Granted & Implied
UK Cases
May v Belleville
[1905] 2 Ch 605 (ChD)
BUCKLEY J: The conveyance as executed by the vendor was not executed by Jay. The agreement of May 16, 1902, had been signed by Probyn Dighton on Jay’s behalf, and had incorporated the words in the conditions reserving the rights to which I have referred. Under that conveyance Jay took possession. Was Jay, then, entitled to say that inasmuch as the right of way could only be created by grant, and he did not execute the deed, there existed no right of way, and that the reservation effected nothing? In other words, if there were rights of way previously exercised in respect of such farms, can he say, by reason of his non-execution of the deed, “I am not bound by that”? In my judgment he cannot. Suppose that Jay were the defendant in this action. He is a person who has taken possession of the property under a conveyance which shews that he is to make a certain grant. What right has he to say that he is not bound in equity to give effect to the terms upon which he so obtained possession? The Statute of Frauds does not apply; there is part possession; the bargain is shewn by the terms of the conveyance. Jay can be called upon by the plaintiffs to give effect to the terms upon which he obtained possession, namely, the creation of those rights of way.
McManus v Cooke
(1887) 35 ChD 681 (ChD)
KAY J: These authorities seem to me to establish the following propositions: (I) The doctrine of part-performanceof a parol agreement, which enables proof of it to be given notwithstanding the Statute of Frauds, though principally applied in the case of contracts for the sale or purchase of land, or for the acquisition of an interest in land, has not been confined to those cases. (2) Probably it would be more accurate to say it applies to all cases in which a Court of Equity would entertain a suit for specific performance if the alleged contract had been in writing. (3) The most obvious case of part-performance is where the defendant is in possession of land of the plaintiff under the parol agreement. (4) The reason for the rule is that where the defendant has stood by and allowed the plaintiff to fulfil his l?art of the contract, it would be fraudulent to set up the statute. (5) But this reason applies wherever the defendant has obtained and is in possession of some substantial advantage under a parol agreement which, if in writing, would be such as the Court wou1d direct to be specifically performed. (6) The doctrine applies to a parol agreement for an easement, though no interest in land is intended to be acquired.
I have no doubt that the present case comes within the principle of these decisions. I find the Defendant in possession of an easement of light over the Plaintiff’s land by
reason of the Plaintiff having taken down’ and re-erected at a less height a boundary wall partly on the Defendant’s and partly on the Plaintiff’s land. By the same act the Defendant has been put in possession of a larger space on his side of the wall; the new wall erected being much thinner than the old one.
These acts could not have been done by the Plaintiff and these advantages could not have been obtained by the Defendant without some agreement between them. According to Morphett v Jones 1 Swans 172 the Court is bound to inquire what that agreement was. I find it to be one by which the Plaintiff was to have, as his part of the arrangement, a better light to his skylight over the Defendant’s land, and this was to be secured to him by the construction, in an agreed position, of a lean-to skylight on the Defendant’s side.
The Defendant having obtained all the advantages which this agreement was intended to give him, it would be a fraud on his part to refuse to carry out his part of the agreement, and to resist an attempt to compel him to do so by insisting on the Statute of Frauds.
Therefore, if the statute applies-as in my opinion it should-the equitable rule in cases of part-performance applies also.
(b) Law of Property Act 1962, s. 62
Law of Property Act 1962
62. General words implied in conveyances
(1) A conveyance of land shall be deemed to include and shall by virtue of this Act
operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
1N.oteTshe effect of s. 62 is that easements, profits, other rights appurtenant to the land, privileges and quasi-easements which are enjoyed in respect of the land are acquired by the grantee without the need for general words being
expressly mentioned in the conveyance.
2. Section 62 can be excluded by an express term to the contrary.
3. The effect of s. 62 may be more far reaching than at first appears, since the
section says that all privileges pass with the land at the date of the conveyance. For example, ifX leases a flat to Y and allows Y, as a gesture of goodwill and friendship, to usea lavatory on the third floor instead of on the second floor, then, on the renewal of the lease, if made by conveyance, sucha privilege will
pass by means of s. 62.
Wright v Macadam
[1949] 2 KB 744
JENKINS LJ: The predecessor of s. 62 of the Act of 1925, in the shape of s. 6 of the Act of 1881 has been the subject of a good deal of judicial discussion, and I think the effect of the cases can be thus summarized. First, the section is not confined to rights which, as a matter of law, were so annexed or appurtenant to the property conveyed at the time of the conveyance as to make them actual legally enforceable rights. Thus, on the severance of a piece of land in common ownership, the quasi easements de facto enjoyed in respect of it by one part of the land over another will pass although, of course, as a matter of law, no man can have a right appendant or appurtenant to one part of his property exerciseable by him over the other part of his property. Secondly, the right, in order to pass, need not be one to which the owner or occupier for the time being of the land has had what may be described as a permanent title. A right enjoyed merely by permission is enough. The leading authority for that proposition is the case of International Tea Stores Co. v Hobbs [t903] 2 Ch 165. That was a decision of Sir George Farwell as a judge of first instance. It was a case in which the defendant, who owned two houses, let one of them for business purposes and there had been a practice of giving permission to the successive managers of the property let to pass and re-pass with their servants and so forth across’ a yard which was part of the property and remained in the defendant’s occupation. The part of the property which had been let was later sold to the tenants, nothing beipg said in the conveyance about the right of way. The purchasers claimed to exercise the right of way by virtue of s. 6 of the Act of 1881. That claim was disputed, and th’e point was taken that it could not be a right which would pass under the implied general words inasmuch as it was only precariously enjoyed. The learned judge held that the fact that the way was permissive only was irrelevant for this purpose, and that by virtue of s. 6 of the Act of 1881 the grant included a corresponding right of way in fee simple. Dealing with the question of licence or permission, the learned judge said this: ‘Unless I am prepared to say that in no case can a tenant obtain under the Conveyancing Act, 1881, a right of way unless he has enjoyed it as of right, I must hold in this case that the fact of licence makes no difference ‘
Thnext proposition deducible from the cases is the one laid down in Burrows v Lang [1901] 2 Ch 502, which has been referred to in some of the passages I have already read. It is that the right in question must be a right known to the law. In Burrows v Lang [1901] 2 Ch 502 it was held that a so-called right to take, for the purposes of watering cattle, so much water, if any, as might happen to be left in an artificial watercourse after the owner of the watercourse had taken what he required for his own purposes, was not such a right. A certain amount of confusion has been introduced into the discussion on this aspect of the case by the circumstances that some of the learned judges have used the word ‘precarious’ in describing rights of a kind unknown to the law, and in particular the expression was so used by Farwell J in the case of Burrows v Lang [1901] 2 Ch 502; but in this context the precariousness enters into the character of the right as distinct from the title to the right. The right is precarious in the sense that, to take the example of the surplus water, there may be no water at all, d that the right is in itself liable to be defeated in that way. It is necessary to keep clearly in mind the distinction between ‘precariousness’ in the sense in which it is used in relation to quasi rights of that description, and precariousness of title as used in relation to a permissively exercised right. For the purposes of s. 62, it is only necessary that the right should be one capable of being granted at law, or, in other words, a right known to the law. !fit is a right of that description it matters not, as the International Tea Stores case shows,
that it has been in fact enjoyed by permission only. The reason for that is clear, for, on the assumption that the right is included or imported into e parcels of the conveyance by virtue of s. 62, the grant under the conveyance 1es what one may call the defect in title, and substitutes a new title based on the grant….
Next, the right was, as I understand it, a right to use the coal shed in question for the
purpose of storing such coal as might be required for the domestic purposes of the flat. In my judgment that is a right or easement which the law will clearly recognize, and it isa right or easement of a kind which could readily be included in a lease or conveyance by the insertion of appropriate words in the parcels. This, therefore, is not a case in which a title to a right unknown to the law is claimed by virtue of s. 62. Nor is ita case in which it can be said to have been in the contemplation of the parties that the enjoyment of the right should be purely temporary. No limit was set as to the time during which the coal shed could continue to be used. Mr Macadam simply gave his permission; that permission was acted on; and the use of the coalshed in fact went on down to August 28, 1943, and thereafter down to 1947. Therefore, applying to the facts of the present case the principles which seem to be deducible from the authorities, the conclusion to which I have come is that the right to use the coal shed was at the date of the letting of August 28, 1943, a right enjoyed with the top floor flat within the meaning ofs. 62 of the Law of Property Act, 1925, with the result that (as no contrary intention was expressed in the document) the right in question must be regarded as having passed by virtue of that letting, just as it would have passed if it had been mentioned in express terms in cl. 1, which sets out the subject-matter of the lease.
. . . In my judgment the right must be regarded as carrying with it the necessary
means of access, and it must be assumed that at all times down to August 28, 1943, Mrs Wright enjoyed the use of the coal shed together with the necessary access to it and from
it.
Goldberg v Edwards
[1950] Ch 247 (CA)
EVERSHED MR: What is the ‘time of conveyance’ within the meaning of s. 62, sub-ss. 1 and 2? The arrangement about this use of the passage appears to have been made at various dates, the last of which was January 13, 1947. The plaintiffs went into occupation of the annexe on January 18, 1947. The fitting of the bell and signboard took place after that. Several months passed (why, I know not, and it is quite immaterial) before the lease was executed on July 10, 1947, though the term was expressed to run from January 18. It is plain that before July 10 there was no written instrument
Union Lighterage Co. v London Graving Dock Co.
[1902] 2 Ch 557 (CA)
STIRLING LJ: In my opinion an easement of necessity, such as is referred to, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property. In Wheeldon v Burrows 12 ChD 31 the lights which were the subject of decision were certainly reasonably necessary to the enjoyment of the property retained, which was a workshop, yet there was held to be no reservation of it. So here it may be that the tie-rods which pass through the plaintiff’s property are reasonably necessary to the enjoyment of the defendants’ dock in its present condition; but the dock is capable of use without them, and I think that there cannot be implied any reservation in respect of them. Some other exceptions to the general rule are mentioned in Wheeldon v Burrows and in particular reciprocal easements, but it was not contended, and it does not appear to me that this case falls within any of them. Nor do I think that the tie-rods here form part of the corporeal structure of the dock which can be held not to have passed by the conveyance of the adjoining property.
VAUGHAN WILLIAMS LJ: One exception is the case ofnecessit)’, of which a
way of necessity is the most familiar instance. Another case of exception is the case of reciprocity, in which houses or other buildings are so constructed as to be mutually subservient to and dependent on each other, neither being capable of standing or being enjoyed without the support it derives from its neighbour. This exception is recognised by Lord Westbury 4 DJ & S 198 and by Thesiger LJ in Wheeldon v Burrows 12 ChD 31, the judgment of Pollock CB in Richards v Rose 9 Ex 218 being generally the authority quoted for this exception of reciprocal or mutual easements. A third exception is where that which is claimed to be reserved is not an incorporeal easement, but part and parcel of a house or other building belonging to the conveying party, but not included in the conveyance.
Re Webb’s Lease
[1951] Ch 808 (CA)
,
JENKINS LJ: As to the law applicable to the; case, it is not disputed that asa general rulea grantor, whether by way of conveyance or lease, of part of a hereditament in his ownership, cannot claim any easement over the part granted for the benefit of the part retained, unless it is expressly reserved out of the grant. See (for instance) Suffieldv Brown4 De GJ & S 185; Crossley & Sons Ltd v Lightowler LR 2 Ch 478; Wheeldonv Burrows 12 ChD 31.
There are, however, certain exceptions to the general rule. Two well-established exceptions relate to easements of necessity and mutual easements such as rights of support between adjacent buildings. But it is recognized in the authorities that these two specific exceptions do not exhaust the list, which is indeed incapable of exhaustive statement, as the circumstances of any particular case may be such as to raisea necessary inference that the common intention of the parties must have been to reserve some easement to the grantor, or such as to preclude the grantee from denying the right consistently with good faith, and there appears to be no doubt that where circumstances such as these are clearly established the court will imply the appropriate reservation….
Themost comprehensive statement of the area of potential exceptions is probably that contained in the speech of Lord Parker in Pwllbach Colliery Co. Ltdv Woodman
[1915] AC 634, where his Lordship, after referring to the exception with respect to easements of necessity, said this:
The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties toa grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. See Jones v Pritchard [1908]1 Ch 630, and Lyttleton Times Co. Ld v Warners Ld [1907] AC 476. But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use.
The case which in point of actual decision goes furthest in the direction of implying reservations of easements in favour of a grantor is undoubtedly that of Simpson v Weber 133 LT 46. The question there was whether the grantor of one of two adjoining houses owned by him had by implication reserved the right to have a creeper growing in the garden of the house retained supported by a wall of the house granted over which its foliage had spread, and the right to continue the attachment of a gate forming part of the premises retained to a wall forming part of the premises granted; and the Divisional Court, reversing a county court judge, decided in favour of the grantor’s successor in title on both points. Of this case I need only say that, while the physical circumstances
-at the date of the severance may perhaps have sufficed to support an implication of an intention common to grantor and grantee that the easements in question should be reserved, I cannot agree that the decision is good law, so far as it proceeds on the ground, given in both the two not very satisfactory reports, ‘that there was no evidence that it was not the intention of the parties that the creeper and the gatepost should stay’. In his judgment in the present case, Danckwerts, J, after citing at length from Simpson v Weber 133 LT 46, and also referring to Liddiard v Waldron [1934] 1 KB 435,
Wheeldon v Burrows 12 ChD 31 and· Thomas v Owen 20 QBD 225, expressed his conclusion thus:
It does seem to me that there may be exceptional circumstances in which it is only common sense to imply some reservation, for example, the circumstances of the present case. When I see that, when the parties entered into their transaction, there was an enormous advertisement painted on the wall advertising ‘Webb’s for Meat, Grocery and Provisions’, and a very large advertisement advertising ‘Brymay’, safety matches, which had been there since 1939 and before, and nothing was said between the parties about the removal of those advertisements, it seems to me common sense to imply an intention on the part of the two parties to the document that those advertisements should be allowed to remain. Therefore, I am prepared to hold that there was implied in favour of the landlord in this lease an easement until the termination of the lease to keep those two advertisements in the position in which they are, and, of course, by necessary implication, a right to repair them, paint them, or do whatever may be necessary from time to time to preserve them as effective advertisements.
I find myself unable to agree with the judge’s conclusion. The question is whether the circumstances of the case as proved in evidence are such as to raise a necessary inference that the common intention of the parties was to reserve to the landlord during the twenty-one years’ term some, and if so what, rights in regard to the display of advertisements over the outer walls of the demised premises, or such as to preclude the tenant from denying the implied reservation to the landlord of some such rights consistently with good faith.
That question must be approached with the following principles in mind: (i) If the landlord intended to reserve any such rights over the demised premises it was his duty to reserve them expressly in the lease of August 11, 1949 (Wheeldon v Burrows 12 ChD 31); (ii) The landlord having failed in this duty, the onus was upon him to establish the facts to prove, and prove clearly, that his case was an exception to the rule (Aldridge v Wright [1929] 2 KB 117); (iii) The mere fact that the tenant knew at the date of the lease of August 11, 1949, that the landlord was using the outer walls of the demised premises for the display of the advertisements in question did not suffice to absolve the landlord from his duty of expressly reserving any rights in respect of them he intended to claim, or to take the case out of the general rule; see Suffieldv Brown 4 De GJ& S 185; Crossley
& Sons Ltdv Lightowler LR 2 Ch 478….
Thmeere fact that the tenant knew of the presence of the advertisements at the date when the lease of August 11, 1949, was granted being, as stated above, beside the point, nothing is left beyond the bare circumstance that the advertisements were not only present at the date of the grant but had been continuously present without objection by the tenant since the commencement of his original tenancy in 1939. Does this circumstance suffice to raise a necessary inference of an intention common to both parties at the date ()f the lease that the landlord should have reserved to him the right to maintain these advertisements throughout the twenty-one years’ term thereby granted? I cannot see that it does: The most that can be said is that the facts are consistent with such a common intention. But that will not do. The landlord must
surely show at least that the facts are not reasonably consistent with any oter explanation. Here he manifestly fails….
(b) Implied grant ./
Wong v Beaumont Property Trust Ltd
[1965] 1 QB 173 (CA)
LORD DENNING MR: The question is: Has the plaintiff a right to put up this duct without the landlords’ consent? If he is to have any right at all, it must be oy way of easement and not merely by way of implied contract. He is not the original lessee, nor are the defendants the original lessors. Each is a successor in title. As between thema, right of this kind, if it exists at all, must be by way of an easement. In particular, an easement of necessity. The law on the matter was stated by Lord Parker of Waddington in Pwllbach Colliery Co. Ltd v Woodman [1915] AC 634 That is the principle which
underlines all easements of necessity. If you go back to Rolle’s Abridgment you will find it stated in this way (2 Roi Abr 60, pl. 17, 18): ‘If I have a field inclosed by my own land on all sides, andI alien this close to another, he shall have a way to this close over my land, as incident to the grant; for otherwise he cannot have any benefit by the grant.’ I would apply those principles here. Here was the grant of a lease to the lessee for the very purpose of carrying on a restaurant business. It was to bea popular restaurant, and it was to be developed and extended. There was a covenant not to cause any nuisance; and to control and eliminate all smells; and to comply with the Food Hygiene Regulations. That was ‘a definite and particular manner’ in which the business had to be conducted. It could not be carried on in that manner at all unless a ventilation system was installed by a duct of this kind. In these circumstances it seems to me that, if the business is to be carried on at all – if, in the words of Rolle’s Abridgment, the lessee is to ‘have any benefit by the grant’ at all – he must of necessity be able to put a ventilation duct up the wall. It may be that in Blackaby’s time it would not have needed such a large duct as is now needed in the plaintiff’s time. But nevertheless a duct of some kind would have had to be put up the wall. The plaintiff may need a bigger one. But that does not matter. A man who has a right to an easement can use it in any proper way, so long as he does not substantially increase the burden on the servient tenement. In this case a bigger duct will not substantially increase the burden.
There is one point in which this case goes further than the earlier cases which have been cited. It is this. It was not realised by the parties, at the time of the lease, that this duct would be necessary. But it was in fact necessary from the very beginning. That seems to me sufficient to bring the principle into play. In order to use this place as a restaurant, there must be implied an easement, by the necessity of the case, to carry a duct up this wall. The county court judge so held. He granted a declaration. I agree with him.
Wheeldon v Burrows
(1879) 12 ChD 31 (CA)
THESIGER LJ: We have had a considerable number of cases cited to us, and out of them I think that two propositions may be stated as what I may call the general rules governing cases of this kind. The first of these rules is, that on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted. The second proposition is that, if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant. Those are the general rules governing cases of this kind, but the second of those rules is subject to certain exceptions. One of those exceptions is the well-known exception which attaches to cases of what are called ways of necessity; and I do not dispute for a moment that there may be, and probably are, certain other exceptions, to which I shall refer before I close my observations upon this case.
Both of the general rules which I have mentioned are founded upon a maxim which is as well established by authority as it is consonant to reason and common sense, viz.,that a grantor shall not derogate from his grant. It has been argued before us that there is no distinction between what has been called an implied grant and what is attempted to be established under the name of an implied reservation; and that such a distinction between the implied grant and the implied reservation is a mere modern invention, and one which runs contrary, not only to the general practice upon which land has been bought and sold for a considerable time, but also to authorities which are said to be clear and distinct upon the matter. So far, however, from that distinction being one which was laid down for the first time by and which is to be attributed to Lord Westbury in Suffield v Brown 4 De GJ & S 185, it appears to me that it has existed almost as far back as we can trace the law upon the subject; and I think it right, as the case is one of considerable importance, not merely as regards the parties, but as regards vendors and purchasers of land generally, that I should go with some little particularity into whatI may term the leading cases upon the subject….
These cases in no way support the proposition for which the Appellant in this case contends; but, on the contrary, support the propositions that in the case of a grant you may imply a grant of such continuous and apparcmt easements or such easements as are necessary to the reasonable enjoyment of the property conveyed, and have in fact been enjoyed during the unity of ownership, but tl].at, with the exception which I have referred to of easements of necessity, you cannot imply a similar reservation in favour of the grantor of land. ·
Ward v Kirkland
[1967] Ch 194
UNGOED-THOMAS J: [I]t would appear that the ‘easements which are necessary
to the reasonable enjoyment of the property conveyed’ might be a separate class from ‘continuous and apparent easements.’ It has been recognised that there is some difficulty in these descriptions, to which I have referred, of the easements which come within the ambit of the doctrine of Wheeldon v Burrows. It has been suggested that perhaps the ‘easements necessary to the reasonable enjoyment of the property conveyed’ might refer to negative easements, whereas what we are concerned with here is positive tasements. However that may be, I understand that there is no case in which positive easements which are not ‘continuous and apparent’ have been held to come within the doctrine of Wheeldon v Burrows. Here, there has certainly been continuous user, in the sense that the right has been in fact used whenever the need arose….
Here, it is conceded that it was only ‘possible or practicable for the occupiers of the cottage to maintain the boundary wall by going onto the defendant’s property as claimed in this case. That would be obvious on an inspection of the properties. But here there was no feature on the defendant’s property designed or appropriate for such maintenance. The question is .whether that requirement is necessary. If it is not necessary, then there are no clearly defined limits to the area of user; and if the easement extends to maintain the whole wall, as it must, then there could be no interference with that easement and therefore no building in the yard along that wall.
Professor Cheshire, in his book on Real Property, says [at p. 468] that
The two words ‘continuous’ and ‘apparent’ must be read together and understood as pointing to an easement which is accompanied by some obvious and permanent mark on the land itself, or at least by some mark which will be disclosed by a careful inspection of the premises.
Then he gives instances, and says [at p. 469]:
A right of way is not necessarily such a quasi-easement as will pass under the rule in Wheeldon v Burrows. To do so it must be apparent. There is no difficulty where there is a definite made road over the quasi-servient tenement to and for the apparent use of the quasi-dominant tenement. Such will clearly pass upon a severance of the common tenement. But the existence of a formed road is not essential, and if there are other indicia which show that the road was being used at the time of the grant for the benefit of the quasi-dominant tenement and that it is necessary for the reasonable enjoyment of that easement, it will pass to a purchaser of the latter.
It seems to me that in the absence of a continuous and apparent feature designed or appropriate for the exercise of the easement on the servient tenement, there is not a continuous and apparent easement within the requirements of Wheeldon v Burrows in the case of alleged positive easements. I, therefore, come to the conclusion that the easement claimed was not created by implication of law.
.
Kilgour v Gaddes
[1904] 1 KB 457 (CA)
, ‘the possession of the tenant of the demised close is the possession of his landlord; and it seems to be an utter violation of the first principles of the relation of landlord and tenant to suppose that the tenant, whose occupation of close A was the occupation of his landlord, could by that occupation acquire an easement over close B, also belonging to his landlord.’ This doctrine was approved and acted upon by the Court of Common Pleas in this country in Clancy v Byrne (1877) IR 11 CL 355. If I am asked how it is consistent with the Prescription Act, I answer that such user and enjoyment is not as of right within the meaning of the 2nd section. It is a user by a termor, who, ifhe acquire the right, must acquire it as incident to the land of which he is termor, and1 thus for the benefit of his reversioner. Such user cannot be as of right, unless a reJersioner can in law by user acquire a right against himself.
That reasoning appears to me conclusive of the present case. There was a long discussion in the course of the argument as to the possibility of a termor under one landlord acquiring for his landlord an easement by user over land in the occupation of a termor under another landlord, and as to whether an easement in such a case could be acquired, unless and until the user had continued for the period of three years after the determination of the term in the servient tenement without interference by the reversioner. That no doubt raises an interesting question, which appears to have been decided in Ireland in the case of Beggan v McDonald 2 LR Ir 560 contrary to the view expressed in this country in Bright v Walker 1 CM & R 21l; 40 RR 536 and also in Wheaton v Maple & Co. [1893] 3 Ch 48, in neither of which cases, however, was it necessary actually to decide the point. That question, however, is not the question raised in the present case.
Pugh v Savage
[1970] 2 QB 373 (CA)
P purchased a farm, which included field A, from R in 1950. A footpath ran from the highway, along a lane, which was partly on P’s land, into field A. The footpath continued across field A to give access to field B and the next field, field C. Until 1966 the three fields had been in separate ownership. In 1966, the owner of field B purchased field C and let both fields to D. D was told that he had a right of way over field A. P tried to prevent D from using the right of way. D claimed to have acquired a right of way by prescription as the right had been used uninterrupted for over 30 years by his predecessors in title. It was established that R had let the farm, including field A, to his son, from 1940 to 1950 and it was argued that that tenancy defeated D’s claim to a prescriptive right of way. Held: where a tenancy of a servient tenement came into existence during the course of the period of user, the grant of the tenancy is not fatal to the presumption of a grant or claim under the Prescription Act 1832, unless there is evidence that the
Sovmots Investments Ltd v Secretary of State for the Environment
[1977] UKHL 3
Lord Wilberforce
my lords,
In these conjoined appeals, the appellants (1) Sovmots Investments Ltd.
(“Sovmots “) and (2) Brompton Securities Ltd. (” Brompton “) are seeking
to have quashed a compulsory purchase order made by the London Borough
of Camden (“Camden”) and confirmed by the Secretary of State for the
Environment. At first instance, Forbes J., on 1st August 1975, quashed the
order, but his decision was reversed by the Court of Appeal on 21st July 1976.
The full title of the order is the London Borough of Camden (Centre Point
Residential Accommodation) Compulsory Purchase Order 1972. It was made
on 12th September 1972, under Part V of the Housing Act 1957, in particular
under sections 96 and 97.
Centre Point is a remarkable, elaborate and expensive complex of buildings
at St. Giles Circus, London, W.C. The site freeholders are the Greater
London Council, and Sovmots are lessees for 150 years from 29th September
1960. The present litigation, and the difficulties in its resolution, arise
directly out of the unique character of this development.
Centre Point was completed in the winter of 1966/7, but with minor
exceptions, which at the date of the order did not include the residential
section, has never been occupied. There is a considerable housing shortage
in Camden, so it is not surprising that in 1972 the Council decided compul-
sorily to acquire the residential section in order to provide housing
accommodation for people on its housing list.
Centre Point consist of three main parts. First, on the west side, there is
a very high tower block meant for office use. Second, there is a low Bridge
Block running west to east, joining the other two parts: this is intended for
shops and showrooms. Third, on the east side, running from north to south,
there is the Earnshaw Wing. This is of unusual construction. The lower
part consists of a basement car park and four floors intended for shops,
showrooms and offices. This part has a flat roof, called a ” podium “. From
the podium there rise columns, or stilts, architecturally keyed in with the lower
part, which support a massive block of distinct architectural design containing
36 two-storey maisonettes in six floors. Each maisonette is reached from a
corridor running from south to north through the middle of the block on
alternate floors. Access to the upper floor of each maisonette is by an
internal staircase. It is these maisonettes which are the subject of the
compulsory purchase order.
The structure of the Earnshaw Wing and of the maisonette block is
elaborate and can only be adequately described with the help of plans and
photographs. These were available to your Lordships. Your Lordships
2
found it useful to visit the site and inspect it in some detail. The following
features are particularly relevant for the purposes of these appeals. Access
to the maisonette block is provided by lifts and staircases. There are two
passenger lifts at the south end from an entrance hall on the ground floor
of the Earnshaw Wing: these serve only the maisonettes via the corridors.
There is also a goods lift from the ground floor to the podium which also
serves the shops. There is a staircase alongside the passenger lifts: this also
provides access for showroom and office floors in the lower part. There is
another staircase at the north end of the Earnshaw Wing: this is in two parts.
The upper part provides exits, really for emergency use, at alternate floor
levels from the masonettes’ corridors. At the other (alternate) levels it is
possible to escape from the maisonettes on to the staircase through hatches.
Below podium level, this staircase provides access to the floors from
mezzanine level downwards and emerges on to the street. There is a con-
nection between the two parts of this staircase by a one-way door which
allows access from the maisonettes, but is supposed to deny access to them.
Also at the north end of the maisonettes there is a small rubbish chute to
which the maisonettes have access: this terminates in a receptacle in an
enclosed chamber on the podium. This receptacle is said to be capable of
being wheeled across the podium to the goods lift at the south end.
There are common services available for the Earnshaw block which are to
a great extent combined and not capable of separation as between the upper
and lower part. Electricity is controlled from an intake room in the basement
where there are five switch-geared supplies, four for the maisonettes, the fifth
for the general services provided in the wing, viz., lifts, ventilation, lighting
and power to stairs, corridors, car parks and showroom and shops areas.
Water is supplied to the maisonettes by extensions of the mains supplying
the lower part of the building. Soil and surface water from the maisonettes
runs from drains in the block into drains for the lower part and thence to
inspection chambers below the block. Overflow pipes from the maisonettes
discharge on to the podium roof. It is obvious, on examination, and it was
so found by the inspector, that the Earnshaw Wing, and indeed the whole of
Centre Point, was designed as one complex unit suitable for a single office
user with a need of showroom space. The maisonettes seem to have been an
after-thought, and indeed an embarrassment, but they were ” part of the
” planning permision package “. The idea was that they should be pieds-a-
terre for the offices’ directors and executives.
This combination of units turned out difficult, indeed so far impossible,
to let as a whole. So on 23rd November 1973, i.e., after the making of the
order, Sovmots entered into an underlease of the maisonettes to Brompton.
This underlease was for 45 years from 29th September 1973. It included,
in addition to the maisonettes themselves, the southern staircase and entrance
hall, also the northern staircase above podium level. As would be expected
it contained a number of detailed provisions, covenants and reservations.
In particular it contained a grant of easements, or rights, as to the passage of
water, soil, electricity and gas, as to the use of the goods lift, and as to the
use of the northern staircase below podium level, with corresponding reserva-
tions for the benefit of Sovmots and their tenants in the rest of the block.
Brompton have in turn sublet maisonettes to tenants at high rents.
The appropriate notices and advertisements, having been given and made,
Sovmots and Brompton objected to the compulsory purchase order and a pub-
lic inquiry was ordered by the Secretary of State. This was held by Mr. Peter
Boydell, Q.C., as inspector, assisted by Mr. W. J. N. Oswald, F.R.I.C.S. The
inspector produced his report on 28th March 1974, a document of admirable
clarity and comprehensiveness, and it dealt fully and fairly with the objections,
in fact and in law. The recommendation was that the order be confirmed
with certain modifications, and this was accepted by the Secretary of State.
The material modification related to the description of the property. I set out
in parallel the original description as it appeared in the order and the
modified description as confirmed. There were corresponding differences
in the maps.
3
Original Order
36 Residential maisonettes on the 3rd, 4th, 5th, 6th, 7th and 8th floors forming part of and adjacent to the east side of the property known as Centre Point, London, W.C.l. Together with such parts of the building which are necessary for access thereto and the maintenance thereof.
Order as confirmed
36 Residential maisonettes on the 3rd, 4th, 5th, 6th, 7th and 8th floors of the part of and adjacent to the east side of the property known as Centre Point, London, W.C.I., together with,
(i) the corridors giving access to the said maisonettes,
(ii) the entrance hall, staircase and lifts at the south end and
(iii) the staircase above podium level at the north end.
There was an argument based upon the original terms of this description and
its modification by the Secretary of State to the effect that the first was
uncertain and the second ultra vires. However I take the view, on a fair
reading, that the original order contemplated acquisition of certain—then
unspecified—physical parts, which parts were then specified under the
numbering (i)—(iii) in the confirming order. Neither description, in my
view, contemplated in terms the acquisition of rights.
We are, in these appeals, not concerned in any way with the financial or
sociological merits of the proposed compulsory acquisition. On the other
hand, the courts have power on legal grounds to quash a compulsory pur-
chase order—indeed they must do so if a proper case is made out.
Three reasons were put forward by Sovmots why the order should be
quashed, namely:
1.. That a local authority cannot be authorised by the Minister under
the Housing Act 1957 to acquire compulsorily a horizontally-divided
part of a building (or ” stratum “) excluding the underlying soil on
which the building stands.
2.. That a local authority cannot be authorised by the Minister not
only to acquire a corporeal hereditament but also to compel the grant
for the benefit of such hereditament of new rights over lands or buildings
not authorised to be acquired.
