Some Easement Types
Cases Right of Way
RE Flanigan and McGarvy and Thomspon’s Contract
[1945] N.I. 32 (High Court)
Black J.:
Under a Lease dated the 24th day of July, 1920, a Mr. Patrick Flanigan became the lessee for a term of 989 years of a plot of ground at Portadown, situated on the north-west side of the Armagh Road, and having a frontage to the Armagh Road of 100 feet. This plot of ground is the portion coloured green on the map referred to in Mr. H. W. Thompson’s affidavit and for convenience I shall refer to it as the green plot. On this plot of ground Mr. Flanigan erected in 1920 and 1921 a pair of semi-detached villas fronting to the Armagh Road. Of these two villas the one on the south-western side was from time to time occupied by tenants of Mr. Flanigan. It is at present occupied by a Mr. Henry Luther Bell and it will be convenient to refer to it as Bell’s house. The two villas had a total frontage to the Armagh Road of about 68 feet. They are built on the north-east part of the green portion, and accordingly after their erection there was left – unbuilt upon – on the south-western side of Bell’s house a part of the green plot having a frontage of about 32 feet to the road. Bell’s house was provided with a back door for the usual purpose of taking in coal, etc., and taking out refuse and ashes. The natural means of ss to this door from the road would be over the green plot along the side of Bell’s house and it appears that immediately after the villas were erected a path about three feet wide was made to the back door of the house. The position of this path is shown and coloured blue on the map. I gather that at first this path was not fenced off in any
way from the remainder of the portion of the green plot which had not been built upon.
The next stage in the history is that on the 18th May, 1923, Mr. Flanigan obtained a lease for a term of 990 years of a plot of ground coloured pink on the map, and having a frontage of 118 feet to the Armagh Road. This ground immediately adjoined the south-western boundary of the green plot and I shall refer to it as the pink plot. And on the 21st July, 1924, Mr. Flanigan obtained a lease for a term of 995 years of a plot of ground extending along the rear of the green plot and the pink plot and having a depth from front to rear of about 40 feet. This plot is coloured yellow in the map and I shall refer to it as the yellow plot. After obtaining these two leases Mr. Flanigan was in possession of a site comprising the pink portion, the yellow portion and the unbuilt-upon part of the green portion, and on this site he proceeded to build for himself a residence to which he gave the name of Aughavanagh. This house was erected in 1924 and 1925 and Mr. Flanigan went into occupation of it in July, 1925. Shortly after going into occupation of Aughavanagh Mr. Flanigan planted a laurel hedge along the edge of the path and erected gates and gate pillars at the road. The gates consist of a double gate opposite what appears to be the garage of Aughavanagh and alongside this double gate a small gate opposite the end of the path. Mr. Bell, who came into possession of his present house in July, 1931, says that the laurel hedge originally continued down to the gate pillars but that about 10 years ago an opening was made in it at the end next the road to allow an entrance to Aughavanagh without opening the large gate at the main entrance. At any rate for a considerable number of years the small gate has served both as an entrance to Aughavanagh and also to the path leading up to the backdoor of Bell’s house. So far as Bell’s house is concerned it was first occupied by a Mr. Geraghty. Then a Mr. Galbraith became tenant in November, 1924, and remained in occupation till May, 1930. Apparently the house lay vacant from May, 1930 to July, 1931, when Mr. Bell went into occupation as a tenant of Mr. Flanigan. Mr. Bell now holds from Mr. Flanigan’s representatives who still retain the ownership of the house as a quarterly tenant and is entitled to the protection afforded by the Rent and Mortgage Interest (Restrictions) Acts.
