Transfer of part of land — Retained land becoming landlocked — Claimant denied access to highway — Whether claimant entitled to way of necessity over land transferred — Appeal dismissed
The appellant owned 525m2 of land to the north of the A24 highway (the red land). The respondent 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 appellant 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 appellant 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 respondents 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 appellant 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 appellant argued that a reservation of way of necessity should be implied.
The judge at first instance dismissed the appellant’s claim to an easement of necessity over the green land to High Path: see [2006] EWHC 1075 (Ch); [2006] 2 EGLR 1; [2006] 29 EG 134. The appellant appealed.
Held: The appeal was dismissed.
An easement of necessity was to be implied from the circumstances of a grant of land and was not a free-standing rule of public policy. The classic case of an easement of necessity was where the land of one party to a grant was entirely surrounded by the land of the other. As between the two of them, it was not difficult to infer that the landlocked property of either party was intended to have some form of access over the surrounding land. However, the issues became more complex as one moved away from that simple bipartite model to one where the surrounding land was shared with strangers to the grant.
Where alternative access over the land of third parties was a possibility, the case for an easement of necessity was much less clear. There was no reason to assume that the same rule should apply to the grantor and the grantee. In that context, the presumption of non-derogation from grant would work in favour of the grantee but against the grantor. Further, the grantee might also be able to rely upon other forms of implied right that were not available to the grantor.
When considering the possibilities of alternative access over the land of third parties, the grantee’s normal expectation was that access, if not otherwise available, would be allowed as an incident to the grant and would be provided by the grantor over land within its control. Where the roles were reversed, the grantor had no equivalent expectation. The presumption was that any rights that it required over the land transferred would have been expressly reserved in the grant, and the burden was on the grantor to establish an exception: Wheeldon v Burrows (1879) 12 ChD 31; Nickerson v Barraclough [1981] Ch 426; Manjang v Drammeh (1991) 61 P&CR 194 considered.
Accordingly, in the present case, the appellant was not entitled to an easement of necessity by operation of law, regardless of the existence of possible alternatives over the land of third parties. Furthermore, on the facts, the judge’s conclusion that the appellant had no right of way over the respondent’s land would be upheld.
Ian Partridge (instructed by Barrea & Co, of High Wycombe) appeared for the appellant; Jonathan Small QC (instructed by the legal department of London Borough of Merton) appeared for the respondents.
Eileen O’Grady, barrister
