Conveyance — Provision for erection of garage on land conveyed — Access to garage space — Proposed access road never completed — Respondent claiming implied easement over appellants’ land — Whether respondent still having benefit of right of way — Rule against perpetuities — Appeal allowed
The appellants and the respondent purchased neighbouring properties (Bryn and TyF, respectively) that had previously been in the same ownership. Prior to the respondent’s purchase of TyF, the vendor had obtained planning permission to erect houses and garages on Bryn. This application also involved the construction of an access road to the proposed properties. One of the proposed garages was marked on the plan as “garage for TyF”.
The vendor constructed approximately three-quarters of the road, the remaining quarter being the part nearest to TyF. By clause 2 of the conveyance from the vendor to the respondent, the latter covenanted to erect a stock-proof fence within a reasonable time following the vendor’s excavation of the site for the garage on TyF. However, the vendor failed to complete the proposed works and sold the land to the appellants.
An issue arose as to whether the respondent had acquired, and still retained, the benefit of a right of way along the part of the road that had been constructed and along the line of the part that had not been completed.
At first instance the court found in favour of the respondent and the appellants appealed.
Held: The appeal was allowed.
Since the parties had intended that the site would be used for a garage if and when the relevant development of Bryn was carried out, the respondent had established that she had the benefit of an implied right over Bryn pursuant to the conveyance.
The implied right was either a contractual entitlement to a right of way over the entire road if and when the construction work was executed or an immediate right of way that could be enjoyed only once the remaining section of the road had been built. However, regardless of which analysis was correct, the respondent’s claim failed.
If the respondent had a right of way over the road when it was completed, that right had expired pursuant to the rule against perpetuities, since more than 21 years had expired since the conveyance was executed and none of the relevant works had been carried out: Dunn v Blackdown Properties Ltd [1961] Ch 433 applied.
The same reasoning might apply if there were a contract for the grant of a right of way, conditional upon the carrying out of the relevant works. In any event, no such contract had been registered as a charge against the property and, consequently, the appellants would have taken free of it when they acquired that property: Stafford v Lee (1992) 65 P & CR 172 applied.
David Lamming (instructed by Cato Solicitors, of Northampton) appeared for the appellant; Stephen Bickford Smith (instructed by Gwilym Hughes & Partners, of Wrexham) appeared for the respondents.
Eileen O’Grady, barrister