Mr. Flanigan died on the 29th April, 1942, and by an agreement in writing, dated 19th April, 1943, his executors, Mrs. May Flanigan and Mr. Patrick Joseph McGar vey, agreed to sell Aughavanagh to Mr. Herbert William Thompson for £2,500. At the time when this Agreement was prepared the title deeds seem to have been in the possession of a Building Society which had a mortgage on the property and in the Agreement the premises sold are described as ‘Firstly All that Dwelling house and premises known as Aughavanagh … held under Lease, dated 18th day of May, 1923 … and Secondly All that Garden and premises situate at the rear of the premises hereinbefore Firstly described being portion of the premises held under Lease dated the 21st July, 1924.’ This description was inaccurate. As appears from the map part of the grounds of Aughavanagh was comprised in the Lease of 24th July, 1920, which is not mentioned at all in the Agreement; and as regards the actual site of the house itself part of it is on ground comprised in the 1923 Lease part of it on ground comprised in the 1924 Lease and a small part is on ground comprised in the 1920 Lease. No point, however, is taken by the Purchaser in regard to these matters. The parties, however, are at difference in regard to the path on the south-western side of Bell’s house. Whatever may be the rights in regard to this path as between the Vendors and the Purchaser there would appear to be little doubt but that Mr. Bell is entitled as an incident of his quarterly tenancy to use this path as a means of access to the back door of his house. In the absence of any arrangement under which Mr. Bell might agree to abandon this right he will continue to be entitled to use the path so long as his quarterly tenancy continues. And even if his tenancy is determined he will still continue to be entitled to use the path if and so long as he retains possession of the house as a statutory tenant under the provisions of s. 18 (1) of the Rent and Mortgage Interest (Restrictions) Act (N.1.), 1940. By letter of 27th July, 1943, the Vendor’s solicitors sent to the Purchaser’s solicitors the map which has been put in evidence and called attention to the path which they described as ‘a right of way coloured blue over the premises to the rear of the adjoining premises belonging to the deceased (Mr. Flanigan).’ They suggested that the whole of the premises edged red on the map should be conveyed to the Purchaser reserving to the Vendors a right of way on foot and with barrow over and along the path. By their reply, dated 12th August, 1943, the Purchaser’s solicitors refused to agree that the vendors were entitled to have such a right of way reserved and they submitted for approval a draft Assignment making no mention of such a right. The Vendors’ solicitors amended the draft Assignment by inserting a provision ‘Excepting and reserving to the Vendors their and each of their executors administrators and assigns and their tenants and servants full right and liberty at all times hereafter during the continuance of the said term created by said Indenture of Lease of 24th July, 1920, on foot and with hand barrows only to go pass and repass along and over and upon the passage three feet wide, coloured blue on the map endorsed hereon and situate on the north-east side of the premises hereby firstly assigned.’ The Purchaser’s solicitors refused to accept this amend ment and a correspondence ensued in which each side adhered to their own point of view. I could not help echoing the observation in the Vendors’ solicitors’ letter of 20th September, 1943, that it seems a pity that there should be any litigation over so small a matter and I deferred giving judgment in order to afford the parties an opportunity of arriving at an amicable arrangement which I understood might possibly be negotiated. I have been informed, however, that it has not been found possible to reach agreement and accordingly I have now to pronounce as best I can on what are the parties’ legal rights in regard to the matter.
Mr. Porter’s first contention on behalf of the Vendors was that not merely were
they entitled to reserve a right of way over the path in dispute but that the path itself did not form part of the premises comprised in the contract of sale and that the Vendors were accordingly entitled to exclude it altogether from the conveyance to the Purchaser. His contention was that the path actually formed part of the premises which I have called Bell’s house, and did not form part of the premises Aughavanagh which the Vendors had agreed to sell. It is somewhat remarkable that this contention was never put forward in the correspondence which passed between the solicitors nor is such a contention even hinted at in the affidavit filed on behalf of the Vendors in these proceedings. The Vendors’ solicitors who prepared the Agreement for sale never suggested that the path itself was not
intended to be comprised in the premises agreed to be sold. In their letter of 10th August, 1943, written after the contest had arisen they speak of the path as separated by the laurel hedge from the remainder of the premises sold. The highest that they ever put the Vendors’ claim is that the Vendors are entitled to reserve a right of way over the path. And the map prepared on behalf of the Vendors by their architect clearly shows the site of the path as included in the premises purchased by Mr. Thompson. I think that the conclusion to which this evidence clearly points is that the parties had no other idea but that the premises purchased by Mr. Thomp son and described in the Agreement as the dwellinghouse and premises known as ‘Aughavanagh’ extended up to the gable wall of Bell’s house and included the site of the path; and if it could by any possibility be maintained that the description of the premises in the actual written Agreement is not in accordance with this intention I think it would be difficult in the circumstances for the Vendors to resist a claim by the Purchaser for the rectification of the Agreement. Accordingly I
proceed on the basis that the premises agreed to be sold to the Purchaser included the site of the path.
What then is the legal position on this basis? As I have observed Mr. Bell appears to be entitled to a right of way over the path as an incident of his quarterly tenancy. That right being a right vested in a third party cannot be destroyed by an contract between the present Vendors and the present Purchaser. Accordingly if the Pur chaser was coming before the Court seeking specific performance of his contract he could only obtain such specific performance subject to Mr. Bell’s rights. On the other hand could the Vendors enforce specific performance against the Purchaser and compel him to accept a conveyance subject to Mr. Bell’s rights over the path? The Vendors claim that they could in view of the provision in Clause 10 of the Agreement that the premises are sold subject to rights of way. But I do not think that in the circumstances the Vendors are entitled to rely on the provisions of Clause 10. The Vendors must have been fully aware of Mr. Bell’s rights over the path and it is well settled that such a Clause as Clause 10 does not absolve Vendors from their duty to disclose to the Purchaser all matters affecting the property which are within their knowledge. It is to be construed as applying only to matters of which the Vendors are not aware when they enter into the contract (Heywood v. Mallalieu (25 Ch. D. 357), Nottingham Patent Brick and Tile Co. v. Butler (15
Q.B.D. 261. 271; 16 Q.B.D. 778, 786-787) per Wills, J., per Lord Esher, M. R.,
Simpson v. Gilley (92 L.J. Ch. 194, 201-202), per Astbury, J.).
