Neutral Citation Number: [2006] EWCA Civ 632
Case No: A3/2005/2710
A3/2005/2711
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHESTER COUNTY COURT
His Honour Judge Wyn Williams QC
CW500402
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25/05/2006
Before :

LORD JUSTICE BUXTON
LORD JUSTICE NEUBERGER
and
SIR MARTIN NOURSE
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Between :

	BROUGHTON	Claimant	
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	BOWER & ANR	Defendant	

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Mr E Bartley Jones QC (instructed by Bowcock Cuerden) for the Appellant
Mr P Chaisty QC (instructed by Bowdlers) for the Respondent

Hearing date : 10/5/06
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Judgment

Sir Martin Nourse : 
1.	This is an unfortunate dispute between neighbours about the meaning of the expression “undomesticated animals” as used in a consent order compromising an action between them.
2.	The claimant, Lady Delves Broughton, is the widow of Sir Evelyn Delves Broughton who died in 1993.  Since the early 1980’s she has been the freehold owner of Doddington Cottage, Doddington Park,  Nantwich in Cheshire.  Since 1986 the defendants, Mr and Mrs John Bower, have been the freehold owners of Demesne House, Doddington Park, a property of about 4.5 acres consisting of a house, outbuildings and surrounding land.  Demesne House is separated from the garden of Doddington Cottage by a field, the two houses being about 200 yards apart.
3.	Sir Evelyn Delves Broughton was tenant for life of the Doddington Estate.  By a conveyance (“the 1973 conveyance”) dated 14th December 1973 he conveyed Demesne House to the defendants’ predecessors in title, who entered into restrictive covenants for the benefit and protection of the Doddington Estate, which included Doddington Cottage.  One of the covenants was to the effect that Demesne House should only be used:
“as a single private dwelling house and curtilage and/or for agriculture as defined by section 109(3) of the Agriculture Act 1947 except that in no circumstances shall female cattle of whatsoever breed be permitted to be kept on the said property or in any buildings thereon at any time.”
Another of the covenants was against nuisance:
“and in particular but without prejudice to the generality of the foregoing no pigeons or any undomesticated animals shall be kept upon the property hereby conveyed or any part thereof nor shall there be carried on thereon the business of a dog or cat breeder.”
4.	The first defendant has said in evidence that in 1991 the claimant, through her solicitors, took issue with the defendants over the rights of way they used in the park and over the positioning of the boundary fences relating to their property.  No accommodation having been reached, in February 1995 the claimant commenced proceedings in the Crewe County Court making a number of complaints and claiming declaratory and injunctive relief and damages.  Although it appears that some of the complaints were both serious and justified, it is unnecessary to examine any of them except the one which relates to the matter now in dispute.
5.	Para 5A of the claimant’s amended particulars of claim alleged that the defendants had, in breach of the restrictive covenants, been keeping a substantial number of racehorses and other horses and geese on Demesne House, the horses not being “livestock” within the meaning of section 109(3) of the 1947 Act, so that the keeping of them did not constitute use for agriculture.  Para 5A continued:
“Furthermore, such horses and geese are not domesticated animals …… the presence of such horses and geese on Demesne House is a nuisance to the Plaintiff (in particular in hindering her in exercising her rights of way as hereinafter pleaded).  Accordingly, by keeping such horses and geese on Demesne House the defendants are in breach of the said restrictive covenants.”
The defence contained an admission that the defendants owned four horses (although none were racehorses), three ponies and some geese; an assertion that the keeping of the ponies and geese fell within the definition of “agriculture” as defined by section 109(3); and a further admission “that the said animals are not domesticated”, though it was denied that the horses were used for any trade or business.
6.	The action never came to trial.  Instead, it was compromised by an order made in the Tomlin form on 28th February 1997.  It is only necessary to refer to two of the undertakings given by the defendants as part of the order.  These were to the effect that they should not, whether by themselves, their servants or agents or otherwise howsoever:
“(3)   from and after 20th August 1997 keep any undomesticated animals (including horses, ponies and geese) upon the land comprised in [Demesne House] or any part thereof;
 (4) use the land comprised in [Demesne House] for any business (other than that of agriculture as defined in section 109(3) of the Agriculture Act 1947).”
The order contained a liberty for the parties to apply for the purposes of carrying the order, the defendants’ undertakings and the terms of compromise into effect.
