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Churston Golf Club v Haddock [2018] EWHC 347 (Ch)

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9th March 2018

The Appellant in this matter was the leasehold proprietor of a golf club, and the Respondent the tenant under a lease of land adjoining the club. The Respondent, Mr Haddock, had been the Claimant in the original claim, seeking a declaration that the Club was obliged to fence the boundary between their respective parcels of land. Mr Haddock had relied on a clause in a conveyance made between the former owners of the golf club to the new. His landlord, the Trustees of the Churston Barony Settlement (‘the Trustees’) as owner of the adjoining land, had also been a party to that conveyance. That clause read:

“The Purchaser hereby covenants with the Trustees that the Purchaser and all those deriving title under it will maintain and forever hereafter keep in good repair at its own expense substantial and sufficient stock proof boundary fences walls or hedges along all such parts of the land hereby conveyed as are marked T inwards on the plan annexed hereto.”

At first instance, His Honour Judge Carr sitting in the County Court, had found that the clause created a fencing easement, and that the burden of that easement had passed to the Golf Club. The Appellant appealed on the following grounds:

1. That it was not legally possible for a clause in a conveyance to create a fencing easement at all; or
2. That on its true construction, the clause did not have the effect of creating such an easement.

Ground 1 was dismissed. Mr Justice Birss recognised that fencing obligations which ran with land had long been accepted as the exception to the general rule that easements cannot give the owner of a dominant tenement a right to impose a positive obligation on the owner of a servient tenement. Reviewing the case law, the judge concluded that some of the legal bases of this exception was by doctrine of lost modern grant.

The Appellant had submitted that fencing easements could only be created by prescription and other approaches based on long user, and not be express grant. It relied on the rule in Austerberry v Corporation of Oldham (1885) 29 Ch D 750, that a positive obligation on a land owner does not run with the land but would be purely contractual. The Judge determined that Austerberry was irrelevant where a clause had been construed as a grant as opposed to a covenant. Given that other sorts of easements could be created by express grant, and as fencing easements had long been recognised by the law, he could see no basis in law for fettering the intention of the parties, if such intention was objectively discernible from the conveyance.

The Appellant was also unsuccessful on ground 2 of its appeal. HHJ Carr had correctly concluded that the words “forever hereafter” showed that the parties had intended the obligation to fence the land to last into the future, even if the original purchaser ceased to exist.

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