High cost of family row over dirt track in Durham

Nov 24 2009 by Dan Warburton, The Journal

DISTANT relatives locked in a courtroom battle over the rights of way to reach a plot of land have come away nursing heavy legal bills.

Jane Bee and Stephen Thompson are both descendants of George Thompson – he is the maternal grandfather of Mrs Bee and the paternal great-grandfather of Mr Thompson.

But the family tie could not stop a row with roots in the 1920s after the pair became embroiled in a legal case over access to a plot of land.

George Thompson bought Pear Tree House, in Hamsterley Village, County Durham, along with a one-acre field behind it, known as the Garth, around 90 years ago.

He died in 1965 and, when his widow, Edith, died in 1975, she left Pear Tree House to Mrs Bee, but the Garth to her son, who eventually passed it down to Stephen Thompson.

In 2007, Mr Thompson got planning permission to build three homes on the Garth.

However, the site is isolated except for a narrow track behind Mrs Bee’s home at Pear Tree House.

That set the scene for dispute and, in November last year, Mrs Bee won a court declaration that the track is for agricultural vehicles, with an injunction forbidding other traffic.

Judge Roger Kaye ruled in Mrs Bee’s favour on analysis of Edith Thompson’s will, and found that if the track were opened up to all traffic it would be a nuisance.

With his development plans scuppered, Mr Thompson challenged that ruling before three judges at London’s Civil Appeal Court and has now scored a partial success.

Lord Justice Mummery, sitting with Lord Justices Etherton and Sullivan, ruled Judge Kaye went too far when he decided only agricultural vehicles could use the track.

Allowing Mr Thompson’s appeal, the judge said that, in accordance with Edith’s will, the track should be open to all vehicles “at all times and for all purposes connected with” the Garth.

However, Mr Thompson’s development plans will have to be refined after the Appeal Court also ruled his right of way “does not permit use for the three residences proposed to be erected on the Garth”.

Lord Justice Mummery said Mr Thompson would still be “forbidden” from using the track “for the purposes of access to and from” the three planned homes.

The judge said each side in the dispute would have to pay their legal costs for the hearing before Judge Kaye.

However, Mrs Bee and her husband must bear their own, and 75% of Mr Thompson’s costs of the appeal.

Lord Justice Mummery said that was the “fair and just order” as Mr Thompson had been the “more successful” in his appeal.