Gainsborough-Field v Hyde & Ors

A right of way granted for access connected with present and future agricultural use may extend to activities which the parties treated by convention as part of the property's existing use. That may include the stabling, keeping and grazing of horses, even where horses are kept for recreational purposes. The ordinary meaning of “agriculture” does not itself include recreational horse-keeping. However, the words “present ... use” may give the grant a wider effect when construed against the factual background. Statutory distinctions between grazing horses and keeping horses are not necessarily decisive in construing a private grant. Proprietary estoppel requires an inducement or representation, reliance and detriment. Pre-contract communications overtaken by the executed contract, particularly an entire-agreement clause, may not establish the necessary representation.

The claimant owned land over which the defendants enjoyed a right of way granted in a 1995 transfer. The right was expressed to operate for all purposes connected with the present and any future agricultural use of the defendants' land. The defendants wished to use the land for stabling, keeping and grazing horses, including recreational equestrian activities. The claimant sought declarations restricting the right of way to agricultural activities and an injunction. The defendants relied on the proper construction of the grant and, alternatively, proprietary estoppel based on the sale circumstances and pre-contract communications. The central issues were the meaning of “agricultural use”, the effect of “present ... use”, and whether an estoppel arose.

1. Construction of the grant. The ordinary meaning of “agriculture” comprises cultivation of the soil, gathering crops and rearing livestock. Recreational horses are not ordinarily livestock, although working horses used in agriculture may be. The statutory authorities relied upon did not determine the meaning of the private grant. They illustrated a distinction between land used for grazing horses and land used for keeping or stabling them. Per Sykes v Secretary of State for the Environment [1980] Property & Compensation Reports, p.19, the predominant use of the land is material in that statutory context; where horses are stabled and merely permitted to graze, the predominant activity is keeping horses (paras 49–50).
2. The words “present and any future agricultural use” had to be construed as part of the grant and against the relevant background. The parties had treated the existing use of the property as including stabling, keeping and grazing horses. It was unnecessary to decide whether the grant referred to the present use whatever it was, or whether the existing use was treated by convention as agricultural. On either analysis, the right of way extended to access for stabling, keeping and grazing horses, as well as future agricultural use (paras 51–59).
3. Proprietary estoppel. The essential ingredients identified in Lloyd v Dugdale [2001] EWCA (Civ) 1754 include an inducement, encouragement or allowance leading to belief in a right or benefit, detrimental reliance, and unconscionable denial. The claimant established that the first ingredient was absent. The pre-contract advertisement and correspondence were overtaken by the contract, including clause 13. The replies to preliminary enquiries were neutral, and nothing after contract or transfer established a different meaning. The estoppel argument would therefore have failed even if the construction issue had been decided against the defendants (paras 60–63).
4. The claimant accordingly failed on the declarations and injunction sought. The defendants succeeded on the construction issue.

First instance decision. No prior appellate decision is stated in the judgment.