “mains” is not limited to “Anglian Water mains”
“… their water supply will be turned off. I [Vivien Saunders] supply their water, They failed to pay me.” (see the letter from Lamb Brooks, solicitors for PI Estates dated18 November 2011 ). 396.In response to the issues raised: first, there is no trespass pipe and there has been and is no trespass upon Abbotsley. It was not a “bodge” job as repeatedly asserted by Ms Saunders and the fact that the blue pipe does not only provide the connection for the “chalet land” but also provides a 28 metre connection to the pipe that only benefits Abbotsley and Ms Saunders, as can be seen in the “Survey Solutions” mapping of the area (which has been annotated by Ms Saunders), reveals that this was not some surreptitious activity to allow water to be “purloined”
“ … estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption. It is not enough that each of the two parties acts on an assumption not communicated to the other.” 403.It is not necessary, for an estoppel by convention, for there to be a concluded agreement and Ms Saunders, for and on behalf of Abbotsley, represented and allowed Pheasantland and its predecessors to obtain water from the Abbotsley water supply which Ms Saunders knew was being supplied from Abbotsley. For example, on25 September 2018 after the closure of the golf course, Mr Walker wrote to Ms Saunders expressing sympathy with her for the decision to close the golf course and wishing that she may be able to re-open in the near future: “you’ll appreciate that we are keen to be kept in the loop on any changes, or potential changes, that might impact matters such as our water supply and drainage…”
“C2 [Ms Saunders] now recalls and accepts that in 2011 she became aware that no such pipe had been connected to the Anglian Water mains by the First Defendant’s [Pheasantland] predecessors in title but that they were drawing water from the Abbotsley account. C’s had striven to accommodate the developers to complete the development and at this time C2 viewed this as something relative trivial which could be corrected at a later date and raised invoices for water used on meter readings supplied.”
“The Tenant took an assignment of the Lease from the administrators of the immediately former tenant. The Landlord acknowledges and hereby confirms to the Tenant that the Tenant will not have any liabilities to the Landlord whatsoever under the Lease or the Agreement for Lease that preceded it in respect of any breach of the obligations of the tenant thereunder which may have been committed before the date of this deed or for any damages, actions, proceedings, costs, claims, demands and expenses arising from such breach of obligations and liabilities.”
“He has misled you and he has misled us.”
“The trial is not a dress rehearsal. It is the first and last night of the show”: per Lewison LJ in Fage UK Ltd v Chobani UK Ltd[2014] EWCA Civ 5 , [114]. 449.Ms Saunders decided, and raised for the first time in the written closing submissions at the end of the evidential hearing, that she would withdraw all allegations of trespass in relation to the Jenny Wisson wood. Those allegations, that the defendants have had to face for years, are therefore dismissed. 450.Ms Saunders was not conceding that she was wrong about her views about the Jenny Wisson wood, only that she did not feel that she had the evidence to support her case before the court and that, in the words of her counsel: “Cs will contact the local authority to resolve the matter going forward and are content to keep any interested defendants (in particular Mr Gearing) notified of the discussions which are to take place so that he can be involved in making any representations he sees fit.”
“WHEREAS (1) The Council is the Local Planning Authority for the purpose of section 106 of the Act for the area within which the land is situated (2) The Owner is seised of the land registered with title absolute at HM Land Registry under title number CB117475 [that is the 18 acres] (3) The Owner has submitted the application to the Council for planning permission for the development (4) The Council is satisfied that the development is such as may be permitted by the Council under the Act subject to conditions and subject also to the prior execution of this Deed into which the parties hereto have agreed to enter” 458.By clause 2.3 it was set out that if the planning permission shall expire before the development has been commenced by the carrying out of a material operation or is revoked or otherwise withdrawn without the consent of the Owner shall thereupon cease to have effect. 459.The Schedule provides, amongst other things, (1) that the development shall not be commenced until a scheme in respect of the woodland related works has been submitted to and approved in writing by the Director (being the Director of Planning), (3) that none of the lodges shall be occupied until the Director has certified in writing that the woodland related works have been carried out to his reasonable satisfaction, (5) after the Director has issued his written certification in accordance with clause 3 “members of the public shall be allowed free access to and use of the woodland area at all reasonable times.” 