On the other hand the Purchaser inspected the premises with some care before he entered into the contract. He must have seen the 3 foot wide path bounded by the gable wall of Bell’s house on one side and by the laurel hedge on the other side and it must have been quite apparent to him that the purpose of the path, and its only purpose, was to afford a means of access to the back door of Bell’s house. It is well settled that a purchaser of property must take it subject to any defects which are patent on inspection and are not inconsistent with the description contained in the contract for sale. The authorities for this proposition cited in the books are mostly old cases such as Bowles v. Round (5 Ves. 508), which was approved in Ireland by Sugden, L. C., in Martin v. Cotter (3 Jo. and Lat, 496), at p. 506. But the existence of the principle that in the case of a patent defect the rule caveat emptor applies has been recognised in quite a number of modern cases, Ashburner v. Sewell ([1891] 3 Ch. 405); Yandle v. Sutton (([1922] 2 Ch. 199); Simpson v. Gilley (92 L.J. Ch. 194). In order that a defect may be a patent defect within the meaning of this rule it is not enough that there exists on the land an object of sense that might put a careful purchaser on inquiry. To be a patent defect the defect must either be visible to the eye, or arise by necessary implication from something visibleto the eye. In each of the three modern cases to which I have just referred, while the existence of the rule was recognised, the defect was held not to be a patent defect, but a latent defect. In the present case, however, I think the defect is a patent defect. I think that the existence and the nature of the path, leading nowhere but to the back door of Bell’s house, showed that it served no purpose other than as a way from the road to this back door to which there was no other means of access, and necessarily indicated as a practical certainty to anyone who saw it that the occupier of Bell’s house would have a right of way over it to the back door of his house. Being therefore of opinion that Mr. Bell’s right of way over the path during the currency of his tenancy is a patent defect, as that term is used in the authorities, I hold that the Purchaser is compellable to take the property subject to Mr. Bell’s right and it would follow that the Vendors are entitled to have the conveyance of Aughavanagh expressed to be subject to this right.
On behalf of the Vendors it is contended, however, that not only must the
Purchaser take the property subject to the right vested in Mr. Bell under his tenancy but that the Vendors are entitled to except and reserve from the con veyance of Aughavanagh a right of way over the path for the benefit of Bell’s house not merely for the duration of Bell’s tenancy but also for the whole of the residue of the 989 years Lease under which the green plot is held. The way that this contention is put is this. No doubt it is well settled by Wheeldon v. Burrows (12 Ch. D. 31) that where the same person owns two adjoining tenements A and B, and has used a path over A for the more convenient occupation and enjoyment of B then if he sells and conveys tenement A to a purchaser he will prima facie not be entitled to contend that any reservation of a right of way over the path is to be implied for the benefit of tenement B which he retains. I need not refer to the subsequent cases in which this principle has been recognized and applied. A good illustrative case is Taws v. Knowles ([1891] 2 Q.B. 564) – a decision of the English Court of Appeal. But it is said that there are certain recognized exceptions to this rule and it is alleged that this case falls under one or other of these exceptions. The exceptions particularly relied upon are (a) where the right sought to be reserved is a right of way of necessity, and (b) the exception supposed to be established by the case of Thomas v. Owen (20 Q.B.D. 225).
Now in the first place it may be a question whether these cases are really
applicable to the circumstances of the present case at all. The point for consider ation in all these cases was as to whether an exception or reservation was to be implied in completed conveyances. In the present case the point is not as to what implication should be drawn from a conveyance already completed but rather as to what precise form the conveyance when completed is to take. The matter here is still in contract. Our task is not to draw implications from a conveyance, but to find what wording of a conveyance will carry the parties’ contract into effect. That there is a distinction between the two points – the construction of a completed con veyance and the form which a conveyance is to take in order to give effect to a contract – is brought out by Chitty, J., in In re Peck and London School Board ([1893] 2 Ch. 315) and by Astbury, J., in the recent case of Simpson v. Gilley (92
L.J. Ch. 194), to which I have already referred. The distinction is not always emphasised in the text books. In discussing what reservations a Vendor of land is entitled in pursuance of his contract to have inserted in the conveyance the text book writers constantly refer to the cases decided on the reservations to be implied from completed conveyances. This may indeed be the legal position. It appears to be borne out by the judgment of Chitty, J., in the case of Beddington v. Atlee (35 Ch. D. 317). But in Simpson v. Gilley (92 L.J. Ch. 194) Astbury, J. (at p. 200) after making reference to Thomas v. Owen (20 Q.B.D. 225), proceeded to dismiss such cases as irrelevant to the questions which he had to try, videlicet as to whether under the contract the Vendor was entitled to have a right of way reserved by the conveyance. He obviously considered that where there is a clear and unqualified contract for the absolute sale of a parcel of land without reference to any reservation for the Vendor’s benefit it would require a good deal to persuade him that the Vendor could claim to have inserted in the conveyance a reservation of a right of way over the land sold. This appears to be in accordance with the view adopted in Webster on Conditions of Sale, 2nd Ed. at p. 8, where the learned author, not dealing at this point with completed conveyances but discu sing Contracts for Sale under the heading of Particulars of Sale, sets out the legal position quite simply in these words: ‘If the Vendor intends to reserve any easements over the land, or rights inconsistent with the full enjoyment of the land, he must express his intention in clear and explicit language.’ It may possibly be that this broad statement should be subject to a qualification in cases where the right which the Vendor claims to have reserved is clearly essential to the enjoyment of the property retained (see Dart on Vendors and Purchasers, 7th Ed., Vol, I, p. 563). But if the statement even with this qualification is to be regarded as good law then it is clear that in the present case the Vendors would not be entitled to have inserted in the conveyance the reservation which they claim.
