Churston Golf Club v Haddock

An obligation to maintain a boundary fence can constitute a fencing easement which runs with the land. Such an easement may be created by express grant in a conveyance, even where the clause is expressed as a covenant. The rule in Austerberry v Corporation of Oldham does not prevent this, because it concerns positive covenants rather than grants. Construction depends on the objective intention shown by the conveyance and its surrounding context. Words such as “forever hereafter” may support an intention that the obligation benefits the neighbouring land and binds successors. Section 79 of the Law of Property Act 1925 is not the mechanism by which the burden becomes an easement where an easement has been granted.

Mr Haddock, the tenant of Churston Court Farm, claimed the benefit of a 1972 conveyance requiring the purchaser of neighbouring land to maintain a substantial stock-proof boundary fence on its land. Churston Golf Club, the successor leasehold proprietor of that land, disputed both the legal possibility of a fencing easement and the construction of the clause.

HHJ Carr, sitting in the County Court at Torquay and Newton Abbot, found that the clause created a fencing easement and that its burden passed to the Golf Club. The Golf Club appealed to the High Court. The central issues were whether a fencing easement could be created by express grant and whether the clause had that effect.

1. Appeal dismissed. It is legally possible to create a fencing easement by express grant in a conveyance.
2. The Court of Appeal authorities, including Jones v Price, Crow v Wood and Egerton v Harding, established that a fencing obligation in the nature of an easement can exist, run with the land and have its origin in grant. The fact that a grant may be improbable does not make it legally impossible.
3. The rule in Austerberry v Corporation of Oldham prevents a positive covenant, as distinct from a grant, from running with the land. It does not apply where the relevant provision is properly construed as a grant. Rhone v Stephens was distinguishable because it concerned whether a statutory word-saving provision could turn an ordinary positive covenant into a new positive easement, rather than a fencing easement already recognised by law.
4. The use of the word “covenants” is not conclusive. A clause in a conveyance may take effect as a grant of an easement if that is its objective effect. The four requirements for an easement were satisfied: there were dominant and servient tenements; the right accommodated the dominant tenement; the tenements were separately owned or occupied; and the right was capable of being granted.
5. On construction, the words “forever hereafter”, the obligation to maintain the fence at the purchaser’s expense, and the surrounding circumstances showed an objective intention that the obligation should bind the owners or occupiers of the purchaser’s land for the benefit of the neighbouring land. Sugarman v Porter did not compel a different result because its conveyance contained materially different indications that the covenants were not intended to benefit the land.
6. The burden passed because an easement had been granted, not because section 79 of the Law of Property Act 1925 converted the covenant into an easement. Section 79 was a word-saving provision and did not reverse Rhone v Stephens.

• High Court (Chancery Division) — [2018] EWHC 347 (Ch): Birss J dismissed the appeal and upheld the finding that the 1972 clause created a fencing easement binding the Golf Club.
• County Court at Torquay and Newton Abbot — HHJ Carr, judgment dated 8 December 2017: found for Mr Haddock and held that the Golf Club owed the fencing obligation.