3. That a local authority cannot be authorised by a compulsory
purchase order to compel the grant of such new rights if there is no
description or mention of them in such order.
The first of these reasons was rejected both by Forbes J. and by the Court
of Appeal and was ultimately not pursued in this House. Reasons (2) and
(3) were accepted by Forbes J. but rejected by the Court of Appeal. Two
further reasons for quashing the order were given on behalf of Brompton,
one of which related to the description of the property I have already referred
to. The second related to an agreement between Camden and the Greater
London Council and in the view which I take of the appeals does not arise
for decision.
I come therefore to deal with the second objection put forward by Sovmots.
The relevance of this objection to the validity of the order arises under the
Acquisition of Land (Authorisation Procedure) Act 1946 which in turn is
incorporated by the Housing Act 1957, section 97 and Schedule 7. Under
paragraph 15 of Schedule 1 to the Act of 1946 an order may be quashed by
the High Court (inter alia) if the court is satisfied that the authorisation
granted by the compulsory purchase order is not empowered to be granted
under the Act, or under the Housing Act 1957.
It is common ground between the appellants and the respondents that if
Camden cannot under the compulsory purchase order acquire the ancillary
rights over the appellants’ property which are necessary if the maisonettes,
when severed in ownership from the rest of Centre Point, are to be used as
dwellings, then the Secretary of State could not confirm the order and it must
be quashed. So the question is whether these ancillary rights can be acquired.
4
I start with the proposition that an acquiring authority cannot, under a
mere power to acquire land, and in the absence of a special provision in
the relevant ” special” or general Act, require an owner of land to grant to
it rights over his land which did not exist at the time of the purported
acquisition. The proposition is, I think, correctly stated in Halsbury’s Laws
of England, 4th Ed., Vol. 8, paragraph 56, as follows:
” There is no power to create and take an interest in land such as a
” lease without acquiring the freehold or other interests unless specific
” power to do so is given in the special Act; nor is there power to
” create and purchase an easement without purchasing the land unless
” special provision is made or in either case the owner agrees.”
This proposition simply states a consequence of the process of compulsory
acquisition. Parliament can authorise an authority to take the land of
private persons; but if it wishes to confer on an anthority power to require
an owner to create, in its favour, limited interests or rights, less than the
owner’s interest (for which of course less compensation might be paid) it
must do so in specific terms. Parliament has done this in certain cases
(for example in the Water Act 1948, section 11) and it is argued that, by
implication, it has done so in the Housing Act 1957. I shall deal with that
argument. But without specific power this cannot be done.
The main argument before the inspector and in the courts below was that
in this case and under the compulsory purchase order as made no specific
power to require the creation of ancillary rights was necessary because these
would pass to the acquiring authority under either, or both, of the first rule
in Wheeldon v. Burrows (1879) 12 Ch.D.31 (“the Rule”) or of section 62
of the Law of Property Act 1925. Under the Rule (I apologise for the
reminder but the expression of the rule is important) ” on the grant by the
” owner of a tenement or part of that tenement as it is then used and enjoyed,
” there will pass to the grantee all those continuous and apparent easements
” (by which, of course, I mean quasi easements), or, in other words all those
” easements which are necessary to the reasonable enjoyment of the pro-
” perty granted, and which have been and are at the time of the grant used
” by the owners of the entirety for the benefit of the part granted ” (I.c. p.
49, per Thesiger L.J., my emphasis). Under section 62 a conveyance of land
operates to convey with the land all ways, watercourses, liberties, privileges,
easements, rights, and advantages whatsoever, appertaining or reputed to
appertain to the land, or any part thereof, or, at the time of conveyance,
demised, occupied or enjoyed with, or reputed or known as part or parcel
or appurtenant to the land or any part thereof.
My Lords, there are very comprehensive expressions here, but it does not
take much analysis to see that they have no relevance to the situation under
consideration.
The Rule is a rule of intention, based on the proposition that a man may
not derogate from his grant. He cannot grant or agree to grant land and at
the same time deny to his grantee what is at the time of the grant obviously
necessary for its reasonable enjoyment. To apply this Rule to a case where
a public authority is taking from an owner his land without his will is to
stand the Rule on its head: it means substituting for the intention of a
reasonable voluntary grantor the unilateral opposed, intention of the acquirer.
Moreover, and this point is revelant to a later argument, the words I have
underlined show that for the Rule to apply there must be actual, and apparent,
use and enjoyment at the time of the grant. But no such use or enjoyment
had, at Centre Point, taken place at all.
Equally, section 62 does not fit this case. The reason is that when land is
under one ownership one cannot speak in any intelligible sense of rights,
or priviliges, or easements being exercised over one part for the benefit of
another. Whatever the owner does, he does as owner and, until a separation
occurs, of ownership or at least of occupation, the condition for the existence
of rights, etc., does not exist—see Bolton v. Bolton (1879) 11 Ch.D. 969,
5
970 per Fry J. and Long v. Gowlett [1923] 2 Ch. 177, 189, 198, in my opinion
a correct decision.
A separation of ownership, in a case like the present, will arise on con-
veyance of one of the parts (e.g. the maisonettes), but this separation
cannot be projected back to the stage of the cumpulsory purchase order so
as, by anticipation to bring into existence rights not existing in fact.
My Lords, I have thought it necessary to deal with these arguments in
spite of their virtual abandonment in this House, for two reasons. First
they were the foundation of the inspector’s recommendation, and some of
his findings as I shall show, are clearly based on his view as to the validity
of the arguments. And, secondly, I have little doubt that the contentions
which were presented to your Lordships are, in reality, but a thinly disguised
or gently refurbished version of them. To see this it is only necessary to
quote two passages from the judgment of the Court of Appeal, ([1976] 3
W.L.R. 597) which the respondents seek to uphold:
“Although no question of common intention arises, one must
” construe the compulsory purchase order and ascertain the intention
” of the acquiring authority. Camden must have intended to acquire
” the rights here in question, without which it would be impossible for
” the maisonettes to be used as houses. The description of the physical
” property which they are empowered to take therefore includes by
” necessary implication all ancillary rights necessary for its use for the
” purpose for which it is being acquired—that is, as houses.” (p. 613).
” The maisonettes were being acquired for the purpose of being
” used as houses. There is a finding of fact that these ancillary rights
” are necessary to enable them to be used for that purpose. Camden
” must therefore have intended to acquire these ‘ rights ‘ with the houses,
” and on the true construction of the compulsory purchase order they
” are included by necessary implication in the description of the
“‘ houses’ themselves” (p. 614).
Before I deal with the argument based on ” necessary implication “. I
should describe in more detail the ” ancillary rights” in question. There
was produced before the Inspector a document—marked CBC2A—in which
Camden gave its description of these rights. I quote the relevant part.
” Note of Ancillary Rights and Obligations for Inclusion in the
” Conveyance
” A. The London Borough of Camden will acquire the following
” rights pursuant to the first rule Wheeldon-v.-Burrows (1879 12 Ch.D.31
” and section 62(2) of the Law of Properly Act 1925.
” (1) A right (in case of emergency only and for no other purpose
” whatsoever) for the Council, their tenants and occupiers of
” the acquired premises to use the staircase below podium
” level at the north end of the demised premises.
” (2) A right in common with the owners and occupiers of the
” remaider of the building to use the goods lift (when operating*
” for the purpose only of removing rubbish from the acquired
” premises and for no other purpose whatsoever.
” (3) A right of support from the building below podium level and
” from the columns supporting the residential block.
” (4) A right of free passage or running of water, soil, electricity,
” gas, and other services through the pipes, wires, and cables
” serving the acquired premises.
” (5) A right of access by means of the outside of the building for
” purposes of window cleaning, maintenance, and repair.
” (6) All other such rights as are within the said rule and section.”
There are several points to notice about this. First, the document formed
no part of the compulsory purchase order so has no status in law. Secondly
it is non-exhaustive (see paragraph 6) and indeed learned counsel for Camden
described the items as ” illustrations “: one, possibly important, other right
6
not specifically mentioned, was a right of access to the electricity meter room.
Third, the list is headed with a reference to Wheeldon v. Burrows, and to
section 62 of the Law of Property Act 1925, so confirming that what we
have is an attempt to gain by a new phrase of ” necessary implication ”
exactly what Camden cannot get under either of these rules. Fourthly, it
is obvious from the list, and also from the factual situation of the maisonette
block, that just what rights the occupiers of the maisonettes should have over
the retained portion of the building must be a matter of discussion and
negotiation, and in no way comes under a heading of ” necessity “. That
word might indeed cover access to the block, but this is provided for by
acquisition of the lifts and staircases: other exits and entrances can be
provided through several permutations; it might cover drains, but the
situation as regards these is not simply one of an easement of pipes, since
below podium level the same pipes and mains have to serve the needs of
both parts of the wing; it might cover support, but the precise obligations
of the subjacent owner as regards the elaborate structure of ” stilts ” and
cement blocks, most evidently need description. A confirmation of this is
provided by the underlease of the maisonettes from Sovmots to Brompton
dated 23rd November 1973. This, as one would expect, contains an extensive
body of reservations and covenants consequent on the separation or occupa-
tion. It resembles—and probably inspired—the document CBC 2A but is
not identical with it; it clearly represents the result of careful negotiation
between landlord and tenant. And this is surely the reality of the matter.
Centre Point was designed as a combined unit: it was not constructed for
separation into parts. If separation is carried out, there is no evident,
apparent, and still less necessary list of rights which, without specification, or
in the nature of things, attach to a separated part. And if these rights cannot
(for the reasons I have given) arise under the Rule or under section 62,
a fortiori, in my opinion, they cannot arise as necessary. Or, to put in another
way, Camden while professedly contending for necessities is really adopting a
standard of reasonable enjoyment and convenience which must be custom-
made for this structure.
This argument, from necessary implication overlaps with two other argu-
ments, based on definitions appearing in the legislation.
1. What is authorised to be acquired is “land”. By the combined
operation of the Compulsory Purchase Act 1965 section 1(3), the Acquisi-
tion of Land (Authorisatiion Procedure) Act 1946 section 8(1), and the
Housing Act 1957 section 189(1), land is defined as including “any
” right over land “. In my opinion this is a carefully spelt out definition
within which the acquiring authority is confined. There is no room
here for extension by way of ” necessary implication ” whatever that
expression is supposed to mean. If what is authorised to be acquired
cannot be used for the purpose for which its acquisition is intended, un-
less by agreement, and if agreement is not forthcoming, I know of no
doctrine by which, under some rule of implication, the power of acqui-
sition can be extended beyond the satutory definition. I accept, of
course, as authority amply demonstrates, that statutory powers can,
indeed should, be construed in accordance with Parliament’s intention,
so as to include what may fairly be regarded as incidental to or conse-
quential upon what has been authorised—this is the well known principle
of Ashbury Railway Carriage & Iron Co. v. Riche L.R. 7 HL 653 :
for a recent application see Loweth v. Minister of Housing & Local
Government (1970) 22 P. & C. R. 125. But it is one thing to say that
an express power to acquire land may be valid, if fairly within the
statutory purpose: It is quite another to say that under a power to ac-
quire land there follow with the land some other interests not mentioned
in the authority to acquire. Expropriation cannot take place by implica-
tion or through intention: it is authorised or not authorised. And to see
which, it is necessary to construe the authority. So is acquisition author-
ised under these words? In my opinion, clearly not. A power to
acquire a right over land cannot authorise compulsion of an
owner of land not being acquired to grant new rights over that land;
for the latter quite different words would be needed. Parliament has
7
tried its hand at them in the Local Government (Miscellaneous Provi-
sions) Act 1976, section 13—the contrast with the words relevant here
is clear.
2. The Housing Act 1957 contains specific provision for the acqui-
sition of houses (section 96). I am willing to accept, for the purpose of
this argument, that there is power compulsorily to acquire ” houses ” as
defined in the Act—as well as to acquire ” land “. Section 189(1)
contains this:
” ‘house’ includes (a) any yard, garden, outhouses and appurten-
” ances belonging thereto or usually enjoyed therewith “,
and it is said that these words carry the ancillary rights. But I cannot
agree. These words are a clear echo of those used in the first rule in
Wheeldon v. Burrows and in section 62 (u.s.). ” No doubt,” said Fry LJ.
” the word ‘ appurtenances’ is not apt for the creation of a new right,
” and the word ‘ appurtenant’ is not apt to describe a right which had
” never previously existed “. But, he continued, ” appurtenant” had
long been held ” to admit of a secondary meaning and as equivalent in
” that case to ‘ usually occupied’ “. Thomas v. Owen, 20 QBD 225,
231-2. The draftsman might have had this passage in mind. The words
are totally inadequate to create or define or to pass a complex of an-
cillary right which at the time of the order had no definition and, with
only some possible exceptions, no existence.
So, by whichever route the respondents attempt to go, I find that they fail
in the contention that the compulsory purchase order secures them the rights
which they require. I must mention, in conclusion, two arguments.
As the second quotation I have made from the judgment of the
Court of Appeal shows, that court took the view that the necessity of the
ancillary rights claimed was established by a winding of fact of the
inspector. I do not so read his report. He accepted the argument put
before him that the rights could pass to the purchaser under the Rule
and under section 62 (u.s.). He accepted that the rights had not been
exercised. He considered that one could look ” to the common inten-
tion of the parties ” and that when the relation of vendor-purchaser
between the parties exists they must be deemed to have intended that
those rights would pass. In any event they would pass under section 62
so long as the right words were put into the notice to treat. It was in
this context, which (as is really now accepted) was not maintainable in
law, that he wrote ” it is obvious that the rights claimed are necessary
” for the reasonable enjoyment of the maisonettes”. I do not regard
this finding as going beyond the estiblishment of a set of facts which, in
his opinion, might bring in the Rule and secton 62.
The learned inspector, in this followed by the Court of Appeal,
held that the rights, though not enjoyed or exercised, existed ” in a latent
” form “. But this, with respect, is either a contradiction in terms, or a
very great, and indeterminate, extension of both Rule and section. Each
is based on enjoyment and exercise: neither is warrant for an emergence
—Athene-like—of rights fully defined, on a unilateral act by the
acquiring authority.
In my opininon, therefore, since the Minister when confirming the order
did so upon a hypothesis, as to the ancillary rights, which turns out not to
be well founded, the order must be quashed.
I therefore find it unnecessary to decide whether, if there is power under
the Housing Act 1957, to require new rights to be created, such new rights
must be specified in the compulsory purchase order. While I incline to
think that in the interest of fairness and justice they should be, I wish to
cast no doubt upon what I understand is accepted procedure, namely, that
such existing legal rights (e.g., easements) as go with land being acquired or
are on the title to that land need not be so specified.
I would allow the appeal and restore the order of Forbes J. quashing the
order. The respondents must pay the costs of the appellants in this House
and in the Court of Appeal.
8
Lord Edmund-Davies
MY LORDS,
These conjoined appeals relate to applications by the appellants to quash
The London Borough of Camden (Centre Point Residential Accommodation)
Compulsory Purchase Order 1972, made by the Council of the London
Borough of Camden (” Camden “) on September 12th 1972, and confirmed,
after modification, on August 30th 1974 by the Secretary of State for the
Environment. The applications were made under paragraph 15(1) of the
First Schedule to the Acquisition of Land (Authorisation Procedure) Act
1946, which was incorporated into the Housing Act 1957 by section 97(1)
and Schedule 7 thereto.
The first appellants (” Sovmots “) hold a lease for 150 years from Septem-
ber 29th 1960 of the Centre Point site granted to them by the Greater London
Council, and the second appellants (” Brompton”) an underlease for 45
years from September 29th 1973 of the residential portion of the vast build-
ing erected by Sovmots on the site and completed in November 1966. Each
asserted that ” the authorisation granted by the compulsory purchase order
” is not empowered to be granted “, and applied for the order to be quashed.
Forbes J. acceded to their applications, but the Court of Appeal rejected
them. They now appeal to your Lordships’ House for the judgment of
Forbes J. to be restored.
If Camden was not empowered to make the compulsory purchase order
(” the C.P.O.”), it is common ground that the Secretary of State had no
right to confirm it, either in its original form or as modified by him in
the light of the report rendered after a lengthy public inquiry presided
over by Mr. Boydell. Q.C., and that it must be quashed. It follows that
Mr. Browne-Wilkinson was right in stressing that the primary question for
determination now is whether the appellants have established that the
Secretary of State was wrong in law when he proceeded to confirm the
C.P.O. ”
My Lords, it appears that Camden erred in three respects in making
the C.P.O. First, they paid insufficient attention to the legal problems
inherent in the compulsory acquisition of a unique type of property. This
was far from being an ordinary compulsory purchase project. Camden
were not contemplating the acquisition of houses or a block of flats or
of some independently occupied flats in a block, but of 36 maisonettes
within the outer shell of a gigantic building whose internal construction
was elaborately interlocked, and regarding which the inspector reported
(para. 135):
” Centre Point was conceived as a complex suitable for a single
” office user with a need of showroom space. It seems clear that
” from the outset there were misgivings about the maisonettes. They
” were an embarrassment, but they were part of the planning permis-
” sion package. The idea therefore developed, and was fostered, that
” they should be pieds-a-terre for the offices’ directors and executives “.
The second point of importance which Camden seemingly failed to regard
as legally significant is that, even up to the last day of the inquiry (February
8th 1974), Brompton, who had become underlessees of the maisonettes in
the preceding November, had not let any of them and that the whole of
the vast Centre Point building had throughout remained unoccupied. The
third error was the authority’s failure to appreciate the basic difference
between the consequences flowing from the compulsory acquisition of pro-
perty and those which follow when parties have agreed the terms upon
which the title to landed property is conveyed.
The unique and interlocking structure of Centre Point has been described
by my noble and learned friend on the Woolsack and need not now be
repeated. The legal implications of the fact that the entire premises were
unoccupied will emerge later. But what must not be deferred is consideration
of the legal consequences flowing from the making of a C.P.Q. in such
9
circumstances. It was exemplified by the manner in which Camden through-
out dealt with the second of the five questions (conveniently set out by
Browne L.J. at [1976] 3 W.L.R. 605G) which have been canvassed. Although
Forbes J. described is as a ” subsidiary contention” ([1976] 2 W.L.R. 78B),
it became the primary question in your Lordships’ House, and rightly so, for,
if answered in a manner adverse to the respondents’ submissions, it is
conclusive of the proper outcome of these appeals. The Court of Appeal
found it ” the most difficult question in this case ” (ibid, 609F), but it can at
least be simply stated, viz. was Camden empowered to acquire, in addition
to the 36 maisonettes, rights over and in respect of other parts of Centre
Point without which the maisonettes could not be used as housing accom-
modation? If that question demands a negative answer, the C.P.O. must be
quashed, for the only power conferred on a local authority by section 92(1)
of the Housing Act 1957 to acquire “houses” is in order to “provide
housing accommodation “.
It is as clear as it can be that for a long time Camden were under the
delusion that the question had to be answered in the affirmative because the
acquisition of such physical parts of Centre Point as were specified in the
C.P.O. would automatically carry with it rights over other parts certainly
no less than those passing under a conveyance voluntarily entered into
between vendor and purchaser. Thus it was that, doubts having arisen during
Mr. Boydell’s inquiry as to what rights Camden were contending for, at
some stage after they had closed their case Camden produced document
C.B.C. 2A, which must be set out in full:
” A. The London Borough of Camden will acquire the following
” rights pursuant to the first rule Wheeldon v. Burrows (1879) 12 Ch.
” D. 31 and section 62(2) of the Law of Property Act 1925.
” (1) A right (in case of emergency only and for no other purpose
” whatsoever) for the Council, their tenants and occupiers of the
” acquired premises to use the staircase below podium level
” at the north end of the demised premises.
” (2) A right in common with the owners and occupiers of the
” remainder of the building to use the goods lift (when operat-
” ing) for the purpose only of removing rubbish from the
” acquired premises and for no other purpose whatsoever.
” (3) A right of support from the building below podium level and
” from the columns supporting the residential block.
” (4) A right of free passage or running of water, soil, electricity,
“gas, and other services through the pipes, wires, and cables
” serving the acquired premises.
” (5) A right of access by means of the outside of the building
” for purposes of window cleaning, maintenance, and repair.
” (6) All other such rights as are within the said rule and section.”
” B. The London Borough of Camden will reserve in the conveyance
” the following rights in favour of the tenants or occupiers of the re-
mainder of the building:
” (1) A right (in case of emergency only and for no other purpose
” whatsoever) for the tenants and occupiers of the remainder of
” the building to use the staircase at the south end of the build-
” ing below podium level.
” (2) A right of shelter from the acquired premises.
” (3) Such other rights as are within the second Rule in
” Wheeldon v. Burrows and are not inconsistent with the pur-
” poses of the acquisition, as may be agreed.”
Although Camden did not suggest that this document had any statutory
effect, there can be no doubt that their case was largely based upon it, and
that it was so treated by the Secretary of State. Furthermore, although this
House was told that at some stage during the Court of Appeal hearing both
10
respondents abandoned reliance upon Wheeldon v. Burrows and section 62
of the Law of Property Act 1925, during the hearing before your Lordships
considerable reliance nevertheless appeared to be still placed upon them.
Nothing could be more impermissible. The line of cases to which Wheeldon
v. Burrows belongs are all illustrations of right resulting from the rule
against derogation from grant, which Younger L.J. once described as “a
” principle which merely embodies in a legal maxim a rule of common
” honesty ” (Harmer v. Jumbil (Nigeria) Tin Areas Ltd. [1921] 1 Ch. 200, at
225). Surprising though it may appear, it seems necessary to stress that
Wheeldon v. Burrows posed the question as to what rights impliedly pass
on a conveyance between vendor and purchaser, and to quote once more the
classic words of Thesiger L.J. (at p. 49):
“… two propositions may be stated as what I may call the general
” rules governing cases of this kind. The first of these rules is that on
” the grant by the owner of a tenement of part of that tenement as it is
” then used and enjoyed, there will pass to the grantee all those con-
” tinuous and apparent easements (by which, of course, I mean quasi
” easements), or, in other words, all those easements which are necessary
” to the reasonable enjoyment of the property granted, and which have
” been and are at the time of the grant used by the owners of the entirety
” for the benefit of the part granted. The second proposition is that,
” if the grantor intends to reserve any right over the tenement granted,
” it is his duty to reserve it expressly in the grant.”
The basis of such propositions is, as Lord Parker of Waddington stressed
in Pwllbach Colliery Co. Ltd. v. Woodman [1915] A.C. 634, at 646, that,
” The law will readily imply the grant or reservation of such easements as
” may be necessary to give effect to the common intention of the parties to
” a grant of real property “. But there is no common intention between an
acquiring authority and the party whose property is compulsorily taken from
him, and the very basis of implied grants of easements is accordingly absent.
Furthermore, the implication, where open to be made, extends only to ” con-
” tinuous and apparent easements… necessary to the reasonable enjoyment
” of the property granted, and which have been and are at the time of the grant
” used by the owners of the entirety …”, whereas few of the rights claimed by
the respondents were ” apparent ” and none of them had ever been ” used “.
I have to say that the inspector was therefore wrong in reporting that,
“… one cannot read a compulsory purchase order as a conveyance; but
” what is beyond doubt is that the ordinary conveyancing rules apply to a
” conveyance subsequent to a compulsory purchase order … so the principle
” behind Wheeldon v. Burrows . . . has full application to the situation “.
The Court of Appeal, recognizing that no question of common intention was
involved, thought it pertinent to consider what was Camden’s intention in
making the C.P.O. (ante, at 6I3G), and concluded that ” Camden must have
” intended to acquire the rights here in question, without which it would be
” impossible for the maisonettes to be used as houses “. But, it being un-
challenged that Camden sought thereby to provide housing accommodation,
it is immaterial to explore what rights they had it in mind (and therefore
” intended “) to acquire when they made the C.P.O.
Then what of section 62 of the Law of Property Act 1925? The section
provides that, unless a contrary intention appears in a conveyance of land,
it will be deemed to include and convey with the land all ” easements, rights
” and advantages whatsover, appertaining to or reputed to appertain to the
” land, or any part thereof, or, at the time of conveyance . . . enjoyed with,
” or reputed or known as part or parcel of or appurtenant to the land or
” any part thereof”. But the section cannot operate unless there has been
some diversity of ownership or occupation of the quasi-dominant and quasi-
servient tenements prior to the conveyance ; Long. v. Gowlett [1923] 2 Ch.
177. It is true that in Broomfield v. Williams [1897] 1 Ch. 602 the contrary
was held in the case of a claim to light, but, as Megarry and Wade point
out (Real Property, 4th Ed.. 838), ” This easement is an exception to many
” rules “. The inspector was thus in error in reporting, in the circumstances
11
of this case, that, ” at the conveyancing stage the normal rules—including
” section 62—apply “.
The respondents having ultimately recognised that they cannot rely upon
either Wheeldon v. Burrows or section 62 for the purpose of acquiring
the C.B.C. 2A rights (regarding which the inspector reported that ” Camden
” would have to acquire them before occupation of the maisonettes could
” be enjoyed “) upon what other basis can they now be claimed? It was
submitted that three different routes were available to the respondents, and,
although at some points they overlap, something must be said about each
of them: —
Route 1. Section 96 of the Housing Act 1957 empowers a local authority
” (a) to acquire any land, including any houses or buildings thereon, as a
” site for the erection of houses ‘”‘, and section 189(1) provides that ” ‘ land ‘
” includes any right over land “. Therefore, submit the respondents, Camden
is empowered to purchase compulsorily not only the corporeal hereditaments
specified in the C.P.O. as modified but also the incorporeal hereditaments
set out in C.B.C. 2A.
In my judgment, this is not so. When the C.P.O. was made in respect
of the maisonettes, there existed no ” rights ” over the rest of Centre Point
and no underlease to Brompton. Although not accepted by the Court of
Appeal (ante. pp. 610H to 611H), it is established that, as Forbes J. said
(ante, at p. 84E),
” In the absence of any peculiar powers, conferred by the special
” Act, the Lands Clauses Consolidation Act 1845 does not empower
” a statutory authority to acquire compulsorily … a mere easement
” over land; the whole land in solido must be acquired …. There
” is nothing in [the section 189(1) definition of ‘land’] which appears
” to me to require a departure from the general rule . . .”.
Nevertheless, the Court of Appeal found ” convincing ” (p. 609H) the reason
advanced to the contrary by the inspector that, by its section 189(1) definition,
” Parliament’s intention was obviously that larger quantities of land beyond
” that necesarily required should not be taken “. The appellants have through-
out stressed that Camden were seeking both to create new rights over the
rest of Centre Point and promptly to acquire them. But the inspector found
that
“… the rights which Camden seeks to acquire are not in reality new
” rights created by the order for the first time. These were all rights
” which in effect existed in a latent form to benefit one part of the
” building vis-a-vis another part. Each of the rights set out in Part A
” of C.B.C. 2A already existed and could have been enjoyed … by
” whomever the maisonettes were occupied “.
If I may be permitted to say so of an inspector whose report is a model of
clarity and care, I find that as startling a proposition as Mr. Boydell said
he found the contrary proposition. At the making of the C.P.O., in truth
there existed stairs which could be climbed, drainage pipes which could
be used, and lifts which could be made operable. But there existed no
easements in favour of the empty maisonettes, and not even quasi easements,
and yet it is said that ” rights over land ” already existed in a latent form
and could therefore be acquired. No authority for the proposition was cited
and I do not think any exists; and the extent to which the law has been
altered for the future in this respect by section 13 of the Local Government
(Miscellaneous Provisions) Act 1976, does not call for present consideration.
In his reply Mr. Browne-Wilkinson referred your Lordships to the decision
in Wong v. Beaumont Property Trust Ltd. [1965] 1 QB 173, but that
case related to an easement of necessity, and learned counsel had been at
pains throughout to base his claim to C.B.C. 2A rights on a wholly different
basis. In my judgment, Route 1 does not avail the respondents.
Route 2. Section 189(1) of the Housing Act 1957 defines “house” as
including “… (6) any part of a building which is occupied or intended
” to be occupied as a separate dwelling “. It would therefore be surprising,
12
submitted Mr. Browne-Wilkinson, if there were not also a power to acquire
compulsorily over the rest of the building rights needed for the part acquired
to be used as a separate dwelling.
Here again one must revert to the fact that no part of the unique struc-
ture which is Centre Point had ever been occupied by the time when the
C.P.O. was made. When a flat in a partly occupied building is acquired,
or if a C.P.O. relates to a block of flats, there is probably no difficulty in
envisaging and ascertaining what rights over other parts are necessary
for the proper enjoyment of the part being acquired. But it is a wholly
different thing to say that where, as here, no rights exist over other parts,
the acquiring authority can, by the one act of including a C.P.O., create
them and ipso facto acquire them. In my judgment the proposition is
unacceptable.
Route 3. Section 189(1) also provides that ” ‘ house’ includes—(a) any
” yard, garden, outhouses and appurtenances belonging there to or usually
” enjoyed therewith “. The respondents submit that ” appurtenances”
covers both corporeal and incorporeal hereditaments; that an easement
can ” belong “, but not a quasi-easement; that the words ” usually enjoyed
therewith ” are designed to cover quasi easements; and that, accordingly,
when the C.P.O. was confirmed Camden became entitled to all those ” ancil-
lary rights ” over the rest of Centre Point itemised in C.B.C.2A.
In my judgment, this submission is wrong in almost every particular.
A right of way appurtenant to Blackacre will undoubtedly pass to the
acquiring authority when a C.P.O. in respect of Blackacre is confirmed.
But even if a quasi easement can be ” appurtenant” (a proposition which
Mr. Goodfellow challenged, and the accuracy of which need not now be
determined), the ” appurtenances ” here claimed, so far from being ” usually
” enjoyed ” had never been enjoyed when the C.P.O. was made. Route 3
accordingly again does not avail the respondents.
For these reasons, I hold that Camden was not empowered to acquire
under Part V of the Housing Act 1957, any of the rights set out in
C.B.C.2A. As they could acquire property solely in order to provide
housing accommodation, and those rights having been found necessary for
the maisonettes to be so used when they became severed in ownership from
the rest of Centre Point, it follows that the C.P.O. was invalid. It should
here be added, though parenthetically, that the inspector nowhere
reported that the C.B.C.2A rights were in themselves sufficient for the statu-
tory purpose. Indeed, it emerged that Camden would need yet further
important rights not covered by the C.P.O., such as a right of access to
the electric meter in the Intake Room and another to the drainage inspection
chamber, both of which are located outside those physical parts of Centre
Point which are comprised in the order.
In strictness, no necessity to deal with the remaining questions arises.
But it may be useful if I nevertheless reveal the conclusion to which I have
come regarding the third question, viz. Assuming that Camden had power to
acquire the rights specified in their C.B.C.2A, must those rights be specified
in the compulsory purchase order? None were specified, and your Lordships
were told by learned counsel for Camden that even C.B.C.2A was not
exhaustive and provided mere ” illustrations ” of the rights which the authority
claimed passed on confirmation. Surely nothing could be more unsatisfactory,
for the ambit of expropriatory orders should not be open to debate, and it
is noteworthy that section 13 of the 1976 Act (earlier referred to) authorises
the compulsory acquisition only of ” such new rights over land as are
” specified in the order “. But the question arising under the present law is
not whether they ought to be specified, but whether they must be. The Court
of Appeal answered the question in the negative, but I have to say respect-
fully that I prefer and adopt the observations of Forbes J. (ante, p. 100B)
that a compulsory purchase order—
“… is a unilateral statement made by the acquiring authority of what
” they desire to take from the landowner, not with his consent but willy
” nilly. As such it should specify precisely what is required beyond
13
” the strictly legal easements (or profits) which are appurtenant to the
” land described; and if it does not do so the acquiring authority will
” be authorised to acquire nothing beyond the land itself and such
” appurtenant rights “.
My Lords, for these reasons I would allow these conjoined appeals and
I concur in the order proposed by the noble and learned Lord on the
Woolsack.
Lord Fraser of Tullybelton
MY LORDS,
I have had the advantage of reading in draft the speech of my noble and
learned friend, Lord Keith of Kinkel, and I agree so completely with his
reasoning and his conclusions, that no useful purpose would be served by
repeating them in different words.