If, however, on the other hand the same rules in regard to the reservations to be implied from completed conveyances apply also to contracts we are driven to consider the exceptions upon which the Vendors here rely from the principle in regard to implied reservations laid down in Wheeldon v. Burrows (12 Ch. D. 31). An undoubted exception – fully recognized in the judgment in Wheeldon v. Bur rows (12 Ch. D. 31) itself – is what are called easements of necessity; and it is said on behalf of the Vendors that the enjoyment of a right of access along the path by the occupier for the time being of Bell’s house is an easement of necessity within the meaning of the exception. But it is well settled that an easement of necessity, as referred to in this exception, means an easement without which the property retained cannot be used at all, and not one merely necessary to the reasonable enjoyment of that property. (Union Lighterage Co. v. London Graving Dock Co. ([1902] 2 Ch. 557), per Stirling, L.J., at p. 573; Greg v. Planque ([1936] 1 K.B. 669), per Slesser, L.J., at p. 676). A right of access to the back door of Bell’s house along the path may be very convenient and even almost necessary for the comfort able enjoyment of that house. But it cannot be pretended that it is essential and that without it the house could not be used at all. Accordingly I am clearly of opinion that in the circumstances of the present case the Vendors are not entitled to rely on this exception. Then in the alternative the Vendors claim that they are entitled to rely on the exception said to be established by the case of Thomas v. Owen (20 Q.B.D. 225). They say that inasmuch as Bell’s house is in the occupation of a tenant who is entitled to a right of way over the path as against the Vendors during his tenancy the effect of Thomas v. Owen (20 Q.B.D. 225) is to entitle the Vendors by reason of the existence of this tenancy to secure a reservation of such right of way not merely for the duration of Bell’s tenancy but for the duration of the whole of the long lease for which the Vendors hold the green plot. This would seem prima facie a very startling result to follow from the fact of Bell’s house being in the occupation of a quarterly tenant. If Bell’s house were vacant – as it apparently was from May, 1930, to July 1931, – or if it were in the personal occupation of the Vendors themselves then in view of the principle as regards implied reservations laid down in Wheeldon v. Burrows (12 Ch. D. 31) no claim could be sustained upon the sale to the present Purchaser of a reservation to the Vendors of a right of way over the path. Can it possibly be that the mere fact of the house being in the occupation of a tenant under a short tenancy so completely reverses the legal
position as to subject the Purchaser to the burden of such an easement during the whole residue of the 989 years Lease? I have read and re-read Thomas v. Owen (20
Q.B.D. 225), and I think all the subsequent reported cases in which Thomas v. Owen (20 Q.B.D. 225) has been referred to in an earnest endeavour to see ifI could formulate the precise principle upon which Thomas v. Owen (20 Q.B.D. 225) was decided and set the case on its proper place in a logical framework of excep tions to the principle which I have quoted from Wheeldon v. Burrows (12 Ch. D. 31).I cannot profess to have succeeded. Thomas v. Owen (20 Q.B.D. 225) was undoubtedly a decision of a strong court. But subsequent Courts and text book writers have found obvious difficulty in enunciating a rule derived from Thomas v. Owen (12 Ch. D. 31) which can stand logically with the undoubted authority of Wheeldon v. Burrows (12 Ch. D. 31). Some tribunals no doubt have been able to accept Thomas v. Owen (20 Q.B.D. 225) without question. Thus in Westwood v. Heywood ([1921] 2 Ch. 130), Astbury J., at p. 139, finds himself able to speak of ‘the rule in Thomas v. Owen’ (20 Q.B.D. 225). On the other hand a few years later in Aldridge v. Wright ([1929] 1 K.B. 381), Shearman, J., stated that Thomas v. Owen (20 Q.B.D. 225) and Wheeldon v. Burrows (12 Ch. D. 31) obviously conflicted, and went on to say that in his opinion Wheeldon v. Burrows (12 Ch. D.
