Zieleniewski v Scheyd & Anor

This is an appeal from that part of the Order made by Mr Recorder Browne-Wilkinson QC in the Taunton County Court on 3 May 2011, following trial, whereby he dismissed a claim by Paul Zieleniewski, the Appellant in this appeal, for injunction and damages for interference with a right of way for agricultural purposes over land in the village of Higher Combe, Wiltshire then belonging to the Defendants and Respondents to this appeal, Charles Scheyd and Lynn Pryor. The land in question consists of a small irregular area of hard-standing, roughly triangular in shape, lying to the east of a north-south public highway. It forms part of a larger holding which includes two houses, the Priory immediately to the west of the highway, and Coombe Mead to the east, and lies to the north-west of the curtilage of a dwelling house, Swan Lake Cottage, owned by the Appellant. I shall, like the judge, refer to it as the Green Land, since it is so coloured on the Ordnance Survey plan used both at trial and on this appeal.

The land served by the agricultural right of way consists not of Swan Lake Cottage, but of a 3.43 acre field lying to the east of the Green Land, which the judge described, after a site visit, as unimproved poor grazing land. I shall refer to it as “the Field”.

The casus belli for the dispute between the parties consisted of the erection by the respondents of a wall and fence which had the effect of confining the exercise of any right of way over the Green Land (whether as a means of access to the Field or to Swan Lake Cottage) to a gently curving strip along the south-eastern edge of the Green Land which was, at its narrowest point, some ten foot three inches wide, running from the public highway at the southern point of the Green Land to a gateway at its eastern edge, giving access to the Field. I shall call it the Strip. It was confined on one side by the new fence, and on the other by the established fence along the boundary between the Green Land and Swan Lake Cottage.

The question whether the wall and fence constituted an actionable interference with the appellant’s alleged agricultural right of way to the field was only one of some seven issues which the judge was called upon to decide. Adopting but abbreviating the summary of the issues provided in paragraph 5 of the judgment, they were:

The judge’s answers to those questions may be summarised as follows:

The judge’s conclusions (i) to (v) inclusive are not challenged on appeal by either side although, by a respondent’s notice, the respondents have sought to put in issue the precise meaning of the judge’s conclusion (ii). The only substantial issue on this appeal is whether the judge’s conclusion that the fence and wall did not substantially interfere with the right of way to the Field was correct.

Since the respondents have, following the trial, sold the Green Land, the appellant no longer seeks an injunction requiring the removal of the fence and wall, but merely a declaration that their combined effect is substantially to interfere with the right of way to the Field. The purchasers of the Green Land have been kept informed of the progress of this appeal, and of its hearing date, but have decided not to seek to intervene. It is common ground that they will be bound by any declaration which this court thinks fit to make.

Following the hearing of this appeal, the court announced its decision that the appeal was to be allowed, with reasons to follow.

The judge found (and this is no longer challenged) that the Field had for several decades prior to November 1997 been used for the grazing of sheep and cattle and for hay making. Apart from a short period in the 1970s when tenanted by a person with a separate means of access, the common boundary between the Field and the Green Land (which is wide enough only for a gateway which is now 11 feet 7 inches wide) had been the only means of access to the Field. The evidence demonstrated to the judge’s satisfaction that the Green Land had therefore been used, as of right, as the means of access to the Field from the highway both by vehicles delivering and collecting livestock, and by agricultural machinery, including tractors, mowing equipment, balers and trailers in connection with the use of the Field for haymaking. Since the Green Land was not, prior to the erection of the wall and fence, physically sub-divided in any way, it followed that the prescriptive right of way acquired by that long user as of right extended, at least potentially, to the whole of the Green Land. The evidence did not show that any distinct part of the Green Land could properly be regarded as the full extent of the servient tenement for the purposes of the right of way thus acquired by prescription.

