John Rowlands v Victor Hughes & Ors

This claim concerns a dispute over access rights to farmland known as Ty’n Pwll, Bodedern (“the Land”), which is occupied by the Claimant. The Land surrounds the residential property now owned by the First Defendant known as Tyn Y Pwll which includes a house where the First Defendant lives. Historically, both the Land and the house were owned by Mr. Thomas Alun Rowlands and Mrs. Iris Rowlands until 23 December 1994, when the house was sold to Dr. Parry and Dr Windall, with Mr. and Mrs. Rowlands retaining the Land. In 2015, Dr. Parry and Ms. Windall sold the house to the First Defendant. An area of land to the front of the First Defendant’s house, known as “the Triangle”, abuts the highway and forms part of the First Defendant’s registered title.

The Claimant claims a right of way over the Triangle at all times and for all purposes, on foot and with vehicles, for the purpose of accessing the Land, particularly the farmyard adjoining the First Defendant’s property. Proceedings were commenced by the Claimant in January 2025, and an interim injunction was granted restraining the First Defendant from preventing the Claimant from crossing the Triangle to access the Land.

The Claimant contends that he initially shared occupation of the Land with his aunt and uncle, Mrs. Iris Rowlands and Mr. Thomas Alun Rowlands, and farmed in partnership with Mr. Rowlands. He states that he was subsequently granted a licence to occupy the Land, and following Mr. Rowlands’ death, an oral tenancy was granted to him by Mrs. Rowlands and her son, Richard Vaughan Rowlands (“Vaughan”). The First Defendant disputes the consistency of the Claimant’s account. The First Defendant appears to accept that the Claimant has been in occupation of the Land and that someone continues to occupy it..

The Land has been in the Rowlands family for many years. The freehold is now held by 2 and 3 Ds, who hold it on trust for the estate of Iris Rowlands, deceased. The Land was conveyed to Mr. Thomas Alun Rowlands in 1958 and later vested jointly in Mr. and Mrs. Rowlands in 1985. Upon Mr. Rowlands’ death in 2005, his share passed to his son Richard Vaughan Rowlands . Following Vaughan’s death intestate in 2014, his estate vested in Mrs. Rowlands under the Administration of Estates Act 1925. Mrs. Rowlands died in July 2023, leaving a will in which she purported to gift her interest in “Ty Mawr” to the Claimant. Evidence from the Second Defendant, who took instructions from her and witnessed the Will, confirms that the reference to “Ty Mawr” was a mistake and should have read “Tyn Pwll”. All residuary beneficiaries of Mrs. Rowlands’ estate agree that clause 5 of the Will should be construed accordingly, and that the Claimant is entitled to Tyn Pwll under the Will.

The second and third Defendants, as as executors and trustees of Mrs. Rowlands’ estate, have an interest in the outcome of this claim and any relief to which the Claimant may be entitled.

The Claimant resides at Mynydd Adda, Llanddeusant. He confirmed that he does not live at Bodlas, Bodedern, which is his son John Alun Pritchard Rowland's address. He explained that correspondence, including the claim form, was sent to Bodlas because his son assists him with farm-related matters. He did not consider this to be a mistake and clarified that although his son’s address appeared on the claim form, his son is not the Claimant.

The Claimant is a beef and sheep farmer managing over 400 acres and owning approximately 500 sheep. He does not usually keep cattle at Ty’n Pwll due to its wet conditions, preferring to use drier land. His son, a surveyor for Conwy County Borough Council, has a personal interest in farming and maintains a smallholding of around 20 acres at Bodlas, where he keeps his own sheep and grows pumpkins for sale. The Claimant confirmed that his son has not kept his own sheep at Ty’n Pwll.

The Claimant receives the Single Farm Payment for Ty’n Pwll and completes the relevant application form annually. He stated that this form covers all of the land he farms, not just that at Ty’n Pwll. He is subject to annual inspections by Welsh Government.

The Claimant began farming the land at Ty’n Pwll in 1994, having previously assisted his uncle, Alun, who was a cattle dealer. In 1994, Alun was diagnosed with prostate cancer and the Claimant took over most of the farming responsibilities. Although the farm was still in Alun’s name at that time, the Claimant’s own livestock were predominantly kept there from 1994/95 onwards. He described keeping sheep and store a small amount of cattle on the land, noting that calves could be kept there for 6–8 months before being moved. He would typically remove cattle in August and keep sheep there until Christmas, especially Welsh mountain sheep which are more hardy.

