Case No: B2/2008/0008
Neutral Citation Number: [2008] EWCA Civ 816
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRESTON COUNTY COURT
(HIS HONOUR JUDGE MORGAN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 22nd May 2008

Before:
LORD JUSTICE WARD
LORD JUSTICE SEDLEY
and
LORD JUSTICE RIMER

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Between:

	(1)	COLIN FRANCIS YOUNG
(2)	SHEILA DENISE LONSDALE	Appellants
	
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(1)	TINA BROOKS
(2)	CLIVE BROOKS	
Respondents

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Mr Sebastian Clegg (instructed by NGA Solicitors) appeared on behalf of the Appellants.

Mr Peter Goodbody (instructed by DWF) appeared on behalf of the Respondents.
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Judgment

Lord Justice Rimer:

	Introduction 

1.	The appellants, defendants to the claim, are Colin Young and his partner, Sheila Lonsdale. The respondents, the claimants, are Tina Brooks and her husband, Clive. The appeal is against parts of an order made by Deputy Circuit Judge Morgan on 6 December 2007 in the Preston County Court. The appellants challenge the declaration the judge made in paragraph 3 as to the nature and extent of a right of way appurtenant to their property, a declaration they say amounts to an unjustified limitation of their rights. They also challenge the order that they should pay the respondents’ costs of the claim.  The judge refused permission to appeal but I granted it on a renewed application.  

The background.  
2.	The appellants live with two of their three children (the third has left home) in a terraced house at 34 Chatham Street, Colne, Lancashire. The respondents live with their children next door at No 36, the end-of-terrace house. Both parties bought their houses from the Pendle Borough Council under the “right to buy” legislation. The appellants bought No 34 in September 2001, having lived there as tenants since October 1994. The respondents bought No 36 in May 2003, having lived there as tenants since about January 2001. Both houses enjoy ordinary access from Chatham Street to their respective front doors. No. 34 has in addition the benefit of a right of way over a footpath leading from Chatham Street along the side and across the rear of No 36 to a gate into the rear garden of No. 34, from which access to the house can be obtained via its back door. The appellants’ right of way was granted to them by the 2001 transfer. The grant is in these terms: 

“The Transferor [Pendle Borough Council] grants to the Transferees [the appellants] and their successors in title and their licensees a right of way at all times with or without tools and equipment over and along the footpath shown coloured yellow on the plan annexed hereto for the purposes of gaining access to and egress from the rear of the property [No. 34] for all proper purposes connected with the reasonable enjoyment of the property causing as little damage as reasonably possible and forthwith making good any damage occasioned in the exercise of the right hereby granted”

When the respondents bought No. 36 in 2003 they bought expressly subject to that right of way and there is no dispute about that.

3.	In October 2006 the respondents brought their claim against the appellants.  Their complaint was that the appellants had been using the right of way excessively. They said that the appellants regularly and consistently used it in a manner that was in excess of what was required for all proper purposes connected with the reasonable enjoyment of No. 34.  They said the appellants were using the footpath so as to gain access to No. 34 via its back door when they could as well gain access via its front door. They allowed visitors to use the footpath when there was no need. They used the footpath when taking their dog for its daily walks when there was similarly no need. They allowed their children to use it (at times wheeling a bicycle) when there was also no need. Their case, in short, was that it was unreasonable to use the footpath in circumstances when the front door was equally suitable. Such unreasonable use was aggravated by the fact that the footpath passed immediately along the rear wall of No. 36 and past a patio window and French doors, so invading the respondents’ privacy. The claim was for an injunction restraining the alleged unreasonable use, and also for damages.

4.	The essence of the appellants’ defence was that, whilst not disputing the general nature of the use they made of the right of way over the footpath, they were using it lawfully in accordance with its terms, which permitted them and their licensees to use it “for all proper purposes connected with the reasonable enjoyment of [No. 34].”

The judge’s judgment.  
5.	The judge explained the background and identified the issue.  He summarised the respondents’ case as being that :

“5. … the purpose of the grant was to allow for access to the rear of [No. 34] for purposes which could not reasonably be accommodated by going through the front door, through the house, and out of the back door. Obviously if large objects, and the one that has been frequently quoted here is the wheelie bin, were to be moved to the front on a regular basis then it would be unreasonable to carry them through the house, and this route was the obvious way in which it would be done.”

He summarised the appellants’ case as being that there were no restrictive words in the grant and so they were entitled to use the path “as often as they please, and for whatever reason that they please.” They had acknowledged that its regular use might be irksome to the respondents but the respondents had bought No 36 with full knowledge of the grant and had experienced two years’ use of it before they bought.  

