Broughton v Bower & Anor

The expression “undomesticated animals” bears its ordinary meaning. An animal need not live in a house or be kept as a pet. It is domesticated if it is of a species accustomed to living with humans, brought under human control and tamed. Words introduced by “including” ordinarily extend an expression to cover the specified examples; they do not redefine the expression into a narrower category. Separate undertakings in a consent order must be construed independently where their wording and context support that reading. A permission to use land for agriculture does not override a separate prohibition against keeping specified animals.

Broughton v Bower & Anor arose from a 1997 Tomlin-form consent order compromising a dispute about restrictive covenants affecting neighbouring properties. The order prohibited the defendants from keeping undomesticated animals, including horses, ponies and geese, and from using their land for any business other than agriculture as defined by section 109(3) of the Agriculture Act 1947.

On a later application under the liberty to apply, the Chester County Court construed “undomesticated animals” as animals regarded as pets or akin to pets, and held that the agricultural-use undertaking could override the animal prohibition. The defendants appealed the definition and the claimant appealed the proviso concerning agricultural use. The central issues were the proper meaning of the expression and the relationship between the two undertakings.

Both appeals allowed. Sir Martin Nourse gave the leading judgment, with Lord Justice Neuberger and Lord Justice Buxton agreeing.

1. Meaning of “undomesticated animals”. “Domesticated” bears its ordinary English meaning. An animal is domesticated where it is of a species accustomed to being kept by or living with humans, brought under human control and tamed. It need not live in a house, be a pet or be akin to a pet. The legal descriptions in Halsbury’s Laws of England and section 15(b) of the Protection of Animals Act 1911 were consistent with that approach.
2. Construction of the consent order. The 1973 conveyance formed part of the factual background against which undertaking (3) had to be construed. Its use of the same expression confirmed the ordinary meaning. The defendants’ earlier admission that their horses, ponies and geese were undomesticated did not create a special dictionary. The words “including horses, ponies and geese” extended the prohibition to those domesticated species; they did not transform the expression into a restriction limited to pets or similar animals.
3. Relationship between the undertakings. Undertakings (3) and (4) were independent. Undertaking (4) permitted use for a business of agriculture as defined by section 109(3) of the Agriculture Act 1947, but it did not permit animals whose keeping was prohibited by undertaking (3). The agricultural-use proviso was therefore wrongly included.
4. Orders. The relevant paragraphs of the county court order, including the proviso, were discharged. The defendants were declared entitled to keep domesticated animals except horses, ponies, geese, female cattle and pigeons, including male cattle, sheep, ducks, peacocks, turkeys, chickens, cockerels and quail. A declaration in the form sought by the claimant was made on her appeal, in abbreviated form where appropriate.

1. Court of Appeal (Civil Division): Both the defendants’ appeal and the claimant’s appeal were allowed. The county court’s construction of the consent order was replaced and consequential declarations were made: [2006] EWCA Civ 632.
2. Chester County Court: His Honour Judge Wyn Williams QC held that “undomesticated animals” meant animals regarded as pets or akin to pets, and that the agricultural-use undertaking could override the animal prohibition. Declarations were made with a proviso permitting prohibited species when kept in connection with agriculture.