The Claimant stated that by 2005, his uncle no longer kept any stock. After Alun’s death in 2005, the Claimant entered into an oral agreement with Alun’s widow, Iris. He had previously paid rent to Alun annually under an informal arrangement.

Following Alun’s death, Iris informed the Claimant that the land had been left equally to herself and Vaughan (Alun and Iris’s son). She requested that the Claimant pay rent to both parties. C complied, paying £3,600 per annum, split between Iris and Vaughan. He stated that Vaughan was content for the arrangement to continue. Vaughan lived abroad and was rarely seen.

The Claimant confirmed that he would have vacated the land had Iris or Vaughan requested it, acknowledging that the arrangement was annual. He never prevented anyone, including Iris or Vaughan, from accessing the land.

He also stated that he removed sick animals from Ty’n Pwll to care for them at home. Iris passed away in 2023. Vaughan predeceased her, dying around 2015 at the age of 56.

The Claimant stated that he began farming with small calves around 1994, later switching to store cattle due to improved ground conditions. He no longer keeps cattle regularly on the land, citing wet winters, and now keeps only sheep and store lambs, occasionally bringing a small number of cattle (no more than six). His uncle, a cattle dealer, had proper facilities for loading livestock. The Claimant confirmed that livestock were moved via the yard, not from the wide gate opposite the gate across the road, due to reeds and poor terrain. He explained that access to the yard is achieved by reversing in from the Bodedern direction, as driving straight in is not feasible. The yard was purpose-built for loading, and the gate was replaced to prevent animals escaping. Photographs from the site visit confirmed the presence of reeds, rough terrain, and a filled-in lake area. The Claimant paid rent to his uncle and later to his aunt, Iris, and Vaughan, with cheque stubs from 2005 showing payments of £2,300 and £1,800. He was adamant these were rent payments, although he acknowledged he may have purchased something from Iris which explained why at times he paid more to her than to Vaughan. In fact, the documentation revealed that he had paid her for rent of other land in which Vaughan had no financial interest. He no longer holds tax records from that period but stated his accountant was aware of the arrangements.

He gave land to his son John for the purpose of building a house and let other land to him for two seasons, excluding the Ty’n Pwll land. He believed he had a right of way over the triangle, which he had always thought was owned by the Council. The Claimant’s evidence was that he only discovered the true ownership in 2024. (However, the letter sent from the First Defendant in respect of parking on the triangle was in June 2020 but that letter was sent to the Claimant’s son, not the Claimant.) He had no prior disputes with the First Defendant or previous residents and expressed sadness at their departure. Relations with the First Defendant deteriorated after five years of living there, with the Claimant alleging abusive behaviour on the part of the first Defendant, particularly towards his grandchildren. He described difficulties accessing the field with a vet due to wet conditions and confirmed that livestock movements are recorded in a register inspected annually by the Welsh Government. He stated that all land was under his one register, allowing him to move stock without specifying exact locations. The yard was actively used as a farm area and his son now assists with livestock movements, including worming sheep when transferring them between fields. He was clear in his evidence that he had always accessed the yard and the Ty’n Pwll land via the yard and that he would access that area by passing over the triangle area.

He also farms and lives nearby. His land is higher up than Tyn Pwll and he said that depending on the weather he could see the area concerned from his home. He also drove past the area on a regular basis. He confirmed that the Claimant, his son and others passed over the triangle area to access the yard at Tyn Pwll on a regular basis and had been for many years.

She also lives in the Bodedern area but cannot see Tyn Pwll from her house. She has been buying haylage from the Claimant at Tyn Pwll for a about 5 years and her son collects it by tractor from the yard at Tyn Pwll. She also confirmed that the Claimant, his son and others passed over the triangle area to access the yard at Tyn Pwll on a regular basis and had been for many years.

He is a friend of the Claimant’s son. He is also a feed representative for livestock feed and is the representative for the Claimant. As a teenager, from approximately 2002 onwards, he had shown an interest in farming and as he does not come from a farming background he would spend a lot of time at Ty’n Pwll helping the Rowlands family out on the farm. As part of his current employment, he regularly attends farms and smallholdings to advise farmers if their cattle or sheep are not performing. The Claimant is a client of his.

