Easement Overview
Cases
Dwyer Nolan Developments Ltd v Kingscroft Developments Ltd
[1998] IEHC 125
Reported In: [1998] 7 JIC 3003, [1999] 1 ILRM 141, [2001] 4 JIC 0509, 2001 WJSC-HC 1579
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Kinlen
Firstly, we look at the contract which is dated the 7th January, 1994 in which the Plaintiff sold to the Defendant the lands described as: All That and Those part of the lands of Irishtown, Kilruddery Demesne east, Kilruddery Demesne west and Oldcourt in the County of Wicklow and more particularly delineated in red on the map “annexed to the agreement and transfer. The land is held in fee simple and was sold for £5,583,600”.
By a transfer dated the 6th July, 1995 the vendor (Dwyer Nolan Developments Limited) as the registered owner in consideration of the sum of £2,062,800 transferred to the purchaser (Kingscroft Developments Limited) the property for sale with the easements, rights and privileges specified in the Second Schedule thereto excepting and reserving onto the vendor the easements, right and privileges specified in the Third Schedule thereto. In the Second Schedule (dealing with the rights, easements and privileges of the purchaser as successors in title etc.) and the Third Schedule sets out the easements, rights and privileges accepted and reserved out of and over the property for sale to be for the benefit of an appurtenance to the retained property and every part thereof. The first paragraph of each schedule is practically the same except where necessary to adjust the position of the parties. The Second Schedule reads as follows:-
“1. At all times by day and by night with or without motorcars and motor lorries and all other manner of vehicles however propelled or drawn, laden or unladen to go pass and re-pass over and along all roadways and footpaths coloured yellow on the map attached hereto made over or at any time within twenty-one years from the date of this transfer laid over and above the retained property leading from and to the property for sale to and from the public road.”
The Third Schedule reads:-
“1. At all times by day and by night with or without motorcars and motor lorries and all other manner of vehicles howsoever propelled or drawn, laden or unladen to go pass and re-pass over and along all roadways and footpaths now laid over or at any time within twenty-one years from the date of this transfer laid over or along the property for sale leading to and from the retained property to and from the public road.”
At the time of all these agreements there were no roads at all in the area with which this Court is concerned. Basically on plans submitted to the local authority Roads 14 and 15 both ended at the boundary to the retained land. A subsequent application to “rejig” the plan allowed the purchaser to build houses and thus effectively block any access from Roads 14 and 15 to the retained lands.
The only roadway coloured yellow on the map attached to the transfer was the proposed southern cross route, The original planning permission is No. 407/93. Mr. Finnegan who appeared for the Plaintiff argued very forcibly that you must look at the agreement and the transfer and all surrounding circumstances. He argued that there was an express grant under the transfer and an express grant under the agreement and that if the Court held against him on either of those grounds that there was one by implication. There was a grant by way of necessity. He relied on the 2nd Edition of a Treatise on Deeds by Robert F. Norton p. 269 where Sutton J. was quoted as saying:-
“I understand a reservation in its technical sense to be the re-grant out of the subject matter conveyed of something not previously existing, as a rent or an easement. The retention by the grantor of something already existing in the subject matter, as mines and the right to work them, is an exception.” ( Jones -v- Consolidated Anthracite Collieries Limited, [1916] 1 K.B. 123 at p. 135).
Roads 14 and 15 were not existing at the time of the agreement or transfer. Mr. Finnegan also relied on Wylie’s Irish Land Law, 2nd Ed., at paragraph 6.058 which is cited with approval in the unreported judgment of Keane J. in Eily Doolan -v- Peter Murray, Elaine Murray, Joan Murray-Cheevers. Bahgat Aziz and Dun Laoghaire Corporation. delivered the 21st day of December, 1993 in Volume 2 of the 1994 unreported cases at p. 000414 and the quotation is at 000444. The quotation from Wylie is as follows:-
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the particular conveyance. In such questions of construction two principles are most relevant, namely, that a grant is in general construed against the grantor and that a man may not derogate from its grant. The first principle means that, in cases of doubt (e.g. over the exact scope of the easement or profit) a grant of an easement or profit will be construed against the grantor in favour of the grantee whereas a reservation, being treated as a re-grant by the grantee, will be construed against him in favour of the grantor.”
In the judgment of Keane J., (in the following paragraph of the judgment at p. 000444), the word “grantee” is incorrect and should obviously be “grantor”. Keane J. continues:-
“It is also clear that, in considering the extent of the grant, the Court must have regard to all the surrounding circumstances ( Cannon -v- Villiers, (1878) 8 Ch.D. 415).”
Mr. Finnegan argues very forcibly that the reservation of a right of way in favour of the Plaintiff is at law the grant of that right of way and will be construed against the Defendant. The authorities cited are to support the proposition that a re-grant should be construed against the re-grantee. He referred the Court to Nickerson -v- Barraclough & Ors., [1981] 2 All E.R. 369 at pp. 380-381. He also referred to the Irish case of Maguire -v- Brown, [1921] 1 I.R. 148. Basically the Court must look at the actual agreement or intention of the parties at the time of the severance of the property. He then argues that under paragraph 3 of the Schedule to the transfer, he has the right to construct drains and sewers. It does not expressly confer upon him a right of way. He argued that the map of Road 14 was crossing into his client’s land and he underlines the wording of the clause of the “proposed roads”.
In the special conditions in the contract of sale dated the 7th January, 1994 at para. 10, it is provided inter alia:-
“The said lands have been sold to the purchaser subject to the easements, rights and privileges in favour of the vendor as follows:-
(a) The right to pass and re-pass at all times over the proposed estate roads and footpaths.”
He argues that one must look at the map showing the proposed estate roads going up to and indeed crossing into the retained lands. There is no definition of estate roads. However, it is reasonable to assume that with the position of the word “proposed” they must be roads and footpaths mentioned in the plan. He argued that the merger of the contract with the transfer and the attitude of the Courts, both at common law and at equity. Under Condition 48 of the contract for sale with the heading “Non-Merger” it was provided as follows:-
“Notwithstanding the delivery of the assurance of the subject property to the purchaser on foot of the sale, all conditions designed to survive completion of the sale and all warranties in the condition is contained which shall not have been implemented by the said assurance and which shall be capable of continuing or taking effect after such completion shall endure and remain in full force and effect.”
Wylie takes the view that:-
“This is a very wide provision which should forestall most, if not all, arguments that a party cannot invoke the contract after completion.” (Para. ???2403??? 2nd Ed. Wylie’s Irish Conveyancing Law).
If the Court holds that the contract survives it is then necessary to look briefly at the nature of that right. It is dealt with in Gale (as cited) at p. 76 under the heading “Actual Agreement” where it says:-
“It appears that an agreement made for valuable consideration for the grant of an easement, or to the effect that some easement shall be exercisable, create in equity a valid easement which can be exercised against the servient party and his successors in title, not being a purchaser for value without notice.””
He then urges the Court that he has in fact a full right of way under the contract and transfer and secondly, that the agreement confers on his client the full right of way albeit in equity only. He urges that it is a specific easement. It relates to the contract and the contract map. It relates to Road 14 and the access to the site owned by him as shown on the map.
The third basis on which a grant can arise is a grant implied by circumstances. Basically, both parties were house developers and builders and the map shows the land laid out as the housing estate. The clauses deal with development. The planning permission basically required the retained land to be open space. The Defendant knew that that condition was in and knew that the Plaintiff had appealed it and knew the reason for appealing it. So therefore the Defendant knew of the Plaintiffs intention to develop the land. Mr. Finnegan then argued in favour of an implied grant on the basis of a common intention that both parties would develop. Finally, he argued on the basis of a grant by way on necessity. The Nickerson case discussed the basis of the doctrine as to whether it was a matter of public policy that the lands should never be left without an access, or it was merely a circumstance which under the ordinary rules the Court would imply a grant. The Nickerson case decided that it is not based upon public policy but on the implied intention of the parties. In the 2nd Edition of Norton p. 287 it is stated that:-
“A right of way of necessity passes as incident to the grant (i.e. without any express words), for without it he cannot derive any benefit from the grant. So it is where he grants the land and reserves the close to himself.”
Mr. Finnegan argues that there is an implied re-grant to his clients when he effectively cuts himself off. He argues that the law in the United Kingdom has always differed from that in Ireland. In the U.K., the quality of grant by way of necessity should be that which is sufficient to satisfy the use to which the dominant tenement is put at the date the grant arises. In other words, if I have a field I get a right of way appropriate to the field and no more. However, the law in Ireland has always been different from that. The Court refers to the excellent text by Peter Bland on “The Law of Easements and Profits à Prendre”, 1997 Edition at p. 225 para. 12-20:-
“Once a way of necessity has been established the Court must determine the nature and extent of the right of way. The servient owner may wish to restrict the right to foot passage only, whereas the dominant owner may wish to secure vehicular access. There is a divergence between Irish and English law on the extent of a way of necessity, which has been considered earlier in the context of rights of way. In England it is settled that the extent of the right is limited reasonably necessary at the time of the grant to the circumstances prevailing at the time of the grant, whereas the Irish High Court has held that the extent of an easement of necessity can include a user in excess of that which had been enjoyed prior to the grant of the dominant tenement. In Maguire -v- Brown, [1921] 1 I.R. 148, it was held that the permitted user extends to that which is suitable to the business which the dominant owner might require to be carried out upon the premises”.
Mr. Finnegan argues that the Defendant knew the nature of the site and the purposes of the Plaintiff and what it was clear would be required. It must be a right of way of full and sufficient amplitude to fulfil the intention of the parties at the time of the transfer of the land and then he argues you cannot grant a man something and then prevent him from enjoying it. He argues that, generally speaking, a derogation from a grant will result from a physical interference which prevents the enjoyment of that grant. It is however not necessary that the interference should be physical and he relies on Gale (op.cit) at p. 101 where he is quoting from Parker J. in Browne -v- Flower, [1911] 1 Ch. 219.Parker J. was referring to the rule in Wheeldon -v- Burrows, (1879) 12 Ch. D. 31 and then proceeds:-
Thus, if the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.””
This can readily be understood in physical terms. However, Gale refers at p. 102 to the case of Harmer -v- Jumbil (Nigeria) Tin Areas Limited, [1921] 1 Ch. 200 in which Lounger L.J. (as p. 225):-
“Described the rule against derogation from grant as “a principle which merely embodies in a legal maxim a rule of common honesty1.””
It was established that the application of the rule is not confined to physical interference with the land granted. Land was leased with the express purpose that it should be used for the purposes of an explosives magazine and further land was held under a tenancy agreement which permitted the erection thereon of a shed for packing explosives. Subsequently adjoining land was leased to the Defendant company by a lessor who was the successor in title of both the grantor of the lease of the site of the explosives magazine and the grantor of the tenancy of the land on which the shed was sited. The Defendant proposed to erect buildings which would have occasioned the withdrawal of the Plaintiffs licence for the magazine and packing shed under the Explosives Act, 1875.
Mr. Finnegan argued that his clients had access under the planning permission. Once they had completed the purchase of all the phases of the Plaintiffs lands, the Defendant went and changed the planning. The Defendant then built in accordance with the new planning and had built houses across the area where the Plaintiff was entitled to access.
However, he concedes that the Defendant has left a gap through which the Plaintiff may be allowed in if compelled by this Court. There is physical interference by the construction of the houses. The difference is that the sole surviving means of access is across land designated as open space under the planning permission upon which the Defendant has acted. He argues that it is highly unlikely that a road would be permitted across a reserved open space. The result is that his client is left to his land which is of no commercial value. He concedes that if he got a road with planning permission there is then no damage whatsoever to the value of his site and he would be as happy as he would have been had the Defendant complied with its obligations. If he does not get a road through the sole remaining means of access with planning permission then he has a worthless site. He is not looking for damages. He wants that for which he contracted. He argues that in relation to non-physical interference that just as the servient owner so conducted himself so as to prevent an explosives licence continuing hereby applying for planning permission without making provision for the Plaintiff well knowing that he should. The Defendant has equally destroyed the Plaintiffs land. He argues that there is really only one case in which the impact of the planning code on rights of way is dealt with, that is in the judgment of Keane J. It is very long and complex and to which reference has already been made. That case was decided on the basis of negligent mis-statement even though it was a voluntary disposition to the purchaser.
Mr. Finnegan then produced evidence that included proof that the map attached to the contract was signed on behalf of the Plaintiff by Mr. Dwyer and by Mr. Gallagher ultimately on behalf of the Defendant. The open space is owned by the Defendant. The Defendant would not co-operate with the Plaintiff to get an alternative access through this, site (which is presently a wooded field).
Mr. McGonigal’s submission was based upon the fact that there is no grant of a right of way contained in the document and that one must look at conditions, prevailing at the time the land appears to become land-locked. It is not open to this Court or any Court to say that there is a way of necessity which will enable the lands to be developed either as a housing estate or as an industrial estate. He states that the real issue in this case is whether the Plaintiff has properly reserved to himself the right of way which he is now claiming. The vendor could have reserved a right of way by express reservation. He did not do so and cannot therefore now claim that he is entitled to it as a result of implication or necessity. The Court cannot give him something which is not reserved. The Court cannot rewrite this contract or rewrite this transfer to facilitate the Plaintiff. If he wanted to do that it was for himself to do it. It is not for the Court to do it.
He argues that where you are effectively severing part of your land and trying to reserve something over it, if you do not do it expressly the vendor has no reservation so that you are then looking at a case where you have a development on the one side and retained land on the other which is land-locked. The Court is being asked to create a right of way which has not been created and to get the purchaser to do something which he was not obliged to do. He argues that the contract that was signed was for undeveloped land and it was so acknowledged it would be undeveloped in the contract. Secondly, although it was signed with the benefit of planning permission, it was not signed subject to planning permission. Thirdly, at the time that the Third Schedule, Paragraph 1, was put in there were no roads laid. The roads we are talking about is roads “to be laid”. He accepted Mr. Finnegan’s explanation in relation to the twenty-one years (to avoid offending against perpetuities). He stresses the point that all of the roads which were to be the subject of that clause had to be laid in the future. There were no roads laid. The easiest thing would be for the vendor to have retained the right of way to the retained lands from the southern cross road. There was no obligation on the purchaser to retain the layout in the planning permission. He could apply to alter it and he did. There were no existing rights. The right created in this contract is a future right. There was nothing there beforehand.
There is no attempt in the transfer to make the development of the land subject to the planning permission which had been obtained. There was no obligation on the Defendant to build Road No. 14 in the way in which it had been laid out with the right of way the Defendant is seeking. He argues that the only document which the Court should consider is the transfer.
There is no attempt in the transfer to make the development of the land subject to the planning permission which had been obtained. He quotes from the 3rd Edition of Wylie and particularly paragraph 6.058 p. 375 that says:-
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the particular conveyance. In such questions of construction two principles are most relevant, namely that a grant is in general construed against the grantor and that a man may not derogate from his grant. The first principle means that in cases of doubt…..a grant of an easement or profit will be construed against the grantor in favour of the grantee, whereas a reservation, being treated as a re-grant of the grantee will be construed against him in favour of the grantor. The underlying philosophy is that the person who is in a position to dictate the terms of a transaction, by making the grant, cannot complain if a dispute subsequently occurs and he is not given the benefit of the doubt.” (emphasis added)
At 6.059 it goes on:-
“As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land. In this respect the rights are similar to restrictive covenants though it must be emphasised, the principle has nothing to do with the law relating to such covenants. On the other hand, the principle is not confined to the area of easements and profits and may create rights which do not conform strictly with the requirements of easements and profits”.
He refers to a very important decision, already cited, in Donal -v- Murray and then he quotes and, I have already cited, Cannon -v- Villiers. He argues that there is merger. He further argues that in circumstances which existed at the time in those documents, there could be no right of way at all because at that stage, the open space was reserved as open space. I f one tries to transfer the contract to a date beyond February, 1994 one is supplying the interpretation that did not exist at the time it was signed. Further cases on which he relies are The Corporation of London -v- Riggs, (1880) Ch.D. 798 and Browne -v- Maguire, [1922] 1 I.R. 23.
The Corporation of London -v- Riggs is an interesting case in which the vendor got rid of all the lands save a piece of agricultural land which was entirely surrounded by the lands conveyed but there was no means of access, expressed or implied. The land retained was used for agricultural purposes. The Defendant built tea rooms on the part retained. Lord Justice Jessel M.R., after observing that the point did not appear to be covered by authority, overruled the Demurrer on the ground that a way of necessity must be limited by the necessity at the time of the grant.
“The object of implying the re-grant, as stated by the older judges, was that if you did not give the owner of the reserved close some right of way or other, he could neither use nor occupy the reserved close nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is…..If you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes: that is – as in the case I have before me – a man who reserves 2 acres of arable land in the middle of a large piece of land is to be entitled to cover the reserved land with houses and call on his grantee to allow him to make a wide metalled road up to it. I do not think that is a fair meaning of a way of necessity: I think it must be limited by the necessity at the time of the grant”.
Maguire -v- Browne, [1921] 1 I.R. 148 is an interesting case. It apparently got to the House of Lords but in all the text books it is inserted as a Court of Appeal decision:-
“The Defendant’s right to use the pass as a way of necessity was limited to such a use as was suitable or necessary for the enjoyment of the moat in the condition in which it was at the date of the original severance of the lands; and that the defendant was accordingly not entitled to use the pass for the purposes of carting felled timber with horses and carts”.
The Court was then referred to the unreported decision of Barron J. in Connell -v- O’Malley in which judgment was delivered on 20th July, 1983. This is a complicated case which basically says that you cannot derogate from the grant. The Court was also referred to Donnelly -v- Adams, [1905]. 1 I.R. 154 and McDonagh -v- Mulholland, [ 1931 ] I.R. 110 which is a Supreme Court decision which considered and distinguished Donnelly -v- Adams. Mr. Finnegan refers again to the modern text book by Mr. Bland and argues that The London Corporation -v- Riggs case is the law in England and that the law in Ireland is as laid out in Maguire -v- Browne. It was appealed to the House of Lords. It was upheld on a technical point. The only reported judgment is the Irish Court of Appeal. It is to the effect that you look at all the circumstances and not just that the use of the lands. I refer again to Mr. Bland at para. 12.17:-
“Ways of necessity do not arise often, as it would be quite inept for a conveyancer to neglect to provide for access. But mistakes happen and are rectified by the implication of a right of way”.
Mr. Finnegan does not accept that the right of way is restricted to agricultural purposes. The right of way of necessity is now only a category of implied easements.
This is land which was always to be used for developments in the minds of both parties. The intention to apply for permission to develop it was disclosed to the defendants in the planning documents. This evidence is uncontroverted. The retained land was zoned industrial. Mr. Dwyer gave them the decision of Bray U.D.C. and the notice of appeal against that decision which set out the intention to develop these lands. You look at what each of the parties knew and you look at all the contract terms about all the development conditions relating to those and you look at the area itself. These were not two farmers. These were builders. Both knew what they were at. It was so obvious that this was development land. It is clear that now the question of necessity has been brought in under the umbrella of implied easement and therefore you must look at all the circumstances. These circumstances include the fact that it was a builder/purchaser and a builder/vendor. Maps available showed houses and roads running up to the land and that the Defendants, having been given a clear statement in one of the most important documents he had been looking at before signing the contract which concerned itself in many conditions with planning permission. The statement that the vendors proposed is that the retained lands are used for the purpose of an application for permission for industrial use or such other use as they may apply for or are granted. Everyone knew it was development lands. To quote Mr. Bland again at p.225, para 12-20:-
“…..An easement of necessity can include a user in excess of that which had been enjoyed prior to the grant of the dominant tenement. In Maguire -v- Browne, it was held that the permitted user extends to that which is suitable to the business which the dominant owner might require to be carried out upon the premises.”
It is suggested that if two builders do a deal over a piece of land, it would be unrealistic to suggest that one does not know what either might do with the land. To suggest otherwise is to live in a world of unreality.
In view of the well researched and well argued contentions of both Mr. Finnegan and Mr. McGonigal the Court reserved its judgment.
The Court has decided that, in the particular circumstances of this case, and having regard to the divergence of English and Irish Jurisprudence as illustrated by Mr. Bland’s textbook, the Plaintiff was and is entitled to a right of way to his land locked property.
It seems to the Court that if both parties applied to the local authority to provide access through the reserved woodland they might resolve this issue. The area for industrial development will bring work and wealth but if sterile will be useless.
The Court proposes to adjourn this matter for six months to enable the problem to be resolved. If this solution is not achieved the Court would wish to be addressed on alternative orders in view of the Court’s findings.
CSJKJ6.SAM
2001 WJSC-HC 1579
THE HIGH COURT
No. 12470P/1997
DWYER NOLAN DEVELOPMENTS LTD v. KINGSCROFT DEVELOPMENTS LTD
DWYER NOLAN DEVELOPMENTS LIMITED
-v-
KINGSCROFT DEVELOPMENTS LIMITED.
Citations:
DWYER NOLAN DEVELOPMENTS LTD V KINGSCROFT DEVELOPMENTS LTD 1991 ILRM 141
5th Apr 2001This Court has already determined the issues in these proceedings andhas given judgment on the 30th July, 1998 and that judgment has beenreported in the Irish Law Report Monthly, 1999 1 ILRMat page 141. These proceedings arise out of development of lands in theKildroddery Estate. The Court has held and will make a declaration tothat effect that there was and is a right of way upon the lands on whichhouses are now built into the property of the Plaintiff which is nowland locked. Initially there were two spaces which could be used as aroad into the landlocked area. One was to continue the road known asRoad 14 and also to make and entrance from Road 15. However, in thecourse of developments there was an application to the local authorityto rejig the layout of the houses and the effect was that Road 15 waseffectively closed and there is no space or place for a road to proceed.In other words as appears in the Law Report at page 149 permission wasas follows:-
“Mr. Finnegan argued that his client had access under theplanning permission. Once it had completed the purchase of all thephases of the Plaintiffs lands the Defendant went and changed theplanning. The Defendant then built in accordance with the new planningand had built houses across the area where the Plaintiff was entitled toaccess…. The result is that his client is left with his landwhich is of no commercial value. He concedes that if he got a road withplanning permission there is then no damage whatsoever to the value ofhis site and he would be as happy as he would have been had theDefendant complied with his obligations. If he does not get a roadthrough the sole remaining means of access with planning permission,then he has a worthless site. He is not looking fordamages.”
At page 150 1 state:-
“The open space is owned by the Defendant, the Defendant would notco-operate with the Plaintiff to get an alternative access through thissite which is presently a wooded field. It appeared to the Court at thetime of the initial judgment that with co-operation between the partiesit would be possible to get a road in, extending Road 14 into thePlaintiffs land. However, this would require co-operation between theparties which blatantly has not happened. An application was made inrespect of the road which would have gone to the area of the Bray UDC.However, both parties should have made joint application showing theproposed road. As co-operation did not exist there was only one planningapplication which went to An Bord Pleanala and it was basically refused.The Court took the opportunity to visit the site. There is no doubt thatRoad 15 is effectively and totally blocked. Road 14 in conjunction withRoad 15, a series of houses the nearest one to the area being number151. Then there is a considerable portion of land nearly half the gardenwall in number 151 and going in the general direction of the Plaintiffsland. Without being an expert it is quite obvious that Road 14 could beextended. At the moment it is blocked by a wooden fence which was fairlyeasily scaled. Then you get into a rough area of wild grass with twonests of pheasants it becomes an angle of wide fencing ends at the backof the wall beside house number 151. There is a gap there and there is aclearly defined footpath from there through extremely rough terrain witha great deal of undergrowth. The Court is still of the opinion that withgoodwill on both sides this problem could easily be solved with properconsultants and a joint application to the two local authorities. Atthis late stage the Defendant is prepared to grant the declarationsought in the Statement of Claim, although during the trial he wasopposed to the whole idea and in fact denied the existence of a right ofway. The Court will accordingly make that declaration set out in thedocument handed into Court but it does not end there. The Plaintiff nowdoesn’t want the right of way, though Mr. Finnegan was very insistent onit, but now the Plaintiff wants money, he wants compensation.The behaviour of the Defendant, despite the clear statement of Mr.Finnegan S.C. that his client did not want compensation in rejigging thehousing set out, thereby effectively blocking one entrance into thePlaintiffs lands and possibly effectively blocking the Plaintiff havingaccess of Road 14 is regrettable. The Court does direct the issue ofdamages should be addressed by the Court as to the date on which thedamages should be assessed and the nature of the damages and as towhether in fact the land is landlocked. It seems to me on a casualobservation this may not be so and having regard to the devaluation ofthe land and injurious affection this will require a full hearing,including argument as to the date on which damages should be ascertainedand the interest payable thereon. These are all issues to be tried as aseparate issue in the High Court. It is not necessary for myself to bethe presiding Judge but the issue raised with proceedings about adeclaration has been determined and the Court is ordering a declaration.The only issue outstanding is the question of damages. I feel that withgoodwill on both sides that it could still have been addressed inproviding access and getting permission for a full development. However,this is a matter on which the Court will have to consider when it isassessing damages under various headings. There is a third alternativeand that is, that the Defendant should buy out the Plaintiffs land. Itis not for the Court to try and force a solution on any of the partiesbut I purpose to adjourn these proceedings and it may be necessary (andthe Court will hear Counsel) to have pleadings or at least theparticulars provided before the matter can be re-listed if for onereason or another I may not be available the matter can of course betaken up by any other Judge of the High Court. However, it is importantthat this matter be expedited and the Court will urge both parties totry and co-operate, which ultimately this is going to cause more aggroand will certainly be a costly venture. I will reserved the question ofcosts.”
Zopitar Ltd v Jacob
[2017] IECA 183
Reported In: [2017] 6 JIC 2004, [2018] 1 IR 657
Jurisdiction: Ireland
Court: Court of Appeal (Ireland)
Judge: Mr. Justice Gerard Hogan
The concept of nec precario
41
The essence of the appellant’s claim is that a right of way was acquired by prescription by reason of twenty years (or more) uninterrupted user under s. 2 of the Prescription Act 1832 (‘the 1832 Act’) (as applied to Ireland by the Prescription (Ireland) Act 1858) between the date of the construction of the de Valera road in 1982 and 2011. It is clear from the authorities that in order to establish such a prescriptive claim under the 1832 Act, the user must be ‘as of right’ and that this requirement imports the traditional concepts of nec vi, nec clam and nec precario: see, e.g., Gardner v Hodgson’s Kingston Brewery Co Ltd [1903] A.C. 229, 239, per Lord Lindley and R. v Oxfordshire C.C., ex p. Sunningwell Parish Council [2000] 1 A.C. 335, 353per Lord Hoffmann.
42
For completeness I should observe that although the 1832 Act is no more – it having been repealed by s. 8(3) of the Land Law and Conveyancing Law Reform Act 2009 (‘the 2009 Act’) – since the events which are the subject of the present litigation pre-date such repeal, the provisions of s. 2 of the 1832 Act continue to govern the present case.
43
It is fortunately not necessary for present purposes to examine the many obscure and arcane features of the 1832 Act. Few tears will have been shed upon its demise, as its repeal by the 2009 Act removed from the statute-book what the English Law Reform Committee had previously described as ‘one of the worst drafted statutes’: see 14th Report, Acquisition of Easements and Profits by Prescription (Cmd. 3109)(1966) at 40.
44
Section 2 of the 1832 Act speaks of the person ‘claiming right’ thereunder and s. 5 – which deals with the form of pleadings in prescription cases – refers to user as ‘of right’. In one of the early post-1832 Act decisions on the point, Bright v. Walker (1834) 1 C.M. & R. 211, 219, Parke B. said that these provisions referred to persons using the servient tenement ( i.e., the land the user of which was said to give rise to the right of way):‘openly and in the manner that a person rightfully entitled would have used it’ and not by stealth or by licence. This understanding of the effect of the 1832 Act was confirmed by Lord Lindley in Gardner v. Hodgson’s Kingston Brewery Ltd. [1903] A.C. 229, 239 when he said that the words ‘as of right’ in the 1832 Act were intended ‘to have the same meaning as the older expression, nec vi, nec clam, nec precario’. In the same case Lord Halsbury L.C. said ( [1903] A.C. 229, 231):
‘That right means a right to exercise the right claimed against the will of the person over whose property it is sought to be exercised. It does not and cannot mean an user enjoyed from time to time at the will and pleasure of the owner of the property over which the user is sought.’
45
It is accordingly clear from these authorities that in order to establish such a prescriptive claim under the 1832 Act, the user must be ‘as of right’ and that this accordingly imports the traditional concepts of nec vi, nec clam and nec precario. There is, of course, no question of force ( vis) or secrecy ( clam) in the user in the present case. The real question is whether the user amounted to precario.
46
The concept of nec vi, nec clam, nec precario (‘without force, without stealth and without permission’) is a quintessentially Roman law concept which, it is now generally accepted, was taken over by Bracton in his four books of De Legibus et Consuetudinibus Angliae (‘On the laws and customs of England’) which were published some time around 1235: see R. (Beresford) v. Sunderland C.C. [2004] UKHL 60, [2004] 1 A.C. 289per Lord Rodger and London Tara Hotel Ltd. v. Kensington Close Hotel Ltd. [2011] EWCA Civ. 1356, [2012] 2 All ER 554, per Lord Neuberger M.R. This entire concept of precario had been well explained by Bracton in his Fourth Book (as quoted in Gale on Easements (2012)(19th.ed.) at 260):
‘Si autem seisina precaria fuerit et de gratia, quae tempestive revocari posit et intempestive, ex longo tempore no acquiritur jus’ (‘If, however, seisin shall have been from mere favour ( precario) and from grace ( de gratia), which may revoked in season and out of season, no right is acquired from a long period of time.’)
47
Part of the difficulties which beset this entire area of the law is that, the law of probate aside, this is one of the comparatively rare examples of where the common law has borrowed promiscuously from Roman law concepts. Unlike, however, the position which obtained in Roman law and which still obtains in modern civilian systems, there is no consistent common law theory of prescription which can always fully accommodate itself to this wholesale adaptation of Roman law concepts.
48
All of this was highlighted in the judgment of Lord Rodger – who was himself a Roman law scholar of great distinction – in R. (Beresford) v. Sunderland City Council [2003] UKHL 60, [2004] 1 A.C. 289. In this case the question was whether for the purposes of particular UK legislation the public had acquired the entitlement to use a particular recreational area as ‘of right’. As Lord Rodger explained:
‘….From at least 1977 members of the public have used an area near the town centre – referred to as ‘the Sports Arena’ – for recreation. In truth it is just an open, flat area of grass of some 13 acres which the Washington Development Corporation laid out in about 1974. In the Washington New Town Plan 1973 the land was identified as ‘parkland/open space/playing field’. In 1977, around the time of the Queen’s Silver Jubilee visit to the ground, the Development Corporation constructed wooden seats along much of the perimeter. A hard-surface cricket pitch was laid out in 1979. For the rest, the public bodies who have owned the land – most recently, the council – have done little except keep the grass cut. Local people have used the ground in their different ways. Toddlers have played there, children of all ages have kicked a ball around or played cricket and other games, a Sunday league football team have used it for their matches. Many have simply treated it as a place to picnic, socialise, take their ease in the sunshine or walk the dog. …if the inhabitants of any locality have engaged in lawful sports and pastimes nec vi nec clam nec precario for at least 20 years, they have engaged in them “as of right” and the land can be registered as a town or village green in terms of the 1965 Act.
It is not suggested that members of the public used the Sports Arena vi, by force: the owners did not try to stop them and so there was no question of them overcoming any resistance on the owners’ part. Equally, the public were not enjoying themselves clam, by stealth: on the contrary, they used the land openly and the owners knew what was going on. The Council concluded, however, that the local residents and others enjoying the land had been doing so precario, by virtue of the licence of the owners of the land. Admittedly, there was nothing to show that the owners had given any express permission or licence to the public. But the facts as a whole, and cutting the grass and constructing the seating in particular, showed that the owners had actively encouraged the use of the area for recreation and so had impliedly granted a licence, or given permission, for it to be used in that way. Use of the land by virtue of this licence or permission could not constitute use ‘as of right’ for purposes of section 22(1) of the 1965 Act.
In Roman law “precarium” is the name given to a gratuitous grant of enjoyment of land or goods which is revocable at will. The arrangement is informal and is based on the grantor’s goodwill, whether more or less enthusiastic. But, however informal, the arrangement does involve a positive act of granting the use of the property, as opposed to mere acquiescence in its use. The name suggests, and the Digest texts indicate, that in Roman law the paradigm case is of a grant in response to a request. The arrangement lasts for only so long as the grantor allows, tamdiu quamdiu is qui concessit patitur: D.43.26.1 pr, Ulpian 1 institutionum. The concept of precarium crops up in different areas of Roman law, but importantly in connexion with interdicts. The praetor protects someone from interference if he has taken possession of land, or begun carrying out work, nec vi nec clam nec precario.
In de legibus et consuetudinibus Angliae Bracton took over the noun precarium and its congeners from the vocabulary of Roman law and used them in a number of contexts, but always with reference to a gratuitous grant which is revocable at any time at the grantor’s pleasure. See, for instance, lib 2 ff 52 and 52b. In lib 4 f 221 Bracton discusses the acquisition of easements by use for some time nec vi nec clam nec precario – the last being, he says, the same as de gratia, of grace. Under reference to the second of these passages, in speaking of the use of a watercourse in Burrows v Lang [1901] 2 Ch. 502, 510, Farwell J. asked “What is precarious?” and answered his own question: “That which depends, not on right, but on the will of another person.” Some years before, in Sturges v Bridgman (1879) 11 Ch. D. 852, 863, Thesiger L.J. had indicated that, if a man “temporarily licenses” his neighbour’s enjoyment, that enjoyment is precario in terms of the civil law phrase “nec vi, nec clam, nec precario.” It is important to notice that, in this regard, English law distinguishes between an owner who grants such a temporary licence or permission for an activity and an owner who merely acquiesces in it: Gale on Easements (17th. ed. 2002), para 4-83. Someone who acts with the mere acquiescence of the owner does so nec precario.
The council were, accordingly, entitled to refuse Mrs Beresford’s application for registration of the area as a town or village green only if those who used the Sports Arena did so by the revocable will of the owners of the land, that is to say, by virtue of a licence which the owners had granted in their favour and could have withdrawn at any time. The grant of such a licence to those using the ground must have comprised a positive act by the owners, as opposed to their mere acquiescence in the use being made of the land. Prudent landowners will often indicate expressly, by a notice in appropriate terms or in some other way, when they are licensing or permitting the public to use their land during their pleasure only. But I see no reason in principle why, in an appropriate case, the implied grant of such a revocable licence or permission could not be established by inference from the relevant circumstances.
In the present case the owners did not expressly license the use of the land by the public. The Council rely on two circumstances, however, as justifying the inference that those who used the Sports Arena did so precario, merely by licence from the owners of the land. The first is that the owners cut the grass. But that is at least equally explicable on the basis that the owners were concerned, as many owners would be, for the appearance of such a large and prominent area of open land in the heart of the town. Like charity, care of amenities begins at home. The second matter relied on is the, now rather dilapidated, wooden seating along the perimeter. Whatever may have been its original purpose, the continued existence of the seating is consistent with the owners of the land having acquiesced, perhaps quite happily, in people using the area for football or other games which their friends or relatives would wish, or feel obliged, to watch. To an extent the owners may thus have encouraged these activities. The mere fact that a landowner encourages an activity on his land does not indicate, however, that it takes place only by virtue of his revocable permission. In brief, neither cutting the grass nor constructing and leaving the seating in place justifies an inference that the owners of the Sports Arena positively granted a licence to local residents and others, who were then to be regarded as using the land by virtue of that licence, which the owners could withdraw at any time. In these circumstances I would conclude that local people used the land nec precario.’
49
It may be worth pointing out that in this passage Lord Rodger is using the term ‘licence’ to refer to a purely gratuitous user of the land, revocable at the pleasure of the owner, i.e., the use of the term ‘licence’ in this sense and context is really a reference to precarium.
50
There is, of course, no question of vis (force) or clam (stealth) so far as the present case is concerned. The fundamental question, therefore, is whether the factory premises were used for the purposes of a right of way openly and in the same manner that a person rightfully entitled to do so would have used it, as, in such circumstances, the claimant may be said to have been using it as of right within the meaning of s. 2 of the 1832 Act and not in the sense of precarium ( i.e., by virtue of the grace and favour of the landowner). Before applying that question to the facts, it may be useful to consider the decision of the English Court of Appeal in London Tara Hotel Ltd. v. Kensington Close Hotel [2011] EWCA Civ 1356, [2012] 2 All E.R. 554, as this is a case with some similarities to the present one.
