Case No: A3/2011/0093
Neutral Citation Number: [2011] EWCA Civ 1618
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE FIELD
HC09C04646
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2011
Before :

LORD JUSTICE RIX
LORD JUSTICE ETHERTON
and
LORD JUSTICE PATTEN
- - - - - - - - - - - - - - - - - - - - -
Between :

	Maioriello & Ors 	Appellant	
	- and -		
	Ashdale Land and Property Company Limited	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr George Laurence QC and Mr Graeme Kirk (instructed by The Hawkesley Partnership LLP) for the Appellant
Ms Emily Windsor (instructed by Charles Russell) for the Respondent

Hearing dates : 17th November 2011
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Etherton : 
Introduction
1.	This is an appeal by the twelfth defendant, Felix Cash, from the order of Mr Justice Field dated 20 December 2010 by which, among other things, he granted a declaration that the claimant, Ashdale Land and Property Company Limited (“Ashdale”), is entitled to obstruct all access over an access road (“the access road”) leading to land owned by Mr Cash (“Mr Cash’s land”) and he granted an injunction restraining Mr Cash and the second to eleventh defendants from entering upon or passing along the access road, save for the purpose of removing their possessions.
2.	Mr Cash claims that the declaration and injunction in the order are wrong in principle in preventing him lawfully exercising an undisputed right of way over the access road attaching to his land.  The appeal raises the unusual issue as to whether, and in what circumstances, the owner of land subject to a right of way, is entitled to block the way in such a manner as to preclude the excessive and so unlawful use of the way by one dominant owner if that is the only way to prevent unlawful use of the way by one or more other dominant owners of a similar easement.
The background
3.	
D2-11
(“the Sammon land”)

			1 D12 (Appellant)

The land which is the subject of this dispute is situated in the village of Ripley in Surrey.  The access road is an unmade road running from Ripley High Street, past some cottages known as West End Cottages, to a plot of open land, which was originally owned as one site (“the Site”) by Ashdale, but is now divided into different plots owned by various of the twelve defendants.  Ashdale owns the access road, one of the West End Cottages and a neighbouring paddock.   The Site and the access road are conveniently schematically represented in Mr Cash’s skeleton argument as follows:

D1

Access road:
C (Respondent)

4.	In 1995 the Site was sold by Ashdale to Domenico Maioriello (“Mr Maioriello”), the father of the first defendant, Girolomo Maioriello, with the benefit of a right of way over the access road in the following terms:
“a right of way in common with the Vendor and all other persons authorised by it who have or may have a like right at all times and in connection with the use of the property hereby transferred for agricultural purposes only with or without vehicles farm machinery and animals over and along [the access road] …”
5.	In April 2003 Mr Maioriello transferred the Site to the first defendant.   
6.	In August 2003 the first defendant sold part of the Site (“the Sammon land”) to the third defendant, Jeanette Sammon, together with a right of way “with or without vehicles farm machinery and animals” from the end of the access road, where it joined the Site, along a track across the first defendant’s retained land to the Sammon land.   That right of way, therefore, was not limited to agricultural purposes.  On various dates in 2008 the third defendant sold off parts of the Sammon land to the fourth, fifth and sixth defendants respectively with the benefit of that right of way for all purposes over the first defendant’s retained land.
7.	The first defendant sold off various parts of his retained land to other defendants.  Mr Cash’s land, which comprises about eight acres, was transferred to him by the first defendant on 23 November 2009.  He purchased it prior to auction for the guide price of £82,000.  The transfer was subject to, among other things, the right of way of way for all purposes to the Sammon land.
8.	At the end of March 2009, prior to Mr Cash’s purchase, a number of travellers moved onto the Sammon land and started to live there in caravans.  They gained access by passing along the access road and then along the track over that part of the first defendant’s retained land which was subsequently sold to Mr Cash.  In early April 2009 large quantities of hardcore were deposited on the Sammon land, and a gate at the entrance onto the Site was removed.  Lorries, vans and cars were frequently driven along the road to the Sammon land, often at high speed.
9.	On 29 June 2009 Guildford Borough Council ("GBC") issued an Enforcement Notice against the second, third and fourth defendants and the occupiers of land to the rear of West End Cottages, ordering that the use of that land as a caravan site should cease.  On 25th September 2009 the second, fourth, fifth and eighth to eleventh defendants, together with some of the occupants of the Sammon land, applied retrospectively for planning permission for the change of use of the Sammon land to a private gypsy and traveller site comprising eight pitches, each with an amenity building and associated hard standing.
10.	Mr Cash did not purchase his land for agricultural purposes, but for use as a traveller caravan site.  On Saturday 28 November 2009, which was a few days after Mr Cash purchased his land from the first defendant, he organised the transportation of large quantities of hardcore onto it.  He used the hard core to lay a road through his land and also to form hard standing for eight caravan plots. 
11.	On 4 December 2009 GBC issued a Temporary Stop Notice addressed to the occupiers of the Site ordering that the formation of hard surfaces, paths, roadways and any activity including the provision of sewerage, water and electricity infrastructure associated with the use of caravans for residential purposes should cease immediately.
12.	Lorries and men under Mr Cash’s direction continued to work on his land during Saturday 5 December 2009. 
13.	On 8 December 2009 Ashdale issued a claim form against the first to seventh defendants (that is, including persons unknown using the road for non-agricultural purposes) for, among other things, an injunction restraining them from passing along the access road for any purpose other than agricultural purposes.  On the same day Mr Justice Sales granted Ashdale an interim injunction restraining the first seven defendants  from passing along the access road onto the Site with any vehicles or trailers other than motor cars and/or with any construction equipment or building equipment. That order was continued by Sales J on 18 December 2009 until 12 January 2010. 
