Dutta & Anor v Hayes

The meaning of a right of way must be determined objectively from the language of the grant and its factual matrix. Where the grant permits use for the agricultural use of land, grazing horses remains agricultural use, including reasonable associated access for transport, fodder, veterinary care, farriers, suppliers, contractors and staff. Stabling horses overnight or bringing in feed does not necessarily change that character. The operation of a stud farm, however, falls outside the ordinary and statutory meaning of agriculture where it is a distinct commercial breeding operation. Damages may be awarded instead of an injunction where an injunction would be oppressive or impractical. A contribution to repair costs must reflect all relevant circumstances, not merely actual use.

The claim concerned a right of way over a track crossing the claimants’ land to the defendant’s agricultural land. The grant permitted use of the track at all times, with or without vehicles, for the purpose only of pursuing the agricultural use of the defendant’s land. The defendant used the track for grazing and equestrian activities and later operated a commercial stud farm. The claimants contended that access connected with breeding, stabling and operating the stud farm exceeded the grant. The court had to construe the grant, determine the permitted scope of equestrian use, decide the appropriate remedy for unauthorised use, assess compensation, and apportion repair costs.

1. Construction of the grant. The court applied the objective approach to construction stated in Rainy Sky S.A. v Kookmin Bank [2011] UKSC 50. The words “pursuance of the agricultural use of the land” were ambiguous and required consideration of the factual matrix, including the use to which the dominant land was put or might reasonably have been expected to be put when the grant was made.
2. Scope of agricultural use. Grazing horses was agricultural use in ordinary English and under the statutory definition considered by the court. That use remained agricultural where horses were kept in a stable overnight or during bad weather, or where fodder had to be brought to land suitable for grazing. Accordingly, use of the track for transporting horses to and from the land, carrying fodder, and access by vets, farriers, suppliers, contractors and staff was permitted.
3. Limit of the easement. The operation of a stud farm was distinct from grazing and fell outside the ordinary, statutory and case-law meanings of agriculture. It was also outside any relevant convention existing when the grant was made. The defendant therefore had no right to use the track for access to and from the stud farm.
4. Remedies and financial consequences. A declaration was not made because it would add little to the wording of the grant. An injunction was impractical at that stage because the stud operation could not simply be stopped. Damages were assessed at £100 per month for 25 months, totalling £2,500. The defendant was ordered to contribute 60 per cent of the repair costs. A surveyor’s decision requiring the defendant to bear all repair costs would have been a manifest error because actual use was relevant but not determinative, and the claimants’ obligations, control of maintenance, weather and delay also had to be considered.