Churston Golf Club Ltd v Haddock

A professionally drafted conveyance expressed as a covenant to maintain boundary fences remains a covenant unless, read objectively in context, it grants an easement. References to the covenantor’s successors do not by themselves alter that construction. A so-called fencing easement is anomalous because it imposes a positive obligation on the servient owner rather than conferring an ordinary right over land. Section 79 of the Law of Property Act 1925 is only a word-saving provision. It cannot convert a positive fencing covenant into an easement or make its burden run with the land. The Court left open whether a fencing easement can be created by express grant.

The Golf Club appealed against the decision of Birss J, reported at [2018] EWHC 347 (Ch), which had affirmed a County Court decision requiring it to erect and maintain a stock-proof boundary fence and awarding damages. The claim arose from a 1972 conveyance containing a covenant by the purchaser and its successors to maintain boundary fences. The lower courts construed clause 2 as creating a fencing easement enforceable against successors in title. The Golf Club challenged that construction and argued that an easement of fencing could not be created by express grant. The central issues were whether clause 2 was a covenant or an easement and, if an easement, whether express grant was legally possible.

Appeal allowed. The Court of Appeal, in the leading judgment of Patten LJ agreed by Baker LJ and Nugee J, held that clause 2 created a covenant to maintain fencing, not a fencing easement.

1. An ordinary easement is a right over land in separate ownership, appurtenant to and accommodating the dominant tenement and capable of forming the subject matter of a grant. A so-called fencing easement is anomalous. It does not confer a right to do something on the servient land or prevent interference with an ordinary easement. It imposes a positive obligation on the servient owner which the adjoining owner may enforce.
2. The conveyance was professionally drafted. Its language and structure showed that the parties understood the distinction between grants and covenants. Clause 2 was framed in covenant language, as was the comparable fencing obligation in clause 3. The reference to the purchaser and those deriving title under it was insufficient to convert the covenant into an easement. An express easement would ordinarily have been granted expressly. The conventional meaning of the words was not displaced by the context: see [2015] AC 1619.
3. Section 79 of the Law of Property Act 1925 is a general word-saving provision. It does not convert a positive covenant into an easement or make its burden run with the land. The burden of clause 2 therefore did not pass to the Golf Club. The contrary reasoning below was inconsistent with Austerberry v Oldham Corporation (1885) 29 Ch.D. 750 and Rhone v Stephens [1994] 2 AC 310.
4. The Court did not decide whether a fencing easement can be created by express grant. It was bound by Crow v Wood [1971] 1 QB 77 on the effect of section 62, but further consideration of the issue was unnecessary once clause 2 had been construed as a covenant.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 544, the appeal was allowed and clause 2 was construed as a covenant rather than a fencing easement.
2. High Court: Birss J dismissed the Golf Club’s appeal in [2018] EWHC 347 (Ch) and affirmed the County Court’s construction of clause 2 as a fencing easement.
3. County Court at Torquay and Newton Abbot: HH Judge Carr held that the Golf Club was obliged to erect and maintain a substantial stock-proof boundary fence and awarded Mr Haddock £1,000 damages.