I agree that the appeals should be allowed.
Lord Russell of Killowen
MY LORDS,
The Housing Act enables the Authority to make a compulsory purchase
order in respect of existing buildings for the purpose of providing dwelling
accommodation therein. Insofar as there is attached to the building the
subject of the order any legal easement over other land the order will embrace
without mention any such easement, whether its origin lies in express grant,
or in prescription, or under Wheeldon v. Burrows, or by force of section 62
of the Law of Property Act 1925. But this is not the present question, which
is concerned with a situation where common ownership of the building the
subject of the order and other relevant land or building precludes the exist-
ence of any legal easement in favour of the former over the latter.
The case has been to some extent confused in its course by early reliance,
at least by way of analogy, upon Wheeldon v. Burrows and/or section 62 of
the Law of Property Act, a reliance which was rightly not pursued in the
Court of Appeal nor in your Lordships’ House. In my opinion it was still
confused in this appeal by the contents of document ” C.B.C.2A “, to which
I will return.
The contention for the appellants that the Housing Act did not authorise
the acquisition of a semi-detached house or of a flying freehold (or as here
long leasehold) was abandoned. What is the outcome of that? I take
first the question of a right of support of the maisonette block by the subjacent
building—the legs, podium and subjacent structure. There is no such legal
easement of support that can last longer than Brompton’s sub-lease: and it
is I think convenient for that purpose to ignore that sub-lease. But it is of
course plain that, as with any other flying freehold or long leasehold such
as this, the maisonette block is wholly unfitted for housing purposes without
such right of support. If the true view of the Housing Act is that it author-
ises by necessary implication the acquisition with the land or building to be
acquired rights over other land or buildings of the owner of the former which
rights are essential to the statutory housing purpose of the compulsory
acquisition, then the right of support would be acquired. At one stage in the
argument I received the impression that counsel for the appellants was
inclined so to concede.
But if that be right then, in any case of such a building, there seems no
justification for excluding from the scope of a valid compulsory purchase
order any other such right which is truly essential to its use for the statutory
purpose–a sine qua non. What rights are in the instant case to be regarded
14
as such is not in fact for decision by your Lordships: and it is this respect
that I venture to think that the document ” CB.C.2A ” has led to confusion,
based as it is on matters reasonably convenient for residential use of the
maisonette block—as shown by the form of Brompton’s sub-lease—and not
as a list of matters sine quibus it could not be used for housing. If called
upon to decide what rights in the instant case were thus essential, I would
include use of the north-east staircase below podium level through door X
as an emergency exit from the maisonette block: for I would assume that
relevant fire regulations would forbid use of the maisonette block as housing
accommodation without that: if that assumption is wrong then it is not
essential. I would include the right to use the drainage system. I would
not include a right to use the rubbish disposal system or the goods lift: it is
perfectly feasible to dispose of rubbish from the maisonettes in bags and by
use of the passenger lifts which are themselves being compulsorily acquired.
Whether access to the electricity meter room is essential I am not sure.
On the whole, therefore, with all respect to those who hold a contrary
view and who have expressed it so cogently, I am of opinion that there is in
the Housing Act by necessary implication a power to acquire with the
maisonette block and the passenger lifts and south staircase and entrance
hall such rights over the remaining property of Sovmots as are essential to
the use of the maisonette block for housing purposes—i.e., without which it
cannot be so used. In any given case what are those rights must be defined
by the character of the building and the layout: they are objectively deter-
minable and do not require to be set out in the compulsory purchase order.
In any given case the acquisition of such rights may be relevant to quantum
of compensation.
My voice being a lone one in this matter I may be excused from elabora-
tion. Similarly I may be excused, in considering that these appeals should
be dismissed, from saying more than that I do not accept either of the two
further points urged by the appellant Brompton, that the compulsory pur-
chase order and the confirmation are vitiated by the modifications made,
or by the withdrawal from opposition of the G.L.C., on the assurance by
Camden that Notice to Treat would not be served in respect of the freehold
interest.
I would dismiss these appeals.
Lord Keith of Kinkel
MY LORDS,
These appeals are concerned with the validity of a compulsory purchase
order which on 12th September 1972 was made by the first respondents, the
London Borough of Camden (” Camden “), for housing purposes, in respect
of 36 residential maisonettes on the upper floors of the Earnshaw Wing
section of the Centre Point development in central London. The freeholder
of the development is the Greater London Council. The first appellants,
Sovmots Investments Ltd. (” Sovmots “) are holders of a lease of the site
for 150 years from 29th September 1960. The second appellants, Brompton
Securities Ltd. (” Brompton “) have a lease from Sovmots for the 36 maison-
ettes for a period of 45 years commencing on 29th September 1973.
Following a public local inquiry, at which Sovmots and Brompton appeared
as objectors, the second respondent, the Secretary of State for the Environ-
ment, confirmed the compulsory purchase order on 30th August 1974.
Sovmots and Brompton applied to the High Court to quash the order and
were successful before Forbes J., but on appeal by Camden and the Secretary
of State the Court of Appeal (Megaw, Lawton and Browne LJJ.) restored
the latter’s decision to confirm the order.
Before Forbes J. and in the Court of Appeal both Sovmots and Brompton
took the point that upon a proper construction of the Housing Act 1957 a
15
local authority could not validly be authorised by the Minister to acquire
compulsorily a horizontally divided part of a building, excluding the under-
lying soil upon which the building stands. Both Forbes J. and the Court of
Appeal decided this point against them, and before your Lordships’ House
that decision was acquiesced in. The argument for Sovmots was limited to
two questions, both of which were decided in their favour by Forbes J. but
against them by the Court of Appeal. Brompton supported the argument
for Sovmots upon these two questions, and also argued two further points, to
which I shall refer later.
The two questions argued by Sovmots were :
Whether on a true construction of the Housing Act 1957 a local
authority may be authorised by the Minister not only to acquire
compulsorily a corporeal hereditament, but also to compel the grant for
the benefit of such hereditament of new rights over lands or buildings
not authorised to be acquired? and
If the answer to question (1) be yes, whether a compulsory purchase
order can authorise a local authority to compel the grant of such new
rights, even though there is no description or mention of them in
such order?
These questions arise in the following way. In the course of the public local
inquiry Camden appreciated that its purpose in promoting the compulsory
purchase order for the 36 maisonettes, namely that of providing housing
accommodation, could not be achieved unless it could also acquire certain
new rights over other parts of Centre Point, but they contended that the order
as made would enable them to acquire such rights. They put in a document
C.B.C. 2A setting out certain ancillary rights which they claimed they would,
in the event of the compulsory purchase being completed, acquire under the
first rule in Wheeldon v. Burrows (1879) 12 Ch D 31 and section 62(2)
of the Law or Property Act 1925. These rights were (1) a right for the
tenants of the maisonettes to use a certain staircases at the northern end of
the Earnshaw Wing, below the level of the maisonettes, as a fire escape, (2)
a right to use for the purpose of removing rubbish from the maisonettes a
goods lift below the level of the maisonettes, (3) a right of support for the
maisonettes from the building below them, (4) a right of free passage for
water, soil, electricity, gas and other services through the pipes, lines and
cables serving the maisonettes, and (5) a right of access by means of the
outside of the building for purposes of window cleaning, maintenance and
repairs.
The inspector who conducted the public local inquiry accepted in his report
to the Secretary of State that these rights would automatically be carried to
Camden in the event of the compulsory purchase being completed, and on
that basis recommended that the order be confirmed. In confirming the
order the Secretary of State proceeded on the same basis, and in this House
it was expressly conceded on his behalf that, if he was mistaken in the view
that the rights would automatically be carried to Camden, then his decision
to confirm the order was vitiated by an error in law and that the order ought
to be quashed.
The answer to the first question posed requires consideration of the relevant
provisions of the Housing Act 1957. These are—
Section 92(1):
” A local authority may provide housing accommodation— … (c)
” by acquiring houses . . .”.
Section 96:
” A local authority shall have power under this Part of this Act—
” . . . (b) to acquire houses, or buildings which may be made suitable
” as houses, together with any lands occupied with the houses or buildings,
” or any estate or interest in houses or in buildings which may be made
” suitable as houses . . .”.
16
Section 97(1):
” Land for the purposes of this Part of this Act may be acquired
” by a local authority by agreement, or they may be authorised to pur-
” chase land compulsorily for those purposes by the Minister; and the
” Seventh Schedule to this Act shall apply in relation to a compulsory
” purchase under this section.”
The Seventh Schedule incorporates the Acquisition of Land (Authorisation
Procedure) Act 1946, and paragraph 2 of the First Schedule to that Act
provides:
” The compulsory purchase order shall be in the prescribed form and
shall describe by reference to a map the land to which it applies.”
Under section 8, “‘ land’, in relation to compulsory purchase under any
” enactment, includes anything falling within any definition of the expression
” in that enactment “.
Section 189(1) of the 1957 Act includes the following definitions:
” ‘ house ‘ includes—
” (a) any yard, garden, outhouses and appurtenances belonging
” thereto or usually enjoyed therewith, and
” (b) for the purposes of any provisions of this Act relating to the
” provision of housing accommodation, any part of a building
” which is occupied or intended to be occupied as a separate
” dwelling “.
” ‘ land ‘ includes any right over land.”
The respondents advanced three reasons which, so they contended, led to
the conclusion that on a proper construction of the relevant provisions of the
1957 Act a local authority was empowered, in the event of compulsory pur-
chase for housing purposes of part of a building in single ownership, also
to create and acquire compulsorily ancillary rights over other parts of the
building. In the first place it was said that such a power was conferred by
necessary implication, in respect that without it the purpose of Part V of the
Act, namely the provision of housing accommodation, would be frustrated
in any situation where a local authority required to purchase compulsorily
for that purpose part of a building in single ownership. Without such
ancillary rights the part acquired could not be used at all, or at least could
not be used reasonably conveniently, as housing accommodation. In my
opinion this argument is unsound. The definition of ” house ” in section
189(1) of the Act is a wide one, but it does not expressly cover ancillary
rights such as are here sought to be created and acquired. Where Parliament
intends to confer power to create and acquire compulsorily new easements
over land it says so expressly, as in section 11 of the Water Act 1968 and
section 55(2) of the Post Office Act 1969. Compulsory purchase enactments
are to be strictly construed, and a particular power of compulsory acquisition,
which is not expressly conferred, can be conferred by implication only where
the statutory provisions would otherwise lack sensible content. That is
not the position here. The provisions of sections 96 and 97 of the 1957
Act provide ample scope for a local authority to carry out its function of pro-
viding housing accommodation through the purchase of land and houses with-
out having to resort to the compulsory acquisition of parts of buildings in
single ownership and of ancillary rights over the other parts of such buildings.
It was said that without power to acquire such ancillary rights, a local
authority could never acquire compulsorily, for example, one of a pair of
semi-detached houses in single ownership, because no right of support would
be available from the adjoining house, failing agreement, and that this would
be an unreasonable result. In a simple situation such as that one it is
unlikely that agreement would not be reached, as being for the mutual benefit
of both parties, and the practical consequences would in any event not be
serious. What I regard as more important is the prospect, in a complicated
case such as the present one, of the compulsory acquisition of rights which,
according to the respondents’ argument, need not be specified in the com-
pulsory purchase order. While it might not be too difficult to ascertain what
17
easements of necessity had been created and acquired, there would be great
difficulty as regards rights necessary for the reasonably comfortable enjoyment
of the part of the building acquired. It was contended by the respondents
before Forbes J. and in the Court of Appeal that such rights would be
acquired automatically on completion of the compulsory purchase under the
first rule in Wheeldon v. Burrows (1879) 12 Ch D 31 and section 62(2)
of the Law of Property Act 1925. But that contention was plainly wrong
and has been abandoned. These rules, applicable to voluntary conveyances
of land and to contracts for the sale of land, have no place in compulsory
purchase. They are founded upon the principle that a granter may not
derogate from his grant, for which there is no room where the acquisition
is compulsory. In the absence of these rules such ” quasi-easements ” would
not pass even on the sale of land by agreement, and I can find no grounds
whatever for implying similar rules into the compulsory purchase provisions
of Part V of the 1957 Act.
In my opinion Parliament, when it passed the 1957 Act, did not have in
view the possibility of the acquisition by local authorities for
housing purposes of part of a building in single ownership, and in
particular of a horizontally divided part of such a building. Horizontally
divided ownership of a building was extremely uncommon in England and
Wales in 1957, being practically unknown, so it was said, outside Lincoln’s
Inn. It is a conception which gives rise to a very complicated situation as
regards the mutual rights and obligations of the several owners. It is,
however, a conception familiar to the law of Scotland for centuries, and the
difficulties have there been resolved, in a mass of case law, on the basis
of rights of common property and common interest, rather than by reference
to the law of servitudes. In section 184(1) of the Housing (Scotland) Act
1950, which corresponds to section 189(1) of the 1957 Act, “house” is
defined as including a ” flat ” which in turn is defined as premises ” forming
” part of a building from some other part of which it is divided horizontally “.
The absence from the 1957 Act of any similar reference indicates that Parlia-
ment in enacting it did not have in contemplation the acquisition of such
premises by a local authority for housing purposes, and although the appellants
now accept that ” part of a building ” on a proper construction includes a
flat, I think it is right to infer that Parliament did not intend to deal with the
problems raised by horizontal severance of part of a building in single
ownership.
Then it was contended for the respondents that Camden was empowered
to acquire the rights set out in document C.B.C. 2A as being, in relation to
the 36 maisonettes, ” appurtenances . . . usually enjoyed therewith ” within
the meaning of these words in the definition of ” house ” in section 189(1)
of the 1957 Act. I have no doubt that these words are capable of covering
incorporeal quasi-easements, and they will do so in a situation where the
latter have been de facto enjoyed by the occupier of the quasi-dominant
tenement, during a period when the quasi-servient tenement has been in
separate occupation. Authority for this is to be found in Thomas v. Owen
(1888) 20 Q.B.D. 225 and in Hansford v. Jago [1921] 1 Ch. 322. But that is
not the situation here. The whole of Centre Point was in single ownership
and occupation on the date when the compulsory purchase order was made,
which I consider to be the relevant date for the purpose of ascertaining
the ambit of Camden’s powers of compulsory acquisition. It does not help
the respondents that after that date but before the date of the public local
inquiry Sovmots let the 36 Maisonettes to Brompton, upon terms which in-
cluded the grant of rights similar to those set out in document C.B.C. 2A.
Camden is seeking to acquire the interest of Sovmots in the maisonettes, not
only that of Brompton. What the words “appurtenances usually enjoyed
with ” certainly do not cover, in my view, is incorporeal rights of the nature of
easements in favour of one part of a single tenement over another part, which
have never existed or been enjoyed otherwise than in favour of or by the
owner of the single tenement as such owner. I would regard that proposition
as self-evident, and authority for it is to be found in Bolton v. Bolton (1879)
11 Ch. D. 968 and in Long v. Gowlett [1923] 2 Ch. 177. It was argued for
18
the respondents that ” usually enjoyed” covered facilities for which the
physical means of enjoyment existed before acquisition, even though they
had never actualy been used. The Earnshaw Wing had been designed, so
it was said, in such a way that the occupiers of the maisonettes when there
came to be any, would necesarily make use of the facilities in question.
This argument found favour with the Court of Appeal, but its acceptance,
In my view, involves taking an unavoidable liberty with the language of
the definition. That language is incapable of supporting such a construction,
and the argument must fail.
Finally, it was contended for the respondents that the definition of ” land ”
in section 189(1) of the Act, as including ” any right over land “, was apt to
empower a local authority to create and acquire new rights over land. There
is, however, no authority in favour of that being the proper construction, and
the words in their natural meaning are confined, in my view, to existing rights
over land. I have already remarked that in other instances where Parliament
has intended to give power for the compulsory creation and acquisition
of new rights over land, it has clearly expressed that intention. Indeed,
It has recently by section 13(1) of the Local Government (Miscellaneous
Provisions) Act 1976 expressly conferred upon any local authority, which
may be authorised by a Minister to purchase land compulsorily, power also
to create and acquire compulsorily new rights over land. I am therefore
unable to accept the respondent’s contention. But even if it were right, the
respondents would, in my view, fail by reason that the rights in question
have not been specified in the compulsory purchase order. This is the subject
matter of the second question raised in the argument for the appellants. It was
maintained by them that, if a new right over land is ” land ” within the
meaning of section 189(1) of the 1957 Act, such as a local authority may
be authorised to acquire compulsorily, then it is also ” land ” for the purposes
of the Acquisition of Land (Authorisation Procedure) Act 1946, and as such
must, by virtue of paragraph 2 of the First Schedule to that Act, be described
in the compulsory purchase order. I regard this as clearly correct. A new
right over land is in an entirely different position from an existing easement
enjoyed in connection with land. A new right which the local authority
intended to create and acquire compulsorily could plainly not be acquired
if the intention were not expressed. The final contention for the respondents
must therefore also fail.
Two further questions were, as I have mentioned, argued by Brompton but
not by Sovmots. The first related to the effect of an agreement entered into
between Camden and the Greater London Council, whereby the former
undertook, in the event of the latter not opposing the compulsory purchase
order, to refrain from acquiring the freehold of the maisonettes, it being
contended that the existence of this agreement vitiated the confirmation of
the order by the Secretary of State. The second was concerned with the
effect of a modification of the compulsory purchase order made by the
Secretary of State upon his confirming it, it being maintained that the
modification had brought within the order land which it would not otherwise
have covered, without the consent of interested persons and contrary to
paragraph 5 of the First Schedule to the Acquisition of Land (Authorisation
Procedure) Act 1946.
In view of the conclusion I have reached upon the main question arising
in these appeals, it is unnecessary for me to deal in detail with these two
subsidiary points. It is sufficient for me to say that I have not been satisfied
that Forbes J. and the Court of Appeal went wrong in decising them against
Brompton.
For these reasons I would allow the appeals.
Nickerson v Barraclough & Ors
[1980] EWCA Civ 5
LORD JUSTICE BUCKLEY: I have asked Lord Justice Brightman to deliver the first judgment in this appeal.
LORD JUSTICE BRIGHTMAN: This is an appeal by the first defendant from a decision of the Vice-Chancellor relating to a claim by the plaintiff to a right of way over the defendant’s land. The plaintiff is the owner of a field at New Waltham in Lincolnshire. According to the pleadings the field is at present used by the plaintiff as a paddock. A ditch runs along the east side of the field; the ditch is spanned by a bridge at the north-east corner of the field. The bridge was constructed in or before the year 1908. It was first made of old railway sleepers and was 8 ft. wide. It was replaced by a more substantial structure in the early 1970’s. The bridge gives on to a road known as Scouts Lane, which runs parallel to the ditch and to the side of the field. Scouts Lane belongs to the defendants. The lane goes northwards and joins the public highway, Humberston Avenue, at a distance of about 150 yards from the corner of the field; Humberston Avenue runs east and west. The learned Vice-Chancellor held that there was, appurtenant to the field, a right of way for all purposes over the bridge and along Scouts Lane.
I shall call the field “the pink land”. The defendants do not, so far as this appeal is concerned, seek to challenge the existence of a right of way. They seek to limit it in two respects, by confining the width of any bridge to 8 ft. and by restricting user to a means of access to the pink land “for ordinary agricultural purposes and as a sports ground for the playing of amat
eur sports and games”. The limitation sought to be imposed would, for example, preclude the use of Scouts Lane for the transport of building materials to the pink land or the use of Scouts Lane as an accommodation road to the pink land once it was built on.
None of the conveyancing documents contains any express grant of a right of way over Scouts Lane for the benefit of the pink land. The right of way, whatever may be its extent, must depend upon implication or prescription in some form.
The pink land and Scouts Lane originally formed part of the Carrington Settled Estates. At the beginning of this century an area to the north and south of Humberston Avenue began to be laid out in building plots. We are concerned only with the plots which lie to the south of Humberston Avenue. The western boundary of this part of the area was delineated as a proposed 36 ft. road running north and south, which later became Enfield Avenue. The plots numbered 7 to 28 fronted on Humberston Avenue, extending eastwards from the future Enfield Avenue. Immediately to the south of plots 7 to 28, in line with such plots so that they were back to back, were plots 4-5 to 66. Immediately to the south of plots 4-5 to 66 and forming the southern boundary thereof, there was delineated another 36 ft. road, which I shall call “the proposed East-West road”. Fronting on the southern verge of the proposed E-W road and lying immediately beneath plots 4-5, 4-6 and 4-7, plots 77 and 78 were later laid out. Plot 77, which tapered to the southward, was directly in line with plots 4-5 and 46. Plot 78 was in line with plot 4-7. Between plots 14- and 52 on one side and plots 15 and 53 on the other side, there was delineated a third proposed 36 ft. road, which I shall call “the original proposed N-S road”. This intersected the proposed E-W road. Between plot 78 and the proposed N-S road, in line with plots 4-8, 4-9, 50 and 51» was a field out of which the pink land was ultimately carved. There appears from the plan of the whole of the building estate to have been a total of seven proposed roads intersecting the estate.
I turn now to the conveyancing documents, the first of which was a conveyance of 20th September 1900. The owner of the Carrington Estates sold and conveyed to Mr. George Alward, plots 7 and 8, which lay in the corner between Humberston Avenue and the future Enfield Avenue, plots 45 and 46, which were to the south of, and in line with, plots 7 and 8, and plot 77, on the other side of the proposed E-W road, which was in the corner between that road and the future Enfield Avenue and in line with plots 45 and 46. This conveyance contained a grant of a right of way for all purposes “over and along the proposed streets or roads adjoining the premises thereby conveyed shown on the said plan”. That is taken from an abstract which is marked as having been examined with the original in 1936. “The said plan” appears to have meant the plan to the particulars of sale which covered the whole area, and not the smaller plan which was drawn on the conveyance. In the result I apprehend that Mr. Alward clearly acquired a right of way for all purposes over the future Enfield Avenue and the proposed E-W road, or at any rate the adjoining parts thereof, in connection with his enjoyment of the five plots conveyed to him. I think it is arguable that the right of way extended to the original proposed N-S road, since the expression “all the proposed streets or roads” might be thought to apply to more proposed roads than two, in which case the word “adjoining” would have been used in the broader sense of proximity. I mention this point only to dismiss it, because it need not be pursued. The site of the future Scouts Lane, which is the road we are concerned with, did not at the end of the day coincide with the site of the original proposed N-S road; that is a point which will become clearer a little later.
The next conveyancing document is dated 18th April 1901. By that conveyance Mr. Alward acquired from the Carrington Estates plots 47 and 78, which were alongside plots 46 and 77» which he had previously acquired* This conveyance contained an identical grant of a right of way for all purposes over all the adjoining streets or roads, save that the examined abstract records the addition of the words “when and so soon as the same shall have been made”. On the face of the conveyance that formulation purported to leave Mr. Alward as the owner of plots 4-7 and 78, without any means of access thereto, for an undefined period. Admittedly he could pass on to such plots from plots 46 and 77 respectively, but he could not properly use plots 46 and 47 as a means of access to Humberston Avenue via the easement granted by the 1900 conveyance in the absence of an express or implied grant to that effect, because no conveyance expressly made plots 47 and 78 dominant tenements quoad such easement: see Harris v. Flower, 74 Law Journal (Chancery), 127. Some implication needs to be made in the 1900 conveyance as a matter of business necessity in order to give a sensible meaning to the conveyance. Exactly what that implication should be does not arise for decision in this case. In fact, the grant by the 1901 conveyance of a contingent future easement of way was probably void for perpetuity, but that problem does not have any added significance.
Next comes the most important conveyance, which is dated 8th December 1906. Before I turn to its contents, it will be convenient to refer to the plan attached to it. This indicates the happening of two intermediate events: first, it seems that Mr. Alward had acquired plot No. 9» fronting on to Humberston Avenue; secondly it indicates that the original proposed N-S road had been moved one plot westwards so as to run between plots 13 and 51 on one side and plots 14- and 52 on the other side. The proposed N-S road in its new location came to be known as Scouts Lane, and it will be convenient to refer to it by that name hereafter. Scouts Lane did not become a properly made up road until 1963. In its early days it was a mere track; in the 1930’s it was roughly surfaced with clinker.
By the 1906 conveyance Mr. Alward acquired the land lying between plot 78 to the west and Scouts Lane to the east, known as plot 78A. The proposed E-W road formed the northern boundary of the land and was not included in it. The southern boundary of the land was in line with the southern boundaries of plots 77 and 78. There was also conveyed to Mr. Alward a strip of land 4- ft. wide, going from the south-east corner of plot 78A to the south-west corner of that plot and then along the southern boundaries of plots 77 and 78, until it joined the future Enfield Avenue. The conveyance did not expressly grant any rights of way for the benefit of plot 78A. The narrow strip 4 ft. wide plays no part in this case and can be ignored; it did not form a practical access to plot 78A.
I said that the conveyance did not grant any express rights of way. In fact it did the reverse, because stipulation 7 in the first schedule to the conveyance (according to the oratio obliqua of the examined abstract) said, “The vendor did not undertake to make any of the proposed new roads shown on the said plan, nor did he give any rights of way over the same until the same should, if ever, be made”. “The said plan” here is the plan to the conveyance. That is the stipulation which causes most of the trouble in this case. Obviously the Carrington Estates did not mean to sell and Mr. Alward did not mean to buy, a piece of land with no access to it. The question is: What right of way ought to be implied? Before attempting to answer that question I must complete the conveyancing history.
By a conveyance dated 22nd April 1922, the Carrington Estates conveyed to Mr. Alward the site of the future Enfield Avenue and also the proposed E-W road. It was expressed to be “subject to all rights of way affecting the same, whether public or private and whether expressly granted by the vendor or being rights of way of necessity”; I think nothing is going to turn on that.
The next conveyance is dated 11th February 1935. The executors of Mr. George Alward, who had died in 1933, conveyed to Mr. Philip Alward plot 78A, together with, first, the adjoining length of the proposed E-W road, and secondly a strip of land which I shall call the green land. The green land was expressed in the conveyance to be the site of a proposed 22 ft. road, leading from the west side of plot 78A to the future Enfield Avenue, and running directly to the south of the part of the proposed E-W road which bordered plots 4-5, 4-6 and 4-7.
In the result it seems clear that the position at this time was that the access available to plot 78A, ignoring the 4 foot strip, consisted of, or included, the green strip which was in the same ownership, plus a right of way by implication over the future Enfield Avenue.
By a conveyance dated 20th November 1936, Mr. Philip Alward conveyed plot 78A to Mr. Little, without the green strip or any right of way over the green strip, but including the site of the E-W road to the north of plot 78A which had in effect been thrown into it. The reason for this omission may have been that Mr. Little did not require the green strip or any right of way thereover in order to gain access to plot 78A. It appears from the assent, which is the next document that I shall mention, that Mr. Little was the owner of parts of plots 12 and 50, which gave access to plot 78A.
Mr. Little died in 1944. On 30th April 1946 his executors assented to the vesting of parts of plots 12 and 50 and plot 78A (including the adjoining E-W proposed road) in his widow. On 12th November 1973 she conveyed most of plot 78A – that was to say, the eastern three-quarters – to a Mr. Marvin and he simultaneously conveyed it onwards to Mrs. Nickerson, the plaintiff. The three-quarters of plot 78A thereby conveyed is what I termed earlier the pink land. Such conveyances also granted, so far as the vendors had power to do so, a right of way for all purposes over Scouts Lane.
Most unfortunately, a dispute then arose between the plaintiff and Mr. Barraclough, who was thought to be the owner of Scouts Lane. The plaintiff claimed that she was entitled to a right of way for all purposes over the bridge in the north-east corner of the pink land and so on to Scouts Lane and to Humberston Avenue. Mr. Barraclough asserted that Scouts Lane was vested in the trustees of a settlement made by him, who were subsequently added as defendants. The defendants denied the existence of any right of way over Scouts Lane.
In argument in the court below the plaintiff’s claim to a right of way over Scouts Lane was based on four foundations: Firstly, implied grant of an easement by the 1906 conveyance; secondly, prescription under the Act of 1832; thirdly, lost modern grant; fourthly, section 62 of the Law of Property Act 1925 read with the 1922 conveyance.
I shall deal first with the implied grant under the 1906 conveyance. As I have already said, it could not possibly have been the intention of the Carrington Estates to sell, or of Mr. George Alward to buy, plot 78A without an appropriate means of access thereto. It is absolutely clear from the contents of the conveyance that it was within the contemplation of the parties that Mr. Alward should be at liberty to build on plot 78A if he so wished, subject to certain restrictions with regard to density, building lines and so on. It therefore becomes necessary to decide what right, or rights, of way have to be read into the 1906 conveyance as a matter of necessary implication in order to give effect to the apparent purposes of the conveyance and the contemplated use to which the land might be put. That decision, what implication should be made, has to be taken in the light of the express stipulation, which I repeat because it is of prime importance, that the vendor did not give any rights of way over the proposed new roads shown on the plan to the conveyance “until the same should, if ever, be made”. That stipulation, one would think, was inserted in order to reserve for the Carrington Estates the maximum freedom to move the route of a proposed road to a more convenient location, as had already been done on one occasion in relation to the future Scouts Lane, or to throw the site of a proposed road into the adjacent plots if the road could be dispensed with, as was later done in 1935 in reference to the eastern part of the E-W road, or perhaps to change altogether the layout of unsold lots.
There are five different possible implications which can usefully be considered. A choice needs to be made between them. I shall distinguish them as follows. Implication A, the broadest of all, is a right of way over all the strips designated on the 1906 conveyance plan as proposed new roads. This implication would have given a right of way over the designated routes of the future Enfield Avenue, the E-W road and Scouts Lane, right up to its junction with Humberston Avenue. Implication B: a right of way over the whole of Scouts Lane and over the parts of the proposed E-W road adjacent to plot 78A, so as to give access to the public highway by the shortest and most convenient route. Implication C: a right of way along the designated routes of such of the proposed roads as were then adjacent to plot 78A and the plots previously purchased by Mr. George Alward, so far as necessary to give access from plot 78A to Humberston Avenue; in other words, the owner or occupier of plot 78A could make use of the southern part of Scouts Lane but not the northern part, and could use the route of the proposed E-W road to get into the future Enfield Avenue and thence into Humberston Avenue. Implication D: a right of way at some convenient point across the route of the proposed E-W road, so as to give access from plot 78A to Humberston Avenue by proceeding over Mr. Alward’s other land westwards and northwards; that is to say, from plot 78A to plot 78 and thence to plots 47 and 9 and so into Humberston Avenue, The only right of way needed would be a crossing point over the S-W road. Implication E: plot 78 was to become a dominant tenement for the purpose, of enabling the owner or occupier of plot 78A to make use of the existing right of way which was already appurtenant to plot 77 by virtue of the 1900 conveyance. The owner or occupier of plot 78A could then proceed from that plot over plot 78 and on to plot 77? then making use of the right of way originally appurtenant only to plots 777 4-5 and 77
Before considering these possibilities, I should mention that the plaintiff did not plead that plot 78A was land-locked at the time of the 1906 conveyance, and at the trial her counsel expressly disclaimed any reliance on the doctrine of a way of necessity. What the plaintiff’s counsel did submit – and this was made perfectly clear in the course of the argument below -was that a right of way ought to be implied over the proposed E-W road and Scouts Lane as a matter of necessary implication in order to give effect to the purpose of the 1906 conveyance, namely the development of the plot by building houses thereon. The plaintiff relied, not on a way of necessity in the strict sense, but on the implication of a right of way as a matter of construction.
In the court below the plaintiff was successful in establishing a right to an easement of way for all purposes over the bridge at the north-east corner of the pink land and over Scouts Lane to its junction with Humberston Avenue as appurtenant to the pink land. This was described in the transcript of the second judgment (at page 8, G to H) as “a way implied from the common intention of the parties, based on a necessity apparent from the deeds”. It is the implication lettered B in the different forms of implication which I indicated earlier for consideration.
A problem that has to be surmounted when selecting Scouts Lane as the easement to be implied under the 1906 conveyance is that the conveyance negatives the grant of any right of way over the proposed new roads until they should be made, the obvious intention being, as I have said, to preserve for the Carrington Estates the ability to alter or abandon proposed roads unless their existence had in effect been decided upon because they were made, or because houses had been built which were dependent upon them. The learned Vice-Chancellor felt able to minimise the prohibition imposed by the second part of stipulation 7 by taking into account considerations of public policy.
