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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Donaldson & Ors v Smith & Anor [2006] EWHC B9 (Ch) (19 May 2006) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/B9.html Cite as: [2007] WTLR 421, [2007] 1 P&CR DG2, [2006] EWHC B9 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		19 May 2006

Factual background and nature of the proceedings

1. These proceedings concern a dispute which arises from a settlement created in 1963 by the grandfather of the six defendants, the late Colonel William Douglas Gosling, who died in 1994. The claimants are the present trustees of the settlement, of which the defendants are beneficiaries. The first four defendants ("the Humphreys children" or "HC"), born between 1966 and 1972, are the children of Colonel Gosling=s eldest daughter, Petronella, who married Charles Humphreys . The last two defendants ("the Lyons children" or "LC"), born in 1975 and 1976, are the children of another daughter, Frances, who married Thomas (Toby) Lyons. Colonel Gosling had a third daughter, married as Lucy Murphy and one of the trustees: she has no children.
2. The main trust property in the settlement was the Hassobury Estate, near Stansted Mountfitchet, close to Bishop=s Stortford consisting originally of some 4,700 acres with a mansion house, farms, cottages and agricultural lands, much of it tenanted. In 1996/97 most of the estate, by then reduced to some 3,000 acres, was divided between HC and LC by the exercise by the trustees of powers of appropriation and appointment. The respective interests of HC and LC in the entire trust fund were 55.55% to 44.44%. The numerous properties were valued professionally and their division was effected in such manner as so far as possible to achieve a corresponding 55/44 split in value. In practice, this could never be achieved to perfection and it was intended that the balance either way would be made up from cash or other liquid assets held by the trustees before those general funds were themselves divided 55/44 in the final dissolution of the trust.
3. The legal mechanics of division ("the 1996 division") had two stages.
4. On 21 November 1996 the trustees executed a Memorandum of Appropriation which appropriated to HC undivided shares in value in the properties identified in the First Schedule to that Memorandum and to LC undivided shares in value in the properties identified in the Second Schedule. The legal consequence of the appropriation was to restrict each of the two groups of beneficiaries to the enjoyment, in effect the income, of that part of the trust properties appropriated to it.
5. The second stage was the appointment of the properties as designated in the appropriation to each group of beneficiaries. The appointment to LC took place the following day, on 22 November 1996: LC was anxious to crystallize the CGT liability immediately in advance of a possible increase in the rate. The appointment to HC was effected a few months later on 5 April 1997, the delay having been requested by them while a company was formed to manage the properties appointed to them. The effect of the appointments was to pass the already appropriated properties to LC and HC respectively in equal undivided shares absolutely with an undertaking from the trustees that they would at the direction of the respective group of beneficiaries transfer title to them or at their direction. From the date of each appointment the trustees were therefore bare trustees and obliged to convey the legal estate in the properties to or to the direction of HC and LC. To date there have been no such conveyances. Latterly, the primary - and perhaps the sole remaining - reason for that is the dispute at the heart of these proceedings.
6. That dispute concerns a small 29 acre tenanted farm known as Saven End Farm which formed part of the estate and the settlement. This judgment will refer to a sketch plan of that property ("the plan") and the surrounding land taken from the bundles used in the hearing before me, and which should be attached as an Appendix to the judgment.
7. While in general the trustees= geographical lines of division respected the integrity of existing farms or properties, in the case of Saven End Farm they divided the property itself in two, allocating to LC the farm buildings and the bulk of the land and to HC most of the fields to the east of the farm buildings, namely about 75% of Field A (OS 0028) and the whole of Field B (OS 0041), totalling 13.42 acres. The portions allocated to LC and HC are outlined on the plan in red and green respectively, and I shall refer to that allocated and appointed to HC as "the Green Land", and to that allocated and appointed to LC as "the Red Land"; I shall also refer to the part of Field A remaining with the farm buildings as part of the Red Land as "Red Field A". The 1996 division was effected by the trustees on the basis that the Green Land was valued as agricultural land at ,20,000 with good agricultural access, and that the Red Land, including the farm house and outbuildings, had a value of ,270,000.
8. The land to the west and north of Saven End Farm , known as Parsonage Farm, was allocated in the 1996 division to HC, but was, and remains, subject to an agricultural tenancy held by Mrs Murphy, then an oral tenancy but replaced in 1998 by a written tenancy agreement. The land to the south and east of the Green Land, known as Home Farm, inherited from her father by Mrs Humphreys, was farmed together with another farm, Hazel End, which had been acquired by Mr and Mrs Humphreys jointly.
9. Initially, the division of Saven End Farm changed nothing in practice on the ground, since Saven End Farm was let on an agricultural tenancy. The tenant Mr James Butter, then of advanced years, used the eastern fields as a whole, mainly for the grazing of horses - mostly owned by others - which were stabled in the farm outbuildings, though he also took hay and kept a few sheep. When, however, that tenancy was terminated in 2000 after the death of Mr Butter in 1999, there arose for the first time the question how HC could or should obtain access to the Green Land. For a couple of years thereafter HC passed up the Old Drive and over Red Field A through Gate 2 and later Gate 4 in a new boundary fence to take hay, and maintained that they were entitled to use this route for access. Effectively, this parallelled a public bridle way up the drive and across the fields, but HC claimed also to be entitled to vehicular access. LC said that the fields should be accessed through Home Farm, the property of the Humphreys parents. The matter became more live when in mid-2002 Mr Lyons intimated an intention to erect a post in the middle of the entrance to the Old Drive (by this time a new drive had been constructed to permit access to the farmhouse and outbuildings from the western side) and the post was subsequently installed in the latter half of that year. In 2003, in an attempt to resolve the impasse, Mrs Murphy (herself a trustee) agreed with the trustees that she would surrender a 6 metre strip from Parsonage Farm for ,1 round the west, north and north east of Saven End Farm to permit access to the Green Land starting from the public highway, but HC rejected this as an access route.
10. In these circumstances, the trustees - on the advice of Counsel - commenced the present proceedings to seek the directions of the court as to whether they had created a right of way in equity over the Red Land in favour of the Green Land, and if so where it ran. This was said to be necessary for the trustees to determine whether some adjustment in the appropriation was called for, probably by a monetary payment from general funds retained by the trustees, to restore the 55/44 split of the distribution to the two groups. After service of pleadings by the two groups of Defendants, a preliminary issue was ordered in the following terms:

"(1) Whether, upon the true construction of the documents referred to in the schedule hereto and/or such other documents as may be relied upon by the parties in the statements of case directed below, and in the events which have happened, the First to Fourth Defendants became on or after 8 October 1996 entitled to, or entitled to have included in any conveyance or transfer to them by the Claimants, any and if so what rights of way for the benefit of Field A (part OS 0028) and/or Field B (OS 0041) shown edged green on the attached plan ( "the Plan") over the land shown edged red on the Plan; and

(2) If any such entitlement as is referred to in Issue (1) above arose in favour of the First to Fourth defendants, whether the same has been released, extinguished, varied or otherwise affected by any event occurring after such entitlement arose, and if so when and in what manner."

11. It was agreed that the trustees would take no active part in the determination of this issue. Some reference has been made before me to witness statements already filed by the trustees and to written answers given by them to questions submitted by the Defendants, but neither party considered it necessary for any of them to attend to give oral evidence.

Analysis of the issues

12. From the time of the appointments the entire beneficial interest in the relevant properties passed to the beneficiaries and the trustees were obliged thereafter on request to convey the properties to them. The position of the beneficiaries was then akin to that of a purchaser of land prior to completion, who is treated as being entitled in equity to all rights appurtenant to the land (as to which see e.g. Borman v Griffith, [1930] 1 Ch 493; White v Taylor (No.2), [1969] 1 Ch 160 at 181). It is therefore necessary to consider whether conveyances to HC and LC of the legal interests in their respective parts of Saven End Farm would have carried with them the benefit and burden of a way over the Red Land into the Green Land, if such conveyances had been executed at the same time as the appointments.
13. Two alternative arguments were advanced by HC as a basis for such implication: (a) the rule in Wheeldon v Burrows; and (b) a way of necessity.

(a) Implication under the rule in Wheeldon v Burrows

14. The leading case of Wheeldon v Burrows, (1879) 12 Ch.D. 38, addresses the question whether so-called quasi-easements, namely benefits which are enjoyed by one part of a property over another part of the same property, are transformed into easements when one or both of those parts is transferred into new and different ownership. In essence, the rule (which is ultimately one of construction based on the presumption against derogation from grant) provides for the creation of

"such continuous and apparent easements or such easements as are necessary to the reasonable enjoyment of the property conveyed" (per Thesiger LJ 12 Ch.D. at 58)."