There were no logs of his attendances at Ty’n Pwll because the bulk of his meetings would be at Mynydd Adda, the Claimant’s home and there would be a log of meetings at Mynydd Adda. They would be recorded as Mynydd Adda due to that being the name of the account.

He was able to confirm that from 2002 onwards the Claimant and others accessed the yard over the triangle area. He now passes the area on a regular basis with his work and could confirm that that area was still used on a regular basis.

The Defendant moved to the property in 2015, having previously lived in Corwen and spent some time in Warrington caring for his brother. He was unfamiliar with the area before moving and confirmed that he could not give direct evidence about events prior to 2015. He stated that no one ever sought his permission to use the triangle for access, and that he did not witness any use of it until 2020. He accepted that use may have occurred before then, but if so, it was casual and occasional.

From 2020, the Defendant observed a significant increase in activity across the triangle, including animal movements and parking across his gate, which he found intrusive and distressing. He attributed this to the operations of the Claimant’s son, whereas the Claimant had previously been barely noticeable. The increased use coincided with the COVID-19 lockdown, during which he was at home more often and became aware of the extent of the activity. He recounted incidents involving animal waste affecting access to his home, including a nurse who was visiting the First Defendant stepping in sheep muck, which prompted him to seek legal advice and contact the police.

The First Defendant denied that the Claimant entered into a tenancy agreement and asserted that no such agreement has been proven. Although in the First Defendant’s statement he referred to the Claimant as a tenant, he clarified that this was not a legally accurate term and that the distinction only became relevant in the current proceedings. He maintained that neither an owner nor a tenant had a right of way over his land, namely the triangle.

He referred to communications from Dr Parry and Dr Windall, which he interpreted as confirming that no right of way existed over the triangle. He acknowledged that the second email from Dr Windall to his solicitor was not included in his witness statement but did not consider it material. He relied on the property’s land registry documents and diagrams to show the boundaries and asserted that these were confirmed by the doctors who confirmed that no right of way existed over their land. He did not accept that a right of way could be established over time once a document had been signed stating that no such right existed.

He accepted that the Claimant is likely to have accessed the yard via the triangle from 2015 but the First Defendant maintained that such access was unauthorised and only became problematic from 2020 onward. He described the presence of large black silage bales in the yard in 2020 as visually oppressive and potentially hazardous. He stated that his goodwill was “badly insulted” following the increased activity and associated disruption to his home life.

The Defendant stated that he had never questioned whether there was a right of way over his land. When he first viewed the property, he observed a yard which appeared not to be in use. He described the presence of weeds and a wall where there is now a red gate, and referred to Google Maps imagery from 2009 showing the yard as overgrown and apparently unused. He accepted that a vehicle may have been parked on the triangle at some point, but maintained that the presence of weeds indicated it was not a regularly used area.

He further stated that the contract of sale for the property included a clause confirming that there was no right of way across the land. He relied on this clause and the condition of the land at the time of purchase to conclude that the triangle was not being used as a right of way. He maintained that the area was overgrown and unused, and that any activity would have flattened the weeds.

He accepted that the claimant had been making applications for single farm payments for land surrounding the yard at Ty’n Pwll, which suggested the land was being used for farming. He agreed that photographs showed the land and yard were in use for farming, although he disputed that the triangle area was used to access the yard. He acknowledged that a vehicle visible in one of the photographs could only be in that position via the triangle, but suggested it might be his own vehicle.

He confirmed that cheque stubs from 2009 referred to rent payments to Iris and Vaughan Rowlands but requested sight of their bank statements to verify whether they had actually received the rent. He accepted that money had been paid up to 2023 but speculated that it may have been for other land. He questioned the claimant’s statement under oath about making rent payments to the Rowlands for Ty’n Pwll.

The First defendant described a breakdown in his relationship with the claimant, initially good but later strained due to issues such as animal faeces in front of his home and hay bales which were stacked up on the yard at Ty’n Pwll. He felt disrespected and was advised by his solicitor to block the access by leaving his car on the triangle. He referred to correspondence and emails indicating he was told to wait two weeks before doing so. He stated that he may not have been present in November 2024 due to undergoing radiotherapy in Liverpool and may have asked friends to move his car. He cited a letter from Ian Williams, his then legal representative, instructing him to block the driveway.