I must go through certain passages in the judgment; I shall indicate the starting points, but for brevity I shall leave out certain sentences which are not essential for present purposes. On page 15 of the first judgment, at G, the Vice-Chancellor said this:
“In the present case the land conveyed was plainly intended to be used for building purposes, and of course it plainly needed access for building materials and for the occupants of the houses when constructed: yet there was the express negativing of the grant of any way in the second limb of paragraph 7 of the first schedule, despite the need for some grant of a way that appeared from the surrounding circumstances as disclosed by the conveyance itself … I find great difficulty in holding that there has been granted by implication something that the grant expressly negatives … I find it almost impossible to imply a grant in the teeth of the express negation of any grant; and the grant of a way of necessity seems plainly to be one form of implied grant. There is, however, one consideration that is peculiar to ways of necessity that seems to be in point. During argument, I was referred to a sentence in Gale on Easements (14th. Edition 1972), page 177 on the subject of ways of necessity, which runs: ‘The principle appears to be based on the idea that the neglect of agricultural land is contrary to public policy’: and for this two old decisions are cited”.
Then, a little lower down:
“This seems to me to raise a novel point of some difficulty and importance. Put shortly, it is whether on a grant of land in circumstances which otherwise would create a way of necessity or a way implied from the common intention of the parties based on a necessity apparent from the deeds it is open to the parties to negative the creation of such a way by some express term in the conveyance. I cannot think that the point is in any way confined to agricultural land: whatever the actual or prospective use of the land, the question arises whether in the absence of special circumstances public policy will permit the parties to a conveyance to make land inaccessible save by air transport and thus unusable. As applied to the present case, the question would be whether the Court should impose on the second limb of paragraph 7 of the first schedule a qualification which would exclude from its operation any way required for access for building purposes which would otherwise be implied. As the evidence stands, apart from paragraph 7 I would have no hesitation in holding that in the circumstances of the 1906 conveyance there was an implied grant of a way to plot 78a for building purposes; for the contemplated use of the plot was for those purposes, and so the extent of the way is to be measured by those purposes: see Gayford v. Moffatt (1868) 4 Ch. Appeals 133 at 136. As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation. … However, in the absence of full argument on the point I do not think that I ought to decide it”. That is the end of the quotation from the first judgment.
I turn now to the transcript of the second judgment which was given after further argument. It is reported in (1980) Chancery, page 325, but my references will be to the transcript. On page 2, at B, the Vice-Chancellor said:
“. . . if land is conveyed in circumstances which otherwise would create a way of necessity, or a way implied from the common intention of the parties based on a necessity apparent from the deeds, does public policy prevent the creation of such a way from, being negatived by an express term in the grant?”
The Vice-Chancellor then discussed a number of reported cases and an article in the Law Quarterly Review. He continued at page 6, at E, and again I shall not read the entire narrative of the judgment. He said:
“If such a head of public policy exists, as I think it does, the question is what its bounds are. I do not think it can be said that, whatever the circumstances, a way of necessity will always be implied whenever a close of land is made land-locked. One can conceive of circumstances where there may be good reason why the land should be deprived of all access … Accordingly, I would not go beyond saying that there is a rule of public policy that no transaction should, without good reason, be treated as being effectual to deprive any land of a suitable means of access. Alternatively, the point might be put as a matter of construction: any transaction which, without good reason, appears to deprive land of any suitable means of access should, if at all possible, be construed as not producing this result … Now the wording of the clause in question, paragraph 7 of the First Schedule to the 1906 conveyance, as it appears in the examined abstract and with the contractions expanded, runs as follows: ‘The Vendor did not undertake to make any of the proposed new roads shown on the said Plan nor did he give any rights of way over the same until the same should (if ever) be made’ … This clause of the schedule seems primarily concerned to relieve the vendor of any obligation to make any of the proposed new roads, in the sense of constructing roadways over the routes shown on the plan. If one disregards public policy and the doctrine of derogation from grant, I think the natural meaning of the second limb of the clause is that until roadways had been constructed on the routes shown on the plan, the purchaser was to have no right of way over the routes along which those roadways were to be constructed. I think, however, that it is also possible, though less natural, to read the second limb as in effect merely reinforcing the first limb. The first limb simply negatives any undertaking by the vendor to make up the new roads; the second limb goes on to prevent the conveyance giving any rights of way over the new roads which might enable the purchaser to claim that, having been granted a right of way over the new roads, he can, by virtue of that right, require the vendor to construct them. On that footing, the second limb does not negative any way of necessity over the unmade sites of the proposed new roads. All that is negatived is any rights of way over the proposed new roads until they are constructed … Nothing, however, was done to negative any way of necessity … I readily accept that this may be regarded as a somewhat strained interpretation of paragraph 7 of the First Schedule; but I do not think that it is so impossible that I must reject it. If, then, in construing this provision I give proper weight to the doctrine against derogation from grant and the rule of public policy, I think that I can construe paragraph 7 in. this particular way, and that I ought in fact to do so. If I am wrong in this, then I would hold, though with some hesitation, that public policy requires that paragraph 7 should not take effect so as to negative the implied grant of a way of necessity. As I have already held, I think that there has been a tacit allocation by user of a way over what is now Scouts Lane, and that this way is a way for building purposes”. Then the learned Vice-Chancellor explained exactly what he meant by a “way of necessity” in that passage: “a way implied from the common intention of the parties, based on a necessity apparent from the deeds”.
In this court we have heard a great deal of argument about ways of necessity – what is their basis, how they can be acquired and whether they can be lost. With the utmost respect to the learned Vice-Chancellor, I have come to the conclusion that the doctrine of way of necessity is not founded upon public policy at all but upon an implication from the circumstances. I accept that there are reported cases, and textbooks, in which public policy is suggested as a possible foundation of the doctrine, but such a suggestion is not, in my opinion, correct. It is well established that a way of necessity is never found to exist except in association with a grant of land: see Proctor v. Hodson, 10 Exchequer Cases, 824-, where it was held that land acquired by escheat got no way of necessity; and Wilkes v. Greenway, 6 TLR 449, where land acquired by prescription got no way of necessity. If a way of necessity were based upon public policy, I see no reason why land acquired by escheat or by prescription should be excluded. Furthermore, there would seem to be no particular reason to father the doctrine of way of necessity upon public policy when implication is such an obvious and convenient candidate for paternity. There is an Australian case, Forth Sydney Printing Pty Ltd, v. Sabemo Investment Corporation Pty. Ltd, and Others, (1971) 2 New South Wales Law Reports, 150, where that conclusion was reached. Furthermore, I cannot accept that public policy can play any part at all in the construction of an instrument; in construing a document the court is endeavouring to ascertain the expressed intention of the parties. Public policy may require the court to frustrate that intention where the contract is against public policy, but in my view public policy cannot help the court to ascertain what that intention was. So I reach the view that a way of necessity is not founded upon public policy; that considerations of public policy cannot influence the construction of the 1906 conveyance; and that this action is not concerned with a way of necessity strictly so called; nor, I think, did the learned Vice-Chancellor intend to suggest otherwise.
I return to the real problem which, at the end of the day, strikes me as being a relatively short question of construction. On the basis of the terms of the 1906 conveyance and the previous history, and bearing in mind the indisputable fact that some implication has to be made into the conveyance, what implication ought to be made in order to resolve the question of access?
As I have indicated earlier, there are at least five methods of solving the question of access. No one so far has suggested that there are any other than those. The problem is to decide which of the five will best answer the circumstances; what is the court to infer that the parties intended? That question must be answered by examining the conveyance against past history and then deciding which implication will best meet the circumstances of the situation. Some things point to a broad implication in favour of the purchaser of plot 78A. There is the recital in the 1906 conveyance that the Humberston Building Estate had been put up for sale by auction in building plots. There is a reference to the printed Particulars and Conditions of Sale used at the auction. We have a copy of those Particulars and Conditions. They refer to a plan, and we have a copy of that plan. It shows a compact building estate of 66 plots grouped round a mansion house known as Humberston Grange, laid out in four lines consisting of two double lines of back-to-back plots. Between each double line is Humberston Avenue and there is shown a proposed new road along the north side of one of the double lines of plots and along the south side of the other double line, the whole being intersected by proposed roads Binning north and south. Plot 78A, as I have indicated earlier, is outside this compact area, but is in contact with it to the south-west. The plan to the 1906 conveyance amounts to an extension of the auction plan.
It is legitimate to look at the auction plan to construe the 1906 conveyance, because the parties show in the conveyance that they have the auction Particulars and Conditions in mind, and the auction plan is an integral part of the auction Particulars. If a conveyance of a building plot is silent about any easement of
way, it is easy to imply the grant of an easement over all the strips which are shown on the plan as proposed new roads. The obvious inference is that the purchaser of a plot is to have access to the proposed road on to which his house fronts and is to be allowed to proceed along any of the proposed roads until he reaches a highway over which all have a right of way. Except for the stipulation in the 1906 conveyance, I would not have felt any difficulty at all in implying a right of way over Scouts Lane for the benefit of plot 78A to enable access to be had to the public highway. But we are faced with stipulation ?• This states in clear terms that the vendor is not obliged to make -not make up, but make – any of the proposed new roads shown on the plan to the conveyance. Scouts Lane is one of such roads, so the vendor is not obliged to make it a road servicing the estate. Also, the vendor did not give any rights of way, until some indefinite future date, over any of the proposed new roads shown on the plan, of which Scouts Lane is one. So the stipulation is in terms a distinct and direct negation of any right of way over, inter alia, Scouts Lane. There is, on the face of the conveyance, a head-on collision between two opposing conceptions. Some immediate access has to exist; the conveyance says that no immediate easement is to exist over any proposed road, but, if an Immediate access is to exist, there must at some point be an incursion on to a proposed road.
So I ask myself: What is the reconciliation? There are, as it seems to me, only two ways of resolving the impasse. One method is to strike out altogether the second limb of stipulation 7, which would let in implication A, as I called it earlier in my judgment. The other method is to make that implication which involves the least incursion on to any of the proposed new roads.
As regards the first approach, the deletion of the second limb of stipulation 7 would in my judgment do unjustifiable violence to the language of the conveyance. So I feel driven to the other method of reconciliation; that is to say, to consider which of implications B to E involves the least incursion on to any of the proposed new roads. Implication B, giving a right of way over Scouts Lane, is not in my view the answer to the question which I have posed. It would be a major incursion on to a proposed new road. That proposed new road had not been made; we know of no earlier easements which had been granted over it; and there is no evidence that the line of the northern part of the proposed road had become fixed because of building operations. The 1920 auction Particulars merely stated that Scouts Lane and other proposed roadways were subject to rights of way if and when they should ever be made.
In my opinion the least incursion would be made if the implication in the 1906 conveyance were that Mr. Alward should have the right to use his existing easement of way for the purposes of his new purchase; or, to put the matter in more precise legal language, if it were implied that plot 78A was to become an additional dominant tenement in relation to the existing easement of way owned by Mr. Alward as the purchaser of plot 77 under the 1900 conveyance – a solution which would be equally applicable to the needs of plot 78. However, I quite see the merits of implications C and D. It is not strictly necessary for us to decide between C, D and E, since none of them will yield a right of way over Scouts Lane.
I have therefore reached the conclusion that there ought not to be implied into the 1906 conveyance any right of way over Scouts Lane in face of the express terms of stipulation 7•
That is the end of the appeal, except for a short point arising under the respondent’s notice. Before I come to that, I should, for clarity, mention that the Vice-Chance11or also found that the plaintiff was entitled to a right of way over Scouts Lane and the bridge, in order to make use of the pink land for agricultural purposes, and as a sports ground for amateur sports. This finding was based on section 62 of the Law of Property Act and equally, as I understand it, on prescription and on lost modern grant. Nothing turns on it on this appeal, because the existence of that limited right of way is not challenged by the appellant.
The respondent’s notice arises under the 1922 conveyance, read with section 62 of the Law of Property Act 1925- Paragraph 3 of the amended statement of claim pleaded that at the time of the 1922 conveyance there was appertaining to, or reputed to appertain to, or enjoyed with, or reputed to or known as part or parcel of or appurtenant to the pink land, a right of way for all purposes across the bridge and over Scouts Lane to Humberston Avenue, and it was pleaded that by virtue of the 1922 conveyance and section 62, the right to use the way became vested in the plaintiff as if the same had been expressly conveyed. The learned Vice-Chancellor found as a fact that Scouts Lane was used as a means of access to the pink land from at least 1921 and until the interruptions of 1972 or 1973 to which he referred, but that there was no appreciable user except for the purposes of agriculture and amateur sports. He held that the conveyance of the proposed E-W road in 1922 carried with it, by virtue of section 62, a right of access to Scouts Lane, and that as the E-W road was itself used as an access to the pink land, the effect of the 1922 conveyance was to grant to the purchaser of the E-W road a right of way to Scouts Lane, not only for the purposes of the E-W road, but also for the purposes of plot 78A.
At page 9 of the transcript of the second judgment, he said this; again I omit certain passages:
“In my previous judgment I set out the view that I provisionally took, the point not having been argued then. That view was that although the general rule was that the grant of a right of way to reach plot A cannot be used as a means of access to plot B, which lies beyond, this rule would not apply if, at the time of the grant, plot A forms a means of access to plot B . . . Let me take as an example a case where plot A consists of a footpath some three feet wide and a hundred yards long, running from land near a public highway up to plot B. If there is an express grant of a right of way to plot A over land which lies between plot A and the highway, it seems to me that the grant would, subject to any language to the contrary, be construed in the light of the nature and user of plot A at the time of the grant. Since that nature and user is as a footpath which constitutes a means of access to plot B, then I would have thought that the grant would be construed as authorising the dominant owner to use the way as a means of access to plot A for the purposes for which plot A is used, namely, as a means of access to plot B. In the result, the way can be used as a means of access to plot B via plot A, notwithstanding Harris v. Flower. If plot A is not used as an actual means of access to plot B but as between the parties to the transaction it is intended to be used thus, I think that the same rule would apply”.
One must look first at the wording of section 62. Omitting words which are not of immediate significance for present purposes, I can read it as follows:
“(1) A conveyance of land shall … by virtue of this Act operate to convey, with the land, all … advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, … enjoyed with … the land or any part thereof”. Then subsection (6): “This section applies to conveyances made after the thirty-first day of December, eighteen hundred and eighty-one”.
It is common ground that the words in the full text of the subsection, “ways, easements and rights”, have no application here, and that the respondent can only rely on the word “advantages”. I should also add that immediately before the 1922 conveyance Mr. Alward was- not only the owner of plot 78A, but also the tenant of the proposed E-W road, so that such proposed road and Scouts Lane were not at the time in the same occupation.
In effect section 62 states that a conveyance of a piece of land operates to convey with that land all advantages appertaining to, or, at the time of the conveyance, enjoyed with, the land, so as to convert such advantages into legally enforceable rights. If, therefore, the advantage is a roadway or pathway, or access from the land granted by the conveyance over land retained by the grantor and so to a public highway, that roadway or pathway or access gives rise to a legal easement by way of a deemed grant, in relation to which easement the land conveyed is the dominant tenement and the land retained is the servient tenement. What section 62 does not, I think, do is to make a piece of land which is not the subject matter of the grant the dominant tenement in relation to an easement deemed to have been granted by the conveyance. At the same time we do know from the findings of the learned judge that the bridge and Scouts Lane were being used for certain limited purposes of plot 78A, namely, agriculture and amateur sports. So I think the true analysis of the situation is this: (1) The 1922 conveyance was deemed to grant to Mr. Alward, as the purchaser of the site of the proposed E-W road, a right of way over Scouts Lane for the purposes of that site; and (2) After the 1922 conveyance Mr. Alward, as the owner and occupier of plot 78A, continued to have the same right to use Scouts Lane for the purposes of plot 78A as he enjoyed before the 1922 conveyance; but (3) the 1922 conveyance did not have the effect of making land which was not comprised in that conveyance the dominant tenement in respect of a servitude over land retained by the vendor.
Mr. Baker, for the respondent, sought to argue that one of the purposes of the proposed E-W road in and after 1900 had been the servicing of a building estate, and plot 78A was part of that building estate; that there was no evidence that Mr. Alward had abandoned that purpose in relation to plot 78A; that therefore the exploitation of plot 78A as a building site was one of the purposes of the proposed E-W road; and that therefore Scouts Lane, when it became available for the purposes of the proposed E-W road, became available for building on plot 78A as one of such purposes.
In my opinion, section 62 is not concerned with the future purposes of the grantor; it is only concerned with an advantage that can properly be regarded as appertaining, or reputed to appertain, to the land granted or, at the time of the conveyance, enjoyed with it. In 1922 the proposed E-W road had not been laid out as a road to any buildings on plot 78A, nor had it been used for the transport of any building materials to the plot, or as an accommodation road for any houses on the plot, for none had been built. So I do not think the facts will support the respondent’s argument.
Furthermore, I have some difficulty in seeing how land which is not included in the grant can become the dominant tenement in relation to an easement deemed to be created by the grant.
I would therefore allow the appeal, subject to one minor point. The order below declared the existence of a right of way over the bridge, without limitation of width. The notice of appeal seeks to confine the width of any bridge to 8 ft. There is a finding of fact that the bridge consisted originally of sleepers and that it was 8 ft. wide. We have not heard much argument on this point. Unless counsel take the view that this is not a live issue, or that it is a live issue but has not yet been fully argued, I would be disposed to accept that the limitation to 8 ft. sought by the notice of appeal is correct.
I desire to conclude by saying that I have much sympathy for the plaintiff in this action. She clearly bought the land in reliance on a statutory declaration by a previous occupier, which seemed to make it clear that a right of way existed for all purposes along Scouts Lane. But nevertheless, as I have said, I feel constrained to take the view that the appeal should be allowed.
LORD JUSTICE EYELEIGH: Paragraph 7 of the first schedule to the 1906 conveyance makes it clear that there will not be a right to go over all the proposed roads, at least until they are made up and thus finally determined. But the building of houses is contemplated along the E-W road and round the corner on the N-S road. Against the background of the sale of a large number of individual plots, and contemplating therefore a large number of different owners, I think that access in order to build on them would normally be implied. Moreover, it would be access to each plot individually, because not only could one plot be sold to a single purchaser, but where a purchaser himself buys a large number of plots, it would generally be in order to sell the individual plots as and when houses were built, or indeed as vacant building land. The fact that Mr. Alward possessed a right of access to another plot does not in my opinion require a different conclusion in relation to his purchase of plot 78A. He had bought a building plot; he may decide not to build, but that is his choice. His right is to build and to sell individual sites or houses.
In my view it would be quite unreasonable to expect him to build, using plot 77 as access. The work would have to be planned so that a completed house did not obstruct access to another site not yet completed, and he could not sell a site which had to be crossed in order to reach another site unless that other site had already been completed.
I think, therefore, that there is an implied provision for access, but that it is for the grantor to choose the actual route. The Vice-Chancellor said, at page 14: “As for the line of the way, since no express allocation of a line by the grantor appears to have been made, I think the tacit allocation of a way over the future Scouts Road which has emerged from the user that I shall describe in due course would suffice as an allocation”. The user to which he then referred, and as proved in evidence, was user for sporting and agricultural purposes. As there never were building operations, I do not see how any user of the way can be said to indicate a route designated or allocated by the grantor for such operations. The user was for a quite different purpose. Therefore, whilst I agree that paragraph 7 does not deny the purchaser any right of way at all to the plot, Scouts Lane is not shown, in my judgment, to be a right of way granted in pursuance of the conveyance.
As to section 62, Mr. Millett said that he would be prepared to argue that no right of way of any kind was conveyed by virtue of section 62 of the Law of Property Act 1925; but as the Vice-Chancellor had found a way by virtue of prescription he, Mr. Millett, saw no point in arguing that, unless driven to it in support of his further argument.
On behalf of the respondent, it was argued that if a right of way was exercised over Scouts Lane through the strip to 78A, a right of way is deemed to be included in the conveyance and passes under section 62; and it is said, by a step which I find difficult to follow, that as a right of way passes, reference to a right of way must be to a right of way for all purposes. It is that step that I find difficult.
Section 62 is a conveyancing section; it passes only that which actually exists already, be it, for example, a right of easement, or be it an advantage actually enjoyed. In some cases that which is enjoyed is enjoyed by the exercise of the general right of ownership, and may become a particular legal right of some kind in the purchaser. None the less, the section envisages something which exists and is seen to be enjoyed either as a specific right in itself, or as an advantage in fact.
Section 62 says: “A conveyance of land shall be deemed to include” a number of things, all of which are clearly shown to be in actual existence either, as I say, as a right or as a factual advantage. It conveys that which is there to be conveyed, and from this it follows that that which is conveyed can be described, and by section 62 is deemed to be conveyed and consequently described. That means that it is described accurately.
The way proved in this case was for a limited object, sporting and agricultural, and a conveyance intended to include it would so describe it. It could not accurately be described as a right of way for all purposes, for that it never was.
For those reasons, and for those given by my Lord, I would reject the argument that the wider right of way passes by virtue of section 62.
On the question of public policy, I agree with what my Lord has said. I would add, however, that I could see possibly a case where public policy could aid in the construction of an agreement. It would be a rare case, but where the scales are equally balanced between two different meanings, I would think it right to attribute to the intention of the parties that which offends least against public policy.
I agree that this appeal should be allowed, to the extent indicated by my Lord.
LORD JUSTICE BUCKLEY: I entirely agree with the judgment which has been delivered by my Lord, Lord Justice Brightman. In particular, in my judgment the law relating to ways of necessity rests, not upon a basis of public policy but upon the implication to be drawn from the fact that unless some way is implied, a parcel of land will be inaccessible. From that fact the implication arises that the parties must have intended that some way giving access to the land should have been granted.
I agree, also for the reasons given by my Lord, that public policy can play no part in the process of ascertaining the intention of the parties as a matter of construction of a written document, in particular in this case the conveyance of 8th December 1906. Public policy may inhibit the parties from carrying their intention into effect, but I cannot see how public policy can have a bearing upon what their intention was. In my judgment, that must be ascertained in accordance with the ordinary principles of construction, the language used and relevant admissible evidence of surrounding circumstances.
In the present case the pleadings contain no allegation of fact that plot 78A became land-locked on the occasion of the conveyance of 8th December 1906, and in the absence of such an allegation it seems to me impossible to say that a case has been pleaded of circumstances which would give rise to the implication of a way as a way of necessity. Moreover, before the Vice-Chancellor counsel abjured any intention of relying upon a factual situation that plot 78A became physically land-locked as the result of the 1906 conveyance. Accordingly this is not, in my judgment, a case in which the law of ways of necessity is applicable.
It is not in my view a case which depends upon any allocation by the grantor under the conveyance of 1906 of any particular way. In my view it is a case which depends upon the proper interpretation, and the proper implications, to be attached to the conveyance of 8th December 1906.
I agree with the reasons which Lord Justice Brightman has given for reaching the conclusion which he has reached, and I agree with those other reasons, dealing with other aspects of the case, which he has given in the course of his judgment. For these reasons I also would allow this appeal.
(Order; Appeal allowed; declaration in terms of Second Schedule to Notice of Appeal; leave to appeal to House of Lords refused)
P & S Platt Ltd. v Crouch & Anor
[2003] EWCA Civ 1110
Peter Gibson L.J.:
English law has long recognised that a conveyance by a grantor of part of his property carries with it certain rights over the retained land which are not expressly conveyed by the conveyance. Because of the common ownership of the property such rights cannot have been easements prior to the conveyance. Under the rule in Wheeldon v Burrows (1879) 12 Ch D 31 on the conveyance there pass to the grantee as easements all quasi-easements over the land retained which were continuous and apparent, necessary for the reasonable enjoyment of the land conveyed and were at the time of the conveyance used by the grantor for the benefit of the land conveyed. Somewhat similar but more extensive in effect is s. 62 Law of Property Act 1925, replacing s. 6 Conveyancing Act 1881, and designed to make it unnecessary to set out the full effect of every conveyance:
“(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part, thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cisterns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to, the land, houses or other buildings conveyed, or any of them or any part thereof.”
But s. 62(4) provides:
“This section applies only if and as far as a contrary intention is not expressed in the conveyance, and has effect subject to the terms of the conveyance, and to the provisions therein contained.”
This appeal gives rise to the question whether on a transfer by vendors of part of their property, certain quasi-easements over the retained property became legal easements by the operation of s. 62. It is an appeal by the Defendants, Philip Crouch and his wife Gwendoline, from the order made on 25 October 2002 by His Honour Judge Richard Seymour Q.C. sitting as a Judge of the Chancery Division. By his order the Judge granted the Claimant, P & S Platt Ltd., certain declarations which it had sought as to rights which it claimed to have been transferred to it by virtue of s. 62 when the Defendants transferred to the Claimant on 14 September 2001 the Petersfield House Hotel in Horning on the Norfolk Broads. The Judge refused permission to appeal but on application to this court Arden L.J. granted permission on the papers.
Horning stands on the River Bure and one of the principal roads through Horning is Lower Street. The Defendants in 1985 acquired 3 pieces of land in Horning: (1) the hotel and its grounds which lie away from the river and are north east of Lower Street, (2) land which formed part of the hotel grounds and on which they built a house called Robin’s Nest also lying to the north east of Lower Street, and (3) an area of land called Noosa Sound lying to the south west of Lower Street and bordering on the river. Noosa Sound is part of an island in the river. Access to it from Lower Street is by means of a footbridge over a lagoon. On Noosa Sound the Defendants built a bungalow, and on the river side there are moorings for up to 3 boats. Mooring posts are fixed to the land as are mooring signs. On the lagoon side of Noosa Sound there are moorings for 2 boats.
The Defendants’ son, Robin Crouch, assisted them in the running of the hotel and came in effect to manage it. Robin’s Nest was built for him and his family.
As at May 2001 the river moorings were used by the hotel for its guests. The lagoon moorings were subsequently let by the Defendants. There were two signs, erected in about September 2000, along the river bank in Noosa Sound which advertised the hotel. These signs replaced earlier signs which had the same purpose. The amenities of the hotel were there briefly advertised. The signs included the statement:
“Moorings are Strictly for Hotel Customers
(Overnight Moorings are for Restaurant Patrons Only)”
On the footbridge leading to Noosa Sound in about May 2001 was a sign saying:
“WARNING
This is a Private Mooring. For The Exclusive Use Of Hotel Customers. Others Will Be Treated As Trespassers And Offending Boats Will Be TOWED AWAY. By order of the proprietor. (You have been warned)”.
At the Lower Street end of the footbridge leading to Noosa Sound was a sign reading “PRIVATE NO PUBLIC RIGHT OF WAY HOTEL RESIDENTS ONLY”.
Mr. Robin Crouch supervised the river moorings to ensure that they were only used by visitors to the hotel. Between April and September each year the moorings would often be booked by visitors . He estimated that the trade from visitors using the river moorings amounted to approximately 2.87% of the hotel’s annual turnover (net of VAT) of £376,299 in the year prior to the hotel being put up for sale. The lagoon moorings were separately let and not treated as part of the hotel business.
In 2001 the Defendants decided to put the hotel on the market through specialist estate agents, Robert Barry & Co., a director of which, Paul Bartrop, was concerned with the sale. The sales particulars issued in or about April 2001 made clear that the hotel was being sold with all its assets and goodwill. Reference was made to the turnover of £376,299. Offers around £775,000 were invited. The reverse of the front page of the particulars gave the hotel website and details of the trade and the price invited. Under “Other properties” said to be available by separate negotiation were brief details of Robin’s Nest and of the Noosa Sound bungalow, the latter being described as:
“Luxury riverside bungalow: One bedroom with jacuzzi spa bath, kitchen, lounge, veranda, moorings and garden.”
The hotel website referred to “our private riverside moorings”. Under the heading “Fishing and Mooring” appeared the following:
“The riverside moorings at the hotel are a lovely place to spend a lazy afternoon. You can watch the boats go by, feed the ducks, enjoy the wildlife or do a spot of fishing”.
Details of the available fishing were then given.
Peter Platt, a Director of the Claimant, got in touch with Mr. Bartrop on 8 May 2001 and arranged to view the hotel. He did this on 22 May and the next day offered, subject to contract, to purchase the hotel for £675,000 and indicated that he would like options to purchase Robin’s Nest and Noosa Sound.
There then followed negotiations culminating on 31 August 2001 in an agreement (“the Hotel Sale Agreement”) between the Defendants (defined as “the Seller”) of the first part, Mr. Robin Crouch of the second part and the Claimant (defined as “the Buyer”) of the third part. Clause 1 contained various definitions including:
“”the Assets” the Freehold Property the Equipment (and all other assets of whatever nature owned by the Seller and employed in the Business at the Completion Date)
“the Business” the business of an Hotel carried on by or on behalf of the Seller at the Completion Date relating to the Business
“the Completion Date” 14th September 2001
“the Contents” all completed contracts, agreements, orders, engagements and arrangements of the Seller at the Completion Date relating to the Business
….
“the Freehold Property” the property described in the First Schedule including the buildings, fixtures and fittings thereon
….
“the Goodwill” the goodwill of the Business ….
“the Equipment” the furniture equipment chattels and other items owned by the Seller ….
….
“the Purchase Price the sum of £700,000 ….”
The property described in the First Schedule was the hotel “as edged red on the Plan attached for identification purposes”. The plan also showed edged green the property retained by the Defendants, viz. Robin’s Nest and Noosa Sound.
Clause 2 provided:
“Agreement for sale
The Seller shall sell and the Buyer shall purchase the Business as a going concern and the Assets and the Goodwill and the benefit (so far as the Seller can assign the same) of the Contracts at the Purchase Price.”
Clause 9 provided that the Freehold Property was sold subject to a number of specified matters, including in clause 9.4 “all …. quasi-easements”. Thus the draftsman was well aware of the fact that the sale of part only of the Defendants’ property made quasi-easements a matter of relevance. It is plain that the application of s. 62 to the transfer on completion of the Hotel Sale Agreement was agreed not to be excluded or modified save to the extent indicated in the Standard Conditions of Sale (Third Edition) which was incorporated by clause 11. Condition 3.4 provided:
“3.4 Retained Land
3.4.1 The following provisions apply where after the transfer the seller will be retaining land near the property.
3.4.2 The buyer will have no right of light or air over the retained land, but otherwise the seller and the buyer will each have the rights over the land of the other which they would have had if they were two separate buyers to whom the seller had made simultaneous transfers of the property and the retained land.
3.4.3 Either party may require that the transfer contain appropriate express terms.”
By clause 20 the Defendants gave warranties to the Claimant including in para. 20.6 a warranty that the last year’s accounts of the Business gave the Claimant a true and fair view of the financial results of the Business for that period.
Also on 31 August 2001 the Defendants and the Claimant entered into an Option Agreement whereby in consideration of £1 paid by the Claimants to the Defendants, they granted the Claimant an option to buy two parcels of land. One was described as “the land and bungalow abutting the Broads including the moorings and known as “Noosa Sound” as edged red on the Plan attached for identification purposes only”. The plan showed the whole of Noosa Sound. The second parcel was a small area north west of Lower Street forming part of the hotel grounds and which was intended as a car park for the bungalow on Noosa Sound. The purchase price specified for the exercise of the option was £200,000. The period during which the option was exercisable was to expire on 28 February 2002. The solicitors to the Claimant protected its rights under the Option Agreement by registering a land charge.
Completion of the sale of the hotel took place on 14 September 2001. The transfer thereby executed contained no provisions indicative of an intention to exclude or modify the application of s. 62.
The option was not exercised on or before 28 February 2002. Mr. Platt thought that he had until 31 March 2002 to do so, that being the expiry date for the option which was at one time suggested. On 1 March 2002 the Defendants’ solicitors faxed a letter to the Claimant’s solicitors requesting the cancellation of the land charge. Soon after that Mr. Platt contacted Mr. Robin Crouch and tried to persuade him to extend the time for the exercise of the option, but the Defendants refused.
