Well Barn Shoot Ltd & Anor v Shackleton & Anor

The Court of Appeal dismissed the appellants' challenge to the High Court's construction of a conveyance and to its grant of declaratory relief. On construction, the court held that the right of way was confined by the brown colouring on the plan to the track itself but, by necessary implication, included a reasonable right of access into the retained blue field at the top of the track (Point A) for agricultural vehicles; the width of the 24 foot gate was not unreasonable. The judge's refusal to order broader rectification to include the verges was upheld: any unilateral mistake known to the defendants was limited to the absence of an access at the top of the track and did not justify rectification to the extent sought. On the counterclaim the court held that, applying the test in Peech v Best, the proposed residential development carried out in accordance with the planning permission and subject to specific undertakings and restrictive covenants would not necessarily cause "substantial interference" or a derogation from the sporting rights, and that a negative declaration coupled with detailed undertakings was an appropriate exercise of the court's discretion in the circumstances.

Background and parties:

• The claimants (Well Barn Shoot Ltd and Well Barn Farming Ltd) owned a large shooting estate and retained sporting rights over Warren Farm. The respondents (the Shackletons) acquired the freehold of part of Warren Farm by transfer dated 28 June 1991. The dispute concerned the extent of a right of way reserved to the claimants and whether the defendants could carry out a residential development consistently with the claimants' sporting rights.

Nature of the claims and relief sought:

• The claimants sought declarations as to the extent of their right of way along a farm track and alternatively rectification of the transfer to show greater access. The defendants counterclaimed for declarations that the proposed development (pursuant to planning permission and a section 106 agreement) would not necessarily interfere with or derogate from the sporting rights reserved to the claimants' predecessors in title.

Issues framed by the court:

1. Construction of the transfer and whether the right of way extended to the verges or otherwise gave access into the blue field; alternatively whether rectification of the transfer was warranted (issues of common or unilateral mistake and unconscionability).
2. Whether the proposed residential development would substantially interfere with or derogate from the claimants' sporting rights and whether a negative declaration coupled with undertakings and restrictive covenants should be granted.

Facts and reasoning:

• The transfer reserved sporting rights to the vendors and a vehicular right of way "over and along the roadway shown coloured brown" on the plan. The final engrossed plan showed brown colouring confined to the track, though an earlier travelling draft had hatched the verges. The court accepted the High Court's finding that the brown colouring limited the grant to the track but that, as a matter of necessary implication, the grant included a reasonable access into the blue field at the head of the track (Point A) to give effect to the agricultural purpose of the grant. The judge's assessment that the 24 foot gate was not unreasonable for agricultural use was affirmed.
• Rectification to extend the right of way over the verges was rejected. The judge found no common intention to grant access over the verges and, on unilateral mistake, concluded that the defendant knew of a limited mistake (absence of an access at the top of the track) but not of a broader mistake that would make it unconscionable to insist on the final form of the plan.
• On sporting rights the judge applied the Peech v Best test (derogation from grant by fundamentally changing the character of the land or by substantial interference). Detailed expert evidence addressed the likely effect of the proposed development on partridge drives, beaters' access and bird recovery. The High Court concluded that two potential sources of substantial interference could be managed: (i) the temporary disturbance from heavy construction works, which could be limited by timing restrictions, and (ii) obstruction by fences or walls, which could be managed by covenant limits and permitted low fencing. The judge therefore proposed a negative declaration subject to undertakings and restrictive covenants (including limits on fence heights, timing of heavy works, and a covenant that nothing be done which substantially interferes with sporting rights).
• On appeal the Court of Appeal reviewed the modern jurisprudence on negative declarations (citing cases including Messier-Dowty and Greenwich Healthcare) and concluded that, in the pragmatic exercise of discretion and on the facts found, the High Court was entitled to make the declaration and to accept the undertakings as a workable regime to avoid substantial future disputes.

Procedural posture:

• The decision under appeal was by a deputy judge of the Chancery Division (Mr Bernard Livesey QC). The Court of Appeal (Carnwath LJ, Sedley LJ, Potter LJ) dismissed the appeal and affirmed the order of the High Court (order dated 12 April 2002 reproduced in the appendix to the judgment).

This was an appeal against the Chancery Division. The Court of Appeal dismissed the appeal. It upheld the High Court's construction that the conveyance granted a right of way confined to the brown-marked track but that a right of access into the retained blue field at the head of the track (Point A) was to be implied as necessary for agricultural use; it affirmed refusal to rectify the transfer to include the verges because any unilateral mistake known to the defendants did not render reliance on the final plan unconscionable. It also upheld the judge's exercise of discretion to grant a negative declaration, coupled with detailed undertakings and restrictive covenants, that development in accordance with the planning permission (and subject to those protections) would not cause substantial interference with the sporting rights.

Appeal from the Chancery Division (Mr Bernard Livesey QC sitting as a deputy judge of the High Court). The High Court made the order challenged (extracts dated 12 April 2002 appear in the appendix to the judgment). The Court of Appeal dismissed the appeal ([2003] EWCA Civ 2).