7.	Unfortunately, the consent order did not put and end to the disputes between the parties.  In 2004 the claimant applied under the liberty to apply, principally for a declaration that on the true meaning and effect of undertaking (3) certain named species were “undomesticated animals”.  In addition to horses, ponies, geese and female cattle, the species complained of were male cattle, sheep, ducks, peacocks, turkeys, chickens, game birds and fowl and poultry of any kind.  The claimant also claimed declarations that undertakings (3) and (4) were separate and cumulative and that, accordingly, in the event of the defendants using Demesne House for the business of agriculture (as defined by section 109(3)) the defendants were still not entitled to keep there any undomesticated animals within the meaning of undertaking (3).  
8.	The application came on for hearing before His Honour Judge Wyn Williams QC at Chester on 14th July 2005, when judgment was reserved.  Both the claimant and the first defendant gave oral evidence.  In his judgment delivered on 3rd November 2005 the judge found that, as at 14th July 2005, the defendants had at Demesne House seven turkeys, four sheep, three bullocks, eighteen ducks and three peacocks.  He recorded that it was common ground that on 28th February 1997 there were horses, ponies and geese on the land.  He accepted the first defendant’s evidence that there were also chickens, ducks and quails there at that date.   The defendants have also kept a dog and up to three cats, but no complaint has been made about them. 
9.	The judge held, first, that undertaking (4) was to be read as permitting the full range of agricultural uses upon the land as defined by the 1947 Act, except for the keeping of female cattle of any breed, provided that the uses were in connection with a business.   In other words, he was of the view that undertaking (4) overrode undertaking (3) if the undomesticated animals in question were kept in connection with the business of agriculture.  In regard to what was meant by the expression “any undomesticated animals”, the judge held that the purpose of including the words “horses, ponies and geese” in parenthesis after that phrase was simply to give emphasis to horses, ponies and geese (being animals about which the claimant was particularly concerned) as undomesticated animals.  In this respect he relied partly on the admission made in the defence.  He went on to say :
“If horses, ponies and geese are to be regarded as examples of “undomesticated animals” it follows that the phrase is bound to have a comparatively restricted meaning.  In my judgment its meaning would be such that only animals which a reasonable person would regard as a pet would be permitted to be kept at the Defendants’ property.”
Later, the judge expanded the concept slightly by including animals which were akin to pets.
10.	In the application of that test the judge said that it was clear that a number of the species of animals currently kept by the defendants should not be on the land.  Those were bullocks, sheep, turkeys and peacocks.  He left it open for agreement or further argument as to whether smaller poultry, such as chickens or ducks, could be regarded as pets or akin to pets.  There having been no agreement on the point, the judge heard further argument after his judgment had been handed down on 3rd November.  Judgment was again reserved. 
11.	In a supplementary judgment delivered on 7th November the judge held that ducks, quails and chickens were not species which were recognised as being pets or akin to pets.  Accordingly, by his order made on 17th November 2005 he made a declaration to the effect that, in addition to horses, ponies, geese and female cattle, the following species were undomesticated animals which the defendants were not entitled to keep on Demesne House: male cattle (including bullocks), sheep, ducks, peacocks, turkeys, chickens and cockerels and quail.  In implementation of his view of the relationship between undertakings (3) and (4), he added a proviso that any of those species (with the exception of female cattle) might be kept by the defendants if (but only if) the same were so kept in connection with the business of agriculture (as defined).  The judge awarded the claimant 60% of her costs.  He refused the defendants and the claimant permission to appeal against the declaration and the proviso to the declaration respectively, permission being subsequently granted to both sides by this court.
12.	By far the more important of the two questions is what is meant by the expression “undomesticated animals” in undertaking (3).  This question is much simpler than the judge appears to have thought.  “Domesticate” is an ordinary word in the English language.  It is a transitive verb which is defined in the current Shorter Oxford English Dictionary as meaning, in relation to animals, to:
“Accustom (an animal) to being kept by or to living with humans; bring under control, tame.”
“Domesticated” is the past participle of that verb. “Undomesticated” means “not domesticated”. Provided that the animal is of a species accustomed to being kept by or to living with humans, brought under their control and tamed, it does not have to live in the house or be a pet or akin to a pet. 
13.	Such legal definitions as we have been referred to are consistent with the dictionary meaning.  Thus in Halsbury’s Laws of England, 4th Edition Reissue, Vol. 2(1), para 508, (which appears to be taken from 3 Coke’s Institutes 109) the term “domestic animals” is said to include “all those domestic or tame animals as by habit or training live in association with man”.  In section 15(b) of the Protection of Animals Act 1911 the expression “domestic animal” is defined to mean:
“any horse, ass, mule, bull, sheep, pig, goat, dog, cat, or fowl, or any other animal of whatsoever kind or species, and whether a quadruped or not which is tame or which has been or is being sufficiently tamed to serve some purpose for the use of man.”
14.	In order to ascertain what is meant by “undomesticated animals” in undertaking (3) it is necessary to start with the 1973 conveyance.  There being no context to the contrary, it is beyond argument that none of the animals which have at any time been kept by the defendants at Demesne House could be said to have been undomesticated within the meaning of the 1973 conveyance.  They have all been of species which are accustomed to being kept by or to living with humans, brought under their control and tamed.  Had there been any doubt about the matter, it would have been resolved by the disjunctive prohibition against keeping pigeons, and by the earlier prohibition against keeping female cattle.  Pigeons are by nature wild birds, but once reduced into captivity, usually as carrier pigeons, they become domesticated animals.  Further, female cattle cannot have been intended to be within the term “undomesticated animals” in the 1973 conveyance, as otherwise there would have been no need to exclude them expressly in the earlier covenant. Thus it is confirmed that the expression “undomesticated animals” bears its ordinary meaning.
15.	It is common ground that undertaking (3) must be construed against the factual background known to the parties at or before the date of the consent order.  That background includes the 1973 conveyance and the pleadings in the action, in particular the admission by the defendants that the four horses, three ponies and the geese then kept by them were undomesticated animals.  That admission has been fastened on by Mr Bartley Jones QC, for the claimant, as the foundation of an argument that, when they came to undertaking (3), the parties, by agreeing that undomesticated animals should include three species of domesticated animals, intended to adopt their own dictionary so as to define “undomesticated animals” as having, in the judge’s words, a comparatively restricted meaning.  On that premise Mr Bartley Jones submits, as the judge concluded, that the meaning of the expression must be such that only animals which can reasonably be regarded as pets or akin to pets are permitted to be kept at Demesne House.
16.	If the premise of Mr Bartley Jones’ argument were correct, it might very well be that the conclusion would follow.  But in my judgment the premise is incorrect.  Generally speaking, it is an impermissible process of construction to interpret words prefaced by “including” as transmuting that in which they are included into something altogether different from what it would be without them.  In the present case it is plain that the words “including horses, ponies and geese” cannot have that effect.  All that they do is to extend the meaning of the expression so far as is necessary to prohibit the keeping of three species of domesticated animals.  Moreover, Mr Bartley Jones’ argument completely ignores the pervasive influence of the 1973 conveyance, in which, as has been stated, the meaning of the expression is clear.  On those short grounds I would allow the defendants’ appeal.
17.	I turn to the question raised by the claimant’s appeal.  It must be said at the outset, that if the above-stated view of the first question prevails, the second will be considerably reduced in importance.  That is because the defendants will be able to keep all domesticated animals on their land except for horses, ponies, geese and female cattle, whether or not they are kept in connection with the business of agriculture.  However, the claimant’s appeal cannot be said to be academic because, if the proviso stands, the defendants will be able to keep horses, ponies and geese in connection with the business of agriculture.  
18.	The judge dealt with the second question at some length.  While I do not agree with Mr Bartley Jones’ description of the first question as being one of impression, I would accept that as being a fair description of the second question.  In my judgment it is clear that undertakings (3) and (4) are independent of each other.  Undertaking (3) prohibits the keeping of any undomesticated animals, together with horses, ponies and geese.  Undertaking (4) prohibits the use of Demesne House for any business other than that of agriculture, but in connection with the business of agriculture it is impermissible to keep the animals which the defendants are prohibited from keeping by virtue of undertaking (3).  On that short ground I would allow the claimant’s appeal.
19.	Accordingly, I would discharge paragraphs (1) and (2) of the judge’s order dated 17th February 2005, including the proviso to paragraph (2). On the defendants’ appeal I would make a declaration that the defendants are entitled to keep on Demesne House all domesticated animals other than horses, ponies, geese, female cattle and pigeons and in particular (but without prejudice to the generality of the foregoing) that they are entitled to keep male cattle (including bullocks) sheep, ducks, peacocks, turkeys, chickens and cockerels and quail.  On the claimant’s appeal I would make a declaration in the form sought in paragraphs (2) and (3) of her notice of application, except that it ought now to be possible to abbreviate the declaration under (3).
Lord Justice Neuberger :
20.	I agree.
Lord Justice Buxton :
21.	I also agree.