14.	On 23 December 2009, in separate proceedings, GBC obtained an interim injunction under the Town and Country Planning Act 1990 restraining the first and seventh defendants and Mr Cash from using the Site in breach of planning control. 
15.	These orders were ignored by the occupiers of the Sammon land. Lorries, trailers, vans, caravans and construction equipment passed along the access road throughout the day and night.  Accordingly, on 12 January 2010 Ashdale sought and was granted by Mrs Justice Proudman in the present proceedings a continuation of injunctive relief until judgment or further order in wider terms than the earlier orders, in that her order restrained the first seven defendants from passing along the access road with any vehicles and/or construction equipment or building materials whatsoever.
16.	The order obtained by GBC and the injunction granted by Mrs Justice Proudman were ignored.  Ashdale decided that committal proceedings were impractical.  Ashdale decided to take self-help measures.  On 23 February 2010 it placed four large concrete blocks towards the end of the access road where it abuts Mr Cash's land.  That prevented vehicular access to the Site, but allowed for wheelchair and stretcher access.  The occupiers of caravans on the Sammon land continued to use the access road on foot.  They began to park vehicles along the access road, which greatly inconvenienced the neighbouring residents.  
17.	On 15 February 2010 the retrospective planning application for permission to use the Sammon Land as a gypsy and travellers caravan site was refused.  Some of the defendants appealed, but they subsequently withdrew their appeals.
18.	 On 25 February 2010 and 1 March 2010 some of the defendants attempted to "break through" the concrete blocks, causing damage to Ashdale's paddock and fence.
19.	On 22 March 2010 GBC issued an Enforcement Notice requiring that the use of the Site as a caravan site should cease; all caravans and mobile homes be removed; and all hard surfaces and the resulting materials be removed.
20.	The eighth to eleventh defendants were in due course joined to the proceedings.  Mr Cash was joined as a defendant on his own application by order of Master Price on 2 June 2010.
21.	In the amended Particulars of Claim Ashdale claimed, among other things, a declaration that Ashdale was entitled to obstruct all access, alternatively all vehicular access, to the Site from the access road; an injunction restraining the defendants from entering or passing along the access road with or without vehicles, or alternatively from entering or passing along the access road for any purposes other than agricultural purposes; and damages.
22.	On 21 June 2010 GBC obtained an injunction unlimited as to time against the the first defendant, Mr Cash and persons unknown restraining them, among other things, from occupying the Site for residential purposes or using it for stationing caravans or mobile homes for human occupation or residential occupation.
23.	The concrete blocks were from time to time temporarily lifted to allow caravans to leave the Site.  At the date of trial five caravans remained on the Sammon land.  They were occupied by four men, a group of three women and two young children.
The trial and the judgment
24.	The trial of the action took place on 30 November and 1 December 2010.  The second and third defendants were debarred from defending the claim by an “unless” order made by Master Price on 2 June 2010.  On the first day of the trial Ashdale and the first defendant reached terms of settlement, and a consent order was made by the Judge, by which, among other things, it was declared that Ashdale was entitled to obstruct all access over the access road; the first defendant was restrained from entering or passing along the access road with or without vehicles; and the first defendant was given permission to apply to vary the order and/or restore his access after a period of two years from the date of the order.  The fourth to sixth and eighth to eleventh defendants did not appear at the trial.  That left only Mr Cash.
25.	Ms Emily Windsor, who appeared from Ashdale at the trial, as she has on this appeal, submitted to the Judge that the only effective permanent way of preventing repeated acts of trespass on the road by the defendants was for Ashdale to obstruct all access to the Site.  The Judge summarised her reasons for that submission as follows:
“[23] …The usual remedy of injunctive relief had been tried and found to be seriously wanting because the court's orders had been repeatedly ignored and it was not practicable to enforce those orders through committal proceedings. If Ashdale were entitled only to an injunction, whether to restrain access for purposes other than agricultural purposes, or all access, gypsies would be back on the Defendants' land using it as a caravan site within a short period of time. Moreover, there was a risk that land to the south of Mr Cash's land would be put to similar use. A Land Registry Plan obtained by Ashdale's Property Manager, Mr William Bromwich, shows the lotting up of that parcel of land into small plots access to which would likely be sought via the road and Mr Cash's land. Miss Windsor also submitted that unless Ashdale were allowed to deny all access to the Defendants' land, it would continue to suffer physical damage to the road (which was unmade up) and damage to the value of 6 West End Cottages and the paddock, because, short of such a measure, those occupying the Sammon land would remain there and continue to gain access thereto by coming on and passing along the road.”
26.	Mr Cash was prepared to submit to an injunction restraining any use of the access road for any purpose other than an agricultural purpose, but was strongly opposed to the granting of any more extensive relief.  Mr Graeme Kirk, who appeared as Mr Cash’s counsel at the trial and is his junior counsel on this appeal, submitted to the Judge that it would be wholly disproportionate for Ashdale to be permitted to obstruct all access to Mr Cash's land, thereby preventing him from using it for agricultural purposes and seriously depreciating its value. 
27.	The Judge described ([27]) Mr Cash as an ethnic gypsy of Irish descent who had been successful in business, as the owner and operator of a paving company and the owner of two traveller caravan sites.  The Judge described the background to Mr Cash’s purchase of his land, including the fact that, between contract and completion, Mr Cash discovered that the right of way over the access road was exercisable for agricultural purposes only, and the land he was purchasing was subject to a right of way in favour of the Sammon land but which was not restricted to use for agricultural purposes.
