Thompson v Bee & Anor

Where a testator leaves neighbouring properties to different beneficiaries and executors later assent to the gifts, the will and assents may be construed together as one transaction when determining a right of way. A general grant for use at all times and for all purposes connected with the land is not confined to agriculture without compelling textual or contextual justification.

That breadth does not authorise unlimited use. A change to residential use may be permissible, but use becomes actionable where it is excessive and unreasonably or substantially interferes with the servient owners’ use of the way or enjoyment of their property.

Stephen Thompson owned the Garth, back land adjoining Pear Tree House, owned by Jane and Alan Bee. The properties had formerly belonged to the same owner. A 1974 will left Pear Tree House to Mrs Bee and the Garth to George Thompson, referring to a right of way to the Garth. Separate assents were made in 1977.

The trial judge construed the will and assents as one transaction but limited the right of way to agricultural purposes. He also considered that access for three permitted residences would constitute excessive use and granted an injunction. The appeal concerned title, the proper construction of the right of way, and whether the proposed use would amount to nuisance.

The Court of Appeal unanimously allowed the appeal in part. Lord Justice Mummery gave the principal judgment. Lord Justice Etherton agreed and added reasoning on the construction of the will. Lord Justice Sullivan agreed with both judgments.

1. Title. The will did not itself vest legal title to the properties, but the assents were the conveyancing mechanism giving effect to it. Under s36(2) of the Administration of Estates Act 1925, the assents related back to the death unless a contrary intention appeared. The will and assents could therefore be read together as one overall transaction. The order in which the assents were made could not alter the rights intended by the testatrix. The respondent’s narrower way-of-necessity argument was rejected. This approach was supported by Phillips v Low [1892] 1 Ch 47 and George Attenborough & Son v Solomon [1913] AC 76.
2. Construction. The words at all times and for all purposes connected with the Garth were general and were not cut down to agricultural purposes by the will or surrounding circumstances. The words connected with the Garth limited the land served, rather than the nature of the permitted use. The reference to a right of way existing at death did not impose an agricultural limitation.
3. Excessive use. A right granted in wide terms does not authorise unlimited use where it is shared with the servient owner. As explained in Jelbert v Davies [1968] 1 WLR 589, residential use may be lawful in principle, but excessive use causing unreasonable or substantial interference with the servient owners’ rights may amount to nuisance. The trial judge was entitled to find that access for three residences would be excessive. His consideration of the likely interaction between users of the proposed residences did not amount to legal error.
4. Appeal and practical guidance. An assessment of excessive use is ordinarily a matter of fact and degree and should not be disturbed unless there was an error of principle or a plainly wrong conclusion. The court would not consider a lesser or alternative development which had not been pleaded, evidenced or argued at trial. Courts may formulate practical guidelines for reasonable future use, as in Rosling v Pinnegar (1987) 54 P & C R 124, but that exercise had not been requested.
5. Orders. The declaration was replaced with one stating that the right of way did not permit use for the three proposed residences. The appeal against the injunction was dismissed, but its wording was varied to prohibit use of the right of way for access to and from those residences.

• Court of Appeal (Civil Division) [2009] EWCA Civ 1212: allowed the appeal against the declaration in part, dismissed the appeal against the injunction, and varied both the declaration and injunction.
• Chancery Division, Newcastle upon Tyne District Registry: HHJ Roger Kaye QC held that the will and assents operated as one transaction but limited the right of way to agricultural purposes. He granted an injunction against the proposed excessive use.