He said he did not ask the Claimant’s son to clean the triangle of sheep droppings because he had been threatened by him and had called the police. He expressed a desire for convenient parking for visitors and stated that his driveway could accommodate multiple cars but that the triangle was also a parking space. He said the dispute escalated due to the impact on the nurses visiting to care for him. He described the condition of the land as variable, with a clear trackway visible in one photograph taken on a dry day. He maintained that he had never seen the land in a condition unsuitable for tractor use and suggested that the claimant could build a separate access point.

Mr Jones did not give evidence in court as there was no challenge to his statement which is dated 10 October 2025. He confirms that he drafted Iris Rowlands’ will and confirms that whilst within her will she gives the Claimant “Ty Mawr”, “I believe that the reference to Ty Mawr in this clause is a mistake and that it should read, Ty’n Pwll Farm”. He explains that Mrs Rowlands did not own any land called Ty Mawr. He also explains that as Mrs Rowlands’s son Vaughan died intestate all of his assets passed to her via the intestacy rules.

I have been provided with detailed written skeleton argument from Counsel for the parties and Counsel for the respective parties have addressed me in court based on the content of those skeleton arguments.

The issues which I need to determine appear to be as follows:

Counsel for the First Defendant submits that as the Claimant is not the beneficial owner of the land at present, he does not have authority to bring this claim. The position is that the Claimant is farming the land and that Iris Rowlands did not bequeath the property to the Claimant as the property, according to the Claimant’s case is misnamed on the will. There was no challenge to Mr Jones’ statement that he had made an error in the will and that Mrs Rowlands left the Land to Mr Rowlands. Accordingly, I accept that there is evidence that Mrs Rowlands has left the Land to the Claimant. However, due to complexities with the will and the fact that Vaughan died intestate with assets in different countries, the IHT payable on Mrs Rowlands’ estate has not been finalised with HMRC and it has not therefore been possible to transfer ownership of the Land to the claimant. Accordingly, the Claimant is not currently the owner of the land.

Counsel for the Claimant and for the second and third defendants disagree with Counsel for the First Defendant’s position that the Claimant does not have authority to bring the claim as he is not the beneficial owner of the Land at present. Counsel for the Claimant addressed me in some detail on this point. She makes the point that a lawful occupier of the land can obtain a prescription for his landlord which he can use during his occupation and which his landlord can grant to subsequent lawful occupiers (Sara, C et al Boundaries and Easements, 7^th edition, Sweet and Maxwell, 2019, para 15-031). The passage makes it clear that “this approach to user applies not only to tenants, but to any other lawful occupier of the land.. Equally the user does not have to be the owner or tenant personally providing that it is for the benefit of the dominant tenement.”

I also note that para 24-0009 of Sara also addresses the issue raised by Counsel for the First Defendant that the executors should have been added to these proceedings as Claimants not Defendants in that it highlights that “where the dispute involves an easement it is desirable that the owners and occupiers of the dominant and the servient tenements should be parties.” So based on that, as the Claimant is the lawful occupier of the land, he is entitled to bring the claim. I am reassured in that view by the case of Hunter v Canary Wharf Ltd (1997) AC 655 at 692, again referred to by Counsel for the Claimant, wherein it was held that to bring a claim for actionable nuisance “on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession.”

The Claimant claims a right of way over the triangle on the basis of prescription pursuant to section 2 of the Prescription Act 1832 and / or lost modern grant. For the Claimant’s claim to succeed under the Prescription Act 1832, he must establish enjoyment of a way over the Triangle for the full period of 20 years, as of right. The 20 years’ use must be the 20 years immediately before the action that crystallises the easement. Under lost modern grant, the use of the easement must have continued for 20 years but not necessarily the 20 years immediately before the right is challenged in the court. The legal burden of proving that the use is “as of right” is on the party claiming the easement (Welford v Graham (2017) UKUK 297 (TCC)).

Accordingly, this is very much a factual issue which I have to determine. I disagree with Counsel for the First Defendant’s assessment of the Claimant and his witnesses. I found them all to be straightforward and honest.