There was no dispute before this court as to the relevant law which, as the judge himself noted, may be found fully stated by Blackburne J in B & Q Plc v Liverpool & Lancashire Properties Ltd (2001) 81 P&CR 20, and in the dicta of Mummery LJ and Scott J there cited from West v Sharp (2000) 79 P&CR 327, at 332 and Celsteel Ltd v Alton House [1985] 1WLR 204, at 217-8.

For present purposes the applicable principles may be summarised as follows:

To the summary of the relevant principles in the B & Q case I would add only this. It is well established that a vehicular right of way acquired by prescription does not confine the owner to enjoyment only by the types of vehicle in current use during the period when the easement was acquired. Thus, in Lock v Abercester Ltd [1939] 1 Ch 861, a vehicular right of way had been acquired by long use with horse-drawn carts. It was held to be legitimately enjoyed, much later, by mechanically propelled vehicles. In my judgment, the converse is also true. Where, as in the present case, developments in agricultural machinery have led to a situation where machinery used during the period of acquisition of an agricultural right of way by prescription have been largely replaced by more modern types, the owner is not thereby deprived of the right to continue to use the right of way for what has become an old-fashioned type of machinery, at least for as long as his use of it cannot be characterised as unreasonable or perverse.

The judge’s decision that the right of way to the field had not been substantially interfered with by the erection of the wall and fence on the Green Land was, in essence, based upon his conclusion that the appellant had deployed no satisfactory evidence that it had been. The appellant’s case in this court was that there was unchallenged evidence at trial that the erection of the wall and fence had rendered the Green Land impassable to a particular type of baling machine which the appellant, his licensee and their contractors reasonably wished to use on the field, and that the judge had failed to address this evidence, with the consequence that his decision was either contrary to the evidence, or based upon a failure to apply the law as stated in the B & Q case.

Bearing in mind the advantages which the judge enjoyed over this court in seeing the witnesses cross-examined and, moreover, in conducting a site visit, it is necessary to approach an appeal of this kind with caution, and to address both the evidence before the judge, and his reasons for rejecting it (to the extent that he did), in some detail. I bear in mind in that context Lord Hoffmann’s warnings against an over-pernickety analysis of the first instance judgment in Piglowska v Piglowski [1999] 1 WLR 1360, at 1372.

The appellant’s pleaded case of substantial interference was, at paragraph 12 of the Particulars of Claim, simply that the right of way to the Field could not, by reason of the erection of the wall and fence, “be exercised as conveniently as before” and, in particular, that the appellant could not access the field “with various vehicles”.

The appellant’s own witness statement supplemented this broad outline (at paragraph 70) by explaining that a local sheep farmer, to whom he had granted a hay-cutting licence, had lost his 2010 crop on the Field because of the inability of his baling contractor to get his baling machine along the Strip, i.e. between the new fence and the boundary of Swan Lake Cottage, so as to obtain access to the Field. He added that the farmer’s mowing contractor had himself only been able to gain access to the Field with the greatest of difficulty.

The sheep farmer in question was Mr Nathan Wall. He corroborated the appellant’s evidence in relation to the difficulties of his mowing and baling contractors, and added that it was also impossible for a standard tractor and farm trailer to enter the field to collect hay without an unacceptable risk of causing damage.

The appellant also deployed witness statements from two brothers, Eric and Douglas Adams who had both, between 1984 and 1993, cut and baled hay on the Field, gaining access for that purpose across the Green Land. Their evidence was deployed mainly in support of the claim to a prescriptive right of way, and their contribution to the case of obstruction was only their opinion, in general terms, that the narrowness of the Strip prevented a driver from aligning large agricultural vehicles so as to pass safely through the gate of the boundary between the Green Land and the Field.

Thus far, a reader of the Particulars of Claim and those witness statements would gain the impression that the erection of the wall and the fence prohibited the passage of balers generally, and rendered the passage of mowers and trailers very difficult, although not impossible.

