Transfer of part of land — Retained land becoming landlocked — Claimant being denied access to highway — Whether claimant entitled to way of necessity over land transferred — Claim dismissed
The claimant owned 525m2 of land to the north of the A24 highway (the red land). The defendant council were the registered proprietors of 3,237m2 of land to the north of, and immediately adjacent to, the red land (the green land). To the west and east of the red land lay land that belonged to third parties, over which the claimant had no legal right of way.
The red and green lands were originally in common ownership and accessed by a road known as High Path. However, when the green land was sold, the red land became landlocked unless access could be gained from the highway.
The claimant wished to develop the red land and, in 2001, applied for planning permission for a petrol station and car wash facing onto, and with access from, the highway. It appeared from correspondence that the defendants might have been willing to grant permission for access from the red land to the highway but, following consultation with Transport for London, it was decided that planning permission would probably not be granted.
Consequently, the claimant had no legally enforceable right of access. The transfer of the green land was in simple form and contained no express reservation of an easement in favour of the red land. Without this, the red land remained landlocked. The claimant argued that a reservation of way of necessity should be implied.
The issue was whether the claimant was entitled to a declaration that the red land was entitled to a right of way of necessity over the green land to High Path.
Held: The claim was dismissed.
The claimant had not proved its claim that it was entitled to a way of necessity over the green land.
The grant of a way of necessity was an exception to the general rule that a party should not derogate from its own grant. It arose where, on a disposition by a common owner of part of its land, the land retained was left without any legally enforceable means of access. In such a case, such land was entitled, as of necessity, to a way over the other part. However, that doctrine was not applicable where the landlocked land was not blocked on all sides by the land of the grantor: Titchmarsh v Royston Water Co Ltd (1899) 81 LT 673 applied.
At the date of the transfer of the green land to the defendants, the red land was not surrounded by land owned by the defendants, since to the west and east the land was owned by third parties and to the south was the highway. On that ground alone, the claimant had not demonstrated that it was entitled to the grant of an easement of necessity. Moreover, there was no indication of a common intention by the parties to the transfer that the red land should have access to High Path over the green land.
Although there was a common law right to go onto the highway, the obstacle in this case was that planning permission was required to access what was a trunk road and that would not be forthcoming as matters currently stood. However, the test for a way of necessity was not whether it would be right to grant an easement, nor whether it would be common sense to imply some reservation.
Ian Partridge (instructed by Barrea & Co, of High Wycombe) appeared for the claimant; Jonathan Small (instructed by the legal department of Merton London Borough Council) appeared for the defendants.
Eileen O’Grady, barrister
