Mullane v Davies [2020] EW Misc 25 (CC) (04 November 2020) [2020] EW Misc 25 (CC)

EWMISC
Mullane v Davies [2020] EW Misc 25 (CC) (04 November 2020)
[2020] EW Misc 25 (CC) · 2017-06-29
[1]This claim involves a dispute about the water rights to a converted agricultural building known as Hafod from a borehole situated on an adjacent farm known as Hafod Lydan in Snowdonia. Hafod is occupied by the claimant, Ms Mullane and her partner and young son. Hafod Lydan is farmed by her uncle, the first defendant, Mr Davies. The second defendant is the executor of Hugh Davies, their grandfather and father respectively who died in October 2018 leaving a will dated 29 June 2017, and who has taken no part in these proceedings.[2]There is no express right for Hafod to take water from Hafod Lydan land. Prior to 18 January 2002 both properties were in the common ownership of Mr Davies and his parents, with whom he farmed the land in partnership. By a conveyance of that date they transferred Hafod into his father’s sole name. At that time the only supply of water to Hafod was through an alkathene pipe from Hafod Lydan land.[3]Ms Mullane, her sister Renee Mullane and their brother William Mullane all say at that time the water came through the pipe from the borehole. Their uncle says that at that time the supply to Hafod came from a mountain stream, also on the land. He says that it was not until much later, about 2008 when toilets and a shower block were built for a campsite which he and his family run on their land, that the source of the water supply to Hafod was the borehole. He says that in 2002 the pipe to Hafod was connected to a stream on Hafod Lydan land, as was the farmhouse at Hafod Lydan, another dwelling called Llwyn Celyn Bach into which Mr Davies and his family moved at about this time, and several other dwellings in the vicinity of the farm with rights to take water from the land.[4]This factual dispute is crucial to the nature of water rights which are deemed to be given in the 2002 conveyance under section 62 of the Law of Property Act 1925 (the 1925 Act). That provides that subject to contrary intention, and none was expressed here, then every conveyance of land passes. “…all…liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of the conveyance…enjoyed with…the land or any part thereof.”[5]Before dealing with the evidence of what was enjoyed with Hafod at the time of the conveyance, I will set out the background which is largely uncontroversial.[6]Mr Davies moved with his parents, when he was nine years old, to Hafod Lydan in 1969 and lived in the farmhouse there with his parents and siblings. Initially his parents were agricultural tenants. The borehole was drilled by contractors in the 1970s investigating the possibility of a hydro-electric project which was eventually completed in 1984. The bore struck an underground spring which by natural pressure bubbled up at the surface. This is situated about a mile further up the mountain from Hafod Lydan farmhouse but on Hafod Lydan land, near to a lake. The borehole was capped with concrete and a pipe. Mr Davies accepted, in cross-examination, that his father gave permission for it to be drilled.[7]In time Ms Mullane’s mother moved to a house called Cae Gwyn about 3 miles from Hafod Lydan, and that is where she was raised. She used to visit her grandparents regularly. Planning permission to convert the agricultural building at Hafod into a dwelling was obtained in 1999, and the work took place over the following year or so. As Mr Davies accepted -n his written statement, the idea was that his parents would let out that property when completed. The first tenant was Renee Mullane, who rented Hafod from 2003 to 2006 and lived there with her two young children. She then moved out and her grandparents moved in from Hafod Lydan the following year. Her grandmother died in 2014. Thereafter Ms Mullane, the claimant, moved in with her grandfather and acted as his housekeeper.[8]In about 2017 she and her family and grandfather moved to live with her mother at Cae Gwyn. In the 2018 season Hafod was let out to holidaymakers, Ms Mullane says with the express consent of her grandfather. By his will her grandfather left Hafod and another property and his residuary estate to her. After his death, Ms Mullane and her family returned to Hafod, she says initially to do it up to let out, but because of subsequent water supply problems they have remained there to sort these problems out.[9]Since the water treatment plant was completed for the campsite shower and toilet block, the pipe serving Hafod was connected to this plant. Just before Christmas 2018 a tap connected to this pipe was turned off. Mr Davies says this was to shut the plant down for winter and to prevent damage by freezing and he says he did not know anyone was living at Hafod.[10]However, Ms Mullane’s partner Geraint Siddal followed the line of the pipe and turned the tap back on. A couple of days later it was turned off again, and taped up in the off position. In January 2019 correspondence about this took place between solicitors acting for the parties. The next month Mr Davies’s workmen cut through the pipe and it was not repaired. The executor tried to persuade him to reconnect the pipe, but was unsuccessful. His solicitors notified a proprietary estoppel claim against his father’s estate, and entered a caveat in respect of probate. Probate has not yet been granted.