Well Barn Shoot Ltd & Anor v Shackleton & Anor

A right of way granted over a defined track may carry, by necessary implication, a right of access to retained land where otherwise the grant would be pointless. The location and width of that access depend on the grant and its contemplated use, subject to reasonableness. Rectification for unilateral mistake requires knowledge of the mistake and unconscionability; relief is confined to the mistake actually known. A negative declaration is discretionary and is governed by practicality and utility, not an exceptional-circumstances rule. It may be granted where a concrete dispute can be resolved through a workable regime. Development affecting sporting rights is assessed as a matter of fact and degree.

The appellants owned the Well Barn Estate and retained sporting rights over Warren Farm, owned by the respondents. A 1991 transfer reserved a vehicular right of way over a defined track, but the final plan did not clearly provide access from the track to the appellants’ retained blue field. The appellants installed a gate at Point A and sought declarations and rectification. The respondents counterclaimed for declarations concerning residential development of farm buildings and its effect on the sporting rights.

The Chancery Division granted declarations, rectified the transfer to recognise access through the gate at Point A, and imposed undertakings and covenants concerning development, fencing and interference with shooting. The appeal concerned the extent of the right of way, unilateral mistake and rectification, and whether negative declarations could determine that the proposed development would not substantially interfere with the sporting rights.

1. Disposition. Carnwath LJ delivered the leading judgment. Sedley LJ and Potter LJ agreed. The appeal was dismissed and the order below was affirmed as agreed.
2. Right of way. On the true construction of the transfer, the express right of way extended to the defined track, not generally to the verges. An access to the retained blue field was nevertheless implied by necessity, because otherwise the grant would have been pointless. There was no need to imply more than one access. The natural access was at the end of the track, Point A. Its width was governed by the agricultural use contemplated by the transfer and by reasonable opportunity to exercise the right. A 24-foot gate was therefore reasonable, with only the verge necessary for access included.
3. Rectification. Rectification was available in principle for unilateral mistake where one party proceeded on a mistaken basis known to the other and it would be unconscionable to rely on that mistake. The respondents knew of a mistake concerning access to the blue field, but not of a wider mistake concerning all verges or unrestricted access. Unconscionability depended on what the informed party believed, not on the legal consequences which a lawyer might later attribute to the document. Wider rectification was therefore refused.
4. Sporting rights. Applying the approach in Peech v Best [1931] KB 2, substantial interference with reserved sporting rights was a matter of fact and degree. The relevant rights were those over Warren Farm, although their effect could be assessed by reference to adjoining drives. Existing residential use, the removal of substantial farm buildings, restrictions on construction timing, controlled fencing and access, and the undertaking not to cause substantial interference made the development compatible with the sporting rights.
5. Negative declaration. The jurisdiction was discretionary and was not confined to exceptional cases. The relevant considerations were practicality and utility. The issue was concrete rather than hypothetical because the planning consent defined the development sufficiently for expert evidence and a judicial assessment. The order was workable and served the useful purpose of resolving genuine uncertainty. It did not give unrestricted permission for residential conduct; the declaration and covenants were to be read together, with acceptable use remaining subject to reasonableness and substantial interference.
6. Sedley LJ added that, in the ordinary case, courts should be cautious about anticipating disputes through proleptic undertakings and declarations. The peculiar history of this dispute and the workable safeguards justified the order here.

1. Court of Appeal (Civil Division): Dismissed the appeal and affirmed the order as agreed.
2. Chancery Division: The deputy judge granted declarations concerning the right of way and proposed development, rectified the transfer to recognise access at Point A, and imposed undertakings and restrictive covenants.