The decision in London Tara Hotel
51
In London Tara Hotel a roadway linked two hotels and it was used continuously as a sort one way means of access as between the two hotels. The London Tara Hotel granted the Kensington Close Hotel a personal licence in 1973 to use the roadway from ‘year to year’ for the payment of £1. That licence expired in 1980 when the ownership of the Kensington Close Hotel changed. No licence was subsequently granted. The critical thing, however, is that coach drivers and others who used the London Tara part of the roadway to bring guests to the Kensington Close Hotel behaved as if they had the right to do so, even though everyone seemed to have forgotten the fact that given that the licence had actually lapsed upon the change of hotel ownership, they no longer had that right. As Lord Neuberger M.R. then observed ( [2012] 2 All E.R. 554, 562):
‘…..it seems to me that the use of the roadway by KCH and its predecessors cannot be said to have been precario, and therefore, subject to any other argument, as a result of more than twenty years’ such use, a prescriptive right of way arose…. On the facts of this case, this conclusion is reinforced by two further factors. First, there is the fact that the licence provided for a payment of £1 a year if demanded, and it is worth mentioning that this payment was specifically stated to be an acknowledgment that the use of the roadway was under the licence. There was no reason why Tara should not have protected its position as a landowner by enforcing its contractual right to this payment – even if only once every eighteen (or even nineteen) years. Secondly, given that the licence did not extend to coaches, Tara, as a reasonably vigilant landowner, could and should have appreciated that the terms of the licence were not even being adhered to on the ground.’
52
Pausing at this point, it may be observed that London Tara Hotel provides a good contemporary example of where the habitual use of a roadway for the purposes of access and ingress may, with time, ripen into a right of way acquired by prescription. There are nevertheless significant differences between the two cases of which the fact that the taxi drivers and coach drivers who used the London Tara roadway as a means of accessing the Kensington Close Hotel acted as if they had the unquestioned right to do so is perhaps the most significant.
53
Had anyone challenged this user on the part of Kensington Close Hotel in the 1980s or the 1990s and had, for example, questioned the hotel concierge as to the basis upon which they instructed taxis and coaches how to get to the hotel using this roadway, they would doubtless have been informed that by virtue of the contractual licence those accessing the hotel had the perfect right to use the roadway. It is true that this information would have been incorrect – since the licence had in strictness lapsed in 1980 – but what was critical is that the hotel users who accessed the roadway acted as if they had the right to do so. For various reasons which I propose presently to set out I do not think that this is true of the present case. But before doing so, it is next necessary to consider some of the other Irish cases – both pre- and post-1922 – which deal with the concept of precarium.
Some Irish authorities dealing with the concept of precario
54
An old Irish authority dealing with the concept of precarium is Barry v. Lowry (1877) 11 I.R. C.L. 483. The evidence in that case was that the defendant, Mr. Lowry, used an alleged right of way from 1833 to 1874 without interruption. A gate was put up in 1867. The plaintiff’s herdsman gave the key to a Mr. Buckley, telling him ‘here is a key for you to let in people wanting water’, and explaining that the gate was locked to prevent cattle from trespassing. Mr. Buckley gave the key in turn to Mr. Lowry, and Mr. Lowry made a key from it for himself and used this key without hindrance until 1874. Mr. Lowry claimed a right of way by prescription, and the servient owner contended that the use was not as of right because the gate was locked for at least six years. The conclusion of the old Irish Court of Exchequer was that the use was amounted to precario. Fitzgerald B. said ( (1877) 11 C.L.R.Ir. 483,486):
‘It is admitted that for six years of that period, between 1867 and 1874, the gates with which the way is claimed was kept locked by the plaintiff, so that no passage was possible otherwise than by use of a key directly or indirectly procured from the plaintiff. The key appears to have been left with some person in the employment of the plaintiff, who let persons wanting to draw water from the well past, on their application. The defendant appears to have got the use of a key during a part of the period of six years, but his evidence in no way counts as acquiescence in the locking up of the passage by the plaintiff, or his use of it being only through a key directly or indirectly obtained from him.
55
The judgment of Deasy B. is equally illustrative ( (1877) 11 I.C.L.R. 483, 486-487):
When once the landlord locked the gate, that was an interference with the enjoyment as of right. It was an assertion that he had a right to keep that gate locked, and to keep all parties out. The defendant should have thereupon disputed that right. Instead of that, he too, took a key of it from the landlord, that is, prima facie in all events, an acquiescence in the assertion of a right by the landlord, and the subsequent use by means of that key is evidence of a permissive occupation. If the defendant could show that he then asserted a right to pass through the gate to the well, and that the landlord gave his key in order to enable him to exercise that right, that would be different, but there was no evidence of that. It is, prima facie in all events, permission to use the way, and there was no evidence that while he passed through the gate by the use of the key given to him by the landlord to enable him to do so, he did so as of right.’ (emphasis supplied)
56
As Gilligan J. also observed, the concept of precarium was at the heart of the decision of the Supreme Court in Walsh v. Sligo County Council [2013] IESC 48, [2013] 4 I.R. 417, albeit that this decision was in the context of a public right of way. In that case the question was whether the continued usage by the public of the main road through the grounds of Lissadell House in Co. Sligo was evidence from which the existence of a public right of way might be inferred. There was also evidence that the gates to the main road were locked while a shoot was in progress.
57
The joint judgment of Fennelly, McKechnie and MacMenamin JJ. stressed that the use of the public road by the public at most amounted to precarium ( [2013] 4 I.R. 417, 447-448):
User by permission of the owner is not user as of right. At the same time, user without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis-à-vis his neighbours without being considered to be the exercise of a right…. The cases concerning toleration contain several indications that owners should not be constrained to be “churlish” and insist on their own property rights. It would be undesirable and inconsistent with the policy of good neighbourliness if the law was so ready to infer dedication of public rights of way from acts of openness and toleration that landowners were induced to act a fortress mentality. Bowen LJ, in a passage in his judgement in Blount v. Layard [1891] 2 Ch. 681, approved by Lord MacNaghten in Simpson v. Attorney General [1904] A.C. 476 at 493 and by Lord Atkinson in Folkestone Corporation v. Brockman, at page 369, proclaimed that: “… nothing worse can happen in a free country than to force people to be churlish about their rights for fear that their indulgence may be abused, and to drive them to prevent the enjoyment of things which, although they are matters of private property, naturally give pleasure to many others besides the owners, under the fear that their good nature may be misunderstood.”
Furthermore, Lord Dunedin at page 375 of the report in Folkestone said: “But suppose, on the other hand, you do know the origin of a road. Suppose it is the avenue to a private house, say, from the south. From that house there leads another avenue to the north which connects it to a public road different from that which the south avenue started. This is not a fancy case. The situation is a common one in many parts of the country. Would the mere fact that people could be found who had gone up one avenue and down the other – perhaps without actually calling at the house – raise the presumption that the owner had dedicated his private avenues as highways? The user would be naturally ascribed to good nature and toleration.”
In the same vein, Farwell J in Attorney General v. Antrobus [1905] 2 Ch. 188 at 199, in the context of a claim that there was a trust permitting public rights of access to Stonehenge, wrote of the “liberality with which landowners in this country have for years passed allowed visitors free access to objects of interest on their property …” he added, at page 199, that: “It would indeed be unfortunate if courts were to presume novel and unheard of trusts or statutes from acts of kindly courtesy, and thus drive landowners to close their gates in order to preserve their property.” On the other hand, where there is clear non contradictory evidence of excessive public user for a long time, the landowner will not easily resist the inference of dedication by proof of purely subjective and uncommunicated objection.’
58
When considering the claim to a public right of way over the main avenue, the Supreme Court also said as follows ( [2013] 4 I.R. 417, 461):
‘. … However, it is significant that the main gate was closed and locked at least on the occasion of shoots on the estate. This was accepted by the learned judge. Mr. Bernard Barton, Senior Counsel, gave evidence as a witness, that when he was attending Lissadell for a shoot in or about 1996 he found the gate of the main avenue was locked. There was a notice directing the public to use the Crushmore entrance. Mr. Barton vividly recalled it as it made him late for the shoot and he had friends travelling in a different car and no phone with him. This coincides with the evidence of Mr. Prins to the effect that he closed the main gate on occasion especially during the woodcock shoots and tree felling. These are acts of ownership inconsistent with the existence of a public right of way. The learned trial judge found it significant that Mr. Prins, when explaining these actions, did not suggest that the purpose was to prevent the public from entering onto the estate. That is not necessary. The very act of closing the gate showed that rights of ownership were being exercised.’
What was the nature of the user in the present case?
59
If, then, one applies these principles to the present case can it be said that the user of the access through the factory premises was otherwise than precarium? In my view, taking the evidence in the round, it points overwhelmingly to the existence of an admittedly consistent user which was nonetheless at all times no more than precarium. Several factors impel me to this conclusion.
60
First, there is no evidence to suggest that the McKinneys – or any one visiting them, whether lorry drivers, gardeners or public health nurses – regarded this access over the factory yard from the de Valera road as being anything other than gratuitous on the part of the factory owners. In particular, none of them behaved as if they believed they had the right so to traverse the lands. Had, for example, the factory owners ever sought to block such access this might well have been justly resented by the McKinneys and their visitors as not a very neighbourly act. Yet, at least prior to the running of any prescription period, it could scarcely be supposed that the McKinneys could have opposed this curtailment of access on the ground that they enjoyed a positive legal entitlement to cross the factory yard over and above any gratuitous act on the part of the factory owners.
61
The present case is accordingly different from a case such as Beresford where the fact that the Council had not only tolerated the playing of games etc., but had actually put in seating to enable members of the public to watch. It was these factors which led the House of Lords to the conclusion that the Council had granted members of the public something more than a purely revocable licence, so that their presence was nec precario.
62
Second, the balance of the evidence all suggests that the user in question was tolerated simply as an act of neighbourliness on the part of the factory which was, to some degree, reciprocal in that, as Gilligan J. found, factory employees sometimes used the Oatfield Bungalow driveway entrance on the Ramelton Road and then turned right into the factory premises. Adopting the words of Herbert J. in Orwell Park Management the nature of the user in the present case – whether it be, for example, the accessing of the factory premises by the drivers of the oil tankers or the use of the ‘ride on’ lawnmower by Mr. McCormack – all suggested a casualness which was dependent ‘for its continuance upon the tolerance and good nature’ of the factory owner and was not such as would have put that owner on notice that ‘an actual right to do these things was being asserted.’
63
It is true that Mr. O’Donnell, the factory health and safety officer, directed that a 5 mile an hour signs be placed facing the direction of the de Valera road on the paved road connecting the two properties. For my part, however, I would regard this item of evidence as best ambiguous and not one which necessarily compels the conclusion that this was an unequivocal acknowledgement that Ms. McKinney (or those visiting her) had a positive right to travel from the back of the bungalow through the factory premises and through to the de Valera road.
64
Third, the erection of the gates by the factory at the de Valera road entrance coupled with the fact that the gates were closed at night and at weekends cannot be regarded in the light of the comments of the Supreme Court in Walsh as anything other than the assertion of ownership rights in the respect of the factory, the yard and the factory entrance. As that Court made clear in that case, it is irrelevant in this context that there was no evidence that the object of this was to exclude the assertion of any right of way by the McKinneys: it was sufficient that the rights of ownership were thereby exercised. I appreciate, of course, that the right of way at issue in Walsh concerned an alleged public right of way and not a public right of way as in the present case. But the reasoning of the Supreme Court on this feature of Walsh nonetheless concerned the question of whether the user by the public of the main entrance into Lissadell House could amount to nec precario and the Court ruled decisively that the closure of the gates served to negative the claim that the user by the public was as of right.
65
Neither do I overlook in this context the fact that the McKinney family always possessed a set of master keys for the factory and the gate. But as Gilligan J. pointed out, these keys were either given to Mr. McKinney qua owner and director of the factory premises or, as in the later times, simply for reasons of ensuring access in the case of safety or emergency, in much the same way as householders frequently possess a spare set of keys for their neighbour’s property. No one would suggest, however, that the householder in that example would stand possessed of these keys as of right.
66
The evidence, moreover, shows that these keys were never used and that on a few occasions when the drivers of oil lorries found the de Valera gates locked, the McKinneys arranged to telephone the factory with a request to open them. Likewise, when Mr. McDonald found the factory gates locked, he asked for permission to have them opened to facilitate access to the McKinney garden. Just as in Barry v. Lowry, all of this is consistent simply with a user which is precario only and not as of right.
67
Fourth, the failure on the part of Ms. McKinney to assert a right of way at the time of the sale/purchase transfer in 1999 is also instructive. I appreciate that there may well have been issues regarding her general mental health, but there has been no suggestion to this Court that Gilligan J. was not entitled to find that she had the appropriate capacity to execute this agreement. In these circumstances, it is hard to see the share purchase agreement and the replies to requisition on title as anything other than a positive acknowledgement that no right of way was being asserted and a tacit acceptance that the user of the factory yard for access purposes was simply precario.
Is there an easement of necessity?
68
So far as an alleged easement of necessity is concerned, it is perhaps sufficient to say that an easement of necessity could generally only arise where the dominant tenement would otherwise be landlocked or otherwise unusable, which is simply not the case here as there was at all times access to Oatfield Bungalow from the Ramelton Road. There is no basis for implying an easement of necessity simply because the dominant tenement has access arrangements which might be thought to be less than perfect or because such an easement of necessity might be thought to be convenient for the occupants of Oatfield Bungalow.
Conclusions
69
Summing up, therefore, since I am of the view that the user in the present case was at all times precario, the defendant accordingly cannot establish that the user was as ‘of right’ within the meaning of s. 2 of the 1832 Act. Gilligan J. was accordingly correct to hold that the defendant had not established any right of way by prescription through the factory yard and premises in favour of Oatfield Bungalow.
70
It follows, therefore, that the defendant’s appeal must be dismissed.
Catherine Renée Connell v Coleman Porter
[2005] 3 IR 601, 1965 WJSC-SC 2635, [1972] 12 JIC 1803
Docket Number: [S.C. No. 27 of 1968]
Court: Supreme Court (Ireland)
I therefore turn to consider the second and sub-stantial ground of the appeal, i.e., the challenge to Mr. Justice Teevan’s finding that Nash’s Court is a highway. Apart from statute, no highway can be created except by the dedication, express or presumed, by the owner of land, of a right of passage over it to the public at large and the ameptance of that right by the public. When there is no direct evidence as to the intention of the owner, an animus dedicandi may be presumed either, from the fact of public user without interruption, or from the fact that the way has been maintained and repaired by the local authority.
Prior to 1852 where were conflicting opinions as to whether or not a cul-de-sac could be a highway as there was no thoroughfare. Lori Kenyon, C.J. In Rugby Charity Trustees v. Merryweather (1790) 11 East 375 n. was firmly of the view that a cul-de-saccould be a highway; so also was Lord Ellenborough in I. v. Lloyd (1808) 1 Camp 260. But Lord Mansfield in Woodyer v. Hadden ( (1813) 5 Taunt 125) doubted this, and he also did Abbot C.J. and Holyroyd J. in Wood v. Veal((1822) 5 B. & Ald. 454), while Best J. went so far as to say that the Rugby Charity Trustees case was a departure from the principles usually received in the law. But since the decision in Bateman v. Bluck (1852) 18 Q.B. 870, upholding Lord Kenyon’s view, it has not been questioned that a cul-de-sac can be a highway and that the want of a terminus ad quem is not essential to the legal existence of a public road. It has, however, been said that it is difficult (a) and very difficult (b) to presume dedication of a cul-de-sac by mere user. But expenditure of public money in repairing, cleansing or (a) Per Romer L.J. In Whitehouse v. Hugh (1906) 2 Ch 288 (b) Per Salter J. in **???query?????? v Sheffield Corporation (1927) 43 T.L.R. 222 lighting is an important consideration, and in such case the landowner who has permitted the expenditure cannot be heard to say that roadway on which he has allowed public money to be spent is a private road: per Farwell J., A.G. v. Antrobus (1905) 2 Ch. 188, at p.207. Coupled with evidence of user such expenditure is strong evidence from which dedication can be inferred. See also Vernon v. Vestry of St. James, Westminster (1880) 16 Ch. D. 449. Equally, the absence of repair by the public authority has been held to be admissible as a fact tending to show that it is not a public road: per Lord Denham, C.J. in Davies v. Stephens (1836) 7 C. & P. 570. The presumption of dedication is a question of fact to be decided by the jury or judge, as the case may be; and the question on this branch of the appeal is whether Teevan J’s. finding is warranted by the evidence.
The evidence of user, in this instance, if it existed in isolation, I would consider weak and insufficient; but when taken in conjunction with the evidence of expenditure, for various purposes, of pubilc monies on Nash’s Court a strong case is made out for the presumption of dedication.
Officials from the paving, cleansing and lighting departments of the Corporation gave evidence which indicated that, until about ten years ago when Dixon J. in White v. Porter (23rd March, 1956) 1 held that the evidence
evidence before him was wholly inadequate to establish that Nash’s Court was a public highway, the Corporations were treating Nash’s Court as a public highway.
Mr. O’Driscoll of the Paving Department produced a list of streets “in charge” which had been compiled about 30 years ago; Nash’s Court was listed there. The Corpor-ation’s measurement books were also produced and these showed that the Corporation had laid road concrete over an area of 194 sq. yds. in Nash’s Court in 1931. Mr. O’Brien of the Cleansing Department gave evidence that up to ten years ago the Cleansing Department both swept and cleansed Nash’s Court and removed the refuse from bins put out in the Court. Mr. McGinley, an engineer in the Lighting Department, proved that Nash’s Court was publicly lighted up to 10 years ago. Prior to 1938 the lighting – public lighting – was by gas lamp.
Thomas Horan, aged 74, remembers the Corporation cars going down Nash’s Court to empty the bins and the gas lamp being lighted by the lampman as far back as 1918. The evidence as to lighting should, perhaps, be discounted somewhat in view of the powers under section 80 of the Public Health (Ireland) Act, 1878 of any urban authority – Dublin Corporation is an urban authority – to provide public lighting in a private court (see definition of “street” s.2); but a countervailing factor is the power under s.28 of the same Act to compel owners and frontagers of such private streets and courts to light, sewer and pave at their own expense, failing which the urban authority can execute such works at the expense of the owner or frontager. 2(Rider A)
Mrs. Connell, the plaintiff, remembers the name “Nash’s Court” in blue on the street sign about the same time, in the days of the British Government, to be followed, in subsequent years, by a billingual sign in green.
It is also to be noted that the police treated Nash’s Court as a public place for the purposes of patrol duty and law enforcement.
Finally, the general principle is that no one but the owner in fee can dedicate because the right given to the public is a right in perpetuity and persons entitled to the preceding estate and interest must concur. Here it would appear that the acts of user – and in this I include the several activities of the Corporation – occurred during the occupation of lessess. The acquiescence of the lessees would not bind the owner of the land without proof of his also having been aware of it. But where, as here, the acts of user have gone on for a great length of time it may be presumed that the owner has been made aware of them: per Lord Denham, C.J. in Davies v. Stephens (1836) 7 C. & P. 579. The maintenance of Nash’s Court by the Corporation as a highway was such a notorious and obvious fact that it would require strong evidence on the part of the owner of the fee to displace the presumption that he must have been aware of it. I therefore consider that the evidence well warrants Teevan J’s. finding that Nash’s Court is a highway, and I would affirm his order.
1It may be noted that Dixon J. had evidence that two differ-ent owners at different times of the lesses’s interest in No.130 charged and received a rent for a right-of-way through the Court and that different owners had also, at different times, carried out works of maintenance or repair. There was a complete absence of any such evidence before Teevan J.
2(Rider A) Michael Crilly, a resident in the Court, whose memory goes back 55 years recalls, as a boy aged 10, kicking football in the Court without anyone ever objecting and he adds that at the age of 18 when he was employed driving a pony and van he used to “stable” his pony at the end of the Court when he was in the public house for a drink. He also proved that the Corporation concreted the Court when he was a boy.
Robins v Coleman
[2009] IEHC 486
Court: High Court (Ireland)
Judge: Mr. Justice McMahon
2. The law
2
2 2.1 The relevant provision of the Civil Liability Act 1961, s. 27(1) reads as follows:-
“A concurrent wrongdoer who is sued for damages or for contribution and who wishes to make a claim for contribution under this Part -”
…
2
(b) shall, if the said person is not already a party to the action, serve a third-party notice upon such person as soon as is reasonably possible and, having served such notice, he shall not be entitled to claim contribution except under the third-party procedure. If such third-party notice is not served as aforesaid, the court may in its discretion refuse to make an order for contribution against the person from whom contribution is claimed.”
3
3 2.2 From the case law dealing with the interpretation and application of s. 27(1)(b) of the Civil Liability Act 1961, some rules are clear:-
(i) The purpose of the Act is to ensure as far as possible that a multiplicity of actions is avoided and that all questions of liability in the same dispute should be dealt with in the same litigation, if possible. (See Connolly v. Casey [2003] 1 I.R. 345 (Supreme Court); Gilmore v. Windle [1967] I.R. 323 and Board of Governors of St. Laurence’s Hospital v. Staunton [1990] 2 I.R. 31).
(ii) The onus lies on the concurrent wrongdoer/defendant to prove that it acted “as soon as is reasonably possible”. (See McElwaine v. Hughes (Unreported, High Court, Barron J., 30 th April, 1997) and Dillon v. MacGabhan (Unreported, High Court, 24 th July, 1995).
(iii) In determining what the phrase means, “as soon as is reasonably possible”, all the facts of the case have to be taken into account. (See Connolly v. Casey (supra) and Molloy v. Dublin Corporation [2001] 4 I.R. 52.)
(iv) An element of caution is required before a third party notice is served especially where an allegation of professional negligence is involved. (See Connolly v. Casey (supra) and Greene v. Triangle Developments Ltd. [2008] IEHC 52.)
(v) If a concurrent wrongdoer/defendant does not serve a third party notice “as soon as is reasonably possible” (or at all), he may still maintain an independent action at a later date after the determination in the substantive claim, but in that event the court reserves a discretion to refuse a contribution if it thinks it is appropriate to do. (See s. 27(1)(b) and Board of Governors of St. Laurence’s Hospital v. Staunton (supra).)
4
4 2.3 It is now appropriate to look more closely at s. 27(1)(b) of the Civil Liability Act 1961.
5
5 2.4. The subsection states that a concurrent wrongdoer must serve a third party notice “as soon as is reasonably possible”. The subsection specifies the period within which the concurrent wrongdoer must perform a particular act. The legislation, by avoiding a specified time limit such as 90 days, for example, and by introducing the qualifying word “reasonably” into the phrase, clearly intended to modify the urgency implied by an unqualified “as soon as possible”, recognising that a degree of flexibility should be allowed in expressing the time limit. Insofar as s. 27(1)(b) speaks of an obligation on the defendant to serve the notice within a period of time, the word “reasonably” must, in the first instance, refer to his conduct and his point of view. In construing the word “reasonably”, we are not primarily concerned with the third party’s viewpoint.
6
6 2.5 The court, however, is entitled to review the delay, and examine whether the defendant’s explanation is one which entitles him/her to accommodation within the statutory phrase as being “as soon as is reasonably possible”.
7
7 2.6 It must also be appreciated that “as soon as is reasonably possible” is a relative concept and, in construing it, one must have regard to all the relevant circumstances. The case law continuously emphasises this. What might appear as a long period when stated in the abstract, might nevertheless, when all the circumstances are taken into account, attract the protection of the phrase.
8
8 2.7 A further word should be said concerning prejudice to the third party. It has been said that prejudice of the third party is not relevant in construing the phrase used in Section 27(1)(b). In many cases where the length of delay is very long, a court may be justified in ignoring the prejudice to the third party in deciding that the concurrent wrongdoer is out of time. Similarly, in cases where the delay is on its face brief, as in the case of the fourth named defendant here, I also suggest that the question of prejudice may not arise. Where, however, as here, the third party is intimately involved in the case from beginning to end, and no general prejudice could be claimed, and the special claims of prejudice are not well founded as I have determined later in this judgment, consideration of this fact could have a bearing on the concurrent wrongdoer’s sense of reasonableness in assessing when to serve a third party notice. If, for example, the concurrent wrongdoer knew that the situation was one where the third party was ignorant of the claim, evidence was vanishing and witnesses were going to be difficult to locate with the passage of time or the change of circumstances, “as soon as is reasonably possible” might demand a more rapid assessment and decision on the part of the concurrent wrongdoer than in other cases where these factors were not in play. Where there is no prejudice, as here, this fact may also support the defendants’ contention that the notice was served “as soon as is reasonably possible”.
9
9 2.8 Laffoy J. in Murnaghan v. Markland Holdings Limited & Ors [2007] IEHC 255, addressed the question of the necessity for the applicant to establish prejudice in cases such as this and comments as follows:-
“As the commentary in Delany & McGrath on Civil Procedure in the Superior Courts, 2 nd Edition, at paras. 9-18 and 9-19 indicates, there is something of a divergence of opinion on the authorities as to the relevance of prejudice, in that in Ward v. O’Callaghan (Unreported, High Court, Morris P., 2 nd February, 1998) Morris P. appeared to countenance consideration of prejudice, whereas Kelly J. in S.F.L. Engineering Limited v. Smyth Cladding Systems Limited [1997] IEHC 81 (9 th May, 1997) stated at para. 12:”
‘In considering applications of this sort, the court is not concerned with any question of prejudice arising as a result of the delay in applying for liberty to join the third party. This was accepted by counsel appearing on behalf of the defendants in the present case and it seems to follow from the interpretation given to the relevant provision by Finlay C.J. in the St. Laurence’s Hospital case.’
Section 27(1)(b) makes the service of a third-party notice “as soon as is reasonably possible” mandatory. In my view, the absence or presence of special prejudice affecting the proposed third party is not something the court is required to have regard to in determining whether the third-party proceedings are valid.” (Emphasis added)
10
10 2.9 I have no difficulty accepting this dictum of Laffoy J., but I do not interpret it as suggesting that prejudice to the third party can never be a consideration which the court should take into account in assessing the reasonableness of the defendants’ conduct in determining when to issue and serve a third party notice. As I have already indicated above, if the concurrent wrongdoer realises that the third party will be seriously prejudiced by delay, he may have to act promptly; on the other hand, if there is no danger that the third party will be prejudiced, some delay may be tolerated. The circumstances of each case must be considered.
11
11 2.10 In truth, prejudice to the third party (or absence of it) is only one factor which goes into the mix. What justification can be advanced for isolating it as a consideration that must never be taken into account? In my view, whether it is relevant in a particular case, and if so what weight it is accorded in assessing reasonableness, depends on the facts of each case and it is not to be excluded a priori. Although prejudice was not claimed by the third party in Tuohy v. North Tipperary County Council & Cleary (Third Party) (Unreported, High Court, 10 th March, 2008), Peart J. seemed to imply that, had there been prejudice to the third party, it might have affected his decision in holding that the notice was served “as soon as is reasonably possible”. This approach would also seem to be in keeping with the view expressed by McMahon J. in A & P (Ireland) Ltd. v. Golden Vale Products (supra) where he emphasised that one of the purposes of s. 27 is to give the third party the earliest opportunity of learning of the claim against him and an opportunity to investigate the claim. (See also Neville v. Margan Ltd [1988] I.R. 734.) In Cedardale Property Co. Ltd. & Ors v. Deansgrange Development Ltd & Ors (Unreported, High Court, 13 th November, 2008), Irvine J. stated:-
“It is important to note that the applicants (the third party) are adamant that the main proceedings relate to matters of which they had no awareness at any material time.”
12
12 2.11 In considering the phrase, therefore, one must bear in mind that the policy behind this part of the Act is to ensure that all disputes relating to the same matter are before the court at the same time and, secondly, that there is no unreasonable delay in serving the third party notice such as might slow down unduly the progress of the case.
13
13 2.12 Where each case must be approached with reference to its own peculiar facts, precedents are of limited value and must be looked at for guidance rather than in expectation of finding an answer to the case before the court. In Tuohy v. North Tipperary County Council, Peart J. said:-
“I accept, and respectfully agree, as Kelly J. concluded in SFL Engineering Ltd v. Smyth Cladding Systems Ltd” [supra], that the subsection contains ‘a temporal imperative’, but that imperative in the present case must be seen as applying from the time when the defendant was first in a position to know that the claim against the proposed third party was possible to pursue.”
14
14 2.13 As examples of the kind of delay allowed and disallowed by the courts in previous cases, counsel for the fifth and sixth named defendants cited the following:-
“Delays of 38 months (Neville v. Margan (supra)), 48 months (Governors of St. Laurence Hospital v. Staunton (supra)), 36 months (Molloy v. Dublin Corporation (supra)) and 21 months (SFL Engineering Limited v. Smyth Cladding Systems Ltd (supra)) were held to be outside the period allowed, whereas delays of 15 months (Connolly v. Casey (supra)), 18 months (McElwaine v. Hughes (supra)) and 16 months (Tuohy v. North Tipperary County Council (supra)) were not set aside.”
15
15 2.14 Bearing in mind what I have already said, however, these are of limited assistance to the court and are useful only to give an idea of the range of delays addressed by the courts in the case law. The overarching rule in all these cases and which is evident from these time variations is that each case must be considered on its own facts.
16
16 2.15 That the reasonableness at issue in construing the phrase “as soon as is reasonably possible” is that of the defendant or concurrent wrongdoer is also clear from the Supreme Court decision in Connolly v. Casey (supra) In that case the defendant had argued that it had waited for replies to the particulars raised before addressing the issue of the third party notice. Kelly J. held that this delay was inexcusable because the replies did not add to the defendants’ state of knowledge so as to excuse the delay. In the Supreme Court, Denham J. for that court, in overruling the trial judge, stated (at p. 350):-
“This was the wrong test. The test is whether it was reasonable to await the replies to particulars. Whether the replies did or did not materially alter the defendants’ state of knowledge is not the test. The queries raised in the notice for particulars were relevant to the claim against the third party and thus it was reasonable to await the replies.”
17
17 2.16 The Supreme Court also held that, where the third party was a barrister who had advised in the case, the defendants were justified in waiting for a statement from Mr. Murphy, the instructing Solicitor. The Court stated that “[it] was not unreasonable to have sought a statement from Mr. Murphy and awaited its arrival, it was a prudent action.”
Later in the same judgment, Denham J. has this to say (at p. 351):-
“In analysing the delay – in considering whether the third-party notice was served as soon as is reasonably possible – the whole circumstances of the case and its general progress must be considered. The clear purpose of the subsection is to ensure that a multiplicity of actions is avoided; see Gilmore v. Windle [1967] I.R. 323. It is appropriate that third-party proceedings are dealt with as part of the main action. A multiplicity of actions is detrimental to the administration of justice, to the third party and to the issue of costs. To enable a third party to participate in the proceedings is to maximise his rights – he is not deprived of the benefit of participating in the main action.”
18
18 2.17 The question then arises as to when each of the defendants in the present proceedings had sufficient information to confidently identify the third party as being potentially liable for the damage caused to the plaintiff’s property and whether they acted “as soon as is reasonably possible”.
Palaceanne Management Ltd v Allied Irish Bank Plc
[2017] IECA 141
Court: Court of Appeal (Ireland)
Judge: the President
Appeal
19
Before considering the issues that are raised in the notice of appeal, the question mentioned above of the misinterpretation of the indenture of 22nd January 2009, has to be addressed. In its written submissions under the heading “The Factual Issue which arises from the Judgment”, the bank refers to the determinations by the High Court as to the meaning and effect of the conveyance executed by prior order of the court by the Principal Registrar, Mr. O’Neill. Mr. Dwyer SC based much of his argument on the reasoning of Clarke J. arising from his understanding of the deed. The judge found as stated above that this instrument transferred the fee simple in the entire block to the management company including the two mortgaged apartments. That conclusion arose from an inadvertent error of interpretation that was common to both parties. It is clear on any view of the case that the effect of the deed is relevant and important. Mr. Dwyer SC submits that the true understanding of this document is practically determinative of the case if it is properly before the court. Mr. Bland SC argues that the outcome of the case based on a legal analysis of the relationships between the parties and Ms. Gail Coles as decided by the High Court is correct even when the terms of the conveyance are correctly applied. What cannot be contradicted, however, is the materiality of this document of transfer. The terms of the plaintiff’s plenary summons implicitly acknowledge that relevance. Counsel for the management company, however, argues that this matter is not the subject of any ground in the Notice of Appeal and it is not therefore open to the court to consider it. Moreover, the principles declared by the Supreme Court in Hay v. O’Grady [1992] 1 IR 210 militate against the allowance of this new ground.
20
It seems to me that the 2009 deed must be taken into account. The parties presented their cases in the High Court on an erroneous basis and the judgment is expressly predicated on the same understanding as to the provisions of the conveyance. My view is that this Court must review the judgment in light of the agreed fact that the terms of the conveyance were misunderstood in the High Court. It is not possible in the very unusual circumstances of this case to decide the appeal properly without reference to the unquestionably material deed. If the bank is correct as to the meaning and effect of this transaction, it would be unjust to ignore the document. In such situation, it would mean determining the appeal as to the rights of the parties by choosing to ignore a matter of independent potentially decisive evidence, contrary to the most fundamental function of the court. I would not wish, however, to suggest that the very limited occasions when this course is required or justified should be expanded beyond the demands of justice that impel the Court in these extremely unusual circumstances of undisputed shared error. I propose, therefore, to consider Mr. Dwyer’s submissions written and oral as to the meaning of the deed in question. Before doing that, the bank’s other and original grounds of appeal should be mentioned.
21
The bank appealed on four grounds relating to the legal findings made by the High Court and a further two issues as to the order for costs. The four substantive grounds on which it is submitted the court was in error are as follows:
(1) Finding that the mortgage deed of 20th May 2005, did not create a right of way of necessity to the apartments conveyed.
(2) Finding that the mortgage did not give rise to a right of way and other easements
(a) by implication of law;
(b) from the common intention of the parties;
(c) by section 6 of the Conveyancing Act 1881 – this ground was not proceeded with;
(d) under the rule in Wheeldon v Burrows [1879] 12 Ch D 31.
(3) Holding that the fact that the bank was on notice of the intended estate development negated the creation of implied easements.
(4) Failing to find that:
(i) the management company is successor in title to the mortgagor Ms Coles; (ii) the management company is thereby bound by the common intention of the parties to the mortgage that the bank would enjoy all easements and rights necessary to exercise its rights under the mortgage;
(iii) the mortgagor was obliged not to do anything to jeopardise or undermine the security.
22
The appeal concerning the orders for costs should be held over for further consideration in light of the judgment in this case.
Submissions
Allied Irish Bank
23
In regard to the 2009 Deed, AIB submits that the trial judge made an error of fact in finding that the deed dated 22nd January 2009 transferred the freehold of the two retained mortgage departments to Palaceanne. The bank cites the provisions of the deed in support of its contention. It submits, accordingly, that it is clear that the freehold in the retained apartments was not transferred and, moreover, that the common areas which the deed transferred to the management company were subject to easements expressly reserved to Gail Coles and her assigns, which obviously included AIB. It suggests that the parties in the High Court and the trial judge inadvertently missed the terms of the 2009 deed. The bank submits that this issue is determinative of the appeal, but it also addresses other grounds of appeal and issues raised.
24
AIB argues that implied intent is sufficient to give rise to an easement. In Maguire v. Browne [1921] IR 148, O’Connor LJ highlighted the underlying logic of preventing an owner from being effectively land-locked vis-à-vis his own property. In this case, the intention must be interpreted in light of parties’ understanding at the time of the Deed of Mortgage and not with the benefit of hindsight. The judgment of Clarke J. indicates that the estate scheme in question, which was typical, envisaged that the common areas would only be transferred to the management company upon all the apartments being sold. It did not contemplate the transfer of ownership by way of conveyance pursuant to a court order. On entering into the mortgage, neither party intended or foresaw Ms. Coles ever being without ownership of the Common Areas. Prior to the selling of all the apartments, the ownership of the Common Areas was to remain with Ms. Coles. As such, any contemplation of a transfer of ownership took place solely in the context of the estate scheme.
25
The terms of the mortgage deed show that the intention was to pass existing rights of way to the mortgagee. Gail Coles assigned to the bank ‘the benefit of all covenants, agreements, guarantees, indemnities, undertakings, goodwill license rights, remedies, charges, and privileges appertaining to or enjoyed with or incidental to the ownership of the said lands in any manner whatsoever’. These dispositions carry with them the implication that a right of way travelled with the transfer by Ms. Coles to the bank. Moreover, AIB points out that Palaceanne acknowledged that an easement of necessity exists in favour of the site under mortgage.
26
Halsall v. Brizell [1957] CH 169, on which the management company relies, can be distinguished from the instant case as it is premised on corresponding rights and obligations. In the present circumstances, AIB has no rights under the estate scheme and therefore cannot be said to have obligations under it either. The intention was for AIB to facilitate the selling of the remaining apartments and in doing so, also divest its interest in the properties. It is argued that law and practical necessity require that an easement outside of the estate scheme be recognised.