[11]Ms Mullane and her family arranged for a tanked water supply and bought bottled water for drinking. She and her sons used to shower at her mother’s home, and her elder son moved there. Her partner showered at his work. She commenced these proceedings in November 2019 for a declaration of an easement, injunctive relief and damages for interference with the easement, aggravated damages and special damages being particularised as the cost of the water tank and loss of rental income. She made an application for an interim injunction requiring the pipe to be reconnected, which came on for hearing in December 2019. At the hearing her uncle agreed to connect an adequate water supply to Hafod, and did so from the stream which he says was the system in operation in 2002. That has been the source of supply since.[12]Mr Mullan, for Mr Davies, in his skeleton argument took a point that the proceedings are a nullity because until her grandfather’s estate has been administered Ms Mullane has no interest in Hafod, other than an inchoate right by way of a chose in action (see Williams Mortimer & Sunnucks 21 st edition, at 76-03). This point was raised in the defence, although no application has been made to strike out the claim. In his closing submissions, after taking instructions, Mr Mullan pursued the point whilst at the same time asserting that his client was content to allow his niece to continue to take water from the stream or to lay pipes under his land to connect with the mains.[13]Mr Jackson, for Ms Mullane accepted that point, but submitted that the claim is a claim in nuisance which can be instituted by an occupier of property and that the executor has given tacit permission at least for Ms Mullane to occupy Hafod.[14]Mr Mullan accepted that if Ms Mullane had permission from the executor to occupy Hafod, that would give her sufficient standing, although he submitted that could not be retrospective to give standing in respect of the interruption of the water supply in December 2018. He cited no authority for that proposition. He also relied upon a reference in one of the executor’s letters to Ms Mullane’s solicitors in May 2019 that in reality she should not be occupying Hafod until probate is granted.[15]That reference, as Mr Mullan conceded, is not entirely accurate as it is an assent or conveyance of the property concerned which gives a beneficiary an interest. However, in context in my judgment the reference is properly seen as a reference to the lack of entitlement before such an assent. The context is that the executor had tried to persuade Mr Davies to reconnect the water supply for his niece and has not sought possession from her. In my judgment that does amount to tacit acceptance, at least, of her occupation and gives sufficient standing to bring a claim in nuisance, which can include all allegations of nuisance within the limitation period.[16]Returning to the essential dispute of fact, the only direct evidence adduced on behalf of Ms Mullane of connection of the Hafod water supply to the borehole in 2002 came from William Mullane, who was then about 17 years old. He is a stonemason and in his written statement he said that he was carrying out block work for his uncle at the time. He said that at this time his uncle was working on the borehole to provide a supply of water and that he saw work on the pipes. In his oral evidence he recognised a brick settlement tank in photographs and said that there used to be also a metal tank nearby which is no longer there. In cross-examination he said that he remembered his uncle’s work at the borehole being done, around about 2000, but he could not be sure of the precise date. The water was then connected to the metal tank. He was not sure whether the water going into the brick tank was from the borehole or from a stream. He admitted that there has subsequently been animosity between him and his uncle, leading to a restraining order against him, but he said the order is over now.[17]Ms Mullane and her sister could not give direct evidence of when Hafod was connected to the borehole. Ms Mullane said that everyone in the family knew when she was growing up, having been born in 1986, that the water supply to Hafod Lydan was from the borehole. She remembered that before then the supply came from a stream but that was when she was in primary school. It was a matter of pride for her grandparents when the supply was connected to the borehole as the water was so pure and clear. It didn’t need boiling. Friends of theirs used to take water away, and she recalls her grandfather taking this water with him when he went into hospital. She recalls that her mother told her that when her grandparents moved to Hafod, her grandmother told her mother that the stream system had broken down years ago and the Hafod supply was coming from the same source as that to Hafod Lydan, that is the borehole.