460.Ms Saunders contests the right of the public to enter onto the Jenny Wisson wood on two grounds: first she says that the planning permission expired before the development commenced so that the agreement no longer had effect; second she contends that there is no evidence of “written certification” that the woodland related works have been carried out to his reasonable satisfaction. She has interpreted “certified in writing” to mean a written certificate. That is plainly not what it means as anyone who is experienced in planning and property matters understands. What it means is that the Director of Planning has stated in writing that the woodland works were carried out to his satisfaction. The requirement of laying out the woodland was a pre-requisite for the erection of the lodges and the occupation of the lodges and consequently without his written certification there would not have been permitted development. 461.While I had made it clear that in my judgment it was not appropriate for the court to order third party disclosure at the end of lengthy litigation for the purpose of filling in the gaps in one party’s case, Ms Saunders through counsel was insistent in closing oral submissions that the position of Huntingdonshire DC should be obtained. It is Ms Saunders’ position that it was for the unrepresented defendants to obtain the information about certification but that is not correct. The particulars of claim simply allege that entrance onto the Jenny Wisson wood is a trespass without any reference to the section 106 agreement or any argument that the agreement had lapsed. It is Mr Gearing who has referred to the section 106 agreement and the right to enter onto the woodland. There was no reply to that particular defence and it was only in evidence and submissions that it was alleged that the planning permission had expired and that the section 106 agreement no longer had force. Mr Hafiaz, the solicitor instructed by the thirteenth defendant, and therefore not taking an active role in this particular trial, volunteered at the oral submissions hearing to contact Huntingdonshire DC. He did so quite properly. In response to his request for information, and Ms Saunders’ queries, Huntingdonshire DC have made it clear that they do not consider that the planning permission granted to Abbotsley lapsed or that the section 106 agreement, which is registered as a land charge, is not in force. It is further said by Huntingdonshire DC that the mere fact that a physical “certificate” has not been located is not evidence of the Director not having certified in writing that the woodland related works had been carried out to his reasonable satisfaction. 462.The only person contending that the section 106 agreement has no effect is Ms Saunders. She has shown herself willing to mislead the court in other respects and it is therefore incumbent upon the court to test her evidence against all the available evidence. 463.Evidence that supports that the woodland works have been carried out to the Director of Planning’s reasonable satisfaction, and that he gave certification in writing to that end, includes the fact that the lodges were constructed and occupied. The Deed makes it clear that without certification that could not have happened. Ms Saunders entered into the Lease of the chalet land with Luddington in 2003 on the basis that there was extant planning permission for the building of lodges. She plainly believed at the time that there was certification and planning permission (and she is not saying that she was misleading the true situation at that time both to the prospective purchasers and to her own solicitors at that time). Indeed, the Third Schedule to the Lease entered into by Ms Saunders set out the planning documents that were in existence at that time (17 July 2003 ): the Planning Consent Number 91/0949 on1 November 1994 ; the section 106 agreement between Huntingdonshire DC and Ms Saunders dated15 September 1994 ; the Planning Consent Number 030028FUL approved by Huntingdonshire District Council on17 April 2003 . Ms Saunders plainly knew that the section 106 agreement was in existence in July 2003. That is entirely contrary to the case that she now seeks to advance. 464.The planning permission granted, pursuant to application number 91/0949 that the development to which “this permission relates” must be begun not later than the expiration of five years beginning with the date on which the permission is granted. The Google Earth photograph with the end date of31 December 2002 relied upon by Ms Saunders to show that there was no development by that date, does in fact show that there had been development in the construction of a driveway into the lodge site, some laybys to the concrete track and a triangular hardstanding near to the highway. Far from showing no development, as was put to Mr Gearing and denied by him, but then erroneously repeated in the closing submissions on behalf of the claimants, the Google Earth photograph establishes that development had commenced by31 December 2002 at the latest. The planning permission was for the erection of tourist lodges, the carrying out of the woodland planting scheme and the extension of the golf course at Abbotsley Golf Course, Eynesbury, Hardwick. The permission included a number of conditions that needed to be complied with, including access from the existing highway, adequate space for access and egress from the site and for turning. At the end of the planning permission the “notes to applicants” provides “1. This permission is related to an agreement entered into by the applicant and the Huntingdonshire District Council undersection 106 of the Town and Country Planning Act 1990 .” 