27
AIB has a mortgage by demise over the apartments which can only be effective if the necessary easements over the common areas are recognised. The doctrine of non-derogation from grant applies: see Conneran v. Corbett & Sons Ltd [2004] 2 ILRM 26. Such an intention may be implicit: Connell v. O’Malley [1983] WJSC HC 2116 and Birmingham, Dudley and District Banking Co v Ross [1888] 38 Ch D 295. The enjoyment of the apartments mortgaged to AIB demands certain rights over the common areas. In Honiball v. McGrath and Mac Enterprises Ltd [2002] IESC 26, Fennelly J. considered business efficacy as a matter of practical necessity for the enjoyment of a grant. Without the easements, AIB would have no way to access the apartments in question.
28
The rule in Wheeldon v. Burrows is applicable. While the common law rule has now been replaced by s.40 of the Land and Conveyancing Law Reform Act 2009, it was in force on the date of the mortgage and it is another reflection of non-derogation.
29
AIB submits that the agreed statement of facts did not refer to the bank’s having notice of the estate scheme and so the High Court was not in a position to impute notice from the fact that the scheme was in place when the mortgage executed. And even if it was possible to infer knowledge, it suggests that such notice does not necessarily prevent the acquisition of an easement of necessity.
Palaceanne’s Submissions
30
Mr. Bland’s response to the correct interpretation of the 2009 deed is that in 2005, at the time of the mortgage, Ms. Coles ‘couldn’t have granted the bank at that time a right over the common areas because that would cut across the estate scheme, which provides that you don’t get such rights of access until such time as you sign up to the agreement whereby you pay for the rights of access by way of service charges.’
31
Palaceanne submits that Ms. Coles lacked the basic capacity to create any form of easement. The 2003 deed by which Ms. Coles agreed to transfer her remaining interest in the common areas had the effect of making her a trustee of the management company. In circumstances where this right was not reserved by implication or the terms of the deed, further easements could not have been created under the 2005 deed.
32
Independent of this fundamental issue of capacity, Palaceanne argues that where an estate scheme exists and the purchaser has notice of it, the common intention of parties precludes an implied right, even one of necessity. The same right cannot exist as both an implied and express right. In Halsall v. Brizell, Upjohn J. held that in accepting the terms of a deed of conveyance, one had to take not only the benefits, but the obligations that travelled with them. An estate scheme has the effect of creating a ‘local law’ which binds the parties to it. Palaceanne argue that the 2003 deed involved the staged transfer of an ‘unencumbered fee simple title’ and in doing so prevented the creation of an implied right. No subsequent unilateral action on Ms. Coles’ part can interfere with the estate scheme’s endgame. If Palaceanne’s argument is accepted, the bank’s interest must follow the terms of the 2003 deed. The same point excludes a Wheeldon v. Burrows implication.
33
The mortgage deed does not make express provision for granting easements over the common areas to the bank. In order for easements to have been incorporated into the mortgage deed, it was necessary for both parties to have a common intention to do so. In the context of the estate scheme and the conveyance of the common areas to the management company, it cannot be said that such an intention was present in this case. The respondent submits that this is of some importance considering that even if the bank had known about the estate scheme, that would not in and of itself be sufficient.
34
AIB’s argument that its knowledge of the estate scheme is irrelevant to whether or not an easement could be created suggests that a right of necessity can be created even when both parties to the instrument did not intend that creation. This is in direct contrast to Maguire v. Browne [1921] 1 IR 148, which emphasises that a right of way of necessity rests on the ‘supposed intention’ of the parties [at p.169; see also: Dwyer Nolan Developments Ltd v. Kingscroft Developments Ltd [1999] ILRM 141]. Without evidence of a shared intent then an easement cannot arise. The court, in Nickerson v Barraclough [1981] Ch. 426 went further in noting ‘the doctrine of way of necessity is not founded on public policy but upon an implication from all the circumstances.’
35
In the present circumstances, AIB must have known about the estate scheme and the entitlements to the common area that were to follow. Furthermore, Ms. Coles could never have intended to create a right of way given that she had contracted to convey the common areas to Palaceanne. No common intention could have arisen. Even if AIB did not know of the estate scheme there could be no implication of a right on a unilateral basis. To hold otherwise would be to defeat the point of purpose of having a shared intention. However, it is also worth noting that knowledge is not necessarily a critical factor
36
The bank has not disputed that it knew of the estate scheme created by the management company agreement of 2003 when it took its mortgage in 2005, but merely argued that the trial judge should not have inferred awareness of the estate scheme because the agreed statement of facts did not indicate that it had such notice, which is a contention not based in fact. The judge was entitled to draw the inference that a bank would reasonably be expected to have satisfied itself as to the existence of the estate scheme when inquiring into the title of the apartments on grant of the mortgage. The management company agreement of 16th December 2003 between Gail Coles and Palaceanne was furnished to the learned trial judge in the Schedule of documents annexed to the statement of facts of 27th June 2011. The statement of facts made express reference to the management company agreement and to the bank’s interpretation of its meaning and effect. The learned trial judge made an inferential finding of fact as to the bank’s notice of the estate scheme. It was a finding supported by the uncontroversial evidence of the existence of the estate scheme, the agreement of 2003, the mortgage and the established model for multi-unit developments, all of which are addressed in the judgment. It follows from the decision of the Supreme Court in Hay v O’Grady that the appellate court is bound by that finding.
37
The fact that the conveyance to the management company was brought forward consequent upon the order of Clarke J. of 9th June 2008, is not material. First, it is a matter between the parties to the management company agreement of 2003 as to when that agreement is to be completed, and it was completed at the direction of the High Court, so it is simply not open to the bank to challenge that completion or to try to look behind it in any way. Second, the date of the completion of the contract cannot alter the fact that the contract provided for the sale of the unencumbered freehold, and that anyone being aware of the contract, including Ms. Coles and the bank, would therefore know that easements could not be implied into the mortgage to burden the common areas prior to completion.
38
The creation of a right of necessity is not automatic. It is not created by policy or operation of law; instead it rests on the common intention of the parties. If that common intention cannot be established on the evidence, there can be no implication of the right.
39
Finally, AIB argues that since it was not a party to the management company agreement, it could not be bound by its terms but the fact remains that it did not take any express rights and could not receive any implied rights because the developer was contractually precluded from burdening the common areas.
The Bank’s Reply
40
Mr. Dwyer SC, in response to Mr. Bland’s point on Ms. Coles’ restricted capacity, submits that she was entitled to mortgage her interest in the property to the bank. The 2003 management company agreement gave it rights to have the property conveyed at the completion date. In the meantime Ms. Coles was free to deal with her property including using it as security by way of mortgage. That is what she did in 2005. The process whereby the company advanced the transfer of the Coles’ interest did not involve the bank and it is legally impermissible for the company to deny rights of the bank that it would not otherwise have considered challenging. The company is actually the author of its own misfortune, in so far as it has taken on liability for maintenance of the building.
41
The reality of the present situation is that the management company is holding the bank to ransom. At this stage, the company has no legal interest whatever in the two apartments, not even a reversionary interest as claimed by Mr. Bland, although it may be able in due course on sales being completed to assert such an entitlement.
42
The deed of 2009 is clear in its terms, meaning and effect. It is subject to the bank’s interest in any case because of the prior mortgage.
The Law
43
The legal consequences of the relations between the parties have to be determined in the first place by the interpretation of the contract made in 2003, the mortgage of 2005 and the conveyance of 2009. The appeal also raises issues as to whether the bank enjoys a right-of-way to the apartments arising by implication of law, including application of the rule in Wheeldon v. Burrows, by necessity or by necessary inference from the mortgage between Gail Coles and the bank or otherwise in the circumstances. It seems to me that the following cases provide valuable guidance as to the approach of the law to these issues.
44
Some of the authorities referred to in submissions or argument are of limited or little materiality and having regard to my view as to one issue that was debated I can exclude authorities on that point. That question concerns inferences that the trial judge was entitled to draw from the facts and circumstances of the case as they were before him. This applied particularly to whether the bank was on notice of the estate scheme, as the judge considered, since that fact was not included in the agreed statement that was put before the court. It seems to me to be quite legitimate for the High Court to have proceeded on this basis. Ms. Coles mortgaged five apartments out of a development containing nine units. It is practically inconceivable that the bank, receiving their documents of title and conducting through its advisers the usual enquiries and searches, could be unaware of the existence of an arrangement that was standard for such developments. If the judge had proceeded on a different basis, assuming it was relevant to the case to do so, it seems to me that it might well be open to a party on appeal to challenge that approach on the ground that it was unworldly and inappropriate. I find it unnecessary, therefore, to analyse the impact on the judge’s inference of knowledge by reference to the principles laid down by McCarthy J. speaking for the Supreme Court in Hay v. O’Grady.
45
In the famous passage from Wheeldon v. Burrows, Thesiger LJ said:
‘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.’ [At page 49]
46
In Halsall v. Brizell, Upjohn J. said:
‘But it is conceded that it is ancient law that a man cannot take benefit under a deed without subscribing to the obligations thereunder. If authority is required for that proposition, I need but refer to one sentence during the argument in Elliston v. Reacher, where Lord Cozens-Hardy M.R. observed: ‘It is laid down in Co. Litt. 230b, that a man who takes the benefit of a deed is bound by a condition contained in it, though he does not execute it.’ If the defendants did not desire to take the benefit of this deed, for the reasons I have given, they could not be under any liability to pay the obligations thereunder. But, of course, they do desire to take the benefit of this deed. They have no right to use the sewers which are vested in the plaintiffs, and I cannot see that they have any right, apart from the deed, to use the roads of the park which lead to their particular house, No. 22, Salisbury Road. The defendants cannot rely on any way of necessity or on any right by prescription, for the simple reason that when the house was originally sold in 1931 to their predecessor in title he took the house on the terms of the deed of 1851 which contractually bound him to contribute a proper proportion of the expenses of maintaining the roads and sewers, and so forth, as a condition of being entitled to make use of those roads and sewers. Therefore, it seems to me that the defendants here cannot, if they desire to use this house, as they do, take advantage of the trusts concerning the user of the roads contained in the deed and the other benefits created by it without undertaking the obligations thereunder. Upon that principle it seems to me that they are bound by this deed, if they desire to take its benefits.’ [At page 182-183]
47
In Conneran v. Corbett & Sons Ltd [2004] IEHC 389 Laffoy J approved and adopted para. 6.059 of Wylie on Irish Land Law as follows:
‘As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land.’
48
The judge also said that the doctrine of non-derogation from a grant existed so as not to frustrate the intention of both parties when the transfer was made.
49
In Birmingham, Dudley and District Banking Co v Ross [1888] 38 Ch D 295, Cotton L:J said:
‘By an implied obligation or an implied right I mean this: an obligation or right arising not from the express words of an instrument, nor from that which, having regard to the circumstances, must be considered the true meaning and effect of the words in the instrument; but that obligation or that right which results from that position into which the parties have placed themselves by the contract. For instance, where one man grants to another a house, then prima facie he cannot interfere with that which he has granted; namely the house, the enjoyment of the house. That obligation arises, I repeat, not from any interpretation of the conveyance but from the duty which is imposed on the grantor in consequence of the relation which he has taken upon himself towards the grantee.’ [At page 308]
Barron J. adopted these comments in Connell v. O’Malley [1983] WJSC HC 2116.
50
Fennelly J. said in Honiball v McGrath and & Mac Enterprises Ltd [2002] IESC 26 that:
‘It must be demonstrated that the term effecting such a grant would as a matter of compelling necessity have to be implied to give what is called business efficacy to the terms of what is expressly agreed’. [At para.17]
51
Beddington v Atlee [1887] 35 Ch. D. 317 approved Gale on Easements as follows:
‘Similarly, no easement will arise by implication, or under general words in a conveyance, if the vendor, before agreeing to sell the supposedly dominant tenement (A), has agreed to sell the supposedly servient tenement (B), without reserving the alleged easement. The reason is that the vendor, on agreeing to sell B, becomes a trustee of B for his purchaser, and a subsequent contract by him to sell A cannot be assumed to include a contract to create an incumbrance on B.’ [At para.3.10]
52
In Maguire v. Browne, O’Connor LJ said that ‘in the absence of an express grant a right of way of necessity rests upon the supposed intention of the parties…’ [at page 169]. To the same effect is Nickerson v Barraclough [1981] Ch. 426 that ‘the doctrine of way of necessity is not founded upon public policy at all but upon an implication from the circumstances.’ [At page 440].
Discussion
53
The 2003 Agreement provided that Gail Coles would transfer to the management company the fee simple in the common areas plus the freeholder reversions of the long leases of the apartments. The time for making the transfer was following the sale of the last of the apartments in the development. The next relevant transaction involving Palaceanne was the 2009 Deed that was executed by the Principal Registrar of the High Court on direction of the Court. This conveyance brought forward in time the transfer of the fee simple interest in the development, but it excluded from its effect the two apartments that were not sold at that point, specifying them by name. The Deed also excluded in favour of the retained property all easements of way and as to services. Obviously, the bank was not a party to the 2009 conveyance. It could not displace the bank’s rights and interests under the mortgage. The 2003 Agreement did not transfer any property. It is an agreement to do so in the future. Ms. Coles remained free thereafter to sell the apartments; indeed, the whole purpose of the scheme of development was for precisely that to happen.
54
The 2009 conveyance brought forward and part-performed Gail Coles’ obligations under the 2003 Agreement. It was clear, however, that it did not disturb the ownership of the two mortgaged apartments and the easements and rights that went with them. The Estate Scheme provided that a purchaser became a shareholder and was required to become a member of the management company. By the time Gail Coles entered into the mortgage with AIB, four apartments had been sold and she owned the fee simple in the common areas, and indeed the whole building. Subsequent to the mortgage of 20th May, 2005, two changes in the positions of the parties occurred. Gail Coles sold three more apartments, which obviously required the bank’s consent and cooperation, and the purchasers joined the management company in accordance with the Estate Scheme. The second event was the 2009 Deed. It is accordingly apparent that Gail Coles (and the bank) were able to put purchasers into possession with full rights of way and in respect of services for themselves, their successors, assigns and others.
55
The 2009 Deed could not be clearer. The habendum conveys the fee simple interest in the property, but excluding the two apartments and excepting and reserving to them the easements, rights and privileges, including rights of way and in regard to services for the benefit of the vendors, their successors and assigns and others. In order to hold in favour of the management company, it is necessary to overlook the express terms of the 2009 conveyance, or alternatively, to regard it as completely irrelevant. That Deed clearly envisages that the retained property, namely, the two apartments, carry with them rights of way and easements in respect of services. That is entirely in accordance with the Estate Scheme, which is not in dispute. It is difficult in those circumstances to understand how this Deed can be ignored. It is relevant that it was executed on foot of a Court Order that was sought by the management company. There may be something in the submission by Mr. Dwyer SC on behalf of the bank that the management company may have taken on an obligation that it did not really intend. However, in circumstances where the developer was insolvent and about to be declared bankrupt or in a condition that would ultimately lead to that determination, the reality may be that the management company had no choice, even though it was not fully supplied with shareholders under the intended Estate Scheme.
56
There was an estate scheme in this development which was in accordance with the normal model, as the trial judge noted. The developer established a management company and granted a long lease to each purchaser of an apartment. The agreement for sale also provided that the purchaser became a shareholder in the management company. While sales were continuing, the developer retained ownership of any common areas and also had obligations in regard to services. During this phase the developer was entitled to recover maintenance contributions from purchasers but was obliged to make up any shortfall in the costs of upkeep attributable to the unsold units. The intention was that when all the apartments had been sold the developer would transfer the ownership of the common areas and of the freehold reversions in the apartments to the management company. That body would then assume responsibility for maintaining the common areas and controlling the development generally with the costs of carrying out these functions being borne by the owners of the apartments. The developer would have no further role in the building.
57
At para. 3.1 of his judgment, Clarke J. sets out the relevant terms of the mortgage between Gail Coles and AIB. Under this deed, Ms. Coles demised unto AIB the secured property for a term of 10,000 years subject to the proviso for redemption. She also declared that she would stand possessed of the nominal freehold reversion in trust for AIB and authorised the bank to appoint a new trustee subject to redemption. The property originally comprised in the mortgage was 5 apartments in the development but that reduced as time went on and sales took place with the consent of the parties so that ultimately only 2 units remained unsold. The judge said that in the ordinary way in the case of default of mortgage payments it was likely that AIB would want ‘to be able to enforce its security by procuring that the 2 remaining apartments can be transferred to any purchaser by means of a lease in the same form as the leases already in existence in relation to the sold apartments.’
58
At the date when the mortgage was executed, 20th May 2005, the estate scheme was in existence and four apartments had been sold, a fact which led the trial judge to conclude that the bank must have been on notice of the scheme. In my view, this is a reasonable inference which the judge was entitled to draw in the circumstances and I do not think that the appeal on this point can succeed. The bank submits that the agreed statement of facts on which the case was debated and decided did not include anything about the bank’s knowledge of the estate scheme and it was therefore impermissible for the judge to conclude as he did. I do not agree. I think it would be extremely unlikely for the situation not to be known to the mortgagee when the transaction involved five apartments in a nine-unit development.
59
In the period between the agreement of 16th December 2003, and the mortgage of 20th May 2005, Gail Coles held the fee simple interest in the five apartments and also in the common areas. She had agreed that when all the apartments were sold she would convey the fee simple in the common areas and the leasehold reversions of the apartments to the management company. At this time, she was entitled to sell her apartments, that is, to grant purchasers long leases of 10,000 years in accordance with the estate scheme. The purchasers in turn would obtain the benefits and be subject to the obligations of the scheme, pursuant to their agreements.
60
Following the execution of the mortgage, Ms. Coles sold three of her five apartments with the consent of the bank. She would not have been able to do so otherwise. It is clear nevertheless that with the consent of the mortgagee she was still in a position to dispose of the apartments that she retained. When the Circuit Court made its orders in the mortgage proceedings brought by the bank against Ms. Coles, AIB held the freehold title in the apartments and was in a position to grant 10,000 year leases in accordance with the estate scheme. That is a necessary consequence of the terms of the mortgage. There is no basis for considering that there was anything to prevent the bank from realising its security by selling the apartments. Obviously, again in accordance with the estate scheme, purchasers would and will enjoy benefits and be subject to obligations similar to the other apartment owners.
61
This is the background to the claim by the bank to a right of access to the two apartments. It can sell them and the purchasers will have full entitlement to participate in the management company; indeed, they will be obliged to do so. It would in those circumstances be unusual to say the least to find that the law did not provide for a right-of-way for the bank to gain access to the apartments. That however is a point to be considered presently. It is obvious that before the transfer deed of 2009 that was directed by the court on the application of the management company the bank was entitled to a right-of-way to the apartments. Gail Coles could not have prevented the bank from doing so.
62
It is impossible to contend that the 2009 conveyance prevents the bank’s access. The deed expressly provides otherwise, as is demonstrated above. There is actually no dispute between the parties on this point. The company however seeks to go back to the 2003 agreement for a basis on which the bank might be excluded. For my part, I am unable to see how this could be so. The 2003 agreement does not of itself transfer property but whatever rights it confers on the management company, they cannot operate as it seems to me in a manner that is wholly inconsistent with the estate scheme, the rights of Gail Coles and the rights of the bank as mortgagee and assignee of her interest. It seems to me to follow that because the bank had a right against Ms. Coles to pass and re-pass to gain access to the apartments, the 2009 deed to which the bank was not a party and which is obviously subject to the bank’s rights under the mortgage cannot have extinguished those rights.
63
The terms of the 2009 deed by themselves are quite inconsistent with the case made on behalf of the management company by reference to the 2003 agreement. The point would also appear to have been present to that party when the plenary summons was drafted.
64
I am also of the view that a right of way of necessity or by implication of law would arise in the circumstances. It is of course true that such a right will not arise where the parties are bound by a closed set of contractual provisions. See Halsall v. Brizell above. But the bank is not in that situation. It is not a member of the management company. It stands outside the estate scheme, albeit having the capacity to put purchasers into the contractual framework.
65
The circumstances here are undoubtedly unusual, perhaps more so because of the claim by the management company that the bank cannot access the apartments rather than for a legal reason. In actual fact, the transactions giving rise to the issues for the court are relatively commonplace. The trial judge said that the arrangements in this case were typical and it can scarcely be suggested that it is unusual for a developer to borrow on foot of a mortgage of retained apartments. It would therefore be extremely surprising in my view if it happened that the mortgagee suffered the extreme disadvantage that is proposed in this case. It is nothing less than the quarantining of property to which the bank is entitled.
66
An implied obligation or an implied right arises not from the meaning and effect of the words in the instrument but from that position into which the parties have placed themselves by the contract: see Birmingham, Dudley and District Banking Co v. Ross above.
67
A right of way of necessity rests upon the supposed intention of the parties: Maguire v. Browne above. The ‘doctrine of way of necessity is not founded upon public policy at all but upon an implication from the circumstances.’ See also, Nickerson v. Barraclough above. It is not the actual or expressed intention of the parties but rather what is the supposed intention arising from the circumstances.
68
In the events that have happened in this case, I think it is irresistible that a right arises by necessity or by implication of law or under the rule in Wheeldon v. Burrows. Having said that, I do not think that it is necessary to invoke these legal implications of rights in the circumstances of the case. In my judgment, the bank was entitled to a right of way to the apartments prior to the execution of the court-ordered deed of 2009 and its right was not affected by that transaction.
69
I would, accordingly, allow the bank’s appeal.
70
Issues as to costs may be considered later having regard to the outcome of the appeal.
The Square Management Ltd v Dunnes Stores Dublin Company
[2017] IEHC 146
Court: High Court (Ireland)
Judge: Mr Justice Max Barrett
XIV. Non-Derogation from Grant
(i) Contention Made
66
Dunnes has invoked non-derogation from grant, in particular by reference to what it maintains is an obligation, implicit in the grant of the leases not to extend the Centre in a manner which causes permanent interference to the use and enjoyment of Dunnes’ units (the permanent/temporary aspect of matters has already been touched upon by the court previously above).
(ii) Legal Principles.
67
Wylie’s Irish Land Law (5th ed., 2013), at 382, in a passage relied upon by Laffoy J. in Conneran v. Corbett & Sons [2004] IEHC 389 (considered below), describes the principle of non-derogation from grant in the following terms:
‘As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land.’
68
In Birmingham, Dudley & District Banking Co. v. Ross (1888) 38 Ch.D. 295, Bowen L.J., at 313, succinctly states the essence of the principle to be that ‘ that a grantor having given a thing with one hand is not to take away the means of enjoying it with the other’.
69
In Conneran, the plaintiffs held leases in Corbett Court shopping mall in the City of Galway and claimed rights in the nature of easements to bring deliveries of stock through a car-park and loading area. Laffoy J. noted that each of the leases gave an express right to use car-park delivery doors and the internal common parts for receiving deliveries, and even required that these be used. Laffoy J. found that there had been a total obstruction of the car-park delivery doors and that limited access to the rear of the mall a particular laneway via the passage that had formerly been part of the car-parking area was, per Laffoy J., at 19, ‘ totally unsuitable and impractical for effecting deliveries to and from the plaintiff’s retail units’. In the circumstances, Laffoy J. expressed herself, again at 19, to be satisfied that there had been ‘ a real and substantial interference with the express and implied rights acquired by the Plaintiffs under the leases’ (emphasis added) and that it was no answer to say that there were other routes available, in circumstances where the plaintiffs had been deprived of ‘ not only of the most convenient route but of the only suitable route for efficient bulk deliveries of merchandise.’
70
In Platt v. London Underground Ltd [2001] 2 E.G.L.R. 121, a decision of the English High Court, Mr Platt had taken a lease of a kiosk in a London Underground passageway. Subsequently, London Underground closed off access to that passageway for a large portion of the day, depriving Mr Platt of all passing trade during the hours of closure. In finding that there had been a derogation from grant, Neuberger J. made the following observations, at 122, under the heading ‘ Derogation from grant: principles’:
‘1. It is well established that a landlord, like any grantor, cannot derogate from his grant. To put in more normal language, as has been said in a number of cases, a landlord cannot take away with one hand that which he has given with the other….
2. In order to determine whether a specific act or omission on the part of the landlord constitutes derogation from grant, it is self-evidently necessary to establish the nature and extent of the grant….
3. ‘The exercise of determining the extent of the implied obligation not to derogate from grant] involves identifying what obligations, if any, on the part of the grantor can fairly be regarded as necessarily implicit, having regard to the particular purpose of the transaction when considered in the light of the circumstances subsisting at the time the transaction was entered into’ per Sir Donald Nicholls V.C in Johnston & Sons Ltd v. Holland [1988] 1 EGLR 264 at 268A.
4. There is a close connection, indeed a very substantial degree of overlap, between the obligation not to derogate from grant, the covenant for quiet enjoyment and a normal implied term in a contract….
5. The terms of the lease will inevitably impinge upon the extent of the obligation not to derogate. Express terms will obviously play a part, possibly a decisive part, in determining whether a particular act or omission constitutes a derogation. An express term should, if possible, be construed so as to be consistent with what Hart J. called “the irreducible minimum” implicit in the grant itself. However, as he went on to say, a covenant relied on by the landlord “if construed as ousting the doctrine in its entirety is repugnant…and should itself be rejected in its entirety”: see Petra Investments Ltd v. Jeffrey Rogers plc [2000] L&TR 451 at 471.
6. When considering a claim based upon derogation from grant, one has to take into account not only the terms of the lease, but also the surrounding circumstances at the date of the grant as known to the parties….
7. One test which is often helpful to apply where the act complained of is the landlord’s act or omission on adjoining land is whether the act or omission has caused the demised premises to become unfit or substantially less fit than the purpose for which they were let….
8. However, even that formulation, though helpful, may in many cases be too generous to the tenant. Thus permitting a competing business to be run from a next-door property was held not to be derogation from grant, see Port v. Griffith [1938] 4 All ER 295, but compare Oceanic Village Ltd v. Shirayama Shokusan Co Ltd [ [2001] EGCS 20]….
9. The circumstances as they were at the date of the grant of the lease are very important…..
10. However, given that a lease is essentially prospective in operation, the central issue, where the complaint is of activities on the neighbouring premises owned by the landlord, is not merely “the use to which the adjoining premises are put at the date of the tenancy”, but also “the use to which they may reasonably be expected to be put in the future”, per Lord Millet at 468J in Southwark [London Borough Council v. Mills [1999] 4 All ER 449]….
11. When assessing what the parties to a contract actually or must have contemplated, one should focus upon facts known to both parties and statements and communications between them. A fact that could only have been known to one party could not, save in very unusual circumstances, be a legitimate part of the factual matrix. A thought locked away in the mind of the parties, or even perhaps of both parties, cannot normally be a relevant factor when assessing the parties’ understanding. In English law, at any rate, contract is concerned with communication as well as mutuality’. [Emphasis added].
71
Between them Conneran and Platt offer abundant guidance to the court in seeking to determine whether there has been a derogation from grant in the context of the within proceedings. Conneran points the court in the direction of looking for ‘ a real and substantial interference with the express and implied rights acquired by the Plaintiffs under the leases’. Likewise Platt, among the various principles it identifies (which point in the main to factual considerations that will differ from case to case) mentions, as a helpful test for identifying derogation, ‘ whether the act or omission has caused the demised premises to become unfit or substantially less fit than the purpose for which they were let…’. In essence, it seems to the court that what one is looking for when testing for derogation from grant is actual or likely deprivation of a grantee’s reasonable enjoyment of its existing rights as grantee.
72
Before turning to a consideration of the facts at hand to see whether such circumstances present in the within proceedings as to constitute a derogation from grant, the court pauses briefly to consider one further decision of passing interest to which the court was referred, in a case that bears some factual resemblance to the circumstances now before this Court. Thus in Dunnes Stores (Bangor) Limited v. New River Trustee 11 Limited and Anor [2015] NICh 7, the plaintiff sought from the High Court of Northern Ireland injunctive relief restraining the landlord from carrying out development on adjoining property, pleading, inter alia, that the said development in its entirety would amount to a derogation from grant by the defendants. Refusing the interlocutory injunction sought, Deeny J. referring, at 16, to the factors that informed his discretion in this regard stated that one factor, though ‘ of lesser importance’ was the fact that ‘ any unquantifiable loss to the plaintiff is mitigated by their newly acquired right to have direct access from and egress to the car park’, a point which might be contended to be consistent with the “ rising tide carries all boats” logic which was aired at the hearing of the within application.
XVI. Easement by Prescription
84
In 2016, Dunnes claimed for the first time that it has acquired a right of parking in the Northern Car Park Area as an easement by prescription. The old forms of prescription under common law or lost modern grant were abolished by s.34 of the Land and Conveyancing Reform Act 2009; however, Dunnes claims its easement under s.38(b) of the Act of 2009 which preserves the right to claim a prescriptive period under the previous legal regime for a period of up to 12 years from 2009.
85
Gale on Easements (19th ed.) defines prescription, at para. 4-01, as ‘ a title acquired by use or enjoyment had during the time and in the manner prescribed by law’. Fundamentally, prescription arises from acquiescence. As Lindley L.J. noted in Dalton v. Angus (1881) 6 App Cas 740, 773, a case concerned with the acquisition of a right to lateral support from adjoining land, ‘[ T]he whole law of prescription and the whole law which governs the presumption of inference of a grant or covenant rests upon acquiescence…. It becomes then of the highest importance to consider of what ingredients acquiescence consists’. The critical ingredient is user as of right, a concept elaborated upon by Parke B. almost two centuries ago in Bright v. Walker (1834) 1 Cr M&R 211, a case concerned with a claim to a right of way over land in the possession of a lessee, and re-visited more recently by the High Court in Zopitar Limited v. Jacob [2015] IEHC 790, another case concerned with an unsuccessfully contended for right of way, where Gilligan J. stated, at paras. 81–82:
‘81.…“User as of right” means without force, secrecy, and without oral or written consent of the servient owner, or, as it is often put, nec vi, nec clam, nec precario.
82. The important question is whether the use would suggest to a reasonably careful and prudent owner of the land that a casual use only of the land was being made dependant for its continuance upon the tolerance and good nature of such servient owner, or would it put such servient owner on notice that an actual right of way was being asserted. It cannot therefore be secret, clandestine or surreptitious. The use also cannot be forced upon the servient owner, for prescription theory demands acquiescence in order for a right to be established. Finally, for the Court to be satisfied that there has been acquiescence to the establishment of a right, the necessary use cannot be referable to a consent, permission or licence. It cannot be precatory, in the sense of being precarious, that is, subject to the will of the servient owner and capable of being interrupted. The determination as to whether a case falls on either side of the acquiescence/toleration divide depends on its particular facts.’
86
Among the other cases to which the court has been referred in this regard are The Leopardstown Club Limited v. Templeville Developments Limited [2013] IEHC 526, Walsh v. Sligo County Council [2013] IESC 48, two recent decisions of the English Superior Courts in Lynn Shellfish Limited v. Loose [2016] UKSC 14 and Winterburn v. Bennett [2016] EWCA 482, and the long-ago decision of the House of Lords in Gardner v. Hodgson’s Kingstown Brewery [1903] AC 229.
87
In Leopardstown Club, a case which involved a variety of issues, including alleged breaches of rights of way and to adverse possession of certain land, Charleton J. observed as follows, at 20, under the heading ‘ Rights of way’:
‘Consent is completely incompatible with prescriptive rights unless that consent has been given so far in the past as to be rendered irrelevant…. Assertion of rights based on permission is untenable…. What is clear is that the essential quality of prescriptive rights must arise by reference to right and not by reference to permission. A user giving right to prescriptive rights must be without force, without deception and cannot be based on permission from the owner of the land, or as early Norman French puts it nec vi, nec clam, nec precario’.
88
This Court respectfully inclines to the view that a known consent even if given in the long-distant past does remain relevant. Even so, and without prejudice to the foregoing, a consent given in 1989 or 1990 is clearly not in any event ‘ given so far in the past as to be rendered irrelevant’. But the critical limb of Charleton J.’s observations clearly holds true: ‘[T]he essential quality of prescriptive rights must arise by reference to right and not by reference to permission.
89
In Walsh, the well-known case concerning alleged public rights of way affecting the avenues of the recently restored Lissadell Estate, the Supreme Court, at para. 93, made clear that once a licence is given to use land no claim to prescriptive rights can arise:
‘User by permission of the owner is not user as of right. At the same time, user without express permission is not necessarily user as of right. Whether particular acts of user are to be described as being as of right requires account to be taken of all the circumstances. Acts may be tolerated or indulged by a landowner vis-à-vis his neighbours without being considered to be the exercise of a right.’
90
In Lynn Shellfish, which featured a dispute concerning the proper extent of a private shellfish fishery, Lord Neuberger, at para. 37 of his judgment, re-affirms that the quality of use required to establish a prescriptive right to a profit or use ‘ is embodied in the expressions, which have been held to be synonymous in their meaning and effect, namely “as of right” and nec vi, nec clam, nec precario (i.e. not secretly, not by force, and not with permission).’ Lord Neuberger also refers favourably to the helpful dictum of Lord Walker in R (Lewis) v. Redcar and Cleveland Borough Council (No 2) [2010] 2 AC 70, para. 30, that persons claiming to have acquired a right by prescription ‘ must by their conduct bring home to the landowner that a right is being asserted against him, so that the landowner has to choose between warning the trespassers off, or eventually finding that they have established the asserted right against him.’
91
In Winterburn v. Bennett [2016] EWCA 482, a case that has no little resonance in the context of the within proceedings where the plaintiffs maintain the car-parks, including the provision of signage and lighting in return for an annual service charge paid by Dunnes, the Court of Appeal of England and Wales, confronted with a case of unauthorised parking, held that the owner’s continued objection to the unauthorised parking sufficed to defeat a claim of parking as of right. In Gardner, the payment of a service charge (and such a charge is payable and paid by Dunnes here) was held fatal to the prescriptive right claimed there. Per Lord Halsbury, at 231:
‘[W]hat is conclusive, to my mind, against the appellant is that during the whole period during which this convenient access was used a sum of 15s a year was regularly paid in respect of the user of the way.
One of the most common modes of preventing such a user growing into a right is to insist upon a small periodical payment, and if such evidence as we have here were permitted to be evidence of a right, not only to the user upon terms of payment, but of a right to make the payment and continue the user in perpetuity, it would be a very formidable innovation indeed.’
92
Under the E&G Lease and the F Lease Dunnes has an express licence (permission) the effect of which is that its customers can park in the Northern Car Park Area. So no question of user without permission can arise that would yield an easement by prescription. As Bland on Easements (3rd ed.) notes, at para. 1-87, ‘[ P]ermission is fatal to a claim of prescription’. As Lord Lindley noted in Gardner, at 240 ‘ The common law doctrine is that all prescription presupposes a grant. But if the grant is proved and its terms are known, prescription has no place.’ Applying Lord Walker’s test in Lewis, what conduct has been brought home by Dunnes to the plaintiffs that a right is being asserted against them, so that the plaintiffs have had to choose between asserting their rights, or finding that those rights have been established against them? There has been no such conduct. Dunnes’ claim to easement by prescription must and does fail.
Hennessy v an Bord Pleanála
[2018] IEHC 678
Court: High Court (Ireland)
Judge: Ms. Justice Murphy
The Proceedings
33
The applicant applied ex parte for leave to apply for an order of certiorari quashing the decision of the Board and for an order remitting the matter to the respondent to be determined in accordance with law.
34
The applicant was somewhat selective with the facts which he chose to put before the court both in his statement of grounds and in his grounding affidavit. For example, he exhibited the planner’s report of Cork County Council of 3rd February, 2017 which is favourable to his position but failed to exhibit the report from the same planner of the same date which report is adverse to his position and which requires further information on his ownership/control of the treatment unit itself. More importantly, he did not exhibit the detailed submission by way of appeal to the Board from CPFM’s agents. He purports to do so in RH19 but, as already noted, that exhibit is a Board document which simply refers to the appeal. Nor did he reveal in either his grounds or in his grounding affidavit that he was given full opportunity by the Board to respond to CPFM’s submissions on the appeal but failed to do so within the statutory timeframe. In fact as already noted, he made submissions which were out of time and which as a matter of law could not be entertained and which were therefore returned to him.
35
In addition to being selective about the facts, the applicant also puts a certain gloss on other facts which in the courts view convey a wrong impression. He repeatedly conflates the right to connect to the treatment plant with the right to inspect, maintain and repair the treatment plant itself. On the facts, he enjoys the former, but to date has not demonstrated that he enjoys the latter.