31) and the cases which approve of it express the rule which ought to be applied in both the King’s Bench and the Chancery Divisions, and in the same case Finlay, J., apparently takes the same view though he does not express it quite so bluntly. It is perhaps worth while to note as Shearman, J., points out in Aldridge v. Wright ([1929]1 K.B. 381) that so far as appears from the reports Wheeldon v. Burrows (12 Ch. D. 31) was not mentioned either in Thomas v. Owen (20 Q.B.D. 225) or in Westwood v. Heywood ([1921] 2 Ch. 130), though I can hardly think that the Court which decided Thomas v. Owen (20 Q.B.D. 225) had forgotten Wheeldon v. Burrows (12 Ch. D. 31). Shearman, J.’s, criticism is so far as I know the most outspoken criticism of Thomas v. Owen (20 Q.B.D. 225) in subsequent cases, but it is impossible to read the judgments in other cases in which Thomas v. Owen has been discussed without feeling that there is considerable difficulty in extractinga clear principle from it which can be fitted in satisfactorily with the principle in regard to implied reservations established by the authoritative decision in Suffield
v. Brown (4 De. G. J. & S. 185) and Wheeldon v. Burrows (12 Ch. D. 31). As regards the text books I cannot find either in the original edition of Halsbury’s Laws of England or in the new Hailsham Edition any statement at all correspond ing to what is said to be this rule established by Thomas v. Owen (20 Q.B.D. 225) and in Gale on Easements, 11th Ed., p. 199, the learned editors appear disposed to treat Thomas v. Owen (20 Q.B.D. 225) as resting on very special circumstances which are scarcely likely to occur again, which I suppose means that in their view it cannot be taken as laying down any principle. In two recent cases Aldridge v. Wright ([1929] 2 K.B. 117) and Liddiard v. Waldron ([1934] 1 K.B. 435), it appeared that the precise relationship between Wheeldon v. Burrows (12 Ch. D.
31) and Thomas v. Owen (20 Q.B.D. 225) would arise for actual decision by the
English Court of Appeal but unfortunately each case went off on the fact that it had not been satisfactorily established that the tenant was entitled as of right to the easement or quasi-easement which was alleged to be the subject matter of the reservation sought to be implied. In Liddiard v. Waldron ([1934] 1 K.B. 435), however, Lawrence, L.J.; after referring at length to Thomas v. Owen (20 Q.B.D. 225), obviously feels pressed by the difficulty which I have mentioned of holding that the mere fact of the quasidominant tenement being let on a short tenancy so radically alters the normal position between Vendor and Purchaser as to endow the Vendor with a right in perpetuity or at any rate for the whole duration of his interest in the premises retained and says (at p. 445) that in his opinion the principle as applied in Thomas v. Owen (20 Q.B.D. 225) could not be held to govern a case where there is only a weekly tenancy of the quasi-dominant tenement. And I think that the same point may have been in Scrutton, L.J., mind when he says (at p. 439): ‘I confess that the idea of a weekly tenant wandering about with a series of easements when he can be got rid of by a week’s notice is a thing of which the law will not take much notice.’ If this alleged principle in Thomas v. Owen (20 Q.B.D.
225) cannot be held to apply where there is only a weekly tenancy I think that for exactly the same reason it cannot apply where there is only a quarterly tenancy so as impliedly to create an easement for the entire duration of a term of 989 years which on the basis of the principle in Wheeldon v. Burrows (12 Ch. D. 31) would not have been implied at all if the landlord had been personally in occupation of the quasi-dominant tenement instead of having it let to a quarterly tenant. Accordingly even if the same principle as to implying reservations which applies to completed conveyances applies also to contracts I do not think that the legal position is such as to entitle the Vendors in the present case to sustain their claim to reserve an easement over the property sold for the whole residue of the 989 years term.
I will therefore declare that under the contract the Vendors are not entitled to except or reserve from the conveyance to the Purchaser of the Property sold any right of way over or upon the passage three feet wide coloured blue on the map referred to in the Originating Summons; but that they are entitled if they so wish to have the Assignment to the Purchaser so worded as to convey the property subject during the existing quarterly tenancy of Bell’s house and any statutory tenancy which may arise upon the determination of the said quarterly tenancy by virtue of the Rent and Mortgage Interest (Restrictions) Acts, to such a right of way over and along the said passage as the present tenant of Bell’s house his executors adminis trators or assigns may be entitled to as an incident of the said quarterly tenancy.I say ‘if they so wish’ for the Vendors are conveying as personal representatives and accordingly no covenant for title will be implied on their part except a covenant that they have not personally done anything to affect or incumber the property. If the parties were not at arm’s length I take it they might be wishful to arrange thata reference to the right of a quarterly tenant of adjoining property might not be put on permanent record on the face of the Purchaser’s muniments of title.
William Bennett Construction Ltd. v. Greene & Anor
[2004] IESC 15
THE SUPREME COURT
Keane C.J.
Murray J.
Geoghegan J.
216/02
BETWEEN
WILLIAM BENNETT CONSTRUCTION LTD.
