Yes, it’s another infernal easement dispute:
(Fair warning – this is a Land Law post. Normal historical service will be resumed soon. Bracton’s Sister thanks you for your patience).
The High Court judgment in a fiercely-fought easements case has just appeared. Hambling v Wakerly [2023] EWHC 343 (Ch.) is an (unsuccessful) appeal from a decision in Norwich County Court, by HHJ Walden-Smith, and concerns land in Suffolk. (And, to the great relief of those of us still struggling through the whopping proprietary estoppel judgments which have been gushing forth in recent months, it is a mere 12 pages. Appreciated!)
The dispute, which had been brewing for some time, had various aspects, but the only thing which was to be decided in the appeal was whether the judge in the County Court had got wrong her construction of an express easement, to be found in a 2001 Land Registry Transfer.
The land lay like this … The Hamblings were registered proprietors of two separate but almost-adjacent parcels of land: to the west, Garden Cottage (with gardens and post-transfer-constructed stable block) and to the east, a field. A private road ran between the two, and out to the highway, the relevant land being owned by the Wakerlys. There was an easement relating to that private road. It was agreed by both sides in the case that the field had the benefit of that easement. They also agreed that it could not be used as a straightforward right of way from the cottage to the highway. The actual argument was as to whether the Hamblings could use it between Garden Cottage and the field. They said yes, the Wakerlys said no.
In Norwich County Court, the Hamblings were told that they could not use the track as they wished, between the two parcels. They had run arguments based on: (i) construction of the wording of the easement; (ii) ancillary use; (iii) proprietary estoppel; (iv) rights to light (in relation to a fence which will be mentioned below, which ran ‘along the entirety of the cottage/track border’. The appeal concentrated on the construction argument. The relevant words involved a grant of a ‘right of way for all purposes with or without vehicles at all times of the day and night over and along the [ road ….] but subject to access over the road marked “Drive” [on the annexed plan] only being used for access to the field not to Garden Cottage.” That looks pretty conclusive against their claim of a right to use the road to gain access to Garden Cottage, so I am not surprised that the case on construction did not work in the County Court.[i] The construction rules, as referred to in the County Court, from the trusty ‘Easements Bible’, Gale on Easements were:
- Construe according to general rules on interpretation of legal documents
- Assess the words of the transfer in light of
- their natural and ordinary meaning (objectively and not taking into account subjective intentions)
- any other relevant provisions in the Transfer
- facts and circumstances known or assumed by the parties at the time of transfer
- commercial common sense.
- all facts and circumstances (as an aid to interpretation).
- Assess the words of the transfer in light of
The County Court judge decided that the natural and ordinary meaning meant no use of road for access to Garden Cottage, and nothing displaced that.
The Hamblings’ lawyer tried to argue that the County Court judge had taken into account ‘subjective’ material which should not have featured in her construction. However, that was a bit cheeky, since she had also had to deal with the proprietary estoppel argument of the Hamblings, which did require such material to be considered. So that didn’t wash in the High Court. Other criticisms were made of the County Court decision, with regard to whether sufficient account had been taken of the geographical facts, and the suggestion of some odd sort of one-way access from cottage to field, but to no avail. (Incidentally, is there really a need to use locus in quo, terminus a quo and so on? Perfectly good English expressions, avoiding the classical class issues and facilitating accessibility, are available, you know).
The Hamblings’ argued that, even if they lost on basic construction, they could still use the road from Garden Cottage as a matter of ‘ancillary use’. This sort of argument can work, at times, as a sort of ‘escape route’ from restrictive doctrines like the rule in Harris v. Flower, or as a way of enlarging the meaning of clearly-existing easements, but it did not work here, first, because there were express words against such use, and, had it been necessary to go there, there was a second strand – such use would not actually be ‘ancillary’ to the use of the field.
While I am sure that this case is correctly decided on the law, it is, in fact, easy to see why one might think that a grant of two pieces of land to the same people would mean that the rights could, in a sense, be amalgamated, and used for both pieces of land. In England and Wales, however, easements are very definitely attached to pieces of land – operating for the benefit of a specific ‘dominant tenement’. Perhaps this case shows something of the distance between that idea (rather artificial, when you think about it – since it is, in the end, people, not land, who can benefit from such rights) and the ‘common sense’ or ‘gut-feeling’ assumptions of those who have not had the pleasure of a course in Land Law.
