Alford v Hannaford & Anor

A professionally drafted transfer must ordinarily be given its natural meaning in its factual context. Where its grant of a right of way permits use with or without vehicles, but its reservation expressly adds animals, the contrast may limit the grant to pedestrian and vehicular use.

A plan identifying a track is read with the physical circumstances at the date of transfer. An obsolete depiction does not extend the easement over a former, impassable route when the only usable track was elsewhere. Under Law of Property Act 1925, s.62, a grazing licence without exclusive occupation does not create the diversity of occupation needed to pass permissive rights. In any event, an expressed contrary intention in the transfer excludes an implied easement.

The claimant appealed an order of His Honour Judge Cotter QC in the Plymouth County Court concerning rights over a farm track granted by a 1991 transfer.

She contended that the transfer permitted her to drive animals along the track and gave access through gate X. Alternatively, she relied on an implied easement under s.62 of the Law of Property Act 1925. The appeal also challenged findings about a 2003 oral agreement governing farm use of the track, the parties’ estoppel, and declarations and an injunction in the order.

The central issues were the construction and physical extent of the express right of way, the availability of an implied right through gate X, and the effect of the 2003 agreement.

1. The appeal was dismissed. Patten LJ gave the judgment, with which Moore-Bick LJ and the President of the Family Division agreed.

2. The transfer was to be construed objectively in its admissible factual context, consistently with the ordinary meaning of its professionally drafted language. There was no textual error requiring departure from that meaning. The marked contrast between the grant, which referred to vehicles, and the reservation, which referred to vehicles and animals, meant that the claimant had no express right to drive animals over the track.

3. The plan did not grant a right over every part of the coloured strip. It granted a right over and along the track shown on it. At the date of transfer, the depicted route had long been impassable and the only usable track lay to its north. The grant therefore concerned that usable track, not a route reaching gate X.

4. The claim under s.62 of the Law of Property Act 1925 failed. The claimant’s grass-keep arrangement was a grazing licence. It gave neither exclusive possession nor occupation sufficient to create identifiable permissive rights over the retained land. Further, the fencing covenant and the stipulated gate at A–B showed a contrary intention: gate X was to remain part of a secure boundary, with A–B as the opening onto the land conveyed. That excluded an implied right through gate X.

5. The trial judge was entitled on the evidence to find that the 2003 agreement restricted farming use south of the cross-over gates to pedestrian use. The judge was also entitled to find that animals could not be driven between the double gates and the cross-over gates. The parties had conceded at trial that they were estopped from denying the agreement’s terms; the claimant could not reopen the nature of that estoppel on appeal.

6. The declarations reflected those findings and were within the judge’s discretion to prevent future disputes. An admitted 2008 obstruction by farm machinery justified the injunction restraining obstruction of the track.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal: [2011] EWCA Civ 1099.
• Plymouth County Court — His Honour Judge Cotter QC made the order appealed from on 6 October 2010 and gave a further judgment on the form and effect of the order on 23 August 2010.