28.	The Judge found ([30]) that Mr Cash bought his land in the hope that he would obtain planning permission for use wholly or substantially as a traveller caravan site enabling him to sell it on to travellers in smaller plots. The Judge disbelieved Mr Cash’s evidence that, pending planning permission, he wished to use his land as pigsties or for horses and that he applied for and was granted a licence to keep animals on his land.  The Judge found that Mr Cash had put down hard standing for the sole purpose of creating caravan pitches which could be sold once retrospective planning permission had been obtained, and to encourage other travellers to buy plots and with the intention of trying to persuade GBC to recognise a fait accompli by granting retrospective permission. 
29.	The Judge said ([31]) that Mr Cash defied the Stop Notice issued by GBC by continuing on December 5 2009 to lay hard core or other pieces of hard material on the track that gives access across his land to the Sammon land.  He found, however, that apart from that, Mr Cash had complied with the various orders made against him, save for a visit to his land with his legal team on 25 August 2010.  The Judge described that as “a venial breach, if breach it was”.
30.	With regard to the applicable law, the Judge referred ([24] and [25]) to Hamble Parish Council v Haggard [1992] 1 WLR 122, Cawkwell v Russell (1856) 26 LJ Ex 34 and Bernard v Jennings [1968] 13 WLR 501, and then said:
“If in the circumstances of the case in question, an injunction prohibiting any user that was not permitted by the grant were an effective remedy, I apprehend that an English Court would not grant a declaration sanctioning steps which prevent any user of the right. However, where such an injunction would not be an effective remedy, I think that such a declaration might be granted if, having regard to the interests of all those affected by the steps proposed to be taken, such relief were proportionate, just and appropriate.”
31.	The Judge accepted ([32]) Ms Windsor's submission that the only way for Ashdale to prevent acts of trespass on the access road, both by persons wanting to expand the existing traveller caravan site of 5 caravans and by the existing occupants of the Sammon land, was to obstruct all access to the Sammon land and to Mr Cash's land. He explained his reasons as follows:
“[32] … The named Defendants and the 7th Defendants purchased the land intending to use it as a gypsy caravan site, a use that would inevitably make them trespassers on Ashdale's land. Further, at the very least, they have all been complicit in the repeated breach of the court's orders and I am quite satisfied that if there were vehicular access to the Sammon land, gypsies would return in numbers to live there in caravans with the result that the road would be physically damaged and the value of 6 West End Cottages and the nearby paddock would be significantly depreciated. Mr Cash purchased his parcel of land to sell it on to gypsies on the back of the development of the Sammon land as a gypsy caravan site. He is an experienced business man. He could and should have consulted his solicitor and raised standard enquiries before contracting to buy his parcel of the land. Had he taken these elementary precautions he would have known before agreeing to purchase the land, as he did before completing the transaction, that access to his land and to the Sammon land was dependent on a right of way limited to use for agricultural purposes only. He would have known that the use intended for the Sammon land and his land would inevitably involve non-permitted user of the road. Thus, in completing the transaction as he did, he took a calculated risk that planning consent would be forthcoming and that the owner of the right of way could be persuaded to enlarge the right. That gamble has seriously back-fired, as he acknowledged in evidence. In my judgement, he has no genuine intention to use the land for agricultural purposes and is adopting the stance he has taken in these proceedings in an attempt to pressurise Ashdale into buying him out. The prevention of all access to his land will therefore have considerably less impact than it would if he genuinely intended to use his land for agricultural purposes. On the other hand, anything less than complete obstruction of all access to Mr Cash's land and the Sammon land will be ineffective in preventing future acts of trespass on Ashdale's land. In the circumstances of this exceptional case, I am of the view that Ashdale's interests must prevail over those of Mr Cash and that the court should make the declaration sought against all of the 2nd to 12th Defendants. ”
32.	The Judge said ([33]) that he would, however, give all of the second to twelfth defendants liberty to apply for modification of the court's order if that was justified by subsequent events.  He was also of the view that the occupiers of the Sammon land should be given a reasonable opportunity to remove the five caravans still parked there and to leave the Site with their other belongings before all access to the Sammon land was obstructed.
33.	Paragraphs 1, 2 and 3 of his order, which are the only ones necessary to set out for the purposes of this appeal, are as follows:
“1. There shall be a declaration that the Claimant (and any successors in title) are entitled to obstruct all access over the access road forming part of HM Land Registry Title No SY221051 and leading from Ripley High Street, Ripley, Surrey and shown coloured blue on the plan annexed hereto (“the Access Road”) to the site behind West End Cottages, Ripley shown edged blue on the same plan (“the Site”).
2. The Second to Twelfth Defendants are restrained, whether by themselves, their employees or agents or otherwise howsoever from entering upon or passing along the Access Road, with or without vehicles (or from licensing or inviting any other persons visiting the Site to do so)  SAVE THAT the Second  to Twelfth Defendants may on such date prior to 28 February 2011 as the Claimant shall specify upon at least 7 day’s notice, between the hours of 11am and 3pm only, use the Access Road for the purposes of removing their possessions from the Site.
3. The Second to Twelfth Defendants shall have liberty to apply for the modification of this order in the event that such an application can be justified by subsequent events.”
Between judgment and the hearing of the appeal
34.	Following the order, all but one of the caravans was removed from the Site.  The one remaining caravan is unoccupied.  No one is living there.
