Well Barn Shoot Ltd & Anor v Shackleton & Anor

The claimants are the owners of the Well Barn Estate (“the Estate”) at Moulsford, Oxfordshire. Mr Osmond is their sole shareholder and managing director. The estate is predominantly a shooting estate and extends to approximately 1,500 acres. The defendants are the owners of Warren Farm, over which the Estate has shooting rights. The farm consists of a farmhouse, two barns and a number of outbuildings in a farmyard, together with an area of garden and grazing land amounting to about 13 acres.

Mr Shackleton (described by the judge as a forceful and “cantankerous” personality, but a straightforward witness) has occupied Warren Farm since 1947, when he took a tenancy from the Estate. It was then a mixed farm of some 300 acres, the sporting rights of which were reserved to the Estate, which was owned by the Vandervell Family. In 1989 the Vandervells sold the Estate to Mr Thomas Greenham and his wife. Their attempt to increase the rent on Warren Farm (unchanged since 1948) was greeted by “lack of amusement” on the part of Mr Shackleton, then 70 years of age. Subsequent negotiations led to him surrendering his tenancy of the farm, and acquiring the freehold of the area of the farm buildings and some adjoining land. His son had by then established an egg production business from the farm buildings, and that continued after the sale.

Warren Farm lies on the western edge of the estate. It is almost entirely enclosed by farmland, and is connected to a public highway called the Ridgeway by a track called Warren Farm Track (“the track”), the base of which is about 10 feet in width. On each side of the track is a grass verge of varying width bounded by a post and wire fence separating it from a field on each side. On the western side is a field of some 8 or 9 acres called Pond Field (or “the green field”). The track, the verges and the green field are in the title owned by the defendants. On the eastern side of the track is Warren Field (or “the blue field”), which is owned by the Estate.

During the tenancy the Estate had unrestricted access to all its lands directly through Warren Farm. Access to the blue field had prior to 1991 traditionally been gained from an entrance just inside the farmyard. It could also be gained from the Estate lands to the east but the trek to that field across those lands was long and convoluted.

At the time of the sale, the north west boundary of the blue field was adjusted, and the entrance into the blue field from the farmyard was lost in the redrawing of the boundary line. How it was to be replaced forms the subject of the first issue before us. As the judge found: “the one thing that the Shackletons were adamant about was that the Estate should not have vehicular access for agricultural purposes to or through the farmyard”.

The transfer of the freehold of Warren Farm to the Shackletons was dated 28th June 1991. Two aspects are relevant, the reservation of the sporting rights, and the right of way over the track. The sporting rights were reserved as follows:

The transfer also reserved in favour of the Estate a vehicular right of way along the track in the following terms:

Although the available copies of the plan are not very clear, the judge was satisfied, having inspected the original Office Copy Entries and the copy plan that was included in the Charge Certificate, that the brown colouring applied to the track alone, and did not cover either verge. However, as he also accepted, the plan attached to the travelling draft of the transfer had showed hatching in brown covering the verges as well as the track itself and the words “Hatching denotes right of way reserved (clause 11.3)”. There was no evidence of how this came to be changed in the final version; the transfer itself had been engrossed by Mr Shackleton’s solicitors, and sent direct to Mr Greenham and his wife for execution, which they did without reading the transfer or looking at the plan.

This left open the question how, if at all, access from the brown track was to be gained to the blue field, retained by the Estate. As the judge found, Mr Shackleton’s position (which he maintained until shortly before the trial) was:

A dispute about access arose almost immediately, as the judge explained:

Correspondence between the land agents on each side followed without resolution of the dispute. However, the dispute did not come to a head at that time, because Mr Greenham had no immediate need for access from the track, and he was considering selling the Estate. In 1993 he sold to a company called Bilton Agricultural Investments Limited, and in 1999 Bilton sold to the claimants.

By this time Mr Shackleton, who was nearly 81 years of age, was considering whether to sell, and was exploring the potential of the site. In September 1999 Mr Thomas, a local developer, offered £1 million for the site as a whole, subject to the granting of planning consent for re-planning the existing house and conversion of the two barns into two additional residential units. Mr Beales of Savills, who were advising the estate, became aware of the possibility of a sale, and thought there might be an opportunity to benefit the Estate. He was instructed to investigate.