PLAINTIFF / APPELLANT
AND
JOHN GREENE AND KATHLEEN GREENE
DEFENDANTS / RESPONDENTS
JUDGMENT delivered the 25th day of February 2004, by Keane C.J. [Nem Diss]
The defendants were the owners in the year 2000 of a plot of land at Clonroche, Co. Wexford. They had originally intended to develop the land for housing and to that end the first named defendant applied for, and was granted, an outline planning permission for the erection of eighteen dwelling houses. The decision to grant outline permission contained a condition that it was for the housing development as shown on the site layout plan received by the planning authority. On that plan a drain for the disposal of sewage was shown running in a south-easterly direction to connect with the foul water sewer in the road adjoining the site.
Because of family circumstances, the defendants decided not to proceed with the development and to sell the site with the benefit of the outline permission. They also decided, however, to retain part of the site as shown on the site layout plan. The drain for the disposal of the sewage was shown on the site layout plan as crossing that land. That is what has given rise to the present litigation.
Mr. William Bennett (the proprietor of the plaintiff / appellant company and hereafter referred to as “the plaintiff”) was interested in acquiring the site being offered for sale by the defendants. He met the first named defendant towards the end of January 2000 and it is not in dispute that they agreed at that meeting on a purchase price of £250,000.00. It is also accepted by the parties that, at that meeting, the plaintiff made it clear that he would not be interested in proceeding with the purchase unless what is usually referred to as a “full planning permission” was available in respect of the proposed housing development. The draft contract for sale of the land was sent by the defendants’ solicitors to the plaintiff’s solicitors on the 20th April, 2000 and returned to them signed on behalf of the plaintiff on the 28th April. Condition 4 of the special conditions provided that
“The property is subject to the purchaser obtaining planning permission for the erection of eighteen dwelling houses on the subject property, the closing date shall be one month from the grant of planning permission. In the event that the said planning permission has not issued within six months from the date hereof either party shall be entitled to rescind this contract and the purchaser will be refunded his deposit in full without interest costs or compensation.”
Since there was already available an outline permission for the erection of eighteen dwelling houses on the lands being sold, it is accepted by both parties that the reference to the purchaser obtaining “planning permission” was either to an approval obtained by him consequent on the outline permission or a “full” permission (i.e. not an outline permission).
Under the heading “Documents Schedule”, two documents were referred to in the contract, i.e. “folio 11353 F”, in which the lands being sold were registered, and “Outline planning permission register reference 991372”. Paragraph 6 of the General Conditions provided that
“The documents specified in the documents schedule or copies thereof have been available for inspection by the purchaser or his solicitor prior to the sale. Where any of the subject property is stated in the particulars or in the special conditions to be held under a lease or to be subject to any covenants, conditions, rights, liabilities or restrictions, and the lease or other document containing the same is specified in the documents schedule, the purchaser, whether availing of such opportunity of inspection or not, shall be deemed to have purchased with full knowledge of the contents thereof, notwithstanding any partial statement of such contents in the particulars or conditions.”
On the 8th June, 2000, the contract was executed by the defendants. On the 17th November, 2000 the planning authority issued an approval for the development of the eighteen houses.
The sale was completed by the execution of a transfer of the land and the payment of the purchase money on the 31st January, 2001. Before that happened, however, the question as to whether the plaintiff was required to pay interest on the balance of the purchase money outstanding was discussed directly between the plaintiff and the first named defendant. The plaintiff, having been informed through his solicitors that the first named defendant was requiring the payment of the interest, there was a telephone conversation between them on the 1st or 2nd February at which the first named defendant confirmed to the plaintiff that he would have to pay the interest and, in response to a query from the plaintiff, also made it clear that he was not prepared to allow the drain for the disposal of the sewage to cross the land retained by him as shown on the site layout plan lodged for the purpose of obtaining the outline permission.
The defendants having maintained their attitude that they were not prepared to allow the plaintiff to lay a drain for the disposal of the sewage across the land retained by them, the present proceedings were issued. In the statement of claim, the plaintiff claimed inter alia an injunction restraining the defendants from preventing the plaintiff’s exercise of what was described as the “way leave” set out on the site layout plan. A defence having been delivered on behalf of the defendants denying that the plaintiff was entitled to any of the relief claimed, the action came on for hearing before O’Higgins J. In the course of evidence, the plaintiff said that, at the meeting in January 2000, where he and the first named defendant had agreed on the sale of the land for the specified sum and that it should be subject to full planning permission, the first named defendant showed him the site layout plan. He said that he indicated to the defendant where the plan showed the entrance to the site to be and where the sewage went out and the first named defendant agreed that that was what the plan showed. The first named defendant in his evidence denied that there was any discussion as to the sewage at that meeting.
There was also produced in evidence a record of an attendance by the solicitor for the first named defendant on his client dated the 8th March, 2000 which records:
“[The first named defendant] said in the outline permission the sewer pipe comes through the supermarket property onto the main street.
“He said that he wants the builder to take the sewage through the opening / entrance.”
The plaintiff in his evidence said that the cost of bringing the sewage out through the main entrance would be in excess of £120,000.00 and that he would not have bought the site if he had known that the defendants would not permit him to dispose of the sewage in the manner indicated on the site layout plan.