36
At para. 22 of his grounds he asserts that the Board erred in law/or fact in determining that he did not have sufficient rights to operate and maintain the wastewater treatment plant located on the second notice party’s lands and to take corrective action as necessary in respect of the wastewater treatment plant. To show that the Board had erred he recites the easement which is not in dispute, entitling him to place, keep and maintain and repair a sewerage pipe on the notice party’s lands and the right to connect to the chamber and treatment plant also located on the notice party’s lands. Having described this as an express right, he goes on in the same paragraph to state:-
‘The Applicants[sic] lands enjoy an easement to inspect, repair and maintain the wastewater treatment plant located on the second notice party’s lands by way of implication and/or quasi easement and/or pursuant to the provisions of section 40 and section 71 of the Land and Conveyancing Law Reform Act, 2009, and/or by implication and/or common intention and/or pursuant to the principle of non derogation from grant at common law.’
The impression created by the contents of this ground is that, at the time of its decision, the Board was fully aware or was, at a minimum, on notice that the applicant was claiming implied or ancillary easements which give him a right to inspect, maintain and repair the treatment plant itself as opposed to the sewer pipe and the connection to it and that, notwithstanding that knowledge, the Board refused his application.
37
On the evidence this impression is simply not true. From the outset of the planning process a major issue was the availability to the applicant of a functioning wastewater treatment plant. He was twice asked for clarification by Cork County Council as to his ownership/control of the treatment plant and never asserted the existence of implied or ancillary rights to inspect, maintain and repair the treatment plant. The letter from his partner of 27th February, 2017 refers only to his right to connect to the treatment plant and is at best ambiguous as to the extent of his right to maintain and repair. In the context of this application the court considers it reasonable to infer that the ambiguity was deliberate. One matter is certainly clear which is that there is no specific claim to implied or ancillary rights.
38
The applicant was served with the appeal by the notice party which clearly asserted that he had no right of access to the treatment plant and percolation area and further asserted that the treatment plant was not then being maintained. He did not contradict either of those assertions. Not having done so he, now by the mechanism of judicial review, seeks to introduce new arguments to challenge the decision of the Board; arguments which should have been addressed in submissions to the Board. That is not permissible. All sorts of mischief would ensue were parties permitted to advance in a judicial review arguments which they could have, but did not, advance to the decision maker. In its submissions the respondent relied on a passage from Lewis Judicial Remedies in Public Law (5th Ed., 2015) at page 368:-
‘In a claim for judicial review, a court is concerned with reviewing the decision of a public body to ensure that the decision is not ultra vires. The courts will usually only look at the material before the decision-maker at the time that he took the decision in order to determine whether he has made a reviewable error. The courts do not consider fresh evidence, that is evidence which, if it had been put before the decision maker, might have influenced his decision. The court cannot, therefore, admit in evidence material that became available after the decision in order to determine whether the decision-maker erred in coming to his decision. Nor can the courts have regard to material which existed before the decision was taken and which, if it had been drawn to the decision-maker’s attention and been considered by him, might have influenced his decision. Thus, the courts could not consider fresh evidence as to the existence of a right of way in order to undermine a decision of a public body that no such right of way existed.’ (Emphasis added)
That is a succinct statement of law which this court accepts and endorses.
Alleged failure to utilise section 131
39
Based on the false premise that the Board was or should have been aware of his claim for implied or ancillary easements, the applicant seeks to argue that the Board should have exercised its discretion under s.131 of the Planning and Development Act 2000, as amended, to seek further submissions or observations on the nature and extent of his easements. He criticises the analysis of the inspector contained at paragraph 7.2.3 of his report where the inspector states:-
It is my interpretation that the rights pertaining to the site under the land registry document (second schedule, point 2) provides the applicant with “the right to inspect, repair and maintain” the pipe connecting to the chamber and treatment plant and “ the right to connect up to” same, but does not include any express right to inspect, repair and maintain the chamber and treatment plant itself. Furthermore, the wording of the letter from the applicant’s solicitor does not state to the contrary.’
The applicant argued that, in making that determination the inspector and the Board, acting on his report, were purporting to resolve a matter of law as to the nature and extent of the applicant’s easements and, in doing so, were acting ultra vires. He argues that the Board should instead have sought further submissions in respect of an issue of law which it had no competence to decide.
40
The court rejects that argument. Neither the inspector nor the Board purported to determine the applicant’s legal rights. What the inspector did was conduct a textual analysis of the materials before him on the appeal for the purpose of ascertaining whether the applicant had demonstrated as he had repeatedly been requested to do, that he had sufficient control over the treatment unit to ensure its ongoing operation, maintenance and repair. On the basis of that textual analysis, he concluded that the applicant had not demonstrated that he had the necessary ownership/control of the treatment unit to ensure its ongoing availability for the service of his dwelling. That was a reasonable conclusion for him to have come to on the facts before him. Had the applicant made the arguments to the Board that he seeks to make for the first time in this judicial review, that he enjoys ancillary or implied rights to maintain and/or repair the wastewater treatment plant itself as opposed to merely the sewerage pipe and connection, then other considerations might have applied. The fact is that he did not do so. In those circumstances there was no obligation on the Board to invoke or deploy its powers under s. 131 of the 2000 Act.
Alleged failure to have regard to section 34(13)
41
The applicant further submits that the Board should have granted him permission and should have left the issue of his entitlement to maintain and repair the treatment plant to civil remedy. The applicant cites s.34(13) which provides ‘ a person shall not be entitled solely by reason of a permission under this section to carry out any development.’
That provision simply and expressly states that a grant of planning does not override a person’s existing common law rights. Private law remedies remain open to an aggrieved neighbour. The applicant is suggesting that the Board should have granted him permission and that CPFM, if aggrieved, could assert such rights as it claims in civil law. The Board advanced a number of cogent arguments as to why such a course would not be appropriate in this case. The availability of suitable wastewater treatment is a core requirement of any planning application. Any proposed development which cannot show access to suitable wastewater treatment constitutes a risk to public health. This fact is underpinned by the Planning and Development Regulations 2001. Article 22(2)(c) of the 2001 Regulations requires that a planning application in which it is proposed to dispose of wastewater, other than to a public sewer, be accompanied by:-
‘…information on the on-site treatment system proposed and evidence as to the suitability of the site for the system proposed.’
Thus the respondent argues that demonstrating access to a suitable, operable and maintainable waste treatment system is a key requirement of every planning application that is not connected to a public sewer. Where access is not demonstrably available then the Board is entitled to refuse permission on public health grounds.
42
Further, the Board maintains that leaving the issue of access to wastewater treatment to be resolved between the applicant and CPFM in private law proceedings is particularly inappropriate in this case. This is not an application for a new development where the issue of access to wastewater treatment would have to be resolved before development. Here the dwelling already exists and what is being sought is retention. Were the Board to grant permission for retention for permanent use, the house could be occupied without a suitable wastewater treatment solution being in place. This gives rise to a public health risk. The court agrees with the respondent that, on the facts, this is not a case where the Board could responsibly grant permission first and allow any legal issues to be determined in subsequent private law proceedings.
Alleged failure to have regard to conditions attached to previous grants
43
Finally, the applicant argues that in coming to its decision, the Board failed to have regard to the combined effect of two conditions attached to previous grants of planning permission. He refers to condition 9 attached to the original grant of planning for the construction of the hostel in 1996 which provided that:-
‘The small treatment plant referred to in the above condition shall be operated and maintained in perpetuity to the satisfaction of the Planning Authority and before development commences, written evidence of a maintenance contract to ensure to continuous operation of the treatment plant shall be submitted and agreed with the Planning Authority.
Reason: In the interest of public health’
The applicant also sought to rely on condition 8 of the planning permission for the construction of the caretaker’s lodge granted in 2000 which provided that:-
‘Connection shall be made to the existing effluent treatment plant to the satisfaction of the Planning Authority.
Reason: In the interest of orderly development.’
It is demonstrably incorrect to state that the inspector failed to have regard to these conditions. The inspector noted the contents of conditions 9 and 10 and stated at para. 7.2.6 as quoted above, that ‘ in theory this should ensure that the WWTP is maintained for the subject dwelling, however this clearly is not the case.’ The inspector continued ‘the applicant does not have sufficient rights over the system to ensure that it is suitably operational’ and, on this basis, the inspector concluded that occupation of the dwellinghouse was prejudicial to public health. The respondent argued, correctly in the court’s view that it was not sufficient to consider the issue on a theoretical basis. The Board had to consider the situation on the ground. The situation on the ground in this case is that the wastewater treatment plant on which the applicant purports to rely is not on his land; is not being maintained; is apparently inoperable; and is not connected to an electricity supply. Furthermore despite repeated requests to do so, the applicant has not demonstrated that he has sufficient ownership or control of the wastewater treatment plant to satisfy the Board that a suitable wastewater treatment is or will be, available for the dwelling. If and when the applicant demonstrates that he has access and control over the wastewater treatment plant, to which his sewerage is connected, then an application for a change of use from its current status as a dependent dwelling to a new status as an independent residence, is likely to succeed.
Conclusion
44
The court is satisfied that the decision of An Bord Pleanála in this case is a rational decision based on the evidence presented to it. The decision is underpinned by proper and appropriate planning principles and is clearly made within jurisdiction. The applicant having failed to participate in the appeal process cannot now seek to impugn that decision by introducing arguments that were never made to the Board. For the reasons set out in this judgment the court refuses this application.
Conneran & O’Reilly v Corbett & Sons Ltd & Radical Properties Ltd
[2004] IEHC 389
Judge: Miss Justice Laffoy
The plaintiffs’ rights
In each of the leases the lessees were given the express right to use the car park delivery doors and the internal common parts for receiving deliveries of stock and materials. Indeed, the plaintiffs were effectively mandated by covenant 34 to receive deliveries by this route and no other. Further, it is clear on the evidence that it was the common intention of the parties that the car park delivery doors would be accessed over the car park and loading area from the public roads at Castle Street/Barrack Lane or Whitehall and that loading and unloading would take place in the loading area. Therefore, the plaintiffs acquired rights by implication to give effect to that common intention. Absent such implied rights, the express right granted in each lease would be ineffective. The defendants conceded as much – properly, in my view. The express and implied rights were easements.
The agreement under which the plaintiffs used the hatch doors and the chute for receiving deliveries was a separate agreement, which post-dated the grant of the leases. In my view, the nature of the agreement was correctly characterised in the letter dated 4th February, 1998 as a revocable licence. The first defendant was entitled to revoke the licence on reasonable notice. In reality, the plaintiffs got no notice.
The case made on behalf of the defendants was that, in reliance on reservations 3 and 6, the first defendant, as lessor, was entitled as of right to deprive the plaintiffs of use of the car park delivery doors, the hatch doors, the loading area and access through the car park.
The principles applicable to the construction of grants and reservations of easements are stated as follows in Wiley onIrish Land Law,3rd ed. at para. 6.058:
“The precise effect of a purported grant or reservation of easements or profits is, of course, to a large extent a matter of construction of the relevant conveyance. In such questions of construction two principles are most relevant, namely that a grant is in general construed against the grant or and that a man may not derogate from his grant. The first principle means that, in cases of doubt, (e.g. over the exact scope of the easement or profit), a grant of an easement or profit will be construed against the grantor in favour of the grantee, whereas a reservation, being treated as a re-grant by the grantee, will be construed against him in favour of the grantor.”
In my view neither reservation 3 nor reservation 6 is the reservation of an easement which is to be treated as a re-grant in the sense envisaged in the foregoing passage. Rather, they are provisions which are designed to ensure that the lessor is free to deal with property adjacent to the demised premises to the extent expressly provided. In any event, I am of the view that there is no ambiguity in, or doubt about, the scope of those provisions.
Wiley deals with the second principle in para. 6.059 in the following terms:
“As regards the rule that a may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land.”
The effect of clauses permitting development is specifically considered in Gale on Easements, 16th ed., at p. 472 in the following passage:-
“It is quite common, particularly in leases, to find the grant of an easement qualified by a reservation of a right to develop or alter the servient tenement in such manner as the servient owner shall think fit, notwithstanding that the access of light or air to the dominant tenement and (sometimes) any other easement appurtenant to the dominant tenement may be obstructed or interfered with. The effect of such a provision is a matter of construction in each case but the court will lean against a construction which would entitle the servient owner to deprive the dominant tenement of all access of light and air or the whole benefit of any other easement such as a right of access. Such a provision may however, permit acts which would otherwise amount to an unjustified obstruction to or interference with an easement and would otherwise be an actionable nuisance but not acts which would for practical purposes destroy the easement. In that case the servient owner can obstruct or interfere with a dominant owner’s rights, provided the dominant owner is left with reasonable enjoyment of them, though not necessarily in so convenient a manner or to such an extent as at the date of grant. So, where leases of flats contained a grant of rights of access over the forecourt but also such a provision as is under discussion, and the landlord wished to delineate parking spaces on the forecourt with lockable posts and grant exclusive licences of the spaces, it was held that he was entitled to do so, despite the fact that the scheme proposed would substantially interfere with the rights of access granted by the leases and otherwise amount to an actionable nuisance.”
As a matter of construction, in my view, reservation 3 contains two separate and distinct provisions for the benefit of the lessor. The first gives the lessor the right to develop property adjoining the demised premises notwithstanding that such development would otherwise constitute an actionable nuisance because of interference with the access of light or air to the demised premises. The first limb of reservation 3 does not, either expressly or by implication, provide that the lessor is free to develop adjoining property in a manner which would interfere with the express and implied rights to receive and make deliveries through the car park delivery doors and access via the car park and loading area which were demised to the plaintiffs as lessees. The freedom which the second limb o f reservation 3 reserved to the lessor must be construed, applying the principle of non-derogation from grant, as permitting the lessor only to vary the scheme, layout and use of Corbettcourt Shopping Mall other than the premises demised to the plaintiffs in a manner which would not deprive the plaintiffs of the reasonable enjoyment of the easements and rights acquired by them under the leases.
In relation to reservation 6, counsel for the plaintiffs submitted that, as a matter of construction, regulation of delivery of stock and goods does not encompass the prevention of such delivery and, in this connection, he referred to Stroud’sJudicial Dictionary of Words and Phrases, 6th ed. at vol. 3, at p. 2239. In my view, applying the principle of non-derogation from grant, reservation 6 does not entitle the lessor to effectively confiscate the express and implied rights to receive and make deliveries and of access which the plaintiffs acquired under the leases.
Accordingly, the provisions of the leases and, in particular, the provisions of reservations 3 and 6, did not entitle the first defendant to block up the car park delivery doors and to prevent the plaintiffs receiving and making deliveries through those doors from the loading area and to traverse the car parking areas from either Barrack Lane/Castle Street or Whitehall to access those doors.
Interference so as to give rise to a cause of action?
As is pointed out in Bland onThe Law of Easements and Profits à Prendre at p.56, to constitute a disturbance with an easement of way there must be a real substantial interference with it.
In this case, the factual position is that there has been a total obstruction of the plaintiffs’ use of the car park delivery doors since February 1998 and this obstruction is permanent. Between February, 1998 and September, 2003 there was no access at all over the car parking area to any part of the rear of Corbettcourt Shopping Mall. Since September, 2003 there is a limited access from Barrack Lane via the passage which was formerly part of the car parking area, past the coffee shop through the porch entrance. I accept the evidence of the first plaintiff that this route is totally unsuitable and impractical for effecting deliveries to and from the plaintiffs’ retail units and that it is not used by them. Indeed, Mr. Corbett’s evidence was that this route is not used frequently and that deliveries are either brought in through the main entrance at Williamsgate Street or via Ballalley Lane. On the evidence I find that there has been a real and substantial interference with the express and implied rights acquired by the plaintiffs under the leases. It is no answer for the defendants to say that the other routes (the main entrance at Williamsgate Street, Ballalley Lane and the Eyre Square Shopping Centre loading bay) are still available to the plaintiffs. The plaintiffs have been deprived, not only of the most convenient route, but of the only suitable route for efficient bulk deliveries of the merchandise retailed in Unit No. 12 in contravention of their rights.
Conclusion
Accordingly, I conclude that the plaintiffs have established liability on the part of the defendants.
Begley v Damesfield Ltd
[2018] IEHC 221
Reported In: [2018] 3 JIC 2313
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Ms. Justice Baker
Implied easement of access and egress
40
The plaintiff argues that there is to be implied as a matter of law into the leases of the berths an easement of access and egress. The first and second defendants argue that the express documents of purchase preclude such claim.
41
Special condition 19(g) of the contract for sale provided for the form of the purchase lease and that the purchaser should not be entitled to call for a lease in any other form or containing any other or different reservations, easements or conditions, and that the purchaser agreed to be deemed thereby ‘to have full knowledge of the contents thereof and the nature and extent of the rights and obligations affecting the marina berth’.
42
It is argued therefore by the defendants that no easement can be implied into the lease, and that the express terms contain all agreed reservations, easements and conditions.
43
I consider that special condition 19(g) does no more than prevent an individual purchaser of a marina berth from seeking a lease different in form from that granted to other purchasers. The estate scheme requires that the owners have similar or broadly similar purchase deeds: Elliston v Reacher [1908] 2 Ch 374. The argument from special condition 19(g) does not provide an answer to the claim of the plaintiff as it does not in its terms exclude a claim by a purchaser to the benefit of other easements which might be implied as a matter of law or deriving from the common intention of the parties.
44
However, general conditions 15 and 16 of the contract for sale expressly deemed the purchaser to be on notice of the actual state and condition of the sold lands. I am satisfied also on the evidence that the plaintiff had ample opportunity to inspect the berths and the access and accepted in evidence that he was aware of the presence of some impediment to navigation before he closed the sale.
45
The claim under this head cannot succeed for this reason.
Easement to be implied from necessity
46
The plaintiff also relies on the argument that there exists an implied right of access over the adjoining waterways by way of easement of necessity.
47
Reliance is placed on the judgment of Kinlen J. in Dwyer Nolan Developments Ltd. v. Kingscroft Developments Ltd. [1998] IEHC 125, [1999] 1 ILRM 141, where an easement was claimed by the owner of a retained property over a property he had sold. That case concerned the implication of a reserved easement, not a granted easement, and does not seem to me to offer much assistance.
48
The second defendant, Mr. Lally, is the owner of the long 900-year lease term in the waterways, which he holds under the lease of 2 July 2003 and the supplemental deed of rectification made on 8 September 2005. The recognition that there exists as easement of necessity over the waterways in the title of Mr. Lally is to be implied into the two purchase leases, notwithstanding that no express grant was made.
49
The difficulty that the plaintiff faces is that a declaration that there exists such a right does not resolve the practical question of how the access is to be enjoyed.
50
The law is well established that the owner of the servient tenement does not owe an obligation to the dominant owner to keep the way in repair. The principle is succinctly stated in Gale on Easements, 20th ed., at para. 13.01, where the authors state the proposition as follows:
‘Because the owner of an easement is not in any sense in possession of the servient tenant, his action for inference with his easement cannot be in trespass since that is a cause of action that can only be maintained by a person in possession. His only remedies are abatement or an action for nuisance’.
51
In the leading Irish text on easements, Bland, Easements, 3rd ed., the author considers at para 1-53 that as a general principle the servient owner of land does not have an obligation under common law to repair the subject matter of the easement and notes Dunne v. Malloy & Willow [1976-77] ILRM 266. Mr. Bland rather tantalisingly says there is no ‘high authority’ for this proposition, but that it has gathered force from the momentum of successive writers.
52
It seems to me that the proposition stated by Bland is correct and the owner of a servient tenement must permit the dominant owner access to the servient lands to improve, construct or rectify the way, but has no obligation to do anything to the servient lands to improve the quality of access.
53
Whether that proposition extends to a wider proposition that the servient owner who sells the dominant land has an obligation to carry out works to make the way passable, and not merely to improve it or remove obstacles which were not present, at the time of the grant, is a more difficult proposition. It does not require to be answered in the present case because Mr. Begley closed the sale of the two berths when he knew of the existence of the rocks he must be said to have taken the berths with the benefit of the easement of access and egress over the waterway as it was then physically configured. It could not be said that the obstruction was latent. A further consideration of the legal principles must be left to another case.
54
For these reasons, I consider that the plaintiff has not made out a case that there has been a breach of any of his rights as dominant owner of the easement of access over the waterway in the title of Mr. Lally.
55
The plaintiff also claims against the first and second defendant in nuisance arising from the obstruction on the way.
Action in nuisance
56
It is argued that the plaintiff has a claim in nuisance arising from the creation or maintenance of an obstruction on the way, either that the obstruction is a nuisance or that the first and second defendants have failed to take steps to abate a nuisance. The statement of Gale on Easements quoted above might assist were it not for the fact that, generally speaking, actionable nuisance requires a plaintiff to show an act or omission on the part of the defendant. The first and second defendants rely on para 20.01 of Clerk and Lindsell, On Torts, 22nd ed.:
‘Nuisance as an act or omission which is an interference with, disturbance of or an annoyance to a party in exercise or enjoyment of (a) A right belonging to him as a member of the public or (b) His ownership or occupation of land or of some other easement or profit or other right used and enjoyed in connection with the land, where it is a private nuisance. The right is conferred by the law of nuisance arise by virtue of the general common law and are therefore not dependent for there coming into existence on the terms of any conveyance of the land in question.’
57
To establish nuisance, the plaintiff would have to establish what has been called an ‘unreasonable interference’ with the exercise of his rights at para. 24.01 of McMahon and Binchy, Law of Torts, 4th ed.
58
The plaintiff has not shown that the first and second defendants have interfered with his right by any act or omission. The rocks were in position at the time the plaintiff closed the sale and no act or omission of the first and second defendants has occurred from which damage has been suffered.
Derogation from grant
59
The general principle that a lessor or grantor may not derogate from grant is well established.
60
Professor Wylie in paras. 14.12 and 14.13 of his Irish Landlord and Tenant Law, 3rd ed., refers to the judgment of the Court of Appeal for England and Wales in Chartered Trust v. Davies [1997] 2 EGLR 83, where the landlord of a small shopping mall was held to be in derogation by allowing other tenants to cause a nuisance affecting the plaintiff tenant’s business. The Court held that the landlord had failed to manage the mall properly by not enforcing regulations governing the use of the common areas and trading by tenants and had failed to enforce the covenants by those tenants not to cause a nuisance or annoyance.
61
Until recently, one of the leading Irish cases on the principles of non-derogation from grant was the judgment of Barron J. in Connell v. O’Malley (HC, 28th July 1983), where a vendor was by injunction prohibited from restricting an access route to land sold on the bases that doing so would be a derogation from grant. Barron J. cited with approval the dicta of Cotton L.J. in Birmingham, Dudley and District Banking Co. v. Ross [1888] 38 Ch D 295:
‘For instance, where one man grants to another a house then prima facie he cannot interfere with that which he has granted… namely the house, and enjoyment of the house. That obligation arises I repeat, not from any interpretation of the conveyance, but from the duty which is posed on the grantor in consequence of the relation which he had taken upon himself towards the grantee’.
62
The doctrine of non-derogation from grant was recently considered by Barrett J. his judgment in The Square Management Ltd v. Dunnes Stores Dublin Company [2017] IEHC 146, and by the Court of Appeal in its judgment on the appeal [2017] IECA 256. Whelan J. expressly approved the reasoning and conclusions of Barrett J. and both Barrett and Whelan JJ. cited with approval the judgment of Laffoy J. in Conneran v. Corbett [2004] IEHC 389, and in particular a passage cited from para. 6.059 of Wylie, Irish Land Law, 3rd ed.:
‘As regards the rule that a man may not derogate from his grant, the philosophy here is that, when a man transfers his land to another person, knowing that it is going to be used for a particular purpose, he may not do anything which is going to defeat that purpose and thereby frustrate the intention of both parties when the transfer is made. Usually application of this principle creates property rights in favour of the grantee which take the form of restrictions enforceable against the grantor’s land’.
63
Barrett J. also considered the principles set forward by Neuberger J. giving judgment in the English High Court in Platt v. London Underground Limited [2001] 2 EGLR 121, and at para. 71, stated the following:
‘Between them Conneran and Platt offer abundant guidance to the court in seeking to determine whether there has been a derogation from grant in the context of the within proceedings. Conneran points the court in the direction of looking for ‘ a real and substantial interference with the express and implied rights acquired by the Plaintiffs under the leases’. Likewise, Platt, among the various principles it identifies (which point in the main to factual considerations that will differ from case to case) mentions, as a helpful test for identifying derogation, ‘ whether the act or omission has caused the demised premises to become unfit or substantially less fit than the purpose for which they were let…’. In essence, it seems to the court that what one is looking for when testing for derogation from grant is actual or likely deprivation of a grantee’s reasonable enjoyment of its existing rights as grantee’.
64
This statement of principle by Barrett J., quoted with approval by Whelan J. in her judgment, is helpful in showing that to establish a derogation of grant there has to be a ‘real and substantial interference with the expressed and implied rights acquired by the plaintiff under the leases’, the phrase used by Laffoy J. in Conneran v. Corbett. In Platt v. London Underground Limited, Neuberger J. had also explained the test as requiring that a claimant show:
‘whether the act or omission has caused the demised premises to become unfit substantially less fit in the purpose for which they were let’.
65
Whelan J. regarded it as essential that the alleged derogation is to be considered by reference to the factual matrix. In the present case the evidence points to the fact that at the date of the leases there was demise to Mr. Begley of the two berths which at that time were accessed to what is essentially or for relevant purposes an unnavigable channel.
66
Having regard to the analysis of Barrett J. and Whelan J., I consider that the doctrine of non-derogation from grant has application to the acts or omissions of a lessor after the demise which can be shown to render the demised lands unfit or less fit for the purpose for which they were let.
67
At the time of the leases the berths were not fit, but that fact did not arise from any new or additional act or omission by the lessor, but was present at the date of the closing of the sales. Thereafter, no derogation by the lessor from his grant has been shown.
Breach of the covenant for quiet enjoyment
68
The claim is also framed as a claim for breach of the covenant that the plaintiff would quietly enjoy the demised lands.
69
The covenant for quiet enjoyment was not express in the subject lease, but is implied by statute under s. 41 of the Deasy’s Act.
70
The covenant for quiet enjoyment, insofar as it creates rights which might be differently construed from those deriving from the doctrine of non-derogation from grant, must also be seen as extending to interference after the grant of the lease. The covenant for quiet enjoyment is prospective in its operation as was considered by the House of Lords giving its judgment in Southwark London Borough Council v Tanner cited above.
71
I cannot agree with the proposition advanced by the plaintiff that the covenant for quiet enjoyment imports a positive obligation on the part of the lessor to clear the obstruction on the waterway. In my judgment in O’Donnell v. Ryan & Others [2017] IEHC 607, I rejected an argument that a claim arising from alleged defects in the quality and structure of a building even if established as a matter of fact could amount to a breach of covenant and considered that ‘the covenant does not import a positive duty to repair, but rather an obligation to reframe from actions which might interfere with possession, enjoyment of the subject matter of a demise, as understood at law’.
72
I accepted at para 82 that the covenant for quiet enjoyment regulated the conduct of a lessor during the tenancy and did not import a warranty as to the condition of the demised premises at the commencement of the term:
‘The essential argument of the first defendant is that the covenant for quiet enjoyment is the covenant enjoyed by a tenant during his tenancy and I agree with that proposition. It is not a covenant which imports a warranty as to the suitability or condition of the premises at the time that the tenancy was created. Such a warranty is inconsistent with the principle of caveat emptor, and with the scheme of disposal’.
73
The eleventh principle identified by Neuberger J. in his judgment in Platt v. London Underground Limited is one that must bear on the analysis:
‘When assessing what the parties to a contract actually or must have contemplated, one should focus upon facts known to both parties and statements and communications between them. A fact that could only have been known to one party could not, save in very unusual circumstances, be a legitimate part of the factual matrix. A thought locked away in the mind of the parties, or even perhaps of both parties, cannot normally be a relevant factor when assessing the parties’ understanding. In English law, at any rate, contract is concerned with communication as well as mutuality’.
74
I consider for these reasons that the plaintiff’s claim that the lessor has been in breach of the implied covenant for quiet enjoyment must fail.
75
The plaintiff argues, however, that he closed the sales on foot of an agreement that the access be made navigable and I turn now to examine this argument.
Conclusion
104
I consider that the plaintiff has made out a case in breach of contract against the first and second defendants. The claim for damages for nuisance, breach of an implied easement or for breach of the covenant for quiet enjoyment or deriving from the doctrine of non-derogation from grant does not succeed.
105
No claim has been established against the third defendant.
106
The plaintiff has sought a mandatory order that the first and second defendant would take steps to make the waterway navigable. I accept, and the plaintiff accepted in the course of evidence, that that remedy is not one that can reasonably be achieved, and accordingly, I am of the view that the plaintiff’s claim lies in damages, either in lieu of an injunction or in lieu of specific performance.
107
As to the measure of damages the plaintiff paid €40,000 for each of the two berths, both of which are now useless for purpose. In addition, he paid stamp duty of €2,400 in respect of each berth.
108
The plaintiff continued to pay service charges in respect of the berths and to date this amounts to the sum of €5,467. He did not pay the sum of €2,226.84 charged against him the last two moieties.
109
The plaintiff has had to rent an alternative berth and has incurred to date the sum of €19,022.26.
110
A claim for rescission has not been pleaded.
111
Had the plaintiff purchased navigable berths he would have the enjoyment of the berths, but having regard to the loss of value derived from economic conditions in the country generally and because it was frankly accepted that these were ‘Celtic Tiger’ developments and purchases, I consider that what the plaintiff has lost is the current value of the berths and not the cost that he incurred.
112
I accept the evidence adduced on behalf of the first and second defendants that a receiver of Damesfield (or a related ‘Lally Company’) has offered for sale ten of the berths, of mixed sizes and some of which suffer from navigation issues, for the total sum of €50,000. That makes the average value of the berths €5,000. The berths purchased by Mr. Begley were of the largest type available in the marina, and I consider that a reasonable current value of the berths if they were to be sold either singly or together, but not as part of a lot of ten berths of mixed sizes, would be the sum of €15,000 each.
113
Mr Begley has lost the value of the berths which are useless and therefore, I propose awarding him €30,000 for breach of contract measured at the notional current value of the berths, the sum of €19,022.26 paid in respect of an alternative berths, as this is not a head of damage which was argued to be remote. I also propose refunding him the service charges already paid of €5,467.
114
Mr. Begley accepted that he would now be prepared to exchange the two berths he purchased for numbers 34 and 36. These berths were offered to him in correspondence in September 2013 but the offers were not unconditional, and the letter of offer made it clear that the vendor’s costs of €500 plus VAT were to be paid in respect of each berth, as the first defendant’s lenders would not cover the costs. In the circumstances I do not consider that the offers were unconditional, and Mr. Begley did not fail to mitigate his loss by not being prepared to resolve the matter at that stage even by the payment of what must in hindsight look like a modest amount, as the occurrences in the previous few years had led him to believe, as he said in evidence, that the offers were real not ‘real or sincere’.
115
It is unclear if the offer to transfer those berths remains open.
116
Therefore, I propose awarding Mr. Begley the sum of €59,289.26 in damages against the first and second defendants jointly and severally. I will hear counsel regarding the possible transfer of two alternative berths.
Byrnes & Neylon v Meakstown Construction Ltd
[2009] IEHC 123
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr Justice Brian McGovern
JUDGMENT of
Mr Justice Brian McGovern
delivered on the 18th day of March 2009
The plaintiffs agreed to purchase an apartment at 35, Beechpark Wood, Beechpark, Leixlip, County Kildare, subject to contract and good marketable title.
In this vendor and purchaser summons, the court is asked to determine the following issues:
(i) Was the evidence of easement provided by the Defendant through its Solicitors at the date of expiry of the completion notice dated 10th December, 2007, adequate to show good and marketable title to the right-of-way contracted for under the said agreement?
(ii) Was the Defendant in a position to show good and marketable title as of the date of expiry of the completion notice dated 10th day of December, 2007?
(iii) Were the plaintiffs entitled to rescind the said contract for sale dated the 14th September, 2006?
(iv) Are the plaintiffs entitled to the return of the deposit paid on foot of such contract in the sum of €16,000?
3. On 14th September, 2006, the plaintiffs entered into a contract for sale with the defendant for the purchase of an apartment, namely, Number 35, Beechpark Wood, Beechpark, Leixlip, County Kildare. The contract price was €330,000 of which €16,000 was paid as a deposit. The usual pre-contract enquiries were made. These proceedings concern a right of way over County Council lands from a roadway to the land on which the apartment is situated. The plaintiffs’ apartment is part of a large development. The development is on lands comprised in folio 40572F County Kildare, part of folio 1890. The development site did not have direct access to the public road, but when the lands were sold to the developer, the vendor purported to give a right of way from the roadway onto the lands across a strip of land now comprised in folio 47656F and 33451F County Kildare. Kildare County Council has been registered as full owner of folio 33451F since 27th November, 2002, and folio 47656F since 1st November, 2005.
4. The development site was originally sold by Mr. Michael Finnegan to Mr. Cormac Finnegan, Fionnuala Finnegan, John Finnegan, Peter Finnegan, Joseph Finnegan and Elizabeth Desjardins as “the original purchaser” and to Durkan New Homes Ltd., as the “sub-purchaser”. A Deed of Transfer to that effect was completed on 17th February, 2003. Kildare County Council was registered as the full owner of the lands comprised in folio 33451F and 47656F of the Register of Freeholders, County Kildare, on 27th November, 2002 and 1st November, 2005, respectively. Thus, at all times since the plaintiffs entered into a building contract and contract for sale, Kildare County Council have been owners of the strip of land over which it was purported to give a right of way from the public roadway to the development.
5. The plaintiffs’ solicitors raised pre-contract enquiries concerning the right of access to the property being sold. The plaintiffs maintained that the right of way offered was not a general right of way, but merely gave the developer the power to make a road from the public roadway to the development site. The contracts were returned to enable the vendor to furnish evidence of a right of way and the plaintiffs maintain that the vendor accepted the returned contracts on that basis. Over a number of months, the correspondence continued to deal with the issue and the plaintiffs’ solicitors were still asking for evidence of a right of way. As the matter had not been resolved by December 2007, the plaintiffs’ solicitors served a completion notice on the vendor on 10th December, 2007. If one discounts Christmas Day, the notice expired on 8th January, 2008. Before the expiration of the notice, the vendor’s solicitors, on 21st December, 2007, enclosed a deed of grant of right of way from Kildare County Council. This was a deed of confirmation in which the County Council consented to the registration of the deed as a burden on the lands concerned. The plaintiffs maintain that the granting of a right of way by the County Council over their lands was, in fact, a “disposition” and required a resolution of the Council which had not been obtained. In the circumstances, the plaintiffs rescinded the contract. The plaintiffs maintain that at all material times, they were ready, willing and able to complete the contract.
6. The defendant maintains that it has provided, within the twenty-eight day period of the completion notice, proper evidence of a right of way and that the plaintiffs are exploiting a downturn in the property market to contrive a situation where they can resile from the contract but that they are not entitled to do so.
7. In order to resolve the issues between the parties, it is necessary to look, in some detail, at the documents and the correspondence passing between them.
8. On 17th August, 2006, the plaintiffs’ solicitors wrote to the defendant’s solicitors raising certain pre-contract enquiries. Under the heading ‘Title’ the following paragraph appears:
“2.6 We refer to clause 3 in the Second Schedule in the said Deed of Transfer. We note that Durkan New Homes Ltd. was given the right to enter on that part of the retained property shown coloured yellow on the plan with workmen and others etc., to lay a road and what ever utilities may be required to provide services for the benefit of the sole (sic) land and any building thereon leading from the sole (sic) land over that portion of the retained property shown coloured yellow to and from the public road and services. As Stephen Manning, in his draft Declaration of Identity at paragraph 2(3) confirms that folios 40572F, 1889 and 12920 County Kildare abut directly on to the road way shown coloured yellow on the plan attached to the said Deed of Transfer dated 17th February, 2003, which abuts directly on to the public road, please confirm and furnish evidence that a general right of way was granted to Durkan New Homes, its Executors, Administrators and Assigns over that portion of the road way shown coloured yellow on the plan attached to the said Deed of Transfer which abuts directly on to the public road.”
It is clear that the word “sole” where it appears in that paragraph should be “sold”.
9. Clause 3 of the Second Schedule in the Deed of Transfer reads as follows:
“The right at any time within the Perpetuity Period and subject to compliance with the provisions of the local government (Planning and Development) Act, 1963 to date or as amended and on giving reasonable notice to the Vendor to enter onto that part of the Retained Property shown yellow on the Plan with workmen and others and all necessary vehicles, equipment and machinery at its own expense to lay a road and whatever of the Utilities as may be required to provide whatever of the Services as may be required by the Purchaser for the benefit of the Sold Land and any buildings erected thereon within the Perpetuity Period leading from the Sold Land over the portion of the Retained Property shown coloured yellow on the Plan to and from the public road and services.”
