England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE SULLIVAN: Mr Chamberlain appeals by way of case stated against a decision of Nuneaton Magistrates' Court dismissing an information preferred by him against the respondent, Mr Lindon, alleging that the respondent had, without lawful excuse, destroyed a new garden wall belonging to the appellant, contrary to section 1(1) of the Criminal Damage Act 1971.

2. After a five day hearing the magistrates dismissed the information because they were of the opinion that the respondent had a lawful excuse under section 5(2)(b) of the 1971 Act.

3. Section 5 applies to offences under section 1(1) and so far as material subsection 2(b) provides:

4. The magistrates concluded that the respondent had a lawful excuse under section 5(2)(b) because:

5. The magistrates pose two questions for the opinion of this court:

6. Although, as a matter of form, this appeal comes before the court by way of case stated from the magistrates in a criminal matter, it is in substance a dispute between two neighbours as to their respective rights under the civil law and should have been resolved, in so far as litigation was required at all, in the County Court.

7. A criminal prosecution was, in my view, a manifestly inappropriate procedure to adopt in the circumstances which I will now describe by way of summarising the very detailed findings of fact made by the magistrates.

8. Mill Farmhouse and the Mill are two adjacent properties in Mill Lane, Fillongley. Both had been in the appellant's ownership since the mid-1980s. He agreed to sell the Mill to the respondent in 1988. To obtain access to the Mill from the highway it is necessary to cross a parcel of land measuring 26 feet by 12 feet, which was retained as part of Mill Farmhouse.

9. The parcel of land is shown coloured brown on the plan before the court and was referred to by the magistrates as the "brown land".

10. Following proceedings for specific performance, the appellant, by deed of transfer, in May 1991 granted the respondent the right to pass and repass over and along the roadway shown coloured brown on the said plan; ie over the brown land.

11. Since 1988 the respondent had used the brown land to gain both pedestrian and vehicular access to the Mill. The brown land is aligned roughly along a north-west south-east axis.

12. The respondent had taken to driving diagonally across the brown land (that is to say in approximately an east to west direction) to gain access to his property. Because of landscaping work undertaken by him on his own land it was not possible for him to drive into the Mill from the north-western end of the brown land.

13. The appellant formed the view that the respondent was not entitled to gain access to the Mill by driving diagonally over the brown land. Extensive correspondence ensued and in July 1995 the appellant laid the foundations of a wall along the south-western boundary of the brown land which would have the effect of preventing the respondent from driving diagonally over it. The respondent promptly drove his vehicle over the foundations and parked it on land belonging to the Mill immediately behind where the wall would be, so it would be trapped if the wall was built.

14. The wall was built and was completed in July 1995 at a cost of £1800 leaving the respondent's vehicle trapped behind it.

15. The respondent complained to the applicant, contending ( inter alia ) that he had a right of access in whatever direction he chose across the full width of the brown land. The wall not merely prevented him from gaining access to the Mill in a diagonal direction across the brown land, it also reduced the width of the brown land by some 2 foot 9 inches to 9 foot 3 inches since it was built wholly upon the brown land.

16. There were also discussions and correspondence with the council as to the effect of the wall on a public footpath. Those discussions are not relevant for present purposes.

17. Following extensive correspondence the respondent gave notice that he would demolish the wall unless the appellant did so. The appellant did not and so the respondent was as good as his word and demolished the wall on 20th April 1996.

18. The magistrates found the following facts:

19. Mr Dean, on behalf of the appellant, originally challenged the magistrates' decision on four grounds. He no longer pursues the first of those grounds and puts forward the fourth as being simply supportive of the third ground.

20. By way of background I mention that the first ground was a contention that the respondent's right to pass over the brown land onto his own land was not a right that he was entitled to protect under section 5(2)(b). Mr Dean's concession that he can no longer pursue that ground is plainly correct in view of the provisions of section 5(4); which I have already read and which provides that a right or interest in property for the purpose of section 5(2)(b) includes:

21. As Mr Forde's skeleton argument for the respondent submits: a right of way falls squarely within that definition.

22. Although this court is concerned with matters of civil law, only to the extent that it is necessary to decide whether the magistrates were justified in their conclusion that the respondent had a lawful excuse, one does not have to conduct a very elaborate investigation into the civil law to appreciate that obstructing a right of way is a nuisance and that the dominant owner, in this case the respondent, may in principle enter the land of the servient owner, the appellant, to abate the nuisance by removing the obstruction: see 14 Halsbury Laws at paragraph 134, and Gale on Easements 16th edition, paragraph 14-02 et seq.