I accept that between 1994 and 2005 the Claimant was granted a licence to occupy Ty’n Pwll from both freehold owners, Mr Alun and Mrs Iris Rowlands. The Claimant’s evidence was that in 1994 Mr Alun Rowlands was diagnosed with prostate cancer and he handed over the running of the farm to the Claimant. Mr Alun Rowlands would still dip in and out of the farm and the Claimant did not object to that but the Claimant ran the farm. The Claimant’s son gave helpful evidence of his recollection of the Claimant farming that land when the Claimant’s son was a child and a young man and of his great uncle Alun still being around, perhaps buying a farm animal for the land but was clear that it was the Claimant who was farming the land. That makes perfect sense in the circumstances of his great uncle’s illness but of still wanting to be involved with the farming in some way.

In 2005, Mr Alun Rowland died and pursuant to the terms of his will, his interest and ownership in the farm passed to his son Richard Vaughan Rowlands. I accept that in or around 2005, the claimant entered into an oral agreement with Richard Vaughan Rowlands and Iris Rowlands whereby the Claimant was granted exclusive possession of the farm and that he paid rent of £3600 for that.

Richard Vaughan Rowlands died intestate in 2014 and so his share and interest in the farm passed to Mrs Iris Rowlands. The Claimant and Mrs Rowlands varied the oral agreement so that it would continue on the same terms as previously agreed but without Richard Vaughan Rowlands.

The Claimant has produced various cheque stubs and his historical bank statements to prove that he paid rent to Mrs Iris Rowlands and Richard Vaughan Rowlands. The First Defendant would not accept these as he said that he wanted to see the bank statements of Richard Vaughan Rowlands and Mrs Iris Rowlands. These have not been produced. This is not surprising. They have both died and the statements would go back a long way and are unlikely to have been kept. There is nothing suspicious in this. I accept the evidence of the Claimant that he paid rent for the Land and that the documents which he produced support his position. I note with interest, as pointed out to me by Counsel for the Second and Third Defendants, that the Claimant’s cheque stubs have ticks on them which may have been done by the Claimant’s accountant. This lends a degree of authenticity to that particular evidence. Another piece of evidence which supports the Claimant in relation to this is that he is the individual who has been applying for single farm payments and he has produced evidence to support this. Whilst much has been made by Counsel for the First Defendant of the documents which are not there, such as farm accounts, there is plenty there for the Claimant to prove this aspect of the case on the balance of probabilities.

Accordingly, I am satisfied that the Claimant has been a lawful occupier of the land since 1994. The Claimant’s evidence is he, his agents and licencees have, during that period, ie for approximately 30 years, enjoyed as of right and without interruption the right of way over the triangle to quote the amended particulars of claim “on foot and with horses, carriages, motor vehicles and other vehicles, at all time and for all purposes” for at least 30 years, The Claimant also avers that the farm is visited on average around 3 to 4 times per week.

The evidence of all of the Claimant’s witnesses supports this. I considered that the Claimant and his witnesses were all honest witnesses. The Claimant’s witnesses did not need to get involved in this dispute. There was nothing in it for them. I do not accept any criticisms made of them by Counsel for the First Defendant. In reality, the First Defendant is not in a position to challenge the majority of their evidence. Firstly, he did not move to live in Tyn Y Pwll until 2015 and he did not live in the area before then. Secondly, for the first five years he was travelling the world due to his work connections. It was only in lockdown that he was forced to stay in the farmhouse and it was only then that the activities in the neighbouring land started to trouble him. It is significant that over the period since he has lived in the property, the First Defendant has had a very difficult and stressful time. First of all, whilst his wife had planned to retire at 60, she subsequently discovered that she had to work until she was 65. She then, tragically died at 65. Then lockdown came. Then he was diagnosed with a brain tumour for which he has received surgery and extensive treatment, some of it in Liverpool. He tells me that, sadly, his prognosis is uncertain. It would appear that when he was house bound, he was troubled by the haylage which the Claimant’s son had started storing on the yard and by what he perceived as an increase in activity in the area on the part of the Claimant’s son. The last straw was when one of the nurses who was coming to nurse him stepped in some sheep excrement outside his home and brought it into his home and by that stage he had had enough and he sought legal advice.

The problem for the First Defendant is that he cannot give evidence as to what the farming activity was like prior to 2020, in reality. It may have been like that previously. There is some evidence that the Claimant’s son increased some of his own farming activity at one stage so as to secure planning permission to build his house, Bodlas, on the basis of his being an agricultural worker but the Claimant’s son’s evidence was that he reduced his agricultural activities once he had secured that planning permission so if the farming activity did increase for a time, that then reduced. In any event, what the First Defendant does not appear to deny is that there was some use of the yard and that the triangle was used at times to access that land.

