A right of way leading to a plot of land cannot be used for access to another plot, adjacent to the first, subsequently
In this action
Mr Colin Derek Bracewell, of 4 Hill Road, Heath End, Farnham Heights, Surrey,
and Mr Guy Armand Charles Wright, of 1 Hill Road, sought a declaration that the
defendant, Mr Edward Appleby, of 2a Hill Road, former owner of no 3, had no
right of way over portions of the surface of Hill Road owned by the plaintiffs,
and an injunction restraining trespass thereon, alternatively damages.
Mr D Jackson
(instructed by Charles Russell & Co, agents for W H Hadfield & Son, of
Farnham) appeared for the plaintiffs, and Mr J Monckton (instructed by
Slaughter & May, agents for Close & Son, of Camberley) represented the
defendant.
Giving
judgment, GRAHAM J said that this was a dispute between two neighbours about a
right of way and was one which, if there had been better communication between
the parties and no clash of personalities, might well not have come before the
court. Nevertheless a question of law was raised which one would have expected
to have found already clearly resolved. Did the law permit the creation of a
right-of-way, appurtenant to a particular close, for purposes of access not
only to that close, but also to any adjoining land which was not part of such
close at the date of the grant but which might at some future time come into
the ownership of the owner of such close?
Could a grant which, if that was its proper construction, purported to
do such a thing have the effect of creating an easement in the true legal
sense, so that it was appurtenant to the land, created a relationship of
dominant and servient tenement, and passed with and on a subsequent assignment
of the land?
The plaintiffs
and the defendant all bought houses on part of what was known as the Farnham
Heights estate in Surrey, which was developed by Wrotham Estate Ltd in about
1962. This particular part of the estate was laid out as a cul-de-sac with six
plots, fed by a private road known as Hill Road. The plaintiffs respectively
bought plots referred to as no 43 or no 4, and no 40 or no 1. The defendant’s
predecessors in title, Mr and Mrs York, bought plot no 42, or no 3, and plots
38, 39 and 41 were bought by other parties. On the sale of each of the six
plots there were grants and reservations of rights of way over Hill Road, and
over portions of each plot. For example, the plan attached to the statement of
claim showed a portion of Hill Road marked yellow, half of which belonged to Mr
Wright and half to Mr Bracewell, subject to the grants and reservations of
rights of way (and obligations to repair) which were now in question. It was
the construction and effect of the grants and reservations in the schedules to
the conveyances, in the light of the further history of the matter, which was
the determining factor.
The defendant was
able to buy a piece of land adjoining his plot, no 3. There was no means of
access to that piece of land except from no 3 itself or from the back gardens
of houses in other roads. The site was land-locked, in very rough condition,
and no use to anyone except the owner of no 3. The defendant incorporated it
into his garden. He then thought of building a new house, partly on the garden
of no 3 and partly on the extra land, with access to the new house by means of
a drive parallel to the north-west boundary of no 3 and leading to Hill Road
and over part of the plaintiffs’ yellow land to Alma Road. He then sold no 3
and moved into the new house, no 2a, and the whole dispute turned upon whether
the original right of way he acquired when he bought no 3 also gave him a right
of way to the new house built partly on land originally part of no 3 and partly
on the new land. It was, of course, not quite so simple generally as might
appear from his (Graham J’s) short summary. The application the defendant had
to make for planning permission was opposed by the plaintiffs and others. There
was no restrictive covenant imposed by Wrotham Estate Ltd when the original
development took place which entitled the plaintiffs or any of the defendant’s
neighbours to object to the new house for that reason.
Objection to
the defendant’s proposal was formally raised in August 1972 on the basis that
he did not have a legal right of way over Hill Road which would entitle him to
access to the new house, such rights as did exist being limited to the six
existing houses, and the plaintiffs gave him notice that an injunction would be
sought if he proceeded. At first the defendant appeared ready to compromise,
but later his attitude hardened, and in effect he challenged the plaintiffs to
take proceedings. The cold war hotted up when in January 1973 the defendant
announced that he would shortly start operations. After a letter from the
plaintiffs and a short exchange of fire about costs, the defendant started
building, apparently early in April. The plaintiffs issued their writ and
sought an interim injunction, which was refused, no doubt partly for the reason
that the judge was not certain as to the proper construction of the grant in
question and partly because the motion was brought only when the house was
finished. He (his Lordship) would have reached the same conclusion on delay,
the truth being that neither side felt sure enough to test matters till driven
to. The plaintiffs made threats, but stood by until the house was erected, and
the defendant, insisting he had a right of way by virtue of the grant, never
took any proceedings to obtain a declaration to that effect and pushed ahead
until the house was a fait accompli. Furthermore, he (Graham J) would not grant
an injunction now, even were he satisfied that the plaintiffs were entitled to
relief, following the principles enunciated by Brightman J in Wrotham Park
Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 at 809-811.