[18]That hearsay evidence, which involves double hearsay is a tenuous basis on which to conclude that as of 2002 the supply to Hafod was from the borehole. However, it is given some support from Mr Davies. He accepted in cross-examination that when the borehole was first used as the water source it became common knowledge in the family that that was the source. He also accepted that his parents were proud of the water which came from the borehole. He recalls his son having a drink from it on a fishing trip and describing it as dŵr ice cream, dŵr being the Welsh word for water.[19]Renee Mullane said that when she lived at Hafod she thought the water supply came from the same source as that to Hafod Lydan. She said that she had no issues with the water at Hafod whilst she was there. It was clean and pure. There was no filter. Her grandmother used to tell her it was from the borehole, and she also recalls their friends taking water away with them as it was so pure. William Mullane also says he was told the same thing by his grandmother, who had a liking for the water with a drop of whiskey.[20]Another indication which they both gave was in relation to the water freezing. Ms Mullane said in her witness statement that another way in which the water was better from the borehole rather than the stream was that it was not so prone to freeze. Her sister said that whilst she was living at Hafod, her grandfather told her to leave the tap trickling during freezing weather, and that the water supply only froze on two occasions during this period.[21]Ms Mullane also relies upon the purity and quality of the water prior to December 2018 compared with when her uncle connected the pipe to the stream in 2019. She says this also resulted in difficulties with her central heating because of debris getting into the supply from the stream and fouling the boiler, which is not a problem she experienced before.[22]Against that is the evidence of Mr Davies and his father in law. In his witness statement he set out the history of the supply of water to these and other nearby properties as follows:
“Main water is not supplied to most of the local properties, and they rely upon the water from the mountain streams. The supply is poor and reliant on the weather. Too much rain can damage the water supply systems causing blockages. Too little means there is insufficient water, and if the weather is too cold, which is frequently the case at this height in winter, freezing of the pipes is a big problem.”
[23]He said that he had built the brick settlement tank shown in the photographs and placed a steel tank nearby. In his witness statement he said this:
“The purpose of the works was to ensure that we would have a better volume of supply. We would often run out of water in the summer and suffer freezing pipes and have no water in the winter.”
[24]He said that it was in 2008 that he set up a new supply from the borehole to run into a new storage tank above Hafod Lydan and onto Llwyn Celyn Bach. Of the borehole he said:
“I knew it had water flowing out on a pretty constant basis over the years I have lived in Hafod Lydan.”
[25]There were recent photographs of the borehole cap in the hearing bundle. They show the concrete cap with a vertical pipe protruding through it, to which a blue pipe is connected. The land around it is lush with reed and other vegetation which hides in part the connecting pipe. The cap does not completely cover the hole, so it is possible to see the pipe extending downwards into the water beneath.[26]Mr Davies relies upon test results which he commissioned that year comparing the quality of water from the spring, which he says is the same as the borehole with the tap at Llwyn Celyn Bach. Both samples were acceptable. Mr Davies said this was necessary to ensure that the supply to the campsite was of acceptable quality.[27]Those tests do give some support to his evidence, but are not conclusive as to when the borehole was first connected. He was adamant in cross-examination that this connection was not before this time, saying several times that that was impossible. He said the borehole was needed for more water for the shower and toilet block, although some camping had taken place on Hafod Lydan since the 1970s.[28]He further said that it was the new treated supply to the campsite in 2011 that he diverted using a T junction to Hafod for his parents to have “cleaner safer” water as his mother had had an operation and was vulnerable, and that was intended to be temporary.[29]Mr Ballard who is a retired building contractor assisted his son in law with the works in 2011 and in particular the installation of two new storage tanks, but was not involved in the works around 2000. Although it was not in his witness statement, he volunteered that he had changed a filter on the water supply in Hafod on two occasions. This had been put to Ms Mullane and her sister, and both denied there was such a system. Mr Ballard said he would often go and see Hugh and Renee Davies at Hafod but probably had not been since 2011. He could not give a year when he recalls changing the filter.