The judge gave a vivid description of the state of Warren Farm at this time (drawing on Mr Beale’s account):

Following Mr Beales’ advice, Mr Osmond agreed to make an offer to Mr Shackleton. As the judge found, he had two main concerns:

On 29th October 1999 Mr Beales wrote to the Shackleton’s agents, offering £800,000 for the Farm. The letter also drew attention in forcible terms to the possible effect of the sporting rights:

In April 2000, Mr Shackleton applied for planning permission, which was eventually granted on 14th June 2001. It was a full permission (not “outline” as it has been described in some of the papers) for “change of use of redundant farm buildings to two residential units”, on a site of 0.3ha, excluding the drive. The conditions required submission for approval of details of landscaping, fences, hard surfaces and external lighting; and also precluded the provision of any “building or enclosure, swimming or other pool… within the curtilage of the dwelling house” without consent. It was subject to a section 106 agreement, which required, before commencement of residential occupation, cessation of the chicken farm use, and demolition of all the buildings on “the blue land”, which was thereafter to be used for grazing only. The attached plan defined the blue land to include everything except the immediate curtilage of the existing farmhouse (“the green land”), and that of the two barns (“the red land”). Comparing this with the photographs, one can see that this would involve removal of four substantial chicken-sheds, and associated clutter, to the south-west of the barns, and two to the north-west. The built area would then be confined to the existing farmhouse and garden, and the site of the two barns. The judge commented:

Parallel with these events, disagreements over the access came to a head. Mr Osmond wished to improve the agricultural side of the business, and required proper access to his lands. The judge noted:

He arranged to put in a gate at this point. Mr Shackleton challenged his right to do so. His solicitor in a letter dated 3rd December 1999 explained that the right of way was “restricted to the track coloured brown which stopped at the farmyard entrance”. Notwithstanding that, a 24ft gate was installed, after removal of some of the conifers, at point A at the top of the track. The gateway was of two galvanised tubular steel gates; each 12 foot in width and attached to a steel post. The gates and posts were on the blue land and opened inwards. Correspondence followed but, as the judge said, “petered out” at the end of January. After completion of the autumn cultivations in December 1999 the claimants had no further need to use the gateway for some time and the issue became quiescent.

The problem recurred in the Spring and culminated in what was described as the “stand off”. The detail is unnecessary for present purposes. It began on the evening of Friday 28th April 2000, when Mr Cull and Mr Osmond were attempting to pass from the blue field down the brown track and discovered that the 24 foot gate had been wired up. It concluded on the morning of Monday 1st May 2000, with a confrontation described by the judge:

On 2nd May 2000 the claimants instituted proceedings in the Oxford County Court claiming appropriate declarations and an injunction. The defendants denied the allegations. They claimed initially that the right of way went nowhere, and counterclaimed for damages for the trespass. They also counterclaimed for a declaration relating to the effect of the proposed development on the Estate’s shooting, expressed in these terms:

Two issues remain live before us:

The claimants’ claim for declaratory relief as to the extent of their right of way over a farm track owned by the defendants, alternatively rectification of the transfer.

The defendants’ counterclaim for declaratory relief in respect of their entitlement to develop Warren Farm for residential purposes, notwithstanding the claimant’s sporting rights over it.

On the first issue, as it has developed, the ground between the parties has narrowed, for practical purposes, almost to vanishing point. Both started from extreme positions from which they since have resiled. The defendants originally claimed that there was no right of access at all from the track to the blue field. However, by their defence they had accepted that there must be such a right, by necessary implication, the only question being its position and size. Before us, Mr Furber QC also accepted that, even if the right were confined to the brown track shown on the conveyance, that did not mean that there could be no incursion onto the adjoining verges; there was to be implied “some degree of tolerance” (see V. T. Engineering v R Borland Ltd (1968) 19 P&CR 890, 895) appropriate to a track of this nature, for example, occasional use of the verge for passing vehicles, or the overhang required for large agricultural machinery.