From a pure Land Law point of view, I think it is a case which shows the less-than-ideal state of the law on excessive user. Reading between the lines a little, it appears that the main concern of the Wakerlys was to do with the likelihood of intensification of use of the field. Much as the Hamblings’ lawyer might try and portray the situation as stopping the Hamblings doing nice things for their horses – the odd bag of hay, being taken to the field from the cottage, that sort of thing – the Wakerlys were probably rather more concerned with motor vehicle use. But the rules on intensification are rather generous to dominant owners, so resting on the express words of the transfer, and whacking up a fence in accordance with their limitation of the benefited land, was one way of avoiding a level of disturbance they did not want to tolerate.
The reason that I became aware that this case was coming up was that it had been picked up by certain sectors of the press, ever on the look-out for a case which could be fitted into the ‘neighbours from hell’ template. (For a handy starting list of such reports, see Sarah Nield, ‘Inflexibility of enduring property relations: the easement story’, Conv. (2021) 290-304, at note 91). The Daily Mail and Daily Express, and sometimes the Sun and Telegraph, can be relied upon to pounce upon stories like this. Occasionally there might be the potential for a cross-over with other favourite journalistic themes, but the NFH template is usually deployed in one of two slightly different ways – either ‘let’s purse our lips at the ruffianly behaviour of the lower orders’ or else ‘ooh look, we can talk about house prices and property’. This tends to the latter model. I do think that there is scope for some consideration of journalism in this area. Looking at reports of this case, I note the frequent emphasis on the Hamblings’ characterisation of their neighbours as ‘monstrous’,[ii] or ‘monstrous millionaires’ who were ‘boxing them in’.[iii] There is also the ‘dream home turns into nightmare’ trope.[iv] The 6 foot height of the fence was highlighted,[v] and the expense of the litigation, and its length, featured.[vi] There is an interesting ‘spin battle’, or inconsistency, between the idea that the Hamblings were losing the dream cottage/idyll/chocolate box because of the actions of the Wakerlys in building the fence, and the revelation that the insistence on the right to use the access road was connected to a potentially non-dreamy or chocolate-box-adjacent plan to use the field for the parking of vehicles.[vii]
A preliminary scout through other such cases makes me think it would be interesting to see what are the regular negative descriptions of parties in the cases (so far, I find references to spite[viii] and petulance[ix] quite interesting). I would look out for presentation of the matter as a ‘feud’ (well that is a bit legal historical, isn’t it?)[x] or as something of a ‘come-uppance’ tale, especially when it seems that the ‘bad’ neighbour might lose his or her house as a result of the expense of litigation,[xi] or when the loser is a (greedy) lawyer.[xii] Finally, because judges are definitely built up as ‘characters’ in these reports (and I am sure that they are far from unaware of that), I would be on the alert for judges performing ‘surprise’ that such a dispute could not be sorted out amicably, or without court proceedings.[xiii] The judge in the High Court here avoided this sort of thing, not getting ‘judgey’ or ‘preachy’ about people bringing expensive litigation over such disputes, though this is all too common.[xiv] It always appears to me to be self-important ‘grandstanding’ on the part of judges, rather talking down to people, who can spend their money on cases if they want to, however foolish, or trivial, it might appear to others.
Finally, on the subject of the intertwining of law and the media, there is a little throw-away comment in another recent judgment of the last decade, which I will use as a concluding thought/conversation opener … the judge in a case in Bristol County Court case, Shortland v. Hill (2017), HHJ Paul Matthews, shared with the world, at paragraph 36, the fact that he had watched the coverage of the case in a reality TV show about such things, ‘Neighbours from Hell’.This had been included in the trial bundle. He was quick to say that this had not been until after he had come to his conclusions – but still, definitely a sign of the back and forth between legal professionals and the media on this one.[i]
GS
26/2/2023
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[i] There was some potential doubt surrounding the way things had been mapped. My students are always a bit surprised at the … how to put this … inexact … nature of maps in Land Registry records, when they encounter them for the first time. In a world of drones and GPS, when estate agents routinely offer 3D tours of properties, it does seem a little scrappy to be dealing with these rather rough maps.
[iv] Again, in the Mirror. And here.
[v] See, e.g., the Metro and Mail
[viii] E.g. this one about an ‘aggressive and spiteful pensioner’
[xiii] General, see, e.g., this
[xiv] See, e.g. paragraphs 42 and 43 here.
[i] (He also commented upon the fact that the claimant was bald … which was interesting …)
Image: that’s the flag of Suffolk, that is – new one on me, despite being a bit of a flag-nerd. Can see I will have to revise! Courtesy of Wikimedia Commons.