23. It requires no extension of the remedy of abatement to say that a person who finds his right of way obstructed may in principle remove that obstruction. I say "in principle" because of certain observations of the Court of Appeal in Burton v Winters [1993] 1 WLR 1077, which was also referred to by Mr Dean and to which I will turn when I consider his fourth ground of challenge.

24. Under section 5(2)(b) one is entitled to protect not merely property but a right or interest in property. Since a person entitled to the benefit of a right of way may as a matter of civil law remove any obstruction to the way, it would indeed have been surprising if he did not have the protection of section 5(2)(b) if, in so doing, he necessarily destroyed or damaged the obstruction.

25. I turn to the second ground of challenge to the magistrates the decision. Mr Dean submits that the respondent's act of destroying the wall was not done in order to protect property but was done for the purpose of avoiding litigation.

26. He submits that the question whether a particular act of destruction was done in order to protect property, must be answered by reference to an objective test. In his skeleton he referred to a number of cases in support of that proposition.

27. In that case the appellant had been charged with arson contrary to section 1(1) of the 1971 Act. On his own case he had set fire to a room in an old people's home to draw attention to a defective fire alarm system. The judge withdrew the defence of lawful excuse from the jury. The Court of Appeal held that he was right to do so.

28. In his skeleton Mr Dean also cited Johnson v Director Public Prosecution [1994] Crim.LR page 673 where the Court of Appeal decided that a squatter's purpose in chiselling the locks off a door and replacing them with his own locks, was not to protect the squatter's own belongings, but to enable him to gain access to the premises and to bring his bed into the premises.

29. I have mentioned the facts of those cases to show how very far removed they are from the facts of the present case.

30. I agree with Mr Forde that it is plain, on the facts as found by the justices, that what the respondent did, namely demolishing the wall, could on the facts, as believed by him (namely that he was entitled to exercise a right of way which was being obstructed by the wall) amount to something which was done to protect his right of way: see in particular finding of fact (w).

31. No doubt he hoped to avoid litigation. He could have sought to protect his right of way either by recourse to litigation or by way of abatement. The fact that he chose the latter does not mean that his act of destroying the wall was not done to protect his right of way on the facts as he saw them. His purpose was to protect the right of way. He chose the means of abatement because he hoped to avoid litigation. That does not convert the avoidance of litigation into his purpose.

32. I turn then to the third ground of challenge raised by Mr Dean, which he put forward as his primary ground.

33. He submits that the justices could not properly come to the conclusion that the respondent's right or interest in property was in immediate need of protection, as required by section 5(2)(b)(i).

34. He referred the court to dicta of the then Lord Chief Justice in Hill and Hall at pages 79 to 80. Having dealt with the subjective test the Lord Chief Justice went on to say:

35. Those observations were of course entirely appropriate in the circumstances of that case. They should not be taken out of that context and construed as though they were within an enactment of general applications.

36. The appellants in those cases had professed to be concerned as to the potential consequences of a possible nuclear attack in the future. Here, on the facts, as believed by the respondent, his right of way was actually being obstructed. As Mr Forde points out it was not a case of a risk of there being an obstruction at some future speculative date, there was a present need to remove the obstruction.

37. The respondent was not destroying or damaging property as some sort of preemptive strike to prevent some future obstruction. Mr Dean submits that the wall had stood for 9 months, and asks rhetorically, "why then was there an immediate need to destroy it in April 1996?"

38. In my view the respondent is not to be penalised for his attempt, through correspondence, to persuade the appellant to remove the wall. So long as the wall remained it was, on the facts as believed by the respondent, an obstruction to his right of way, and so there was an immediate need to remove it.

39. The magistrates found that he took the view, based on his experience with the appellant, that litigation would be protracted, and whilst it lasted the obstruction would remain.

40. As Mr Forde points out, for the reasons given in paragraph 2(y)(a) of the case stated (which I have already read), the longer the wall remained the more urgent the need to remove it, from the respondent's point of view, to avoid any suggestion of acquiesence in the obstruction.