On the other side, the Estate in its defence originally sought a declaration that it was entitled to a right of way giving access onto the blue field at any point along the track. However, before us Mr Mann QC accepted that the access must be subject to the limits of reasonableness, and accordingly that the declaration should be limited to access at Point A and “such other points as shall from time to time be a reasonable exercise of the right of way”. He necessarily puts it in that general way, because there is no present need or wish for the Estate to have another access; nor is there any suggestion that the present access is other than “reasonable” for their present or currently foreseeable purposes. One can, of course, speculate as to circumstances in which they might want another access, for example, a subdivision of the blue field. However, once it is accepted that reasonableness is the guide, I am doubtful of the utility of considering in the abstract what might be reasonable in hypothetical events. In any event, I am satisfied that the judge was correct on this point for the reasons he gave.

The judge held, first, that on the true construction of the transfer, the right of way extended only to the edges of the track, as shown by the brown colouring. He considered that the plan was clear and it was not stated to be “for the purposes of identification only”; the extent of the right of way was defined by the limitation of the brown markings to the track alone. However, he held secondly that the express right of way along the track included a right of access to the blue field, as a necessary implication. Apart from the obvious point that it cannot have been intended to give an access to nowhere, he took into account the obligation imposed on the Estate to contribute to the maintenance of the track for its use by agricultural vehicles, thereby implying some purpose to that use. He thought that use of agricultural vehicles -

With regard to size, he rejected the defendants’ argument that, given the width of the track, a width of no more than 12 to 14 feet would be reasonable:

However, he rejected the case for more extensive rectification to show the right of way extending over the verges, based on the hatching shown in the travelling draft. The claim for rectification was based on either common mistake, or unilateral mistake on the part of Mr Greenham, known to the Shackletons. The judge rejected the first, on grounds which are not subject to appeal. He was satisfied that there was no common intention to that effect; he had no doubt that Mr Shackleton did not have it in his mind to grant either a right of way over the verges or unrestricted access to the blue field.

As to the issue of unilateral mistake, the judge accepted, both on the contemporary correspondence and from Mr Shackleton’s own evidence, that he was aware that the Estate had made a mistake, but he held that this was limited to whether or not there was an access to the field:

Mr Mann challenged the judge’s conclusions, both as to the construction of the grant, and as to unilateral mistake. On the former, he argued that there was nothing in the grant to limit the access to any particular point, and that the only limitation should be that of reasonableness (for which proposition he relied on Pettey v Parsons [1914] 2 Ch 653, 669, per Pickford LJ). In my view, however, the judge was entirely correct. In the absence of any specific provision in the transfer, an access to the field was to be implied as a matter of necessary implication, since otherwise the grant would have been pointless. There was no necessity to imply more than one access. As to its position, since the right had been granted over the whole of the track, the natural assumption would be that the access into the field would be at its end, that is at point A. That view was reinforced by the other factors to which the judge referred. The size was determined by the agricultural use which was in contemplation. The passage in Pettey v Parsons does not help the argument. Pickford LJ explained “reasonable access” as “such access as will give reasonable opportunity for the exercise of the right of way, or… as will not be a derogation from the grant of the right of way.” The access presently provided meets both tests.

Equally, I think the judge was right to reject the case for more extensive rectification, based on unilateral mistake. There was no dispute that rectification may in certain circumstances be ordered, where there has been no common mistake, but one party has proceeded on a base which the other knew to be mistaken (see the authorities discussed in Commission for New Towns v Cooper (GB) Ltd [1995] Ch 259, 278-80, per Stuart Smith LJ). The key is whether it would be unconscionable for the party who had knowledge of the other’s mistake to rely on it. On the judge’s findings, Mr Shackleton was aware of the Estate’s mistake in failing to provide an access, and it would have been unconscionable for him to take advantage of that mistake; but the mistake went no further than that.

Mr Mann argues that, once it is found that Mr Shackleton was aware of a mistake in relation to the colouring of the plan, he must take the full consequences of the mistake, and therefore accept the position as it would have been in law if the final plan had been coloured as intended. However, I see no basis in principle for the last step. In judging the “conscionability” of Mr Shackleton’s actions, what matters is what he believed, not how a lawyer would have interpreted the result.