Although an injunction would be against trespassing upon the plaintiffs’ land,
and would not go to pulling the house down, it would make no 2a uninhabitable
and put the plaintiffs into an unassailable bargaining position. Mr Jackson,
for the plaintiffs, no doubt realising the difficulty, offered that if such an
injunction were granted he would not insist on enforcing it but would be
prepared to grant a right of way on payment of £1,200 to each of the
plaintiffs, that sum being 1/5 of the £6,000 which, he said, the evidence
showed was the amount of the notional profit the defendant had made by his
operations. It would be quite wrong of him (his Lordship) to accede to this
suggestion, first in view of the unwillingness of the plaintiffs in fact to
take effective action until the house was finished, so that they could not claim
to be put into the bargaining position they could have got into if they had
taken action before the defendant had committed himself to his contract, and
secondly, in view of the intolerable nature of a decision which would render
uninhabitable a house which was a fait accompli and was now being lived
in by the defendant.
That reduced
to a considerable extent the matters which had to be decided. The grant in
question created a ‘right of way of the fullest description’ over Hill Road in
common with the transferor and all other persons so entitled, and a ‘right of
way with or without vehicles over’ the yellow strip in common with the
transferee and his successors in title. He (Graham J) had reached the
conclusion that the effect of the words used was to grant a private right of
way of as extensive a nature as was legally possible, having regard to the fact
that these were private houses on a building estate that was being developed.
He thought that it could not have been intended that Hill Road should be treated
as if there were a public right of way over it. The conveyance could quite
simply have said ‘such rights as if Hill Road were a public highway’ had that
been the intention. Harris v Flower (1904) 74 LJ Ch 127 justified
the assertion that in such circumstances the grant of access to no 3 did not
enable
the blue land, to which it was not appurtenant, thereby in practice doubling
the burden on the servient tenements of the plaintiffs because of the existence
of two houses and families using Hill Road from no 3 instead of one, as before.
In the case cited, at p 132 Romer LJ remarked: ‘If a right of way be granted
for the enjoyment of close A, the grantee, because he owns or acquires close B,
cannot use the way in substance for passing over close A to close B.’ The circumstances in that case and in the
present case were parallel, and the principle expressed by Romer LJ accordingly
governed the present case. It followed that the defendant was not granted a
right of way which entitled him to pass over Hill Road to and from his new
house, no 2a. His right of way was limited and appurtenant to no 3 only.
That left the
question of relief. As already stated, he (his Lordship) was unwilling in the
circumstances to grant an injunction, but the plaintiffs had made out their
legal right and so sought damages under Lord Cairns’ Act. As he had been
requested to do by both parties, he would assess a figure, and in doing so
would follow the approach of Brightman J in the Wrotham Park case,
beginning at p 812. The defendant must pay an amount of damages equivalent to a
proper and fair price which would be payable for the acquisition of the right
of way in question, not some proportion of the development value created. Here
the plaintiffs, for amenity reasons, did not want an extra house built in the
cul-de-sac, but for the purpose of estimating damages they and the other
servient owners in Hill Road, albeit reluctant, must be treated as being
willing to accept a fair price for the right of way in question and must not be
treated as if they were in the extremely powerful bargaining position which an
interlocutory injunction would have given them if it had been obtained before
the defendant started operations and incurred expense. Such was the penalty of
standing by until the house was built. On the evidence, the probable figure of
notional profit the defendant had made, being the difference between the
overall cost of the new house and its present-day value, seemed to be between
£4,000 and £6,000, and it seemed fair to take £5,000 as about the accurate
figure. The proper approach was to try to arrive at a fair figure which, on the
assumption made, the parties would have arrived at as one which the plaintiffs
would accept as compensating them for loss of amenity and increased user, and
which at the same time, whilst making the blue land a viable building plot,
would not be so high as to deter the defendant from building at all. The
defendant was not a speculative builder, but wanted to live in (and in fact did
now live in) 2a himself; he (his Lordship) thought he would have been prepared
to pay what was relatively to his notional profit quite a large sum for the
right of way in question and to achieve the building of his new home. This was
a time of rising property values in which (as the court thought) he would have
been prepared to pay £2,000 to get his right of way. The plaintiffs were
entitled to their appropriate share of this figure, namely 1/5 each, so that
each would be awarded £400 by way of damages for the exercise of a right of way
over their respective pieces of land.
The
plaintiffs were awarded costs.