465.The Lease entered into between Abbotsley and Luddington for the development of the “chalet land” was with the benefit of extant planning permission. As Ms Saunders knew then and knows now, that planning permission would not have been in place and it would not have been possible for the lodges to be erected or occupied unless the Director of planning had certified that the woodland works had been carried out to his satisfaction. The whole purpose of the section 106 agreement was that the planning permission for the development of the lodges could not proceed until the Director of planning had expressed his satisfaction with the woodland scheme. The planning permission to develop the chalet land and the right of the public to enter the Jenny Wisson wood were bound together. 466. In the letter dated27 January 2003 , written by Roy Horton, Director of Luddington) to Mr Ward of Development Control at Huntingdonshire DC, reference is made to the planning permission 91/0949 and it is said that, after conversations with Development Control, a new full planning application for 12 Log Lodges would be made by Luddington rather than trying to amend consent number 91/0949. At that date, on27 January 2003 , the planning permission sought and obtained by Ms Saunders for and on behalf of Abbotsley was plainly still extant. Mr Horton set out the following: “ We acquired the site in January 2003 on a 125 year lease. The existing consent which the District Council confirmed that the development had commenced on15 February 2000 is also subject to a Section 106 agreement. The woodland that adjoins our site and is a condition of the Section 106 agreement has been approved by the Forestry Commission, planted and is now under woodland management and provides access to the community. If our application is approved we confirm that we are happy to conform to the terms of the existing section 106 agreement that was signed on15 September 1994 . However it is our understanding that a new Section 106 in the same form may have to be re-issued.” 467. Mr Roy Horton was not called to give evidence by the claimants, despite his crucial importance to a plank of the claimants’ case relating to the location of the water pipe and despite the fact that he was extremely easy to contact – Mr Gearing contacted him during the course of the trial by phoning the mobile phone number contained in 449. the letter dated27 January 2003 . Ms Saunders, for whatever reason, made a decision to run her case without Mr Horton’s evidence and so she cannot call him to confirm what she now argues that she sold the Lease to Luddington without the benefit of the planning permission and without the section 106 agreement in force. I find that Ms Saunders did not want Mr Horton to give evidence to the court with respect to his understanding of the existence of the section 106 agreement. Had he given evidence it can be taken that he would have said the documents revealed the true situation, namely that Luddington were buying the “chalet land” with the benefit of the planning permission together with the section 106 agreement. 468. Jenny Wisson said in her evidence that she recalled the Forest Commission paying monies for the planting of trees and it is clear from the letter dated27 January 2003 itself that the wooded area had already been planted and that Luddington was intending to conform to the terms of the agreement that was signed on15 September 1994 , namely that the woodland would be planted (that had already happened), maintained, and members of the public would be allowed free access to the woodland and use the woodland area at all reasonable times. 469.Without Mr Horton giving evidence it is not clear why there is reference to15 February 2000 as being the commencement date for the works. Ms Saunders relies upon that as establishing that the planning permission (and the section 106 agreement) must have lapsed. But that argument makes little sense. 470.First, it suggests that Huntingdonshire DC did not understand that works needed to commence within 5 years of planning permission being granted. Huntingdonshire DC as the planning authority would not have been agreeing that the development had commenced within the stipulated 5 year period if the work had only commenced on15 February 2000 , and therefore outside the 5 year period if the planning permission granted on1 November 1994 had not been extended in some way. The planning authority can be expected to understand planning law and its own planning permissions and that work needed to commence within 5 years of the permission being granted. 450. 471.Second, it suggests that Abbotsley allowed the planning permission to lapse but then sold the Lease with the benefit of planning permission which (on Ms Saunders’ contentions now) it knew it did not have. In the letter dated14 August 2002 from Ms Saunders to Wilsons solicitors, who were being instructed with respect to the lease to Luddington, the wooded area was said to cover half of the land and “we will be retaining that”, which I take to be a reference to Abbotsley Golf & Squash Club Limited, as Abbotsley was then known, retaining the Jenny Wisson Wood as part of its land ownership. Ms Saunders summarises the agreement with Luddington, in 2002, as follows: “The whole of the idea of the agreement is that we have planning permission for 12 holiday homes. Luddington will start on that development as soon as possible. They then have the right (and obligation) to apply