Manor Farm Barns (Essington) Ltd v Clair

In construing a grant of an express right of way, the court must ascertain the meaning conveyed by the words of the instrument to a reasonable person with the relevant background knowledge. Context may reveal a linguistic mistake, but the court must be slow to depart from the natural language of a formal conveyance. Commercial common sense cannot be used to rewrite an imprudent bargain.

Where a right of way is granted over “part” of a defined driveway, a physical feature shown on the plan may identify the extent of that part. The appellate court should exercise particular caution before overturning a trial judge’s construction of a conveyance, which is ordinarily a conclusion of mixed fact and law.

The respondent owned land forming part of a residential development. The appellant owned a cottage transferred to him by the developer under a 2006 Transfer. The Transfer granted a right of way over “part” of a shared driveway shown in blue on an attached plan.

The appellant contended that the right extended over the whole of the blue area, including beyond gates shown on the plan, principally to facilitate vehicle parking and turning. The County Court construed the right as extending only from the highway to the gates and dismissed the counterclaim. The appeal concerned the proper construction of the Transfer and whether the trial judge had failed to apply constructive interpretation.

1. Appeal dismissed. The trial judge was entitled to construe the right of way as extending from the highway only to the gates shown on the Transfer plan.
2. The Transfer expressly granted a right of way over “part” of the Shared Driveway. The trial judge’s construction gave effect to that language and used the gates as a logical physical boundary between the part serving the appellant’s cottage and the part leading to other dwellings.
3. The surrounding circumstances supported that construction. The appellant had no granted parking right, had space to park at least one car and had room to turn a vehicle before the gates. The right was expressly exercisable “with or without vehicles” and supplied the necessary access from the cottage to the highway.
4. The appellant’s proposed construction required the court to disregard or alter the words “part of”. A formal transfer of land containing an express easement required a strong case before the court could conclude that something had gone wrong with its language. Commercial common sense did not justify relieving the appellant from the consequences of an imprudent purchase.
5. Constructive interpretation was not a separate exercise. It formed part of the single task of interpreting the agreement in its context. The trial judge had undertaken that task by considering the wording, the plan and the relevant background facts. There was no basis for saying that he had failed to consider the argument.
6. The construction was a conclusion of mixed fact and law. An appellate court should be particularly cautious before second-guessing a trial judge who had heard the evidence. The remaining grounds, concerning interference with the right of way and access to the rear garden, did not arise after the construction issue had been resolved.

• High Court (Queen’s Bench Division): Appeal from the order of HHJ Gregory in the County Court at Walsall dated 22 October 2019. Appeal dismissed.