In any event, it is far from clear that the hatching in the earlier draft was intended by the lawyers to have the effect for which Mr Mann argues; or, if it was, that it represented the wish of either party. Mr Shackleton’s position was quite clear. As the judge found:

The evidence of Mr Greenham’s state of mind was less clear, as the judge observed:

In these circumstances, it was not unconscionable, in my view, for Mr Shackleton to hold to the position, which he had clearly and openly taken in the negotiations.

In order to set this part of the case in context, it is necessary to turn back for a moment to the history of the dispute. The proceedings were begun in May 2000. By then the Shackletons had applied for planning consent (on 3^rd April 2000). On 27^th September 2000, the planning authority resolved to grant permission, subject to a section 106 agreement, which was not concluded until May 2001 (the permission, as already noted was issued on 14^th June 2001). On 21^st December 2001, the Estate’s solicitors (Morgan Cole), writing in connection with preparations for trial, raised the question of conflict between the development and their clients’ shooting rights, expressing the view (said to be supported by Counsel) that:

The proposal to transfer to the High Court was agreed, and there followed further discussion on procedural points. This culminated in a discussion of the costs of the amendments raising the sporting rights issue, on which the Shackletons’ solicitors said:

In the amended pleadings, the form of declaration claimed by the Shackletons (cited above) echoed Morgan Cole’s initial letter, by seeking a determination that “no element of the proposed development… will necessarily cause…” a breach of the sporting rights (emphasis added). The Estate’s amended reply (para 16B) said that the declaration should be refused, both because it was reasonably foreseeable that the development, if carried out, would involve a substantial interference with the shooting rights, and also because, as a matter principle, the grant of a declaration would not be proper exercise of the court’s discretion.

The judge approached the matter on the agreed basis, taken from the leading case of Peech v Best [1931] KB 2, 10 per Scrutton LJ:

He considered first whether the proposed development would constitute a “substantial interference” with the rights granted, since if this issue was decided in favour of the defendants, the question whether the change was “fundamental” would not arise. He treated this as one of “fact and degree”. He noted, however, that the only rights granted by the Shackletons were those over Warren Farm itself, as distinct from the shooting rights enjoyed by the Estate as a whole (some 1500 acres), and accordingly, what had to be considered was any derogation from the rights over Warren Farm itself. He accepted, however, that the effect of a substantial interference of sporting rights within the Farm boundary might “only become evident and measurable on the adjacent drives on the other side of the Farm boundary.”

In considering this issue he was assisted by detailed expert evidence on both sides, and an “Agreed Game Shooting Guide”. He was concerned with the five partridge drives, of which two were relevant to Warren Farm (“Shack’s Farm Drive” and the “Lowbury Drive”). He explained the significance of Warren Farm:

The concerns of the Estate related both to physical changes, in that enclosure of the Farm would impede the ability of the beaters to drive the partridges; and also to a “social” issue, as explained by their expert:

The judge concluded that there were only two activities which were relevant to the issue before him:-

With regard to the “social” objection, he thought it as likely as not that purchasers of the houses would be sympathetic to country pursuits; and that there would in any event be a remedy if they wilfully obstructed beaters, or carried out activities designed to interfere with the exercise of the Estate of its sporting rights on its own land. The proposed declaration would not give future occupiers “carte blanche” to act in disregard of the rights of the estate. He also took into account the fact that existing use of the farmhouse was residential, and that the Estate had no control over future occupants.

He concluded that two matters had potential for giving rise to a “substantial interference”. The first was the construction work which would be “extremely noisy and disruptive” in the early stages, when there would be movements of heavy machinery required to clear the land. The second was the potential for obstruction by fences, the form of which was still subject to approval by the planning authority. He considered that, subject to appropriate undertakings, the two points should not preclude the grant of a declaration:-

He accordingly indicated that he was minded to grant a declaration, but invited counsel to seek to agree a draft of suitable undertakings and a declaration, along the lines set out in the judgment, stating that, if they could not agree the terms, he would make a ruling himself.