On 3 March 2002 the Defendants instructed a handyman to paint out references to the hotel on the signs at Noosa Sound, to erect “No Mooring” signs and to put a gate on the footbridge leading from Lower Street to Noosa Sound. Mr. Platt on 6 March 2002 objected to what was being done. That day the Claimant’s solicitors wrote to the Defendants’ solicitors claiming that by virtue of the transfer of 14 September 2001 the river moorings and other rights were transferred to the Claimant under s. 62 and the rule in Wheeldon v Burrows. Proceedings for an injunction were threatened.
Proceedings were commenced on 18 April 2002. The Claimant sought an interim injunction, but on 29 April the Defendants offered acceptable undertakings pending the hearing of the action. In the Particulars of Claim the following rights were claimed to have been transferred on the transfer of the hotel to the Claimant:
(i) the right for the hotel’s residents or customers (or prospective residents or customers) to moor boats at the 3 river moorings at Noosa Sound;
(ii) the right to locate and display 3 mooring signs at those moorings;
(iii) the right to locate and display 2 large boards (naming and advertising the hotel) at specific places on Noosa Sound;
(iv) the right for the hotel’s residents and customers to fish at the location of the 3 moorings;
(v) a right of way on foot for the hotel’s residents and customers (or prospective residents and customers) between the river moorings along the pathway to Lower Street; and
(vi) a right to locate and display signs advising the hotel’s customers of the pathway at two places.
The Claimant sought declarations that it had those rights and an injunction restraining the Defendants from interfering with the rights.
The Defendants by their Defence and Counterclaim admitted that the rights claimed were benefits or advantages enjoyed by the hotel when they owned it, but they pleaded that the parties intended that upon the Claimant buying the hotel, it would only be able to use Noosa Sound or to enjoy rights over Noosa Sound if it exercised its option or if the Defendants gave their consent. Reliance was placed on the terms of the correspondence passing between the parties in the course of the negotiations and in particular on a letter dated 9 August 2001 from the Defendants’ solicitors to the Claimant’s solicitors to which I will return shortly. It was denied that the claimed rights appertained or were reputed to appertain to or were enjoyed with or were reputed or known as part or parcel of the hotel. It was also pleaded that the mooring rights, the right to locate and display mooring signs and the claimed right to fish would amount to exclusive possession of the moorings and could not subsist as easements. It was also averred that if the claimed rights did vest in the Claimant, the Defendants would seek rectification of the transfer, the omission to include in the transfer a provision excluding s. 62 being said to be the result of a mutual error. Rectification was the relief sought by the counterclaim.
At the trial the judge heard evidence from a number of witnesses including Mr. Platt and Mr. Robin Crouch. In his judgment the judge noted the acceptance by Mr. Caddick (appearing then for the Defendants, as he does before this court) that the effect of Condition 3.4 was to incorporate s. 62(1) into the Hotel Sale Agreement. The judge dealt with two issues on the application of s. 62: (1) Did the rights claimed deprive the Defendants of the beneficial use of their retained land such that the rights were not capable of being easements? (2) Were the benefits and advantages relating to Noosa Sound of which the hotel had previously availed itself not intended to pass with the transfer of the hotel to the Claimants and thus did not pass?
The judge rejected Mr. Caddick’s submissions on the first issue subject to one point. He found that the interference, caused by the mooring posts and the various signs, with the Defendants’ use of Noosa Sound was minimal and that the mooring rights were not exclusive to the hotel but the moorings could be used by the Defendants as well. But he was not satisfied on the evidence that there was sufficient use by patrons of the hotel of the claimed fishing right for an easement to have been created on the transfer.
The second issue was the substantial issue before the judge. He considered two decisions of this court, Birmingham, Dudley and District Banking Co. v Ross (1888) 38 Ch D 295 (“the Birmingham case”) and Selby District Council v Samuel Smith Old Brewery (Tadcaster) (2000) 80 P. & CR 466 (“the Selby case”), and accepted Mr. Caddick’s submission that in determining whether any, and if so, what rights passed under a transfer by virtue of s. 62, it was necessary to have regard to the intention of the parties on that point. He noted the acceptance by Mr. Caddick that the burden lay on the party asserting that s. 62 did not have effect, and the judge posed the question whether the Defendants had discharged that burden.
The judge then considered the negotiations in some detail. He disbelieved Mr. Robin Crouch on one piece of evidence as to what was said by him to Mr. Platt which only emerged in cross-examination and had not been put to Mr. Platt. The judge described the evidence as fabricated. He found, however, that each of Mr. Platt and Mr. Robin Crouch gave self-serving answers and that he could not rely on the evidence of either of them as to what was in his contemplation during the negotiations. The judge expressed himself as satisfied that neither considered the possibility that the option to purchase Noosa Sound would not be exercised. The judge found that he could only rely on Mr. Bartrop’s contemporaneous notes and on what was said by the parties’ solicitors in correspondence. The judge went through the various documents relied on by the Defendants, but found that they did not establish that the Claimant and the Defendants had a common intention that no rights of mooring on the river moorings or the ancillary rights were to pass on the transfer of the hotel.
The judge then turned to the question of rectification which, he said, had virtually disappeared as an issue by the end of the trial, and in any event he resolved that question against the Defendants by finding that there was no shared intention as contended for by Mr. Caddick. The judge accordingly made the declarations claimed by the Claimant other than the alleged right of fishing, and dismissed the counterclaim. No injunction was granted to the Claimant.
Mr. Caddick on this appeal does not seek to argue for rectification, but he again raises the two points on the applicability of s. 62 which he took before the judge. He says that:
(1) the judge was wrong to find that a right to use the river moorings and the other ancillary rights passed to the Claimant on the transfer of the hotel, because the common intention of the parties, as ascertained from the various documents in evidence, including the correspondence in the course of negotiations, was that no such rights were to pass; and
(2) the judge was wrong to find that the right to use the river moorings was capable of being an easement.
Mr. Warwick, appearing in this court for the Claimant, as he did below, submits that the judge was right for the reasons he gave. He argues that this court should not interfere with the judge’s conclusions.
I will consider Mr. Caddick’s two points in turn.
(1) The Birmingham point
The foundation for Mr. Caddick’s submissions was the decision of this court in the Birmingham case, which, he said, showed that in order to determine what rights passed under s. 62 it was necessary to look at the intention of the parties. He argued that it was permissible for the court to look at what the parties said to each other in the course of negotiations so as to reach a conclusion on that intention at the time of contract and conveyance. If that was wrong, he submitted that the court could and should look at some of the documents such as a business plan produced by the Claimant to obtain funding from its bank, and a valuation produced for the bank, from which to infer such intention.
At the outset of the hearing, this court questioned the appropriateness both of looking at what was said in negotiations prior to the contract, in order to arrive at the common intention at the time of the contract, and of the emphasis laid on what the parties intended in the circumstances of this case where it is not in dispute that s. 62 was not excluded from or modified in any material respect in the contract or transfer but was made applicable to the contract, and the transfer contained no contrary indication. Mr. Caddick himself submitted in his skeleton argument that the cases showed that s. 62 raised a straightforward factual issue whether any particular right claimed was one which appertained to or was reputed to appertain to or was enjoyed with the land in question. That would not appear to depend on intention.
The Birmingham case involved a building scheme. The corporation of Birmingham secured the development of a large area by entering into building agreements with different builders to whom the corporation granted leases on completion of the buildings built by them respectively. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under his lease to the claimants. At the time of the lease there was only a low building on the land the other side of the road, but the land was part of the area the subject of the building scheme. Another builder, the defendant Ross, subsequently commenced erecting a building 80 feet high on the other side of the road to the claimants’ buildings. The claimants sought an injunction to restrain interference with their right to light. Kekewich J. dismissed the action and this court dismissed the appeal.
Cotton L.J. referred to the predecessor of s. 62 (although not mentioned in the argument before him) but said (38 Ch. D. at p. 307) that the light claimed could not be said to be a light, within the meaning of the section, enjoyed with the house. He said that when the lease was granted it was obvious to both parties that this was a large tract of land bought by the corporation for effecting an improvement and to be built on. He said that the light then enjoyed could not be considered as enjoyed within the meaning of the section because the circumstances known to both parties showed that there could be no expectation of the continuance of that light. A light enjoyed by a person under the statute must be “that which he has enjoyed under circumstances which would lead to an expectation that the enjoyment of that light would be continued, and that it would not be simply precarious” (pp. 307, 8). Cotton L.J. referred to the implied obligation of a grantor not to interfere with his grant and said (at pp. 308, 9):
“But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results; I quite agree that we ought not to have regard to any agreement during the negotiations entered into between the Plaintiffs and the corporation; except in this way; if we find that any particular space in fact was left open at the time when the lease was granted, and that that open space was contracted to be left open during the negotiation which took place, and is not referred to in the lease, we must have regard to the fact of that open space being left, and we must have regard to the fact that by agreement between the parties the lessor had bound himself not to build upon that space; and also we must, in my opinion, in determining what obligation results from the position in which the parties have put themselves, have regard to all the other facts which existed at the time when the conveyance was made, or when the lease was granted, and which were known to both parties.”
On the facts Cotton L.J. found that Daniell knew of the building scheme and so he found no interference with the claimants’ rights.
Lindley L.J. considered the state of things at the time the lease was granted and said (at p. 311):
“I think [counsel for the claimants] was quite right in saying that we are not to go into the preliminary negotiations which resulted in the final lease. They might be important, and perhaps would be necessarily important, if we were considering whether the lease should be rectified or not, but for the purpose of construing the lease all such considerations as those ought to be disregarded. But the state of the property is all important; and what was being done with it is all important.”
He referred to the building scheme and concluded that the easement of light impliedly granted by the lease was of such amount as would come over the corporation’s land to Daniell’s house after the corporation had built what it liked on the other side of the street.
Bowen L.J. referred (at p. 315) to Daniell’s knowledge that houses were to be built on the other side of the street and that once they were built above the level of the house in existence there must be some interference with his lights and that there was no stipulation as to the height of the house to be built there, the only protection to his light being the width of the road.
The good sense of the decision in the Birmingham case is manifest. However, it has frequently been considered in subsequent cases, no doubt because it is not entirely obvious from the three separate judgments what is to be derived from this court’s decision.
One view of the Birmingham case which has been applied in subsequent cases and approved by text book authorities was expressed by Jenkins L.J. in Wright v Macadam [1949] 2 KB 744 at pp. 751-2. He was there considering exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of s. 62. One exception was if the right was not capable of existing as an easement. He continued (at p. 751):
“A further exception has been recognized in cases in which there could in the circumstances of the case have been no expectation that the enjoyment of the right could be other than temporary.”
He then referred to the Birmingham case. Jenkins L.J. summarised the facts of that case. His summary included (at p. 751):
“Somebody took a lease of one of the houses at a time when an adjoining plot only had built upon it old buildings of less height than those contemplated by the scheme; but it was well known to everybody that the intention was, and the building scheme demanded, that this plot should be built upon to a greater height.”
He quoted the remarks of Cotton L.J. at p. 307 to which I have adverted in para. 32 above, and said (at p. 752):
“The learned Lord Justice, I think, meant no more than this, that it was knowledge common to both parties that the existing low building was going to be replaced by a higher one and, that being so, the fortuitous access of extra light to the lessee’s building while the scheme was being carried to completion could not be regarded as an enjoyment of light which would pass to the lessee a right to have it continued in the same degree.”
Jenkins L.J.’s proposition extracted from the Birmingham case was applied by this court in Hair v Gillman [2000] 3 EGLR 76 G. In Megarry & Wade: The Law of Real Property 6th ed (2001) para. 18-115 under the heading “Contrary Intention” it is stated:
“Section 62 applies “only if and as far as a contrary intention is not expressed in the conveyance” …. But the section is also subject to any contrary intention which may be implied from circumstances existing at the time of the grant. If, for example, the plot sold and the plot retained are both subject to a building scheme, the purchaser of a house standing on the plot sold will not be able to prevent the plot retained from being built upon so as to diminish his light; for the light was enjoyed “under such circumstances as to show that there could be no expectation of its continuance.””
The authority given for the last sentence is the Birmingham case at p. 307 per Cotton L.J. A similar comment based on the Birmingham case is made in Emmet on Title para. 17.076.
In the Selby case the defendant brewery had purchased a car park site from the claimant council, the brewery owning almost all the surrounding property. At the same time the brewery granted the council a conditional option to repurchase the car park site. On the exercise of the option a contract incorporating a condition in the same terms as condition 3.4, which I have set out in para 13 above, was to apply. The question was whether the rights thereby reserved to the brewery over the car park site were, as the council contended, established easements at the date of the grant of the option or, as the brewery argued, all quasi-easements enjoyed by the land it retained over the car park site at the date of the exercise of the option. This court had regard to the circumstances existing at the time of the bargain to infer the common intention that the parties were to be restored to their previous positions, and accordingly held that the rights reserved were only the established easements at the date of the grant.
What were the material circumstances at the time of the grant in the present case? The judge was persuaded by Mr. Caddick that the entire negotiations leading to the sale of the hotel provided relevant material for deciding whether s. 62 operated to convey the mooring and ancillary rights. In the Birmingham case, as can be seen from the quotations in paras. 32 and 33 above, evidence of negotiations was regarded as irrelevant, save perhaps evidence of agreements concluded in the negotiations, although such evidence would be important for rectification. The rule, most clearly enunciated in Prenn v Simmonds [1971] 1 WLR 1381, that for the purpose of construing a contract the law excludes from the admissible factual background the previous negotiations of the parties is explained by Lord Hoffmann in ICS Ltd. v West Bromwich Building Society [1998] 1 WLR 896 at p. 913 as being due to “reasons of practical policy”. What is said in the course of negotiations provides too uncertain a guide as to what is the position between contracting parties when later they commit themselves finally by their contract. Although Mr. Caddick took us carefully through the pre-contract documentation, I was not persuaded that anything other than the particulars of sale and replies to pre-contract enquiries was relevant, describing as they do what was being sold. Documents such as the valuation obtained for the bank which was to lend to the Claimant or the Business Plan supplied by the Claimant to its financiers were brought into being for the particular purposes of the Claimant prior to contract and do not necessarily reflect the circumstances known to the parties at the time of contract. Much of the correspondence relied on was equivocal, giving rise to arguable points, all of which the judge carefully considered and on all of which the judge reached conclusions adverse to the Defendants.
The judge paid particular attention to the letter dated 9 August 2001 from the Defendants’ then solicitors to the Claimant’s solicitors in view of the weight placed on it by Mr. Caddick. The letter enclosed 3 agreements, and commented on the third agreement in this way:
“Option Agreement on “Noosa Sound” which is to run from 28th February 2002 (six months assuming completion on 1st September 2001). After the Hotel sale and during the Option Period the current arrangement for Hotel guests to occasionally pass over “Noosa Sound” will discontinue, although our Clients may give consent from time to time strictly at their absolute discretion. Both “Noosa Sound” and the moorings are let at present but full vacant possession will be available on completion, unless your Clients wish to make their own arrangements with those concerned.”
If this fell to be construed as evidencing an agreement or understanding between the parties that the mooring and ancillary “rights” were to come to an end on the hotel sale and so to be excluded from the operation of s. 62 even though the contract and transfer were silent as to such exclusion, then I can see an argument that this would be a relevant circumstance known to the parties and giving rise to an expectation that the rights would not be easements granted on the transfer, albeit that the more obvious remedy would be rectification. But there are at least two insuperable difficulties facing Mr. Caddick. The first is that there is no evidence of any such agreement or understanding. As it is, it is merely a statement on behalf of the Defendants not reflected in the contract or transfer with which it is inconsistent by reason of the admitted applicability of s. 62. The second is that again the language is imprecise, giving rise to questions of construction, as the judge pointed out in deciding those questions adversely to the Defendants.
To my mind the evidence is clear that the rights in question did appertain to and were reputed to appertain to and were enjoyed with the hotel, being part of the hotel business and advertised as such and enjoyed by the hotel guests. The rights were continuous and apparent, and so it matters not that prior to the sale of the hotel there was no prior diversity of occupation of the dominant and servient tenancies. Accordingly, I reach the conclusion that s. 62 operated to convert the rights into full easements, subject to Mr. Caddick’s second point, to which I now turn.
(2) Rights capable of being easements
It is not in dispute that a right will only pass under s. 62 if it is a right capable of existing as an easement (Megarry & Wade op. cit. para. 18-113). It is also common ground that the rights claimed by the Claimant are in principle capable of being easements.
However, Mr. Caddick relies on the line of authorities which say that if the right claimed would effectively deprive the servient owner of any reasonable user of the area of land over which it is exercisable, that right is not capable of being an easement (see Copeland v Greenhalf [1952] Ch. 488 at p. 498 per Upjohn J., London & Blenheim Ltd. v Ladbroke Retail Parks Ltd. 1992 1 WLR 1278 at p. 1288C per His Honour Judge Paul Baker Q.C. sitting as a High Court judge and Batchelor v Marlow (2001) 82 P & CR 36).
Essentially this is a question of fact and degree on which this court will only interfere with the assessment of the trial judge if persuaded that the judge made some significant error or was otherwise plainly wrong. His view was that there was only minimal interference through the rights with the use of the servient tenement.
Mr. Caddick submits that the judge erred in applying the law. Mr. Caddick relied on two matters. First, he says that the judge wrongly ignored the nature of Noosa Sound as being a luxury holiday home on the Broads, for which privacy and an uninterrupted riverfront are crucial, whereas the right to moor along the whole riverfront and to pass over Noosa Sound would seriously impair the Defendants’ ability to use their land. I accept that the easements do detract from the Defendants’ enjoyment of their land, but I am wholly unable to accept that this effectively deprives them of any reasonable user of Noosa Sound. True it is that in the summer months there will be boats moored at times along the frontage to the river but the boats could be the Defendants’ own boats and for a substantial part of the year there will be no boats moored. Nor can I accept that the occasional passage of hotel guests to and from their boats from and to the hotel will amount to sufficiently substantial an interference with the reasonable user of the Defendants’ home and grounds at Noosa Sound. Second, Mr. Caddick submits that the judge wrongly ignored the valuation evidence that the rights claimed would reduce the value of Noosa Sound from £300,000 to £150,000. He relies on the remarks of Tuckey L.J. in Batchelor at p. 462 for the proposition that the monetary effect of the rights may be relevant. I can see that in some cases the reduction in the monetary value of the servient land may evidence the fact that in Tuckey L.J.’s words the ownership of the servient land is “illusory”; but the fact that Noosa Sound subject to the rights still has a value of £150,000 hardly suggests an illusory ownership.
I conclude that the judge was entitled to reach the conclusion that the rights claimed were capable of being easements, despite their adverse effect on the servient tenement.
For these reasons, I would dismiss this appeal.
I add a postscript on one point mentioned by the judge to which strong objection is taken by the Defendants. The judge in para. 23 commented that the Defendants had a home in Australia and that Mr. Robin Crouch has moved there too. The judge there speculated that the stance of the Defendants in the litigation was “not a genuine desire to retain Noosa Sound and the rather small bungalow, but a wish to exploit what seems to have been seen as an opportunity to extract an increased price for Noosa Sound.” Mr. Caddick submits that such speculation was wholly unfair, the point never having been put to the Defendants or argued at trial, and is not based on evidence. On the contrary the Defendants had served notice to quit on the tenant of Noosa Sound on the basis that the Defendants intend to live there as their principal or only home. Further, Mr. Robin Crouch had visited his parents in Australia whilst he was recuperating from a serious operation. In the circumstances I think it unfortunate and regrettable that the judge saw fit to make that unnecessary and incorrect comment. But it does not affect the outcome of the case.
Dyson L.J.
I agree. I also agree with the judgment of Lord Justice Longmore, which I have had the benefit of reading in draft.
Lord Justice Longmore:
I entirely agree with the judgment of Peter Gibson LJ and only wish to add something of my own on the question whether it is right for us to have regard to the negotiations which led up to the contract made on 31st August 2001.
It was settled by Prenn v Simmonds [1971] 1WLR 1381 that it is impermissible to construe a written contract by reference to previous negotiations between the parties. As Lord Wilberforce said in his speech (p. 1384G) the reason for not admitting evidence of negotiations is not a technical one or even one of convenience. “It is simply that such evidence is unhelpful”. That is largely because any assumption, explicit or implicit, in any offer or counter-offer by a party, is not necessarily acceptable (let alone agreed) by the other party.
There has to be an exception to this principle in cases where there is a claim for rectification of a written agreement. The party asserting rectification has to show a prior common intention continuing up to the date of the written agreement. It is almost inevitable that, in relation to such a plea, evidence of negotiations will be admissible in order that the court can reach a correct conclusion on the question whether such prior common intention is established.
In the present case Mr and Mrs Crouch did counterclaim for rectification and the judge, rightly, referred to the negotiations and came to his conclusion upon them. That conclusion was that there was no common intention, shared by Mr Platt on the one hand and Mr and Mrs Crouch on the other, that the rights of riverside mooring should be excluded from the agreement for the sale of Petersfield House Hotel.
There is no appeal from the decision of the judge to dismiss the counterclaim for rectification. The agreement for the sale of the hotel and the subsequent transfer, therefore, fall to be construed without reference to the antecedent negotiations of the parties.
That does not mean that no antecedent documentation can be referred to. But, as Lord Wilberforce said at 1385H, the evidence has to be restricted to evidence of the factual background known to the parties at or before the date of the contract, including evidence of “genesis” and objectively the “aim” of the transaction. The concept of evidence of “the genesis and aim of the transaction” comes ultimately from Sir James Stephen’s Digest of the Law of Evidence and Wigmore on Evidence via the judgment of Cardozo J in Utica City National Bank v Green (1918) 118 NE 607.
The only document relevantly evidencing the genesis and aim of the contract for the sale of the hotel is the “Particulars of Sale”. Those particulars said nothing about the riverside moorings as such but did make it clear that the hotel was being offered as a going concern making good profits on a specified turnover. In not untypical estate agents’ language the particulars also said:-
“The attraction of the Broads for leisure activities is hard to understate; it is a Mecca for activities such as boating, walking, fishing and for those interested in nature and it is this that provide the main driving force for the business.”
The natural implication from this is that those visiting the hotel by boat have been and will be able to moor their boats in the vicinity of the Hotel. In this I only reiterate the conclusion of the judge in paragraph 43 of his judgment where he said that the assets of the business, on any objective consideration, included advertising signs on Noosa Sound and the availability of moorings for use by patrons of the hotel.
I am, therefore, satisfied that the rights claimed by the claimants were “continuous” and “apparent” rights which passed under the conveyance to them pursuant to section 62 of the Law of Property Act 1925, see Megarry & Wade, Law of Real Property, 6th edition (2000), para. 18-114. I am further satisfied that the case does not fall within the exception (recognised by Jenkins LJ in Wright v Macadam [1949] 2 KB 744, 751) of cases in which there can have been no expectation that the enjoyment of the right could be other than temporary. The paradigm example of such an exception is the right to light where it is known and contemplated by the parties to an agreement for a sale or lease of land that there is to be a building scheme under which the land is to be developed, see Birmingham, Dudley and District Banking Company v Ross (1889) 38 Ch.D. 295. What was there said to be knowledge common to both parties was derived from what Cardozo J would have called the “aim and genesis of the transaction” and was thus, rightly, in evidence. There was no evidence of any such “common knowledge” in the present case.
Kent & Anor v Kavanagh & Anor
[2006] EWCA Civ 162
Lord Justice Chadwick :
This is an appeal from an order made on 14 March 2005 by His Honour Judge Wakefield, sitting in the Central London County Court, in proceedings brought by John Martin Kent and his wife, Philippa Kent, against their neighbours Matthew Kavanagh and his wife, Marianne Morgan Kavanagh.
Mr and Mrs Kent are the owners and occupiers of a dwelling house known as No 56 Dovercourt Road, London SE22. Mr and Mrs Kavanagh are the owners and occupiers of the house next door, No 58 Dovercourt Road. The dispute relates to a path which runs between the two properties, giving access from Dovercourt Road to their back gardens. It is now common ground that the boundary between the two properties is along the mid-line of the path. Put shortly, the issue for decision in this Court is whether (as the judge held) Mr and Mrs Kent are entitled to a right of way over that half of the path not within their ownership. That issue raises questions of some general importance in relation to the rights inter se of owners of neighbouring properties, formerly let under building leases pursuant to a scheme of development, where the freehold interests have been acquired on enfranchisement pursuant to the Leasehold Reform Act 1967.
At the time of the enfranchisement of the two properties in 1976, the Dulwich College Estate of which they formed part was subject to a management scheme which had been approved by the High Court pursuant to section 19 of the 1967 Act – see In re Dulwich College Estate’s Application (1974) 231 EG 845. But it has not been suggested – and I have not been able to identify – any provision in that scheme which is of relevance to the present dispute. The issue falls to be decided without recourse to the management scheme
The underlying facts
At the beginning of the last century the Governors of Alleyn’s College of God’s Gift (commonly known as Dulwich College) entered into a building agreement with, and subsequently granted 99 year building leases to, HJ and AH Williams (“Messrs Williams”) for the development of that part of the Dulwich Manor Estate which lies between Woodwarde Road (to the south) and Townley Road (to the north). The building agreement – as recorded in minutes of the Executive and Finance Committee dated 11 April 1907 – was for the erection of semi detached houses over a period of six years in accordance with plans to be submitted to and approved by the Governors.
The spine of the development was a new road. The even numbered plots lay to the west of the road; the odd numbered plots to the east. The road – to which (as reported to the Governors on 26 November 1908) Messrs Williams had given the name Dovercourt Road – was laid out in the form of a dog-leg; so that it ran north from its junction with Woodwarde Road for part of its length before turning to the northwest to join Townley Road. The building plots to the west of the road (other than that which became No 56 Dovercourt Road) were rectangular; having a frontage to the road of approximately 20 feet and a depth of approximately 150 feet.
The plot which became No 56 fronts onto Dovercourt Road at the point at which the road turns to the northwest. The long sides of the plots which lie to the south of No 56 (Nos 58 to 64) run from west to east: the long sides of the plots which lie to the north of No 56 run from southwest to north east. The effect is that the plot which became No 56 is wedge shaped. The point of the wedge is at its western end. From that point the long sides of the wedge run east and north-east to Dovercourt Road. The shape of that plot had the effect that, when built in or about 1910, the dwelling house at No 56 (which is aligned with the houses to the north) was set some way back from the common boundary between that plot and plot No 58.
As I have said, the building agreement provided for the erection of semi-detached houses. Effect was given to that intention by the erection of two pairs of semi-detached houses on the plots to the south of No 56 (plots 58 to 64). There was a passageway between No 60 and No 62, which gave access to the back garden of each. But the requirement was relaxed when plans for other houses were submitted to the Governors for approval in January 1908. The Surveyor reported to the Executive & Finance Committee on 9 January 1908 that: “these houses are not strictly semi-detached, that is to say they are all connected on the upper floor, but on that only. . . . In external appearance they appear to be semi-detached, and there is a clear way through from the front to the back gardens on the ground level.” That revised proposal was approved by the Governors on 23 January 1908. Effect was given to the revised proposal when the houses to the north of No 56 were erected. They appear, on the Land Registry map dated 4 March 1910, as a terrace; but that, of course, is not inconsistent with there being “a clear way through from the front to the back gardens on the ground level” and the map gives some indication that there was a passage between each pair of houses.
The importance which the Surveyor attached to access to a rear or side entrance was emphasised in a report which he made to the Governors a year later, on 28 January 1909, in connection with Messrs Williams’ request for approval of plans for two houses on the opposite side of Dovercourt Road (Nos 57 and 59). He advised that: “I think it very important that, even in small houses such as these, the main entrance to the street should not be used by tradesmen, street hawkers, etc; for the entrance of stores and fuel, or for carrying out dust, refuse, etc. As the front doors of each pair of houses are adjacent, the use of one of them for carrying in and out coal or dust might be distinctly objectionable to the occupant of the neighbouring house”.
No 56 is the southern house in the row (or terrace) which fronts Dovercourt Road to the north of the point at which that road has turned to the northwest. Its pair is No 54. As I have said, the effect is that the plot on which No 56 has been erected is wedge-shaped. And it is clear from the 1910 Land Registry map that access from Dovercourt Road to the garden at the back of No 56 could readily be obtained over that part of the plot which lay between the dwelling house and the common boundary with No 58. Nevertheless, it is equally clear from that map that there was, at the date of that map, a defined passage between No 58 and No 56, equivalent to that between No 60 and No 62. The passage between No 56 and No 58 ran from east to west, along the flank wall of No 58. It was bounded to the north by a physical feature shown on the map; which, from other evidence, can be identified as a wooden fence. The features which I have described are evident, also, on the 1919 revision of the Ordinance Survey Map.
Access to the back garden of No 56 Dovercourt Road changed in or about 1930. The dwelling house on No 56 was extended to the south by the construction of a garage. Approval to the erection of the garage was obtained from the Governors on 13 March 1930. The Surveyor reported to the Executive and Finance Committee on that day that: “The alterations consist of removing a small single story annex containing the scullery and w.c., and building a new wall which will form part of the boundary between this house and No 58 . . . The boundary fence belongs to No 56.” The report to the Committee was accompanied by (or, at least, prepared with the assistance of) plans which show the position clearly. The southern wall of the new garage was parallel to and about three feet from the northern flank wall of the dwelling house on No 58. A wooden fence extended the line of the garage wall eastward towards Dovercourt Road and westward towards the bottom of the back garden. The judge thought it likely that the fence had been there before the garage was constructed. He was right to take that view: the fence is in the position of the physical feature shown on the 1910 map to which I have already referred. But it is now common ground that the Surveyor was wrong to report that the new wall (and the fence) formed the boundary between No 56 and No 58. It is now common ground that the boundary lay along the mid-line of the pathway between the garage wall of No 56 (and the fence) and the northern flank wall of the dwelling house on No 58.
The position changed again in 1988. The garage of No 56 was then converted into an office and living space. The effect was that it then became impossible to gain access from Dovercourt Road to the back garden of No 56 without using the pathway. Access from the pathway to the garden was through a gate in the fence immediately to the west of the former garage. The judge found as a fact that the gate had been there when No 56 changed hands in August 1976. He went on to say (at paragraph 63 of his judgment) that he thought that “the gate did exist well before 1976” and that “it seems likely that the gate into the rear of number 56 was installed by some arrangement with the lessees after 1930”. Again, it seems to me that the judge was right to take the view that the gate was installed soon after the erection of the garage in 1930. Although it would have been possible to gain access to the back garden of No 56 through the garage, that would not have been convenient (given the purpose for which the garage had been erected and the use to which it may be assumed to have been put). The pathway was there to be used; and the probability must be that the gate was installed so that use could be made of it.
No 56 Dovercourt Road was held under a building lease granted by the Governors to Messrs Williams on 17 December 1909. In the Surveyor’s report to the Committee on 13 March 1930, there is reference to the applicant (Mr Tait) being “then in treaty for the purchase of the headlease of this property”. That suggests that there may have been an underlease granted by Messrs Williams in or about 1909 to the original occupier of No 56; but no record of that has survived. In 1976, the then headlessee, Douglas Victor Clasper, took advantage of the rights to enfranchise conferred by the Leasehold Reform Act 1967. On 14 May 1976 the Governors transferred the freehold of No 56 to Mr Clasper. He sold on, in August 1976, to David Keith Oriel and his wife, Joan Julie Oriel. The first evidence of use of the pathway to gain access to the back garden of No 56 was that of their daughter, Susan Oriel. Her evidence was that there was always a gate from the rear of No 56 to the pathway from the time when she and her parents first lived in the house (August 1976) and that the pathway was used regularly and without permission. The judge accepted that evidence. He found Ms Oriel an independent and convincing witness.
The steps by which Mr and Mrs Kent derive title from Mr Clasper may be summarised as follows: (i) a transfer dated 13 August 1976 from Mr Clasper to Mr and Mrs Oriel; (ii) a transfer dated 16 February 1984 from Mr and Mrs Oriel to Helena Mary Blake (then, before her marriage, Helena Mary Foley); (iii) a transfer dated 23 October 1986 from Dr Blake to Peter Crome; (iv) a transfer dated 26 July 1994 from Professor Crome to Penny Fishlock; and (v) a transfer dated 22 January 2001 from Mrs Fishlock to Mr and Mrs Kent. The judge accepted the evidence of Dr Blake and of Professor Crome that the path had been used (without permission of the owners from time to time of No 58) to gain access to the back garden of No 56 during their ownership. He accepted, also, the evidence of use by Mrs Fishlock and her husband and by Mr and Mrs Kent; and he rejected evidence to the contrary given by witnesses called on behalf of Mr and Mrs Kavanagh. At paragraph 45 of his judgment the judge said this:
“On the evidence I find that the gate leading into number 56 was in position before August 1976 and that the gate and path were used as described by Ms Oriel and the Claimants’ other witnesses thereafter”.