15. The rule concerns grants alone: if the owner wishes to retain rights over the part of the land which he is transferring, he must reserve them expressly - they will not arise by implication. However, where separate parcels in common ownership are simultaneously disposed of to different transferees, each will acquire by implication the same easements over any other part as it would if the other part had been retained. In this connection, it is not the date of the conveyances which is of relevance but that of the obligations which give the transferee his entitlement in equity to call for the conveyance: see Wheeldon v Burrows, 12 Ch.D at 60
16. The concept of simultaneity must be in my judgment be understood and interpreted in context, not least because these rules are ultimately guides to the ascertainment of the transferor=s presumed intentions. It is therefore not in my view the degree of chronological proximity as such which is of importance as the pointer which it may give as to the interconnection of the two dispositions by the owner to separate transferees of the two parts of his land. Ultimately, the question is whether they are to be regarded as in effect part and parcel of a single transaction.
17. In the present case that is plainly so. The appropriation was always contemplated as a stepping stone to the two appointments, however long they might ultimately take. In the event, LC were for fiscal reasons anxious to proceed to their appointment immediately, while that to HC was delayed at their request for some four and a half months. I do not regard this difference in time as destroying the "simultaneity" of the two appointments, which were both part and parcel of the process of division begun by the appropriation and continued by the appointments (and to be concluded formally by the conveyances). Put another way, from the start it was contemplated and intended that each group was - as and when it so requested - to receive the absolute beneficial ownership (and subsequently the legal ownership) of the properties and assets fixed by the appropriation.
18. I turn therefore to consider whether prior to the appointments the trustees can be said to have engaged in "continuous and apparent" passage over the Red Land to the Green Land at the time of the appointments in 1996/7. At that time, and indeed for some decades before, the land was occupied and farmed as a tenant by Mr Butter, and it is his use and enjoyment of the land which falls to be examined: there was no other or independent usage by the landlord trustees.
19. Unsurprisingly, Mr Butter passed regularly over Red Field A to the Green Land in the course of using the fields including the Green Land for various agricultural purposes. Primarily, he grazed horses (and a few sheep), took hay, controlled weeds, seeded, and pruned hedges, and to this end would pass on to the Green Land with his tractor, trailer and agricultural implements. After 1990 he also made a regular, probably weekly, trip with his tractor and trailer carrying horse dung from the stables on the Red Land to be dumped on a midden on the Green Land in Field B: this was generally done through Gate 2, though sometimes through Gate 1.
20. Considerable time and effort was spent in evidence on exploring whether Mr Butter followed any regular and discernible path in these activities. In particular, it was suggested that he normally followed a line roughly from Gate 2 on the Plan to a point where Gate 4 (in the new fence) is now situated. In support, reliance was placed on aerial photographs taken at various times in the past and present, and I heard evidence from experts on this topic. In the event, they added nothing to the evidence given by Mr Butter=s son and a neighbour, Mr Porges. The former lived in a cottage nearby, and visited his father regularly and helped him on the farm in his spare time - indeed during substantial periods of unemployment in the early 1990s Mr Butter Jnr was active on the farm much more intensively. In so far as Mr Porges' evidence differed, I consider that Mr Butter Jnr is more likely to be accurate.
21. In the result, I find that Mr Butter did not follow any regular route in passing from Gate 2 into what is now the Green Land. Even when making the weekly trip to the midden, once he had gone 20 or 30 yards into the field through Gate 2, he (or his son) would select the subsequent route primarily by the condition of the ground in various places, the sensible desire of any farmer not to wear down the grass by repeated passage over the same ground, and the whim of the day. The aerial photographs did show, starting in 1990, a substantial worn track between Gate 2 and what is now Gate 4. It became clear, however, that this was due to numerous passages in 1990 of a JCB transporting the debris of old farm outbuildings seriously damaged by a storm that year to a bonfire site just inside the Green Land. Though ever fainter traces of it persisted to the extent of being discernible in later years, this did not demonstrate subsequent systematic usage - indeed, the degree of fading as it grassed over naturally suggested rather the contrary, as was confirmed by Mr Butter Jnr=s evidence.
22. In addition, it was clear from his son=s evidence that Mr Butter on occasion would make the trip to the midden through Gate 1, though this was unlikely to happen in the winter when that route would become boggy.
23. A quasi-easement for the purpose of the rule in Wheeldon v Burrows does not require a made-up track. Nor in my view need the passage leave discernible traces. It was not in doubt that Mr Butter passed from the farm buildings through Gate 2 to the Green Land over Red Field A with his tractor and trailer on a regular basis. The requirement of "continuous and apparent" was satisfied. So too was the requirement that the passage was reasonably necessary for the enjoyment of the Green Land, namely its agricultural exploitation.
24. The absence of use of a precise way is not fatal to the creation of an easement, but it must have a terminus a quo and a terminus ad quem: see per Fitzgibbon LJ in Donnelly v Adams, 1905 I.R. 154 at 181. Some - perhaps significant - degree of latitude must no doubt be applied to the ascertainment of either terminus, but terminus there must be; and passage to any point in the Green Land crossing at any point in the line along which the new fence now runs - or even the southern half of that line - in my judgment exceeds that latitude and cannot be squared with the need for a terminus ad quem in that line. For this reason alone, the claim for a easement under Wheeldon v Burrows starting from Gate 2 must fail.
25. The same objection does not, however, obtain in the case of passage from Gate 1, where the evidence showed that a more or less direct route would always have been taken by Mr Butter over the relatively short distance. And though the use of this route was more sporadic, it was probably sufficiently "continuous and apparent" to justify invocation as a quasi-easement.
26. Whether through Gate 2 or Gate 1, there is an additional, and prior, difficulty in the way of the easement claimed by HC. The right of vehicular way which they claim begins at the entrance to the Old Drive from the public highway, following the Old Drive to either Gate 1 or veering off earlier to Gate 2 before crossing the Red Field to arrive on the Green Land. All the evidence to which I have referred does not include passage up the Old Drive from the road: on the contrary it relates to trips with a tractor and trailer or other appendages from the farm-buildings on to the fields.
27. Obviously, at some time in the distant past the tractor - by 1996 by common account very elderly - must have been brought on to the farm, probably by the Old Drive. And Mr Butter Jnr told me that until 1990 the horse dung was taken to the fields adjacent to Saven Cottage, a return trip using tractor and trailer from the farm buildings down the Old Drive, over the public highway and back by the same route. But that practice ceased in 1990. When some of the outbuildings were severely damaged by the storm, Mr Butter sharply reduced the number of horses being stabled from about 30 to around 12, and the midden in the Green Field was thereafter used. In any event, in my judgment it would not be legitimate to add any such trip by the tractor back up the Old Drive to the stables to subsequent trips from the stables to the Green Land so as to establish usage of a way from the public highway to the Green Land.
28. The few horses which were stabled and grazed at Saven End Farm after 1990 were almost all looked after by their owners on a DIY basis, as it was described by Mr Butter Jnr. But even they did not transport the horses directly on to the Green Land in horse boxes or trailers. Instead, as Mr Butter Jnr told me, they would unload the horses on the hard standing of the stable yard. And even if the boxes or trailers had proceeded into Red Field A, I can see no reason why they should necessarily have wished to go all the way to the Green Land. In short, none of this evidence demonstrated that the owners of the horses effected vehicular passage from the public highway to the Green Land.
29. For these cumulative reasons, any conveyances which had been executed at the time of the appointments would not have carried with them the benefit or burden of an easement of way implied under the rule in Wheeldon v Burrows. And it follows that the appointments did not create such an easement in equity or any entitlement to inclusion of such an easement - expressly or by implication - in the conveyances.
30. I can therefore state very shortly my conclusions as regards two further arguments advanced by LC.
31. Firstly, it was suggested that the Old Drive was unsuitable for the passage of agricultural vehicles, and in particular that there was a serious risk of such traffic collapsing the verge of the drive into the adjoining ditch. I do not consider that the expert evidence, properly analysed, established any such risk. It was also at odds with the substantial traffic of lorries with building materials and equipment which passed over the Old Drive during the refurbishment of the farmhouse after Mr Butter=s death and the works to the outbuildings after the storm in 1990.
32. Secondly, it was argued that the implication of an easement was excluded as contrary to the intentions of the trustees. In essence, this argument had two separate limbs.