At a further hearing, he was provided with draft orders prepared by both sides. He also had further submissions as to the appropriateness of granting a “negative declaration”. As to that he said:

The main points to note about the order are the following:

The Shackletons entered into covenants for themselves and their successors in title:

limiting to a height of 1 metre any fences or enclosures on the land edged blue on the S 106 agreement plan (that is the areas planned for clearance, outside the immediate curtilages of the farmhouse and the two barns);

within those curtilages, imposing a similar limit, save that enclosures above 1 metre in height are permitted if the estate is provided with “a means of access to the areas enclosed thereby including in the case of any means of access capable of being locked a key to the relevant lock”;

restricting substantial building activity to the period between 7^th February and 1^st July of any year;

limiting the use of Warren Farm to residential or agricultural use, and requiring nothing to be done or permitted “whereby the exercise of the sporting rights will be substantially interfered with”.

The Shackletons undertook to use best endeavours to procure the agreement of the mortgagee bank to such covenants, and to apply for registration of the covenants in the relevant title at the Land Registry;

Subject to compliance with these undertakings and covenants, and the terms imposed by the planning authority, it was declared that development in accordance with the planning consent “will not cause substantial interference” with the exercise of the sporting rights; and that the defendants or their successors are entitled to carry out the development in accordance with the permission.

In relation to the right of way, a declaration was made as to its extent in accordance with the judgment, and an undertaking given by the Shackletons not to interfere with the use of the right of way so declared.

The notice of appeal includes a wide-ranging challenge to the judge’s conclusions, both in principle and on the facts. Before us, however, Mr Mann QC has put the main emphasis on the issue of principle. In summary, he says that this is a “negative” declaration, in that it seeks to establish the boundaries of what is permissible and thereby pre-empt any application for an injunction in the future. He says that such an order should only be made in an exceptional case, where the facts are clear, and the present was not such a case.

I agree that this is the real issue raised by the appeal. I see no basis to question the judge’s factual conclusions, based on a careful appraisal of the evidence, as to the likely impact of the proposed development on the shooting activity; nor his view that, if limited in the way proposed, it need not in itself involve so substantial an interference as to amount to a derogation from the grant, within the principles laid down by Peech v Best. Like the judge, I regard it as significant that the development would not result in the introduction of a completely new residential use, in view of the existing residential use of the Farm House. Furthermore, although that use will be intensified if the development proceeds, the area of buildings and other impediments will at the same time be substantially reduced.

The more difficult issue is whether, having reached that conclusion, he was entitled to give effect to it by a “negative declaration” in the form adopted. Mr Mann says that it was inappropriate in this case. He relies on the inherent uncertainty about the form of the development, the nature and conduct of future occupiers, and the effect of both on sporting activity. These were issues which could not properly be determined to the requisite standard on the information available to the judge; the declaration would simply foster disputes with future owners, who would argue that it in effect gave unrestricted permission for residential use.

Mr Mann accepts that there is jurisdiction to grant such a declaration, but he says that it should be exercised only in exceptional circumstances. He is able to point to several statements to that effect in the older authorities. For example, in Guarantee Trust Co of New York –v-Hannay and Co [1915] 2KB 536, 564 Pickford LJ said:

In Messier-Dowty Ltd –v- SABENA SA [2001] WLR 2040, 2050, Lord Woolf MR summarised the modern approach as follows:

Both parties relied on the decision of Lightman J in Greenwich Healthcare NHS Trust –v- London and Quadrant Housing Trust [1998] 1WLR 1749, the subject-matter of which is closer to the present. The plaintiff had acquired land in order to build a hospital. The planning permission required the re-alignment of a link road, over which the defendants had rights of way, and the land was also subject to a restrictive covenant in favour of the defendants. None of the defendants had objected to the development, and the evidence was that the re-alignment of the right of way would improve the safety and convenience of access to the public highway. However, the plaintiffs were concerned to protect themselves against possible objections in the future to re-alignment of the right of way or change of use of the land. They accordingly applied for declarations that the defendants would not be entitled to an injunction to restrain the proposed re-alignment, and that their rights if any would be limited to an award of damages for interference with the right of way or compensation for breach of the restrictive covenant. The application was unopposed save for one of the defendants, who sought only to preserve a possible right to compensation, and with whom a formula for that purpose was agreed.