6.	The judge directed himself that his first task was to interpret the terms of the grant and he referred to the judgment of this court in White and Another  v Richards (1994) 68 P & CR 105 in which Nourse LJ said, at 106:

“The nature and extent of a private right of way created by express grant depend on the intention of the parties which must be ascertained from the words of the grant read in the light of the surrounding circumstances.”

The judge identified the critical words in the grant requiring interpretation as being those providing that the grant was granted “for all purposes connected with the reasonable enjoyment of the property ….” He said: 

“9.  … In the light of that dictum of Lord Justice Nourse … I am, in my judgment, entitled to look at the surrounding circumstances when the grant was made. I am satisfied that the intention of the grantor, which was the local authority, of course, who originally owned all these houses, was not to confer a right to pass and re-pass as they wished, as often as they liked, for whatever purpose they liked, but rather access which was not convenient or proper to be done or contemplated through the front door.

10. The words ‘proper purpose’ [sic: the words were ‘proper purposes’] and ‘reasonable enjoyment’ of the property mean, in my judgment, that that must be a qualification to the right to use the right of way in that way. Of course, these are not terms of art, and the court must therefore interpret them in the light of the surrounding circumstances as Lord Justice Nourse indicated.”

7.	In paragraph 9, therefore, the judge interpreted the grant as confining the permitted use of the footpath to such use as was “not convenient or proper to be done or contemplated through the front door.” After referring to two documents, to which I shall come, he returned to the theme of what the grant meant. In paragraph 15 he recognised that, however it was interpreted, it would inevitably result in some intrusion into the respondents’ privacy, but he again said that the two key phrases he had identified (again misquoting one as reading “proper purpose”) did not grant the dominant owners “carte blanche to use this right of way as they please for any purpose they choose, at any time.” In paragraph 16 he redefined the grant as being one “for purposes for which the front door is unsuitable or indeed impossible” and in the same paragraph he said that “the right must be linked to uses where it is not practicable to gain access through the front door ….” In paragraph 17 he arrived at his final formula, in which he said that the grant restricted the use of the right of way over the path “to those purposes for which access through the front door is impractical or impossible, or contrary to good common sense and good housekeeping.” He explained the latter part of that on the basis that whilst the appellants’ daily dog walking outings could ordinarily be done via the front door, when it is wet and muddy “it would perhaps be reasonable to take it round the back.”

8.	The outcome was that in paragraph 3 of his order the judge made a declaration in the following terms: 

“It is declared that the nature and extent of the right of way granted in favour of the occupiers of [No. 34] over the footpath shown coloured yellow on the plan annexed [to the 2001 transfer] is such that it is to be exercised only in circumstances where the use of the front door for entering or leaving [No. 34] is not reasonably practicable”

The judge made no further relevant order on the claim save that the appellants were to pay the respondents’ costs.  

9.	Before leaving the judge’s judgment there is another matter I must mention.  In considering the interpretation of the grant, the judge referred to two documents by which Pendle Borough Council or their officers had themselves sought to interpret it. The appellants resisted reference to the documents as being inadmissible for the purposes of interpreting the grant but the judge took them into account and said he regarded one of them as significant, namely a letter to the appellants dated 26 February 2002, which was five months after the grant of their easement. The letter was from the Borough’s Estates and Property Services Manager and read:

“I am in receipt of a complaint from the Housing Services Manager concerning your reserved right of access along the gable and rear elevation of the adjoining property [No 36].  

Please note that, in accordance with the sale-off of this property, which was completed on 21st September, 2001, the reserved right of access is for reasonable use only to enter into the rear garden.  It is not considered unreasonable for this right of access to be used for deliveries to your property or for the binmen to collect refuse, however, visitors to your property should predominately [sic] use the front door and not avail themselves to the rear garden of your neighbours.  

In view of the above I should appreciate your showing consideration towards your neighbours by encouraging visitors to your property to make use of your front door.”

The judge explained the other document as follows :

“12.  The other document … is an unheaded, undated document, which I believe gives an idea of what was in the minds of the grantors, or some of them, when they made this grant.  But of course it is not authoritative. We do not know exactly who wrote it.  It purports to come from somebody in the council and it purports to be their interpretation of what is reasonable use of the right of way and what is not. Mrs Brooks told me that she was given that document by someone called Sandra when she asked for the council’s advice on the problem and she was told that the court drew up this document.  She said she has always had that document since they bought the property and understood it to define what was reasonable use of the property. It gives examples of what the author regarded as reasonable, and what the author regarded as unreasonable. The unreasonable examples are using the access instead of the front door for normal daily use, using the access for any use late at night, riding a bicycle around the property to gain access to the adjacent property, and visitors using the property, except in relation to the delivery of goods.