[30]Unsurprisingly most witnesses had difficulty in recalling some dates of events going back over 20 years. In deciding to what extent if at all this impacts upon the reliability of the recollection of each witness, much depends on context and the nature of the event. In my judgment this difficulty was somewhat more marked in the evidence of Mr Davies and Mr Ballard. The former said in cross-examination that his parents moved to Hafod in 2005 until he was reminded that he gave the year as 2007 in his witness statement. He sought to explain this by saying he was not good at reading. Another example is that he could not give a year when his father went to hospital.[31]In my judgment it is likely that the water from the borehole, coming as it did from an underground spring, is likely to be cleaner and purer than from an overground stream, less prone to freezing and less prone to blockage or debris fouling heating systems. The evidence of Ms Mullane, her sister and brother as to the timing of the connection of a water supply from the borehole to Hafod is broadly consistent with one another and with those likelihoods[32]Moreover, Mr Davies accepted in cross-examination that the intention in converting Hafod was to let it out, possibly to holidaymakers. In the event the first tenant was a family member, but there was no suggestion that in carrying out the conversion works it was intended that the letting would be so limited. To his credit, he also accepted that his parents realised it would not be satisfactory for letting out with a stream fed water supply. That in my judgment is no more than to be expected, given the problems of such a supply which he sets out quite apart from the clarity and purity of the water from the borehole.[33]It is unlikely in those circumstances that the opportunity would not be taken to connect the Hafod supply to the borehole. It is clear that there was discussion between Mr Davies and his parents about connecting to the mains, and there are quotes for that work to be carried out, including one in February 2002. That quoted for a connection via a 25mm pipe. That appears to correspond to the thickness of the pipe connected to Hafod, as there is an invoice to Mr Davies and his parents in 2000 for 200m of 25mm blue alkaline pipe. However, that quotation for the mains connection was not taken up.[34]The dispute as to the timescale for the connection of Hafod to the borehole goes beyond just a couple of years. It was put to Mr Davies that he was not telling the truth about it because he is disappointed that his niece was left Hafod in his father’s will as well another property and the residuary estate. He was defensive when these matters were put to him and it is likely in my judgment that this has impacted upon his conduct in relation to the water supply, and to some extent, upon his recollection of the timing of the connection Hafod to the borehole supply.[35]However, in my judgment that is not a sufficient basis to conclude that he came to court to give false evidence as to the timing of the connection. It is clear that the water supply to various points at and around Hafod Lydan has changed several times over the years. It is more likely that he has convinced himself, with the prompt of the 2008 test results, that the connection took place later than it did. He also relied upon his son’s reference to dŵr ice cream as pinpointing the connection to 2008 or 2009, when his son was seven or eight years old. That part of his evidence came across vividly, and is some support for his recollection. However, in my judgment that piece of evidence is not inconsistent with the connection having been made beforehand. The refence is also likely to give some indication of the taste as well as the temperature of the water coming from the underground spring and thus the borehole.[36]Mr Ballard’s evidence took the timing of the connection little further. His evidence about filters being placed in Hafod did not emerge in a satisfactory way, and he could not satisfactorily put a year on when he says he changed the filter. I accept the evidence of Ms Mullane and her sister that the filter was not present in the house when they resided at Hafod and that they had no difficulty with the water supply during those times. If a filter was installed at some other point, it is unlikely that this was because the supply came from the stream.[37]There were several photographs, mostly recently taken, in the hearing bundle of the properties concerned and various pipe connections. Some of these were taken from ground level, which showed pipes of varying thickness. In some of these ground level photographs, the pipes run across fields where sheep were grazing, in which depending upon the thickness of the pipe, the nature of the landscape and of the vegetation, some of the run of the pipe can be seen. In others, the pipe runs along the bed of a stream and is less visible. There were also many aerial photographs taken from various heights. Some were clearer than others. In some of these pipes running across fields could be seen, but in others no pipes are visible.[38]At the end of closing submissions, Mr Mullan “flagged up” as he put it that there may be an application to adduce further aerial photographs. I reserved judgment. Such an application dated 27 October was filed the next day and forward to me the same day. The application which is supported with witness statements from Mr Davies and his solicitor, is to adduce two further aerial photographs said to be down loaded from an historical aerial photography website.