Where a bequest of land in adjacent parcels to different beneficiaries expressly provided that the owner of one parcel should enjoy a right of way over a track running over the other, but the vesting consents which conveyed the land to the beneficiaries did not grant such an easement, the will and the assents were to be construed together as a single transaction so as to give full effect to the testatrix?s intention. However such a right of way ?at all times and for all purposes connected with? the dominant tenement did not entitle the owner of that land to increase the user of the right of way from that associated with the agricultural purposes for which it had been used when the right of way had been granted to that associated with three houses.

The Court of Appeal so stated allowing in part the appeal of the defendant, Stephen Thompson, from the decision of Judge Roger Kay who, sitting as a judge of the Chancery Division in Newcastle upon Tyne District Registry on 16 January 2009, had declared that the defendant?s right of way over land belonging to the claimants, Jane and Alan Bee, was for agricultural purposes only and granted an injunction forbidding use of the right of way for purposes other than agricultural purposes.

The claimants? property, ?Pear Tree House?, and the defendant?s property, known as the Garth, which lay behind it, had originally been owned by the testatrix, Edith Thompson. A track running from the main street over the claimants? land provided the only access to the defendant?s property, which during the testatrix?s lifetime had been used for agricultural purpose only. In 1974 the testatrix had made a will bequeathing (i) Pear Tree House ?subject to a right of way as existing at the date of my death to the garth at the rear thereof? to the first claimant, her granddaughter, and (ii) the Garth to the defendant?s father ?together with the right of way ... at all times and for all purposes connected with the said garth?. The testatrix had died in 1975. In 1977 the executors of the testatrix?s will had executed assents giving effect to the bequests. That to the first claimant was expressed to be subject to ?all rights of way and easements affecting the same? but contained no express reservation for the benefit of the Garth or of any right of way over the track. That to the defendant?s father, executed shortly afterwards, was expressed to be ?together with all the rights of way and esaements affecting the same. The defendant had acquired the Garth from his father in 1989 and obtained planning permission in 2007 to build one detached house and two semi-detached houses on part of the property, the effect of implementing which would be to increase the use of the track. The claimants objected to the erection of the planned buildings on the basis that such a course would increase the use of the track and cause nuisance and claimed a declaration that the right of way could not be used for the proposed residential development on the ground that at the death of the testatrix the use of the right of way had been limited to agricultural use.

MUMMERY LJ said that the claimants contended that the effect of the assent to the first claimant, which was the documents which had passed title, was that the defendant had no more than an implied way of necessity over the track, since no right of way could have existed before the testatrix?s death, because she owned both properties, and the assent had created no new rights of way over it. That theory was flawed because without legal justification it required the court to ignore totally the relevant intentions expressed by the testatrix in her will on the very matter of a right of way over the track for the benefit of the defendant?s property. The fact that the assent was the document of title to the claimants? property did not consign the will to the scrap heap when ascertaining the intention of the testatrix. In truth she was the grantor of the properties gifted by her will; she had identified the properties and expressly mentioned the right of way. Although the assents were the appropriate conveyancing mechanism by which effect was to be given to the terms of the will, it was legitimate to read and construe the assents together with the will, all being part and parcel of the same transaction. The single transaction approach to the assents and the will was warranted both by statute and common law. First, s36(2) of the Administration of Estates Act 1925 provided that, unless a contrary intention appeared, the assents related back the death of the deceased. The effect of relation back was that the assents operated to vest title to the estate or interest in the properties at the same moment as the will took effect. Thus, on the death of the testatrix, the will took effect and, by relation back, so did both assents, simultaneously with the will and with each other. That was a strong indicator that, even though the assents and not the will were the documents of title, the testamentary gifts and conveyancing machinery for effecting them were in substance one overall transaction for the purpose of ascertaining the extent of the rights of the will beneficiaries. That approach was supported by the authorities, even allowing for the fact that some preceded the changes made by the Land Transfer Act 1897: see Phillips v Low [1892] Ch 47, 51 and George Attenborough & Son v Solomon[1913] AC 76, 83. In determining the nature and extent of the right of way and its limitations, the assents of the properties devised should be construed together with the will making the devises. Thus, the transfer of the two properties previously in the ownership of the testatrix were made by virtue of the dispositions in her will, which had become operative because of the assents of them made by her executors. Full force was to be given to the powerful generality of the expression in the devise to the defendant?s father, ?at all times and for all purposes?, which were plain words and taken to mean what they said unless the clause as a whole and a compelling context clearly cut those purposes down to ?agricultural?. There was insufficient justification in either the text of the will or in the context for diminishing ?all purposes? to a restricted purpose. However, the judge had been entitled to conclude that the defendant?s proposed user would be excessive. It could not be justified simply by reference to ?all purposes? which did not authorise use to the point of an unreasonable interference with the rights of the servient owners to their pr
operty and to use the way in common with the occupiers of the dominant tenement: see Jelbert v Davies [1968] 1 WLR 589, 595. Mere change of the defendant?s property to residential use might not be unlawful provided the track was not used excessively so as to interfere unreasonably or substantially with the claimants? rights to use the track or enjoy the rest of their property. Fixing practical limits on the quantity of permissible use for the future might be a difficult exercise. The court might assist the parties by working out for them guidelines as to what would be a reasonable user rather than simply making a general injunction forbidding excessive use. However, the judge had never been asked to engage in that exercise or to rule whether use for one house or two houses on the defendant?s land would be reasonable. The appeal against the terms of the declaration should be allowed and a different declaration substituted that the defendant?s right of way did not permit user for the three residences proposed to be erected on his land. The injunction would be varied to the effect that the defendant was prohibited from using the right of way for the purpose of access to and from three residences proposed to be built on his land.

ETHERTON LJ gave a concurring judgment.

SULLIVAN LJ agreed.