35.	Ashdale has placed substantial concrete blocks across the access road which prevent all access from the access road to the Site.
The appeal
36.	Mr Cash has been given permission to appeal against paragraphs 1 and 2 of the Judge’s order, and submits that they should be set aside.
37.	Mr George Lawrence QC, for Mr Cash, emphasised the brevity of the period from 26 November 2009 to 5 December 2009 during which Mr Cash exercised the easement along the access road unlawfully and that, although Mr Cash was in breach of the Stop Notice issued by GBC by virtue of what he did on 5 December 2009, he did not breach any order of the Court.  By the time Ashdale commenced proceedings, all unauthorised use of the access road by Mr Cash had ceased and has never since been resumed.  The Judge did not make any finding that after 5 December 2009 Mr Cash had any contact or connection with those using the access road unlawfully to gain access to the Sammon land.  Mr Lawrence submitted that, once Mr Cash had ceased his excessive use of the access road, that past unlawful conduct could not be the basis for preventing him lawfully exercising his easement over the access road in the future.  In that regard, he relied upon the following statement of May LJ in Graham v Philcox [1984] 1 QB 747 at page 756E:
“However, I doubt whether any excessive user, at least of a discontinuous easement, in whatever respect the user may be excessive, will ever of itself bring to an end or indeed suspend such an easement: see Gale on Easements, 14th ed., pp. 346, 347.  The owner of the servient tenement upon which, ex hypothesi, the excessive burden is placed is entitled to have that excessive user restrained.  The fact that a court may grant an appropriate injunction or make a declaration to this end does not in my judgment either extinguish or suspend the easement.  Provided that the owner of the dominant tenement subsequently reverts to lawful use of the easement, his prior excessive use of it is then irrelevant.”
38.	Mr Lawrence said there was no ground for suggesting that Mr Cash would repeat his unlawful conduct.  He pointed out that the Judge did not rely in his reasoning in [32] of his judgment either on Mr Cash’s past unlawful conduct or any likelihood of future unlawful conduct on Mr Cash’s part.  Mr Lawrence also emphasised that, in the light of the Judge’s order and the complete physical obstruction of the access road, Mr Cash could make no use of his land.  He could not even gain access to it to inspect it or carry out repairs to fencing, and he could not show it to a prospective agricultural licensee or tenant or purchaser.  
39.	Mr Cash’s primary position is that there was no basis for the Judge to have made any injunction against Mr Cash, and he was plainly wrong to have granted an injunction which restrained Mr Cash from even lawful exercise of his easement over the access road; further, the Judge should not have authorised any obstruction of the access road that would interfere with such lawful exercise of his easement.  In the course of his oral submissions, Mr Lawrence adopted a secondary position.  This fell into two parts.  He said that Mr Cash would not object to a locked gate on the access road, provided Mr Cash was given a key and he had liberty to apply to the Court. Further, while Mr Lawrence did not challenge the Judge’s conclusion that a complete obstruction of the access road was the only course of action that would be effective to make the owners and occupiers of the Sammon land cease their unlawful use of the access road, he submitted that the Judge was wrong in principle not to provide in the order for access to be given to Mr Cash if he should want to use the access road lawfully for agricultural purposes.  He submitted that it was wrong to require Mr Cash to return to the Court to persuade the Court to alter the order should he wish to exercise his easement lawfully, particularly when no guidance was given by the Judge as to what circumstances would be sufficient to enable Mr Cash to secure any such modification.
40.	Mr Lawrence submitted that it is a novel proposition, and one which is not correct as a matter of law, that a successor in title to part of the dominant tenement which has the benefit of a right of way is subject to the possibility that his or her lawful exercise of the right may be restricted in order to prevent those who own other parts of the dominant tenement exercising the right of way excessively.   He said that the correct response to such excessive use was for the servient owner to take appropriate steps against those whose conduct was unlawful, including enforcing orders of the Court by proceedings for contempt.  The correct principle, he said, is that the successor in title to the grantee of a right of way has a property right which must be respected, even if others may abuse the right of way in the teeth of injunctions.  His case is that the Court has no jurisdiction to detract from that right.  
41.	Mr Laurence submitted that the cases relied upon by the Judge in his judgment are irrelevant.  They did not concern a situation like the present, in which the owner of the dominant tenement has a discontinuous easement, which he has not threatened to exercise in an unlawful manner, and any unlawful exercise of which could be dealt with in the ordinary way by an injunction restraining any exercise of it otherwise than for the specified purpose.  
42.	During the course of his oral submissions in reply, Mr Laurence applied to amend Mr Cash’s statement of case by adding a counterclaim for a mandatory injunction requiring Ashdale to remove any physical obstacle preventing access to Mr Cash’s land, and for an injunction prohibiting Ashdale from placing any obstacle preventing Mr Cash’s access to and quiet enjoyment of his land or from exercising his lawful right of way over the access road. 
Discussion
43.	Mr Cash’s land has the benefit of the agricultural easement. It is a legal right of property, technically an incorporeal hereditament held for an interest equivalent to an estate in fee simple absolute in possession.  The declaration and the injunction in the Judge’s order are framed in such extensive and absolute terms as to amount to a complete negation of that property right.  The declaration declares the right of Ashdale and its successors in title without any limit of time or circumstances to obstruct all access over the access road.  That is matched by the injunction in the order, which restrains Mr Cash from using the access for any purpose, other than, for a limited period and on notice, using it to remove his possessions from the Site.