Much more illuminating detail was provided by Mr Wareham, a witness called by the respondents, by Eric Adams and, above all, by Mr Wall, during their oral evidence. Before summarising it, it is necessary first to say something about terminology. Hay bales come in various shapes and sizes, of which the most important for present purposes are called large round bales and small square bales. They are each produced by different types of baler which were referred to at the trial as round balers and conventional balers.

Eric Adams, who gave oral evidence on 22 March 2011, explained in cross-examination that conventional balers, of the type which he had used for many years, were about 8 foot wide but that both when working and (to a lesser extent) when being towed along a road, they were offset from the centre line of travel of the towing tractor by up to 2 feet. He explained that it was that offset which made the Strip unsuitable for passage by a conventional baler.

Mr Wall, called on the following day, substantially amplified his witness statement by his evidence in chief. He said that in 2010 his baling contractor used a 9 foot wide conventional baler, offset as I have described which, while potentially able to squeeze through the 11 foot gate at the entrance of the field, could not be manoeuvred down the Strip. In response to questions from the judge, he said that he required small square bales rather than large round bales because he lacked the equipment necessary to handle the latter, and was able physically only to manhandle the former. He acknowledged that a round baler was not offset while being transported behind a tractor, so that the effective width of the tractor and round baler in combination would not be more than 9 feet. In cross-examination he was not challenged on his evidence about a conventional baler. Rather he was taken to task as unqualified to give an opinion about a round baler.

Mr Wareham gave oral evidence on 24 March. He had been the respondents’ caretaker at the Priory, and lived at Coombe Mead. Under cross-examination, and in response to questions from the judge, he provided an even more detailed explanation of the offset position of a conventional baler, explaining that it was usually offset to the right of the line of travel of its towing tractor. His view was that it would require very precise manoeuvring indeed to enable a conventional baler to be towed along the Strip. He added that conventional balers, which had been commonplace in the past, were now used only by a small number of specialist farmers, usually in connection with selling hay for horses or ponies.

The oral evidence was followed by a site visit by the judge, for the purposes of which he had invited the parties to provide appropriate agricultural machinery for demonstration. The appellant arranged for a large tractor and a low loader to be made available. The large tractor negotiated the Strip, but the low loader could not. The judge’s view, only faintly challenged on appeal, was that the low loader was not an agricultural vehicle and that the tractor was larger than that typically to be used for working the Field.

The judge observed, during the site visit, a small number of round bales in the Field. He made reference to this observation both during closing submissions and in his judgment.

The judge gave his reasons for rejecting the claim that there had been a substantial interference with the right of way to the Field in six sub-paragraphs, at paragraph 50 of his judgment. They are sufficiently concise to be quoted in full:

“(i)

At the site visit I witnessed a very large tractor (240 hp with a width of 8 foot 6 inches) being driven without difficulty into the field between the picket fence of Swan Lake Cottage and the new fence erected by the Defendants. The Claimant arranged for a low loader to be present with a trailer bed of 24 feet and ramps of 3 feet. Whilst it is correct that it was not possible to manoeuvre in such a low loader I found this of little or no assistance. It was not an agricultural vehicle, but a vehicle used for the transport of heavy machinery, such as excavators, of the type used in the restoration of the dam.

(ii)

Mr Wareham had experience of agriculture and agricultural machinery. His evidence, which I accept, was that there would be no difficulty in driving a tractor and round baler through the existing access.

(iii)

My impression, formed on the site visit, was that there would be no difficulty in using the existing access for agricultural purposes.

(iv)

The Defendants produced photographs of two large tractors driving into the field through the existing access.

(v)

Despite the Defendants having erected the new wall and fence in October 2009, some 17 months before the trial of these proceedings, the Claimant produced no photographic, video, or expert evidence in support of the contention that agricultural operations were substantially interfered with. This contrasts with the thorough and meticulous preparation of all other aspects of his case. In the course of those 17 months (extending over a whole hay making season) there would have been ample opportunity to record and provide evidence of interference with agricultural access if that had been the case.