13.  On the face of the document its provenance is of course uncertain, and it has been introduced at quite a late stage in these proceedings, so I have not given it any great weight when reaching my conclusions in this case, although somebody in the council seems to agree with the author of that letter which I have just read that there was a distinct purpose behind this grant which the council had in relation to user.”

I suspect that the judge’s reference to “the court” having drawn the document was a mistake. It is apparent from what he said that the judge attached at least some weight to this document in interpreting the grant although not great weight. It is also an inference that he attached probably greater weight to the quoted letter which he said he regarded as significant. He would not have referred to either document if he had not regarded them as relevant and admissible in relation to the interpretation of the grant.  

The appeal  
10.	Mr Clegg, for the appellants, submits that the judge’s decision was wrong in material respects. He was wrong to place reliance on either of the two documents because they were inadmissible for the purposes of interpreting the grant in the 2001 transfer. He was wrong to interpret the grant in the restrictive way he did, for which there was no justification either in the words of the grant or in the light of the circumstances in which it was made.

11.	As regards the first point Mr Clegg is, I consider, plainly right and Mr Goodbody for the respondents did not argue otherwise, at any rate in his oral address. The judge’s task was to interpret the grant by ascertaining the nature and extent of the right of the way of the footpath that it granted. The respondents were contending for a restrictive interpretation. The appellants were contending for an interpretation in accordance with what they asserted was the natural meaning of its language. The dictum of Nourse LJ from White v Richards, which the judge cited, was a succinct summary of the correct approach of the task before him, one which echoed the like observations of Sir John Pennycuick when giving the judgment of this court in St  Edmundsbury  and Ipswich Diocesan Board of Finance v Clark (No. 2) [1975] 1 WLR 468, at 476, where he said : 

“One must construe the document according to the natural meaning of the words contained in the document as a whole, read in the light of the surrounding circumstances.”

12.	One thing, however, which is clear is this. Although the task of the court is to ascertain the intentions of the parties as expressed in the language in which they have chosen to frame the grant, the one area of evidence that is wholly inadmissible for that purpose is the direct evidence of what the parties, or either of them, actually intended by it. That is not part of the admissible background evidence and such evidence is admissible only in a claim for rectification, which the present claim was not. The principles applicable to the interpretation of contracts explained by Lord Hoffmann in his speech in Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1998] 1 WLR 896, at 912H to 913E, make this clear, and they apply as much to the interpretation of an express grant of an easement as they do to a contract: see Mobil Oil Company Ltd v. Birmingham City Council [2002] 2 Property Planning & Compensation Reports 186, paragraph 24; and Partridge v. Lawrence [2004] 1 Property Planning & Compensation Reports 176, paragraph 28. In my judgment, if and so far as the judge placed reliance on the two documents or either or them as reflecting Pendle Borough Council’s intentions as to the nature of the grant, he was wrong to do so. They were inadmissible. Alternatively, if the documents amounted to no more than Pendle Borough Council’s opinion as to the true interpretation of the grant, they were similarly inadmissible. The interpretation of the grant raised a pure question of English law upon which opinion evidence is inadmissible.

13.	The appellants’ second point is that the judge was anyway wrong in interpreting the grant in the restricted way he did. I agree. Despite Mr Goodbody’s valiant defence of his judgment, I consider that the judge was in error in this respect as well.  The grant was one that was exercisable “at all times” over the footpath for the purposes of access to and egress from the rear of No. 34 “for all proper purposes connected with the reasonable enjoyment of the property ….” The appellants had been using No. 34 as a residential dwelling house and there is nothing to suggest that their enjoyment of No. 34 as such either has been or is in any manner unreasonable. The purposes for which they have used the footpath are perfectly proper purposes connected with their perfectly ordinary occupation of No. 34 as a domestic residence.  There is at least one obvious implicit limitation in the grant, namely that it cannot be used by vehicles. That is apparent from its physical circumstances and from the fact that it is expressly described as an easement over a “footpath”. There is, however, nothing else in the grant that cuts down the right of the appellants as dominant owners to use it in connection with all proper purposes connected with the use of No. 34.  If they were to start using No. 34 for some improper purpose -- perhaps some illegal or immoral purpose -- then it would probably follow that they could not use the footpath in connection with that purpose. Or if they were to start enjoying the use of No. 34 in a manner that could fairly be characterised as unreasonable, then it would probably also follow that they could not use the footpath in connection with such use. But neither of these hypothetical examples is in point. In my judgment the grant plainly gives the appellants as dominant owners an unrestricted right to use the footpath for the purposes of access and egress in connection with their ordinary domestic activities as a household living at No. 34.  

