Giles v Tarry & Anor

The scope of a deeded right of way depends on the grant and on the substance and intention of the claimed use. A user cannot rely on artificial or colourable manoeuvres to make a way benefiting one tenement serve another. The court examines the overall operation, not isolated physical movements. Where a covenant permits animal use only on a temporary basis, temporary remains an ordinary, context-dependent word. Whether a use is temporary is a question of fact and degree. Regular or recurring use does not automatically make a use permanent.

Mr Giles owned the farmhouse, outbuildings and driveway conveyed in 1975. Mr Tarry owned adjoining fields, including the Paddock and the Green Land, and had the benefit of a right of way over the driveway for the benefit only of the land edged red. A separate covenant restricted use of a hovel to normal agricultural purposes, excluding keeping animals except on a temporary basis.

After earlier disputes, HHJ Harris QC delivered an oral judgment on 2 December 2010. He declared that sheep could be driven over the driveway into the Paddock, taken out through a gate onto the public highway, re-entered through that gate and then allowed to graze the Green Land. He also held that the existing use of the hovel for lambing, treatment, winter feeding and emergencies was temporary. Mr Giles appealed against both declarations.

Appeal allowed in part. The appeal succeeded on the right-of-way issue and failed on the covenant issue.

1. The scope of a right of way granted by deed is a matter of interpretation. The court may consider the physical features of the land at the date of the grant. The governing inquiry is what, in substance and intention, is the claimed use. The principle in Harris v Flower (1904) 91 LT 816, supported by Skull v Glenister (1864) 16 CB (NS) 81, Williams v James (1867) LR 2 CP 577, Peacock v Custins [2002] 1 WLR 1815 and Das v Linden Mews Ltd [2002] EWCA Civ 590, is not confined to actual physical movement.
2. Mr Tarry’s objective was to graze the Paddock and Green Land together. The movement through the public highway was an artificial and colourable device forming part of one continuous operation. In substance and intention, the driveway was being used to serve both fields as a single agricultural unit. That exceeded the grant, notwithstanding that individual stages of the movement could be lawful when viewed separately. The appeal was therefore allowed on this issue.
3. Lewison LJ additionally reasoned that a public highway is not another tenement for the purposes of the principle, and that a right of way may generally be used to reach the highway from the dominant land. That did not validate the composite operation. The court deliberately left other hypothetical questions unresolved.
4. The meaning of temporary in the restrictive covenant was context-dependent. It was an ordinary English word with no single legal meaning. Whether the use was temporary was a question of fact and degree. The County Court judge was entitled to conclude that the existing seasonal and occasional uses were temporary. The appeal on this issue was dismissed. Lewison LJ also observed that restrictions imposed by a seller on the buyer’s use of land should be expressed clearly, with ambiguity favouring greater freedom.
5. The declaration concerning the right of way was rescinded and replaced by a declaration that the described use of the driveway was unlawful.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 837, the appeal was allowed concerning the right of way and dismissed concerning the hovel covenant.
• Northampton County Court: HHJ Harris QC, in an oral judgment dated 2 December 2010, made declarations permitting the challenged sheep movements and the existing temporary uses of the hovel.