44.	The Judge was doing his best to address in a pragmatic way an unusual set of circumstances, namely deliberate and persistent use of the access for non-agricultural purposes by travellers intent on using part of the Site as a caravan site in breach of planning laws.  They had made improper use of the access road in breach of no less than three interim injunctions.  Other important aspects of the context for the Judge’s order were emphasised by Ms Windsor.  She said, for example, that the persistence of the wrongful conduct of the travellers occupying or visiting parts of the Site included repeated damage to barriers erected across the access by Ashdale, including the destruction of three sets of gates and the removal of very heavy slabs of concrete.  She said that the occupiers of the caravans on the Site were constantly changing and could not easily be identified, and so it was not practically possible to enforce the interim injunctions, and might be impossible to enforce any permanent injunction, by committal proceedings for contempt.  Furthermore, she said that, even the laying of blocks across the access capable of obstructing only vehicular access, had not prevented the continued use of the Site for the maintenance and occupation of caravans and the unlawful use of the access road for that purpose.  Cars were simply left outside the Site and access gained by foot.
45.	In the light of those and the other matters mentioned by the Judge in his judgment, the Judge was entitled to reach the conclusion that an unusually draconian order was the only practical way of stopping the unauthorised use of the access road by travellers.  The first defendant consented to the order against him, and the second to eleventh defendants did not attend the trial.  They have not appealed against the form of the declaration and the injunctions against them.  They have made no application to the court to modify the Judge’s order pursuant to the liberty to apply in paragraph 3 of the order.  It is not necessary in those circumstances to question the appropriateness of the order so far as it affected them.  
46.	The position of Mr Cash was not like theirs.  The Judge acknowledged in his judgment that, save for a visit to the Site by Mr Cash and his legal team in August 2010 (which, as I have said, the Judge described as “a venial breach, if breach it was”), Mr Cash was not in breach of any order after 5 December 2010.  The Judge did not refer to any evidence and made no finding that Mr Cash was likely to breach any order in the future or to use the access road unlawfully in the future.  The Judge made no finding that Mr Cash had any relationship with the occupants of the Site or those associated with them which implicated him in their continued unlawful use of the access road or of the Site in breach of the injunctions.  The Judge relied upon Cawkwell v Russell (1856) 36 LJ Ex 34 and the decision of the Court of Appeal of Trinidad and Tobago in Bernard v Jennings [1968] 13 WIR 501 as authority for the proposition (in [27)] of his judgment) that, where an injunction prohibiting any user that was not permitted by the grant would not be an effective remedy, the Court might grant a declaration sanctioning steps that would prevent any user of the right if, having regard to the interests of all those affected, such relief were proportionate, just and appropriate.  
47.	Those cases are not, in my judgment, authority supporting the remarkably wide declaration and injunction, without time limit, against Mr Cash.  Nor do they support the proposition of Ms Windsor on the hearing of this appeal that, unless and until Mr Cash can satisfy Ashdale or the Court that travellers or others will not or cannot not use the access road unlawfully if the access road is not wholly blocked, Ashdale will be entitled to continue wholly to obstruct the access road, including lawful use by Mr Cash pursuant to the agricultural easement.
48.	In Cawkwell v Russell  the plaintiff had a right to pass clean water from his land through a drain on the defendant’s land.  The drain was instead used to drain foul and filthy water from houses on the plaintiff’s land.  The defendant stopped up and obstructed the drain.  The plaintiffs claim was dismissed.  In the Court of Exchequer Pollock CB said (at p. 36) that:
“where a party has a limited right of this kind, and exercises that limited right in excess, so as to produce a nuisance, the only remedy, and the only way whereby the party can protect himself is by stopping the whole, as was done in a case deciding  … that if a man has a limited window, and he enlarges it considerably, the only way in which the person who is annoyed by the enlargement of the window can prevent that nuisance is by erecting a barrier and stopping the whole up.  The party who is in that way prevented from the exercise of a limited right because he has turned it into a larger claim, has no other resource than to reduce his window to a proper size and then insist on having it, in that altered condition, tolerated in overlooking the tenements in the neighbourhood.”
49.	Alderson B said (at p.36):
“If a man has a right to send clean water through my drain and chooses to send dirty water, every particle of the water ought to be stopped, because it is all dirty.”
50.	That case is authority for the proposition that, where the defendant has the benefit of an easement and increases its use excessively and unlawfully in such a way that it is impossible to sever the lawful from the unlawful use, the plaintiff is entitled to prevent use of the easement until such time as the use is restricted to what is lawful.
51.	In Bernard v Jennings the appellants had a right of way on foot.  They drove vehicles along it, asserting they had a right to do so.  The respondents blocked the pathway by erecting a barbed wire fence and placing logs across it in order prevent cars from using the right of way.  The appellants brought proceedings claiming a declaration that they were entitled to a right of way on foot and with horses, carriages and vehicles at all times for all purposes along the strip.  The trial judge granted a declaration limiting the easement to a right of way on foot only.  The Court of Appeal of Trinidad and Tobago dismissed the appeal.  Fraser JA, with whom the other two members of the court agreed, said that the respondents were entitled to block the road and erect the fence in order to prevent the exercise of an unlimited right of way.  He said (p.505 H-I): 
“There is no doubt that the action of the respondents was aimed at preventing the use of the way by motor vehicles.  Such a user by the appellants and their agents would have been an excessive user and, in my judgment, if the excessive user of an easement cannot be abated without obstructing the whole user of the easement by the person who is making an unlawful excess of the user, the owner of the servient tenement may obstruct the whole of that user. 
