Banks & Anor v Blount

On an appeal from a trial decision, the court reviews the decision rather than rehearing the evidence. Findings of fact will ordinarily be disturbed only where unsupported by evidence or ones no reasonable judge could make. A right of way is defined by the grant construed in its factual context, including the historical use of the route. A physical obstruction substantially interferes with the right where users must leave their vehicles and move it to pass. The duration and terms of an injunction may properly reflect the defendant’s history of obstruction and the need to protect the right of way. An injunction requiring ordinary tree maintenance need not specify a rigid cutting schedule where common sense supplies the necessary standard.

The claimants owned a yard benefited by a right of way over land owned by the defendant. Following a trial before HHJ Tindal in the Worcester County Court, the claimants obtained declarations, damages and injunctions concerning the width and obstruction of the right of way. The defendant appealed on issues concerning the width of the route, a rebar fence, trees interfering with access and a telephone line, damages, and the scope and duration of the injunctions. The central issue was whether the trial judge’s factual and discretionary decisions were wrong or procedurally unjust.

1. Appeal dismissed. The appellate jurisdiction under CPR Part 52 permits intervention where the decision was wrong or procedurally or otherwise unjust, but the appeal is not a rehearing. Findings based on oral evidence should be overturned only where there was no supporting evidence or no reasonable judge could have reached them: Perry v Raleys [2019] UKSC 5, at paras 49–52.
2. The trial judge was entitled to define the width of the right of way by reference to the grant and the factual matrix, including the beaten tracks created by HGVs and other vehicles before and at the date of the grant. The 4.5 m width through the car park was justified because vehicles would have taken slightly different tracks. The reference to verge space at the chicane was also supportable on the evidence, particularly the likely use of the verges by large vehicles turning.
3. The rebar fence substantially interfered with the right of way. The evidence supported the finding that the gap was sometimes too narrow for vehicles, requiring users to leave their vehicles and move a heavy post with a concrete base. The authorities concerning gates which remained open or unlocked did not undermine that conclusion. The damages award was modest but disclosed no proper basis for appellate intervention.
4. The finding that overgrown trees interfered with the right of way and damaged the telephone line was supported by the evidence. The complaint that there was no evidential basis was therefore without merit.
5. The three ten-year injunctions were justified by the defendant’s long history of obstruction and unneighbourly conduct. The mandatory tree-maintenance injunction was not impermissibly vague: the required timing and method of pruning could be addressed by common sense and the injunction matched the claimants’ rights.
6. The appeal was dismissed on all grounds. The court declined to make a civil restraint order under CPR r 52.20(5) and (6), but issued a warning. The court also criticised the failure to comply with the appeal-bundle and skeleton-argument requirements.

• High Court (Queen's Bench Division): appeal from the decision of HHJ Tindal in the Worcester County Court dated 4 May 2021; appeal dismissed.