(vi)

The statement of Mr Wall, relied upon by the Claimant as evidencing that interference, is unsatisfactory and does not constitute convincing evidence of substantial interference. It is plain that the mowing contractor was able to enter the field and the mowing contractor is not identified. Nor is the baling contractor identified and he does not say why the baling contractor was not able to access the site. The modern farm machinery referred to in paragraph 4 is not identified, nor does he say why the existing access is inadequate. It is unclear why Mr Wall says that the restricted access makes removing the hay bales difficult, when according to his statement no bales were made in 2010. No photographic or video evidence has been produced showing that it is impossible for a “standard” tractor and farm trailer to enter the field without causing damage, and I do not accept that that is the case. The same points can be made about paragraph 70 of the Claimant’s Witness Statement.”

He continued (at paragraph 51) that, applying the principles in the B&Q case, and the citations to which I have referred, he found that there had been no substantial interference with the appellant’s enjoyment of his right of way to the Field. He said that there was “no satisfactory evidence that the right of way cannot be substantially and practically exercised as conveniently as before.”

Notwithstanding the deference and respect due to the trial judge in his assessment of the evidence, I have not been persuaded by his reasons that there was no satisfactory evidence of a substantial interference with the appellant’s right of way to the Field. In my judgment the combined effect of the oral evidence of Mr Adams, Mr Wall and Mr Wareham, if not rejected as unworthy of being believed, was as follows:

The respondents’ reaction to that evidence at the trial was not to challenge it, but to advance by cross-examination the proposition (which the judge correctly accepted) that the use of a round baler would not give rise to the same or any substantial difficulties in traversing the Strip. Nor was there any suggestion, in cross-examination or otherwise, that the oral evidence of those three witnesses about the difficulties experienced with conventional balers, and the consequences in relation to the 2010 hay crop, was simply invented. The respondents made no submission that the substantially more precise case which emerged from the oral evidence had caught them by surprise, or was a new case which had not been pleaded. The thrust of the respondents’ case at trial appears to have been that, since large tractors towing round balers could negotiate the Strip without difficulty, there simply could be no sustainable case for an actionable interference with the agricultural right of way if established.

I turn to address the reasons given by the judge for his conclusion. As to the first, I can see no basis for interfering with his conclusion that the low loader was not an agricultural vehicle. By contrast, his observation that an 8 foot 6 inch wide tractor could be driven on its own without difficulty into the Field said nothing about the evidential case based upon offset conventional balers with a 9 foot wide wheelbase, negotiating a gentle right hand bend.

As to the second reason, the judge was no doubt entitled to accept Mr Wareham’s evidence about round balers, but that of itself said nothing about the difficulties which might be encountered with conventional balers, and Mr Wareham was himself precise in his evidence about the offset of the conventional baler, as constituting the relevant principal difference between the two.

As to the third reason, the judge’s general impression (which I infer may have been fortified by personal farming experience of his own) may well have been correct in general terms. But the principles summarised in the B&Q case require the question to be addressed by reference to any reasonable particular use of which the appellant complains that he has been deprived.

The fourth reason, based upon photographs of large tractors driving into the Field, adds nothing in my judgment to the first reason.

Mr Huggins for the respondents placed considerable reliance upon the judge’s fifth reason, namely the absence of photographic, video or expert evidence of substantial interference. It is true there was no such evidence, and that a reference by the appellant in his own witness statement to a video recording taken by the respondents as corroborative of his case, was not in the event pursued. Nonetheless, claims of substantial interference with rights of way have been successfully pursued for well over a century by the deployment of purely oral non-expert evidence. Furthermore, Mr Adams, Mr Wall and Mr Wareham appear all to have had considerable practical experience of hay baling. I consider that it simply does not follow from the absence of particular types of evidence that oral evidence from experienced onlookers could thereby simply be dismissed as unsatisfactory.