(1) Reliance was placed on evidence given by the trustees= agent, Mr Shields of Savills, who drew up the proposal for partition, that he had been informed by Mrs Humphreys that the Humphreys would use the Green Land as extra sheep grazing to enable them to increase their sheep flock and access for this purpose would come from Home Farm. My findings and conclusions on this point can be stated shortly as follows:

(a) I prefer the evidence of Mrs Humphreys that, when questioned by Mr Shields whether the Green Land could be accessed from Home Farm and used for sheep grazing, she did no more than accept informally that as a possibility. Nor did Mr Shields suggest that she had given him any kind of assurance on the point, let alone one which could be thought to bind her adult children.

(b) Even if Mr Shields= version of the conversation were correct, the trustees= evidence is that they were unaware of any desire of the Humphreys family to use the Green Land as part of their sheep farming enterprise, and there is no evidence that the trustees based their decision to allocate the Green Land to HC as proposed by Mr Shields on any such intention. Indeed, it would in my view have been wrong for them to do so without the informed assent of their beneficiaries, unless the access through Home Farm were legally secured - not least since the need for access would not arise in practice until the end of Mr Butter=s tenancy, by which time intentions might have changed.

(c) The trustees were well conscious of the lands contiguous to the Green Land to north and south and the possibilities of unification that such contiguity might in time throw up. But these were necessarily speculative, and are quite insufficient for me to conclude that the trustees must have intended to exclude any other means of access which would otherwise be implied in the meantime.

(2) Reliance was also placed on advice received by the trustees from Counsel when reviewing and revising the solicitors= draft of the Memorandum of Appropriation. The draft had included in the definitions of the properties being appropriated to HC and LC the benefit and burden of easements and quasi-easements. When reviewing this, Counsel deleted the reference to quasi-easements on the basis that it would at this stage amount to the trustees attempting to create easements over their own land in favour of themselves as the owners of other lands, a legal impossibility, and indicated that the matter would need to be dealt with at the stage of conveyance. LC seek to argue from this that the trustees did not intend that the properties should benefit from quasi-easements. In my view, that is a misreading of these events. If anything, they support the contrary conclusion: that the properties should benefit from quasi-easements but - for technical legal reasons - they could not become easements until the legal ownership of the two parts was split by the conveyances. That would reinforce, rather than exclude, entitlement of each group of beneficiaries to conveyances which - whether by implication or express statement - carried with them easements corresponding to quasi-easements enjoyed at the time of the 1996 division.