[39]The first photograph appears to be dated 31 December 2006. Mr Davies in his witness statement says, without further details, that it shows “no further pipe work beyond the stream fed system.” He contrasts that with a ground level photograph in the trial bundle, which shows the brick settlement tank above Hafod Lydan with a sort length of large white pipe.[40]In my judgment the 2006 image is somewhat blurred and is taken from many meters in the air. It appears to show Hafod Lydan and several fields, the boundaries of which are discernible. These boundaries and the trees in the image throw shadows. The fields to the south of the image are green and appear to be in pasture. The land to the north appears to have rougher and darker vegetation. It is difficult to discern any pipes at all.[41]A pipe can just about be seen in the 2009 image running across one of the fields to the south, which Mr Davies says is a 50mm pipe laid in a stream to another property, which was needed to obtain more volume at the time. He says that this is the pipe shown in a ground level photograph already in the bundle, which in turn he says shows a 50mm pipe and a 32mm pipe in the same field. The former is clearly visible in the foreground and the latter is less so but not visible further down the field.[42]His solicitor says that this new evidence is compelling. As the application is made after evidence and submissions have closed and having regard to the overriding objective it is just and appropriate in my judgment that I deal with it without the need for a further hearing. The time for compliance with court orders for the serving of evidence and agreeing bundles has long since passed, and in my judgment I should have regard to the guidance in Denton v TH White Ltd [2014] EWCA Civ 906 in dealing with an application to adduce evidence not in compliance with those orders.[43]Such noncompliance is serious, and in my judgment towards the top end of seriousness. The application comes not just late but after close of evidence and submissions. No good reason is put forward for such non-compliance and nor could there be. Aerial photographs were included in the bundle and there is no good reason why such photographs or images from an earlier time should not have been obtained in good time for the hearing. The application appears to be as a result of an afterthought during the hearing itself. As for all the circumstances of the case, if there were merit in the application, the claimant should be given an opportunity to respond. If the application were allowed, the claimant should be given an opportunity to file evidence in response to the evidence, which may well have the consequence that the hearing would have to be reconvened and witnesses recalled leading to further cost and delay.[44]Far from the two new images being compelling, in my judgment they take the evidence little further if at all. Whether pipes could be seen in aerial images is likely to depend on many factors such as the height of the camera, the thickness and colour and any weathering of the pipe, the landscape and vegetation around it, the weather, the light, the time of day and any shadow. For example, Mr Davies says that the pipe seen in the 2009 image is 50mm thick to give extra volume. Piping obtained in 2000, before the later expansion of the campsite was 25mm thick.[45]Accordingly, I refuse the application.[46]On the totality of the evidence in my judgment on the balance of probabilities, the water supply to Hafod at the time of the 2002 conveyance was connected to the borehole. I should come to the same conclusion even if I had regard to the 2006 and 2009 images. Their probative value, individually or together, is not sufficient to tip the balance in favour of Mr Davies.[47]Mr Mullan submitted that an entitlement to draw water via the water treatment plant at Hafod Lydan is excessive and that the water from the borehole is limited in volume. In respect of the former point, Mr Jackson realistically accepted in closing submission that as there was no water treatment plant commissioned in 2002, the right passing under the 1925 Act cannot extend to treated water. As for the latter point, although there was evidence of insufficient volume of water for the campsite activities on occasion, it is clear that those activities have grown over the years and as they have Mr Davies has developed storage facilities in various stages. In my judgment the taking of water for Hafod from the borehole is not excessive.[48]It follows that the right to such a connection passed with the 2002 conveyance by section 62 of the 1925 Act. The turning off of the supply in December 2018 and again a couple of days later and the refusal to reconnect the supply in my judgment amounted to substantial interferences with that right and to nuisance.[49]Accepting for present purposes that Mr Davies did not know anyone was living in Hafod when it was first turned off, it must have been reasonably apparent when it was turned back on that someone was. In any event, he had express notice in January 2019 that it was his niece and her family. Yet, despite the executors trying to persuade him to reconnect the supply, he did not do so, or repair the pipes damaged in February 2019, until at the door of the court at the end of the year he agreed to provide an adequate supply. In my judgment it is likely that his disappointment at his father’s will did impact upon this conduct at least to some extent.