Land – Easement – Right of way – Respondent wishing to build new house on parcel of land – Appellant neighbours arguing respondent had no right of way over its private road to enable house to be built – Judge ruling in favour of respondent – Appellants appealing – Whether judge erring in finding respondent had right of way across private land – Appeal allowed
The respondent wished to build a substantial property on land he owned to the rear of a house he owned at 40 Fairmile Lane, Cobham, Surrey (“the yellow land”). By a conveyance in 1968, the property had been transferred to the respondent’s predecessor with a right of way “for all purposes connected with the present and every future use of the land hereby transferred” (clause 1). Clause 2 contained a covenant not to build on the yellow land and to pay one half of the cost of maintaining the private road.
The respondent had planning permission to build the house, but the plan would have to be aborted unless he could establish that: (i) there was no effective restrictive covenant preventing him from building on the site notwithstanding the planning permission; and (ii) he could provide access to the plot by establishing a right of way over a private road owned by the appellants, which ran alongside part of the respondent’s garden, but did not connect with the yellow land, the proposed building site.
The respondent brought proceedings to establish his rights. The judge found in favour of the respondent, holding that (i) a restrictive covenant prohibiting building on the land had not been properly registered and was not therefore enforceable; and (ii) the respondent, as the owner, had a right of way across the private road allowing access to the yellow land: [2018] EWHC 1206 (Ch); [2018] PLSCS 103.
The appellants accepted the finding of the judge that the restrictive covenant was in the event unenforceable. However, they maintained their appeal against the decision of the judge that the owner of the yellow land had a right of way over the private road.
Held: The appeal was allowed.
(1) The court rejected the respondent’s submission that the repairing covenant was conditional on there being a right of way not otherwise granted on the face of the conveyance. The yellow land, as part of the garden of the respondent’s property, had no more than an ancillary right of way over the private road. It was common ground that something had gone awry with the drafting of the 1968 transfer. The first clause to be considered was clause 1 which unequivocally gave a right of way “for all purposes connected with the present and future use of the land transferred”. The oddity of clause 2(b) imposing a repairing obligation upon the yellow land had to be taken into account as well as the restrictive covenant preventing building on the same land. The centrally relevant words to be interpreted were those found in clause 1. The overall purpose of the clause and the transfer was for the land to be transferred to the purchasers with the benefit of a right of way over the private road, but with the benefit of a restrictive covenant ensuring that no one would build on the land immediately behind and adjacent to them, namely the yellow land. At the time of the transfer it was known that it was intended that the yellow land should not be built on, that there was a strip of land belonging to the respondent between the yellow land and the private road, and it was known that the transferor owned additional land which allowed access from the road to the yellow land. The mere fact that a contractual arrangement if interpreted according to its natural language had worked out badly, or even disastrously, for one of the parties was not a reason for departing from the natural language. Commercial common sense was only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, at the date the contract was made. While commercial common sense was an important factor to take into account when interpreting a contract, a court had to be slow to reject a provision of a contract simply because it appeared to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of hindsight. Such an approach favoured the appellants’ interpretation of the 1968 conveyance. Accordingly, the right of way did not benefit the yellow land: Arnold v Britton [2015] EGLR 53 applied. Harris v Flower & Sons [1905] 74 LJ (Ch) 127 and Gore v Naheed [2017] EWCA Civ 369; [2017] PLSCS 111 followed. Wilkinson v Kerdene Ltd [2013] 2 EGLR 163 considered.
(2) Only in exceptional circumstances would the court imply an easement that would contradict an express restriction which had been part of the original bargain. Where there was an express right attaching to the same property of a similar character to the right which was sought to be implied, it was most unlikely that the further right would arise by implication. The circumstances would have to be quite exceptional. There was no basis on which the judge could properly have concluded that an easement should be implied on the facts of the present case, either on the basis of reasonable necessity or on the basis that the building of a property on the yellow land was, at the time of the 1968 conveyance, an activity which was reasonably expected to take place in the future: Waterman v Boyle [2009] 2 EGLR 7 followed. Moncrieff v Jamieson [2007] UKHL 42; [2007] PLSCS 201 considered.
(3) (per Lewison LJ) Looking at the transfer as a whole, one could confidently conclude that building on the yellow land was something that the parties intended to prohibit. That of itself meant that it was impossible to imply an easement which would facilitate the very thing that the parties expressly prohibited. The fact that the covenant had subsequently turned out to be unenforceable against successors in title had no bearing on either the correct interpretation of the transfer or on the question whether a term could be implied.
Adam Rosenthal (instructed by Sydney Mitchell LLP, of Birmingham) appeared for the appellants; John Antell (instructed by Direct Access) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Roberts v Parker and another