The judge held that there was no right in law to re-align the right of way, but that in the circumstances it was appropriate to grant the declaration. He took into account the fact that there was no reasonable objection to the re-alignment, that the defendants had had notice and made no objection, and that the re-alignment was necessary to achieve “an object of substantial public and local importance and value” in the provision of new hospital (p 1755-6). He concluded:

As that case shows, and as Mr Mann accepts, the issues are ones of practicality and utility, rather than principle. However, he distinguishes the Greenwich case, because there the issue was clear-cut and the facts were not in dispute. As he submits:

I agree that the declaration in this case goes further than that in the Greenwich case, in that the nature of the dispute is less clear-cut. As Mr Mann says, the balance between the use of Warren Farm and the exercise of the shooting rights, is one of “fact and degree”. It is also necessary to consider whether the maintenance of that balance is susceptible to a detailed regime, such as is contained in the judge’s order. However, subject to two points of detail, to which I will refer below, it does not appear to me that the workability of the order was seriously in dispute, either before the judge or before us. The objections to the declarations were ones of general principle, and were not based on the detailed working out of the order. Indeed, the order largely follows the draft prepared by counsel for the Estate.

Mr Mann also makes, what I think is a separate point, that a declaration is inappropriate, because the issue was “hypothetical”, in that there was no-one before the court currently able and willing to carry out the development. I find this point less easy to understand. It is true of course that no developer is ready to proceed at present. This, as the Estate acknowledged in the pre-trial correspondence, is because no developer is likely to purchase the site, so long as there is uncertainty about the right to do so in face of the Estate’s objection.

However, this does not make the issue “hypothetical”. In Zamir and Woolf, “the Declaratory Judgment” (3^rd Ed.), the reluctance of the court to adjudicate on “hypothetical issues” is noted, with the following comment:

Two points of detail were made by Mr Mann. The first related to the potential for conflict between the declaration as to permitted residential use, and covenant (d) which prohibits uses which would “substantially interfere with sporting rights”. He suggests that occupants might seek to argue that the “permission” for residential development means that “normal residential use” cannot be an infringement. I do not see this as a practical problem. It is indeed implicit in the judge’s decision that ordinary residential use, subject to the restrictions in the order, would not involve a derogation from the sporting rights. Otherwise he would have refused the declaration. On the other hand, covenant (d) makes clear that this does not give “carte blanche” for any residential activity, regardless of its impact on the estate. The limits of what is acceptable cannot be precisely defined; they will depend upon reasonableness, as indeed they do now.

The other point of detail relates to covenant (b), which allows enclosures higher than one metre within the immediate curtilage, if a gate and key are provided. Mr Mann submits that the judge was wrong to think that a high wall would cease to be an infringement if there were gates, since the walls would still interfere with free access by beaters across the area. It is necessary to keep in mind that this part of the covenant relates simply to what will be the gardens of the new converted barns. I would agree with Mr Mann, that if unimpeded access through the gardens were essential to the drive, then simply providing a gate with a key would not remove the impediment. However, the mere fact that the beaters would not have unimpeded access over this limited area does not mean that there would be substantial interference with the shooting rights over the farm as a whole, particularly when one bears in mind the increased access allowed by the demolition of buildings outside the immediate curtilage. Indeed I find it a little surprising that the judge thought it necessary or desirable to include this provision. As the Shackletons’ expert observed, it would be unusual for beaters to need or wish to “blank in” a small garden attached to a house, partly because game is unlikely to be attracted to such areas, in proximity to humans. However, this was a matter for the judge’s discretion having heard the evidence.

Once it is accepted that the judge had jurisdiction to make the order, the question becomes one of discretion. As the recent authority shows this is to be judged by issues of practicality and utility. Against the background that the parties had identified the resolution of this dispute as one suitable for determination by the court, I do not think the exercise of the judge’s discretion in this case can be faulted. Clearly great care is needed in adopting such a course, in a case where the facts are in dispute. However, having reached the view that the two uses were in principle compatible, the judge was right in my view to seek a solution which would enable the residential development to proceed, rather than being frustrated by legal uncertainty. Of course, he should only have done so, if he were satisfied that the regime established by his declaration was practical and would not be a recipe for substantial disputes in the future. However, with the assistance of counsel, he clearly satisfied himself on those points.

In my view the order was one which he was entitled to make and I would dismiss this appeal.

I agree with both the reasoning and the conclusions of Carnwath LJ. If I add a few words, it is out of deference to the very good arguments addressed to us.