The judge’s final reason does directly address the evidence of Mr Wall and the appellant himself, but only the evidence in their witness statements. If the appellants’ evidence had rested simply with those witness statements there would be compelling force in the judge’s criticisms of both Mr Wall’s and the appellant’s evidence. But it does not begin to address the oral evidence of Mr Adams, Mr Wall and Mr Wareham which I have summarised. That evidence was detailed, based upon experience and observation and, taken in the round, provided an apparently satisfactory explanation for the difficulties experienced in gaining access for conventional balers to the Field along the Strip. Finally, the judge’s criticisms of the imprecision and lack of persuasive detail in the written evidence come nowhere near a characterisation of any of Mr Adams, Mr Wall and Mr Wareham as so generally untruthful, unreliable or biased as to justify the wholesale rejection of their evidence, and its combined and mutually corroborative effect.

Taking the judge’s reasons as a whole, it is, as Miss Shea for the appellant submitted, difficult to be certain whether he simply rejected the whole of the appellant’s witnesses’ evidence about conventional balers, or treated it as irrelevant in the light of his conclusion that no significant difficulties would be experienced with the use of round balers. If the former, it seems to me that the judge gave no sufficient reasons for rejecting the oral evidence which I have described. If the latter, I consider that although he referred to the principles laid down in the B&Q case, he must have failed to apply them. The oral evidence, if credible, demonstrated that there had been a substantial interference in the form of an obstruction which rendered a particular reasonable use of the agricultural right of way to the Field either impossible or seriously inconvenient. That being so, the existence of an alternative and widely used method of baling hay in the field, by machinery capable of traversing the Strip, was in my judgment nothing to the point.

I must briefly mention the alternative case advanced by Mr Huggins by reference to the respondents’ notice. It asserts, by paragraph 1, that the judge’s finding that the appellant had acquired by prescription a right of way over the Green Land for agricultural purposes was not to be taken to include a right to access the field with a conventional baler.

I consider that the judge was plainly correct to conclude that the nature of the prescriptive right established by the appellant was properly to be defined by reference to the purposes for which he had established a vehicular right of way, rather than to the types of vehicle with which he could enjoy it. That much appears plainly from Lock v Abercester (supra). Furthermore, it appears from the evidence of Mr Adams that a significant part of the historic use upon which the prescriptive right was based was indeed the accessing of the Field with conventional balers. For the reasons which I have given in my analysis of the law, it by no means follows that the modern prevalence of round balers over conventional balers means that a right to continue to access the field with the now old-fashioned conventional balers, where reasonably required for the purpose of producing small square bales, has in some way passed its shelf life.

The second alternative case advanced by the respondents’ notice was that even if the judge had found that a prescriptive right, extending to square balers, had been interfered with, it was open to him to conclude that the interference was too slight to be actionable. In fact the judge expressed no view at all about the particular effect of the erection of the wall and the fence on the Green Land upon the obtaining of access to the Field with conventional balers. The oral evidence of Mr Adams, Mr Wall and Mr Wareham which I have summarised was plainly to the effect that the interference was substantial. It rendered it either impossible or highly inconvenient to seek to access the Field with conventional balers, and that conclusion, assessed in accordance with the principles set out in the B&Q case, necessarily leads to the result that the interference with that particular reasonable use was substantial.

Those are, in my judgment, the reasons why this appeal should be allowed, and the appellant granted the declaration which, in lieu of the now unattainable injunction, he seeks.

I agree and wish only to add that the Recorder dealt with the aspects of the case which were the subject of this appeal at the end of a judgment which covered a number of different points and which are not challenged. I would have reached the same state of clarity and certainty as that expressed by Briggs J sooner had the court been led, in the skeleton arguments, to the one plan which clearly demonstrated the means of access at issue and had it been given an illustration of a conventional, small square-producing bailer. This would have shown how its offset configuration hampered the ease of access to which the appellant was entitled. Only the diligent researches of our associate on Google, coupled with the exposition of Ms Shea of counsel, who did not appear below, enabled me to understand what the appeal was about.

I also agree with Mr Justice Briggs’ judgment, and that it states the reasons for which I agreed at the end of the hearing of this appeal that it would be allowed.