On 18th March, 2006, this right of way or easement was registered as a burden on folio 1890 County Kildare. The vendor’s solicitors replied on 22nd August, 2006, saying:
“Clause 3 is explicitly for the benefit of the sold land and the Buildings thereon which would allow the use of the roadways.”
The plaintiffs’ solicitors then wrote, asking the vendors to:
“… furnish evidence that a general right of way was granted to Durkan New Homes, its Executors, Administrators and Assigns over that portion of the roadway shown yellow on the plan attached to the Deed of Transfer dated 17th February, 2003, which abuts directly onto the public road as evidence that it has the right to grant a similar right of way over the said area coloured yellow to the purchasers or properties within the above development.”
10. By letter dated 14th September, 2006, the vendor’s solicitors accepted the return of the contracts:
“…conditional on our clients furnishing you with evidence of a right of way over the said roadway extending to the above property.”
On 18th September, 2006, the plaintiffs ‘ solicitors wrote to the defendant’s solicitors asking them to furnish the evidence of a right of way as soon as possible and, in any event, prior to completion. The vendors replied, confirming that they would do so. On 4th December, 2007, the plaintiffs’ solicitors wrote to the defendant’s solicitors confirming that they were still awaiting evidence of the right of way and that letter was replied to on the same date as it appears the earlier letter had been sent by fax. In their reply, the vendor’s solicitors stated:
“It transpires that the said area coloured yellow on the map attached to the 2003 Transfer is in fact in the ownership of Kildare County Council. The access road serving Beechpark has already been laid by our clients on the yellow lands in accordance with the planning permission and as provided for by the 2003 Transfer and is being used by the public for access to and from Beechpark.”
They also confirmed that the roads and services at Beechpark were to be taken in charge by the local authority. A copy of the folio showing the Council’s title to the lands was produced and the vendors were informed:
“As this access road is already owned by the Local Authority, a Deed of Grant of Right of Way will not be furnished in relation to it.”
11. The plaintiffs’ solicitors replied saying that it was not sufficient to provide a copy folio showing Kildare County Council as the registered owner of this land and that this was not evidence of the right of way as requested by them and upon which the contract was made conditional. On 10th December, 2007, the vendor’s solicitors wrote to the plaintiffs’ solicitors confirming that the apartment which they were purchasing is comprised entirely within folio 40572F County Kildare, and that the property has the benefit of the easement contained in paragraph 3 of the Second Schedule of the 2003 transfer which granted the right to lay a road for the benefit of the sold land and any buildings erected thereon. They asserted that:
“The apartment, quite clearly therefore, has the right to benefit from the road by using it.”
They also informed the plaintiffs’ solicitors that the solicitors for other purchasers had accepted the position as outlined.
12. On 10th December, 2007, the plaintiffs’ solicitors sent a notice of completion of the same date to the vendor’s solicitors. This was a twenty-eight day notice and confirmed that the purchasers were ready, willing and able to complete the sale. On the following day, they sent a letter to the vendor’s solicitors informing them that the evidence which had been offered as to the right of way was insufficient. On 21st December, 2007, the vendor’s solicitors enclosed a copy Deed of Grant of Right of Way from Kildare County Council. The Deed stated inter alia:
“…the Council, as beneficial owner and as the party entitled to be registered as owner of the yellow lands, hereby confirms onto Durkan and for the avoidance of doubt, hereby grants onto Durkan for the benefit of the lands comprised in folio 40572F of the Register, County Kildare, and any buildings now or at any time within twenty-one years from the date hereof erected thereon full right and liberty for Durkan, its successors and assigns and its servants and agents, workmen, licensees, invitees, tenants and under tenants in common with the Council and all other persons who have or may hereinafter have the like right to pass and re-pass over the Yellow Lands leading to and from the lands comprised in folio 40572F County Kildare from and to the public road at all times by day and by night on foot and with or without motor vehicles.”
The Deed also confirmed that the Council assented to the registration of the Deed as a burden on the yellow lands. “Durkan” referred to in the Deed was Durkan New Homes (formerly known as Durkan New Homes Ltd.).
13. On 3rd January, 2008, the plaintiffs’ solicitors asked the vendor’s solicitors to furnish a copy of the resolution of the Council authorising the grant of the right of way and/or Ministerial consent to the creation of the said easement in circumstances where no consideration has passed. In a reply of 4th January, 2008, the vendor’s solicitors said that this was not necessary and that the Deed confirmed that the rights granted were existing rights and that the consideration is as expressed in the Transfer of 2003. On the same date, the plaintiffs’ solicitors wrote again to the vendor’s solicitors repeating their request and stating:
“We require a copy of the resolution of the Council authoring (sic) the granting of the said right of way. We do not understand your submissions that the Deed ‘confirms that the rights granted were existing rights’. If such was the case, there would be no requirement for this Deed. However, the Deed has been furnished in response to our queries concerning the inadequacy of the prior grant as a grant of right of way. We had submitted, that contrary to your stated position, the prior grant did not grant a right to pass and re-pass over the lands coloured yellow contain (sic). This position was accepted by you and has resulted in the said Deed. The new Deed, accordingly, entails the grant of an easement not heretofore granted for no consideration expressed therein and, accordingly, the statutorily prescribed administrative procedures must be adhered to and we are entitled to seek proof thereof.”
As the deadline for the expiration of the completion notice was expiring, the vendor’s solicitors wrote again to the plaintiffs’ solicitors on 7th January, 2008, stating that they never accepted that the 2003 transfer did not grant a right of way to pass and re-pass over the lands coloured yellow in respect of the units comprised in folio 40572F. They admit that they accepted that the purchasers were entitled to insist on a grant being furnished in relation to units forming part of the adjoining folios and since the purchasers would not accept the 2003 transfer, they agreed to furnish evidence of a right of way. They maintain that they have done this by furnishing confirmation by way of a Deed under Seal from the owner of the yellow lands that the grant in the 2003 transfer includes a right to pass and re-pass over the yellow lands. They therefore insisted on the purchasers completing the sale. On 8th January, 2008, the purchasers’ solicitors maintained their position that the Council was obliged to comply with statutorily prescribed administrative procedures and that if they failed to do so, the Deed would be void. A letter was obtained from W.A. Osborne & Co., the solicitors to Kildare County Council, to clarify the position. This letter was dated 10th January, 2008, and was furnished by the vendor’s solicitors to the purchasers’ solicitors. The letter stated inter alia:
“The Deed of Confirmation of 21st December, 2007, between the Council and Durkan New Homes is not a disposal of land for the purposes of section 183 of the Local Government Act. 2001, or section 211 of the Planning and Development Act, 2000. The said Deed would amount to an agreement regarding the use of land as referred to at paragraph 4 of Schedule 15 of the Local Government Act, 2001, which said Schedule sets out the functions to be done by Managers Order. We enclose a copy of the Managers Order Number ES14740 of 20th December, 2007, in respect of same.”
This was rejected by the plaintiffs’ solicitors by letter date 11th January, 2008, in which they informed the vendor’s solicitors that they had instructions to rescind the contract. They returned the documents and asked for the return of the deposit.
14. On 16th January, 2008, the defendant’s solicitors wrote to the plaintiffs’ solicitors reiterating their position. In the course of the letter, they stated:
“It is clear from the foregoing that you are quite simply determined not to accept that a right of way exists, although it clearly does. The events which have unfolded also indicate that you and your clients have since 10th December, being (sic) engaged in a cynical exercise to find a way out of this contract. Market conditions are now poor andwhen the opportunity presented itself to query the right of way, you wasted no time in serving a twenty-eight day Completion Notice demanding that evidence of a general right of way from the Council be furnished in the meantime. We did not challenge a right to do this but took you at face value and sought and obtained the required Deed. You then demanded a copy of the Council’s Resolution and Ministerial Consent. On 8th January, you expanded this to seek also certified copy Notice to Councillors and certified copy minutes of the Council meeting. You would have been well aware that the various items you requested would have been most difficult to obtain in the twenty-eight day period which fell during the Christmas break. Now that you have been shown that those items do not apply, you simply refuse to accept the position.”
The vendors indicated that they would be instituting proceedings for specific performance.
15. This is the background against which the court is asked to answer the questions posed in the Vendor and Purchaser Summons.
16. The legal issues can be summarised as follows:-
(i) What is the nature of the right of way in clause 3 of the Second Schedule of the Transfer dated 17th February, 2003?
It seems to me that it is quite clear in its terms. In an easement granted to the sub-purchaser, namely, Durkan New Homes Ltd. “its successors and its servants, agents, workmen, licensees, invitees, tenants and undertenants”, on giving reasonable notice to the vendor to enter upon the lands marked yellow with workmen and others and all necessary vehicles and equipment and machinery to lay a road and whatever utilities may be required to provide services for the benefit of the “sold land”. The easement did not grant a general right of way, allowing people to pass and re-pass on foot and/with vehicles.
Where a right of way is established for a particular purpose, it cannot normally be expanded into a different or broader purpose although such a broader purpose could be acquired over time by prescription. I hold that the purchasers were within their rights to reject this clause as evidence of a right of way to pass and re-pass along the newly laid road from the public roadway to the development site.
(ii) Is the Deed of Confirmation of 21st December, 2007, valid? If the Deed between Kildare County Council and Durkan New Homes is not valid, is this technical defect fatal to the creation of a right of way over the yellow lands? What is the effect of the confirmation being registered as a burden on the yellow lands?
The plaintiffs maintain that the Deed of Confirmation is invalid because the creation of the right of way amounted to a disposal of land requiring the formalities set out in s. 183 of the Local Government Act2001, be complied with. The plaintiffs freely admit that the point they are taking is a technical one but that they are nevertheless entitled to rely on what is, in effect, a statutory requirement. If a conveyance does not mention the creation of easements expressly, they may be created by implication or on a true construction of the Deed. In this case, there was no general easement to pass and re-pass, but merely an easement granted to lay a roadway. In general, a grant will be construed in favour of the grantee and this can result in the creation of an implied easement, for example, an Easement of Necessity. It is quite clear that the plaintiffs cannot use their apartment without a right of way from the public roadway to the development site. If the developer owned the land surrounding the development site (including the marked yellow), then an Easement of Necessity would seem to arise. But the adjoining land is owned by a third party, namely, Kildare County Council. Therefore, I do not think an Easement of Necessity can arise in this case.
Gale on’Easements’ (16th Ed.) at para. 3-86, states:
“A way of necessity, strictly so called, arises where, on a disposition by a common owner of part of his land, either the part disposed of or the part retained, is left without any legally enforceable means of access. In such a case, the part so left inaccessible is entitled, as of necessity, to a way over the other part.”
The rule cannot apply to third parties who are the owners of adjoining land. Such third parties would have to give their consent to any right of way over their lands.
17. In this case, the vendors agreed to provide evidence of a right of way by means of the Deed of Confirmation. In order to determine whether or not the Deed of Confirmation provided sufficient evidence of a right of way, it is necessary to consider whether or not the granting of a right of way is a disposal of land by a local authority within the meaning of the Planning and Development Act 2000, and the Local Government Act 2001.
18. Section 183 (1)(f) of the 2001 Act, provides that a disposal (not being a demise for a term not exceeding one year) of land which is held by a local authority:
“… shall not be carried out otherwise than in accordance with paragraph (d) or (e) and subject to the consent of the Minister where consent is required under section 211 (2) of the Act of 2000.”
Part XIV of the Planning and Development Act2000, is concerned with the acquisition of land by local authorities for the purposes of its functions under that Act or any other enactment. Section 211 (1) of the Act states:
“Any land acquired for the purposes of or appropriated under this Act or any other Act or acquired otherwise by a local authority, may be sold, leased or exchanged, subject to such conditions as it may consider necessary where it no longer requires the land for any of its functions, or in order to secure -”
(a) the best use of that or other land and any structures or works which have been, or are to be, constructed, erected, made or carried out on, in or under that or other land or,
(b) the construction, erection, making or carrying out of any structures or works appearing to it to be needed for the proper planning and sustainable development of its functional area.”
19. It seems to me that neither s. 211 of the 2000 Act nor s. 183 of the 2001 Act, can be interpreted as including the granting of a right of way. It is interesting to note that in Gale on ‘Easements’ (16th Ed.) at para. 2-16, the author states:
“The grant of an easement is a ‘disposition’.”
In a footnote attached, a reference is made to the Law of Property (Miscellaneous Provisions) Act 1989, s. 2 (6) incorporating the definition in s. 205 (1)(ii) of the Law of Property Act 1925, which states:
“‘Conveyance’ includes a mortgage, charge, lease, assent, vesting declaration, vesting instrument, disclaimer, release and every other assurance of property or of an interest therein by any instrument except a Will; ‘convey’ has a corresponding meaning; and ‘disposition’ includes a conveyance and also a devise, bequest, or an appointment of property contained in a Will; and ‘dispose of’ has a corresponding meaning;”
20. Section 2 of that United Kingdom Act requires that a contract for the sale or other disposition of an interest in land can only be made in writing and sub-section (6) states:
“In this section-”
‘Disposition’ has the same meaning as in the Law of Property Act 1925;
‘Interest in land’ means any estate, interest or charge in or over land or in or over the proceeds of sale of land.”
What these sections, taken together, seem to mean is that where a grant of an easement is made by agreement, it must be done in writing. But it does not, in my view, mean that the grant of an easement is a disposal of land by a local authority within the meaning of the Planning and Development Act2000, or the Local Government Act 2001.
21. In a letter of 10th January, 2008, the solicitors for Kildare County Council stated that the Deed of Confirmation of 21st December, 2007, between the Council and Durkan New Homes was not a disposal of land for the purposes of s. 183 of the Local Government Act 2001, or s. 211 of the Planning and Development Act 2000. I believe that was a correct statement of the position. The solicitors for the County Council then stated:
“The said Deed would amount to an agreement regarding the use of land as referred to at paragraph 4 of Schedule 15 to the Local Government Act 2001, which said Schedule sets out the functions to be done by Manager’s Order.”
They enclosed a copy of the Manager’s Order of 20th December, 2007, in respect of that matter. Schedule 15 to the 2001 Act sets out the functions to be done by Manager’s Order and they include:
“4. The acquisition or disposal of land or an agreement regarding the use of land.”
These functions are delegated by s. 151 of the 2001 Act which provides that the manager shall, in carrying out the executive functions of each local authority for which he or she is manager, act by a written order signed and dated by him or her in respect of the functions to which this section applies. The section applies to every executive function which is mentioned in Schedule 15. The County Manager’s Order was signed on 20th December, 2007, and on the following day, the Deed of Confirmation was executed. In that Deed, the Council assented to the registration of the Deed as a burden on the yellow lands. It is clear that as of that date, the plaintiffs knew that the County Council was confirming:
“…the right to pass and re-pass over the Yellow Lands leading to and from the lands comprised in folio 40572F County Kildare from and to the public road at all times by day and by night, on foot and with or without motor vehicles.”
The County Council also assented to the registration of the Deed as a burden on the yellow lands. In those circumstances, the County Council could not have refused the purchasers the right to enter and leave their premises across the yellow lands, either on foot and with or without motor vehicles. At the very least, the County Council would have been estopped from preventing the plaintiffs from doing so. But the plaintiffs also knew that the Council was assenting to the registration of the Deed as a burden on the yellow lands. The right of way was registered as a burden on folio 33451F on 29th January, 2008, after the expiration of the twenty-eight day period in the completion notice. The effect of the registration of the burden was to make it a legal interest in the land enforceable against all owners of the land as long as it remained on the Register. The Register is conclusive evidence of any burden appearing thereon. See s. 31 of the Registration of Title Act 1964.
22. In this case, the defendants argue that by furnishing the Deed of Confirmation it amounted, in effect, to the giving of an undertaking with regard to the right of way and that it is common to accept undertakings to be discharged at a later date. The Deed of Confirmation and the Council’s assent therein to the registration of the Deed as a burden on the yellow lands gave the purchasers the assurance they needed that they had a right of way and that this would be registered as a burden.
23. I conclude, therefore, that the plaintiff has received sufficient assurances concerning the right of way and evidence of the right of way before the expiration of the Completion Notice.
24. Accordingly, I answer the questions posed in the Special Endorsement of Claim as follows:
(i) Yes
(ii) Yes
(iii) No
(iv) No
Carroll v Sheridan
[1984] ILRM 451,
Court: High Court (Ireland)
Judge: Mr. Justice O’Hanlon
Whether or not the evidence is sufficient to indicate such an intention on the part of the landowners to dedicate the way to the use of the public in general, it does, in my opinion, indicate an intention on their part that the land could be freely used by the owners of all the lands abutting on the lane as a means of access to the public highways which are found at each end of the lane. This is evidenced by the presence of old gateways leading from different parts of these lands onto the lane, and by the evidence of free and unobstructed user of the lane over many years when it was needed for purposes connected with the user of the adjoining lands. I accept that over long periods the lane was allowed to become overgrown and impassable, but it had obviously been deliberately constructed at the beginning of its history as a pathway dividing many different holdings of land, and as a connecting link between two main highways, with substantial boundaries on each side of the path, and adequate surfacing materials along its entire length to make it suitable for use by a rural community. To the extent that it was used by the Plaintiffs’ predecessors in title as a means of access to their lands which abut onto the lane, and by the other adjoining landowners for like purposes, no one appears ever to have challenged or contested such user until the intervention by James Sheridan at the auction of the Cock Field in 1974. The challenge then thrown down by him was immediately taken up by the auctioneer and his client, both of whom were very familiar with the lane and the area generally, and when they proceeded to enforce the claim to a right of way the said Defendant took no further steps to maintain his challenge.
I regard this incident as being illustrative of a recognition on the said Defendant’s part that such a right of way was, traditionally, available for the benefit of the landowners whose lands abutted onto the lane, and this is important because the Defendant is now quite advanced in years and has been living and working beside the lane for upwards of 60 years.
The evidence suggesting that a gate or gates had been erected across the lane at different times in the past was of a very nebulous nature, and I was not prepared to attach any importance to it.
Secondly, when the said Defendant came to develop his own lands for building purposes, he had no compunction about clearing away all the bushes and briars; doubling the available width of the lane, and putting a new surface on it, as far as was necessary to accommodate his building project – although in doing so he appears to have been dealing with substantial parts of the surface of the lane which were not in his ownership, but were registered on the title of a number of different owners. In evidence he stated that he felt he was perfectly entitled to do so and he is probably correct in this assumption – but only because he, in common with the other landowners along the lane, is one of the dominant owners who are entitled to keep the servient tenement consisting of the right of way, in good repair and condition for whatever use they are entitled to make of it.
I think it is also very significant that the said Defendant is now making use of the lane or path for purposes which do not at all resemble the traditional uses for which it has been utilised in the past – namely for development of his land as building land and for providing a means of access to several dwellings which have now been erected on what was formerly a purely agricultural holding. Once again, I would be prepared to accept that the Defendant was entitled to take this course, notwithstanding the fact that the way leading to the new houses passes over land which appears to belong to a number of third parties.
In Cowling -v- Higginson, 1938 4 M. & W. 245, Parke B. observed: “If it had been shown that from time immemorial it had been used as a way for all purposes that were required, would not that be evidence of a general right of way? If they shew that they have used it time out of mind for all the purposes that it wanted, it would seem to me to give them a general right.
“If it is shewn that the Defendant and those under whom he claimed had used the way whenever they had required it, it is strong evidence to show that they had a general right to use it for all purposes, and from which a jury might infer a general right…. If it is proved to have been used for a variety of purposes, then they (the jury) might be warranted in finding a way for all. You must generalise to some extent, and whether in the present case to the extent of establishing a right for agricultural purposes only is a question for the jury.”
Lock -v- Abercester Ltd., (1939) Ch. 861, (Bennett J.) is an authority for the proposition that proof of user with horses and carts will establish a right of user with mechanically propelled vehicles.
It was strongly contended on behalf of the Defendants in the present case that even if the evidence were sufficient to establish that a prescriptive right of way had once existed over the path or lane in question in favour of the lands of the Plaintiffs and other adjoining landowners, nevertheless such right of way must by now be regarded as having been extinguished by non-user over a very considerable period of years.
The evidence certainly went a long way towards suggesting that in modern times the path has been allowed to become completely overgrown at various parts along its course, rendering it impassable for periods which may have been quite lengthy in the past.
If one were dealing with a public way, this would appear to present no problem for the Plaintiffs. Byles J. said in Dawes -v- Hawkins (1860) 8 CB (ns) 848: “It is an established maxim – once a highway always a highway; for the public cannot release their rights, and there is no extinctive presumption or prescription.” A similar conclusion was reached in Turner -v Ringwood Highway Board (1870) LR 9 Eq. 418, where it was held that a public right over any part of a highway was not lost by disuse. “Where the sides of the way have become covered with furze and heath, and fir trees have been allowed to grow up for 25 years, the public have a right to have the trees removed and the whole width of the road preserved free from obstruction.” In Representative Church Body -v- Barry, (1918) 1 IR 402, where a road had been stopped for over 60 years, and the public excluded therefrom, and a new road made, the court was willing to act on a presumption that the necessary legal steps had been taken to extinguish a highway if one existed, under the Grand Jury (Ireland) Act, 1836, but the evidence of non-user in the present case falls far short of the extreme situation which arose in that case.
With regard to a private right of way, the authorities appear to establish that mere evidence of non-user is not sufficient to bring about the extinction of rights of way or other “discontinuous” easements. In Tehidy Minerals Ltd. -v- Norman, (1971) 2 QB 528, 533, the Court of Appeal held that abandonment of an easement or profit a prendre can only be treated as having taken place where a person entitled to it has demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else.
In Cook -v- Mayor and Corporation of Bath, (1868) LR 6 Ex. 177,Malins VC said: “It is always a question of fact, to be ascertained by a jury or by the Court from the surrounding circumstances, whether the act amounts to an abandonment or was intended as such.” He held in that case that 30 years’ non-user was not sufficient, without more, to extinguish a right of way.
In R. -v- Chorley, (1848) 12 QB 515, Lord Denman CJ said:
“It is not so much the duration of the cesser as the nature of the act done by the grantee of the easement or of the adverse act acquiesced in by him, and the intention in him which either the one or the other indicates, which are material for the consideration of the jury.”
In Ward -v- Ward, (1852) 7 Ex. 838, a right of way was held not to have been lost by mere non-user for a period much longer than 20 years, it being shown that the way was not used because the owner had a more convenient mode of access through his own land. Alderson B. said: “The presumption of abandonment cannot be made from the mere fact of non-user. There must be other circumstances in the case to raise that presumption. The right is acquired by adverse enjoyment. The non-user therefore, must be the consequence of something which is adverse to the user.”
In Crossley -v- Lightowler, (1866) LR 3 Ex. 279; (1867) 2 Ch. App. 478, Page Wood VC said: “The question of abandonment is a question of fact that must be determined upon the whole of the circumstances of the case”, and on appeal in the same case Lord Chelmsford LC said: “The authorities upon the subject of abandonment have decided that a mere suspension of the exercise of a right is not sufficient to prove an intention to abandon it… The question of abandonment of a right is one of intention to be decided on the facts of each particular case.”
Finally, in the modern case of Gotobed -v- Pridmore, (1970) 115 SJ 78 the Court of Appeal in England held that the abandonment of an easement is not lightly to be inferred. Mere abstinence from the use of a right of way was not enough to establish an intention to abandon. What was required was conduct by the owner of the dominant tenement which made it clear that neither he nor any successor in title of his would afterwards make use of the way.
Applying the principles enunciated in these cases to the facts of the present case, I find that the lane in question here was used by the Plaintiffs’ predecessors in title and by the various landowners whose lands abutted onto the lane, whenever it was convenient or useful for them to do so and for whatever purposes were relevant from time to time in connection with the current user of their lands. Generally speaking, they had other means of access to the fields which abutted onto this lane, over other pathways further to the south or to the north, and thence through other fields which formed part of their respective holdings and I have no doubt that this was the principal reason why the lane was allowed to become overgrown and well-nigh impassable from time to time. I would also assume that with the advent of motorised transport, other roads to the south and to the north of this lane became more popular as a means of access from the main Dublin/Dundalk road to the Dundalk/Blackrock road than the rough and narrow short-cut provided by An Bothar Maol in previous centuries. I have no doubt, however, that the owners of the soil have long since ceded the right to the adjoining landowners and also, in all probability, to the public in general, to use the way to the fullest extent that they wished to use it as a link road between the two main highways, and that there has been no intention on the part of the Plaintiffs or their predecessors in title, established by the evidence in the case to abandon that valuable right.
For these reasons I propose to vary the Order made by the learned Circuit Court Judge and to give the declaration sought by the Plaintiffs in the Equity Civil Bill as against the Defendants, who have elected to dispute the right claimed by the Plaintiffs. I make a declaration as against the Defendants that the Plaintiffs are entitled to a right of way for all purposes to and from their lands as shown on the map or plan annexed to the Civil Bill herein, over the entire path or way coloured yellow on the said map and connecting with the Dublin/ Dundalk highway at its western extremity and with the Dundalk/Blackrock highway at its eastern extremity, and marked A to M on the said map or plan.
I reserve liberty to all parties to apply as may be necessary if any further ancillary orders are necessary for the implementation of the findings made herein.
With regard to the earthworks which have been raised as obstructions on the said right-of-way in recent times, the evidence in the case strongly suggests that these have been created by the Defendants, but no formal proof was given on this point and accordingly I am unable at present to order their removal by the Defendants. Nor do I propose to award damages against the Defendants as I think they were not unreasonable in seeking to have the legal position as between the parties determined by the Court. Should the obstructions not be removed forthwith, however, further proceedings for an injunction and for damages for trespass and nuisance could be maintained against the parties responsible.
I propose to award the Plaintiffs the costs of the proceedings in the High Court, each party to bear their own costs of the proceedings in the Circuit Court.
Todd v Cinelli and Others
[1999] IEHC 124
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Justice Kellyhe Defendants contend that the Plaintiffs are not entitled to have taken into account in the assessment of damages any diminution is value of the Plaintiffs’ premises by reason of its changed appearance. In this regard they rely upon the decision of the Court of Appeal in England inPhipps -v- Pears[1964] 2 AII ER 35. The facts in that case were that in about 1930 a house, no. 16. one of two adjacent houses in common ownership was rebuilt. One wall was built close against no. 14. Thirty years later no. 14 was demolished by its then owner, the Defendant. This left the adjoining wall of no. 16, which was rough and unpointed exposed to the weather. During the next winter, frost caused cracks in the wall. The Plaintiff, who was successor in title of the owner who built no. 16. sought to recover from the Defendant for the damage done to the wall. He claimed an easement of protection and said that he was entitled to protection for the wall by virtue of the general words implied by Section 62 of the Law of Property Act. 1925 in the conveyance of no. 16 to him. The Court of Appeal rejected the claim. It held that there was no right known to the law to protection from no. 14 for the wall of no. 16 against exposure to weather. Accordingly, no such right or advantage had passed to the Plaintiff under the relevant statutory provisions. In delivering the principal judgment Lord Denning M.R., said:-
“There are two kinds of easement known to the law: Positive easements, such as a right of way, which gives the owner of land a right himself to do something on or to his neighbour’s land: and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour’s) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but also sideways onto the adjoining building or the adjoining land, and is thus doing something to the neighbour’s land.exerting a thrust on it:SeeDalton -v- Angus per Lord Selbarne. L.C. But a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement. It must be looked at with caution, because the law has been very chary of creating any new negative easements. Take this simple instance: suppose you have a fine view from you house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if you neighbour chosses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as the right to a prospect or a view: see Bland -v- Moseley.The only way in which you can keep the view from your house is to get your neighbour to make a covenant with you that he will not build so as to block your view. Such a covenant is binding on him by virtue of the contract. It is also binding in equity on anyone who buys the land from him with notice of the covenant; but it is not binding on a purchaser who has no notice of it, see Leech -v- Schweder.”
The Master of the Rolls then went on to give other instances similar to those already mentioned. He then said:-
“The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your neighbour in his enjoyment of his own land. It would hamper legitimate development. See Dalton -v- Angus per Lord Blackburn. Likewise here, if we were to stop a man pulling down his house, we would put a break on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise every man is entitled to cut down his trees if he likes. even if it leaves you without shelter from the wind or shade from the sun, see the decision of the Master of the Rolls in Ireland. There is no such easement known to the law as an easement to be protected from the weather.”
It seems to me that that case is far removed from the present one both on its facts and in the underlying rationale which supports it.
In the present case I am not merely dealing with adjacent houses but with a pair of houses which were built as one. At the commencement of these proceedings by consent. I made declarations against the first and second named Defendants as to the right of support to which the Plaintiff’ house is entitled. That was an acknowledgement by them of an entitlement which has been lost to the Plaintiffs as a result of their wrongful activity.phipps -v- Pears did not concern a right of support. In this regard see the observations of Blackett -Ord V.C. in Bradburn -v- Lindsay[1983] 2 AII ER 408 at 414. This aspect of the matter was also dealt with by Finlay C.J. in Treacy -v- Dublin Corporation [1993] 1 I.R. 305 at 312 where he said:-
” I accept, having regard to the decision in Phipps -v- Pears, and to the Principles outlined in that decision, that there is not a separate easement of a right to protection from wind and weather. I am satisfied, however, that where as in this case work is being carried out the consequence of which will be to remove a support which previously consisted of a wall between two terraced houses and which by reason of the existence of the rooms on the other side of it, was immune from any weather, that it is unreal to limit the requirement of giving back support to putting up some form of shoring or buttress which would leave a wall, having regard to the age of the house, cease to be a support.”
Secondly, the basis underlying the decision of the Court of Appeal inPhipps v. Pears is that legitimate development would be hampered if the Plaintiff succeeded in that case. In the instant case I am not at all dealing with legitimate development on the part of the Defendants. In fact the converse is true. It is accepted by the Defendants that they required a planning permission to enable them to demolish “Woodview”. They neither sought nor obtained such a permission. Indeed, had they sought such a permission the Plaintiffs would have had statutory rights to be heard in respect of it. They were deprived of that right. Indeed it is almost inconceivable that the planning authority would have given permission for a demolition of the type in question. The Plaintiffs are now at a loss because of this activity and it appears to me that in these circumstances they are entitled to recover in respect of the diminution in value attributable to the loss of appearance of their house brought about the wrongful activity of the Defendants. They are therefore, in my view, entitled to recover in its entirety diminution in value as a head of damages.
In order to establish the diminution in value in money terms. I must first fix upon the current value of the Plaintiff’ house assuming that the £25,000 worth of works are carried out to it. Having considered the evidence of the values I have come to the conclusion that the current open market value of the Plaintiff’s house as it stands is £190,000. With £25,000 worth of repairs carried out to it that value will in my view increase to a sum of £200,000. I do not accept Mrs Byrne’s view that the repairs would only bring about what she described as a minuscule improvement in the value of the house. Neither do I accept Mr Pain’s view that the expenditure of £25,000 on repairs would bring about an improvement in value to the tune of £20,000.
On the basis that the open market value of the Plaintiffs’ house in its repaired state is £200,000 it appears to me that the Plaintiffs are entitled to the difference between that sum and what the house would have been worth if the adjoining property had not been demolished but remained as it was. This approach would both accord with the facts of this case as I have found them and also with the general rational underlying the award of damages namely to put the Plaintiffs in the same position as they would have been in had the wrongful act not occurred.
On the basis of the evidence that I have heard I am of opinion that the Plaintiff’s would be worth £280,000 were it not for the demolition of “Woodview”. The loss of value is therefore £80,000. However, account must be taken of the fact that “Woodview” in the long term will not be left in the state in which it now is. Both Valuers accept that that is so. But I cannot say when this change will be effected or the form that it will take. It seems to me therfore, that I must make some deduction in value tO £65,000.
I therefore award the Plaintiff £65,000 in respect of diminution in value attribution to the wrongful activities of the Defendants.
John Doherty v Robert (aka Bertie) Long and Another
[2013] IEHC 189
Judge: Mr. Justice Herbert
20
The establishment of a private right of way by prescription or under the doctrine of lost modern grant does not require that there be evidence of continuous use of the servient land, without force, secrecy or permission. Even seasonal use (for example, access to turbary rights or hill grazing), dependent on the circumstances of the case might be sufficient for the purpose. However, I do not accept that vague and unspecific evidence of occasional or haphazard forays by a tractor with a mounted carrying box containing silage or animal feed over this lane, in respect of which I find that no maintenance works had been carried out where it crosses the lands of the first defendant from at least 1973 and, which on the evidence of Mrs. Anne Doherty and on the evidence of the first defendant had become or was becoming overgrown by briars and brambles in 1995/1996, is sufficient evidence of use to establish the right of way claimed by the defendants in this case. In addition, there is a disconcerting sameness and lack of any convincing detail about all of these alleged tractor journeys. There is also the remarkable fact that whereas before 1988 everyone saw and spoke to the Harkins, after 1988 not one of the alleged participants gave evidence of ever having met or even seen the plaintiff or any member of his household during any of these alleged journeys. Perhaps the plaintiff was always abroad on business when these journeys took place, but on the evidence his family did not accompany him on most to these business trips.
21
I was very concerned at the evidence given to this Court, but not the court below where they did not give evidence, by Mark Kelly and Ms. Peggy Harkin, that there was a right of way affecting the lands when they were sold to the plaintiff in 1988. The grandmother of the former and the mother of the latter made a Statutory Declaration at the time of the sale upon which I am satisfied the plaintiff relied in purchasing the lands that to the best of her knowledge, information and belief there was no right of way affecting those lands. In that formal document she stated that she conscientiously believed this to be true after the nature of what she was being required to declare had been explained to her by her solicitor. In cross examination, Mark Kelly even went so far as to tell me that he disagreed with what his grandmother had declared in 1988. However, when I recall that Mark Kelly was nine years of age in 1988 and no suggestion of the existence of a right of way was raised by the defendants or by anyone else prior to her death in 1998 I attach no weight to this evidence and I have regard only to the evidence of Mark Kelly with regard to his own alleged personal use of the lane and his alleged personal observations of others using the lane.
22
From a careful review of the evidence of Ms. Peggy Harkin, given on Commission, I am fully satisfied that in using the term, “right of way”, she was not describing easements of way such as were addressed in the Statutory Declaration executed by her mother. I am satisfied that what she described in evidence and stated what was generally known as “the right of way” was a short-cut taken by all and sundry for a whole variety of purposes over this lane from one end to the other which had nothing whatsoever to do with accommodating or benefiting the land of the first defendant or the land of the second defendant or any other adjoining land that could be benefited or, with establishing a right of way for the benefit of either of those lands. It is quite impossible to impose any time frame on the evidence of Ms. Peggy Harkin, which took the form of a number of sweeping generalisations. However, it is possible to be certain that whatever use of the lane she observed after 1989 was from a window of the new dwelling house erected with the proceeds of sale of the original Harkin house and lands to the plaintiff, between that house and the southern terminus of the lane at the county road on the south, and was confined to the passage of persons and tractors across her line of vision and that everything else was mere supposition on her part.
23
If the first defendant and the second defendant and any other persons used the lane for getting to a bog or moss in the general Gortkeeran area, this did not benefit or accommodate in any way either the lands of the first defendant or the lands of the second defendant. There is no dwelling house on the lands of the second defendant. On the evidence the first defendant never resided in the farmhouse on the lands he inherited from the late John McDonald. Even if I were to accept that the first defendant stored turf in the yard or outbuildings attached to the farmhouse of the late John McDonald-the necessity for which is difficult to reconcile with his evidence of twelve to eighteen trips to the bog annually, with the involvement of quite extraordinary labour intensive and time consuming loadings and unloadings of trailer loads of turf the necessity for which was not explained-this still did not accommodate or benefit in any way the lands which he inherited from the late John McDonald. To submit that such use established the existence of a right of way is to contend for an easement in gross which the law does not permit.
24
If I were to accept that Anthony Porter in fact used the lane in every way he claimed to have used it in his evidence, this use, from an unspecified date in 1996 until June 2004, would in itself be nothing like sufficient either in duration or quality to establish the existence of a private easement of way along the lane over the lands of the plaintiff to and from lands of the first defendant. Eddie McDonald was not called as a witness nor was his evidence taken on Commission like that of Ms. Peggy Harkin. If I were to accept the secondary evidence of his using the lane again it would be insufficient to establish the existence of the right of way claimed by the defendants or either of them. The evidence established that from some date in the decade 1960 to 1970 until the end of 1995, Eddie McDonald and thereafter to the date of hearing, Anthony Porter have taken all the lands of which the first defendant is now the registered owner on the eleven months system. This gives a personal licence to the taker to use the land taken for a particular purpose only and does not give the taker any estate or interest whatsoever in the land taken. Therefore, any use of the lane by either Eddie McDonald or Anthony Porter was for their personal benefit only and could not establish or amount to evidence of the existence of a private easement of way for the benefit of the lands formerly owned by John McDonald and now owned by the first defendant.
