Giles v Tarry & Anor

The respondent's use of the right of way was, in substance and intention, for the benefit of both the paddock and the green land as a single agricultural unit, contrary to the terms of the grant. The use of the hovel for sheep as found by the trial judge was not permanent and fell within the meaning of 'temporary' in the restrictive covenant.

Parties: Appellant: Giles; Respondent: Tarry & Anor
Jurisdiction: England and Wales
Judgment Date: 21 June 2012
Procedural Posture: Civil Appeal / Court of Appeal Judgment on Appeal From County Court
Outcome: Appeal allowed in part, dismissed in part
Legal Topics: Easements, Restrictive Covenants, Right of Way, Interpretation of Deeds

Property Law Land Law Easements Restrictive Covenants Right of Way Interpretation of Deeds

Case Brief

Summary, issues, holding and outcome

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Parties

Giles

Appellant

Tarry & Anor

Respondent

Procedural Posture

Civil Appeal / Court of Appeal Judgment on Appeal From County Court

Legal Issues

1 Whether the use of a right of way over the appellant's land to access both the paddock and the green land was lawful under the terms of the grant
2 Whether the use of a hovel for sheep by the respondent was in breach of a restrictive covenant limiting use to 'temporary' animal keeping

Ratio Decidendi

Court Disposition

Appeal allowed in part, dismissed in part

Orders

Declaration that it is unlawful for the respondent to use the right of way over the brown land by driving sheep into the paddock and then out via the northern end gate to re-enter and thereafter graze the paddock and green field.
Declaration that the respondent is entitled to use the hovel for not more than 45 sheep for lambing, treatments, winter feeding, or emergency purposes as currently practiced.