14.	I have referred to the judge’s varying interpretations of the restriction that he would place on the grant and have set out the declaration he ultimately made.  In my judgment, as follows from what I have said, there is no warrant for the interpretation reflected in the declaration. If the intention of the parties were to restrict the easement to a right of way in circumstances when access via the front door is not reasonably practicable, the grant would have said so. I am conscious that in disputes about the construction of a document the argument that “if that is what they meant they could easily have said so” is often only of little weight. But in this case I regard it as of considerable weight. That is because the essence of the judge’s interpretation, and of Mr Goodbody’s argument in defence of it, is that what these parties really intended by the grant was that the use of the footpath for access purposes should be entirely subordinate to the use of the front door for such purposes, and should not be used at all save in those relatively rare and exceptional circumstances when the use of the front door was not reasonably practicable. The judge’s decision was that that interpretation is implicit in the language in which the parties have chosen to frame the grant, namely a right of way exercisable “at all times … for all proper purposes connected with the reasonable enjoyment of [No. 34]” and Mr Goodbody focused in particular on the use of the words “proper purposes”.  But the quoted words are entirely general and grant an unlimited right of access for the proper purposes described. To interpret them as did the judge is to emasculate the right they granted. No draftsman who understood that the parties’ intention was to limit the grant to a right of access only when access through the front door was impracticable would have drafted the grant in the wide and general terms that were in fact used, being terms which, with respect to the judge, do not begin to justify the interpretation he attached to them. The draftsman would have called a spade a spade and drafted the easement in a way which expressly limited its enjoyment to circumstances in which the use of the front door was impracticable.

15.	In my judgment, therefore, the grant gives the appellants the rights that they assert and they are entitled to use the footpath in the way they have been using it since 1994. With respect to the judge, he did not interpret the grant, he rewrote it. Having done so, he made a finding that the appellants’ use had been excessive. Had he been right on the interpretation of the grant he would have been right so to find. In my judgment he was wrong in the interpretation of the grant and so equally wrong in his finding of excessive use.

16.	I would allow the appellants’ appeal and set aside the declaration which the judge made in paragraph 3 of his order.

Lord Justice Sedley 

17.	The sole question is what this grant permits.  The documents relied on by the judge are, for the reasons given by Rimer LJ, not legitimate aids to this exercise.  The only limits the grant itself contains, apart from the characterisation of the access as a footpath, are that it may be used for all proper purposes connected with the reasonable enjoyment of the defendants’ house.  The implicit limitation found by the judge was the one, reflected in his declaration, that it was not proper or reasonable to use the back path when the front door could be used.  To read the grant in this way is to read it as if rather than “all proper purposes” it said “all necessary purposes”.  

18.	While I agree with Mr Goodbody that the words “proper” and “reasonable” are there for a purpose, and while I accept that the words may legitimately derive colour and effect from the surrounding circumstances, I do not think any help comes from the circumstances on which Mr Goodbody relies.  These are that: 

“The defendants have an alternative to the use of the back door for access and egress, namely a perfectly good front door.

The right of way follows a path that leads along the rear wall of the claimant’s house and passes directly in front of the patio window to the claimant’s living room.

Use of the right of way inevitably disturbs the claimant’s privacy.”

19.	The whole purpose of the easement is to let the defendants use the rear path if and when they wish to, inevitably compromising the claimants’ privacy.  By themselves, therefore, these factors add nothing.  What remains is a right to the defendants to use the rear path at will so long as their purposes are proper and the enjoyment of the defendants’ house with which the purposes are connected is reasonable.  What the judge’s declaration by contrast restricts is not improper use or unreasonable enjoyment but the defendants’ freedom of choice as to whether they will use the path.  If they choose to use it when they could perfectly easily use the front door they may well be behaving inconsiderately but they are doing nothing unlawful.  I therefore agree with my Lord that this appeal succeeds.

Lord Justice Ward:  

20.	I agree.  The question is one of construction of the grant, it provides for a right of way “at all times”.  Those words are wide enough to embrace using the right of way early in the morning at the times of which complaint was made, namely about 7.00 in the morning, or late at night, which seems to be before midnight, but in any event “at all times” is wide enough to encompass the use of which complaint is made.  The right of way is then for the purposes of gaining access to and egress from the rear of the property and the important words “for all proper purposes connected with the reasonable enjoyment of the property”, they are the words that fall from construction.  “Proper purposes” can be considered by way of looking at the antithesis “improper purposes”.  There was nothing improper about the children riding their bicycles along the footpath; there was nothing improper about walking the dog along the footpath; there was nothing improper about the husband using the footpath to go to the road to his car, even if he could have gone out of the front door to do so.  Was that connected with the reasonable enjoyment of the property?  Mr Goodbody did not attempt to argue that it was not.  It seems to me therefore that there was no justification at all in the judge’s alteration of the plain meaning of those words by substituting for them the declaration he gave.  I too would allow this appeal for the reasons more fully given by my Lords. 

Order: Appeal allowed