52.	Fraser LJ cited, in support of that proposition, Pollock CB’s judgment in Cawkwell v Russell.  The authors of Gale on Easements (18th ed) doubt the correctness of those observations in Bernard v Jennings.  They say at paragraph 9-95, with regard to that decision:
“It has been held, in the case of the right of way, that if the excessive user cannot be abated without obstructing the whole user, the servient owner may obstruct the whole of that user, but this is probably wrong, because the servient owner may obtain an injunction restraining the dominant owner from use in excess of the grant, leaving it to the dominant owner to devise means to ensure compliance.”
53.	I agree with that comment, as a statement of general principle, and subject to exceptional circumstances.  It was reflected in the approach of Millett J in Hamble Parish Council v Haggard [1972] 1WLR 122.  In that case the defendants granted to the plaintiff’s predecessors in title an express right of way over a strip of land which gave access to land joining a churchyard (“parcels D and E”).  The grant of the right of way was for all purposes connected with the use and development of parcel D.  At the date of the grant, burials had taken place in parcel E but not in parcel D.  Parcels D and E were subsequently conveyed to the plaintiff for use as a public burial ground and the benefit of the right of way was assigned.  There was evidence that members of the public had used the access strip to gain access not only to parcel D but to parcel E, the old churchyard and the High Street to the north of the church.  Following the consecration of part of parcel D, the defendants became concerned about the future use of the narrow strip to obtain access to parcel D for burial purposes.  In due course they closed the access to the right of way.  The plaintiff commenced proceedings, for among other things, a declaration that it was entitled to a right of way along the narrow strip.  One of the matters Millett J had to decide was whether there had been excessive use of the right of way and, if so, whether the defendants were entitled to obstruct it.  The defendants claimed that, where there is excessive use of a right of way and it is not possible for the servient owner to bring an end to the excessive use except by obstructing the way, he may abate the nuisance by obstructing the way altogether.
54.	Reliance was placed by the defendants in that case on two passages in Gale on Easements 15th ed. (1986), in one of which there was a reference to Milner’s Safe Co Ltd v G.N. & City Railway Co [1907] 1 Ch. 208.  In that case the defendants, who had acquired the site of two houses used for business purposes with the benefit of a right of way over a passage, pulled down those houses and constructed in their place a railway station.  The consequence was that a large number of passengers on the railway used the passage.  Their use interfered with the use of the passage by the plaintiffs, who also had a right of way along the passage.  Kekewich J rejected the argument of the defendants that, since the site of the two houses was still being used for business purposes, the grant of the easement extended to use for railway purposes.  He held that the right of way was suspended because the defendants had made it impossible for the passage to be used for the purpose for which it was designed to be used and the defendants could not put forward a distinction between use by railway employees and use by railway travellers.  The case was compromised on appeal, however, by an agreement under which the order was to be changed so as to limit the prohibition to the defendant licensing and inviting railway passengers to pass along the passage, and not to preclude the defendants and their employees from otherwise using the passage.
55.	Millett J said with regard to Milner’s Safe Co (at p. 134D-E of Hamble Parish Council v Haggard):
“that was a compromise and is not, of course, binding authority, but nevertheless it does suggest that where it is possible, however, difficult, to make lawful use of a right of way or other discontinuous easement, the servient owner is entitled to an injunction to restrain excessive user and throw the burden of disentangling the two users and stopping the excessive user upon the dominant owner, but not to obstruct the user altogether.”
56.	Millett J distinguished the situation where it is impossible to sever the good user from excessive user, such as the use of a drain for foul water when only the drainage of clean water was authorised, in which case the servient owner was entitled to stop the whole discharge.  He said there was no evidence in the case before him that unlawful use of the strip by members of the public was done in purported exercise of any private right of way by licence of the plaintiff, and that the plaintiff could not be held responsible for actions of the members of the public and tourists to the area who, usually on foot, entered the strip.  He referred to evidence of excessive user in the past, and he acknowledged that, because the strip was not very wide, and not wide enough for two vehicles to pass, there would be likely to be appalling congestion when there was a funeral, with consequential annoyance to the defendants.  He held that, nevertheless, the defendants were not entitled to obstruct the use of the strip altogether.  He said (at pp.136H – 137A):
“For the moment, and unless and until there is a need to use parcel D for interment, I can see no real obstruction of this right should the gate be kept locked and a key provided to the parish council so that it can be made available for anyone needing access to parcel D.  That may not be a sufficient solution when the time comes for the parish council to use parcel D for interment, and, if not, then the defendants must not obstruct the parish council’s right as I have declared it to be.  I will give both parties liberty to apply: the parish council so that it can apply should there be any threatened obstruction of the right that the court has declared, and the defendants so that they may apply to restrain any threatened or actual excessive use in future.”
57.	I cannot see that any of those cases justifies the width of the declaration and the extent of the injunction against Mr Cash.  As I have said, his position was quite unlike the travellers formerly in occupation of the Sammon land.  Mr Cash made unlawful use of the right of way for a very short period.  He has acknowledged that he was wrong to do so, and he has not challenged the agricultural limitation on his use of the access road.  He did not breach the interim injunctions after being joined to the proceedings, and the Judge made no finding that he intended or was likely to breach any future order limiting him to lawful use of the access road. If he were to be in breach of any injunction, it has not been suggested that there would be any practical difficulty in commencing committal proceedings against him.  