Easement of necessity

33. As the leading case of Holmes v Goring (1824) 2 Bing. 76 makes clear, a way of necessity is presumed as a reserved right of way where an owner alienates part of his land over which it is necessary to pass to reach another part retained by him. This was the position upon the appointment by the trustees of the Red Land to LC in 1996. In the absence, as I have held, of an easement under Wheeldon v Burrows, the Green Land was landlocked. To the north lay Parsonage Farm, appointed to HC but let to Mrs Murphy; to the east and south was Home Farm, owned by Mr and Mrs Humphreys.
34. It is true that the question of access did not arise in practice so long as possession of the whole of Saven End Farm remained united in Mr Butters, but at the time of the appointments the end of his tenancy (to which his son was unlikely to be legally entitled to succeed) was, given his advanced years, not far off, and there was an obvious need for the implication of a way of necessity to take effect when that contingency occurred. I do not therefore regard the continued existence of the tenancy at the date of the appointments as a reason for not implying a way of necessity. Nor does there appear to be any conceptual objection to an inchoate way of necessity which matures into a full right of way when the necessity eventuates: see per Robert Walker LJ in Hillman v Rogers, [1997] EWCA Civ 3069.
35. If a claim to a such an easement is established, it is for the owner of the servient tenement to determine where the way shall lie. In practice the most acceptable route for LC would be likely to closely follow that of the bridle-way up the Old Drive through Gate 2 to Gate 4, with possibly a slight displacement to the south within Red Field A - a variant entirely acceptable to HC.
36. The public bridle-way provides access as of right on foot and on horse. That is said by LC to negate any entitlement to a way of necessity. But what is sought by HC is a way for vehicles, and the question is therefore whether vehicular access is necessary for the land to be useable. A common sense approach is in my view required focussed on the nature of the land, not least since the implication of a way of necessity is ultimately based on the presumed intentions of the parties, or in this case the transferor. The Green Land was agricultural land, and agricultural use in the late twentieth century realistically required at least some degree of vehicular access. The maintenance of the land, even if grazed by horses, would be expected to involve the use of machinery to tend hedges and control weeds, and no-one would contemplate that it should be taken on to the land by hand or transported on horseback. That being so, necessity required in my judgment some way for access by vehicle.
37. LC further contend that from 1998 HC had access of right over the Parsonage Farm land, which negated at least from that date the need for a way over the Red Land. As I have already indicated, Parsonage Farm was appropriated to HC in the 1996 division but let to their aunt, Lucy Murphy. The oral tenancy under which she originally held the land was in 1998 replaced by a written tenancy agreement dated 27 February 1998, Clause 3(6)(b) of which reserved to the landlord trustees

"The right to grant... any wayleave contract easement or licence to any authority company or person and to reserve for the benefit of the Landlord any rents or other moneys payable thereunder together with power to enter on the holding and carry out at the Landlord=s cost anything required to be done thereunder."

If, as LC submitted, this empowered the trustees as landlords to grant to themselves an easement over the Parsonage Farm Land from the public highway round the north of Saven End Farm to the Green Land, it was a power which as bare trustees they would from 27 February 1998 have been obliged to exercise, if so directed by H. The premise is, however, incorrect: in my judgment Clause 3(6)(b) cannot properly be construed as permitting the Landlord to grant itself a right of way.