The First Defendant stated in his evidence to me that the Google images from 2008 show that the yard was not in use at the time with weeds being visible in the yard and the triangle area. He also relies on an email dated 9 May 2025 sent at 11.36 hours from Dr Windall and Dr Parry who lived at the property prior to its sale to the First Defendant wherein she states that “no right of way was being exercised across the land owned by us as part of Tyn Pwll. There was no crossing of Tyn Pwll’s yards by the Rowlands family by foot, horse, carriage or motor vehicles.” It is significant that the First Defendant did not attach to his statement the second statement which Dr Windall sent to the First Defendant’s solicitor. This was forwarded by Dr Windall to Mr Bleddyn Hughes’ son on 7 August 2025 with an email saying “this is my second email, written once I realised what the “new” owner of Tyn Pwll was claiming. Hope it helps. It’s crazy that he’s saying that John Trefor cannot access his own yard or outbuildings.” The second email which was sent by Dr Windall to the First Defendant’s solicitor is dated 16 May 2025 and states “the Rowlands family did not have access across any of the yards owned by us while we owned and lived in Tyn Pwll. However they and the general public did have access to the road and pavement outside the gate. The gate was the boundary between public access and our private property. I feel that you need to clarify which areas is being disputed.”

That second email and email to Mr Bleddyn Hughes’ son puts a very different spin on the first email and it is quite clear to me that Dr Windall and Dr Parry are confirming that when they were living at the property, the Rowlands’ family accessed the yard at Ty’n Pwll via the triangle.

The First Defendant concedes in his first handwritten statement (undated) to the court that there is use of that triangle by the Rowlands family wherein he states that “none of the deeds that I have support the view that a “right of way” exists. More likely is that over time casual and occasional light use of the “gateway” has been accepted. I certainly did on arrival at the property.”

He indicated that he had not thought that there was any right of way over his property as Dr Parry and Dr Windall had not referred to such and neither did the land registry documentation. However, he confirmed to Counsel for the Second and third Defendants that he knew that the triangle formed part of the title to the property he was buying from a very early stage. Having been to the site myself, I am therefore very surprised that an intelligent man like the First Defendant did not choose to ask about whether the yard was accessed via the triangle by anyone. The fact is that the First Defendant was not troubled by this at all until he ended up being stuck at home either due to the lockdown or due to serious illness. It did not trouble him prior to that.

Accordingly, I am satisfied that the Claimant has established that the land at Ty’n Pwll has the benefit of a right of way both by prescription and by the doctrine of lost modern grant. I am satisfied that that right of way is on foot(to include humans and animals), with motor vehicles and other vehicles (to include trailers), at all times and for all purposes associated with the use of the yard. That right of way applies at any time of the day or night and for any amount of visits given that a farmer is never off duty and the animals kept on the land of Ty’n Pwll could need attention at any time whatsoever.

In his first statement dated 7 January 2025 in support of the application for the interim injunction, the Claimant stated that the First Defendant had blocked the right of way with his vehicle. This meant that he could not access the land at Tyn Pwll by vehicle or transport as the alternative means of access was unusable. On or around 10 December 2024 he had moved the livestock to his son’s farm due to storm Dara but he urgently needed to return them to his own land so that they could be properly cared for and have appropriate housing conditions. At that stage, it would appear that the balance of convenience lay with granting the injunction on an interim basis.

I visited the locus on a dry day at the beginning of the Autumn season after what had been a reasonably dry Summer for North Wales but I could see parts of the land were marshy in quality and would likely become very wet during inclement conditions. Based on my observations of the land taken in conjunction with the evidence of the Claimant and his son, I accept that in such conditions, it would be very difficult to care for the animals appropriately and properly without access to the yard via the triangle and that it would be very difficult to access the yard via the gate which provides access to the land directly from the highway. I note that the Claimant’s practice is to worm his sheep and to treat them for conditions such as fluke when he moves them and this he does in the yard area. He can also move the sheep into vehicles from the yard complex. It is difficult to achieve this without access to the yard complex via the triangle.