58.	Mr Cash’s land is capable of being used for agricultural purposes, and, in view of the agricultural limitation to the easement, those are the only purposes to which that land can be put.  The effect of the declaration and the injunction against him in the Judge’s order is to preclude him from inspecting his land, permitting any potential agricultural tenant or licensee or prospective purchaser from seeing his land, and from carrying on any agricultural activity on the land.  If he wishes to do any of those things, he must apply to the Court for a modification of the order, with the cost, time and trouble that will inevitably be incurred.  Even the agreement of Ashdale to a proposed activity by or on behalf of Mr Cash pursuant to a lawful exercise of the easement would not avoid the need for an application to the Court.  Notwithstanding any such agreement, the declaration and injunction against him would remain in the same terms, and he would technically be in contempt of court if he used the access road himself for agricultural purposes or permitted or encouraged any professional adviser, agricultural licensee or tenant or prospective licensee or tenant or any prospective purchaser to use the access road.  They too would be in contempt if they used the access road with knowledge of the injunction.  
59.	As I read the judgment, especially [32], the justification for subjecting Mr Cash to the declaration and the injunction against him in the order, was that (1) the only way for Ashdale to prevent unlawful use of the access road by travellers was to obstruct all access to the Sammon land and to Mr Cash’s land; (2) Mr Cash took a calculated risk that planning consent for use of the Site as a caravan site would be forthcoming and the owner of the access road could be persuaded to enlarge the right of way over it; (3) Mr Cash had no genuine intention to use the land for agricultural purposes; and, (4) in those circumstances, Ashdale’s interests must prevail over those of Mr Cash.
60.	It will be apparent that none of the cases cited by the Judge in his judgment, nor any of the other cases mentioned above and cited to us on the hearing of the appeal, has gone so far as to entitle a servient owner to prevent entirely any exercise of a right of way (or other easement) by the owner of a dominant tenement because that is the only way to prevent others from persistent unlawful use of the way (or other easement).  Indeed, with regard to the nearest equivalent situation in Hamble Parish Council v Haggard, where there was evidence of unlawful use of the way by members of the public, Millett J made clear that there was no right of the defendant servient owners to obstruct the plaintiff’s lawful use of the way, even if such unlawful use by the public could not be prevented save by complete obstruction of the way.  
61.	That is consistent with basic principle.  Where the owner of land grants an easement, excessive and so unlawful use of the easement does not destroy that property interest: comp. Graham v Philcox [1984] 1 QB 747, 756 (May LJ).  Even in cases like Cawkwell v Russell, where complete obstruction of the easement is permitted because it is being used for both lawful and unlawful purposes in an indivisible manner, the easement itself is not brought to an end.  In accordance with usual practice and principle, excessive user by the dominant owner is restrained by an injunction prohibiting any use other than in accordance with the terms of the grant of the easement.  Such an injunction is enforceable by proceedings for contempt.  In addition, the servient owner may take practical steps to prevent the unlawful exercise of the easement.  In some rare situations, like that in Cawkwell v Russell, that may involve a complete obstruction of a pipe or passage, but those are cases where the manner in which the easement is being exercised means that it is impossible to separate out lawful from unlawful use.  In such cases, so long as that indivisible use is continuing, or so long as purely unlawful use is continuing, and the dominant owner shows no genuine need or intention to use the easement for purely lawful purposes, the Court will refuse the dominant owner an order for removal of the obstruction and may grant a declaration expressly authorising its retention. 
62.	Those are general principles, and each case will turn on its own specific facts.  In Hamble Parish Council v Haggard, for example, even though the plaintiff had no intention to use or to permit the use of the right of way unlawfully, Millett J permitted the defendants to maintain a locked gate, presumably so as to prevent members of the public using the way.  That was subject to the condition, however, that a key was provided to the plaintiff, and on the basis that the plaintiff did not then wish to use parcel D for interment.  Millett J stated clearly that, if the time came when the plaintiff wished to use parcel D for internment, the defendants could not obstruct the plaintiff’s right to use the easement in a lawful way.  
63.	As I understood her argument, Ms Windsor submitted that the present case is analogous to Cawkwell v Russell, on the footing that the right of all the defendants, including Mr Cash, to use the access road derived from the single grant of the agricultural easement to the first defendant’s father, Domenico Maioriello, in 1995, and it was impossible to prevent the excessive use of the right of way by the second to eleventh defendant and others without also preventing the lawful use of the easement by Mr Cash.  Further, she relied on the fact that those defendants and others unlawfully using the access road to obtain access to the Site had to cross Mr Cash’s land to arrive at the Sammon land and he had not prevented them from doing so.  Indeed, he could not do so because his predecessor in title, the first defendant, sold off the Sammon land with the right to pass over his retained land, including the land Mr Cash subsequently acquired, for all purposes.  
64.	I do not accept that there is any analogy between the present case and the type of situation in Cawkwell v Russell.  This is not a case where the defendant, here Mr Cash, has made and continues to make and intends to make use of the easement enjoyed by his land in a way in which it is impossible to separate lawful from unlawful use.  He has not used the access road unlawfully since 5 December 2009 and the Judge made no finding that he intends to do otherwise or is likely to do otherwise in the future.  As a matter of general principle, the fact that Mr Cash and other owners of plots on the Site all ultimately derive the title to their easement over the access road from the original grant by Ashdale to the first defendant’s father ought not to be relevant.  Each enjoys an independent right to an easement over the access road attaching to their respective parts of the Site.  When Ashdale granted the agricultural easement to the first defendant’s father, it created the potentiality of the easement attaching to each of numerous future subdivisions of the Site owned by different owners by virtue of express grant or the operation of the Law of Property Act 1925 section 62.  There is no principle of law that the lawful use of the easement attaching to one part of such sub-divided land can be obstructed by the owner of the servient tenement in order to prevent unlawful use of a similar easement attaching to the land of one or more other owners of other plots.  
