Landlocked property will usually be granted a way of necessity but, as a recent case demonstrates, this general principle does not always apply
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● No way of necessity unless landlocked property is surrounded by land belonging to the vendor ● No necessity where the only bar to access is the unavailability of planning permission |
It is to no one’s advantage that a plot of land should become incapable of use owing to a lack of access. In all but a minority of cases, those drafting transfers of land that form part of an existing title will appreciate the issue of access and deal with the matter expressly. However, in isolated instances, this does not happen. Although this can be down to incompetence, it can also occur because everyone assumes that there is a right of access to an adjoining highway.
In most of these cases, the problem will be resolved because the law will usually imply a way of necessity. However, as the recent decision in Adealon International Corporation Proprietary Ltd v Merton London Borough Council [2006] EWHC 1075 (Ch); [2006] 29 EG 134 illustrates, in certain circumstances, this rule will not apply.
A complex plot
Adealon involved land in the borough of Merton that lay between what is now Merantun Way and High Path. In the 1980s, the land belonged to Boastdean Ltd. In the late 1980s, the most southerly strip of the land was acquired and formed the route for Merantun Way, which opened in 1989.
At that time, it was expected that the remaining site would be developed for office and light industrial use. In order to facilitate this, and to exercise a degree of control over the project, in 1989, Boastdean sold the northerly part of the land that fronted onto High Path (the green land) to a linked company, Kempstone Ltd, and retained the southerly plot (the red land), which now adjoined Merantun Way.
However, the property market deteriorated and these plans fell away. Eventually, in 1994, the green land was sold to the defendant council. However, the red land was retained on the basis that it might be developed in the future.
The red land was sold in 1989, but no rights of access through the green land to High Path were reserved. It was presumably assumed that the red land would have direct access onto Merantun Way. However, although land adjoining a highway enjoys a common law right of access, planning permission is required for access to certain roads. This was the case with Merantun Way. Here, the defendant was the authority with the power to give this permission. As with any planning authority, it had to consult with the relevant highways authority in respect of highways issues.
Over the years during which the redevelopment of the red land was being pursued the defendant consulted Transport for London (TfL). In the late 1980s, an application for a petrol station and car wash fronting onto Merantun Way was rejected on the basis that the access would be unsafe.
In 2001, when the possibility of constructing light industrial units was being considered, TfL had advised that it would be difficult to object to a scheme of this type being granted direct access to Merantun Way since the traffic generation would be low. However, it made the point that it would object strongly to any subsequent application involving any development that would generate a higher level of traffic.
By 2005, the attitude of TfL had hardened further and it had indicated that it would recommend the refusal of planning permission on highway safety grounds since any vehicles emerging would significantly increase the risk of accidents and would encourage the illegal use of Merantun Way by pedestrians.
Once it had become clear that this access to the red land was most unlikely ever to materialise, the claimant had to try to obtain an alternative access. Presumably, Adealon would have been over a barrel in trying to negotiate any right of way; a better option was to contend that it already had a right of access.
Ways of necessity
The obvious approach was to argue that a right of way through the green land to High Path should be implied into the 1989 transfer of the red land by the then owner of both pieces of land. It is unclear from the judgment whether, prior to the division of the land, any right of way to High Path had actually been enjoyed. It must be assumed that it had not, since no argument based upon this was raised. The claim made was that a right of access must be implied as a way of necessity.
The law has always accepted that, where a common owner sells part of its land, and either the part retained or the part disposed of is left without a means of access, a right in favour of the inaccessible part over the other part will be implied.
In Adealon, two issues of principle arose concerning the application of this rule. First, the red land was not, at the time of sale, completely surrounded by land owned by Boastdean; the land on either side belonged to third parties. Second, it did enjoy a common law right of access to the highway; its problem was that it could not obtain planning permission to use it.
Parties’ intention
Having examined the authorities, the judge was satisfied that the usual assertion that the landlocked property does not have to be surrounded by the vendor’s land (based upon the decision in Barry v Hasseldine [1952] Ch 835) is wrong because previous authority – Titchmarsh v Royston Water Company (1899) 81 LT 673 – makes it clear that the rule applies only where the vendor owns all the surrounding land.
She was also satisfied that there was no necessity; there was a common law right of access to the highway, albeit one for which planning permission could not currently be obtained.
It was clear that, at the time of the transfer, planning permission for some kind of access would have been contemplated. Furthermore, as she pointed out, the rules on ways of necessity are not based upon public interest, but upon the intention of the parties.
The evidence showed that, in 1989, the parties did not contemplate access to High Path; the purpose of separating off the red land was to exploit the fact that it adjoined Merantun Way. Although this latter point may indicate the merits of this case, if it does go to appeal, it would be desirable for a higher court to reconsider both of the two important issues of principle.
Sandi Murdoch, senior lecturer in law, Reading University