The trial judge, in his judgment, said that he preferred the evidence of the first named defendant to that of the plaintiff as to what had transpired at the meeting towards the end of January 2000 where the price for the land was agreed and that he was, accordingly, satisfied that there was no discussion as to the sewage at that meeting. He rejected the submission advanced on behalf of the plaintiff that the inclusion of the planning permission as one of the scheduled documents in the contract for sale meant that the contract was subject to an implied condition that the defendants would grant the plaintiff the way leave in question across the retained land and the further submission that the defendants in refusing to grant such a way leave were derogating from their grant of the land to the plaintiff, thereby entitling the plaintiff to the relief sought. From that judgment, the plaintiff has now appealed to this court.
At the outset, Mr. George Brady S.C. on behalf of the plaintiff accepted that this court could not disturb the finding of the trial judge as to the credibility respectively of the plaintiff and the first named defendant. He submitted, however, that the trial judge had erred in law in concluding that the actions of the defendants in declining to allow the plaintiff to dispose of the sewage in the manner indicated in the site layout plan had not derogated from their grant of the land. He said that where, as here, the land had been sold for a specific purpose known to both parties, i.e. the development of the land as shown on the site layout plan on the basis of which the outline permission had been granted, and the uncontradicted evidence established that it would be prohibitively expensive for the plaintiff to develop the land in any other way so far as the disposal of the sewage was concerned, the conduct of the defendants in refusing to allow the development proceed in that manner constituted a derogation from the grant of the land. He cited in support of this submission the decision of Barron J., sitting as a High Court judge, in Connell –v- O’Malley (unreported; judgment delivered 28th July, 1983). He also relied on the provisions of s. 6 of the Conveyancing Act, 1881.
Alternatively, Mr. Brady submitted that, in the circumstances of this case the doctrine of promissory estoppel applied and that the defendants, having represented to the plaintiff that the line of the sewage disposal would cross the land retained by them, should not be permitted to act in a manner inconsistent with that representation where it had been acted on, to his detriment, by the plaintiff, citing Daly –v- Minister for the Marine & Ors [2001] 3 IR 513.
On behalf of the defendants, Mr. Patrick Keane S.C. submitted that the defendants had agreed to no more than the transfer of the land described in the contract for sale for the specified price and did not agree to grant any way leave over the retained land. Since there was no way leave in existence at the date of the contract and the defendants had not in any way obstructed the exercise by the plaintiff of an existing easement or quasi-easement, there was no room for the application of the principle that a grantor should not be allowed to derogate from his grant. As to the claim based on promissory estoppel, Mr. Keane submitted that, having regard in particular to the finding of the trial judge as to the conversations between the plaintiff and the first named defendant and the undisputed evidence that the defendants had never promised that they would allow the plaintiff to lay a pipe across the retained land for the purpose of disposing of the sewage, that doctrine had no application.
As to the first submission advanced by Mr. Brady, there is little modern Irish authority on the principle that a grantor cannot derogate from his grant, although the law is helpfully reviewed by Barron J. in Connell –v- O’Malley., as yet unreported but noted at (1984) ILRM 563. Since Mr. Brady strongly relied on that judgment, the facts of the case should first be summarised.
The plaintiff had purchased a site at Navan from the defendant which had the benefit of outline planning permission for the erection of five dwelling houses. The site was formerly part of the defendant’s residential farm and was approached by a private laneway over his land. The plaintiff believed that this laneway would be taken in charge by the Meath County Council. There was protracted litigation between the parties and the defendant erected a gate which could close off the laneway, as a result of which the local authority refused to take it in charge. The plaintiff claimed an injunction restraining the defendant from maintaining any obstruction on the laneway on the ground that he was acting in derogation of his grant.
Barron J. found that, while the site could still be used for the erection of five dwelling houses, they would be very difficult to sell unless the laneway was taken in charge. Since the defendant knew that the site was being purchased for a housing development, he concluded that the only reasonable inference from the defendant’s conduct was that he was deliberately obstructing the laneway so as to ensure that the site would not be developed. In these circumstances, he held that the defendant’s conduct amounted to an attempt to derogate from his grant which should be restrained by the court.
Barron J. stated the law to be as follows:
“The doctrine of derogation from grant imposes implied obligations which arise when 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.”
Having referred to a contention on behalf of the defendant that the restriction which the plaintiff was seeking was one which he could have ensured was reserved to him by the contract of sale, Barron J. said, in a passage which was strongly relied on by Mr. Brady:
“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 grantor could not anticipate that he would require such protection, but that is not the case here. I reject this defence.”
That, however, was said by the learned judge in a case where a defined right of way over land retained by the grantor giving access to the land transferred to the grantee was in existence at the date of the grant and its obstruction by the grantor rendered the land granted significantly less capable of development.
That is patently not the case here. At the time of the sale, there was not in existence an easement in the nature of a way leave which, when part of the land was sold, remained in existence as a quasi-easement for the benefit of the lands sold.