65.	On the other hand, the grant of a declaration and an injunction is discretionary.     In the present case, there were some exceptional facts at the date of the trial.  The conduct of the travellers owning plots on the Site in using and permitting use of the access road unlawfully to gain access to caravans on the Site was quite exceptional.  It was exceptional in the persistence of the unlawful use, the force used to remove obstacles to it, the contumelious disregard of court orders and (as the Judge seems to have found) the practical inability to take proceedings for contempt for breach of court orders.  In addition, there was the fact that, after Ashdale had sold the Site to the first defendant’s father, the first defendant sold off the Sammon land with the benefit of general rights of way over his retained land abutting the access road.  By not restricting those rights of road to use for agricultural purposes, he thereby not only facilitated use of the Sammon land for non-agricultural use, but he put it out of his hands and those of his successors in title to the retained land, including Mr Cash’s land, to prevent the use of the access road for non-agricultural purposes.  Furthermore, the Judge found that Mr Cash acquired his land with the intention of developing it and selling plots on it for use as a traveller caravan site even though he knew that the access road was restricted to use for agricultural purposes.  He did so in the hope that he would obtain planning permission for use as a caravan site, and that he would persuade the owner of the access road to enlarge the purposes for which the access road could be used.  He did not, however, wait for such planning permission or the consent of Ashdale, but he immediately brought hardcore on his land and laid down hard standing to create caravan pitches which he intended to sell in due course.  Further, before he purchased his land, he knew that there were travellers on the Site, who were using it for non-agricultural purposes, and so were using the access road for non-agricultural purposes, and he knew or ought to have known that they had to cross the land he intended to purchase to arrive at their caravans and the owners of the plots on which the caravans were situated had a right to do so.  Finally, the Judge found that Mr Cash had no intention of using the land for agricultural purposes.  
66.	In the light of that exceptional combination of circumstances, I consider that it would have been within the bounds of a legitimate exercise of discretion for the Court to declare that Ashdale was entitled to obstruct all vehicular use of the access road by Mr Cash until Ashdale was reasonably satisfied that Mr Cash either himself or any licensee or tenant of his or any purchaser from him wished to use his land for agricultural purposes and required vehicular access for that purpose, or further order of the Court.  I also consider that the facts would have justified a declaration that Ashdale was entitled to obstruct all pedestrian use of the access road by Mr Cash until the earlier of (a) the vacation of the Site by the second to eleventh defendants and others then occupying the Site for non-agricultural purposes, or (b) Ashdale’s reasonable satisfaction that Mr Cash or any licensee or tenant of his or any purchaser from him wished to use the access road in lawful exercise of the easement attaching to his land (including inspecting the land, and showing it to a prospective agricultural licensee or tenant or purchaser), or (c) further order of the Court.  To the extent that the declaration in the order was more extensive than that, it was wrong in principle and should be set aside, and a declaration in accordance with the limitations I have mentioned should be substituted.  As I have said earlier in this judgment, there is no need to alter the existing declaration if and insofar as it is restricted to the second to eleventh defendants.
67.	I cannot see any principled basis for an injunction prohibiting Mr Cash from lawfully exercising the agricultural easement attached to his land.  The injunction against him should therefore be set aside and replaced by one which prohibits his use of the access road save in accordance with the terms of the original grant to the first defendant’s father.
68.	Ashdale was and remains understandably concerned about the return of travellers to the Site, where some of the defendants continue to own plots, if it is required to remove the blocks of concrete currently obstructing all access.  In principle, for the reasons I have given, Ashdale is entitled to maintain that obstruction only until lawful use of the access is intended and required by Mr Cash or any licensee or tenant of his or any purchaser from him, and Ashdale must then remove the obstruction to the extent necessary to permit such lawful use.  In the event of a dispute about whether such lawful use is intended and required, or as to the extent to which the removal of the obstruction is necessary, the parties should be at liberty to return to the Court.  I therefore consider that the order should include a general liberty to apply in addition to the liberty in paragraph 3 of the Judge’s order to apply for the modification of the order.  
69.	Furthermore, in view of the exceptional background which I have mentioned, and the terms of the liberty to apply in paragraph 3 of the order, Ashdale will be able to apply to the Court, if and when Mr Cash intends and requires to use the access road lawfully, for a modification of the order (as varied in accordance with my judgment) on the ground that, in the light of all the facts then subsisting, the Court should not in its discretion require the immediate removal of all or part of the obstruction and for any consequential alteration of the declaration.  Bearing in mind the general principles I have mentioned, the scope for such modification is likely to be limited.  
70.	I reject the application of Mr Cash for an order permitting him to amend his   Statement of Case by the proposed counterclaim for a mandatory injunction and other relief.  The application was made orally by Mr Lawrence in the course of his oral reply.  It is far too late.
Conclusion
71.	For those reasons, I would set aside the declaration in paragraph 1 of the order and substitute (1) a declaration in the same terms limited to the position as between Ashdale and the second to eleventh defendants, and (2) add a further declaration as against Mr Cash limited in accordance with what I have said in [66] above.  I would set aside the injunction in paragraph 2 of the order to the extent that it applies to Mr Cash, and would substitute an injunction restraining him from using the access road save in accordance with the terms of the original grant to the first defendant’s father.  I would also include in the order a general liberty to apply in addition to the liberty to apply in paragraph 3.
Lord Justice Patten
72.	I agree.
Lord Justice Rix
73.	I also agree.