38. In the alternative, LC rely on an written agreement made by the trustees with Mrs Murphy on 22 May 2003 under which she agreed to surrender as at that date a strip 6 metres running from the highway round the west, north, and north east of Saven End Farm contiguously to the boundary with Saven End Farm and arriving in the Green Land from the north ("the Northern Access Route"). The total area of the land in question was about 0.5 of an acre or 0.2 of an hectare and payment of ,1 was promised in consideration of the surrender. The surrender may require to be effected by deed (see Woodfall, Landlord and Tenant, 28^th ed para. 17.009), but even if this is correct the agreement would be specifically enforceable at the instance of the trustees at the direction of HC as absolute beneficial owners of the reversionary interest in Parsonage Farm. For all practical purposes HC is therefore the owner of the strip: though payment of ,1 is theoretically required, it was rightly not suggested that this nominal payment was of any relevance. The reality is that there has been available to HC since 22 May 2003 the unencumbered possibility, if they chose to take advantage of it, of passage over the strip to the Green Land.
39. It is probable, as the parties agree, that if she had been asked by the HC to surrender the strip at an earlier date, Mrs Murphy would have been prepared to do so. That expectation, however strong, was not however in my judgment sufficient to eliminate the physical isolation of the Green Land and the reason for a way of necessity. Only a legally grounded entitlement to pass over the strip could do, and that did not arise before the conclusion of the surrender agreement on 22 May 2003.
40. HC object that the strip does not provide the necessary vehicular access, because the Northern Access Route is not practically suitable for that purpose for essentially two reasons: (a) distance and (b) condition.
41. As to (a), the Northern Access Route is about 400 metres, compared with some 150 metres by the route up the Old Drive. While this may be somewhat more inconvenient, the extra time taken by vehicular traffic would be only a very few minutes at most and cannot be realistically said to render the route impractical as a means of access.
42. As to (b), at present the strip is little more than the side of an arable field, readily passable in dry conditions but problematic in times of wet weather - one would need, as one of the experts put it, to choose one=s day. But, as the evidence on both sides agreed, there would be no need for more than about 12 tractor trips per year to the Green Land - and there appears no reason why they should not avoid times of wet weather. HC stress that horse-grazing - the use contemplated by them, and apparently the most obvious profitable use for the land - involves regular and frequent visits by the owners of the horses, and the frequent transport of the horses to and from the Green Land in horse-boxes and trailers. That can however take place on foot or horse-back from the public highway up the bridle-way on days when the weather prevents use of the NAR. Though it was said to be less than ideal to unload horses at the side of the road, it is far from impracticable. Moreover, these suggested difficulties do not appear to apply to other agricultural uses for the land, such as sheep-grazing or the taking of hay.
43. HC object that the strip does not provide the necessary vehicular access, because the Northern Access Route is not practically suitable for that purpose for essentially two reasons: (a) distance and (b) condition.
44. As to (a), the Northern Access Route is about 400 metres, compared with some 150 metres by the route up the Old Drive. While this may be somewhat more inconvenient, the extra time taken by vehicular traffic would be only a very few minutes at most and cannot be realistically said to render the route impractical as a means of access.
45. As to (b), at present the strip is little more than the side of an arable field, readily passable in dry conditions but problematic in times of wet weather - one would need, as one of the experts put it, to choose one's day. But, as the evidence on both sides agreed, there would be no need for more than about 12 tractor trips per year to the Green Land - and there appears no reason why they should not avoid times of wet weather. HC stress that horse-grazing - the use contemplated by them, and apparently the most obvious profitable use for the land - involves regular and frequent visits by the owners of the horses, and the frequent transport of the horses to and from the Green Land in horse-boxes and trailers. That can however take place on foot or horse-back from the public highway up the bridle-way on days when the weather prevents use of the Northern Access Route. Though it was said to be less than ideal to unload horses at the side of the road, it is far from impracticable. Moreover, these suggested difficulties do not appear to apply to other agricultural uses for the land, such as sheep-grazing or the taking of hay.
46. In these circumstances, I find it impossible to conclude that the Northern Access Route, even in its present condition, does not provide sufficient vehicular access to permit agricultural use of the Green Land. In any event, it is open to HC to upgrade the Northern Access Route for all-weather access: it is a matter for them whether any gain in convenience would justify the cost of laying a hard surface, agreed to be around £11,500 + VAT.
47. HC submit that if the necessity exists at the time of the conveyance of the enclosed land - or more precisely when the equitable right to the conveyance arises (as here in 1997) - the resulting easement subsists in perpetuity. This is contrary to what was stated by the Court of Common Pleas in Holmes v Goring (1824) 2 Bing. 76, which considered that, as the head note states:

"A way of necessity is limited by the necessity which created it, and ceases if at any subsequent period the party entitled to it can approach the place to which it led, by passing over his own land."

Judges in subsequent cases (see Huckvale v Aegean Hotels (1989) 58 P & CR 163, 169 and the cases cited in Gale on Easements, para. 3.116) have pointed out, as did the court itself in Holmes v Goring, that the necessity in that case had ceased before the date of the relevant transfer, and have suggested that the ruling was therefore obiter rather than ratio. Whether or not this conclusion is correct as a matter of strict juridical analysis, the first ground relied upon by all three judges in Holmes v Goring was indeed that the necessity did not exist at the date of the trespass complained of by the plaintiff (as emerges more clearly from the lengthier report in 9 Moo CP 166). In these circumstances I would be loath to depart from the considered view of the Court of Common Pleas unless I was satisfied that it was wrong in principle. I am not so persuaded. Even if the implication of a way of necessity rests on the presumed intention of the parties, and in particular of the transferor, there is no reason why that should extend beyond the reservation of a way for as long as may be necessary. A way of necessity involves an implied derogation from grant, and should be limited to the minimum, in time as in every other respect. If more is desired by the transferor, he can always reserve an easement expressly.
48. Accordingly, and in summary, the need for a way for vehicular traffic over the Red Land ceased in 2003 and with it the entitlement to a corresponding easement of necessity.
49. I can thus deal shortly with a further argument of LC that the implication of a way of necessity would be contrary to the intention of the trustees. That essentially repeated the argument advanced against the implication of an easement under Wheeldon v Burrows, which I examined earlier and fails for the same reasons as I indicated in that context. If anything the case against the argument is even stronger, since it would involve ascribing to the trustees an intention that there should be no easement even if there was no other access in fact available to the Green Land. That would be not only implausible but absurd, the more so when the valuation of that land on which the trustees proceeded with the partition was predicated on agricultural access.
50. It is also alleged on behalf of HC that the trustees behaved improperly in failing to consult and comply with the wishes of HC as their beneficiaries, that HC would not have consented to the agreement to surrender the strip, and that the conclusion of the agreement was therefore a breach of trust. However, even if this allegation is well-founded - which I cannot decide in the absence of the trustees - the agreement does not cease to exist as a contract which may be enforced against Mrs Murphy if HC so wish and provides an access to the Green Land. The real question is whether in the dispute as to the necessity for a way over the Red Land LC are precluded from placing any reliance on any ability which HC has by virtue of the contract to access the Green Land over the Parsonage Farm strip, in effect a form of estoppel. That in my view would require HC to establish at least that (i) the execution of the agreement by the trustees had been procured by LC (ii) knowing that the trustees would acting in breach of their duties to HC (iii) for the purpose of defeating a claim to a way of necessity over the Red Land. The only evidence relied upon by HC - the contents of two letters dated 21 January 2003 and 3 March 2003 from Mr Toby Lyons to the trustees (and I have also had regard to an earlier letter of 16 July 2002) - was plainly inadequate for this purpose.
51. Faced with this difficulty, HC argued that misunderstanding or mistake had rendered the surrender agreement void and thus incapable of providing an alternative to a way of necessity over the Green Land.
52. The starting point for this argument is a written statement made on behalf of the trustees by their solicitors in the present proceedings in response to a request by HC that the trustees indicate the matters which they took into account in deciding to enter into the surrender. The response to that enquiry, accepted by both HC and LC as evidence in these proceedings, stated:

"Our clients recognised that the road from the public highway which had been used in 2002 had been blocked by the lockable post, but that Mr and Mrs Humphreys were not willing to give access over their own land to the south of the fields and that the Humphreys beneficiaries would need access to use the fields while the issue remained unresolved. Mrs Murphy had agreed to make available a route over the land of which she was tenant; and at the conference with Counsel on 6 May 2003 he advised that the surrender she had offered should be completed so that access would be available. Accordingly, this was done on 22 May 2003."

This records the motivation of the trustees as regards the surrender of the strip, and the contemporary correspondence also reveals a concern of immediate urgency that HC should not be prevented by the unresolved dispute from taking hay from the Green Land in the summer of 2003, as they had in the previous year, with a consequent financial loss. The statement indicates that the trustees believed that the surrender left the the issue ... unresolved. In that HC's primary claim was to a specific right of way based on a prior quasi-easement, this was of course correct: that could not be affected by any alternative means of access conferred by the surrender of the strip. But if that claim failed and HC was obliged to fall back on its alternative claim to a way of necessity, the surrender of the strip would have foreclosed the question.
53. Based on this material HC argue that the surrender agreement was void (a) under the principles in Re Hastings-Bass [1975] Ch 25, or alternatively (b) for common mistake in accordance with the principles in The Great Peace [2003] QB 679.

(a) Hastings-Bass

54. The Hastings-Bass principles refer to certain grounds on which the exercise of a power by trustees may be attacked, summarized recently by Lloyd LJ (sitting at first instance in Sieff v Fox [2005] EWHC 1312) in the following terms:

"Where trustees act under a discretion given to them by the terms of the trust, in circumstances in which they are free to decide whether or not to exercise their discretion, but the effect of the exercise is different from that which they intended, the court will interfere with their action if it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account, or taken into account considerations which they ought not to take into account."

55. Whether infringement of the Hasting-Bass principles renders the exercise of the power void rather than voidable is a question of current judicial controversy, rehearsed in detail in a number of cases - see most recently Green v Cobham [2000] WTLR 1101 (Jonathan Parker J), AMP (UK) plc v Barker [2001] PLR 77 (Lawrence Collins J, Abacus Trust Company (IOM) Ltd v NSPCC [2001 WTLR 953 (Patten J), Abacus Trust Company (IOM) Ltd v Barr [2003] Ch 409 (Lightman J), Gallaher Ltd v. Gallaher Pensions Ltd [2005] EWHC 42 (Etherton J), Sieff v Fox [2005] EWHC 1312 (Lloyd LJ). The only one of these cases where the difference between void or voidable was in active dispute between the parties and the decision was also necessary as a matter of ratio was Abacus v Barr, where Lightman J held that the correct result was voidable. In the Sieff case, Lloyd LJ expressed the view that this conclusion was attractive but required further consideration in the light of numerous earlier judicial statements the other way.
56. In the present case, it is suggested that the trustees cannot have appreciated the effect of the surrender on the alternative claim to a way of necessity over the Red Land, and would not have agreed it if they had done so. That inference is far from being dictated by the evidence, but even if it is correct, Hastings-Bass does not in my judgment assist HC.
57. Firstly, and perhaps most fundamentally, the Hasting-Bass principles are concerned with the exercise of a discretionary power under a trust instrument, typically a power of appointment or advancement, and with the conditions impliedly imposed by the instrument as to the matters to which the trustee must or may have regard in exercising the discretion. A contract is different: the power of the trustee to conclude a contract with a third party derives from the general law, like that of any other natural or legal person, and is unqualified. More specifically, the power in the present case to accept the surrender (partial or entire) of leased property from a tenant derived from the fact that the trustees were the landlords under the existing tenancy agreement and represented the power of any contracting party to agree a variation or cancellation of the contract. The impact of mistake or misunderstanding by one or both parties on a contract is addressed and regulated by the general law of contract. There is no room for the application of the Hastings-Bass principles in this area, and their formulation understandably does not suggest any such role for them.
58. Secondly, it is well recognized that the failure of a trustee to observe an internal restriction in entering into a contract does not render the contract void, since even a bare trustee acts in his own name and the legal efficacy of his act is not tied to authority from his beneficiary. Even where there is a breach of trust, equity is limited (in an appropriate case) to setting aside the contract, and it would be incongruent to reach a different result in a Hasting-Bass context. Accordingly, even if the Hastings-Bass principles were relevant to the conclusion of a contract by a trustee, there is no reason why their application should lead to the contract being held void rather than voidable, even if such a result were appropriate to the mis-exercise of a discretion under a trust instrument. Equity would not in my view be condemned to a monolithic approach to these two significantly different situations.
59. Thirdly, even if I had been required to decide between void and voidable in the context of a power under a trust instrument, judicial comity - if not stare decisis - would have compelled me to follow the decision of Lightman J in unless I considered that he was plainly wrong. Neither Etherton J in Gallaher Ltd v. Gallaher Pensions Ltd nor Lloyd LJ in Sieff v Fox took that view: nor would I.