25
In very many other respects the evidence tendered in the case for the defendants on this appeal was unreliable as lacking in depth, detail and corroboration and, at times, amounted almost to an exercise in obfuscation. The second defendant stated that from 1980 to 1995 when the first defendant inherited the lands from the late John McDonald he did not use the very much shorter access to his field gate from the northern terminus of the lane which is almost opposite his house, but travelled all the way around on the county roads to the southern terminus of the lane and then passed over the much longer length of lane to the gate. He said that he did this because he felt that McDonald’s way was private and he did not want to bother McDonald while he was living in the farmhouse. It will be recalled that during the entire of this period, all the lands of the late John McDonald were taken by his nephew Eddie McDonald on the eleven months system. The first defendant told the court that he had been helping the late John McDonald from 1973 until the date of his death and the first defendant did not give evidence that the portion of the lane from its northern terminus to the farmhouse was private. All the other witnesses who were called in the case for the defence claimed that there was a right of way from the northern terminus of the lane to its southern terminus. The second defendant offered no explanation as to why he felt that approximately one third of the lane from its northern terminus to the farmhouse and yard of the late John McDonald was private, but the remaining approximately two thirds of the lane some of which also crossed part of these lands was not.
26
Mrs. Anne Doherty gave evidence that after the death of John McDonald someone had erected a gate at the northern terminus of the lane where it opened on to the county road. Neither the first defendant nor the second defendant nor any other witnesses called in the case for the defendants referred to this incident. The second defendant claimed that he had asked the late Patrick “Pakie” Harkin and the late Susan Harkin about access to the field for which he had intended to bid at public auction, because he had become worried. However, he did not give evidence that he had made any similar inquiry from the vendor, James Doherty or his solicitors or from the late John McDonald whose lands surrounded that field. He claimed in evidence that at auction, the auctioneer had announced that there was a right of way to the field. However, the auctioneer was not identified or called as a witness nor was any other participant in the auction. The second defendant did not give evidence as to the alleged right of way described at auction and did not produce a single scrap of paper relating to the auction or the purchase. No right of way over the lane from either north or south is registered as a burden on Folio 32260F, Co. Donegal, a copy of which, together with a Folio map was produced in evidence, and of which the first defendant is now the registered full owner with an absolute title.
27
The second defendant stated in evidence that he had let part of the field for the benefit of which the private right of way is now claimed by him, to his brother and kept a donkey and a horse on the other part of the field. His brother was not called as a witness and the second defendant did not give any information whatsoever to the court about the use his brother had made of the part of the field let to him or how he had gained access to the field. Evidence was given that the field is registered in Folio 32345F, Co. Donegal, a copy of which but without a Folio map, was produced in evidence. The devolution of title appearing on the face of the Folio is from Raymond Hartin, who became registered as full owner on the 2nd July, 1980, to the second defendant who became registered as full owner on the 15th December, 2008, at which date the possessory title of the property was converted to absolute. It will be recalled that the Equity Civil Bill was issued in these proceedings on the 11th July, 2008. Therefore, during all the period when the second defendant claims he was using the lane from its southern terminus at the county road on the south as a right of way to accommodate the lands in Folio 32345F, Co. Donegal, he had no legal estate or interest whatsoever in those lands. In the course of cross examination he referred to what he claimed was an “arrangement” with his brother that he would purchase this field and that his brother would then purchase it from him over an unspecified period and for an unspecified sum. As his brother was unable to raise the necessary finance, the field was transferred into the name of the second defendant. This only arose in cross examination and no evidence in chief was given by the plaintiff about such an agreement or arrangement. No note or memorandum of any such agreement was produced by him in evidence, nor was any evidence put before the court which might lead the court to consider that the brother of the second defendant in the period the 2nd July, 1980 to the 15th December, 2008, held the lands in Folio 32345F, Co. Donegal as a constructive trustee for the second defendant.
28
The second defendant failed to explain the existence of what I am satisfied on the evidence of the High Flown Orthophotography Print of 2000 is probably a made or metalled strip or road running at right angles from just inside the bank and drain at the side of the county road on the north for half the length of the field travelling north to south. This is on the opposite side of the field from the residence of the first defendant and adjoins a field which I was told in evidence was owned by a son of the first defendant. The construction of a culvert over the roadside drain and the opening of a gateway in the boundary bank would allow access from this made or metalled road or strip on to the county road. The second defendant professed to know nothing at all about this object, what it might be, (though he wondered if it might be a drain or a large bank), how it had come to be on his lands, by whom it was made, by how entry on to the land was achieved in order to make it. I find this entirely incredible and I am reluctantly obliged to consider that I can place little reliance on the evidence of the second defendant. Photographs taken in July 2012 and during the course of the hearing of this appeal for a position on the county road are altogether inadequate to enable this object to be identified, particularly as it may have become overgrown with vegetation in the course of the past twelve years. No documentary or other evidence sufficient to enable me to conclude, even on a prima facie basis, that turbary rights over the alleged moss or bog in the general Gorkeeran area were held by them, was given by the first defendant or the second defendant or by any witnesses called in the case for the defendants, nor was any documentary evidence produced in relation to lands alleged to have been taken on the eleven months system in that general area by any of these persons or by any member of their respective families.
29
The first defendant and the second defendant gave evidence that in 2004 the plaintiff had prevented them from using the alleged right of way and had obstructed the lane with large boulders, piles of sand and goal posts. By a letter admitted into evidence dated the 7th March, 2006, addressed to the first defendant, “and/or any company and/or operational vehicle and/or development entity which you are in control of and/or give instructions to”, the plaintiff inter alia, stated that he disputed that there was any right of way over his land. The less than edifying events which occurred between 2004 and the 11th July, 2008, are of no assistance in the determination of this appeal. Suffice it to state that the first defendant and the second defendant continued to maintain that they were entitled to a private right of way over the lane through the plaintiff’s lands and the plaintiff continued to deny the existence of any such right of way. An Equity Civil Bill was issued by the plaintiff on the 11th July, 2008, and a full defence together with a counterclaim was delivered by the defendants.
30
I find that no right of way for the benefit of the lands identified in the pleadings and in this judgment or any part of them and held by the defendants or either of them exists on or over the lands of the plaintiff or any part of those lands. I therefore dismiss the counterclaim of the defendants with costs to the plaintiff on this appeal and in the court below. I find for the plaintiff in his claim endorsed on the Equity Civil Bill and grant a permanent injunction restraining the defendants and each of them, their servants and agents and any person or persons whomsoever acting on behalf of them or either of them, from entering or trespassing upon or in any manner interfering with the lands of the plaintiff in Folio 22454F, Co. Donegal, or any part of those lands. No evidence of special damage was given by the plaintiff. I award the plaintiff in addition to the costs already awarded his costs in respect of the claim in the said Equity Civil Bill in this court and in the court below, together with any, if any, reserved costs.
Connell v O’Malley
[1983] 7 JIC 2801,
Judge: Mr. Justice Barron
The evidence at the trial was as I have said largely common case. The reason for this was that each party sought to rely upon the basic facts in support of his own case, though obviously placing a different legal interpretation upon these facts. What each party sought to establish on the facts was that the damage sustained by the plaintiff by reason of his inability to develop the site arose out of the refusal of the Local Authority to take the laneway in charge. In turn each party sought to show that this refusal was directly connected to the existence of the gateways across the laneway; the plaintiff to show that the defendant was responsible for the refusal, and the defendant to show that the refusal arose out of lawful behaviour on his part. The plaintiff’s case was that the defendant had derogated from his grant. The defendant’s case was that he was doing no more than he was lawfully entitled to do and that if the plaintiff had wished to prevent the erection of a gate across the laneway the contract of sale should have contained a specific provision imposing an obligation on the defendant to leave the laneway unrestricted at all times.
The doctrine of derogation from grant imposes implied obligations which arise where the owner of land disposes of part of it while retaining the balance. The most usual application is in relation to easements, but it is not limited to the creation of easements by implied grant. The obligations which are implied depend upon the particular nature of the transaction and arise from the presumed intention of the parties. InBirmingham, Dudley and District Banking Company .v. Rose, 38Ch. D. 295 Cotton L.J. dealing with the nature of obligations implied by the doctrine said at page 308:
“By an implied obligation or an implied right I mean this: an obligation or right arising not from the express words of an instrument, nor from that which, having regard to the circumstances, must be considered the true meaning and effect of the words in the instrument; but that obligation or that right which results from the position into which the parties have placed themselves by the contract. For instance, where one man grants to another a house, then prima facie he cannot interfere “with that which he has granted; there is an implied obligation on him not to interfere with that which he has granted; namely, the house, and enjoyment of the house. That obligation arises, I repeat, not from any interpretation of the conveyance, but from the duty which is imposed on the grantor in consequence of the relation which he has taken upon himself towards the grantee.”
This doctrine is not new. In the same case, Bowen L.J. said of it at page 312 that it was “a maxim which really is as old, I will not say as the hills, but as old as the year books, and a great deal older.”
InHarmer .v. Jumbil (Nigeria) Tin Area Limited, 1921. 1 Ch.200, Younger L.J. expresses the nature of the maxim very succinctly, and, so far as the facts of the present case are concerned, very aptly when he says at page 225:
“Now if these questions are to be answered in a sense favourable to the lessee, it must be on the principle that a grantor shall not derogate from his grant, a principle which merely embodies in a legal maxim a rule of common honesty. “A grantor having given a thing with one hand,” as Bowen L.J. put it inBirmingham, Dudley and District Banking Company .v. Ross “is not to take away the means of enjoying it with the other.”.
In the present case, the plaintiff seeks to rely upon the doctrine to establish an implied obligation on the part of the defendant not to do anything to prevent the Local Authority from taking the access route to the site in charge. His case is that the land was sold to him for a particular purpose which was known to the defendant and that the defendant cannot now be allowed to behave in a manner which will prevent such use. The manner in which the doctrine applies to a case of this nature was considered by Parker J. inBrowne .v. Flower, 1911 1Ch. 219. At page 225 in relation to the aspect of the doctrine relied upon by the plaintiff he said:
“But the implications usually explained by the maxim that no one can derogate from his own grant do not stop short with easements. Under certain circumstances there will be implied on the part of the grantor or lessor obligations which restrict the user of the land retained by him further than can be explained by the implications of any easement known to the law. Thus, if the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made.”
Later in the same passage he said: “I can find no case which extends the implied obligations of the grantor or lessor beyond this. Indeed, if the implied obligations of a grantor or lessor with regard to land retained by him were extended beyond this, it is difficult to see how they could be limited at all”.
Again later in the same passage he says:
“It is quite reasonable for a purchaser to assume that a vendor who sells land for a particular purpose will not do anything to prevent its being used for that purpose, but it would be utterly unreasonable to assume that the vendor was undertaking restrictive obligations which would prevent his using land retained by him for any lawful purpose whatsoever merely because his so doing might affect the amenities of the property he had sold. After all, a purchaser can always bargain for those rights which he deems indispensable to his comfort.”
This latter passage indicates the limits of the doctrine. Since it depends upon the presumed intention of the parties it cannot apply to a situation which could not have been anticipated. While the grantor must have knowledge of the particular purpose for which the property is acquired, before any obligation arises, nevertheless he cannot have imputed to him more than ordinary knowledge of what such purpose involves. InRobinson .v. Kilvert, 41 Ch. D. 88 property had been let to the plaintiff for use as a paper warehouse. It was found that some types of paper being stored by the plaintiff were being damaged by heat rising from the caller of the premises retained by the defendant. The plaintiff sought to restrain the defendant from so heating the cellar so as to cause the damage of which he complained. He failed in his action on the ground that the defendant could not reasonably have anticipated that his use of the basement would affect the plaintiff’s use of the property demised as a paper warehouse. Lopes, L.J. said at page 97:
“Then as to the contention that the defendants have broken an implied agreement not to do anything which will make the property unfit for the purpose for which it was let, we must look to what the defendants at the time of letting knew as to the purpose for which the demised property was to be used. They knew that it was for a paper warehouse, but they did not know that it was to be used for the storage of a kind of paper which would be damaged if the temperature were raised beyond the natural temperature of the air. If the goods to be stored wanted that special protection the plaintiff should have bargained for it.”
This case was followed by Stirling J. inAldin .v. Latimer Clark, Muirhead and Co, 1894, 2 Ch. 437, where he expressed this aspect of the doctrine from that and other cases to which he referred at page 444 as follows:
“The result of these judgments appears to me to be that where a landlord demises part of his property for carrying on a particular business, “he is bound to abstain from doing anything on the remaining portion which would render the demised premises unfit for carrying on such business in the way in which it is ordinarily carried on, but that this obligation does not extend to special branches of the business which call for extraordinary protection.”
The obligation imposed on the grantor is not to use the land retained by him in such a way as to render the land granted unfit or materially less fit for the particular purpose for which it was acquired. The extent of the obligation depends on the extent of the knowledge which can be imputed to the grantor of the conditions required to render it fit to be so used. The test formulated in the first of the passages fromBrowne .v. Flower to which I have referred was approved by the English Court of Appeal in Harmer .v. Jumbil (Nigeria) Tin Areas Limited and followed more recently by Plowman J. in Woodhouse and Company Limited .v. Kirkland Limited 1970 1 W.L.R. 1185. It is the test which I propose to adopt in the present case. There are two questions to be considered:
(1) Whether the property granted has been rendered unfit or materially less fit for the particular purpose for which it was acquired; and if it has been so rendered,
(2) Whether the grantor ought to have anticipated as a result of the knowledge to be imputed to him that the conduct complained of would have that result.
InBrowne .v. Flower the plaintiff was the tenant of a ground floor flat. With the permission of the landlord, a flat on the first floor was altered in such a way that the entrance to it was by a stairs placed between two windows of the plaintiff’s flat. This affected the privacy of her flat and if she preserved this by the use of curtains, then she suffered a loss of light. Parker J. did not regard this loss of privacy as being something which rendered the flat any less fit for use as a residence. He said at page 227:
“Under these circumstances the question is whether the existence of this staircase renders the plaintiffs premises unfit or materially less fit to be used for the purpose for which they were demised, that is, for the purposes of a residential flat. In my opinion it does not. The two rooms in question can be and are still in fact used for the same purpose for which they were used prior to the erection of the stair-case. It is only the comfort of the persons so using the rooms that is interfered with by what has been done. Either they have less privacy, or if they secure their privacy by curtains they have less light. Much as I sympathise with the plaintiffs it would, in my opinion, be extending the implications based on the maxim that no one can derogate from his own grant to an unreasonable extent if it were held that what has been done in this case was a breach of an implied obligation.”
InHarmer .v. Jumbil (Nigeria) Tin Areas Limited, premises were leased to be used as an explosives magazine. Such use required a licence to be issued by the local justices. A particular licence was applied for prior to the date of the lease and granted subsequent to its date. Later the landlord granted a licence to the defendants to open up some old mine workings in the area. In the course of these operations, buildings were erected adjoining the workings. A condition of the licence granted to the plaintiff by the justices was that no building should be erected within a prescribed distance of the magazine. The buildings erected by the defendants were within this distance and as a result the licence issued to the plaintiff became forfeit. The plaintiff claimed that by permitting the erection of the mine buildings there was a derogation from grant on the part of the plaintiff’s lessor. It was clear that the magazine could no longer be used within the terms of the licence granted to the plaintiff. It was held that the loss of the licence rendered the premises unfit for use as an explosives magazine and that this was so even though the premises remained physically fit to be so used. Warrington L.J. said at page 223:
“Undoubtedly, this is the first case in which the particular question has arisen, but I confess I can see no reason why the principle should be limited in the way contended for by the defendants. The premises “have become unfit. They are unfit because it is no longer legal to use them for the purpose. They have become so unfit by the acts of the defendants. I cannot see why, if the acts of the defendants should by some physical change cause the premises to be so unfit, it should not have the same effect where the change brought about by them is not a physical change in the condition of the demised premises themselves, but is a change in their condition brought about by an act rendering it illegal to use them for that purpose.”
These cases show that the question of fitness of the property for the purpose for which it was acquired is one of fact depending for its answer upon the particular circumstances of each case. In the present case, it is true that the site can still be used for the erection of five dwelling houses. However, such houses would be very difficult to sell, if they could be sold at all, unless the laneway was taken in charge, and would certainly sell at a price far less than that at which they would otherwise sell if the laneway was taken in charge. The inference to be drawn from the evidence is that they could not be sold at a profit unless the laneway is taken in charge so that applying ordinary common sense there would seem to be no point in building them for sale in the first instance. The evidence suggests that the optimum use of the site is probably to erect one or at most two houses for persons who are prepared to accept private access only. Even so, it remains doubtful whether such use would be economic. The site was bought to be developed commercially. If it can be accepted that the optimum use is as is suggested, then it would have a commercial use though a substantially different one from that intended. If this use would be commercially unacceptable, then it would have no commercial use for building purposes. This is not just a case where it would be more difficult or even more costly to build and so less desirable for the plaintiff to complete the development. Whether one accepts the optimum use or not, the whole nature of the development will be altered. In my view, the plaintiff has satisfied the first element of the test.
The state of knowledge of the grantor was considered by such of thejudges in Harmer .v. Jumbil (Nigeria) Tin Areas Limited.Sterndale M.R. said at page 220:
“One question is: what knowledge has to be imputed to the lessor of the circumstances connected with a magazine for explosives. I am not at all sure that practically everything was not known to him. There were notices published of the application which was going to be made. The plaintiff has to deposit not only his application for a licence, but the terms upon which he proposes to ask for it, and those terms are heard by the Authority when the Application comes before them. “It is very difficult to me to suppose that all that was not perfectly well known to the lessor and his agents, but there is no evidence that it was, and I will assume, as the learned judge in the Court below did, that he did know all those particulars. I will not assume, as the learned judge did, that he must be taken to have known all the provisions of the Explosives Act 1875 but I think he must have known that a licence was necessary for the carrying on of this business. I think he must have known that the licence would contain some conditions. All the conditions I will assume he did not know. But I think he must be taken to have known that anything which violated the conditions of the licence would cause a withdrawal of the licence. As a matter of fact, according to the terms of the licence, it was ipso facto withdrawn on the acts which happened.”
Warrington L.J. dealt with this aspect of the doctrine at page 222 where he said:
“Now there is one matter, a question of fact, which has still to be dealt with. What was the knowledge of the lessor at the time of the lease as to the terms upon which this building would be licensed as an explosives magazine? There is no evidence as to actual knowledge of the lessor, but, in my opinion, we are justified in imputing to “him a knowledge of circumstances to which I will refer directly.”
He then referred to the facts and continued:
“Under these circumstances, I am satisfied that we are entitled to impute to the owner of this land knowledge that an explosives magazine could not be used without the licence of the Secretary of State, and owing to the nature of the purposes for which the building was to be used, I think we may further impute to him the knowledge that any such licence would lay down limits within which buildings and works such as those erected by the defendants could not lawfully be erected, or at least, would provide that if they were erected within those limits, the terms of the licence would be infringed. I do not mean to say that we can impute to him knowledge of the actual limits which would be laid down, and if there had been anything unusual or extravagant in the distance as specified in the licence, difficult questions might have arisen. But there is no suggestion that these limits were either unusual or extravagant, and I think therefore we are quite safe in imputing to the lessor-either himself personally or through his agents – knowledge that the explosives magazine could not be used if the buildings came within the distances actually so specified.”
In the same case Younger L.J. having referred to the nature of the maxim in the passage which I have already quoted, continued later in the same passage:
“But the difficulty is, as always, in its application, because the obligation laid upon the grantor is not unqualified. If it were, that which was imposed in the interest of fair dealing might, in unscrupulous hands, become a justification for oppression, or an instrument of extortion. The obligation, therefore, must in every case be construed fairly even strictly, if not narrowly. It must be such as in view of the surrounding circumstances, was within the reasonable contemplation of the parties at the time when the transaction was entered into, and was at that time within the grantor’s power to fulfill. But so limited, the obligation imposed, may, I think, be infinitely varied in kind, regard being had to the paramount purpose for the exercise of which it is imposed.”
The evidence of knowledge in the present case seems clear. The defendant knew that the land was being purchased to be developed as a building site. He must have known the importance to be attached to the access laneway being taken in charge by the Meath County Council since he led the plaintiff to believe that this would be done. While he may not have known every condition which the Local Authority would impose before taking the roadway in charge, I am prepared to impute to him knowledge that it was necessary for the development of the site that the Local Authority should take the laneway in charge and that the Local Authority would not take a laneway in charge which had any obstruction across it. He was also aware that the site could only be developed in accordance with the planning permission. Even if he was unaware of the exact nature of the conditions in the planning permission in relation to access and the provision of a water supply, these are matters which he would have known might be the subject matter of conditions attaching to any permissions. It is knowledge which I am prepared to impute to him. The only reasonable inference from the Defendant’s conduct is that he wished to go back on his bargain and to impede the development and was aware that it would be impeded if access was restricted or if water could not be brought to the site. This conduct manifested itself originally by his refusal to complete the sale; then by the placing of the gate across the laneway and later by the erection of a wall; by his truculence; by his attitude as expressed to the Plaintiff; and by his approach to the Mother General to the Sisters of Mercy Convent. This conduct has at all times been deliberate and carried out with the intention of stopping the development so far as he could. Not only could the Defendant have anticipated that his conduct would render the site unfit for the purpose for which it was required, but he actually intended such consequence. In my view the Plaintiff has also satisfied the second element of the test.
Counsel for the Defendant raised two basic defences to this action. He contended that the restriction which the Plaintiff was seeking was one which he could have ensured was reserved to him by the contract of sale. This was an argument raised by the defendant in Harmer .v. Jumbil (Nigeria) Tin Areas Limited, but rejected on the basis that if would have applied equally to both parties. However, it seems to me that the argument is one which should be applied, if at all, the other way. When there are quasi easements, then, on a sale of part of the land, the grantee does not have to contract specifically to retain the benefit of such rights for the benefit of the land granted, because they are implied. But, if the grantor wishes to retain quasi easements for the benefit of the land retained, he must specifically reserve them. It is correct that the purchaser must protect himself specifically when the granter could not anticipate that he would require such protection, but that is not the case here. I reject this defence
The second submission is that the defendant is not obstructing the laneway any more than he is entitled to and that it can be and has been used as a mean of access for all the vehicles which the plaintiff wishes to bring to the site This would be a good plea if this case was merely a claim for nuisance caused by the obstruction of the servient tenement. But this is not a case of nuisance. It is a case of derogation from grant where the issue is not whether the use of the servient tenement is practically and substantially as convenient as before, but whether the property sold has been rendered unfit or materially less fit for the purpose for which it was acquired. The defendant’s submission was that although the nature of the present obstruction differed from that with which the Court had previously dealt, the effect on the plaintiff was in all respects the same. This is a submission that he has done nothing wrongful. Since I have already found to the contrary, this defence must fail. The defendant did rely both in his pleadings and in his argument upon the judgment and Order given and made in October 1977. This could only have availed him, if at all, in the context of res judicata, but this principle was neither pleaded nor argued. Also, he himself had repudiated the terms of that Order by his action in building the well and changing the gates.
In my view there has been a clear derogation from grant by the actions of the defendant. The defendant is in breach of the implied obligation imposed upon him by the circumstances of the sale of the site in question to the plaintiff. Common honesty requires that the plaintiff should obtain relief. The nature of the relief should be to ensure that the defendant does not prevent the Local Authority from taking the laneway in charge nor prevent the plaintiff from developing the site in accordance with the existing or any other planning permissions which he may obtain or otherwise make the site unfit or materially less fit for use as a building development.
The plaintiff also claims damages. Although these are claimed on the basis of punitive damages, no argument was addressed to me on that basis and I do not propose to deal with that claim on that basis. Damages are recoverable for breach of a contract for the sale of land when no question of title is involved on the same basis as damages for the breach of any other contract. The amount of the damages is the extent of the loss which flows from the breach and which it could reasonably have been anticipated would have been incurred. Within this context of reasonable forseeability, the amount of the damages arising out of the breach of a contract for the sale of land is normally the differences between the value of what the plaintiff has on the date upon which damages are to be assessed and the value of what the plaintiff would have had on that date if there had been no such breach. This calculation must be made in the light of the events which have actually occurred and not in the light of what might have occurred. In the present case, on the date of breach the plaintiff should have had the site and the freedom to develop it in accordance with his contract. On the date of assessment, having regard to the relief being granted to him he will have what he ought to have had in 1976, that is the site and the freedom to develop it in accordance with his contract. This only difference in his position now would be the effect, if any, of the intervening period. The measure of damages is the financial cost to the plaintiff caused by this delay.
The plaintiff has claimed the profits which he would have earned if he had been free to develop the site during the period of delay together with interest on these profits. This is not a true measure. First, because it is based on something which has not happened. The site was not developed. Secondly, because the plaintiff was free during the period to carry on business elsewhere or to seek employment elsewhere. It is true that the evidence suggests that as a result of the matters which have occurred the plaintiff has earned less than he would otherwise have done at such alternative employment. However, no evidence has been adduced from which such damage could be computed.
What the plaintiff has lost is the cost of holding the site while he was unable to develop it as he had anticipated. His loss is the cost of financing the purchase price for the period during which he had been unable to use the site in this sense. He is also at a loss of the cost of financing the sum spent on development to date.
I am aware that the value of the site has increased and that the profit which he can now expect has likewise increased. However, such increase on the evidence has been proportionate to the rate of inflation. The plaintiff by having the same site with the same right to develop it is in reality no better off now than he would have been with the same thing when the breach occurred. Normally a Court is asked by an award of damages to put a plaintiff back into the same position in which he would have been but for the wrong done to him. Here he is in that same position. However, instead of having to finance his purchase price during the period of development, he has had to finance it also during the period of delay.
The plaintiff has had to establish his right. Accordingly, his damages should normally be assessed as of the date of the declaration of such right. Here however there has been unnecessary delay in the commencement and prosecutions of these proceedings which should not be held against the defendant. The letter on which the claim is based is dated the 21st March, 1979, Yet the summons was not issued until the 13th December, 1979. While the defence was delivered on the 2nd July, 1980, the reply was not delivered until the 27th October, 1980 and the matter was not set down until the 16th July, 1981. This latter step followed the furnishing of particulars on the 13th July, 1981 to a notice requesting particulars dated the 4th May, 1980. In the circumstances it seems to me not unreasonable to suggest that there was at least one years delay.
The contract in this case was made on the 25th November, 1975 when the original agreement was confirmed with variations. It would be reasonable to suppose that this sale should have been completed in or about the 1st February, 1976. The loss runs from this date and in my view should by reason of the delay to which I have referred be taken to have run until the 1st August, 1982.
The cost of financing the purchase of the site was £14,000 made up as to £11,900 to purchase the site, the sum of £900 to buy out his partner, and the sum of £1200 as an initial part of the price representing the defendant’s costs of the first action. The cost of the development to date is less easy to ascertain. It is given a sale value of £25,000 by Mr. Harrington which I accept. Having regard to the evidence of Mr. Dickson which I also accept the gross profit should be one third of the selling price. This suggests a cost of say£16,000. I propose to allow 11% interest on these sums for the period such sums were outstanding. This is the figure allowed by statute and I have no evidence which would entitle me to depart from it. I would allow interest on the items of the purchase price from the 1st February, 1976 or the date upon which they were paid, whichever is the later. The development work has been carried out since the decision of the Supreme Court. The plaintiff says that he brought bulldozers in during 1980 or 1981 to prevent his planning permission from running out but did not wish to commit himself further. On this evidence, I must take this assumed expenditure of £16,000 to have been incurred in 1981. Accordingly, I will allow one year’s interest on this sum.
Peacock & Anor v Custins & Anor
[2000] EWCA Civ 1958 (14 November 2000)
[2002] 1 WLR 1815, [2002] WLR 1815, [2000] EWCA Civ 1958, [2001] 2 All ER 827
LORD JUSTICE SCHIEMANN:
This is the judgment of the court to which each member of the court has contributed.
This is an appeal from the late Judge Sheerin which raises one point of general significance in relation to the law of easements and a number of other points which are specific to the facts of the present case. The point of general significance is this: where the owner of a dominant tenement possesses a right of way for all purposes over a servient tenement, may he make any and if so what use of that right of way to access and cultivate (in conjunction with the dominant tenement) other property of his which lies adjacent to the dominant tenement? The defendants, by their counterclaim, contend that this involves a trespass, on the basis that the purpose of accessing and cultivating the other property is outside the scope of the right of way granted. The claimants contend that there is no trespass in such a case unless either the use of the servient tenement is for the primary purpose of accessing the adjacent land or the use of servient tenement for eventual access to the adjacent land increases the practical burden on the servient tenement.
For the purposes of the principal question the facts can be stated shortly. The defendants own a house number 33 The Row and a strip of land to the east, which we shall refer to as the yellow strip, which is the servient tenement. They acquired title by deed on 25.1.1977. The property is described in the conveyance parcels as “All that piece or parcel of freehold land having a frontage to The Row, Sutton….. of 77 feet or thereabouts……… together with the dwelling house erected thereon and known as 33 The Row Sutton aforesaid all which said property is shown edged green and yellow on the plan annexed hereto….. subject to a right of way at all times and for all purposes in favour of the owner or occupier for the time being of the property adjoining the rear of the property herein described all which said right of way is for the purpose of identification only edged yellow on the said plan annexed hereto”. The plan annexed to that conveyance the Judge referred to as plan 1 and again we shall do the same. The dominant tenement, namely “the property adjoining the rear of the property” is in the ownership of the claimants and we shall refer to it as the red land.
The claimants had acquired title to the red land and to the easement by a conveyance dated 21.4.1976. The vendors conveyed “All those pieces or parcels of land situate in The Row Sutton in the county of Cambridgeshire containing 14.915 acres (more or less) all which said pieces or parcels of land are for the purpose of identification only delineated and edged red on the plan annexed hereto….. TOGETHER WITH the benefit of the right of way at all times and for all purposes in connection with the use and enjoyment of the property hereby conveyed…… over the roadway coloured yellow on the said plan…….” The plan clearly identifies three rectangular plots adjacent to one another running north south and having a total area of 14.915 acres. To the north of the most northern of those three plots is shown a rectangular strip coloured yellow running northwards until it meets The Row which runs East West. To the west of the yellow strip is number 33 The Row. The plan attached to this conveyance dated 21.4.1976 was referred to throughout the trial as plan number 2 and we shall do the same.
The claimants used to own a property, consisting of a house with land behind, known as number 39 The Row which lies further west than No 33. It consisted of a relatively small frontage to The Row and a long strip behind it which widened out. Once one moves away from The Row, where number 39 was separated from number 33 (by presumably numbers 35 and 37) one finds that the land behind the house standing on number 39 marches along the western edge of the red land. On plan 2 the whole of number 39 is shown edged blue. All of the land edged blue used to be accessed from the Row through number 39. In February 1997 the claimant sold part of No. 39 :- the house and the 4 acres immediately behind it. He however failed to reserve any right of access by that route to the remainder of the land to which he retained title. We shall refer to the land over which he retained title as the blue land.
Thus it came about that the claimants owned the blue land and the red land. They are entitled to access the red land by means of the yellow strip. But are they ever entitled to use the yellow strip to gain access to the red land and thence to the blue land and, if so, in what circumstances? Those are the main points which fall for decision. In the action the defendants by counterclaim sought a declaration that the plaintiffs were not entitled to use the right of way over the yellow strip for the purpose of gaining access to the blue land. That declaration the Judge refused to make and the defendants appeal that refusal. No other relief was sought by the counterclaim.
The Judge found that the red land and the blue land were farmed as one unit. The red land was about 15 acres and the blue land 10 acres more or less. The two fields were interconnected. The land was let to tenant farmer Mr Veale. He used the access for the purpose of farming both the red and the blue land. He did not claim to use the yellow roadway for the purpose of accessing the red land and then, as an incidental activity, picnic or stroll on the blue land. The defendants, rightly, do not contend that incidental activity of this nature would involve any excess of grant. But Mr Veale was using the access for the joint purpose of cultivating both properties, the red and the blue. His evidence was unchallenged that he might have to make one or two more visits with his tractor to farm the blue and red land than he would to farm merely the red land. The defendant accepted that so far Mr. Veale had only used the access way on a couple of occasions and would appear to have need to use it on only about half a dozen times a year. The Judge held that the actual use both at the present time and contemplated by Mr. Veale was not excessive in quantitative terms. He stated that he was satisfied that access over the yellow roadway was never likely to be greatly increased by making access to the blue land as well as the red land. He concluded his judgment as follows:
“I accept and respectfully adopt the proposition of Romer L.J. in Harris v Flower 74 L.J. Chancery Reports 127:
“If a right of way be granted for the enjoyment of Close A, the grantee because he owns or requires Close B cannot use the way in substance for passing over the Close A to Close B”.
So in certain particular circumstances, which I am satisfied have not arisen here, the plaintiffs, or those authorised by them, would not be entitled to claim a right of way to the blue land over the yellow roadway. However, if the access over the right of way is exercised for the purpose of farming the red land and at the same time the opportunity is taken to enter the blue land from the red land as part of that farming activity and there is no significant additional user of the right of way, such a use of the right of way would not bring about exceptional user, nor would it be in excess of the grant. The plaintiff would be wise to ensure that the blue and the red land are cropped in an identical way each year. I decline to make the declaration sought”.
The declaration sought by the Defendants was a declaration that the claimants are not entitled to use the right of way over the yellow strip for the purpose of gaining access to the blue land.
The defendants, while not pressing their entitlement to a declaration in the absolute terms sought, submit that to use the yellow strip for the purpose of accessing the blue land in order to cultivate the blue land, as well as the permitted red land, is to trespass on the yellow land and that they are entitled to a declaration that the claimants are not entitled to use the yellow land for that purpose. They submit that the identity of the dominant tenement for the benefit of which the easement was granted appears clearly from the grant and that it is not permissible to use the servient land for the purpose of benefiting the blue land which was never land for the benefit of which the easement was granted. They submit that if indeed the use of the yellow strip for the purpose of gaining access to the blue land is not permitted by virtue of the easement then they would be entitled to damages not only on the basis of damage to the yellow land or to No 33 but also on a user basis. We recall that Nicholls L.J. explained in Stoke-on-Trent City Council v W. & J. Wass Ltd [1988] 1 W.L.R.1406 C.A. at page 1416, in a passage in effect approved by the Privy Council in Inverugie Investments Ltd v Hacket [1995] 1 W.L.R.713,
“It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of that other’s property.”
The defendants submit that in those circumstances the making of a declaration is in principle desirable and was wrongly refused by the judge.
The Law
The present state of the law appears from an examination of the following cases.
Harris v Flower (1905) 74 L. J. Ch.127 C.A. was a case where the defendant had been granted a right of way over the claimant’s land. That grant was to enable him to access what was referred to as the pink land. At the time of the grant of the right of way the Defendant’s predecessor in title was already the owner of property adjoining the pink land which adjoining property was referred to as the white land. The white land consisted of a public house with its own access and some land to the rear of the public house. The land at the rear of the public house adjoined the rear portion of the pink land. Years after the grant a factory was erected partly on the white land and partly on the pink and the licensed premises were completely severed from the land at the rear. The question arose whether the right of way could be used in order to access that factory including that portion of it which stood on the white land. Swinfen Eady J held that the defendant was entitled so to use it since he was using the access way bona fide for the purpose of accessing the pink land none the less so because a portion of the building on the pink land extended to the white land. This decision was reversed by this court.
In his judgment Vaughan Williams LJ cited with approval two earlier cases: Skull v. Glenister (1864) 36 LJCP 256, which shows that “a mere colourable use” of a way for the purpose of entering the dominant land (when the real purpose was some other) will fall outside the grant; and Williams v James (1867) LR 2 CP 577.
Williams v James concerned a right of way over the plaintiff’s land for the benefit of “Nine acre field” in its ordinary use as a field. Hay grown on both Nine acre field and the adjoining “Parrott’s land” had been mowed and stored on Nine acre field in the summer of 1866, and in September 1866 its whole bulk was sold to the defendant who carted it away over the plaintiff’s land to the highway. The jury held that the original storage on Nine acre field had been done honestly and not in order to gain the advantage of the right of way. The stacking and subsequent dealing with the hay must have been regarded by the jury as being in the ordinary and reasonable use of Nine acre filed (see all three judgments at pages 581, 582 and 583). The test identified in all three judgments was whether Nine acre field was being used for purposes others than those included in its ordinary and reasonable use, although Bovill C.J. added that “If no additional burthen was cast upon the servient tenement the jury might well find that there had been only the ordinary and reasonable use of the right of way”. This test is also reflected in the following passages quoted by Vaughan Williams L.J. to explain the decision:
“The circumstances under which the hay was stacked, and the purpose and object of the defendant in carrying it away, are questions for the jury. As I read the finding of the jury, the stacking and the subsequent dealing with the hay were in the harvest and reasonable use of Nine acre field”.