for more holiday homes on the same site, with additional payments to us as and when these properties are sold. The documents sent to you reflect the agreement reached.” (my emphasis). She now contends, in 2025, that the planning permission had expired within the 5 years from when it was granted on1 November 1994 . She knew the planning permission, and the section 106 agreement which allowed her the benefit of that planning permission, did not expire by effluxion of time but has endeavoured to construct an ex post facto argument to suggest that it did. 472. I do not believe that Ms Saunders was misrepresenting the situation to Luddington as at that time she did genuinely believe, and she was right to do so, that she had extant planning permission. She did not say, we once had planning permission but that has lapsed. Ms Saunders is now deliberately altering her account in an attempt to permanently remove the public’s right to enter and enjoy Jenny Wisson wood despite the fact that she had financially benefitted from the planning permission which was granted on the basis that the public did have the right to use the Jenny Wisson wood. 473. It is clear from the letter from Huntingdonshire DC, written almost 10 years later on15 October 2012 , to Mr Chatfield of PI Estates,that the planning permissions which are operative for the building of the lodges are 0300288FUL (for 12 holiday lodges) and 0303047 FUL (for 8 holiday lodges). Those planning permissions, which are contained in the bundle, were granted on the basis that the original section 106 continued. I do not consider it feasible that Huntingdonshire DC would have granted planning permission for the development of the lodges on the site, with a section 106 agreement in place for a woodland for the benefit of the public, and then later allow for the same development without the benefit of the woodland being open to the public. That contention on the part of the claimants is illogical. Had planning permission lapsed, as Ms Saunders now contends, Huntingdonshire DC would have been able to take enforcement action with respect to the lodges. There is no suggestion that they did. 474. Having heard all the evidence, and having studied the available documentary evidence with great care, including the additional documentation from 452. Huntingdonshire DC I have no doubt that there was an agreement that the woodland, which had been planted by 2002, and called the Jenny Wisson wood after Ms Saunders’ friend and the managing director, and later company secretary, of Abbotsley, was to be open for the benefit of the public. It was on this basis that planning permission was granted initially in 1994 and then again in 2003 and 2004. Ms Saunders has cynically attempted to construct an argument which does not bear scrutiny. Once she was informed that shining a light on her case showed she could not succeed, she did not want the court to make a determination and said she would not proceed with the specific allegations of trespass. It is not for Ms Saunders to dictate what the court should determine. There was no agreement with the defendants to withdraw their arguments before the court and Mr Gearing’s defence makes it clear that the issue with respect to section 106 agreement is a live one. 475. In my judgment, Ms Saunders has knowingly and wilfully prohibited the public, including the defendants and others who own lodges on the “chalet land”, to use something which is a public amenity. She has wilfully and knowingly endeavoured to mislead the court to find against unrepresented defendants on this issue. The Jenny Wisson wood must now be re-opened and maintained for the benefit of the public in accordance with the section 106 agreement Ms Saunders entered into with Huntingdonshire DC. The court has an inherent jurisdiction to grant declaratory relief and I can hear further submissions with respect to the order the court should make. 476.The reliance by Ms Saunders upon the emergencyHealth Protection (Coronavirus Restrictions) (England) Regulations 2020 (SI 2020/350) to provide justification for shutting down the Jenny Wisson Wood in the first place does not bear examination. That statutory instrument prohibited all but essential movement, as defined in the statutory instrument, closed down businesses – which would have included the Botanical Gardens in Cambridge, relied upon by Ms Saunders as a reason for closing the wood – but supported the taking of exercise in open spaces with exercise such as walking, running or cycling once a day, alone or with members of your household. Closing the wood was contrary to what the emergency powers and what they were seeking to effect, namely that people should not move around unnecessarily and should keep isolated as much as possible. Ms Saunders has failed to understand the emergency powers and has been cynically, but incorrectly, relying on those powers to establish a basis for closing the wood. 477.In light of this judgment, the Ms Saunders is obliged to keep the wood open to the public. Alleged Acts of Trespass and/or Harassment 453. 478.Ms Saunders has made 100 individual allegations of trespass against individual lodge owners and occupiers. A number of those allegations have now been withdrawn (including with respect to the Jenny Wisson wood). Ms Saunders has made further allegations that the conduct of the individual defendants amounts to common law nuisance; and that the totality of the conduct of the individual defendants amounts to harassment contrary to sections 1 and 3 of the Protection fromHarassment Act 1997 , and that the defendants, and each one of them, knew or ought to have known that their behaviour would cause alarm, distress and cause anxiety to Ms Saunders or to Abbotsley’s employees, visitors and agents. 