Easement – Right of way – Appellant and respondents having rights of way to access land created by previous conveyances – Appellant obtaining planning permission to build on his land – Appellant wanting to use right of way to access properties — Respondents claiming use of way excessive – County court finding original conveyances limiting use of right of way to access gardens – Whether judge adopting correct approach to interpretation of grants — Appeal allowed
The appellant owned three plots of land (the dominant land) to which express rights of way, which had been created by conveyances executed between 1919 and 1921, were appurtenant. He wanted to use the servient track to access the dominant land for the purposes of carrying out a residential development in accordance with a planning permission that he had obtained. The respondents owned neighbouring plots that enjoyed similar rights of way over the track. They objected tot the appellant’s proposed use of the track because it would involve an excessive and therefore unlawful use of his rights.
The appellant asserted his right to use the track for his intended purposes and complained that the defendants had obstructed such use. He sought declaratory relief, damages and an injunction. The respondents defended his claim and counter-claimed. The county court dismissed the appellant’s claim for damages and an injunction and declared that his rights were limited to a use of the track for all reasonable and usual purposes relating to the dominant land as “garden ground”, as described in the conveyances. It enjoined the appellant from using the track for the purpose of constructing houses on the dominant land or for accessing any houses built on it.
The appellant appealed against that order, contending that the rights were not limited in the way so prescribed and that they should not be interpreted in a restrictive way. The respondents sought to affirm the judge’s order.
Held: The appeal was allowed.
The task of interpretation with which the court was faced required the ascertainment of the intention of the parties to the original conveyances from the words of the grants read in the light of the background circumstances that would have been known to the parties. The modern approach to the interpretation of documents such as the grants in question was to deduce the parties’ intentions from all admissible available indicia: Brooks v Young [2008] EWCA Civ 816; [2008] 3 EGLR 27; [2008] 37 EG 148 applied.
However, in the instant case, the context and background to the original conveyances did not justify the inference that the original parties had intended the easement over the track to be used only in connection with the use of the dominant plot as garden land. The fact that the parties to the conveyances might have contemplated that the plots would be used as such did not indicate an intention that the track could be used to access them only so long as they continued to be used so. That factual circumstance would arise in almost every case of an express grant of a right of way appurtenant to a particular piece of land that was being used for a particular purpose at the time of the grant. However, the purpose for which the right might be used would not be limited by the original use of the dominant land. Subject to the “reasonable and usual” qualification, the grants did not purport to prevent the use of the track in connection with any such use.
Furthermore, the phrase “for all reasonable and usual purposes”, interpreted against the background in which the conveyances had been executed, did not import the limitation on the grants that the judge had derived from them. The conveyances conveyed, inter alia, the garden plots with no limitation on their future use; and they granted rights of access to them over the track “for all reasonable and usual purposes”. Those words were not linked to, or limited by, the then use of the plots as gardens. They indicated an expanded rather than a limited range of uses. They did not permit a use of the track for all purposes. However, they did allow a use for all purposes that were from time to time reasonable and usual could be subject to a dispute. Whether any particular use was “reasonable or usual” but there could be no question that the use of each of the plots for the building and occupation of a dwelling house in accordance with a planning permission was a “reasonable and usual” use. Accordingly, the easements over the track could lawfully be used for the purpose of building and accessing such houses.
Anthony Elleray QC and Ian Procter (instructed by C Turner Solicitors, of Blackburn) appeared for the appellant; Joanne Wicks (instructed by Brady Solicitors, of Nottingham) appeared for the respondents.
Eileen O’Grady, barrister