In view of the jury’s findings the plaintiff’s claim therefore failed.
Having cited those cases, Vaughan Williams L.J. continued at page 132
“I cannot help thinking that there not only may be, but there must be, many things to be done in respect of the buildings on the white land which cannot be said to be mere adjuncts to the honest user of the right of way for the purposes of the pink land. To begin with, the first thing he was doing before the completion of the building was to use the right of way for the purpose of carrying materials onto the white land so as to erect that part of the building, and I cannot doubt that as time goes on he will probably use this right of way for the purpose of doing repairs on the white land; and under these circumstances it seems to me that, notwithstanding the fact that the buildings on the white and on the pink land are intended to be used jointly for one purpose, yet that consideration does not exclude the inference that the user of the way is for the purpose of giving access to land to which the right of way is not appurtenant.
The reason of it is, that a right of way of this sort restricts the owner of the dominant tenement to the legitimate user of his right; and the Court will not allow that which is in its nature a burthen on the owner of the servient tenement to be increased without his consent and beyond the terms of the grant….. The burthen imposed on the servient tenement must not be increased by allowing the owner of the dominant tenement to make a use of the way in excess of the grant. There can be no doubt in the present case that, if this building is used as factory, a heavy and frequent traffic will arise which has not arisen before. This particular burthen could not have arisen without the user of the white land as well as of the pink. It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole object of this scheme is to include the profitably user of the white land as well as of the pink, and I think the access is to be used for the very purpose of enabling the white land to be used profitably as well as the pink, and I think we ought under these circumstances to restrain this user.”
Romer L.J. said on the same page:-
“I think that it is impossible to say that this large building is to be regarded as if wholly erected on the land coloured pink, nor can it be said that every user of the way for the purposes of the land coloured white is one for the proper enjoyment of the land coloured pink. I will take one instance. The defendant has used, and claims a right to use, this right of way for the purpose of carrying building materials for the part of his buildings on the land coloured white. That, to my mind, is a user of the right of way for passage over the land coloured pink for the enjoyment of this land coloured white. It is impossible to say that by reason of one building being on both lands the defendant has made the right of way which was granted for the enjoyment of the one a right of way for the enjoyment of both, and that is what the defendant is really doing. That would substantially enlarge the grant of the right of way. The servient tenement is not obliged to submit to the carrying of building materials for the purpose I have indicated; and other incidences might easily be given which would result in using the right of way for purposes of the land coloured white, and not for the true and proper enjoyment of the land to which the way was appurtenant.”
Cozens-Hardy L.J. stated at page 133:
“It is a right of way for all purposes – that is, for all purposes with reference to the dominant tenement. The question is, whether the defendant has not attempted, and is not attempting, to enlarge the area of the dominant tenement. The land coloured white is entirely land-locked by the acts of the defendant. The only access is by the passage over the land coloured pink; and it is, in my judgment, impossible to use the right of way so as to enlarge the dominant tenement in that manner”.
In Jobson v Record [1998] 09 EG 148 C.A. a right of way was granted for all purposes connected with the use and enjoyment of the dominant tenement as agricultural land. The dominant tenement was used for the purpose of storing timber felled on neighbouring land and the question was whether the right of way could be used for the purpose of removing that timber. Harris v Flower was followed and the question was answered in the negative. Morritt L.J. saying at page 114:
“If the storage was a separate operation it was not an agricultural use of (the dominant tenement). If it was not an operation separate from the felling of the timber, then the use of the right of way for the removal of the timber felled at (the neighbouring tenement) was in substance for the accommodation of (the neighbouring tenement). Either way, the use of the right of way was not authorised by the terms of the grant.”
Sir Brian Neil and Simon Brown L.J. agreed. The court may have taken a more limited view of use “as agricultural land” than that adopted by the jury in Williams v. James, but that is neither here nor there.
Alvis v Harrison (1990) 62 P & CR 10 H.L is a Scottish case but it is common ground that in this respect the law of Scotland is the same as that of England. The facts were unusual. The dominant tenement lay on either side of the servient tenement which was a driveway running North South leading to the A73 highway. On the West of the driveway, on part of the dominant tenement, stood a house. The owner of the house wished to construct a new drive to run eastwards from the driveway and thence to join the highway further east than the place where the servient tenement joined it. The owner of the servient tenement sought to stop him from doing so. It was held that he could not. Lord Jauncey of Tullychettle delivering the only substantive speech said this:
“Before turning to the facts of this case it may be convenient to state certain general principles applicable to servitude rights of access and their use:
Where a right of access is granted in general terms the owner of the dominant tenement is entitled to exercise that right not only for the purpose of the use to which the tenement is then being put but also for any other lawful purpose to which it may be put thereafter….The right must be exercised civiliter, that is to say, reasonably and in a manner least burdensome to the servient tenement…….
For the better enjoyment of his right the dominant owner may improve the ground over which the right extends provided that he does not substantially alter the nature of the road nor otherwise prejudice the servient tenement…..
A servitude right of access inures to the benefit of the dominant tenement and no other. Thus is cannot communicated for the benefit of other tenements contiguous thereto…….. What they may not do, however, is to use the way, or permit its use by others, to obtain access to subjects other than the dominant tenement, whether or not they happen to be heritable proprietors of those others subjects. They may not, in short, increase the scope of the right of access, and in particular they may not use the way for the purpose of securing access for persons or goods to subjects contiguous to the dominant tenement by using the dominant tenement merely as a bridge between the end of the lane and the non dominant subjects…..”
Later in his judgment after dealing with facts Lord Jauncey said at page 16….
“It is quite wrong to treat the A 73 as though it were another tenement contiguous to the woodlands. The underlying reason for restricting the benefit of a servitude right of access to the dominant tenement alone is that to use it for the benefit of a second or third tenement is likely to generate more traffic and so increase the burden. In this case, the appellant already has a right of access to the A 73 over the driveway. The new road merely provides a substitute means of access without altering the volume of traffic.”
We were also referred to Miller v Tipling (1918) 43 DLR 649 (Ontario Court of Appeal) where at page 475 per Mulock, C.J. Ex. said this
“The law is well established that a right of way appurtenant to a particular close must not be used colourably for the real purpose of reaching a different adjoining close. This does not mean that where the way has been used in accordance with the term of the grant for the benefit of the land to which it is appurtenant, the party having thus used it must retrace his steps. Having lawfully reached the dominant tenement, he may proceed therefrom to adjoining premises to which the way is not appurtenant; but if his object is merely to pass over the dominant tenement in order to reach other premises that would be an unlawful user of the way”.
The law is clear at the extremes. To use the track for the sole purpose of accessing the blue land is outside the scope of the grant. However in some circumstances a person who uses the way to access the dominant land but then goes off the dominant land, for instance to picnic on the neighbouring land, is not going outside the scope of the grant. The crucial question in the present case is whether those circumstances include a case where one of the essential purposes of the use of the way is to cultivate land other than the dominant land for whose benefit the grant was made.
The present case
Mr Dumont for the claimants submits that the question to be asked is whether the use of the yellow strip for the purpose of accessing both the red and the blue land involves a trespass on the yellow strip. He submits that it does not because it does not impose a significantly heavier practical burden on the owner of the servient tenement (the defendants) than they had willingly assumed. On one view, when the judge in the present case referred to the burden of use being “not, or not significantly, increased”, he was purporting to conclude that any additional use resulting from the accessing and cultivation of the blue land with the red land was minimal. If that were the test, we would have to disagree with the judge’s conclusion. Mr Veale’s evidence that his likely use was about six times a year, and that this would involve one or two more visits than if he was farming the red land alone would seem to us to disclose more than a minimal increase. But the broader submission made by Mr Morshead for the appellants is that actual use or increase of user is unimportant. What matters is potential user. The claimants as owners of the dominant tenement would be entitled to use the strip far more often than the few times a year than Mr Veale, their tenant, did use it and with heavier vehicles.
We do not consider that this submission approaches the matter correctly either. The right to use a right of way is determined by the terms of the grant, specifying the dominant tenement for the purposes of which the right is created. Trespass is whatever is not permitted by the grant. The right is not to use the way for the purposes of benefiting any property, provided that the total user does not exceed some notional maximum user which the beneficiary might have been entitled to make for the purposes of the dominant tenement. If that were the test, the beneficiary might in some circumstances use the way entirely for purposes other than those of the dominant tenement. The right is to use the way for the purposes of the dominant tenement only. The grant, when made, had a notional value which would be identified by reference to those purposes and their likely impact. Use for other purposes would be likely to carry its own notional commercial value. The claimants are claiming to use a way granted for the limited purposes of the 15 acres of red land for the extended or additional purpose of accessing and cultivating at the same time the further 10 acres of the blue land. That extended or additional use is of self-evident commercial value to the claimants, but any value attaching to it cannot have been embraced in the notional value attached to the actual right of way for the benefit of the red land.
Considering the position as a matter of principle, we would consider that the defendants are entitled to the declaration that they seek. In our judgment the authorities to which we have referred, and in particular Harris v Flower, also confirm that, where a court is being asked to declare whether the right to use a way comprises a right to use it to facilitate the cultivation of land other than the dominant tenement, the court is not concerned with any comparison between the amount of use made or to be made of the servient tenement and the amount of use made or that might lawfully be made within the scope of the grant. It is concerned with declaring the scope of the grant, having regard to its purposes and the identity of the dominant tenement. The authorities indicate that the burden on the owner of the servient tenement is not to be increased without his consent. But burden in this context does not refer to the number of journeys or the weight of the vehicles. Any use of the way is, in contemplation of law, a burden and one must ask whether the grantor agreed to the grantee making use of the way for that purpose. Although in Harris v. Flower Vaughan-Williams LJ mentioned the “heavy and frequent traffic” arising from the factory which “could not have arisen without the use of the white land as well as of the pink”, the view we take of the reasoning in all three judgments in that case, as appears by the passages set out above, is that all three judges were addressing not the question of additional user, but the different question: whether the white land was being used for purposes which were not merely adjuncts to the honest use of the pink land (the dominant tenement); or, re-phrasing the same question, whether the way was being used for the purposes of the white land as well as the dominant tenement.
Where there is a use in excess of that granted questions can arise as to whether an injunction should be granted or damages should be awarded. But such questions are not before us because neither relief was sought by the defendants. They wished to know what the legal position was.
It is in our judgment clear that the grantor did not authorise the use of the way for the purpose of cultivating the blue land. This can not sensibly be described as ancillary to the cultivation of the red land. We therefore allow the appeal and declare that the claimants are not entitled to use the yellow strip for the purpose of obtaining access to the blue land in order to cultivate it.
THE SIZE AND LOCATION OF THE RIGHT OF WAY
We turn to the issues relating to the size and location of the right of way. In his first judgment dated 18th December 1998, the judge concluded that the width of the right of way at its two extremities was 21 foot, and that in between it was limited by the physical existence of permanent obstruction and had a maximum width of 21 foot. In his second judgment dated 2nd July 1999, he held that it would not reflect the intention of his first judgment to include a kink in the western side of this right of way, since the suggested kink reflected no more than the presence in 1976-77 of outbuildings, which had since been removed; they were not part of the original house at No. 33 and “plainly were not permanent”.
The defendants submit that the judge erred, first of all, in treating the whole area coloured yellow as intended (subject to permanent obstructions) to be comprised in the right of way. In their submission the judgment should have had regard to the existing “roadway” and, in that connection, to the presence and width of the gates and fences at each extremity. The result, they submit, should be to limit the northern entrance from the road to 15 foot (the width of the 3 foot and 12 foot gates… and the southern entrance to the field to 10 foot, the width of the dilapidated gate which there existed.
Mr. Morshead points out that the 1976 conveyance gave the claimants no more than “a similar right of way over the roadway coloured yellow” on plan 2. The case was therefore, in his submission, in the same class as White v Richards 68 P & C.R. 105, where the right granted was to pass and repass over and along the track coloured brown; and it was in a different category to Keefe v Amor [1965] 1 QB 334, where the right of way was simply “over the land shown and coloured brown”. Accordingly, the first step in his submission was to identify the existing roadway, and the right of way must be treated as limited to this. We of course accept, and White v Richards shows, that the physical characteristics of the area at the time of the grant constitute potentially relevant background to any construction of the grant. But there was no evidence of any established roadway or use involving any particular route through or between the gates. The general impression from photographs taken in 1998 is one of very flimsy structures at each end, and indeed we were told that the evidence was that any gate and fence which existed at the southern end in 1976-77 was even more insubstantial or derelict.
Plan 2 which was actually attached to the conveyance was small-scale and imprecise. It also carried the statement that “This Plan is for identification purposes Only and although believed to be correct its accuracy is in no way guaranteed”. It seems to me legitimate to look at other background for assistance as to what precisely was intended to be conveyed. The judge looked at the contract for sale (as well as a statement made by the auctioneer, which cannot in our view have been admissible). Both counsel were initially prepared to accept that this was admissible background to the construction of the conveyance, although Mr. Morshead later resiled from this after being referred to Youell v Bland Welch [1992] 2 LI.R 127. We were referred to Ladborke Group plc v Bristol C.C. [1988] 1 EGLR 126, 129, where this court, when construing a lease, had regard to the terms of the building agreement pursuant to which, expressly, a lease was executed. In the present case, the recital in the conveyance is less clear: it merely records that “The Vendors have agreed with the Purchasers for the sale to them of the property hereinafter described”. But this statement confirms that the conveyance was designed to give effect to a specific agreement for sale of “the property hereinafter described”. Indeed, the effect of the agreement had already been to transfer the equitable interest in that property including its ancillary benefits such as the right of way. What is presently in issue is simply the precise scope of “the right of way over the roadway coloured yellow”, which was agreed to be sold and intended to be conveyed. We consider it permissible to look in these circumstances at the agreement which the conveyance was intended to implement. In condition 19 of the agreement the right of way is identified as a right “over the roadway as edged yellow on plan number one annexed hereto”.
Plan 1, in the judge’s words, is “meticulous and precise in its detail and leaves no doubt in the mind of anyone”. At the north and south ends of the yellow area, the dimensions are shown as 21 foot. There is no suggestion of any restriction or limitation by reference to any gate or gates at either end or any route between the two ends.
In these circumstances, the position seems to us clear. The background does not support any limitation of the right of way to any particular route between its two extremities or to any gate or part of its two extremities. The right of way extends to the full width of the yellow land shown on plans 1 and 2, subject only (on the judge’s judgment) to permanent obstructions. But, the claimants could not object to the presence of such restrictions as were imposed by the gates and fences, unless and until these substantially interfered with such use of the right of way as was reasonable from time to time: see Keefe v Amor, at page 347 C-E.
We turn to the question of the kink, shown on the large-scale and detailed plan 1, but not on the small-scale and imprecise plan 2. Plan 1 specifies this kink as starting 35 foot 2 inches south of the road and running south at a slight easterly angle for 20 foot 10 inches, before the western edge of the yellow coloured land resumes a southerly direction for its remaining 100 feet. The judge, in his original judgment, said that the right of way was precisely ascertainable from the location of the flank wall of No. 33, the auctioneer’s statement, plans 1 and 2 and the auction particulars. We have already indicated our view that the auctioneer’s statement was not admissible. But plan 1, which shows no kink, is. Of plan 1, the judge said this:
“The only deficiency in the plan is that the obtuse angle kink on the south western limit of width is not identified, nor are measurements given at that point”.
In his second judgment, however, he declared that the right of way was 21 foot wide at its ends and along its width, save where there were permanent obstructions and dismissed the outbuildings as impermanent. As to this, it does not follow from their subsequent demolition that the outbuildings would have been regarded as impermanent at the time, or that their owners would have been prepared to have them demolished or to forego their reconstruction. The kink appeared, because of them, in the very document which the judge accepted as “meticulous and precise in its detail” and as “leav[ing] no doubt in the mind of anyone”. Further, this is a document which is admissible, as we consider in common with the judge, on the issue whether the right of way was intended to extend to the whole of the yellow coloured area, or to be limited to some route or gates on that area. The judge’s second judgment appears to us to ignore the clear effect of the very document which he elsewhere, rightly, found so helpful. We can see no basis for treating the right of way as having a 21 foot width along its whole length, regardless of the kink. Plan 1 shows that it was understood to have 21 foot width at each end,. and to have kink in the middle, which must clearly reduce its width in the middle,. To what width it there reduces must depend on a precise calculation based on an original and not a photocopy of plan 1.
The judge referred to permanent obstructions, and the plan annexed to his final order, which Mr. Dumont defends, shows a telegraph pole on the east edge of the yellow area, near the road. It is 18 foot 6 inches from the east flank wall of the defendants’ house at No. 33. We reject Mr. Morshead’s submission that this means that the judge has ordered a right of way impinging by 2 foot 6 inches on the house at No. 33. On the judge’s judgment, the pole represents a permanent obstruction, and a necessary limitation on the right of way. Mr. Dumont did not contend that the judge was wrong to qualify his judgment by reference to permanent obstructions to be found on or in the ground at the time of the sale in 1976-77.
On the ground, the boundaries clearly intended to mark the yellow area appear to have been swivelled slightly on a central fulcrum, going eastwards at the south. The swivelling is reflected on the plan attached to the judge’s order. The effect is that some 2 foot 9 inches of the existing gate at the south-west end of the yellow area is shown as falling outside the yellow area and, so outside any right of way. That is consistent neither with common sense nor with either party’s case. In that respect also it seems to us that the plan attached to the order requires revision.
For these reasons, on the second issue, we vary the judge’s order to require the kink to be shown and also to reverse the swivelling of the yellow area. A revised plan will thus require to be drawn up and attached to the order of this court. A declaration along the lines of the first declaration made by the judge will be appropriate in relation to that revised plan. The second declaration made by the judge will require amendment in view of the kink. Paragraph 3 of the order under appeal still appears appropriate. Instead of paragraph 4 of the order under appeal we shall declare that the claimants are not entitled to use the yellow strip for the purpose of obtaining access to the blue land in order to cultivate it.
Order: Appeal allowed in part; order to be varied; counsel to submit draft minute of order within two weeks; Judge’s costs order below to be set aside; no order as to costs either below or at the KINK hearing or in the Court of Appeal; application for permission to appeal to House of Lords refused.
Sargeant & Anor v Macepark (Whittlebury) Ltd
[2004] EWHC 1333
Mr Justice Lewison:
Introduction
Mr and Mrs Sargeant own a large area of land at Whittlebury in Northamptonshire, close to the Silverstone Motor Racing Circuit. In the first half of the 1990s the land was developed by the construction of a golf course, clubhouse, bars and restaurants. It was part of the Sargeants’ long term plans that the complex should also include a hotel.
Following negotiations with Mr Mike Rockall, the managing director of Macepark (Whittlebury) Ltd (“Macepark”), the Sargeants entered into an agreement for lease, and subsequently a lease, with Macepark. Under the terms of the lease Macepark were to construct the hotel, which they did.
The lease contains a covenant by Macepark not to make alterations without the landlords’ consent, such consent not to be unreasonably withheld or delayed. Macepark applied for consent to construct an extension to the hotel in May 2003. At the end of July 2003 the Sargeants said that they would give consent, but only on certain conditions. Macepark took the view that the conditions were unreasonable, and began the works without consent. This prompted the Sargeants to seek an interim injunction which was initially granted on an application without notice on 20 August 2003 and subsequently continued by consent until trial of a preliminary issue. The preliminary issue directed to be tried was whether the Sargeants had unreasonably withheld or delayed the giving of consent to the extension. Statements of case were served on each side, but in the event the issue was all but compromised.
On 24 October 2003 the Sargeants granted Macepark a licence to carry out the work subject to a number of conditions. Somewhat unusually, one of the conditions contained in the licence was not agreed. Clause 7.3 of the licence says:
“In the event that the Court shall determine that it is reasonable for the Landlord to impose as a condition of granting consent to the works a restriction on the use of public rooms in the Extension in the form set out below, the following sub-clause will be added to clause 3 of the Lease:-
“3.34 Restrictions on use of public rooms in the Extension
Not to use any of the meeting or conference rooms or other facilities intended for use otherwise than as bedrooms in the extension constructed pursuant to a Licence and Deed of Variation made the 24th day of October 2003 between the Landlord (1) and the Tenant (2) otherwise than for functions and activities which are directly related or connected to management training conferences held at the Premises””
I have been asked to decide whether the imposition of this condition is one which it is reasonable for the Sargeants to impose. I was initially sceptical about whether this was a proper issue for the court to resolve (compare Re Hooker’s Settlement [1955] Ch. 55). However, where a case is settled before trial, the court retains a discretion to decide unresolved issues, such as costs (compare Brawley v. Marczynski [2003] 1 WLR 813); although it must exercise that discretion with caution. The issue I am asked to decide was a substantive issue in the case, raised on the pleadings. Accordingly, I consider that it is proper that I should determine the one outstanding issue between the parties.
Mr Nicholas Dowding QC appeared for Macepark; and Mr John Male QC appeared for the Sargeants.
Background facts
At the date of the lease the Sargeants had been carrying on business for the best part of a decade. In a subsequent arbitration between the Sargeants and Macepark the arbitrator described their business at that time as follows:
“Between 1991 and 1994 Mr & Mrs Sargeant developed the business of a championship golf course and golf and country club facilities which trades under the name of Whittlebury Park. At all material times Whittlebury Park was engaged in the business of managing and operating a golf club, golf days, corporate hospitality, product launches, incentives and promotions, team building, multi-activity days, corporate family days, lunches and dinners, parties and dinner dances, weddings and receptions, ‘stag’ and ‘hen’ parties, buffets and barbecues, themed occasions and other golf and country club related activities. In addition during the week of the British Grand Prix and other major race meetings at the adjacent Silverstone Race track, Whittlebury Park engages in the business of letting space for camping and caravanning and car-parking.”
The arbitrator found that Macepark knew this at the time. The Sargeants also live on the site in a house called West Park House. Macepark was a market leader in the provision of facilities for management training. Among its establishments was Scalford Hall, which Mr Rockall showed the Sargeants during the course of negotiations.
The lease
The lease was granted on 29 October 1998 for a term of 122 years from 1 April 1998. The rent payable under the lease consists of two components:
i) The Minimum Rent. This is £100,000 per annum subject to review on 1 April 2003 and every fifth anniversary thereafter. The review is in accordance with Schedule 4, which provides for the rent to be increased in line with increases in the RPI;
ii) The Turnover Rent. This is payable in accordance with Schedule 5. It represents the Turnover Rent Percentage of the Tenant’s Gross Annual Receipts for any year of the term. The Turnover Percentage is 5 per cent of the first £2 million, 6 per cent of the next £1 million, and 7 per cent of anything above £3 million. No Minimum Rent is payable if the Turnover Rent exceeds the Minimum Rent.
Clause 3.33 is a covenant by the tenant to “use its best endeavours to maximise all income receivable by it whether through its own operations or through those of any licensee concessionaire subtenant or any Associate (as defined in Schedule 5)”. In fact the turnover rent has exceeded the minimum rent by a substantial margin. In 2003 it was over £500,000 per annum.
The lease required the tenant to construct the works shown on plans attached to the lease. The date on which those works were completed was to be called “the Certificate Date”. Clause 3.6.1 provides that after the Certificate Date the tenant must not (among other things) make any alteration to the Premises “except as permitted by the provisions of this clause”. Clause 3.6.2 provides:
“After the Certificate Date the Tenant must not make alterations to the Premises unless he first –
3.6.2.1 obtains and complies with all necessary consents of any local or other competent authority and pays the authority’s charges for them,
3.6.2.2 makes an application for consent supported by drawings and where appropriate a specification in duplicate prepared by an architect, or a member of some other appropriate profession,
3.6.2.3 pays the reasonable fees of the Landlord or any mortgagee for the preparation of such consent,
3.6.2.4 obtains the consent of the Landlord, whose consent may not be unreasonably withheld or delayed”
This is the clause in issue in the present case.
Under clause 3.13.2 the tenant must not make any application for planning permission (other than in respect of matters which do not require the landlord’s consent under the Lease) after the Certificate Date without the prior consent of the landlords such consent not to be unreasonably withheld or delayed. Under clause 3.13.5 the tenant may not carry out any development until the landlords have acknowledged that any planning permission is acceptable to them.
Under clause 3.25 the tenant must not at any time on or after the Certificate Date use the leased premises other than for the Permitted Use. The Permitted Use is defined by the lease as follows:
“The Permitted Use’ means Hotel, Conference Centre, Management Training Centre Leisure Fitness and Health complex and any ancillary and additional uses as are compatible or may from time to time be associated therewith or any other use approved by the Landlord from time to time, such approval not to be unreasonably withheld or delayed.”
Paragraph 7 of Schedule 7 contains the following covenant by the landlords:
“Not at any time to allow any part of West Park to be used for nor to do nor be involved in either alone or with others nor be interested (whether as a partner Director or otherwise) in any activity which would adversely affect the income of the Tenant or the value of the Tenant’s investment in the Premises for the Permitted Use save that the provision of food and drink to members or temporary playing members social members and their guests of the Golf Club the holding of conferences in connection with the Golf Club activities or wedding receptions shall not be deemed to be in contravention of this covenant.”
The expression “Golf Club” is defined in clause 1.10 so as to include a golf and country club business.
Relations between the parties
It is clear that the relationship between the parties has not been a happy one. Disputes arose right from the beginning. These disputes have led to a number of arbitrations, in which in excess of 50 issues have been referred to arbitration. Many of the issues have concerned the use to which Macepark has put the property.
The hotel opened in June 2000. It is called Whittlebury Hall. As originally constructed, it included a large lounge; a series of meeting and training rooms; a dining room capable of serving 250 covers, and a leisure complex which included a swimming pool, gym and other facilities. By October the Sargeants were complaining that Macepark were holding wedding receptions in the hotel. This was one of the issues referred to arbitration. The Sargeants argument before the arbitrator was that Macepark were in breach of covenant in using the premises “for functions, weddings and private dining”. Macepark admitted the uses complained of, but denied that they were in breach of covenant. The arbitrator considered at length the rival arguments, and considered much of the background negotiations for the grant of the lease. The arbitrator held that the activities complained of all fell within the definition of the Permitted Use and that, accordingly, Macepark were not in breach of covenant. However, he found that there had been a collateral agreement made between Mr Rockall and Mr Sargeant the effect of which was to preclude Macepark from allowing wedding ceremonies (as opposed to wedding receptions) to take place on the premises. He expressed his conclusion as follows:
“I HOLD that the carrying out of wedding (ceremonies) is in breach [of] an agreement between the parties and ORDER that Macepark be restrained from further such activity, subject to Landlord’s consent in accordance with the terms of the Lease.”
Running in parallel were a number of applications by Macepark for consent to make alterations. I need only refer to two. On 31 March 2001 Macepark’s architect sent the Sargeants plans relating to a proposed lecture theatre and small office extension for their approval. The lecture theatre was to be constructed on the eastern side of the complex and as an “in-fill” between the spa and the dining room. The lecture theatre was required primarily in connection with the conference business and also for the hotel function side of the business. It was intended to overcome the difficulties caused by the previous practice of using the hotel lounge or dining room or a marquee erected in the grounds.
The Sargeants replied on 9 April 2001. They said:
“We are prepared to grant consent for the above extensions, subject to the lease being varied in accordance with the attached schedule. … If this is not acceptable you may wish to apply to add item (iii) [i.e. the request to build the lecture theatre] to the existing Arbitration or to commence new proceedings.”
The schedule attached to the letter contained a large number of variations. I mention a few, just to give a flavour:
i) A doubling of the Minimum Rent to £200,000 per annum;
ii) An undertaking by Macepark to make accommodation available to golf club visitors at discounted rates offered to other third parties;
iii) An undertaking by Macepark “not to compete with the Landlords’ established Wedding, Banqueting and Functions businesses”, and a written undertaking that the lecture theatre was to be used only for the purpose of management training lectures and conferences, unless prior written consent was obtained from the Sargeants for other specific events, the granting of such consent to be at the sole discretion of the Claimants “to ensure non-competition with the Landlords existing businesses”;
iv) An increase in the Turnover Percentage to 8% on all turnover over £5 million.
Macepark did not accept these conditions. The arbitrator published his award on 13 November 2001. Within a couple of days, Macepark applied for consent to use the premises for wedding ceremonies. The Sargeants replied on 6 December 2001. They did not reject the application out of hand, but indicated that they were minded to refuse consent, on the ground that they would lose business. However, they invited Macepark’s proposals “as to how you consider it may be possible for our two wedding businesses to co-exist.” Macepark did not put forward any such proposals.
The application for consent to the construction of the lecture hall rumbled on. On 11 July 2002 the Sargeants asked for Macepark’s:
“undertaking that this new facility would only be used for specific purposes to be agreed by the parties in advance, such that if approved by the Landlords this extension will not become a Trojan horse to try to prevent the Landlords from undertaking any more of their existing businesses, e.g. we shall require an undertaking that it will not be used for weddings.”
The Sargeants made a request in similar terms on 31 July 2002.
In August 2002 the Sargeants offered to settle the outstanding issues referred to arbitration on terms. By now Macepark were keen to proceed with the work of constructing the lecture hall, but the Sargeants’ objections had not been overcome. Consequently in September 2002 Macepark agreed to enter into an undertaking in the following terms:
“You having given consent to Macepark (Whittlebury) Limited to continue with planning application no. S/2002/1096/P re. a lecture hall extension at Whittlebury Hall and to Macepark (Whittlebury) Limited building the extension. Macepark (Whittlebury) Limited undertakes not to use the extension for functions other than exclusively in connection with management training without the consent in writing of the Landlords (such consent to be entirely at the discretion of the Landlords) unless and until an arbitrator has adjudged that the condition (that the extension should not be used for functions other than exclusively in connection with management training) is unreasonable and/or such a condition constitutes an unreasonable refusal of consent.”
I read the word “functions” in this undertaking as a synonym for parties. Within a month or so the Sargeants were complaining that Macepark were advertising the lecture theatre for functions with 300 covers, in breach of the undertaking that had just been given. Macepark were also advertising their ability to hold wedding ceremonies, despite the arbitrator’s order. Mr Rockall said in evidence that Macepark had taken the view that consent to do this had been unreasonably withheld; although no such allegation was made in contemporaneous correspondence.
The current application
On 9 May 2003 Macepark applied to South Northamptonshire Council for planning permission for an extension to be built at the rear of Whittlebury Hall. Three days before that application was submitted Macepark asked the Sargeants for consent to the making of the application pursuant to clause 3.13.2 of the Lease. The extension consists of the following:
78 bedrooms
10 syndicate rooms
2 training rooms
a large conference hall capable of accommodating 700 people
It is clear that the extension is physically capable of being used for a wide variety of purposes, including the holding of wedding receptions, other social functions, balls, business and professional conferences, product launches and so on.
Although Macepark had applied for planning permission without the Sargeants’ consent, it was agreed that no separate issue would be made about this. Instead the parties concentrated on the need for Macepark to obtain the Sargeants’ consent to the alterations under clause 3.6.2.4 of the lease.
On 10 May 2003 the Sargeants asked for copies of all information given to the planning authority, and if no such information had been provided “details and evidence to the Landlords of the need for the application”. Macepark responded on 14 May 2003 and the following day faxed to the Sargeants a copy of the letter from their planning consultant (Mr Cave) to the planning authority in which the need for the extensions was dealt with. On 23 May 2003 the Sargeants’ solicitors (Beachcroft Wansbroughs) wrote asking for more information. This included “The precise use to which it is intended to put the proposed extension and any effect this would have on the use of other parts of Whittlebury Hall. You are aware of our clients’ concerns about functions”. On 5 June 2003 Macepark replied that the use to which the extension would be put was clear from the plans, supplemented by Mr Cave’s letter. The main space shown on the plan was a large space designated “conference room”. Mr Cave’s letter said:
“The most recent extension to Whittlebury Hall as the conference room has proved to be extremely popular in commercial terms and particularly well used by the motor industry. In this respect there are intensive training courses using the facility bringing in for example motorcars which are the subject of particular sales and training programmes. The nature of the dedicated courses has also required that training delegates occupy the facilities for long periods and use the room also for their own catering for delegates.
As a consequence, this particular niche market has begun to absorb the facility in a way that has not allowed the original conference or large group sessions to be accommodated therein.
This has resulted in an urgent requirement for such dedicated space which it is intended will be provided at the rear of the health and leisure complex.”
Beachcrofts responded on 13 June 2003 to the effect that the plans did not clearly show the use of each room, and went on to say:
“We made it clear that our client is concerned (as you well know) about functions which compete with their own business. There is an issue about the lecture theatre and weddings. With this in mind, please confirm whether the proposed use of the ‘public’ (i.e. non bedroom) rooms will be limited to functions and activities directly related to the management training and conference use of the building or if you propose to hold functions (for example wedding ceremonies and receptions or private parties) in the extension.”
I read the first and third uses of the word “functions” as again being a synonym for parties; but the second use of that word as part of the composite phrase “functions and activities”. On 27 June 2003 Macepark’s solicitors (then Prettys) replied:
“We are instructed to confirm that the public rooms as you describe them (i.e. non-bedrooms) will be limited to functions and activities directly related to or connected to management training and conference uses”
On 4 July 2003 Macepark wrote asking whether, in view of the extremely tight time pressure they were under, the Sargeants would be prepared to agree to allow them to begin some preparatory work before the grant of planning permission. On the same day Beachcrofts wrote (i) making a number of new points regarding services, sewage, site access and the glazed entrance to the extension, and (ii) refusing to allow any works to start before planning permission and the completion of a formal licence. Following further correspondence, the Sargeants came to their decision on 29 July, which was communicated by Beachcrofts’ letter of that date. The upshot was that they were prepared to give consent subject to a number of conditions. The conditions included:
“The use of the “public” rooms (i.e. non-bedrooms) in the extension and the recently built lecture theatre will be limited to functions and activities directly related to management training conferences held at Whittlebury Hall”
The lecture theatre was not, of course, part of the application; and had already been dealt with by Macepark’s undertaking, which was susceptible to review by arbitration. No draft licence was provided with the letter. Macepark was keen to get the work underway. It began preparatory enabling work in early August 2003. That prompted a letter from Beachcrofts on 4 August 2003 threatening an immediate application for an injunction if by 10.30 on the following day they did not receive confirmation that the works had ceased and an undertaking not to recommence works until both planning permission and a formal licence had been granted. Macepark then offered various concessions on 5 August 2003 in return for being allowed to proceed with the work forthwith. They included:
“The “public” rooms (i.e. non-bedrooms) of the new extension will not be used for any functions not directly related to management training”
I say in passing that I read the word “functions” as being a synonym for parties. Thus this form of words would not have prevented the use of the extension for business conferences, product launches and so on. However, this form of words was not acceptable to the Sargeants. On 7 August 2003 the Beachcrofts sent a draft licence which included in clause 7.3 a restriction in the following terms:
“Not to use any of the meeting or conference rooms or other facilities intended for use otherwise than as bedrooms in the extension constructed pursuant to a Licence and Deed of Variation made the day of 2003 between the Landlord (1) and the Tenant (2) otherwise than for functions and activities which are directly related or connected to management training conferences held at the Premises”
The proceedings
On 15 August 2003 Beachcrofts informed Macepark’s solicitors that unless Macepark undertook that no works would be commenced before 21 August 2003, an application would be made without notice for an injunction on 18 August 2003 to prevent the works being commenced. On 18 August 2003 Macepark wrote saying that (i) it regarded consent as having been unreasonably withheld or delayed, and (ii) in the circumstances it was not prepared to wait any longer because further delay would lead to substantial losses as a result of lost contracts.
Despite warnings of an application for an injunction Macepark did not stop work; and on 19 and 20 August 2003 the Sargeants sought and obtained an injunction. On that occasion the Judge (Etherton J.) indicated that the issue of unreasonable withholding of consent was best dealt with separately and at an early stage. The injunction was continued on 2 September 2003 by Rimer J. On that occasion a preliminary issue was defined and directions given which led to a hearing being fixed for November 2003. Subsequently the parties met; in September and October 2003 they managed to agree the terms of a licence which left one issue for consideration, namely whether or not the Sargeants were entitled to impose the restriction on the use of the public rooms of the extension set out in clause 7.3 of that licence which provides as follows:
“7.3 In the event that the Court shall determine that it is reasonable for the Landlord to impose as a condition of granting consent to the works a restriction on the use of public rooms in the Extension in the form set out below, the following sub-clause will be added to clause 3 of the Lease:-
3.34 Restrictions on use of public rooms in the Extension
Not to use any of the meeting or conference rooms or other facilities intended for use otherwise than as bedrooms in the extension constructed pursuant to a Licence and Deed of Variation made the 24th day of October 2003 between the Landlord (1) and the Tenant (2) otherwise than for functions and activities which are directly related or connected to management training conferences held at the Premises”.”