No 58 Dovercourt Road was held under a building lease granted by the Governors to Messrs Williams on 12 November 1909 and an underlease granted by Messrs Williams to the first occupier (John Ward Daw) on 24 February 1910. The headlease has not survived; but the date (12 November 1909) appears from the acknowledgement, in the underlease, of the underlessee’s right to production. The freehold of No 58 was transferred by the Governors on enfranchisement to the then underlessees, Ernest Dennis Reddin and his wife, Rose Emily Reddin, on 11 October 1976. Mr and Mrs Kavanagh derive title from Mr and Mrs Reddin. They acquired No 58 by a transfer dated 30 June 1995 from Edith Hargreaves, as executor of Graeme Harry Edwards. Mr Edwards had himself purchased from Mr and Mrs Reddin in 1985. The judge heard evidence from Mrs Caffrey, the daughter of Mr and Mrs Reddin, and from Mrs Hargreaves; but, as I have said, he did not accept that evidence where it was in conflict with the evidence given by the witnesses called on behalf of Mr and Mrs Kent. There is no appeal from the finding of fact made by the judge as to the continuous and apparent use of the path, from August 1976, to gain access to the back garden of No 56.
Nevertheless, the judge was not satisfied that the user had been as of right throughout the whole period from August 1976 until the commencement of these proceedings in February 2003. He made an important finding of fact as to a conversation between Mrs Kavanagh and Mrs Fishlock in July and August 1995. At paragraphs 47 and 48 of his judgment the judge set out Mrs Kavanagh’s account of that conversation:
“We moved into No 58 on the day of completion, namely 30th June 1995. The first or second week-end after we moved in we met our neighbours at number 56, Mr and Mrs Fishlock, over the boundary hedge at the front of our properties. Mrs Fishlock said, ‘Is it all right if we continue to use the passageway, we were worried that you were going to move your gate forward’. She was referring to the wooden gate across the width of the passageway [giving access to the back garden of No 58] which can be opened from the passageway by punching in a security code. If we had moved it forward towards the road their gate in the boundary fence [giving access to the back garden of No 56] would have opened into our back garden. I remember being taken aback by her question as I simply did not know what she was talking about. Because of this I believe it is more likely than not that this conversation with Mrs Fishlock was the first time I became aware that there was a gate allowing the owners of number 56 access to the passageway. We said we had no plans to move the security gate forward and did not mind them using the passageway.
A few weeks later though, having thought it over, I told Mrs Fishlock that I was unhappy with unrestricted use of the passageway principally for reasons of security.
Mrs Fishlock understood all my concerns and promised she would ask me whenever she wanted to use the passageway. She asked whether the window cleaner could use the passageway when he came to clean the rear windows [of] the properties and also whether the gardener she employed at the time could use it, both of which I agreed to, but on every other occasion she came to knock at our front door whenever she or anyone else wanted to use the passageway. Mrs Fishlock once had a delivery to her back garden and on another occasion asked for permission for painters to use the passageway in order to have access to the rear of the house, but in general needed to use the passageway on very few occasions.”
Mrs Fishlock denied that she had promised to ask permission whenever she wanted to use the pathway. But the judge accepted the substance of Mrs Kavanagh’s evidence. He said this (at paragraph 60 of his judgment):
“On the balance of probabilities, I accept the evidence of Mrs Kavanagh that the alleged conversation in 1995 took place, or conversations substantially to that effect. I do not accept that on every occasion when the path was used by Mrs Fishlock or her visitors permission was asked. To that extent, there was an element of exaggeration in Mrs Kavanagh’s evidence, but on the central point as to whether the conversation took place in 1995 I find in favour of the Defendants. ”
These proceedings
As I have said, Mr and Mrs Kent purchased No 56 in January 2001. These proceedings were commenced on 18 February 2003 by the issue of a claim form in the Lambeth County Court. Mr and Mrs Kent sought a declaration that the true position of the boundary between No 56 and No 58 Dovercourt Road lay along the mid-line of the pathway. By amendment to the particulars of claim made on 30 May 2003, they sought, in addition, a declaration that they, as owners of No 56, were entitled to a right of way on foot over that part of the pathway within the title of No 58. By their defence and counterclaim, served on 8 May 2003 and amended on 8 July 2003, Mr and Mrs Kavanagh asserted that the whole width of the pathway was included in their title (or, in the alternative, that whatever title the owners of No 56 might have had to part of the pathway had been extinguished by adverse possession), a declaration to that effect and rectification of the claimants’ title at HM Land Registry so as to exclude any part of the pathway. They denied that the claimants had any right to use the pathway; and sought an injunction restraining trespass.
The judge recorded, at paragraph 19 of his judgment, that it was conceded by counsel on behalf of the defendants, in the course of his closing submissions, that the boundary between the two properties – as defined by the headleases granted by the Governors, the underlease (or underleases) granted by Messrs Williams and the transfers on enfranchisement in 1976 – did lie along the mid-line of the pathway. The judge accepted that concession, which (as he said) accorded with the view he had formed. Nevertheless, it will be necessary (later in this judgment) to explain why counsel was right to make the concession that he did. But the concession was made subject to the contention that the claimants’ paper title had been extinguished by adverse possession. At paragraph 25 of his judgment the judge rejected that contention. He gave effect to the concession and to his conclusion by the declaration in paragraph 1 of his order: the boundary between the two properties lies along the mid-line of the pathway. There is no challenge to that declaration.
The claim to a right of way “on foot for themselves and their licensees at all times and for all purposes connected with the use of No 56 as a dwellinghouse to pass and repass over that part of the pathway not within the freehold title of No 56 (subject to a like right in favour of the owners of No 58 over that part of the pathway within the freehold title of No 56)” was advanced on the various grounds set out in paragraph 11B of the amended particulars of claim. Those are: “(i) By implication in and from the lease of December 1909 and/or the conveyance of 14th May 1976 by reason of the common law doctrine of non-derogation from grant and/or the rule in Wheeldon v Burrows; (ii) By implication in and from the lease of December 1909 and/or in the conveyance of 14th May 1976 by reason of section 62 of the Law of Property Act 1925; (iii) By prescription and/or the doctrine of lost modern grant by reason of 20 years uninterrupted user as of right by the Claimants and their predecessors in title, from 1976 onwards; (iv) By necessity.” In that context “the lease of December 1909″ is a reference to the building lease granted by the Governors to Messrs Williams on 17 December 1909.
The judge rejected prescription as a basis for the right of way claimed. He was bound to do so in the light of his finding that, in 1995 Mrs Fishlock had asked permission to use the pathway. User as of right by one freehold owner against another – which is essential to the acquisition of a prescriptive right – could not have commenced before the properties were enfranchised 1976. Until enfranchisement the freeholds were in common ownership. The judge said this, at paragraph 61 of his judgment:
” . . . the prescription claim fails. Perhaps, in 1995, Mrs Fishlock was not entirely confident that there was a right of way. There was no formal documentary proof that there was a right. Perhaps, as an act of good neighbourliness, and realising that the use of the way might cause some inconvenience to the Kavanaghs, she asked permission. Whatever the reason, it would have conveyed to the mind of Mr and Mrs Kavanagh that the path was being used by the Fishlocks as a matter of permission and not as a matter of right.”
The judge’s conclusion that the effect of the conversations in July and August 1995 “rendered precarious what had been the previous 19 years user as of right” is challenged by the respondents.
The judge rejected, also, the claim that a right of way over the pathway was conferred by the general words to be implied into the transfer of 14 May 1976 by the general words of section 62 of the Law of Property Act 1925. Section 62 is in these terms, so far as material:
“(1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey with the land all . . . ways, . . . liberties, privileges, easements rights and advantages whatsoever, appertaining or reputed to appertain to the land, . . . , or, at the time of the conveyance, demised, occupied or enjoyed with or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
(2) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this Act operate to convey, with the land, houses or other buildings, all . . . ways, passages . . . liberties, privileges, easements, rights and advantages whatsoever, appertaining or reputed to appertain to the lands, houses or other buildings conveyed, or any of them, or any part thereof, or, at the time of the conveyance, demised occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land, houses, other buildings conveyed, or any of them, or any part thereof.”
The judge held that the general words could not assist the claimants because there was no evidence that the pathway was in use as access to the back garden of No 56 at the time of the transfer. He said this, at paragraph 63 of his judgment:
“I consider that the gate did exist well before 1976. After 1930 access through the house or garage of number 56 into the back garden would have been inconvenient, at any rate if materials or large objects had to be taken through. It seems likely that the gate into the rear of number 56 was installed by some arrangement with the lessees of number 58 after 1930. The arrangement, whatever it was, has been lost. Whilst I can assume that the gate was there well before 1976, I cannot assume that the path was being actually enjoyed as a way at the date of the transfer of 14th May 1976. Although I have rejected the evidence of Mrs Caffrey, the evidence of user from Ms Oriel goes back only to August 1976. It is not open to me to presume that the path was being actually enjoyed or reputed to be enjoyed in May 1976, when the Oriels were not living at number 56.”
The judge’s conclusion that the general words in section 62 of the 1925 Act do not assist the claimants is challenged by respondents’ notice. It is said that, even if the judge was right to hold that he could make no assumption as to use of the pathway before August 1976, section 62(2) of the Act has the effect that a right of way over that half of the pathway not within the ownership of No 56 would have been conveyed as a way, passage, privilege or right either appertaining or reputed to appertain to No 56 or as appurtenant to No 56.
The judge did not address, in terms, the claim based on necessity. We were told that that claim was not pursued before him at the trial. The decision not to pursue a claim based on necessity was, if I may say so, plainly correct. At paragraph 13 of his judgment the judge expressed himself as “confident” that “the lessee of number 56 could, at least until 1930, have gained access from his front garden to his rear garden without going through the house or going onto the pathway at the side of number 58”. From 1930 until 1988 access to the back garden could be obtained through the garage. There was no necessity for a right of way over the pathway in 1976.
But, having rejected the claims based on prescription and on the general words implied by section 62 of the 1925 Act, the judge upheld the claim on the basis of non-derogation from grant or the rule in Wheeldon v Burrows (1879) 12 Ch D 31. His reasoning is set out at paragraphs 64 to 68 of his judgment:
“64. That leaves implied grant. It appears to me that the principle of Wheeldon v Burrows (1879) 12 Ch D 31 applies. There was, in May 1976, a gate leading into the rear of number 56 and the pathway was obviously a means of access to and from that gate. Moreover, after the garage was built by Mr Tait [in 1930] it was necessary for the reasonable enjoyment of number 56 to have a right of way on foot over the path to get to the small garden at the rear and also to carry out any necessary maintenance to the rear of the house.
65. It is no answer to say that access could be gained through the house or the garage. There are many examples in the decided cases where a right of way has been implied in such a case on these facts – see Goldberg v Edwards [1950] Ch 247, Brown v Alabaster (1888) 37 Ch D 490, Nicholls v Nicholls (1889) 81 LT 811, Donnelly v Adams [1905] 1 Irish Reports 154.
66. During his closing submissions I put this point to [counsel for the defendants]. He cited the existence of the underlease of number 56 and submitted that where the vendor of the quasi dominant land and quasi servient land is not in possession of the quasi servient land but has let it out to a third party, the principle of Wheeldon v Burrows has no application. Clearly the implied right of way, if it arises, cannot bind the lessee, or under-lessee, of the quasi servient land, but why should it not bind the vendor and his successors in title when the lease of the quasi-servient land falls in? When the lease merges on a sale of the servient land the purchaser will then be bound, as was the vendor himself.
67. The point arose for consideration in Cable v Bryant [1908] 1 Ch 259, a case of a right to ventilation enjoyed by land let to a tenant. It was argued that there could be no implied easement over adjoining property of a lessor where the adjoining property was already let out. It would be an easement in reversion. Neville J avoided a decision on the point by resort to the doctrine of non-derogation from grant, which prevented the lessor and his successors from interfering with the lessee’s use of the dominant land after the lease of the servient land had fallen in.
68. In my judgment there is no legal impediment to the principle of Wheeldon v Burrows applying to this case. The facts clearly bring the principle into play and create an easement of way over the path within the title of number 58 for the benefit of number 56. It may be the case that the right could not have been exercised against Mr and Mrs Reddin, who were the lessees of number 58. That would have depended upon what arrangement existed between the lessees of both properties concerning the gate, but the Governors, as freeholders of number 58, were bound by the implied grant. The Reddins, as successors in title to the freehold, were also bound, as were their successors in title. The merger of the lease of number 58, at any rate after the Reddins had sold number 58, removed any legal obstacle to the exercise of the right of way. In my judgment the right of way existed as a legal easement even before the Reddins’ lease was extinguished. The freehold of number 58 was a legal estate notwithstanding the existence of a lease – see the Law of Property Act 1925, s.1(1)(a). An easement granted out of that estate would therefore exist as a legal easement notwithstanding the existence of a prior leasehold interest – see s.1(2)(a). If I am wrong in holding that it was a legal easement, then it would have existed in any event as an equitable easement.”
The first of the two propositions which, together, have become known as “the rule in Wheeldon v Burrows” was stated by Lord Justice Thesiger, in that case, in these terms (12 Ch D 31, 49):
” . . . on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”
There is an obvious tension – which the judge did not find it necessary to confront or resolve – between the finding at paragraph 63 of the judgment (in the context of the claim based on section 62 of the 1925 Act) that it could not be assumed “that the path was being actually enjoyed as a way at the date of the transfer of 14th May 1976” and the findings at paragraph 64 (in the context of the claim based on the rule in Wheeldon v Burrows) that “the pathway was obviously a means of access to and from [the] gate” and that “after the garage was built by Mr Tait it was necessary for the reasonable enjoyment of number 56 to have a right of way on foot over the path to get to the small garden at the rear and also to carry out any necessary maintenance to the rear of the house”. It is difficult to see why, if access over the pathway was necessary for the reasonable enjoyment of No 56 – and was not impeded – it was not reasonable to assume that that “obvious means of access” was not being used. Alternatively, if it were not possible to assume that the pathway was actually being used in May 1976, it is difficult to see how the requirement (if the principle in Wheeldon v Burrows is to apply) that the quasi-easement is “at the time of the grant used by the owners of the entirety for the benefit of the part granted” could be satisfied.
This appeal
The judge refused permission to appeal. The appeal is brought with permission granted by this Court (Lord Justice Jonathan Parker) on 24 June 2005. The grounds of appeal are, first, that the rule in Wheeldon v Burrows can have no application at all on a conveyance made on enfranchisement under the Leasehold Reform Act 1967. Second, that the rule can have no application on a conveyance by a landlord of the freehold to his tenant so as to convert into an easement a right enjoyed by the tenant over the land of another tenant of the same landlord in circumstances where (i) there is no evidence that the landlord has consented to the exercise of that right or (ii) where it has not been shown that the right was being exercised at the time when the relevant conveyance was made. And, as I have said, the respondents seek to uphold the judge’s conclusion not only on the ground which he adopted but also on the other grounds set out in their respondents’ notice.
The Leasehold Reform Act 1967
Before addressing those grounds it is convenient to set out the relevant provisions of the Leasehold Reform Act 1967, as they were in 1976. The right to enfranchise is conferred by section 1 of the Act on a tenant holding under a long tenancy at a low rent. The right is exercisable by the tenant giving written notice (“a tenant’s notice”) to the landlord of his desire to have the freehold. Section 8 imposes the obligations which flow from such a notice. So far as material the section is in these terms:
“(1) Where a tenant of a house has under this Part of this Act a right to acquire the freehold, and give to the landlord written notice of his desire to have the freehold, then except as provided by this Part of this Act the landlord shall be bound to make to the tenant, and the tenant to accept, (at the price and on the conditions so provided) a grant of the house and premises for an estate in fee simple absolute, subject to the tenancy and to tenant’s incumbrances, but otherwise free of incumbrances.
(2) For the purposes of this Part of this Act “incumbrances” includes rent-charges and, subject to subsection (3) below, personal liabilities attaching in respect of the ownership of land or an interest in land though not charged on that land or interest, and “tenant’s incumbrances” includes any interest directly or indirectly derived out of the tenancy, and any incumbrance also on any interest reversionary on the tenancy).
(3) . . .”
Section 9 of the 1967 Act provides for the determination of the price payable by the tenant to the landlord. Section 10 is concerned with the content and effect of the conveyance to be executed on enfranchisement. Subsections (1) and (2) are in these terms (so far as material):
“(1) Except for the purpose of preserving or recognising any existing interest of the landlord in tenant’s incumbrances or any existing right or interest of any other person, a conveyance executed to give effect to section 8 above shall not be framed so as to exclude or restrict the general words implied in conveyances under section 62 of the Law of Property Act 1925, . . .
(2) As regards rights of any of the following descriptions, that is to say, –
(a) rights of support for any building or part of a building;
(b) rights to the access of light and air to any building or part of a building;
(c) rights to the passage of water or of gas or other piped fuel, or to the drainage or disposal of water, sewage, smoke or fumes , or to the use or maintenance of pipes or other installations for such passage, drainage or disposal;
(d) rights to the use or maintenance of cables or other installations for the supply of electricity; for the telephone or for the receipt directly or by landline of visual or other wireless transmissions
a conveyance executed to give effect to section 8 above shall by virtue of this subsection (but without prejudice to any larger operation it may have apart from this subsection) have effect –
(i) to grant with the house and premises all such easements and rights over other property, so far as the landlord is capable of granting them, as are necessary to secure to the tenant as nearly as may be the same rights as at the relevant time were available to him under or by virtue of the tenancy or any agreement collateral thereto, or under or by virtue of any grant, reservation or agreement made on the severance of the house and premises or any part thereof from other property then comprised in the same tenancy; and
(ii) to make the house and premises subject to all such easements and rights for the benefit of other property as are capable of existing in law and are necessary to secure to the person interested in the other property as nearly as may be the same rights as at the relevant time were available against the tenant under or by virtue of the tenancy or any other agreement collateral thereto, or under or by virtue of any grant, reservation or agreement made as is mentioned in paragraph (i) above.”
The “relevant time” in that context is the time when the tenant gives notice of his desire to have the freehold – section 37(1) of the Act.
Section 10(2) of the 1967 Act does not extend to rights of way. The Act makes provision for rights of way to be the subject of express grant or reservation in the conveyance. Section 10(3) of the Act is in these terms:
“(3) As regards rights of way, a conveyance executed to give effect to section 8 above shall include-
(a) such provisions (if any) as the tenant may require for the purpose of securing to him rights of way over property not conveyed, so far as the landlord is capable of granting them, being rights of way which are necessary for the reasonable enjoyment of the house and premises as they have been enjoyed during the tenancy and in accordance with its provisions; and
(b) such provisions (if any) as the landlord may require for the purpose of making the property conveyed subject to rights of way necessary for the reasonable enjoyment of other property, being property in which at the relevant time the landlord has an interest, or to rights of way granted or agreed to be granted before the relevant time by the landlord or by the person then entitled to the reversion on the tenancy.”
Section 10(4) contains similar provisions in relation to restrictive covenants.
The provisions in section 10 of the 1967 Act may be seen as those which the legislature thought necessary to give effect to the underlying obligations imposed by section 8(1). The statutory scheme includes the following features:
(1) The conveyance executed to give effect to the tenant’s right to enfranchise will operate to convey with the freehold the rights and easements which are within the general words of section 62(1) or (2) of the Law of Property Act 1925 – save as excepted by section 10(1) of the 1967 Act.
(2) The conveyance will have effect, without express words, (i) to grant with the freehold (in so far as lies within the power of the landlord) rights of support, etc. (within section 10(2) of the 1967 Act) which would not otherwise be conveyed by the general words in section 62 of the 1925 Act and (ii) to reserve out of the freehold rights of support, etc. (within section 10(2)) as (in the case of the grant) are necessary to secure to the tenant as nearly as may be the same rights as were available to him under the tenancy and (in the case of the reservation) as are necessary to secure for the benefit of other property as nearly as may be the same rights as were available against the tenant by virtue of the tenancy.
(3) Section 10(2) has no application to rights of way.
(4) The parties are entitled to require there to be included in the conveyance an express grant or reservation (as the case may be) of rights of way necessary for the reasonable enjoyment of the house and premises conveyed and of other (retained) property in which the landlord has an interest.
The Leasehold Reform (Enfranchisement and Extension) Regulations 1967
Sections 10(3) and 10(4) of the 1967 Act must be read with section 22(2) and the regulations were made under that section by the Leasehold Reform (Enfranchisement and Extension) Regulations 1967 (SI 1879/1967). Section 22(2) is in these terms, so far as material:
“Where a tenant having a right under this part of this Act to acquire the freehold . . . gives the landlord notice of his desire to have it, then except as otherwise provided by this Act, the procedure for giving effect to the notice, and the rights and obligations of all parties in relation to the investigation of title and other matters arising in giving effect to the notice, shall be such as maybe prescribed by regulations . . . and subject to or in the absence of provision made in such regulations as regards any matter shall be as nearly as may be the same as in the case of a contract of sale . . . freely negotiated between the parties”
Regulation 2 of the Regulations provides that:
“In any transactions undertaken to give effect to a tenant’s notice of his desire to have a freehold the landlord and the tenant shall, unless they otherwise agree, be bound by the conditions laid down in Part I of the Schedule to these Regulations as if the conditions formed part of a contract between them.”
Condition 5 in Part I of the schedule to the 1967 Regulations makes provision for the parties to require the inclusion in the conveyance of rights of way (in accordance with section 10(3) of the Act) or restrictive covenants (in accordance with section 10(4)). The condition is in these terms:
“(1) When or at any time after giving his notice in reply to the tenant’s notice [of his desire to have the freehold] the landlord may by notice in writing given to the tenant require him within 4 weeks to state what rights of way and provisions concerning restrictive covenants he requires to be included in the conveyance in accordance with section 10 of the Act.
(2) At any time when under condition 3 the tenant would be entitled to require the landlord to deduce his title he may by notice in writing given to the landlord require him within 4 weeks to state what rights of way over the property and provisions concerning restrictive covenants he requires to be included in the conveyance in accordance with the provisions of the Act.
(3) A notice under this condition shall contain a statement as to the rights of way and provisions concerning restrictive covenants required by the person giving the notice to be included in the conveyance.
(4) If the tenant does not comply with a notice given under this condition within the time specified or, where no such notice has been given, does not communicate to the landlord a statement of the rights and provisions he requires to be included in the conveyance when or before serving a notice on the landlord under condition 3, the tenant shall be deemed to require no rights of way or provisions concerning restrictive covenants to be included in the conveyance.
(5) If the landlord does not comply with a notice given under this condition within the time specified or, where no such notice has been given, does not communicate to the tenant a statement of the rights and provisions he requires to be included in the conveyance at or before the time fixed for compliance with a notice served on him under condition 3, the landlord shall be deemed to require no rights of way or provisions concerning restrictive covenants to be included in the conveyance.”
Condition 5 in the schedule to the 1967 Regulations is intended (at the least) to provide a convenient procedure for ensuring that the conveyance on enfranchisement does include the rights which each party is entitled, under section 10(3) of the Act, to require to be included in that conveyance. But I am not persuaded that the condition has any wider effect. In particular, although failure to comply with the procedure for which condition 5 provides will normally lead to the result that the conveyance does not include the rights which a party would have been entitled to require to be included – with the result that the party will not, thereafter, be able to rely on the express terms of the conveyance as the source of rights which he may wish to enforce – there is no reason to think that the legislature intended that the party would not be able to rely on the general words which the conveyance is deemed to include pursuant to section 62 of the 1925 Act.
Does the rule in Wheeldon v Burrows have any application to a conveyance on enfranchisement?
As I have said, the first ground of appeal is that the principle which has become known as “the rule in Wheeldon v Burrows” can have no application to a conveyance executed to give effect to the obligation imposed by section 8(1) of the 1967 Act. It is said, correctly, that the principle is based on the proposition that a man does not intend to derogate from his grant. As Lord Wilberforce observed in the consolidated appeals in Sovmots Investments Limited v Secretary of State for the Environment and others, and Brompton Securities Limited v Secretary of State for the Environment and others [1979] AC 144, 168H:
“He cannot grant or agree to grant land and at the same time deny to his grantee what is at the time of the grant obviously necessary for its reasonable enjoyment.”
Put shortly, it is said that an intention not to derogate from grant cannot be imputed to a landlord whose obligation to convey the freehold is founded on an agreement which was imposed upon him by statute. There is no basis upon which to impute to an involuntary transferor an intention to grant any larger or further rights than those the statute expressly requires.
At first sight the submission finds support in the speeches of four of the members of the House of Lords in the Sovmots appeals. Lord Wilberforce rejected the submission that the rule in Wheeldon v Burrows could apply in a case where the conveyance was made pursuant to a compulsory purchase order (ibid, 168H-169A):
“To apply this to a case where a public authority is taking from an owner his land without his will is to stand the rule on its head: it means substituting for the intention of a reasonable voluntary grantor the unilateral, opposed, intention of the acquirer.”
Lord Edmund-Davies took the same view. After setting out the familiar passage in the judgment of Lord Justice Thesiger in Wheeldon v Burrows (1879) 12 Ch D 31, 49, he said this ([1979] AC 144, 175E-F):
“The basis of such propositions is, as Lord Parker of Waddington stressed in Pwllbach Colliery Co Ltd v Woodman [1915] A.C. 624, 646, that “The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property…” But there is no common intention between an acquiring authority and the party whose property is compulsorily taken from him, and the very basis of implied grants of easements is accordingly absent.”
Lord Keith of Kinkel (with whose speech Lord Fraser of Tullybelton agreed in all respects) expressed the view (ibid, 183G) that both the rule in Wheeldon v Burrows and the provisions of section 62 of the 1925 Act had “no place in compulsory purchase”.
It is important to keep in mind, however, that the statutory scheme for giving effect to a compulsory purchase order – formerly in the Acquisition of Land (Authorisation Procedure) Act 1946 and now found in the Acquisition of Land Act 1981 – is not the same as that for giving effect to the right to enfranchise under the 1967 Act. In particular, there is nothing in the compulsory purchase legislation comparable to the provisions of section 5(3) of the 1967 Act:
“In the event of any default by the landlord or the tenant in carrying out the obligations arising from [a tenant’s notice served under section 5(1)], the other of them shall have the like rights and remedies as in the case of a contract freely entered into.”
Nor is there anything in the compulsory purchase legislation comparable to the provisions of section 22(2) of the 1967 Act, to which I have already referred:
“. . . the rights and obligations of all parties . . . in relation to . . . matters arising in giving effect to [a tenant’s notice] . . . subject to or in the absence of provision made by any such regulation [made by statutory instrument under that section] . . . shall be as nearly as may be the same as in the case of a contract for sale . . . freely negotiated between the parties.”
As Lord Denning, Master of the Rolls observed in Byrnlea Property Investments Ltd v Ramsay [1969] 2 QB 253, 263H:
“Once the notice is given, both parties are bound just as they are by an ordinary contract.”
For my part, I would reject the submission that the reasoning in the Sovmots appeal compels the conclusion that the rule in Wheeldon v Burrows can have no application to a conveyance executed to give effect to the obligation imposed by section 8(1) of the 1967 Act. The observations of Lord Keith of Kinkel in Sovmots ([1979] AC 144, 183F-G) – that neither the rule in Wheeldon v Burrows nor the provisions of section 62 of the 1925 Act had any place in compulsory purchase – cannot have been made with the 1967 Act in mind. Section 62 of the 1925 Act plainly does have a place in the scheme for enfranchisement under the 1967 Act – see section 10(1) of the 1967 Act.
Nevertheless, the application of the rule is subject to the express provisions of the statutory scheme; and, if the rule is to have any application, it must be capable of being applied in the factual context within which the scheme has effect.
It is pertinent to keep in mind that, in his classic statement of the rule (12 Ch D 31, 49), Lord Justice Thesiger identified two propositions. The first is that which I have already set out earlier in this judgment;
” . . . on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements (by which, of course, I mean quasi easements), or, in other words, all those easements which are necessary to the reasonable enjoyment of the property granted, and which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.”
The second proposition is that:
“. . . if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant.”
As Lord Justice Thesiger accepted, the second proposition is subject to exceptions. In Cory v Davies [1923] Ch 95, Mr Justice P O Lawrence held that, notwithstanding the second proposition, he should imply reciprocal rights and reservations into leases granted by a common landlord in pursuance of a building scheme. It has been suggested that section 10(2)(ii) of the 1967 Act may, perhaps, be seen as a statutory exception in relation to the rights of support, etc, to which section 10(2) applies – see Hague on Leasehold Enfranchisement (4th Edition, 2003) paragraph 6-22.
The two propositions which, together, comprise the rule (or rules) in Wheeldon v Burrows are confined, in their application, to cases in which, by reason of the conveyance (or lease), land formerly in common ownership ceases to be owned by the same person. It is in cases of that nature that, in order to give effect to what must be taken to be the common intention of the grantor and the grantee, the conveyance (or lease) will operate as a grant (for the benefit of the land conveyed) of such easements over the land retained by the grantor as are necessary to the reasonable enjoyment of the land conveyed. But, because the principle is founded on the common intention of the parties, the easements necessary to the reasonable enjoyment of the land conveyed are those which reflect (and, following separation of ownership, are needed to give effect to) the use and enjoyment of the land conveyed at the time of the conveyance and while that land and the retained land were in the common ownership of the grantor.
It is necessary to ask how far either of the two propositions which Lord Justice Thesiger identified in Wheeldon v Burrows can have any application in a case where, at the time of the conveyance, the land conveyed and the land retained, although in common ownership, were not in common occupation. In particular, can either of the two propositions have any application where the land conveyed was occupied by a tenant holding under a lease from the common owner. Assuming, for the moment, that the land is not conveyed to the tenant, there are, of course, two distinct questions: (i) what easements over the retained land pass with the conveyance of the freehold and (ii) what easements are reserved out of the land conveyed for the benefit of the retained land. The rights of the tenant over the land retained; and the rights of the grantor (as owner of the land retained) over the land held under the lease are unaffected by the conveyance. Prima facie, those rights will depend on the terms of the lease – but may include rights which passed to the tenant under the first rule in Wheeldon v Burrows when the lease was granted.
In the absence of an express grant, the answer to the first of those questions – what easements over the retained land pass with the conveyance of the freehold – turns, as it seems to me, not on any application of the first rule in Wheeldon v Burrows but on the operation of section 62 of the Law of Property Act 1925. Under section 62 a conveyance of land operates to convey with the land “all ways, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land . . . or, at the time of conveyance, demised . . . or enjoyed with . . . the land”. I can see no reason why those words are not apt to convey, with the freehold, rights of way over the retained land which are, at the time of the conveyance, enjoyed by the tenant in occupation of the land conveyed. For my part, I find that analysis more attractive than one which relies upon the first rule in Wheeldon v Burrows. It seems to me an unnecessary and artificial construct to hold that the grantor, as common owner and the landlord of the land conveyed, is himself using the rights over the retained land which his tenant enjoys under the lease.
In reaching that conclusion I have had regard to the observations of Lord Wilberforce in the Sovmots appeal ([1979] AC 144, 169B-C) that:
“. . . section 62 does not fit this case. The reason is that when land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs, of ownership or at least of occupation, the condition for the existence of rights, etc., does not exist: see Bolton v Bolton (1879) 11 ChD 968, 970 per Fry J and Long v Gowlett [1923] 2 Ch 177, 189, 198, in my opinion a correct decision.”
As Lord Wilberforce pointed out, there can be no sensible concept of rights over one part of land for the benefit of another part while the two parts are in common ownership and occupation. But, once there is a separation of occupation (because part of land in common ownership is held by a tenant under a lease) there is no conceptual difficulty. There may well be rights over the untenanted part of the land for the benefit of the tenanted part. If there are, those rights are within the wide compass of section 62 of the 1925 Act.