The law was thus stated by Thesiger L.J. in the leading case of Wheeldon –v- Burrows [1878] 12 Ch.D 31:
“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 had been and are at the time of the grant used by the owner of the entirety for the benefit of the part granted.” [Emphasis added]
That was stated by Ross J. in the Irish case of Head –v- Meara [1912] 1 IR 262 to be a specific application of the principle that a man must not derogate from his own grant.
In a modern Irish textbook on the subject, The Law of Easements and Profits a Prendre by Peter Bland, the law is stated clearly and succinctly as follows at para 1206
“For the quasi-easement (or accommodation) to be converted into an easement on the severance of the quasi-dominant and quasi-servient tenements, the accommodation must be capable of existing as an easement and it must have been used at the time of the grant by the grantor for the benefit of the property granted over the property retained.”
The defendants in this case had never at any stage used any part of their land for the disposal of sewage by means of a pipe connecting with the main sewers of the local authority. They did no more than indicate in the site layout plan lodged with the application for permission that that was how they would propose to dispose of the sewage, in the event of permission being granted for the development and the development proceeding. There was, accordingly, no easement in existence being used at the time of the grant by the grantor for the benefit of the property granted over the property retained and hence no room for the application of the doctrine that the grantor cannot derogate from his grant.
Section 6 of the Conveyancing Act, 1881, on which Mr. Brady also relied, provides that
“A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water courses, liberties, privileges, easements, rights, and advantages whatsoever appertaining or reputed to appertain to the land, or any part thereof or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.”
Professor J.C.W. Wylie, in the second edition of Irish Conveyancing Law, describes this as one of the so-called “word saving” provisions in the Act. He observes that, while the section is often invoked to establish in favour of the purchaser the existence of easements over land retained by the vendor, it does not enlarge the rights to which the purchaser is entitled under the contract for sale.
I am satisfied that this is a correct statement of the law and that, in the case of easements, such as way leaves, the effect of the section is to ensure that any such easements in existence and appertaining to the land at the time of the conveyance pass with the conveyance. Moreover, as was made clear by Lord Wilberforce in Sovmots Ltd. –v- Environment Secretary [1979] AC 144, the section can have no application to a quasi-easement such as is claimed in this case, the reason being that
“When land is under one ownership one cannot speak in any intelligible sense of rights, or privileges, or easements being exercised over one part for the benefit of another. Whatever the owner does, he does as owner and, until a separation occurs of ownership, or at least of occupation, the condition for the existence of rights, etc., does not exist.”
No doubt, the existence of an outline permission could be described as one of the “advantages” appertaining to the land. But a purchaser of the land, such as the plaintiff in the present case, becomes entitled to the benefit of that permission, not by virtue of s. 6 of the 1881 Act, but because of the general principle enshrined in s. 28(5) of the Local Government (Planning and Development) Act, 1963, that a grant of permission to develop land inures for the benefit of the land and of all persons for the time being interested therein. I have no doubt that that is what Henchy J. was indicating in the case of Readymix (Eire) Ltd. –v- Dublin County Council & Anor (unreported; Supreme Court; judgments delivered July 30th, 1974) when he referred to a planning permission as “an appendage to the title”. The fact that it is not personal to the successful applicant for the permission and may be utilised by any person who subsequently acquires a legal interest in the property does not convert it into a document of title in any sense. That is put beyond doubt by s. 26(11) of the same Act which provides that
“A person shall not be entitled solely by reason of a permission or approval under this section to carry out any development.”
It follows that the plaintiff in the present case, in implementing the planning permission, was in no different position so far as the disposal of the sewage was concerned than if it had been shown in the layout plan as crossing the land of a third party to whom the defendants had sold the land subsequent to the obtaining of the permission.
As to the alternative argument advanced by Mr. Brady, that the plaintiff was entitled to rely on the doctrine of promissory estoppel, the law on that topic was stated as follows by Griffin J. in the decision of this court in Doran –v- Thompson Ltd. [1978] IR 223:
“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot afterwards be allowed to revert to their previous legal relations as if no such promise or assurance had been made by him, and that he may be restrained in equity from acting inconsistently with such promise or assurance.”
That passage, which was also adopted by Fennelly J. speaking for the court in Daly –v- Minister for the Marine [2001] 3 IR 513, is undoubtedly an authoritative statement of the law on promissory estoppel. It is, however, of no assistance to the plaintiff in the present case, because he has failed to establish the existence of “a clear and unambiguous promise or assurance” by the defendants to grant him a way leave over the retained land. On the contrary, even on his own account, which was not accepted by the trial judge, there was no such promise or assurance: the first named defendant did no more than agree that the plan showed the sewage as being disposed of by a pipe crossing the land to be retained by the defendants. Both the attendance of the defendants’ solicitor recording the first named defendant’s insistence that the sewage should not be disposed of in that manner and the subsequent seeking by the plaintiff of an assurance from the first named defendant that he would be permitted so to dispose of the sewage are entirely inconsistent with any such unambiguous promise or assurance having been given by the defendants to the plaintiff before or at the time the contract was executed by the parties.
I would dismiss the appeal and affirm the order of the High Court.