[50]The granting of a declaration and injunctive relief is discretionary, and I bear in mind the tenuous basis on which Ms Mullane occupies Hafod at present, although with a reasonable expectation that the same will be vested in her name in due course. Moreover, it is clear that the executor attempted to persuade Mr Davies to reconnect the supply, but he did not agree to do so until the hearing of Ms Mullane’s application. In my judgment it is just and proportionate to grant a declaration that Hafod is entitled to a water supply from the borehole and injunctive relief to ensure that supply.[51]That is the primary relief sought but damages are also claimed. The pleaded case on damages limited the value of £9133.50, and that was the income said to be lost in the 2019 season. In Ms Mullane’s witness statement and in Mr Jackson’s skeleton argument, reference was also made to her intention to let out Hafod to holiday makers in 2019 and 2020. Receipts from the 2017 season were included in the bundle. However, no application to amend the pleaded case was made. Mr Mullan did not challenge these details, as he was content to rely upon the principle that until the estate has been administered any income generated by estate assets belongs to the estate (see Williams, Mortimer & Sunnucks 45-65).[52]Mr Jackson did not dispute that principle, but submitted that as residuary beneficiary such income would come to Ms Mullane. However, it is for her to prove that she has lost income and I am not satisfied on the evidence put before me that she has done so. Tacit agreement on the part of the executor that she should live at Hafod does not involve an agreement that she could let it out. It is noteworthy that when her solicitors corresponded with the executor after the supply was cut off there was no mention of letting out but only that she was living there. Most of the assets of the estate are properties or land. Although there is reference in the correspondence to a sizeable bank balance the estate has not been administered and I have not seen any accounts. I cannot be satisfied what if any income generated by Hafod in the course of administration is likely eventually to find its way into the hands of Ms Mullane, especially given the intimated proprietary estoppel claim. In my judgment this head of damages fails.[53]Mr Mullan did not challenge the written evidence of Ms Mullane and her partner as to what they termed, unsurprisingly, the great inconvenience of being without a water supply for about 1 year. Connection to a stream supply then gave them a similar supply to many dwellings in the vicinity, although there was occasional disruption to heating after that. In my judgment, fair compensation for this loss of amenity is in the order of £100 per week. With some allowance for continued, although episodic, difficulties in my judgment the appropriate amount under this head is £5,500.[54]Mr Jackson submitted that a further head of aggravated damages is appropriate given the conduct of Mr Davies in relation to the water supply. Such damages have been awarded for interference with a neighbour’s right which is intimidatory, unpleasant and malicious (see McGregor on Damages 20 th edition, 39-043). I have made my findings on Mr Davies’ state of mind, and in my judgment his conduct in cutting off the supply for a second time and refusing to reinstate was unpleasant. Mrs Mullane also says that her uncle’s workmen told her that he had instructed them not to repair the damaged pipe, something which he denies. There may have been a misunderstanding about this, but in any event in my judgment this does not add a great deal to the refusal of Mr Davies to connect a water supply for one year until proceedings were commenced.[55]However, Ms Mullane accepts that Hafod was not her home immediately before this and that she went there initially to do it up to let out. The entitlement to water was not clear cut, nor was her status at the property. In my judgment the conduct of Mr Davies does not reach such a level as to attract aggravated damages.[56]Mr Mullan, after Mr Jackson’s closing submissions, raised a point on mitigation of damage, although this was not pleaded. Ms Mullane accepts that she did not approach her uncle directly after the water was cut off, because she said he had said to her a long time ago that he was “finished” with her and that they had not conversed for some time. That evidence was not substantially challenged, and I accept it. Far from it being unreasonable for her not to communicate with her uncle directly after the water was disconnected, it was reasonable for her to do so via her solicitors and/or the executor.[57]I invite the parties to attempt to agree a minute of order and to file the same within 14 days of hand-down of this judgment. Any consequential matters which remain in issue can be dealt with on the basis of written submissions, which should be filed and served in the same timescale.