Section 62 of the 1925 Act cannot operate to reserve rights out of the land conveyed for the benefit of the land retained. The words of the section cannot be given that effect. Nor can assistance be found in Wheeldon v Burrows. As I have said, the second rule stated by Lord Justice Thesiger is to the contrary effect: “if the grantor intends to reserve any right over the tenement granted, it is his duty to reserve it expressly in the grant.” The position under the general law, as it seems to me, is that a grantor who, on the conveyance of a part of his land which is subject to an existing tenancy (and over which he has rights of way reserved in the lease), wishes to reserve those rights out of the freehold which he conveys (so that he can continue to exercise them after the lease has determined) must do so by express words of reservation.
I turn, then, to consider the position where that part of the land in common ownership which is subject to the tenancy (say, plot A) is conveyed to the tenant on enfranchisement under the 1967 Act. What rights of way over the landlord’s retained land (plot B) pass to the tenant with the conveyance of the freehold of plot A – in circumstances where the tenant has not required an express grant under section 10(3)(a) of the Act? The answer, as it seems to me, is the same as it would be under the general law. Section 62 of the Law of Property Act 1925 operates to convey with the freehold of plot A, rights of way over plot B which are, at the time of the conveyance, enjoyed by the tenant in occupation of plot A. If that is the correct analysis, then – in relation to the rights of support, etc. to which section 10(2) of the 1967 Act applies (but not, of course, in relation to rights of way) – section 10(2)(i) may be seen as supplementing the general law. That, in my view, gives proper effect to the words which appear in parenthesis in section 10(2): “(but without prejudice to any larger operation [the conveyance] may have apart from this subsection)”.
The second question – what rights of way are reserved on the conveyance on enfranchisement of plot A for the benefit of plot B in circumstances where the landlord has not required an express reservation under section 10(3)(b) of the 1967 Act – must, I think, receive an answer which differs from that under the general law.
The underlying obligations imposed by section 8(1) of the 1967 Act require the landlord to make and the tenant to accept a grant for an estate in fee simple absolute “subject to the tenancy and to tenants’ incumbrances, but otherwise free of incumbrances”. In that context “tenant’s incumbrances” includes “any interest directly or indirectly derived out of the tenancy, and any incumbrance on the tenancy or any such interest (whether or not the same matter is an incumbrance also on any interest reversionary on the tenancy)” – section 8(2) of the Act. It was accepted in argument – rightly in my view – that a right in the nature of an easement, reserved out of the leasehold interest at time when the tenancy was granted, would be a “tenant’s incumbrance” for the purposes of section 8.
It is clear that the obligations imposed by section 8(1) of the 1967 Act admit of the reservation out of the freehold estate conveyed of rights equivalent to those which had been reserved out of the leasehold interest – section 10(3)(b). And, as it seems to me, it is proper to construe a conveyance executed to give effect to section 8 of the Act – whether or not it contains express words of reservation – as being “subject to the tenancy and to tenant’s incumbrances”. That, after all, is the extent of the obligation imposed on the landlord under the statutory contract. The common intention to be attributed to the parties is that the conveyance will give effect to that obligation; they are not to be taken to have intended that the landlord would grant an estate in fee simple absolute which was free from tenant’s incumbrances.
If that is the correct approach, then – in relation to the rights of support, etc. to which section 10(2) of the 1967 Act applies – section 10(2)(ii) may be seen as a statutory exception to the second rule in Wheeldon v Burrows; in that the conveyance operates to reserve rights out of the property conveyed without the need for express words. But, to my mind, the better view is that the conveyance, executed in order to give effect to a statutory obligation, is not to be taken to convey more than the due performance of that obligation requires. Again, that seems to me to give proper effect to the words “(but without prejudice to any larger operation [the conveyance] may have apart from this subsection)”.
It follows that – albeit for reasons which differ from those advanced in argument on behalf of the appellants – I would accept that the first of the propositions commonly referred to as “the rule in Wheeldon v Burrows” has no application to a conveyance executed to give effect to the obligation imposed by section 8(1) of the 1967 Act. The question whether any (and if so what) easements pass to the tenant under the conveyance of the freehold (in the absence of an express grant to give effect to section 10(3)(a) of that Act) turns on the operation of section 62 of the Law of Property Act 1925, supplemented (so far as necessary) by section 10(2)(i) of the 1967 Act. I would accept, also, that the application of the second of the two propositions within the rule is limited (i) by the need to construe the conveyance executed so as to give effect to the common intention of the parties that the estate conveyed is an estate in fee simple subject to tenant’s incumbrances and (ii) (so far as necessary) by section 10(2)(ii) of the 1967 Act.
The effect of a conveyance on the enfranchisement of one part of land in common ownership on the tenant of a retained part of that land
The second ground of appeal is that the rule in Wheeldon v Burrows cannot have effect, on a conveyance by a landlord of the freehold to one tenant on enfranchisement, so as to convert into an easement a right enjoyed by that tenant over the land of another tenant of the same landlord in circumstances where (i) there is no evidence that the landlord has consented to the exercise of that right or (ii) where it has not been shown that the right was being exercised at the time when the relevant conveyance was made. It follows from the views that I have already expressed that I accept that proposition. In particular, I accept that the first limb of the rule in Wheeldon v Burrows has no application on the enfranchisement of part of land in common ownership.
But that, of course, does not provide an answer to the question: what is the effect of a conveyance on the enfranchisement of one part of land in common ownership (plot A) on the retained part of that land (plot B), if plot B is tenanted. I have set out the reasons why I take the view (i) that the operation of section 62 of the Law of Property Act 1925, supplemented (so far as necessary) by section 10(2)(i) of the 1967 Act, gives to the conveyance the effect of a grant, with the freehold of plot A, of easements over the freehold of plot B and (ii) that the true construction of the conveyance in the light of the underlying obligation imposed by section 8(1) of the 1967 Act and (so far as necessary) the operation of section 10(2)(ii) of that Act gives to the conveyance the effect of reserving out of the freehold of plot A easements for the benefit of plot B; but there is no reason why the conveyance of plot A should subject the leasehold interest in plot B to any incumbrances (and, in particular, to any easements) to which it would not otherwise be subject in the absence of that conveyance. Nor, save in so far as section 10(2)(ii) of the 1967 Act has that effect, is there any reason why the conveyance of plot A should confer on the tenant of plot B any rights (and, in particular, any easements) over plot A.
Nevertheless, in a case where plot A and plot B have been held under tenancies from a common owner – and, in particular, where those tenancies were granted under a building scheme – it may well be that the tenant of each plot has rights over the leasehold interest in the other. In such a case the rights may well be reciprocal; as, for example, where the plots share a common access, part of which is leased with each holding. The position on the enfranchisement of one plot (plot A) may then, I think, be summarised as follows: (i) the former tenant of plot A will continue to enjoy the rights over the leasehold interest of plot B which he enjoyed as tenant of plot A, (ii) the former tenant of plot A will enjoy those rights over the freehold of plot B which are conveyed to him with the freehold of plot A by the operation of section 62 of the 1925 Act and section 10(2)(i) of the 1967 Act, (iii) the tenant of plot B will continue to enjoy the rights over plot A to which he is entitled under his lease – because those rights will be tenant’s incumbrances to which the freehold of plot A will be subject – and (iv) the landlord of plot B (the former common owner) will continue to enjoy the rights over plot A which were reserved on the conveyance of that plot. Put more shortly: the former tenant of plot A will continue to enjoy the rights over plot B which he enjoyed under his lease (but in respect of both the freehold and the leasehold interests in plot B); and the tenant of plot B will continue to enjoy the rights over plot A which he has enjoyed under his lease (but in respect of the freehold as well as the former leasehold interest in plot A).
The position on the subsequent enfranchisement of the retained part.
It remains to consider the position on the subsequent enfranchisement of plot B. That position may, I think, be stated shortly. The conveyance of plot B to the former tenant operates to convey with the freehold the rights over plot A which had been reserved to the former common owner on the conveyance of plot A – section 62 of the 1925 Act. The conveyance of plot B is subject to the rights which the former tenant of plot A already enjoys – because the former common owner cannot convey free from those existing rights.
The effect, therefore, is that – after enfranchisement of both plots A and B – the former tenants of those plots (as owners of the freehold) continue to enjoy the same rights over each others’ plots as they did while they were each tenants of those plots. If they were entitled to reciprocal easements under the former leases, those easements are (in effect) enfranchised. They subsist for the benefit of (and as a burden on) the respective freehold interests. And it is immaterial which of the two plots was the first to be enfranchised.
Were the plots entitled to reciprocal rights of way under the former leases.
With these considerations in mind, the outcome of the present appeal turns, as it seems to me, on whether plots 56 and 58 Dovercourt Road were entitled, under the leases granted in 1909, to reciprocal rights of way over the pathway which lies between them. If they were so entitled, then it will follow from the analysis which I have set out in this judgment that each will enjoy a right of way over that half of the pathway which is in the ownership of the other. But if either plot was not entitled, under the lease upon which it was held at the time of enfranchisement, to a right of way over the other half of the pathway, then that plot did not acquire a right of way over the pathway when the two plots were enfranchised in 1976. The reason is that the other plot was not, then, subject to a tenant’s incumbrance. In such a case, the right of way could only be acquired (if at all) by prescription since 1976.
In the course of argument in this Court, that analysis came to be accepted by counsel for the appellants. Although it was not in dispute that his clients (as owners of No 58 Dovercourt Road) were entitled to a right of way over that half of the pathway which was in the ownership of the respondents (as owners of No 56), it was pertinent to ask how that right had arisen. Counsel was minded, at first, to submit that the appellants enjoyed the right of way over the respondents’ land by reason only of prescriptive use since 1976. But, after further consideration, he abandoned that position. He contended that No 58 had been entitled to a right of way over No 56 by virtue of the 1909 lease; and that, on enfranchisement of No 58 in 1976, the right of way had become annexed to the freehold. That, he said, was the effect of the general words in section 62 of the 1925 Act. And he accepted – as he was bound to do – that, if the general words had that effect on the enfranchisement of No 58, they did so because the right of way had been reserved (as a tenant’s incumbrance) out of the freehold of No 56 on the enfranchisement of that plot.
Nevertheless, it was denied that a comparable analysis supported the respondents’ claim to a right of way over that half of the path which is in the ownership of the appellants. Counsel for the appellants contended that, although No 58 had been entitled to a right of way over No 56 by virtue of the lease of No 58, there had been no reciprocal right in favour of No 56. That, as it seems to me, is a position which cannot be maintained on the facts of this case.
I have explained, earlier in this judgment, that the appellants (Mr and Mrs Kavanagh) had asserted in their defence and counterclaim that the whole width of the pathway was included in their title; but that that assertion had been abandoned at the trial. It was conceded, at trial, that the boundary between the two properties – as defined by the headleases granted by the Governors, the underlease (or underleases) granted by Messrs Williams and the transfers on enfranchisement in 1976 – did lie along the mid-line of the pathway. That concession was correctly made. It is plain from the plans annexed to the headlease of No 56 (dated 17 December 1909) and the underlease of No 58 (dated 24 February 1910) that the common boundary between the two properties is straight: there is no deviation from the straight line at the end of the passageway. It is plain, also, that neither the northern flank wall of No 58 nor the fence (and, subsequently, the southern wall of the garage) on No 56 are on the common boundary: each is a short distance from it. The position is shown clearly on the Land Registry map dated 4 March 1910 in respect of title No 170424 – the leasehold title under which No 58 was held prior to 1976. The contemporary evidence is unequivocal. It leads to the conclusion that the Surveyor to the Governors was wrong in 1930; and that the plan upon which his report was based – which is not a title plan – cannot be relied upon to define the common boundary.
The position, therefore, is that, at the time when headleases of the two plots were granted at the end of 1909, the landlord (as common owner) chose to include in each lease one half of the pathway which lay between the two properties. Given that the whole width of the pathway was and is only three feet, it must have been appreciated that the pathway could not be used by the lessee of either plot without passing over the half which was included in the other lease; and it must have been the intention to the parties to those leases that that is how the pathway would be used. In those circumstances there was, as it seems to me, no difficulty in implying into each lease the necessary grant and reservation of reciprocal rights of way so as to enable the pathway to be used as intended. If authority for that course be needed, it can be found in the judgment of Mr Justice P O Lawrence to which I have already referred – Cory v Davies [1923] 2 Ch 95, 108-110.
Counsel for the appellants accepts that the necessary grant and reservation can be implied in the 1909 leases so as confer on the tenants of No 58 a right of way over No 56; but he submits that there is no basis for reciprocity. He points out, correctly, that the configuration and layout of the two plots was such that, in 1909, access to the rear of plot No 56 could be obtained without using the pathway. But that, as it seems to me, provides no answer. If it were the intention of the parties, in 1909, that the tenant of plot No 58 should have exclusive use of the pathway, then the obvious course was to include the whole of the pathway in the lease of No 58. The reason for including any part of the pathway in the lease of No 56 must have been that the tenant of No 56 should be able to use it. No other reason has been suggested; and, as it seems to me, no other reason could be suggested. And, as I have explained, it was the policy of the Governors that access should be obtained to the rear of each pair of semi-detached houses on the estate. The necessary inference must be that pathway was there for that purpose; notwithstanding that, on one view, it might not have been needed to gain access to the rear of plot No 56 at the time when the plots were laid out.
It follows that I would hold that the tenants of plot No 56 did enjoy a right of way, under the lease of 17 December 1909, over that half of the pathway which had been included in the lease of plot No 58 when the headlease of that plot was granted a few weeks earlier (on 12 November 1909). The underlease of plot No 58, granted on 24 February 1910, was subject to that right of way. And it follows that I would hold that the respondents enjoy that right as owners of No 56 Dovercourt Road following enfranchisement of the two properties in 1976.
Conclusion
I would dismiss the appeal on the ground that the judge was correct to uphold the claim to a right of way over the pathway – albeit that he reached that end by a route which I have not found it possible to follow. The true basis of the claim was, I think, that advanced in combination at paragraphs 11B(i) and (ii) of the amended particulars of claim: the right of way arose by implication in and from the lease of December 1909 (by reason of the common law doctrine of non-derogation from grant) and the conveyance of 14 May 1976 (by reason of section 62 of the Law of Property Act 1925).
That conclusion makes it unnecessary for me to attempt to resolve the apparent inconsistency between the judge’s finding (at paragraph 63 of his judgment) that it could not be assumed that the path was actually being enjoyed as a way at the date of the transfer in May 1976 and his finding (at paragraph 64) that the pathway was obviously a means of access to and from the gate into the back garden of No 56. It is enough that the right of way was, at the time of the 1976 conveyance, an easement demised with No 56 under the terms of the 1909 lease. It is unnecessary, also, for me to express any view whether the judge was correct to find – on the basis of the conversations with Mrs Fishlock on 1995 – that use of the pathway, at that date, was precarious. On a true analysis the user was as of right under a grant.
Lord Justice Longmore:
I agree.
Mr Justice Lewison:
I have had the advantage of reading in draft the judgment of Lord Justice Chadwick. I agree both with his conclusion and with his reasons. I add some short observations of my own in deference to the careful argument of Mr Harpum.
The social policy underlying the Leasehold Reform Act 1967 is that “the land belongs in equity to the landowner and the house belongs in equity to the occupying leaseholder” (see Official Custodian for Charities v. Goldridge (1973) 26 P & CR 191, 204 per Lord Denning MR quoting the Government White Paper Cmnd No 2916). One would expect, therefore, that when a leaseholder of a house acquires the freehold of that house in exercise of his rights under the Act, both the rights which he enjoyed and the rights which bound him in his capacity as leaseholder of the house would be carried through into his new status as freeholder when he acquires the land on which the house is built.
So the starting point is to identify the rights which the tenant enjoyed and to which he was subject as leaseholder of the house. For the reasons that Lord Justice Chadwick has explained, and with which I agree, the original lessees of plots 56 and 58 Dovercourt Road were entitled to reciprocal rights of way over that half of the pathway that had not been leased to them. Does the scheme of the Leasehold Reform Act 1967 cause any of those rights to fall into a legal black hole?
It would be tempting to conclude that section 10 (3) (a), in speaking of “such provisions … as the tenant may require for the purpose of securing to him rights of way which are necessary for the reasonable enjoyment of the house and premises..” is speaking of an objective test. Such an interpretation would not depend on whether the individual enfranchising tenant has actually articulated a requirement. Likewise it would be tempting to conclude that section 10 (3) (b) in speaking of “such provisions as the landlord may require for the purpose of making the property conveyed subject to such rights of way as are necessary for the reasonable enjoyment of other property” is also speaking of an objective test. However, in the light of condition 5 of the schedule to the regulations (to which Lord Justice Chadwick has referred) I do not consider that such a construction is possible.
It is clear from section 10 (1) of the Leasehold Reform Act 1967 that the conveyance cannot exclude or restrict section 62 of the Law of Property Act 1925, unless the tenant expressly consents. Accordingly, where the landlord conveys the freehold to the tenant, subject to the tenancy, section 62 will operate to convey with the freehold easements, liberties, rights and privileges “demised with” the land conveyed. Since there is diversity of occupation immediately before the conveyance, there is no impediment to the application of section 62. This means that any right enjoyed by the tenant under his lease is converted into a like right, enjoyed with the newly conveyed freehold. A right may be enjoyed, for this purpose, if it is part of the bundle of rights comprised in the leasehold estate, even though it is not exercised. The only limitation on this effect of section 62 is that section 62 does not give the tenant any better title than the landlord could have expressly conveyed: section 62 (5) of the Law of Property Act 1925, repeated in section 10 (1) of the Leasehold Reform Act 1967. In practice, therefore, this effect will be produced where the rights enjoyed by the tenant under his lease are exercised over his landlord’s adjoining land; or where rights enjoyed by the tenant are also enjoyed by the freeholder. That, then, deals with rights enjoyed by the leaseholder.
So far as rights binding the tenant are concerned, section 10 (1) of the Leasehold Reform Act 1967 recognises that the purpose of the conveyance is “to give effect to section 8 (1)”. Section 8 (1), in turn, obliges the landlord to convey to the tenant the house and premises “subject to the tenancy and to tenant’s incumbrances”. If, therefore, the landlord complies with his obligation, the conveyance will take effect subject to rights which are tenant’s incumbrances. Tenant’s incumbrances include “any incumbrance on the tenancy”. I agree with Lord Justice Chadwick that a conveyance executed to give effect to section 8 should be construed as having this effect. It follows, therefore, that any right which binds the tenant in his capacity as tenant will continue to bind him once he has become the freeholder. The benefit of the rights which have thus been reserved will be vested in the former freeholder who has made the conveyance.
Accordingly, on any subsequent conveyance by that freeholder, the rights reserved to him will be capable of being conveyed to a new purchaser. They will in fact be conveyed by the operation of section 62. That is exactly as one would expect where a lessee takes the opportunity given to him by the Act to convert his leasehold interest into a freehold interest.
I therefore agree with Lord Justice Chadwick that it does not matter which of two adjoining leasehold properties in enfranchised first. Both enfranchising tenants will continue to be bound by the rights which bound them as leaseholders and will continue to enjoy the rights that they enjoyed as leaseholders. All that has changed is that they enjoy and are bound by those rights as freeholders rather than as leaseholders.
It follows that the judge reached the correct conclusion, albeit by a different route. I, too, would dismiss the appeal.
I would only add that this case demonstrates how important it is for any conveyancer concerned with enfranchisement to consider carefully the rights and obligations to be contained in the conveyance executed to give effect to the tenant’s right to enfranchise; and to ensure that the correct rights are both granted and reserved.
Bakewell Management Ltd v. Brandwood & Ors
[2004] UKHL 14
LORD BINGHAM OF CORNHILL
My Lords,
I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Scott of Foscote, Lord Walker of Gestingthorpe and Lord Hope of Craighead. I am in full agreement with them, and for the reasons they give would allow the appeal and make the order which Lord Scott proposes.
LORD HOPE OF CRAIGHEAD
My Lords,
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Scott of Foscote and Lord Walker of Gestingthorpe. I agree with them, for all the reasons that they have given, that Hanning v Top Deck Travel Group Limited (1993) 68 P & CR 14 was wrongly decided and must be overruled, and I too would allow the appeal.
The result of this case will come as a welcome relief to many owners of dwellings whose only vehicular access to their properties is across common land. In Hanning the defendant was driving double-decker buses along a track through a wooded common from the public highway. The owners of the common could have granted the defendant a right of way for its commercial vehicles, but they did not do so. The claimant’s reason for seeking the injunction was to preserve the amenity of the common. There is no doubt that this is the broad public purpose which section 193(4) of the Law of Property Act 1925 was designed to serve.
The present action on the other hand has nothing to do with the preservation of the amenity of the common. As Ward LJ observed in the Court of Appeal [2003] 1 WLR 1429, 1432, para 8,
“Bakewell do not really wish to stop the defendants driving across the common. Their position is stated with admirable frankness in the skeleton argument submitted to the judge:
‘The purpose of this action is to make money for the claimant by requiring the defendants to pay for what they have taken free and for granted for many years – vehicular access to their residential properties across Newtown Common.'”
An unfortunate and, of course, unintended consequence of the decision in Hanning has been the encouragement that it gave to those who wish to make money out of the hitherto unobserved flaw which it appeared to have revealed in the system for obtaining easements of way through the presumption of a lost modern grant. The scale of the problem was highlighted during the debates on section 68 of the Countryside and Rights of Way Act 2000 in the House of Commons by Sir George Young and in your Lordships’ House by Lord Selborne: Hansard HC Vol 351, cols 949-960; HL Vol 617, cols 428-431. It is well known that opportunist companies have been buying up the freehold of common land in England and Wales for the sole purpose of extracting money from local residents, who had assumed that they had an established right of vehicular access across the common to their homes as they had been obtaining access in this way without interruption since time immemorial. Public authorities too had been exacting these charges, under pressure from the Treasury: see Christopher McNall, Righting Wrongs? Prescriptive Easements and Illegality [2004] 68 Conv 67, 69. Many of the residents were retired and could not easily find the sums that were being demanded from them.
Section 68 of the Act of 2000 was enacted in order to deal with this problem, but it did not provide a complete solution to it. An easement created in accordance with the regulations made under that section has to be paid for, albeit at lower rates than that demanded by the companies: see the Vehicular Access Across Common and Other Land (England) Regulations 2002 (SI 2002/1711). It is, as Stephen Tromans, Research Professor, Nottingham Law School, put it in his annotations to the section in Current Law Statutes, something of a compromise: see also Christopher McNall’s criticism of the legislative response: [2004] 68 Conv 67, 69. The section recognised that some owners of commons such as the National Trust and parish councils were entitled to seek to obtain a financial benefit from the law as laid down in Hanning, and it was not its purpose to deprive them of it. In their case, it has to be admitted, the financial benefit was in the nature of an unforeseen windfall.
While Kennedy LJ paid tribute in Hanning at p 23 to the long established and valuable principle of lost modern grant, he did not think that the fiction should be extended to enable the defendants to curtail public rights in the common by conduct which on each occasion when it was committed was criminal. But in my opinion, for the reasons Lord Scott has given, there is no need for the fiction of the lost modern grant to be extended to give the defendants the remedy they seek. All that is needed is to give to it the weight which it has always been given, despite the fact that the conduct relied on amounted on each occasion to a trespass which – assuming the use to be nec vi, nec clam, nec precario: not by force, by stealth or with permission – he could have objected to at any time.
As Cockburn CJ explained in Bryant v Foot (1867) LR 2 QB 161, 180-181, it is to be presumed from a period of 20 years’ user, and the lack of evidence inconsistent with there having been immemorial user or a lost modern grant, that a right which was within grant has been established. Section 193(4) of the 1925 Act recognises that it is open to the owner of the land to grant the authority that is needed for the use of it not to constitute an offence. So too does section 34 of the Road Traffic Act 1988. The owner may wish to consider questions of amenity when he is deciding whether or not to grant the authority which these statutes require, but he is not obliged to do so. He may, as has been demonstrated in this case, wish simply to make money for himself. The important point is that the right to use the land without committing an offence is entirely within his grant. His liberty to grant authority is not fettered by the statutes in any way. So it does not require any extension of the fiction for it to be assumed that a use which could have been objected to at any time during the 20 year period either because it was tortious or because it was criminal, being a use for which in either case it was within the power of the owner to grant authority, has become established as a prescriptive right.
In R v Oxfordshire County Council, ex p Sunningwell Parish Council [2000] 1 AC 335, 349, Lord Hoffmann said that any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment. There is no doubt that, on the facts that Park J assumed to be true when he made the declaration that the various defendants referred to in his order had no private rights of way for vehicles across the common, there had been a de facto enjoyment of the common for this purpose and that in each case it was open, continuous and long established. It could have been the subject of an express grant by the owner of the common at any time. The law would have been shown to be defective if it were to have allowed that enjoyment to be disturbed, with the result that it now had to be paid for. It is satisfactory that it has been possible to arrive at a conclusion in this case which is consistent with the value which has always been attached to a user of land which is open, continuous and long-established in the law relating to property rights.
LORD SCOTT OF FOSCOTE
My Lords,
A residence with a garden bordering upon an ancient common on which commoners pasture their sheep and to which members of the public can resort for exercise, dog walking, picnics, kite flying and the like, sounds like an enviable possession affording amenities of view and tranquillity that would be highly prized by most people. The absence of any direct access to the house from a public road might give rise to a momentary doubt about its attractions and suitability in a modern motorized age; but information that ever since the house was built, well over 20 years ago, its successive owners, and their visitors, have enjoyed vehicular access to the house over a track across the common linking the house with a public road would have quieted most doubts. And all doubts would, I expect, have been quieted if the inquirer, on consulting a lawyer, had been told about section 2 of the Prescription Act 1832. He would have been told that twenty years open and uninterrupted user of the track as of right and without interruption would have entitled the householder to a right of way over the track.
I am referring, however, to the time before 5 May 1993 when the decision of the Court of Appeal in Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14 was given. The Court of Appeal held that because it had been made an offence by section 193(4) of the Law of Property Act 1925 to drive without lawful authority on a common to which the section applied, and it applied to the Hanning common, and since no lawful authority for the defendant company to drive on the common had ever been given, a right of way could not have been acquired by the twenty or more years of uninterrupted use that the defendant company had enjoyed. An easement could not, it was held, be acquired by conduct which, at the time the conduct took place, was prohibited by statute.
The Hanning decision was followed by the trial judge, Park J, and by the Court of Appeal in the present case. They were bound by it but, in the Court of Appeal, the Lord Justices expressed the view that they would anyway have come to the same conclusion.
Each of the appellants in the present case is an owner of a house bordering on a 144 acre common, Newtown Common, near Newbury. Vehicular access to each of the houses from the nearest public road has, since each house was built, been obtained via one or other of a number of tracks over the common. The owner of the common, whether past or present, has given no permission authorising this use of the tracks. The present owner of the common, Bakewell Management Ltd (‘Bakewell’), the respondent company, has commenced proceedings to establish that the appellants have no vehicular rights over these tracks. Bakewell relies on the Hanning decision. The question for your Lordships is whether Hanning was rightly decided.
The Facts
The basic facts are not in dispute. Newtown Common is registered as a common under the Commons Registration Act 1965. It was owned by successive Earls of Carnarvon from early in the 19th century until 1986. Bakewell became the owner on 3 July 1997. Some of the tracks and roads across the common which connect appellants’ properties to local public roads have tarmac surfaces. Some do not but all are usable by vehicles. Save for two of the properties, the tracks and roads across the common are the only means of vehicular access to public roads.
The owners of twenty-eight properties, forty-seven defendants in all, were sued by Bakewell. Four of these did not file a defence. Against all the other defendants Bakewell made an application for summary judgment on the issue of liability. Seven of the defendants, the owners of four of the properties, were given leave to defend by Park J. Against all the others Park J made a declaration that they had no private rights of way for vehicles across Newtown Common.
The distinction between the seven and the others was based on the length of the period of vehicular access to their respective properties before 3 January 1928 (after which date section 193 of the 1925 Act applied to the common) that they could claim. Each of the seven could claim over 20 years vehicular access before 3 January 1928. So it was accepted that each had an arguable claim to have acquired an easement by prescription, or under the fiction of lost modern grant, that predated the application of the section 193(4) prohibition to Newtown Common. As to the others, three of them, the owners of two properties, could claim use that commenced before 1928 but was of less than twenty years duration before 1928. All of the defendants bar six, the owners of four properties, could claim use of more than forty years before the commencement of the proceedings. The six could claim twenty years’ use but not forty.
The appellants before the House include not only those against whom the declaration of no entitlement of a right of way was made but also the seven who were given leave to defend. The reason, no doubt, is that the seven have a common interest with their co-defendants in hoping to persuade your Lordships that Hanning was wrongly decided.
The appellants contend that their vehicular use of the tracks, and that of their respective predecessors in title, has been enjoyed openly and without any permission from the owner for the time being of the common. Bakewell accepts that that is so.
The status of the common as a common to which section 193 applies derives from subsection (2) which enabled the owner of a common to declare by deed that the section should apply to his common and enacted that “upon such deed being deposited with the Minister the land shall, so long as the deed remains operative, be land to which this section applies”. On 31 December 1927 the then owner of the common, the 6th Earl of Carnarvon, declared by deed that section 193 should apply to Newtown Common. The deed was duly deposited with the Minister on 3 January 1928 and has not been revoked. It is accepted by the appellants that on 3 January 1928 Newtown Common became a common to which section 193 applied.
Bakewell made it clear in the course of the hearing before Park J, and its counsel, Miss Williamson QC, has made clear to your Lordships, that Bakewell’s purpose in instituting and pursuing the proceedings was not and is not to prevent the householders from using the tracks across the common for access to their respective properties but was and is to make the householders pay for the right to do so. It is agreed, rightly, that Bakewell’s motive is irrelevant to the issues before the House.
In any event, prompted by the Court of Appeal decision in Hanning, Parliament enacted section 68 of the Countryside and Rights of Way Act 2000 which instituted a statutory scheme under which an owner of property deprived of a prescriptive right of way over a common, or other land, by the unlawful conduct principle underlying the Hanning decision can require the right to be granted to him by the owner of the common in return for payment of an appropriate sum of money. But, of course, if the appellants can satisfy your Lordships that Hanning is wrong, they can establish their respective rights of access over the common without having to rely on section 68 or to pay Bakewell anything.
The statutory prohibition
The terms of the section 193(4) prohibition and its statutory context are important. The section is headed “Rights of the public over commons and waste lands”. Subsection (1) provides that
“Members of the public shall, subject as hereinafter provided, have rights of access for air and exercise to any land which is a metropolitan common …., or manorial waste, or a common, which is wholly or partly situated within an area which immediately before 1st April 1974 was a borough or urban district, and to any land which at the commencement of this Act is subject to rights of common and to which this section may from time to time be applied in manner hereinafter provided:
Provided that—
(a) such rights of access shall be subject to any Act, scheme, or provisional order for the regulation of the land, and to any byelaw, regulation or order made thereunder or under any other statutory authority; and
(b) the Minister shall, on the application of any person entitled as lord of the manor or otherwise to the soil of the land, or entitled to any commonable rights affecting the land, impose such limitations on and conditions as to the exercise of the rights of access or as to the extent of the land to be affected as, in the opinion of the Minister, are necessary or desirable for preventing any estate, right or interest of a profitable or beneficial nature in, over, or affecting the land from being injuriously affected, for conserving flora, fauna or geological or physiographical features of the land, or for protecting any object of historical interest and, where any such limitations or conditions are so imposed, the rights of access shall be subject thereto; and
(c) such rights of access shall not include any right to draw or drive upon the land a carriage, cart, caravan, truck, or other vehicle, or to camp or light any fire thereon; and
(d) ….”
Subsection (2) enabled “the lord of the manor or other person entitled to the soil of any land subject to rights of common” to apply section 193 to the land. I have described in paragraph 19 above how this is done. The only other subsection to which I need refer is subsection (4) which creates the statutory prohibition:
“(4) Any person who, without lawful authority, draws or drives upon any land to which this section applies any carriage, cart, caravan, truck, or other vehicle, or camps or lights any fire thereon, or who fails to observe any limitation or condition imposed by the Minister under this section in respect of any such land, shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale for each offence.”
