Giles v Tarry & Anor

Permission to appeal may be granted where the proposed grounds disclose serious arguments and a real prospect that the appellate court will find that the lower court erred. The court considered it arguable that a right of way limited to the benefit of specified land could not be used through a public highway as part of a manoeuvre enabling grazing on adjoining land. It also considered, albeit narrowly, that regular annual use of a barn for lambing might not be “temporary” under a restrictive covenant. The substantive issues were left for the appeal.

The applicant challenged findings and orders made by HHJ Harris QC after a trial in the Northampton County Court concerning a right of way and the use of a small barn or hovel. The judge had held that the respondent’s use of the hovel did not breach the covenant and that a particular route involving the public highway did not impermissibly use the right of way for the benefit of adjoining land.

The applicant sought permission to appeal on those two issues only. The central question was whether the proposed challenges disclosed a real prospect of success.

1. Permission granted. Lord Justice Kitchin granted permission to appeal on both proposed grounds.
2. The first ground concerned a right of way reserved for the benefit of specified land only. The applicant argued that the lower court had wrongly compartmentalised the respondent’s conduct by treating the movement of sheep onto the public highway and back into the paddock as interrupting the use of the right of way. The whole sequence could arguably have been undertaken to enable grazing on land outside the permitted benefit. The court regarded these as serious arguments and found a real prospect that the Court of Appeal might conclude that the judge had erred.
3. The second ground concerned the covenant restricting use of the hovel, other than temporarily, to normal agricultural purposes. The applicant argued that regular and systematic annual use for lambing was neither transient nor directed to a passing need. Lord Justice Kitchin was persuaded, just, that this issue also disclosed a real prospect of success.
4. The judgment determined only the permission application. It did not finally decide the proper construction of the right of way or the meaning and application of “temporary” in the covenant.

• Court of Appeal (Civil Division): On 30 November 2011, permission to appeal was granted on two issues. [2011] EWCA Civ 1553
• Northampton County Court: HHJ Harris QC made the challenged order on 2 December 2010 after trial.