454. 479.Given the detail of the evidence recorded in the specific evidence section of this judgment and my findings with respect to the interference with the water supply and the Jenny Wisson wood, it is possible to deal with the individual allegations in summary form, following the 30 pages of schedule laid out in leading counsel’s closing submissions on behalf of Abbotsley and Ms Saunders. 455. 480.The allegations of trespass contained in paragraphs 29(1), 29(2), 29(3), 29(4), 29(5), 29(6), 29(7), 29(8), 29(9), 29(10), 29(11) relate to the occasions when Ms Saunders, or those instructed by her, wrongly interfered with the supply of water to Abbotsley Country Homes. There was no trespass when individuals, with the authority of Pheasantland, went onto Abbotsley in order to repair and maintain the conduits so as to restore the supply of water. Despite what is set out in the closing submissions of counsel, the evidence from individual defendants and from the directors of Pheasantland was that there was permission for individuals to go onto Abbotsley to remedy the wrongful interference with the water supply. There has been no act of harassment against Ms Saunders whenever an individual defendant has contacted the police, or been spoken to by the police and asked for a statement, with respect to Ms Saunders’ interference with the supply of water. It was entirely appropriate for the defendants to inform the police, and give statements to the police when asked to do so. It is entirely unclear as to why Ms Saunders and those acting on her behalf consider that an individual should not be entitled to speak to the police. There was no inconvenience to Abbotsley who have always been paid, or offered payment, for the cost of the supply of water. 456. 481.The allegation of trespass contained in paragraph 29(12) lacks particularisation and cannot be responded to as it is not possible to know who the allegation is being made against. The allegation has properly been withdrawn. The allegation contained in paragraph 29(13) was not one that could have been challenged given the lack of specificity and no individual defendant had the allegation made against them. 457. 482.The allegations against Mr Blackall contained in paragraphs 29(14), 29(15), 29(16), 29(17), 29(18) and 29(19) do not amount to trespass or harassment. Mr Blackall was assisting in the repairing and maintenance of conduits which had been wrongfully interfered with by Ms Saunders and was acting under the authority of Pheasantland. When he was filming Ms Saunders and her contractors this was in order to create a physical record of what was happening in accordance with the advice of the police and in response to the photographing and filming by Ms Saunders of the defendants. All the allegations are dismissed. 458. 483.The allegations made against Mrs Blackall contained in paragraphs 29(20) and (21) have both been withdrawn in trial and are therefore dismissed. Mrs Blackall has, of course, had to face those allegations until they were withdrawn. 459. 484.The allegations made against Mr Gearing contained in paragraphs 29(22), (23), (24) and (25) are that he trespassed on the Jenny Wisson wood. For the reasons I have set out, the Jenny Wisson wood is open to the public and there has been no trespass by Mr Gearing. The allegations are now withdrawn by Ms Saunders and are therefore dismissed. With respect to the removal of the cameras, I am satisfied that this was not Mr Gearing and this allegation is not made out in any event. With respect to the allegations against Mr Gearing contained in paragraphs 29(26), (27), (29), (31), (33), (34), and (35) Ms Saunders alleges trespass on the Abbotsley land where Mr Gearing has been involved in repairing or maintaining the conduits on the 460. Abbotsley land either on his own or with others and pursuant to the authority of Pheasantland. These are not acts of trespass as Ms Saunders had improperly interfered with the supply of water to Abbotsley Country Homes. Paragraph 29(28) is an allegation that Mr Gearing stepped out in front of her car. Mr Gearing denied that this happened and, given my findings of Ms Saunders willingness to mislead the court for the purpose of undermining the individual defendants (take, for example, the false allegations against Darren Honeywill and the tea incident) I prefer his evidence to hers and find the allegation is not established. I find that Mr Gearing did make comments suggesting that the water to Jenny Wisson’s house should be cut off (the allegation contained in paragraph 29(30)). In my judgment this was an empty threat made in frustration when Ms Saunders was cutting off the water to Abbotsley Country Homes, without consideration of the damage to elderly and vulnerable people. 461. 485.The allegation in paragraph 29(32) is made out to the extent that Mr Gearing was concerned with what Joe Jefferies was doing given his previous involvement in interfering with the supply of water. I do not find that there was any confrontation and Mr Gearing was acting pursuant to the authority provided by Pheasantland to protect the conduits on the Abbotsley land by checking what was happening. Even if this could be found to be a trespass, no damages arise. 