Subsection (1), combined with subsection (2), identified three categories of land to which section 193 was to apply, first, metropolitan commons (as defined), second, manorial waste or common land within the area of a pre 1 April 1974 borough or urban district, and, third, commons the owners of which had applied the section to the land. The rights of access for air and exercise over land falling into one or other of these three categories that subsection (1) conferred on the public were subject to important provisos. Proviso (b) allowed the Minister, on the application either of the owner of the land or of any person with rights of common, to impose limitations or conditions on the rights conferred on the public. The Minister could do so for one or other of the purposes specified in the proviso. The first of the specified purposes would enable the Minister to prevent the exercise of the newly conferred public rights from unreasonably interfering with the commoners’ rights of common or with the legitimate interests of the owner of the land. Proviso (c) was plainly directed to the same purpose. It imposed specific limitations on and conditions as to the exercise of the newly conferred public rights. The purpose of subsection (4) was, plainly, to enable the observance by members of the public of limitations and conditions imposed under proviso (b) or proviso (c) to be enforced by a criminal sanction.
The words in subsection (4) “without lawful authority” deserve careful attention. They have been taken, in cases like the present and like Hanning, to refer to an authority given by the owner of the common. They might also, if proviso (a) is applicable, refer to an authority given by some public official or public body pursuant to the Act, scheme, byelaw or regulation in question. But the ability of the owner of the common in question to give someone a “lawful authority” to do one or other of the things prohibited by subsection (4), or, indeed, to do one or other of those things himself, is subject, in my opinion, to an important qualification. The owner of a common cannot lawfully do anything on the common that would constitute an unreasonable interference with the rights of the commoners (see s. 30, Commons Act 1876). To do so would be a nuisance (see Clerk & Lindsell 18th Ed. para 31-27). Nor could the owner of a common lawfully authorize things to be done by others on the common that, if done, would constitute a nuisance. The reference to “lawful authority” in subsection (4) does not, therefore, mean that the owner of a common can authorize to be done whatever he pleases. Authority given to too many people to camp on the common and light too many fires could damage the sufficiency of grass on the common for the commoners’ grazing rights. If that were so, the authority would not, in my opinion, be a lawful one. Similarly, authority to too many people to drive too many cars or other vehicles over the tracks on the common might not be lawful. It would depend on the facts. But, subject to that qualification, subsection (4) allows the owner of a common to which section 193 applies to authorize the doing of an act that if done without that authority would be an offence under the subsection.
Section 193(4) is not the only statutory provision that creates an offence if motor vehicles are driven off-road “without lawful authority”. Section 14(1) of the Road Traffic Act 1930 said that
“If without lawful authority any person drives a motor vehicle on to or upon any common land, moorland or other land of whatsoever description (not being land forming part of a road), or on any road being a bridleway or footway, he shall be guilty of an offence ….”
There then followed two provisos one of which allowed parking on land within fifteen yards of a road and the other allowed a defence if the vehicle had been driven “for the purpose of saving life or extinguishing fire or meeting any other like emergency”. Section 14(1) of the 1930 Act was repealed by the Road Traffic Act 1960 and replaced by section 18(1) of that Act which was in the same terms. Section 18(1) of the 1960 Act was repealed by the Road Traffic Act 1972 and replaced by section 36(1) of that Act, also in the same terms. Section 36(1) has been repealed by the Road Traffic Act 1988 and replaced by section 34(1) of that Act which has slightly different wording but is to exactly the same effect as its statutory predecessors. My comments on “without lawful authority” in section 193(4) of the 1925 Act are equally applicable to those words in section 34(1) of the 1988 Act and its predecessors.
In a recent case in the Court of Appeal, Massey v Boulden [2003] 2 AER 87, the same point arose in relation to section 34(1) of the 1988 Act as had arisen in Hanning and in the present case in relation to section 193(4). Simon Brown LJ (as he then was), in a reference to Hanning and to Robinson v Adair, a Queen’s Bench Divisional Court case unreported save in the Times of 2 March 1995, said—
“That a prescriptive right of way cannot be acquired by a user in breach of a criminal statute is well established and …. not in dispute before us.”
If Hanning was wrongly decided in treating user in breach of section 193(4) as a bar to the acquisition of a right of way by prescription so too was Massey v Boulden wrongly decided in treating user in breach of section 34(1) as a similar bar.
Acquisition of easements by prescription
The acquisition of easements by long uninterrupted user that has been open, free from force and not dependent upon any precatory permission from the servient owner serves a well recognised public policy. In Davis v Whitby [1974] 1 Ch 186 Lord Denning MR said, at page 192, that
“…. the long user as of right should by our law be given a lawful origin if that can be done.”
and Stamp LJ, agreeing with Lord Denning, commented
“…. if long enjoyment of a right is shown, the court will strive to uphold the right by presuming that it had a lawful origin.”
More recently Lord Hoffmann in R v Oxfordshire County Council Ex parte Sunningwell Parish Council [2000] 1 AC 335 said at page 349 that
“Any legal system must have rules of prescription which prevent the disturbance of long-established de facto enjoyment.”
The rules of prescription developed by English law for the acquisition of easements by long de facto enjoyment were based on the establishing of a fiction, namely, that the long de facto enjoyment was attributable to the grant of the easement by a past owner of the servient land but that the grant had been lost. The opinion given by Lord Hoffmann in the Sunningwell Parish Council case contains a valuable exposition of the way in which this fiction developed and led to the enactment of the Prescription Act 1832 (see pages 349G to 351F). The terms of section 2 of the 1832 Act are important
“(2) No claim which may lawfully be made at the common law, by custom, prescription, or grant, to any way or other easement …. when such way or other matter …. shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.”
Section 4 of the 1832 Act said that the periods of 20 years and 40 years had to be periods
“…. next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question….”
Section 4 is the reason why lost modern grant as a means of claiming an easement by long use continued to exist alongside section 2 of the 1832 Act. In a case where the use relied on had ceased before the commencement of the action challenging the claim to the easement section 2 of the 1832 Act might not be applicable but the claimant might still get home by relying on lost modern grant. In Tehidy Minerals v Norman [1971] 2 QB 528 Buckley LJ explained, at p 552, that the great case of Angus v Dalton (1881) 6 App Cas 740 had decided that
“…. where there has been upwards of 20 years’ uninterrupted enjoyment of an easement, such enjoyment having the necessary qualities to fulfil the requirements of prescription, then unless , for some reason … the existence of such a grant is impossible, the law will adopt a legal fiction that such a grant was made, in spite of any direct evidence that no such grant was in fact made.”
In the present case the appellants claim their respective rights of way over the tracks across the common both under section 2 of the 1832 Act and, alternatively, under the lost modern grant fiction. No reason has been advanced, other than the illegality point on which Hanning was based and which was approved in the present case, why these claims should not succeed on either of these two bases.
Hanning v Top Deck Travel Group Ltd
Horsell Common, the common with which the Hanning case was concerned, was a common to which section 193 applied. Vehicles belonging to the defendant, Top Deck Travel, had been using a track across the common for well over 20 years. No authority to do this had been given by any owner of the common. The trial judge, Mr John Lindsay QC (as he then was), had noted that this user was an offence under section 193(4) but that the illegality would have been cured “had a grant of the kind otherwise to be presumed been made”. He held that, in view of the illegality of the use on which Top Deck Travel was relying, the court could refuse to recognise the fiction that there had been a lost grant but that the court was not obliged to do so. In the event he did not do so and, accordingly, upheld the right of Top Deck Travel to the easement. Dillon LJ, who gave the leading judgment in the Court of Appeal, disagreed. He cited a number of cases which, he considered, had established the rule that “an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute”. Kennedy LJ gave a judgment to the same effect.
In my respectful opinion, the cases cited by Dillon LJ and Kennedy LJ do not establish that rule. What they establish is a rather different rule, namely, that an easement cannot be acquired to do something the doing of which is prohibited by a public statute. The first case cited by Dillon LJ was Neaverson v Peterborough Rural District Council [1902] 1 Ch 557. The first sentence of the headnote succinctly expresses what the case decides— “A lost grant cannot be presumed where such a grant would be in contravention of a statute.” Henn Collins MR explained at pages 563-564 that
“If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period.”
and, at page 573 that—
“such a grant as is here suggested would have been illegal, whoever is supposed to have made it.”
33.
Neaverson v Peterborough Rural District Council was cited by Eve J in Hulley v Silversprings Bleaching and Dyeing Co Ltd [1922] Ch 268 as authority for the proposition that—
“A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail.” (page 282)
The lost grant that Top Deck Travel sought to establish, like those that the appellants now before the House seek to establish, could have had a legal origin. The grants could lawfully have been made and would not have been illegal.
34.
Glamorgan County Council v Carter [1963] 1 WLR 1 was the next case cited by Dillon LJ. The question at issue arose out of the provisions of the Town and Country Planning Act 1947. The question was whether planning permission was required for the use of certain land as a site for caravans. Section 12(5)(c) of the Act said that planning permission was not needed in order to authorise the use of unoccupied land for the purpose for which it had been last used. The last use that had been made of the land was as a site for caravans but at the time this use was taking place it had been an illegal use. This was the context in which Salmon LJ made the statement cited by Dillon LJ, namely
“It seems to me plain on principle that Mrs James could not acquire any legal right by the illegal use to which she was putting the land.” (see p 5)
Salmon LJ made this statement in a planning context. Mrs James could not establish legal rights of use for the purposes of the 1947 Act by relying on use that was unlawful under the 1947 Act. The proposition was plainly correct. But the case had nothing to do with prescriptive use. It was, in my opinion, an unconvincing use of authority to take Salmon LJ’s statement out of context and treat the principle he expressed as applicable to prescriptive use.
The next case cited was George Legge & Son Ltd v Wenlock Corporation [1938] AC 204. The question in this case was whether the status of a natural stream could be changed to that of a sewer by the unlawful discharge for a long period of sewage into the stream. Throughout the period of the discharge of sewage into the stream the discharge had been an offence under section 3 of the Rivers Pollution Prevention Act 1876. Their Lordships applied the decision of the House in Airdrie Magistrates v Lanark County Council [1910] AC 286 in which Lord Loreburn LC had commented:
“But what the appellants say is this: Permit us to prove that these burns are sewers, and if we can prove that they are sewers, surely it cannot be an offence to pour sewage matter into the sewers. My Lords, that is merely asking leave to prove that they have …. committed in an aggravated degree the very offence with which they are charged.”
In George Legge Lord Macmillan, with whose opinion Lord Atkin and Lord Roche agreed, said, at page 216—
“…. it is sought to prove that what was in law a protected stream has become in law an unprotected sewer simply by reason of infringements of the law designed for its protection. Now that is what your Lordships’ House in effect held in the Airdrie case to be a legal impossibility.”
And Lord Maugham, at page 222, said
“…. there are certainly statutes imposing duties or prohibitions which can be waived …. There are also cases where by the doctrine of a lost grant or lost patent or by some similar presumption individuals have, notwithstanding the terms of a statute, acquired rights apparently in contradiction of it. There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable.”
My Lords, Bakewell naturally attaches considerable importance to the last sentence from the passage of Lord Maugham’s opinion that I have cited. I would respectfully suggest, however, that the George Legge case, and for that matter the Airdrie case, are no more than excellent examples of the proposition that a lawful grant to do an act or acts that if done would be illegal cannot be made. It would be the “legal impossibility” to which Lord Macmillan referred. To go further and say, as Lord Maugham did, that never in any circumstances can acts in breach of public law prohibitions lead to the acquisition of legal rights does not follow and was not necessary for the decision.
Kennedy LJ in Hanning referred to Cargill v Gotts [1981] 1 WLR 441. In Cargill v Gotts it was contended that a right to abstract water from a mill pond had been acquired by long use. Under section 23(1) of the Water Resources Act 1963 the abstraction of water from the mill pond as from 1 July 1965 required the grant of a licence from the water authority. The water authority was not the owner of the mill pond. The plaintiff, who had for some years prior to and after 30 June 1965 abstracted water from the pond for use on his neighbouring farm, contended that he had acquired by long use an easement to do so. He had never applied for or been granted a licence by the water authority. The Court of Appeal held that for the purpose of establishing his easement he was not entitled to rely on his illegal abstraction of water post 30 June 1965. Templeman LJ, with whom on this point Lawton LJ and Brandon LJ agreed, said, at page 446
“…. the plaintiff cannot rely on any abstraction of water carried out after June 30 1965, in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity.”
The last sentence of the cited passage from Templeman LJ’s judgment give Bakewell the same support as does the sentence from Lord Maugham’s opinion in the George Legge case to which I have referred. But here, too, the sentence went further than was necessary. It was not open to the owner of the mill pond to grant the plaintiff, post 30 June 1965, the right to abstract water from the mill pond unless the plaintiff had the requisite licence from the water authority, which he did not. The grant would have been an unlawful grant, as would have been the comparable grant in the George Legge case. Templeman LJ did not have in mind what the situation would have been had a grant, if made by the mill owner, been a lawful grant.
The feature of the Hanning case, and the present case, that distinguishes them from such cases as the George Legge case and Cargill v Gotts is that the servient owner was able, notwithstanding the statutory prohibition, indeed by the very terms of section 193(4), to make a lawful grant of the easement. A statutory prohibition forbidding some particular use of land that is expressed in terms that allows the landowner to authorise the prohibited use and exempts from criminality use of the land with that authority is an unusual type of prohibition. It allows a clear distinction to be drawn between cases where a grant by the landowner of the right to use the land in the prohibited way would be a lawful grant that would remove the criminality of the user and cases where a grant by the landowner of the right to use the land in the prohibited way would be an unlawful grant and incapable of vesting any right in the grantee. It is easy to see why, in the latter class of case, long and uninterrupted use of the land contrary to a statutory prohibition cannot give rise to the presumed grant of an easement that it would have been unlawful for the landowner to grant. It is difficult to see why, in the former class of case, the long and uninterrupted user should not be capable of supporting the presumed grant by the land owner of an easement that if granted would have been lawful and effective notwithstanding that the user was contrary to a statutory prohibition. I can see no requirement of public policy that would prevent the presumption of a grant that it would have been lawful to grant. On the contrary, the remarks of Lord Denning MR and Stamp LJ in Davis v Whitby and of Lord Hoffmann in the Sunningwell Parish Council case to which I have referred provide sound public policy reasons why, if a grant of the right could have been lawfully made, the grant should be presumed so that long de facto enjoyment should not be disturbed.
The post Hanning cases
I should refer also to some of the several cases post Hanning in which the principle on which that case was decided was applied. It is convenient to take them in chronological order. Robinson v Adair was reported in The Times of 2 March 1995. The case was not about private rights of way but raised the issue whether a particular road had become by presumed dedication a public highway. The Truro Crown Court had allowed Mr Adair’s appeal against his conviction for obstructing a highway (see s 137 of the Highways Act 1980). Mr Adair, presumably the owner of the road in question, denied that it was a public highway. Mr Robinson contended that dedication of the road as a public highway was to be presumed after twenty years uninterrupted use as of right by the public (s 31(1) of the 1980 Act). But the use relied on constituted an offence under section 34(1) of the Road Traffic Act 1988. Dyson J (as he then was), giving the judgment of the Divisional Court, referred to Hanning and said, according to The Times report, that he could see no rational distinction between acquisition of a private easement by presumed grant after long illegal user and the presumed dedication of a highway after long illegal user. However, it was, so I assume for there is nothing to suggest the contrary, open to Mr Adair or his predecessors in title to have dedicated the road as a public highway. Such a dedication would have constituted “lawful authority” for section 34(1) purposes. The dedication would have been effective. That being so, I can see no reason why public policy would prevent a presumption of dedication arising from long use.
41.
Hereford and Worcester County Council v Pick (1995) 71 P & CR 231 was another case in which the issue was whether a presumed dedication of a road as a public highway could result from twenty years or more of uninterrupted public use in breach of section 34(1) of the 1988 Act. As in Robinson v Adair a Queen’s Bench Divisional Court was considering whether a footpath, alleged to have become a public highway for vehicles by presumed dedication, had been unlawfully obstructed. Stuart-Smith LJ, after referring to Hanning and to Robinson v Adair said at page 239 that
“Public rights cannot be based on long use where the user is prohibited by statute.”
He said, also, that the user relied on for the presumed dedication would have constituted a public nuisance to pedestrians using the footpath and that, for that reason also, the user could not lead to a presumed dedication.
I agree with Stuart-Smith LJ’s remarks about nuisance. It would not, in my opinion, have been open to the land owner to have dedicated the footpath as a public vehicular highway if use by vehicles would have constituted a public nuisance to pedestrians using the footpath. But I respectfully disagree with the proposition derived from Hanning and Robinson v Adair. If it would have been lawful for the landowner to make the dedication in question I can see no reason why the dedication should not have been presumed from long use. Indeed, if Robinson v Adair and, on this point, the Pick case are correct, there could never be a presumed dedication under section 31(1) of the Highways Act 1980 after 20 years of public use. Whatever the intention behind section 34(1) of the Road Traffic Act 1988 may have been, the intention could hardly have been to repeal section 31(1) of the 1980 Act.
I have already referred briefly to Massey v Boulden [2003] 2 AER 87. The defendants were the owners of a village green crossed by a track which gave vehicular access from a public road to the claimants’ house. The successive occupiers of the house had used the track for vehicular access for over forty years. The defendants resisted the claimants’ entitlement to a prescriptive right of way on the ground that the user relied on had constituted an offence under section 34(1) of the 1988 Act. Hanning was relied on. The Court of Appeal agreed with the defendants and Simon Brown LJ made the remark that I have cited in paragraph 26 above and need not repeat. Sedley LJ agreed with Simon Brown LJ. Mansell LJ dissented on a point not material to the illegality issue. None of the members of the court addressed what to my mind is the critical question, namely, why public policy should preclude the obtaining by prescription, or by presumed grant, of an easement or right over land that it would have been lawful for the landowner to grant notwithstanding that the user was, absent the grant, unlawful and criminal.
Finally, I should refer to Hayling v Harper [2003] 39 EG 117. This case, too, raised the question whether vehicular user of a public footpath in breach of section 34(1) of the 1988 Act could lead to the acquisition by prescription of a public right of way. Ward LJ, who had a few months earlier given the leading judgment in the Court of Appeal in the case now before the House, was bound to follow Hanning and did so. The Hanning principle barred, he held, a claim to the easement under section 2 of the 1832 Act. The user relied on had been illegal since 1930 (see paragraph 25 above) and the claimants could not, therefore, rely on the user between 1930 and the commencement of the proceedings. But he held that the evidence of user pre 1930 enabled the claimants to establish the acquisition of an easement by lost modern grant before the advent of section 14 of the Road Traffic Act 1930. So the claimants won in the end.
In the present case both Ward LJ and Arden LJ, besides holding themselves bound by Hanning, as indeed they were, indicated that they thought the Hanning decision was correct. Ward LJ cited well known cases relating to the relevance of illegality in the general law. He cited such classics as Holman v Johnson (1775) 1 Cowp 341, Bowmakers Ltd v Barnet Instruments Ltd [1945] KB 65 and Tinsley v Milligan [1994] 1 AC 340. These authorities, he said, established the principle that the Newtown Common householders—
“…. cannot succeed without proving that they drove without lawful authority of the owner. Their claim is, therefore, founded upon their criminal activity. And for that reason it founders. Secondly, they claim a lost modern grant. It brings them benefit but the benefit is gained by their illegal activity. Public policy does not permit this.” (para 53)
Arden LJ said that—
“…. no discretion exists in the present case to disregard the effect of section 193(4) of the Law of Property Act 1925.”
Conclusions
My Lords, in my opinion, the decision in Hanning and the subsequent justifications of that decision are wrong and ought not to be followed. I accept that, at the end of the day, the issue is one of public policy. It is accepted, however, that a prescriptive right, or a right under the lost modern grant fiction, can be obtained by long use that throughout was illegal in the sense of bring tortious. That is how prescription operates. Public policy does not prevent conduct illegal in that sense from leading to the acquisition of property rights. The Hanning decision can only be justified on the footing that conduct illegal in a criminal sense is, for public policy purposes, different in kind from conduct illegal in a tortious sense. Why should that necessarily be so? Why, in particular, should it be so where the conduct in question is use of land that is not a criminal use of land against which the public law sets its face in all cases? It is criminal only because it is a user of land for which the landowner has given no “lawful authority”. In that respect, the use of land made criminal by section 193(4) of the 1925 Act, or by section 34(1) of the 1988 Act, has much more in common with use of land that is illegal because it is tortious than with use of land that is illegal because it is criminal.
In my opinion, if an easement over land can be lawfully granted by the landowner the easement can be acquired either by prescription under section 2 of the 1832 Act or by the fiction of lost modern grant whether the use relied on is illegal in the criminal sense or merely in the tortious sense. I can see no valid reason of public policy to bar that acquisition. We have been referred to no case, pre Hanning, that decided the contrary. The decision in Hanning took the law, in my opinion, in a wrong direction. It follows that, in my opinion, your Lordships should hold Hanning to have been wrongly decided and should overrule the various rulings in reliance on Hanning that have been made in the subsequent cases. I would allow this appeal and set aside the order of the Court of Appeal dated 30 January 2003 and the order of Park J dated 21 March 2002. The parties must apply to the High Court for any necessary directions as to the disposal or the further conduct of the action. Bakewell must pay the costs of the appellants here and below.
LORD WALKER OF GESTINGTHORPE
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Scott of Foscote. I gratefully adopt his summary of the facts and I agree that, for the reasons which he gives, this appeal should be allowed. But because we are differing from the courts below on a point of some general interest, I add some observations of my own.
The development of the law of prescription of easements has been considered by your Lordships’ House in two recent cases (both concerned with analogous public rights), R v Oxfordshire County Council ex parte Sunningwell Parish Council [2000] 1 AC 335 and R (Beresford) v Sunderland City Council [2003] 3 WLR 1306. As the discussion in those cases shows, the basis of the law of prescription of easements and profits is that long-continued open and peaceful enjoyment of an apparent right should if possible be ascribed to a lawful origin. One of the requirements, if the presumption or inference of a lawful origin is to be made, is that the apparent right should lie in grant (that is, should be capable of being created by an express grant made by deed): see for instance the classic statement by Cockburn CJ in Bryant v Foot (1867) LR 2 QB 161, 179. Similarly Lord Lindley said in Gardner v Hodgson’s Kingston Brewery Company Ltd [1903] AC 229, 239,
“The common law doctrine is that all prescription presupposes a grant.”
Otherwise the fictional technique of presuming or inferring a lost modern grant would not meet the case.
In my opinion it is the requirement that there should have been a competent grantor, rather than any wider principle based on criminality, which best explains the well-known cases on which the respondent relied. The first was Rochdale Canal Proprietors v Radcliffe (1852) 18 QB 287. Riparian owners who operated steam engines had a statutory power (under the Act of Parliament incorporating the canal company and authorising and regulating the construction and use of the canal) to extract from the canal
“such quantities of water as shall be sufficient to supply the said engine or engines with cold water, for the sole purpose of condensing the steam used for working any such engines”.
Radcliffe, a riparian mill owner, had for upwards of 20 years extracted water and used it, not merely for condensing steam but for a variety of other purposes. His claim to a prescriptive right failed because the canal company could not lawfully have granted him larger rights. To do so would have been beyond its powers and (to the extent that it might interfere with public rights of navigation) against the public interest. Coleridge J put the point very clearly (at p 314),
“The foundation of the fourth plea is a supposed grant, the existence of which is to be shewn by acts of user. But, if the acts of user would not be legal, the grant cannot be inferred from them. The company here are not the owners of the water, but trustees for the public, under a very limited trust. They are bound to apply all the water that may be required to the purposes of the navigation; they are also bound to allow so much as is wanted for the particular use (specified in [the statute]), of the mill owners within a certain distance of the banks”.
The same point is clearly made in the judgment of Collins MR in Neaverson v Peterborough RDC [1902] 1 Ch 557. The Newborough Inclosure Act 1812 provided for draining, enclosing and improving a fen which was common land. Under the Act the grass growing on various roadways was vested in the surveyor of highways, who had power to let it for the pasturage of “sound and healthy sheep” but with an express prohibition of other animals. Nevertheless the land was in the event used, for over sixty years, for the pasturage of horses and cattle, despite the fact (see at pp 570-1) that this involved a danger of damage to the drainage system. Collins MR stated the issue at pp 563-4:
“There is evidence, no doubt, in this case of a long-continued practice of letting the herbage on the road for the pasturage, not of sheep exclusively, but also of a limited number of horses and cattle. The question is whether that ought to be treated as evidence of a lost grant, which might have had a legal origin. If such a grant could not have had a legal origin, then it is not competent for us to presume its existence. On the other hand, if it could have had a legal origin, then we ought to presume the existence of such a grant, when there is evidence of user for such a long period”.
The Master of the Rolls answered the question in a well-known passage (at p 573):
“Again, it is essential to consider who, if a grant is to be presumed, are to be the supposed grantors and grantee. The defendants’ counsel found themselves in considerable difficulties in this respect. I agree that the Court is endowed with a great power of imagination for the purpose of supporting ancient user. But, in inferring a legal origin for such user, it cannot infer one which would involve illegality. That was laid down in Rochdale Canal Company v Radcliffe”.
After discussing that case and difficulties as to the grantee he continued (also at p 573):
“But a much greater difficulty arises as to the supposed grantors. The learned judge appears to have been of opinion that the owners of the soil of the private roads might release the surveyor from the restriction as to the letting of the herbage. But, as I have already pointed out, the restriction not being intended merely for their benefit, they had no power to waive it, and, if they did so, they did what they had no power to do, and what the Legislature forbids”.
53.
Hulley v Silversprings Bleaching and Dyeing Co Ltd [1922] 2 Ch 268 was concerned with a statutory prohibition on the pollution of rivers and watercourses, the Rivers Pollution Prevention Act 1876, which created criminal offences. A lower riparian owner sued the Silversprings company for nuisance. The fact that the plaintiff’s predecessors had acquiesced in pollution for twenty years was held to be no defence, because the plaintiff was not the only person affected by the pollution. There was a wider public interest. But Eve J saw the significance of the criminality of the pollution as being that it excluded the possibility of a lawful grant (p 282):
“The evidence on both sides satisfies me that the defendants have continually, and down to very recent dates in this year, been committing offences against the Act—in other words, that the user on which they rely as establishing the easement is a user contrary to statute. A lost grant cannot be presumed where such a grant would have been in contravention of a statute, and as title by prescription is founded upon the presumption of a grant, if no grant could lawfully have been made, no presumption of the kind can arise, and the claim must fail: Neaverson v Peterborough RDC”.
Apart from Hanning v Top Deck Travel Group Ltd (1993) 68 P & CR 14, the last case relied on by the respondent was Cargill v Gotts [1981] 1 WLR 441. In that case a farmer had acquired an easement to take water from a mill pond on his neighbour’s land. He had acquired this right by prescription before the relevant provisions of the Water Resources Act 1963 came into force on 1 July 1965, with the effect that it would be a criminal offence for the farmer to continue to take water without an official licence. Templeman LJ said at p 446,
“I conclude that every abstraction of water by the plaintiff from the mill pond after June 30, 1965, was illegal. It follows, in my judgment, that the plaintiff cannot rely on any abstraction of water carried out after June 30, 1965, in order to establish an easement by prescription. The court will not recognise an easement established by illegal activity”.
The last sentence of this quotation has often been cited, and it was referred to by Dillon LJ in Hanning’s case. After discussing the authorities Dillon LJ drew this conclusion (at p 20):
“I take all these cases to recognise what has always been the rule of the law; that an easement cannot be acquired by conduct which, at the time the conduct takes place, is prohibited by a public statute”.
Kennedy LJ (at p 23) also referred to Cargill v Gotts and reached a similar conclusion. These formulations of the principle will in almost every case produce the same result as is obtained by asking the question: Could the right claimed have been lawfully granted by deed? The canal company in Rochdale, the highway surveyor in Neaverson and the lower riparian owner (and his predecessors) in Hulley were not in a position to make a lawful grant because they had no power to authorise acts which affected not only their own private interests, but also wider public interests.
The present case is exceptional because of the unusual nature of the offence created by section 193(4) of the Law of Property Act 1925. It creates a criminal offence but it is, most unusually, an offence in respect of which the owner of the soil of the common has a dispensing power. It is common ground that that is the effect of the words “without lawful authority” in subsection (4). Moreover the landowner does not hold his dispensing power in any sort of fiduciary capacity. He is not bound to exercise it in the public interest. He can if he thinks fit exercise his dispensing power in his own private interest, by levying a charge for the grant of his authority. Miss Williamson QC (for the respondent) candidly agreed that from her client’s point of view the appeal is ultimately about money.
That extraordinary feature of the criminal liability created by section 193(4) was noted by the Court of Appeal in Hanning, since it was the ground on which the case had been decided (in favour of prescription) at first instance. But Dillon LJ equated the judge’s approach with that of the Court of Appeal (the so-called “public conscience” test) in Tinsley v Milligan [1992] Ch 310. Dillon LJ (who was giving judgment after this House had reserved judgment, but before it gave judgment in Tinsley v Milligan [1994] 1 AC 340) correctly anticipated the House’s disapproval of the “public conscience” test. He said at p 18:
“Parliament does not only enact statutory provisions in the public interest where the public conscience would be affronted if the provision were not made; there are very many more statutory provisions made for the public benefit where the public conscience is not stirred, but any restrictions or prohibitions in those provisions have to be observed.”
He then analysed some of the authorities which I have mentioned and reached the general conclusion set out above. Kennedy LJ (at p 23) did not regard this as an area in which the Court had any discretion. Sir Roger Parker agreed with both judgments.
Dillon LJ (at p 20) also cited a general statement by Lord Maugham in George Legge & Son Ltd v Wenlock Corporation [1938] AC 204, 222,
“There is, however, no case in the books in which repeated violation of the express terms of a modern statute passed in the public interest has been held to confer rights on the wrongdoer. Such a contention is indeed quite untenable.”
I do not consider that that wide proposition has any application here, since a statutory prohibition in respect of which a private citizen has an unfettered dispensing power, exercisable if he thinks fit for his own private purposes, cannot easily be described as enacted in the public interest.
My Lords, in my view this House should not readily conclude that the decision of the Court of Appeal in Hanning was mistaken, especially as it has been followed, not only by the Court of Appeal in this case, but also on other occasions. Nevertheless I am satisfied that the wide formulations of the principle by Templeman LJ in Cargill v Gotts and by the Court of Appeal in Hanning, although producing the right result in the generality of cases, are too wide in a case like the present. That is not to say that the residents of houses near Newtown Common did not commit a criminal offence (of a fairly venial nature) when they drove across the common to and from their houses. The principle of legal certainty requires the criminality or lawfulness of an act to be determined at the time when it takes place, and not with the advantage (or disadvantage) of hindsight. Nevertheless the prior authority of the owner of the common would have provided a complete defence to any criminal charge. In the ordinary case of prescription of a private right of way, the prior authority of the landowner (in the solemn form of a grant by deed) is presumed or inferred from long user, even though every act of user during the prescription period takes place without his actual prior authority and is a tortious (though not a criminal) act. I cannot see that any public interest would be served by holding that the absence of the landowner’s actual prior authority should produce a completely different result in cases where section 193(4) is in play.
I do not see this as reintroducing the “public conscience” test which this House disapproved in Tinsley v Milligan. It is merely a recognition that the maxim ex turpi causa must be applied as an instrument of public policy, and not in circumstances where it does not serve any public interest (see for instance National Coal Board v England [1954] AC 403, 419). In my opinion it is the landowner’s unfettered power of dispensing from criminal liability, exercisable at his own discretion and if he thinks fit for his own private profit, which is the key to the disposal of this appeal. Since a dispensing power of that sort is very unusual, it is unlikely to apply to many other cases of criminal illegality.
I would therefore allow this appeal.
BARONESS HALE OF RICHMOND
My Lords,
I agree that this appeal should be allowed for the reasons given by my noble and learned friend Lord Scott of Foscote, with which I understand that my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead and Lord Walker of Gestingthorpe also agree.