Gary David Harry Hambling & Anor v Garry Lawrence Wakerly & Anor

An easement must be construed objectively, primarily by reference to the natural and ordinary meaning of the grant read in its documentary and factual context. Where a grant gives access to a field but expressly provides that the access road is not to be used for access to a cottage, the prohibition ordinarily applies to access both to and from the cottage. The court may make implicit wording explicit where necessary to give the grant sensible effect. Ancillary use cannot be invoked to defeat clear words which prohibit access to the alleged ancillary premises.

The claimants appealed from a decision of HHJ Walden-Smith in the County Court at Norwich concerning the construction of an easement in a Land Registry transfer dated 30 March 2001. The transfer granted a right of way over a track for access to a field, subject to the track being used for access to the field and not to Garden Cottage.

The claimants argued that the easement permitted movement between Garden Cottage and the field, including for purposes ancillary to use of the field. The central issues were the proper construction of the grant, the significance of the surrounding topography and transfer provisions, and whether ancillary use could overcome the express restriction.

1. Appeal dismissed. The easement did not permit use of the track for access between Garden Cottage and the field.
2. The correct approach was objective construction of the transfer. The court began with the natural and ordinary meaning of the words, read in the context of the transfer and the locus in quo. Subjective intentions were not relevant to construction, although evidence of intention could be used to rebut an allegation that an objectively available construction was absurd.
3. The grant contained a general right of way followed by an apparently absolute qualification. The reference to access to the field was necessarily bidirectional. Consistently with Giles v Tarry [2012] EWCA Civ 837, a one-way right of access was unlikely absent clear wording. The qualification therefore meant that the track could not be used for access to or from Garden Cottage.
4. The surrounding physical features, including the maintained boundary hedge and the arrangement of the cottage and track, supported rather than displaced that construction. The covenant to maintain the boundary hedge was a further pointer against an intended route between the cottage and the track.
5. The ancillary-use argument also failed. The express prohibition applied wherever the user was coming from and left no scope for an ancillary-use qualification. It was therefore unnecessary to decide whether the cottage was ancillary to the field; in any event, the judge below was right to regard the two areas as having independent purposes.

• High Court, Chancery Appeals List: Sir Anthony Mann dismissed the appeal from the decision and order of HHJ Walden-Smith dated 30 September 2021.
• County Court at Norwich: HHJ Walden-Smith held that the easement did not permit access between Garden Cottage and the field.