The appeal concerns a conflict between residential development of rural land and the valuable sporting rights reserved over it (though to an uninstructed listener the procedure described by Mr Mann QC of driving low-flying birds down a hollow of land over a battery of waiting guns might have sounded more like execution by firing squad). In the court below, it was apparent that while the development could take place in accordance with the outline planning permission which had been granted, without substantially interfering with the appellants’ sporting rights, there was no way of being sure that it would not do so. It is this doubt which was resolved by the fourth undertaking given as a condition of the second and third declarations: an undertaking, in effect, to do and to permit nothing which substantially interferes with the appellants’ sporting rights.

But Mr Mann contends that the combined effect of the undertaking and the declaration is in reality to settle nothing; indeed, it is to invite strife. He asks us to consider what will happen if the new residents have cats which, in disregard of the season, wreak their own carnage on the bird population. It would constitute from the appellants’ point of view a clear breach of the fourth undertaking; but the residents might well contend that nothing was a more normal incident of residence than cats, and that they were therefore protected by the declaration.

Mr Furber QC for the respondent points out, first, that it was at the appellants’ instigation that clarification by declaration was first sought by way of counterclaim, and that the judge had before him at trial two competing drafts from which, after further submissions, the appellants derived the final form of the undertakings which they were prepared to accept and the judge derived the consequent declaration. Secondly, and arising out of this history, Mr Furber submits that it is a mistake to start by looking for possible conflicts between the undertakings and the declaration. They are intended to be mutually supportive and should be so read. Read in this light, he submits, the second declaration records that to implement the outline planning permission will not infringe the appellants’ sporting rights, and the fourth undertaking contains a binding assurance that it will not do so.

For the reasons spelt out by Carnwath LJ, I accept that Mr Furber’s approach is the right one and that, taking it, one finds neither vacuity nor contradiction in the judge’s order. It might have been more accurate to declare that the permitted development would not necessarily infringe the sporting rights, leaving it to the undertaking to ensure that it would not do so. But that is the net effect of the undertakings and declarations, and together they serve the proper purpose of preventing further strife.

Even so, in the ordinary case – that is one which lacks the peculiar history of this one – a judge should not readily set out to anticipate trouble. The risk is that such an enterprise, rather than head off trouble, will provoke or aggravate it. To make declarations predicated upon undertakings which are proleptic in form and proactive in effect, but are made in necessary ignorance of the situations in which they will be invoked, is more often than not to court trouble. Such cases stand in contrast to those where some identifiable step can be forbidden because it either has violated or inevitably will violate one party’s rights, or can be declared lawful because it can have no such effect. In the peculiar circumstances of the present case I accept that the judge’s order, sensibly read as a whole, falls into the second of these classes.

Accordingly I too would dismiss this appeal.

I also agree.

to use their best endeavours to procure that Barclays Bank Plc, as registered proprietor of the first legal charge over the Defendants’ freehold land registered at H M Land Registry under Title Number BK297019 (“Warren Farm”), do forthwith:

give its written consent to the execution of the deed of covenant referred to in the undertaking numbered 3 below, and

deliver up to the Chief Land Registrar the Charge Certificate in respect of the said Title to enable the issue by the Land Registry of a new Charge Certificate reflecting the rectification of the Charges Register for the said Title in accordance with the Orders and directions hereinafter contained

not themselves or either of them or by their employees or any other person interfere with or obstruct or permit or suffer to be interfered with or obstructed in any way whatsoever the exercise of the right of way reserved to the Claimants’ predecessors in title by paragraph 2 of the Second Schedule of the Transfer of Warren Farm dated 28 June 1991 made between Thomas Brian Greenham and Sarah Greenham of the one part and the Defendants of the other part the full extent of which is declared in the declaration numbered 1 below

if a scheme of development is pursued either in accordance with the planning consent granted by the West Berkshire District Council on 14 June 2001 or a similar scheme forthwith and in any event prior to any disposal of any legal or beneficial interest in the whole or any part of Warren Farm to enter into express covenants by deed and apply for registration of the same in the Charges Register and Schedule of Restrictive Covenants for the Title to Warren Farm being Title Number BK297019 at H M Land Registry as follows:

at no time to construct plant or erect or to permit to be constructed planted or erected in the areas edged in blue on the plan attached to the Agreement dated 4 May 2001 made in pursuance of Section 106 of the Town and Country Planning Act 1990 and affecting land at Warren Farm (“the Section 106 Agreement”) any wall, fence, hedge, or other form of barrier or enclosure other than (i) a fence of no more than one metre in height or (ii) a fence of post and rail construction with no more than three rails or (iii) a wall fence or hedge of such dimensions and materials as shall be approved by the owners of the Estate at the date of construction planting or erection

at no time to construct plant or erect or permit to be constructed planted or erected in the areas edged green and red on the plan attached to the Section 106 Agreement any external wall fence hedge or other form of barrier or enclosure of a height above the ground in excess of one metre without providing to Well Barn Shoot Limited and Well Barn Farming Limited or their assigns and successors in title a means of access to the areas enclosed thereby including in the case of any means of access capable of being locked a key to the relevant lock

not to carry out or permit to carried out any substantial works of demolition excavation clearance landscaping or construction by the use of heavy machinery (being of a weight in excess of 7.5 tonnes) on Warren Farm or any part thereof in pursuance of the Proposed Development save during the period between 7 ^th February and 1 ^st July of any year and in any event without first giving at least one week’s written notice to the owner or owners for the time being of the Estate having the benefit of the sporting rights reserved under paragraph 3 of the Second Schedule to the Transfer of Warren Farm then registered under Title Number BK146642 dated 28 June 1991

at no time will anything be done or permitted or suffered to be done or any use made of or other circumstance permitted or suffered to arise on Warren Farm or any part of it whereby the exercise of the sporting rights will be substantially interfered with and the use of Warren Farm shall be restricted to use for residential or agricultural purposes only

upon the true construction of the Transfer dated 28 June 1991 made between Thomas Brian Greenham and Sarah Greenham of the one part and the Defendants of the other part the Claimants and their successors in title and all persons duly authorised by them, as successors in title to Thomas Brian Greenham and Sarah Greenham as registered proprietors of the freehold interest in the land registered at H M Land Registry under Title Numbers ON 213406 and ON 213408, are entitled to a right of way at all times and for all purposes including gaining access to and egress from the said land with or without vehicles over and along the roadway shown coloured brown and the land shown cross-hatched brown (Footnote: ¹) for identification only on the plan annexed hereto PROVIDED THAT where they shall exercise this right of way with agricultural vehicles for agricultural purposes then they shall contribute a fair proportion according to user of the cost of repairing and maintaining the said roadway and the said land hatched brown. Where, however, their use of the roadway is in connection with the exercise of their shooting rights or the care of the game or the like then no such contribution shall be payable

the development of the land registered at H M Land Registry under Title Number BK 297019 (“Warren Farm”) in accordance with the planning consent granted by the West Berkshire District Council on 14 June 2001 (“the Outline Planning Consent”) will not cause substantial interference with the exercise by the Claimants or their successors in title to the land registered at H M Land Registry under Title Numbers ON 213406 and ON 213408 of the sporting rights reserved over Warren Farm to Thomas Brian Greenham and Sarah Greenham and their successors in title by the third paragraph of the Second Schedule to the Transfer dated 28 June 1991 made between the said Mr and Mrs Greenham of the one part and the Defendants of the other part PROVIDED THAT the said physical development is carried out in accordance with (i) the terms and conditions imposed by the Outline Planning Consent (ii) the agreements made between the Defendants and the West Berkshire District Council pursuant to section 106 of the Town and Country Planning Act 1990 dated 4 May 2001 (iii) the undertakings given by the Defendants herein and (iv) the covenants referred to in the Defendants’ undertaking numbered 3 above

the Defendants or their successors in title to Warren Farm are entitled to carry out the development described in the Outline Planning Consent subject to full compliance with (i) the terms and conditions imposed by the Outline Planning Consent (ii) the agreements made between the Defendants and the West Berkshire District Council pursuant to section 106 of the Town and Country Planning Act 1990 dated 4 May 2001 (iii) the undertakings given by the Defendants herein and (iv) the covenants referred to in the Defendants’ undertaking numbered 3 above