41. Finally I turn to Mr Dean's fourth ground of challenge, which he advances not as a separate ground but in support of his third ground. He submits that at the worst the respondent had suffered a civil wrong and what he should have done is pursue a civil remedy in the civil courts, as Nolan LJ said in Lloyd v DPP at page 992 e:

42. Mr Dean accepts that it is not necessary in order to establish a defence under section 5 for the respondent to have exhausted all his civil remedies, but he refers by way of analogy to the Court of Appeal decision in Burton v Winters [1993] 1 WLR 1077. In that case a garage wall had been built along the boundary between the plaintiff and the defendant's properties so that half of it was on the plaintiff's land. She tried to get a mandatory injunction requiring the defendants to demolish the wall which would of course have had the effect of demolishing the garage also.

43. Her claim was dismissed by the courts but she refused to take no for an answer. She tried to obstruct the defendant's access to the garage by building a wall in front of it on the defendant's side of the boundary line. When that failed she repeatedly damaged the garage. The defendants were granted an injunction restraining her from such conduct, which she repeatedly flouted. Eventually she was committed to prison for two years for contempt. I mention those facts to show that it was something of an extreme case, even in the context of boundary disputes between neighbours.

44. Lloyd LJ, as he then was, with whom Connell J agreed, said, at page 1081 at D:

45. Lloyd LJ referred to a number of academic writers, specifically "Prosser and Keeton", which says this:

46. He then applied that stream of authority to the facts of the case before him, making the point that not only was there ample time for the plaintiff to wait for the slow process of the ordinary course of justice, she actually did so. He then referred to the House of Lords decision in Lagan Navigation Co. v Lambeg Bleaching, Dyeing and Finishing Co Ltd [1927] AC 226 at page 224 per Lord Atkinson. That was authority for the proposition that the law does not favour the remedy of abatement. In conclusion he said this:

47. It will be noted that the final matter referred to by Lloyd LJ in that case would have been sufficient to dispose of the appeal. The plaintiff had sought and had been refused a mandatory injunction. She could not thereafter resort to self-help. That circumstance does not apply here.

48. I find it unnecessary to decide whether, as a matter of civil law, the present case is properly described as a clear and simple case. Demolishing a garage which projects very slightly into one's land may well be a very different matter on the facts from demolishing a wall if it obstructs a right of way.

49. It is unnecessary to reach a conclusion as to whether the respondent's self-help was justified as a matter of civil law on the facts of this case, because the appellant chose to take proceedings in the criminal courts. Rather than suing the respondent for trespass he preferred an information charging the respondent with criminal damage. I have already indicated that, in my view, criminal proceedings were inappropriate. At worst a civil wrong had been committed, either nuisance by the appellant or trespass by the respondent. It should have been for the civil courts to decide which.

50. In the criminal context the question is not whether the means of protection adopted by the respondent were objectively reasonable, having regard to all the circumstances, but whether the respondent believed them to be so, and by virtue of section 5(3) it is immaterial whether his belief was justified, provided it was honestly held.

51. On the facts found by the justices there can be no doubt that the respondent honestly believed that the means he adopted were reasonable in all of the circumstances of this case.

52. For these reasons I would answer each of the two questions posed by the Justices in the affirmative and would dismiss this appeal.

53. MR JUSTICE ROSE: I agree with both of my Lord's conclusions and his process of reasoning in reaching those conclusions. Accordingly this appeal is dismissed.

54. MR FORDE: My Lord, that leaves only the question of costs. I have been taking instructions and my understanding is the appellant is legally aided as are we.

55. MR JUSTICE ROSE: Both sides are legally aided?

56. MR FORDE: We have been throughout. So that presents us with two possible options, in my submission. (For one moment I thought I was erroneous in that assertion). Either an order for costs against the appellant not to be withdrawn without leave in the usual way. My instructing solicitor has asked me whether the court might be minded to order costs to the respondents out of central funds, which is a small advantage that some of his personal costs would be paid, but either order would --

57. MR JUSTICE ROSE: If there is an advantage to the respondent having an order for costs out of central funds, on the assumption we have jurisdiction to make such an order, we shall make it.

58. MR FORDE: I believe you do.

59. MR JUSTICE ROSE: Very well, we shall do so. Thank you.