That is the issue now before me.
Legal principles
The question whether consent to alterations has been unreasonably withheld must be considered under two heads: the common law and s. 19 (2) of the Landlord and Tenant Act 1927.
The law on reasonableness has been most extensively developed in relation to covenants against alienation. In International Drilling Fluids Ltd v. Lousiville Investments (Uxbridge) Ltd [1986] Ch 513 the Court of Appeal distilled a number of principles from the authorities. Of these principles, Lord Bingham of Cornhill selected three as worthy of special emphasis in Ashworth Frazer v. Gloucester City Council [2001] 1 WLR 2180 at 2182:
“3 When a difference is to be resolved between landlord and tenant following the imposition of a condition (an event which need not be separately considered) or a withholding of consent, effect must be given to three overriding principles. The first, as expressed by Balcombe LJ in International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513, 520 is that
“a landlord is not entitled to refuse his consent to an assignment on grounds which have nothing whatever to do with the relationship of landlord and tenant in regard to the subject matter of the lease …”
The same principle was earlier expressed by Sargant LJ in Houlder Bros & Co Ltd v Gibbs [1925] Ch 575, 587:
“in a case of this kind the reason must be something affecting the subject matter of the contract which forms the relationship between the landlord and the tenant, and … it must not be something wholly extraneous and completely dissociated from the subject matter of the contract.”
While difficult borderline questions are bound to arise, the principle to be applied is clear.
4 Secondly, in any case where the requirements of the first principle are met, the question whether the landlord’s conduct was reasonable or unreasonable will be one of fact to be decided by the tribunal of fact. There are many reported cases. In some the landlord’s withholding of consent has been held to be reasonable (as, for example, in Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547 and Bickel v Duke of Westminster [1977] QB 517), in others unreasonable (as, for example, in Bates v Donaldson [1896] 2 QB 241, Houlder Bros [1925] Ch 575 and International Drilling [1986] Ch 513). These cases are of illustrative value. But in each the decision rested on the facts of the particular case and care must be taken not to elevate a decision made on the facts of a particular case into a principle of law. The correct approach was very clearly laid down by Lord Denning MR in Bickel v Duke of Westminster [1977] QB 517, 524.
5 Thirdly, the landlord’s obligation is to show that his conduct was reasonable, not that it was right or justifiable. As Danckwerts LJ held in Pimms Ltd v Tallow Chandlers Company [1964] 2 QB 547, 564: “it is not necessary for the landlords to prove that the conclusions which led them to refuse consent were justified, if they were conclusions which might be reached by a reasonable man in the circumstances …” Subject always to the first principle outlined above, I would respectfully endorse the observation of Viscount Dunedin in Viscount Tredegar v Harwood [1929] AC 72, 78 that one “should read reasonableness in the general sense”. There are few expressions more routinely used by British lawyers than “reasonable”, and the expression should be given a broad, common sense meaning in this context as in others.”
The principles that Balcombe L.J. distilled in International Drilling Fluids were adapted by Peter Gibson L.J. (with whom Longmore L.J. agreed) for the purposes of a covenant against alterations in Iqbal v. Thakrar [2004] EWCA Civ 592 as follows:
“(1) The purpose of the [covenant] is to protect the landlord from the tenant effecting alterations and additions which damage the property interests of the landlord.
(2) A landlord is not entitled to refuse consent on grounds which have nothing to do with his property interests.
(3) It is for the tenant to show that the landlord has unreasonably withheld his consent to the proposals which the tenant has put forward. Implicit in that is the necessity for the tenant to make sufficiently clear what his proposals are, so that the landlord knows whether he should refuse or give consent to the alterations or additions.
(4) It is not necessary for the landlord to prove that the conclusions which led him to refuse consent were justified, if they were conclusions which might be reached by a reasonable landlord in the particular circumstances.
(5) It may be reasonable for the landlord to refuse consent to an alteration or addition to be made, for the purpose of converting the premises to a proposed use even if not forbidden by the lease. But whether such refusal is reasonable or unreasonable depends on all the circumstances. For example, it may be unreasonable if the proposed use was a permitted use and the intention of the tenant in acquiring the premises to use them for that purpose was known to the freeholder when the freeholder acquired the freehold.
(6) While a landlord need usually only consider his own interests, there may be cases where it would be disproportionate for a landlord to refuse consent having regard to the effects on himself and on the tenant respectively.
(7) Consent cannot be refused on grounds of pecuniary loss alone. The proper course for the landlord to adopt in such circumstances is to ask for a compensatory payment.
(8) In each case it is a question of fact depending on all the circumstances whether the landlord, having regard to the actual reasons which impelled him to refuse consent, acted unreasonably.”
I have placed the word “covenant” in square brackets, because the text of the transcript reads “consent”; but that seems to me to be a misprint. Proposition (7) is a new one. It does not feature among the principles enunciated by Balcombe L.J. in International Drilling Fluids. Although Peter Gibson L.J. does not expressly say so, it echoes the effect of section 19 (2) of the Landlord and Tenant Act 1927. The Court of Appeal considered the effect of that sub-section in Lambert v. F.W. Woolworth & Co Ltd [1938] Ch. 883. Section 19 (2) provides:
“In all leases whether made before or after the commencement of this Act containing a covenant condition or agreement against the making of improvements without licence or consent, such covenant condition or agreement shall be deemed, notwithstanding any express provision to the contrary, to be subject to a proviso that such licence or consent is not to be unreasonably withheld; but this proviso does not preclude the right to require as a condition of such licence or consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such licence or consent nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require as a condition of such licence or consent, where such a requirement would be reasonable, an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement was executed.”
Slesser L.J. said at 906:
“However this may be, in the present case, as I have said, the landlords have unconditionally withheld their consent and made no condition as to payment of any compensation in respect of damage to or diminution in the value of the premises. Having so failed, they have abstained from claiming the benefit of sub-s. 2, which expressly preserves this right to them, nor in my view can they now be heard to say, as evidence of reasonableness, that the premises have suffered damage or any diminution in value and the tenant has not offered to compensate them. Prima facie, the proviso says that they shall not unreasonably withhold their licence or consent, but gives to them expressly a right to claim the payment of a reasonable sum in respect of damage or diminution in value. This they have not claimed; and I think therefore that they must seek for some other grounds of reasonableness for their refusal than those of damage or diminution in value to meet the case of the tenant against them.”
McKinnon L.J. said at 910:
“Leaving aside the statute for the moment, if there is a covenant in a lease “not to make structural alterations without consent, such consent not to be unreasonably withheld,” and the tenant asks for consent to do certain works, the landlord might justify his refusal to consent on various grounds. (1.) He might object on æsthetic, artistic, or sentimental grounds. (2.) He might object that the alterations would damage the demised premises or diminish their value. (3.) He might, perhaps, object that the alteration would damage his neighbouring premises, or diminish their value. I say “perhaps,” as to this, having in mind the possible effect of the principle of Houlder v. Gibbs. (4.) He might object that, as the alteration would not add to the letting value of the premises, he would have to undo it and reinstate the old conditions at the end of the term.
Of these (1.) I believe and hope remains unaffected by anything in the Act of 1927. No Court, as I hope and believe, will ever hold that under s. 19, sub-s. 2, a landlord must consent to the hideous degradation of the front of his building by a sheet of plate glass, and be satisfied by a money payment for the loss of graceful eighteenth century windows. But a glance at the photograph of these premises shows that no æsthetic considerations can be involved in this case. If we had no photograph, that might be inferred from the address – “Nos. 18 and 20, Commercial Road, Bournemouth.”
As regards the other grounds (2.) to (4.), the section makes express provision. The landlord must not unreasonably withhold his consent, “but this proviso does not preclude the right to require as a condition of such consent the payment of a reasonable sum in respect of any damage to or diminution in the value of the premises or any neighbouring premises belonging to the landlord, and of any legal or other expenses properly incurred in connection with such consent, nor, in the case of an improvement which does not add to the letting value of the holding, does it preclude the right to require …. an undertaking on the part of the tenant to reinstate the premises in the condition in which they were before the improvement was executed.””
It is clear from these passages that in a case governed by section 19 (2) a landlord cannot refuse consent on the ground of pecuniary damage to his interest in the leased property or neighbouring property which belongs to him. His only right is to ask for compensation as a condition of giving consent. In the light of Peter Gibson L.J.’s formulation of the common law principles, this seems to be part of the common law as well. In most cases it will not matter, because the covenant and the sub-section will work in tandem.
However, Mr Male submitted that section 19 (2) only applies to a lease containing a covenant against making improvements without consent. It operates by attaching to such a covenant a proviso that consent will not be unreasonably withheld. If the lease already contains such a proviso, then there is no need for the statutory proviso, so it does not apply. But in my judgment Mr Dowding was right to submit that if the statutory scheme, taken as a whole, is more favourable to the tenant than the contractual provisions of the lease, the lease must yield to the statute.
In addition to the propositions I have quoted, the Court of Appeal formulated two further propositions in Mount Eden Land Ltd v. Straudley Investments Ltd (1996) 74 P. & C.R. 306. They are:
“(1) It will normally be reasonable for a landlord to refuse consent or impose a condition if this is necessary to prevent his contractual rights under the [lease] from being prejudiced by the proposed assignment or sublease.
(2) It will not normally be reasonable for a landlord to seek to impose a condition which is designed to increase or enhance the rights that he enjoys under the [lease].”
When considering the reasonableness of conditions, it seems to me that if the landlord would have been entitled to refuse consent on some particular ground, a condition neutralising the landlord’s concern will ordinarily be reasonable. The most common example would be a case in which the landlord would be entitled to refuse consent to an assignment to a financially weak assignee, but in fact grants consent on condition that the assignee’s obligations are guaranteed or that the assignee puts up a rent deposit. In considering the reasonableness of a condition imposed to allay a particular concern of a landlord, Peter Gibson L.J.’s principle (6) in Iqbal is also relevant (“While a landlord need usually only consider his own interests, there may be cases where it would be disproportionate for a landlord to refuse consent having regard to the effects on himself and on the tenant respectively”).
One question of principle that arises in this case is whether a landlord is entitled to refuse consent to the making of alterations on the ground that the alterations would damage his trading interests; or to impose a condition aimed at protecting his trading interests. Peter Gibson L.J.’s formulation of the principles in Iqbal, and in particular principles (1) and (2), would suggest that the answer to that question is “no”. It is only if damage to the landlord’s trading interests would affect his property interests that his trading interests become a potentially relevant consideration. On the other hand, in Lambert Slesser L.J. said at 907:
“I agree with Mr. Radcliffe that many considerations, æsthetic, historic or even personal, may be relied upon as yielding reasonable grounds for refusing consent, which I do not think it necessary or possible here to catalogue. The wider the connotation given to the idea of improvement, the more necessary it may be that the landlord should have his protection.”
Peter Gibson L.J. said in Iqbal that no case had been drawn to the court’s attention dealing with the grant or refusal of consent to alterations. So it appears that the court did not have the benefit of the judgments in Lambert or, perhaps, Ashworth Frazer. In addition, a refusal of consent based on a fear of competition has been upheld as reasonable in relation to covenants against alienation and change of use. In Whiteminster Estates Ltd v. Hodges Menswear Ltd [1974] E.G.D. 324 the landlords carried on business as men’s outfitters. They also owned the shop next door which had been let as a café. The tenant applied for consent to assign the lease to another men’s outfitter, and the landlord refused on the ground that the proposed assignee would be a direct competitor. In a shortly reported (but reserved) judgment Pennycuick V-C held that the landlords fear of an adverse effect on their trade was one that could reasonably be held. He continued:
“Once it was accepted, as now it must be, that a landlord was entitled to take into account his own interests as well as his interests as a landlord, that was really an end of the matter. It was sufficient that the landlord could reasonably anticipate that the opening of the new shop would prejudice his trade.”
Mr Dowding submitted that the proposition as expressed by Pennycuick V-C, namely that the landlord could take into account his own interests “as well as” his interests as a landlord, was too widely stated. He referred to International Drilling Fluids in which Balcombe L.J. said:
“To the opposite effect are the dicta, obiter but nevertheless weighty, of Viscount Dunedin and Lord Phillimore in Viscount Tredegar v. Harwood [1929] A.C. 72, 78, 82. There are numerous other dicta to the effect that a landlord need consider only his own interests: see, e.g., West Layton Ltd. v. Ford [1979] QB 593, 605, and Bromley Park Garden Estates Ltd. v. Moss [1982] 1 W.L.R. 1019, 1027. Those dicta must be qualified, since a landlord’s interests, collateral to the purposes of the lease, are in any event ineligible for consideration: see proposition (2) above.”
Thus, he submitted that the landlord’s interests at large are not necessarily eligible for consideration. In my judgment there is force in this submission. Balcombe L.J.’s proposition (2) was the first of the three principles that Lord Bingham selected for special emphasis in Ashworth Frazer. Lord Bingham also said that wide statements to the effect that the question of reasonableness was at large needed to be qualified in the light of that principle. However, that still leaves the question whether the landlord’s interests as the occupier of adjoining property must be left out of account.
In Sportoffer Ltd v. Erewash Borough Council [1999] 3 E.G.L.R. 136 the landlords were the local authority, and operated a municipal leisure centre. The tenants were the tenants of a squash club and applied for consent to a change of use to use as a leisure centre. The landlords objected on the ground that the proposed change would damage the viability of their municipal leisure centre; and their refusal was upheld as reasonable by Lloyd J. He was referred both to Whiteminster Estates and to International Drilling Fluids. He concluded:
“I would find it surprising if a landlord could not reasonably take into account the circumstances of other property of his own, whether let or in hand, when considering an application for a consent to change of use under a lease. A shopping centre is an obvious example, but not the only case, where estate management considerations may suggest that one type of use be allowed under a lease but others not, because of the circumstances of other adjoining property.
I find nothing in Balcombe L.J.’s judgment, nor in the case cited by him in relation to the proposition which I have mentioned, which suggests that this is not legitimate or that Sir John Pennycuick’s decision in Whiteminster Estates Ltd is wrong. I therefore hold that, following Sir John’s decision, a landlord can legitimately take into account considerations relating to adjoining property of his own, whether let or not.”
On the facts he held that the landlords’ concern for their own trading interests was a reasonable concern, and that consequently, the refusal of consent was justified. In the analogous field of restrictive covenants affecting freehold land, a covenant taken for the protection of a business carried on on land owned by the covenantee has been held to be a covenant taken for the benefit of land; in other words a property interest: Newton Abbot Co-Operative Society Ltd v. Williamson and Treadgold Ltd [1952] Ch. 286.
In my judgment there is no rule of law which precludes a landlord from relying under any circumstances on perceived damage to his trading interests in adjoining or neighbouring property as a ground for refusing consent to an assignment or change of use. Whether the particular perception is reasonable and whether, if reasonable, it justifies a refusal of consent or the imposition of a condition, is a question of fact in each case.
Mr Dowding submitted in the alternative that a different principle applies in cases concerning alterations. In such a case, he submitted, the landlord’s objection must relate to the works alone, and not to the use to be made of them. However, Peter Gibson L.J.’s proposition (5) in Iqbal says in terms that the use of the property following alterations may be a reasonable ground of objection, depending on the particular facts. In addition, as Slesser L.J. pointed out in Lambert, a landlord may rely on “personal” reasons as a ground for refusal. Suppose that the operator of a petrol filling station lets an adjoining piece of land to a supermarket. Suppose that the supermarket then applies for consent to erect its own petrol filling station on the leased land. On the face of it, it seems to me to be reasonable for the landlord to object on the ground that he would be damaged by the erection of a competing filling station next door. I do not accept Mr Dowding’s submission. Mr Dowding submits as a fall-back position that the circumstances in which a landlord is entitled to object to an alteration on the grounds of its use are confined to a conversion of the premises to a proposed use, and not as here, an alteration to extend property for the same use as that currently carried on. He bases this submission on the way that Peter Gibson L.J. formulated proposition (5) in Iqbal. But in my judgment, as Mr Male submitted, Peter Gibson L.J.’s use of the phrase “converting the premises to a proposed use” is explicable because that was the proposal he was considering. I conclude that, in an appropriate case, a landlord is entitled to object to alterations on the ground that he has a reasonable objection to the use that the tenant proposes to make of the altered property, whether that use is the same as or different from the use carried on in the remainder of the property.
To hold otherwise would be to fall into the trap identified by Lord Denning M.R. in Bickel v. Duke of Westminster [1977] Q.B. 571 (and approved in Ashworth Frazer at 2183 and 2201):
“The words of the contract are perfectly clear English words: “such licence shall not be unreasonably withheld.” When those words come to be applied in any particular case, I do not think the court can, or should, determine by strict rules the grounds on which a landlord may, or may not, reasonably refuse his consent. He is not limited by the contract to any particular grounds. Nor should the courts limit him. Not even under the guise of construing the words.”
In addition the lease in the present case refers expressly to the Sargeants’ business. Paragraph 7 of Schedule 7 prohibits them from competing with Macepark’s business, but goes on to permit them, without breach of covenant, to provide food and drink to golfers, to hold conferences relating to the golf club, and to hold wedding receptions. That aspect of their business, at least, is part of the subject-matter of the contract.
It seems to me, therefore, that the approach I should adopt in the present case is to identify the Sargeants’ real and legitimate concerns; and then to ask whether the proposed condition amounts to reasonable protection of those concerns. Mr Male reminds me, and I accept, that the Sargeants do not have to show that the conclusions which led them to seek to impose the condition are right or justifiable but simply that they are conclusions which might be reached by a reasonable person in the circumstances. On the contrary, the burden of proof lies on Macepark to demonstrate unreasonableness.
The Sargeants’ business
I have already quoted the arbitrator’s finding about the range of the Sargeants’ activities at the date of the lease. As Mr Dowding points out, that was simply a list, without any weighting being given to the various activities. In her witness statement Mrs Sargeant says that the “wedding and function business” is a very large part of what she does on a day to day basis. The Sargeants have a number of venues capable of accommodating wedding receptions and functions. At the moment they can accommodate up to 750 covers with the use of marquees, and once the new building, currently under construction, is complete, they will have an additional venue capable of accommodating up to 800 covers. Mrs Sargeant says, and I accept, that between May 2003 and May 2004 they have held 180 functions, of which 140 were weddings, generating a turnover of £750,000. Mr Sargeant confirmed these statistics in his witness statement. Both Mr and Mrs Sargeant confirmed in cross-examination that they did not hold business or professional conferences of the sort that Macepark do. They have, however, from time to time held “corporate days”, which are primarily social or sporting events; although they may be preceded by a business meeting. Mr Sargeant also said that they had held an exhibition for an artist friend; and had hosted a farmers’ discussion group.
The Sargeants are, as I have mentioned, in the course of constructing a new building, called the Atrium. It is a two storey building, with a bar and dining facilities on the ground floor; and a large function room on the first floor. The building is being erected pursuant to a planning permission containing a condition in the following terms:
“THE PREMISES SHALL ONLY BE USED FOR GOLF AND COUNTRY CLUB, WEDDING AND ASSOCIATED FUNCTIONS AND FOR NO OTHER PURPOSE WHATSOEVER INCLUDING ANY OTHER PURPOSE IN USE CLASS D2 OF THE SCHEDULE TO THE TOWN AND COUNTRY PLANNING (USE CLASSES) ORDER 1987”
This condition would in my judgment preclude the new building from being used to accommodate business or professional conferences. (I do not think that this is affected by permission given for temporary use by general development order, since that only applies to land that is unbuilt on).
Macepark’s business
Mr Rockall described Macepark’s business in terms that were unchallenged. The largest component (50 per cent of turnover) consists of management training. Groups of delegates, averaging 16 people attend a residential course. The course is typically 3 to 5 days. The usual format involves a combination of sessions involving all the delegates and exercises involving smaller groups. The full group session will take place in a training room, and the smaller sessions in syndicate (or “break-out”) rooms.
Another large component of Macepark’s business (40 per cent of turnover) consists of providing conference facilities. These could involve a seminar, a lecture, an annual general meeting, a product launch or an exhibition. In 2003 there were approximately 90 conferences of this kind.
The remaining 10 per cent of turnover is generated from “ordinary” hotel activities and the accommodation of functions, such as wedding receptions. Mr Rockall was unable to break down this component into its constituent parts in terms of turnover; but he said that a “large proportion” of this 10 per cent came from the members of the leisure club who use the swimming pool and other health facilities. It must follow that the turnover relating to weddings and other functions is of the order of 5 per cent or less. Even so, on Macepark’s turnover for 2003, that represents a turnover of the order of £400,000 per annum.
The Sargents’ concerns
Mr Male put the Sargeants’ concerns under two heads. First, he said, that since taking the lease Macepark has changed the direction of its business and is now trying to attract the sort of business which the Sargeants have carried out for some years and which they are continuing to carry out. Wedding ceremonies and receptions are one example of this trend. In these circumstances, the Sargeants are right to be concerned about the threat which such activities by Macepark may pose to their own businesses. The Sargeants reasonably apprehend that Macepark’s use of the “public” rooms will adversely affect their own interests. In these circumstances, it is hardly surprising that the Sargeants should impose the sort of condition which they did. A reasonable person in their position would have sought to impose that, or a similar, condition. It cannot be said that the imposition of a condition such as that, or in similar terms, is unreasonable.
The supposed change in direction of Macepark’s business is based on what the Sargeants say they were told by Mr Rockall about Macepark’s business before the lease was granted. Mr Male rightly accepted that what they were told can have no bearing on the question of the interpretation of the lease, but he said that when reasonableness was concerned everything was “up for grabs”. I do not agree. The starting point must be the terms of the lease as granted, absent any claim based on the existence of a collateral contract or estoppel. I do not consider that in the exercise of a right to withhold consent on reasonable grounds, the landlord can attempt to claw back parts of a bargain that, with hindsight, he regrets.
Second, he said, the Sargeants are also concerned about the effect of paragraph 7 of Schedule 7 to the lease. The Sargeants can hold functions so long as the holding of those functions does not adversely affect the income of the tenant or value of the tenant’s investment in the Premises. Wedding receptions and various activities related to the Golf Club are specifically exempted. If Macepark is now allowed to use the extension for particular activities which the Sargeants also carry out then, at a later stage, Macepark could seek to rely upon paragraph 7 of Schedule 7 to try to prevent the Sargeants from carrying out those activities. This might happen even though the Sargeants had been carrying on those activities for many years prior to the grant of the lease.
If Macepark is now allowed to use the new non-bedroom or “public” accommodation for activities which the Sargeants presently carry on then to do so could lead to the Sargeants later being prevented from carrying on those activities under paragraph 7 of Schedule 7. If a condition is imposed limiting the activities which can be carried out by Macepark in the “public” rooms then Macepark cannot carry out the prohibited activities and there is no risk then of a claim against the Sargeants under paragraph 7 of Schedule 7.
Mr Male accepted, however, that it would not be legitimate for the Sargeants to rely on activities which already are a breach of paragraph 7 of Schedule 7; since to do so would be attempting to rely on their own wrong. It follows from this, in my judgment, that the Sargeants are not entitled to rely on any competitive concerns that they might have as regards the provision of management training or conferences (using the latter expression in the broad sense in which Mr Rockall used it); since those are all part of Macepark’s existing business, which is protected by paragraph 7 of Schedule 7, and are not within the specific exemptions from that protection. Moreover, the Sargeants did not carry on those businesses at the date of the lease.
In addition the covenant in paragraph 7 of Schedule 7 refers to Macepark’s investment in the premises “for the Permitted Use”; in other words all of it, and not just what Mr Male called Macepark’s “core business” of providing management training. Paragraph 7 is specifically designed to protect Macepark; and I agree with Mr Dowding that it would turn paragraph 7 on its head if it could be used by the Sargeants as a reason to restrict Macepark’s activities within the “Permitted Use” as defined. Some weight must also be given to Macepark’s obligation to maximise turnover; and to the Sargeants’ direct interest (through the turnover rent) in that maximisation. In addition the Sargeants themselves described Macepark’s core business in Further Information given in the action as “management training and conferences”.
On the other hand, in my judgment the Sargeants are entitled to rely on competitive concerns as regards the businesses that are within the specific exemptions in paragraph 7; namely:
“the provision of food and drink to members or temporary playing members social members and their guests of the Golf Club the holding of conferences in connection with the Golf Club activities or wedding receptions”
I accept Mr Male’s submission that, on the evidence, the Sargeants can justifiably take the view that, if allowed to, Macepark will attempt to compete with the Sargeants for wedding business (including the holding of wedding ceremonies). I accept also that these concerns are relevant concerns for the purposes of the covenant against alterations. I do not overlook the fact that there is already competition between Macepark and the Sargeants for wedding business, and that that competition will continue whatever the outcome of this case. But the Sargeants are, in my judgment, entitled to take the view that to allow Macepark to use the new extension for weddings will enable Macepark to compete with the Sargeants for much larger weddings which, apart from the new extension, Macepark cannot physically accommodate (except by using a marquee).
Do these concerns justify the condition?
Mr Dowding submitted that in effect the Sargeants’ concerns were concerns about possible damage to the profitability of their business. As such, they were concerns based on the possibility of pecuniary loss. Thus either at common law (according to Peter Gibson L.J.’s proposition (7) in Iqbal) or under the proviso to section 19 (2) of the Landlord and Tenant Act 1927, the proper course for the Sargeants to have taken would have been to have asked for a compensatory payment. He submitted that the policy of the 1927 Act was that if there was nothing intrinsically wrong with the alterations simply viewed as works, the tenant should be allowed to carry them out; and any other kind of loss to the landlord should be dealt with by way of a compensatory payment under the proviso. Thus, he submitted, the concerns on which the Sargeants are entitled to rely could justify neither a refusal of consent, nor a condition limiting the use to which the extension may be put.
In answer to Mr Male’s point that the complaint was not a complaint about the diminution in value of the Sargeants’ retained land, but a complaint about potential damage to their business, and that a compensatory payment would be very hard to evaluate, Mr Dowding riposted that damage to the landlord’s business interests (as opposed to his property interests) was not a legitimate consideration; and in any event valuers can value anything.
There is, as always, considerable force in Mr Dowding’s submission. However, as to the first part of it, I consider that he reads Peter Gibson L.J.’s reference to the landlord’s “property interests” in too narrow a sense. As the House of Lords emphasised in Ashworth Frazer, reasonableness is a broad concept. As to the second part, it is not the alterations themselves that will damage the Sargeants’ business interests, but the use that Macepark will (or might) make of the alterations. Moreover the submission that valuers can value anything proves too much. Apart from sentimental considerations, anything (even aesthetic considerations) can have a money value placed on them if need be. But I do not consider that Parliament can have intended to cut down the landlord’s right to withhold consent to alterations on reasonable grounds to the extent that Mr Dowding’s submission implies. In my judgment the Sargeants were not confined to asking for money.
Mr Male submitted that if I came to the conclusion that the Sargeants could have refused consent to the alterations based on their fear of competition then I should look “charitably” on the wording of the disputed condition, since the consent they were prepared to give to the alterations was itself a concession.
However, I do not consider that the Sargeants’ fear of competition would have justified an outright refusal of consent. First, looked at purely from the point of view of the Sargeants, a reasonable landlord in their position would have weighed up the potential competition to the wedding business on the debit side; and the potential increase in rent (through a potential increase in turnover of the hotel) on the credit side. Second, an outright refusal of consent, in circumstances in which the vast bulk of Macepark’s business consisted of management training and conferences, would have been wholly disproportionate. Third, if the Sargeants had refused consent, they would no doubt have been asked for their reasons; and if they had given as their reasons those reasons on which I have held they are entitled to rely, Macepark could have reapplied for consent on the basis that they would undertake not to use the extension for weddings, or functions unrelated to training or conferences. An application along those lines could not, in my judgment, have been reasonably refused.
In summary, I consider that the Sargeants were entitled to protect themselves against perceived competition to their wedding and functions business. They were not entitled to protect the future possibility of their entering the conference business, which was already part of Macepark’s existing business. The condition on which I am asked to rule limits use of the extension to “functions and activities which are directly related or connected to management training conferences held at the Premises”. I should say in passing that it was common ground that the word “functions” in the licence is to be read as a composite phrase “functions and activities” and not as a freestanding synonym for parties. Under this form of words the only types of conference permitted are management training conferences. It excludes all other types of conference. Mr Male submitted that this phrase could be generously interpreted, but he accepted (or asserted) that even on a generous interpretation it would preclude Macepark from holding product launches, award ceremonies and exhibitions, all of which are part of Macepark’s existing business and are not within the specific exemptions from paragraph 7 of Schedule 7.
In addition, the proposed covenant is an absolute one. It is not qualified by any provision enabling the tenant to apply to the landlord for consent to widen the use, even if the landlord has no reasonable grounds for refusal.
In my judgment the clause goes further than was reasonable to protect the Sargeants’ legitimate concerns. I think that, in effect, Mr Sargeant accepted as much, since he agreed in cross-examination that the form of words proposed by Prettys (“functions and activities directly related to or connected to management training and conference uses”) would have been satisfactory to him. Had that form of words been adopted, it seems unlikely that this litigation would have taken place (although I express no view on whether it would have been reasonable for the Sargeants to have imposed that condition in the absence of agreement). It is unfortunate that this litigation turns on the use of the word “and”.
However that may be, both counsel agreed that I could only rule on the clause as it stands. Either it is reasonable as it stands, or it is not. It is not open to me to impose a compromise form of words. In my judgment the clause is not reasonable as it stands; and the lease will not, therefore, be varied to incorporate it.
Phipps v Pears & Ors
[1964] EWCA Civ 3
THE MASTER OF THE ROLLS: In the 1920’s there were two old houses in Warwick, standing side by side, Nos. 14 and 16, Market Street. They were both owned by a Mr Field. About 1930 he pulled down No.16 but left the old No.14 standing. He erected a new house at No.16, Market Street with its flank wall flat up against the old wall of No.14. He did not bond the two walls together, but the new wall was built up touching the old wall of No.14.
On 17th July, 1931, Mr Field conveyed the new No.16, Market Street to Helena Field, but remained himself owner of the old No.14. Helena Field disposed of No.16 and eventually in 1951 Mr Phipps (the present plaintiff) bought it, as it was, standing then alongside the old No.14. Mr Field died and his personal representative in 1957 conveyed No.14, Market Street to the Governors of the lord Leycester Hospital.
So there were the two houses – new No.16 and old No.14 – standing side by side. In 1962 the Warwick Corporation made an order for the demolition of old No.14, Market Street because it was below the required standard. It was, I suppose, unfit for human habitation. In consequence, in September 1962 the Governors of the Lord Leycester Hospital demolished it. And when they did so, there was left exposed the flank wall of new No.16. This was in a very rough state. It had never been pointed. Indeed, it could not have been because of the way it was built, flat up against the old No.14. It had never been rendered or plastered. So it was not weatherproof. The result was that the rain got in and during the winter it froze and caused cracks in the wall. Mr Phipps seeks to recover for the damage done.
In his particulars of claim Mr Phipps alleged that No.16 had a right of support from No.14 and that the defendants had withdrawn that support. But he failed on this point because the Judge found that No.16 did not depend on No.14 for its support. “There was, in fact, no support the one for the other. They were independent walls, untied one to the other”.
Then Mr Phipps said – or rather it was said on his behalf – that at any rate his house No.16 was entitled to protection from the weather. So long as No.14 was there, it afforded excellent protection for No.16 from rain and frost. By pulling down No.14, the defendants, he said, had infringed his right of protection from the weather. This right, he said, was analogous to the right of support. It is settled law, of course, that a man who has his house next to another for many years, so that it is dependent on it for support, is entitled to have that support maintained. His neighbour is not entitled to pull down his house without providing substitute support in the form of buttresses or something of the kind, see Dalton v. Angus (1881) 6 A.C. 740. Similarly, it was said, with a right to protection from the weather. If the man next door pulls down his own house and exposes his neighbour’s wall naked to the weather whereby damage is done to him, he is, it is said, liable in damages.
The case, so put, raises the question whether there is aright known to the law to be protected – by your neighbour’s house – from the weather. Is there an easement of protection?
There are two kinds of easements known to the law: positive easements, such as a right of way, which give the owner of land a right himself to do something on or to his neighbour’s lands and negative easements, such as a right of light, which gives him a right to stop his neighbour doing something on his (the neighbour’s) own land. The right of support does not fall neatly into either category. It seems in some way to partake of the nature of a positive easement rather than a negative easement. The one building, by its weight, exerts a thrust, not only downwards, but also sideways on to the adjoining building or the adjoining land, and is thus doing something to the neighbour’s land, exerting a thrust on it, see Dalton v. Angus (1881) 6 A.C. at p.793 by Lord Selborne, Lord Chancellor.
But a right to protection from the weather (if it exists) is entirely negative. It is a right to stop your neighbour pulling down his own house. Seeing that it is a negative easement, it must be looked at with caution. Because the law has been very chary of creating any new negative easements.
Take this simple instance: Suppose you have a fine view from your house. You have enjoyed the view for many years. It adds greatly to the value of your house. But if your neighbour chooses to despoil it, by building up and blocking it, you have no redress. There is no such right known to the law as a right to a prospect or view, see Bland v. Moseley (1587) cited by Lord Coke in Aldred’s case, 9 Coke’s Reports, 536. The only way in which you can keep the view from your house is to get your neighbour to make a covenant with you that he will not build so as to block your view. Such a covenant is binding on him by virtue of the contract. It is also binding in equity on anyone who buys the land from him with notice of the covenant. But it is not binding on a purchaser who has no notice of it, see Leech v. Schweder (1874) L.R. 9 Ch, Ap. 475.
Take next this instance from the last century. A man built a windmill. The winds blew freely on the sails for thirty years working the mill. Then his neighbour built a schoolhouse only twenty-five yards away which cut off the winds. It was held that the miller had no remedy for the right to wind and air, coming in an undefined channel, is not a right known to the law, see Webb v. Bird (1863) 10 C.B., N.S., 268, 13 C.B., M.S., 84. The only way in which the miller could protect himself was by getting his neighbour to enter into a covenant.
The reason underlying these instances is that if such an easement were to be permitted, it would unduly restrict your neighbour in his enjoyment of his own land. It would hamper legitimate development, see Dalton v. Angus (1881) 6 A.C. at p.824 by Lord Blackburn. Likewise here, if we were to stop a man pulling down his house, we would put a brake on desirable improvement. Every man is entitled to pull down his house if he likes. If it exposes your house to the weather, that is your misfortune. It is no wrong on his part. Likewise every man is entitled to cut down his trees if he likes, even if it leaves you without shelter from the wind or shade from the sun, see the decision of the Master of the Rolls in Ireland. There is no such easement known to the law as an easement to be protected from the weather. The only way for an owner to protect himself is by getting a covenant from his neighbour that he will not pull down his house or cut down his trees. Such a covenant would be binding on him in contract: and it would be enforceable on any successor who took with notice of it. But it would not be binding on one who took without notice.
There is a further point. It was said that when the owner, Mr Field, conveyed No.l6 to Helena Field, the plaintiff’s predecessor, there was implied in the conveyance all the general words of Section 62 of the Law of Property Act, 1925. The conveyance included all “easements, rights and advantages whatsoever appertaining or reputed to appertain to the land”. On the conveyance of No.16, Market Street to the plaintiff’s predecessor, there passed to him all these “advantages” appertaining to No.16. One of these advantages, it was said, was the benefit of having the old No.14 there as a protection from the weather. I do not think this argument avails the plaintiff for the simple reason that, in order for Section 62 to apply, the right or advantage must be one which is known to the law, in this sense, that it is capable of being granted at law so as to be binding on all successors in title, even those who take without notice, see Wright v. Macadam, 1949, 2 K.B., 747. A fine view, or an expanse open to the winds, may be an “advantage” to a house but it would not pass under Section 62. Whereas a right to use a coal shed or to go along a passage would pass under Section 62. The reason being that these last are rights known to the law, whereas the others are not. A right to protection from the weather is not a right known to the law. It does not therefore pass under Section 62.
In my opinion, therefore, the plaintiff has not made out any right to the protection he seeks. I find myself in agreement with the County Court Judge: and I would dismiss the appeal.
LORD JUSTICE PEARSON: I agree and have nothing to add.
LORD JUSTICE SALMON: I also agree.
MR TOYN: In those circumstances I ask for the costs of the appeal on behalf of the respondents.
THE MASTER OF THE ROLLS: That must be so, I think.
MR FINLAY: I do not think I can resist that but I am instructed to ask for leave to appeal.
THE MASTER OF THE ROLLS: No, we cannot give you leave.
MR FINLAY: If your Lordship pleases.