462. 486.With respect to the allegation contained in paragraph 29(36), Mr Gearing does not accept that the wheel of his car may have strayed off the concrete road when he turned around in his car. If it did then it is difficult to understand why anyone would be bringing a claim about it. It is not something where any damages could be awarded, even if it happened and I do not consider it gives any support to Ms Saunders other allegations of being harassed. 463. 487.With respect to the allegation in paragraph 29(37) that Mr Gearing said that Ms Saunders should be sectioned, there is obviously a concern expressed by Mr Gearing that Ms Saunders suffers from personality disorder which leads her to behave in the way she does. Many of the defendants have talked about her “Jekyll and Hyde” behaviour, and Mr Gearing accepts that he did say to Mr Verdier once that he was surprised that she had not been sectioned. I am not satisfied that the allegation as pleaded “on occasions too numerous to particularise…” is made out. This would not, in any event, amount to harassment or anti-social behaviour. 464. 488.The allegations against Ms Melesi contained in paragraphs 29 (40), (41), (42) and (45) are with respect to Ms Melesi repairing and maintaining conduits on the Abbotsley land pursuant to the authority given by Pheasantland and I do not find any of these allegations made out. Had Ms Saunders not wrongfully interfered with the supply of water then there would not have been any requirement for repair. 465. 489.The allegation in paragraph 29(39) that Ms Melesi entered Ms Saunders drive and that amounted to a trespass is wrong in law. There is an implied licence to enter a driveway as, otherwise, anyone would be of trespass going up to someone’s door. 490. Ms Saunders has now withdrawn her allegation that footpath 11 no longer exists, but she persists with her allegations against Ms Melesi that she has strayed off the footpaths 5, 10 and 11 contained in paragraphs 29(38), (44), (46), (47), (48), (49). I am not satisfied, on the balance of probabilities, that Ms Saunders has been able to establish that Ms Melesi has gone off the footpaths save for the gap between footpaths 10 and 11 where walkers go across land belonging to the local farmers and which is of no interest or concern to Ms Saunders. There was an incident brought to my attention by Ms Saunders after the close of evidence. It is not part of the case and Ms Melesi accepts that she went off the footpath in order to recover a tag for her dog. I am not going to make a determination with respect to an incident which was brought to the court’s attention after the close of evidence. I am sure that Ms Melisi will not do it again. It is sad that Ms Saunders is not able to accept Ms Melesi could recover her dog’s tag in this way and feels the need to place cameras over open land in the way she does. It is not something that would give rise to any damages – there is no identifiable damage – and there is no harassment.. If I had found that there was any inadvertent “straying” from footpaths then that is not something which I find results in damages in the circumstances of this matter, and there has been no harassment. 491.I accept Ms Melesi’s evidence that she did not inform Joe Jefferies that she had deliberately trespassed on Abbotsley land for 8 miles, as I have found her to be a totally honest and straightforward witness while I have found Ms Saunders to have deliberately endeavoured to mislead the court – including for the purpose of placing individual defendants in a poor light. The allegation in paragraph 29(43) is dismissed. 492.With respect to the allegation in paragraph 31(50), as I have set out above, while I accept that Ms Melesi was recorded by microphones or cameras hidden by Ms Saunders, to have been swearing at the sky, this does not amount to an act of harassment or anti-social behaviour. It was a release of stress caused by the situation at Abbotsley and the atmosphere created by Ms Saunders and her behaviour. 493.The allegations in paragraphs 31(51), (52), (53) have gone as the claim against Mr Newland is settled. 494.The allegation against Mr Lance Honeywill contained in paragraphs 31(56) is not made out as he was acting with other owners of the lodges to restore the water supply that Ms Saunders had wrongly interfered with. The allegations against Lance Honeywill contained in paragraph 31 (54) is not established as I do not accept Ms Saunders’ evidence as she has been shown, with the existence of physical evidence, that she is willing to seek to mislead the court and I therefore do not accept her uncorroborated accounts. With respect to the allegations in paragraph 31(55), (59), (60), and (61), the offensive language was undoubtedly used by Mr Lance Honeywill as an expression of his deep anger and frustration about the way he and others are treated by Ms Saunders. The language cannot be condoned in anyway. There is no evidence that anyone was alarmed or distressed by his words and, as the coffee shop incident reveals, Ms Saunders was very keen to lay traps for Mr Honeywill to lose his temper and use offensive language against her. Neither Simon nor Joe Jefferies said that they felt intimidated by him and there is absolutely no evidence of him using violence against anyone. 