Counsel for the First Defendant submits that the if I grant the declaration sought, a final injunction is unnecessary as the First Defendant would respect the declaration. In contrast, Counsel for the Claimant submits that an injunction remains necessary based on the First Defendant’s previous conduct. He acted out of frustration with the way in which the Claimant and his son were using the land. He failed to follow his previous solicitors’ advice to wait for two weeks after his then solicitor had sent a letter to the Claimant before blocking the right of way with his car. He acted unilaterally as a provocative act. Furthermore, the First Defendant’s vehicle was not removed until the interim injunction was granted.

I note that in Shelfer v City of London Electric Lighting Co (1895) 1 Ch 287 at p 317 it was held that where a breach has been established, an injunction should be granted other than in exceptional circumstances. There is no set rule for what amounts to exceptional circumstances and the Court has the discretion to award damages in lieu of an injunction. The Court in Shelfer gives “a good working rule” as to as to where it would be appropriate to award damages in lieu of an injunction and this is that:

In this case, the injuries to the claimant’s rights are not small. It is the claimant’s case that he lost two sheep as a result of the First Defendant blocking the right of way. In addition, I do not consider that this is a case which is capable of being estimated in money. By blocking the right of way, the First Defendant makes it difficult to care for and accommodate the animals appropriately. This is not a case where a small money payment would adequately compensate the claimant. Furthermore, I do not consider that granting the injunction would be oppressive to the defendant. He has plenty of parking within his own yard area, in my judgment. Visitors to his home can park either on that land or on the side of the road. There are two other significant reasons for granting an injunction here. Firstly, the First Defendant chose to block the Claimant’s access before the Claimant had had the opportunity to reply to the First Defendant’s first solicitor’s letter to the Claimant telling him not to drive over the triangle. Secondly, it was not until the interim injunction was granted that the First Defendant removed his car from the triangle. This behaviour shows a First Defendant who acts on impulse and out of frustration (at his nurse stepping onto sheep droppings and bringing it into the house when he was having treatment for a brain tumour) and who then does not listen properly to advice.

The court has a wide discretion as to what damages should be awarded. The general principle is that once there has been a finding that there has been a loss, damages should be awarded to reflect “that sum of money which will put the party who has been injured or has suffered in the same position as he would have been in if he had not sustained the wrong for which he is now getting compensation or reparation.” (Livingstone v Rawyards Coal Co (1880) 5 App Cas 25). In this case, the Claimant says that he lost two sheep when he had to move the sheep to his son’s and not being able to return them to be tended to and accommodated appropriately. I have seen a document to show that he lost two sheep on 6 December 2024. However, there is no evidence from a vet to indicate what the cause of death was. Furthermore, there is no schedule of loss particularising the value of the sheep concerned and the claimant’s evidence does not address this. In all those circumstances, I find this aspect of the claim not proven.

There is also a claim for general damages for “the loss of enjoyment of the Claimant’s land, discomfort, distress, inconvenience, and a loss of amenity” and “the Claimant has suffered loss and damage and been greatly disturbed in the use and enjoyment of his right of way….”. The Claimant did not touch on this within his oral evidence but at paragraph 26 of his first witness statement he states that the First Defendant “has caused me a significant amount of discomfort, distress, and inconvenience.”

There is no dispute that the Court has a wide discretion to compensate the Claimant by way of general damages for loss of enjoyment of the land. I note that the right of way was blocked by the First Defendant for 62 days. During that time, storm Dara occurred and the sheep had to be moved to the Claimant’s son’s property where there was a risk of them mixing with the sheep of the Claimant’s son. The Claimant and his son stressed throughout their evidence the importance of the Claimant’s yard for good husbandry and that there was a delay in returning the sheep to the Claimant’s field because of the difficulty in accessing the yard. Counsel for the Claimant submits that I should consider any damages by reference to the rent paid for the Land (£300 pcm). Counsel for the First Defendant submits that as that monthly amount covers the entire field, that a lesser sum should be awarded. The problem for the Claimant was that it was very difficult for him to move his sheep safely via the yard as a result of the right of way being blocked for a two month period. However, there does appear to have been some use of the Land during that period, it was however made more difficult due to the First Defendant’s actions. Furthermore, there was clearly additional stress caused to the Claimant as a result of him not being able to carry out his usual good husbandry due to his inability to access the yard. In the circumstances, I award the Claimant the sum of £500 which I consider reflects this inconvenience and the distress associated with it having considered the rent which was being paid for the Land at the time.