(b) The Great Peace

60. In The Great Peace the Court of Appeal examined the case-law concerning the impact of common mistake on the formation of a contract, and concluded that a contract would be void where the mistake rendered the subject-matter of the contract essentially different from that which the parties believed. That would involve a common assumption as to a state of affairs, which "may be the existence, or a vital attribute, of the consideration to be provided or circumstances which must subsist if performance of the contractual adventure is to be possible."[2003] QB 679 at 703.
61. Though the words I have quoted were heavily relied upon by HC, I am quite unable to accommodate within them the facts of the present case. Even assuming that the parties failed to appreciate that the surrender would foreclose the argument as to a way of necessity over the Red Land, the contract was entirely capable of performance exactly as contemplated by them: nothing prevented the surrender of the strip to the reversionary owners or rendered it essentially different in nature. To overlook or misunderstand one of the possible consequences of performing a contract does not make the contract void.
62. Accordingly, in my judgment there is no proper basis for the suggestion that the agreement of surrender was void. Even if it is voidable, that would not assist HC for the reasons I outlined in paragraph 44 above.
63. Whether in consequence HC have a claim for damages against the trustees - either for the lowered value of the Green Land or (if less) any additional cost or inconvenience of access through Parsonage Farm including the small loss of revenue from being unable to farm the strip - is not a matter which is before me. It may also become moot depending on whether the trustees decide in the light of this judgment to make some (and if so what) monetary adjustment to the appropriation to reflect the lowered value of the Green Land.

Damages

64. In the circumstances, the claim for damages for obstruction to the claimed right of passage from January 2003 appears to have no or minimal practical significance, and I do not propose to address it in this judgment.

Relief

65. It follows from what I have said above that the answers to the questions posed in the preliminary issue are that the HC would have been entitled on a conveyance to them of the Green Land to an easement of necessity over the Red Land, the route of such way to be selected by the LC, but that the entitlement to use such a way would have ceased on 22nd May 2003. Since, however, these answers have to be couched in the past conditional tense, I do not think that it is appropriate to make formal declarations in these terms. The correct course is in my view for the court to declare the present rights of the parties, and therefore to make a declaration that the First to Fourth Defendants are not entitled to the execution of a conveyance by the trustees which includes expressly or by implication an easement of way for vehicular passage over the Red Land.
66. HC and LC agree that the conveyance should expressly exclude the creation of any such easement, and propose that the court should so declare. However, this appears to me inappropriate for a declaration and to require a direction to the trustees, which I am prepared to make if the parties so wish.

Conclusion

67. The concerns which caused the trustees to launch these proceedings were whether the valuations of the Red and Green Lands which had underlain their appropriation might be mistaken, either because (a) the Green Land did not have the necessary access for agricultural use or (b) the right of vehicular way claimed by HC over the Red Land would lower its value. It was always clear that (a) would involve modest sums at most, capped by the value of the Green Land in 1996 of £20,000 (even assuming implausibly that it was worthless without vehicular passage over the Red Land, though the trustees were advised professionally of a reduction of £10,000 to £13,000). As to (b), the expert evidence adduced by LC themselves assessed the impact on the value of the Red Land of a way through Gate 2 as minimal, from 0 to 3 per cent, i.e. at implausible worst under £8,100. Both (a) and (b) are minuscule in the context of the value of the total trust assets divided between HC and LC, over £6.5 million, and effectively meaningless in the light of the significant tolerances of uncertainty in the valuation of the numerous properties involved. In absolute terms, they are also extremely small compared with the costs of these proceedings. It is hard to escape the conclusion that this litigation was close to pointless from its inception: it must surely be time for it to cease.