495.Ms Wisson did say that Mr Honeywill gesticulated towards her car and that he called her a “fucking cunt” and gesticulated towards her (allegation 31(57) and (58)) and she was not challenged on that (although I am not certain that Mr Honeywill was in court when this piece of evidence was given). The allegations are credible but must be considered in the context of what was happening at Abbotsley. It is important that Ms Wisson says Mr Honeywill backed off and that she was not physically threatened. It was undoubtedly unpleasant for her but it did not impact Ms Saunders in any way she established. Ms Wisson is not herself a party to the proceedings. 496.The allegation against Mr Lance Honeywill that he trespassed on the Jenny Wisson wood is withdrawn and therefore dismissed. Mr Honeywill is entitled to enter the wood as it is open to the public as I have found. 497.The allegations of trespass against Mr Darren Honeywill contained in paragraphs31 (62), (64), (65), and (67) are all incidents when Darren Honeywill entered the Abbotsley as an agent of Pheasantland for the purpose of maintaining and repairing the pipes that had been wrongly interfered with by Ms Saunders and her agents where she deliberately interrupted the water supply to Abbotsley. These allegations are dismissed. The allegation contained in paragraph 31(63) is accepted by Darren Honeywill to the extent that he cut a chain and glued down a manhole cover in an attempt to prevent further interference with the supply of water to Abbotsley Country Homes. The cost involved is not specified as that will depend upon the length and size of the chain but I suspect it is unlikely to be more than about£20 . With respect to the gluing down of the manhole cover it has not been suggested that this was anything permanent and it appears it was remedied. The allegation is not made out with respect to removing the cameras. 498.The allegations against Mr Steele contained in paragraphs 31(68), (69), (70), (71) and (72) relating to the maintenance and repairing of the conduits on the Abbotsley land by restoring the water supply wrongfully cut off by Ms Saunders do not amount to a trespass and are dismissed. The allegation of entering the Jenny Wisson wood is withdrawn by Ms Saunders and is therefore dismissed. The Jenny Wisson wood is open to the public pursuant to the extant section 106 agreement entered into by Ms Saunders enabling her to sell the Lease of the land with the benefit of planning permission. 499.I am satisfied that Ms Holliman has not trespassed on the sheep filed as is alleged in paragraph 31(74) and that allegation is dismissed. The allegations of trespass onto the Jenny Wisson woodland contained in paragraph 31(75) is dismissed as the Jenny Wisson wood is open to the public. The allegation contained in paragraph 31(77) that unpleasant remarks have been made about Ms Saunders on Facebook has been withdrawn and therefore dismissed. 500.The allegations made against Ms Seiler have all been withdrawn at trial, save for the one incident on25 July 2022 (contained in paragraph 31(79)). The allegations that have been withdrawn, without any apology from Ms Saunders for pursuing Ms Seiler, are all dismissed. Ms Seiler accepts that she went onto the Abbotsley on25 July 2022 as she was confused by what was happening and took photographs in accordance with the advice given by the police. This very minor trespass does not sound in damages and only happened because of the interference in the water supply by Ms Saunders. 501.Ms Saunders has said that she does not continue to “pursue”
“In a case where the breach is “capable of remedy” within the meaning of the section, the principal object of the notice procedure provided for by section 146(1) , as I read it, is to afford the lessee two opportunities before the lessor actually proceeds to enforce his right of re-entry, namely (1) the opportunity to remedy the breach within a reasonable time after service of the notice, and (2) the opportunity to apply for relief from forfeiture” 471. 507.In a similar fashion to the first claim, the claim alleges numerous breaches of the Lease by Pheasantland. There are 51 paragraphs, many of which contain a number of subparagraphs of allegations. While it adds to the inordinate length of this judgment, it is necessary to deal with all the allegations as experience of this litigation indicates that points may be taken to ask for even more detail. 472. 508.The following allegations contained in the Particulars of Claim with respect to the forfeiture claim are not set out in the section 146 notice and therefore cannot be relied upon: (i). Lodge 2 (Paul and Irene Brennan) nothing in section 146 alleging using lodge as permanent home so that the allegations in 12(4), 12(5) are dismissed; (ii). Lodge 11 (Clifford Dedynski) nothing in section 146 alleging using lodge so that others are using as a permanent home so that the allegations in 12 (24)(i) and (ii) are dismissed; (iii). Lodge 8 (Steven Groenveld) there is nothing in the section 146 notice that Mr Groenveld failed to submit a deed of covenant, and this allegation in 12(46) must be dismissed; (iv). Lodge 11 (Clifford Dedynski) – there is no allegation in the section 146 notice that Mr Dedynski failed to submit a deed of covenant (although there is an allegation in the section 146 notice against Mr Newland who has settled his action). In either case the allegation in paragraph 12(46) against both Mr Deynski and Mr Newland must be dismissed; (v). Lodges 4, 7, 9, 11, 12, 15, 16 and 17, there is nothing in the section 146 notice alleging a failure to enter into a written warranty contrary to clause 10 of the Lease. This allegation in 12(47) is dismissed in its entirety. Use of the Lodges as Permanent Homes or Businesses 478. 509.I have dealt in this judgment with the evidence given by the individual lodge owners with respect to their occupation of their individual lodges and whether they have been in breach of their underleases. The issue for this court in determining whether the lease assigned to Pheasantland is forfeit is whether Pheasantland failed to enforce the obligations in its lease with Abbotsley. If the individual lodge owners were not in breach of their underleases with respect to their occupation of the lodges then there is nothing for Pheasantland to have remedied. 510. I have also dealt with the evidence of the three directors of Pheasantland: Mr Walker, Ms Beresford-Ambridge, and Mr Blackall and it is their evidence – particularly the evidence of Mr Walker – which is of greatest importance in establishing whether there have been breaches of the Lease by Pheasantland. All three of the directors of Pheasantland I found to be straightforward and honest in the giving of their evidence. As I have set out in various passages in this judgment, I do not consider Ms Saunders to be straightforward and honest and I have found her to have deliberately set out to mislead the court. 511.Pheasantland rely particularly upon the evidence of Mr Walker. I am satisfied that his evidence, as set out above, establishes that he has taken his responsibilities as an unpaid director of Pheasantland extremely seriously and has worked extremely hard to ensure that Abbotsley Country Homes is run as well as it could be. The stress that has been suffered by the residents of the “chalet land” has not been caused by Pheasantland. The only major area of friction between Pheasantland and the owner/occupiers is with respect to the costs of this litigation. That is a matter which has, as I understand it, been dealt with by the FTT and may now be subject to an appeal to the Upper Tribunal. Despite this friction, the evidence from all of the defendants is that communications between Pheasantland and the owners/occupiers has always been pleasant and cordial. I have also seen from the correspondence that Mr Walker has remained calm and cordial towards Ms Saunders. 512.All of the lodge owners/occupiers deny using the lodges as permanent accommodation and submit that they use the lodges for holiday use only. The lodge owner who appears to be occupying his lodge the most, and contrary to both the 11 month maximum and the requirement to vacate in February, which applies to lodge 10, is Mr Verdier against whom Abbotsley, through Ms Saunders, has made no allegations, either in the section 146 notice or in the Particulars of Claim. 513.Mr Verdier is someone who has endeavoured to assist Ms Saunders in her case and during the course of this trial it became apparent that Ms Saunders had been present, at least at some points, for the taking of Mr Verdier’s second statement which was recorded in Ms Saunders’ own home. I am not relying on Mr Verdier’s second statement, partly because of the way in which it has taken, partly because Mr Verdier himself said he was signing it “blind” and that he did not know what he was signing, and partly because Ms Saunders herself said that he was suffering from dementia and that would mean that he both suffers from memory loss and is very open to suggestions. Mr Verdier was also involved in the incident when Ms Saunders had to be warned against self-incrimination after she was provided with documentation from Mr Verdier at a time when she was embargoed from discussing the case with anyone as she was mid-cross examination. 514.In his evidence, Mr Verdier indicated that Ms Saunders had actually encouraged him to occupy his lodge contrary to the terms of the Lease which prohibit him from living in the lodge in February: Q: why no allegations against you? RV: she knows I have a main residence; she may have said if others stay in February why don’t you stay in February too? Q: when did she say that? RV: I am not sure she did. Q: did she or didn’t she say that? RV: I know I said she told me but it would be up to me to take the decision. I’m saying maybe she said it. I don’t think she had an influence. I said the words but I don’t think … the final conclusion will always be mine. 515.Ms Saunders’ failure to treat Mr Verdier in the same way as she treats the other owners/occupiers of the lodges undermines any argument that her having a desire to recover possession because of a genuine concern that the underlessees are being governed in the way that they should, so that her reversionary interest is not adversely affected. In fact, her eleventh witness statement dated3 June 2025 provided an insight into Ms Saunders’ motivation where she says: “I also explained the possibility of those lodge owners who had openly occupied their lodges as permanent residences – albeit in contravention of the lease and planning – being able to have a full residential lease through planning enforcement limitation. That is confirmed in the Whats App or text message from Carol Berwick in which she mistakenly referred to getting the freehold of a lodge. I had a long conversation with Paul Brennan on the subject and mentioned the possibility of full residential leases in certain circumstances – or even a retirement site with a warden.”
“the Act contains no definition of the word “holiday”