Easements — Right of way — Derogation from grant — Right of way for lorries to access spring water bottling plant in accordance with relevant planning permission — Temporary planning permission imposing condition as to provision of visibility splay — Owner of servient tenement interfering with visibility splay — Subsequent refusal of planning permission for bottling plant — Whether interference with splay amounting to derogation from grant
In 1996, the respondents granted a 20-year lease over a part of their land that contained a natural spring water well to a company that wanted to set up a water bottling facility. The lease provided a right of way over the respondents’ retained land. This allowed access to commercial lorries from the main road to the bottling facility at the times permitted by the conditions of the applicable planning permission. In 2000, the respondents sold most of their land to the appellants, save for the area subject to the lease.
Between 1996 and 2004, the bottling facility operated under a series of temporary planning permissions. The first two of these contained a condition requiring the provision of a visibility splay at the junction with the main road for the purposes of highway safety, although a third, granted in 2002, did not mention the splay. In 2001, the appellants erected fencing and planted shrubs on part of the land that formed the visibility splay.
In 2004, an inspector refused permanent planning permission for the bottling facility. He considered that the existing sight lines made the access to the plant potentially dangerous and that they were unlikely to be improved to a satisfactory standard because the respondents did not control the land necessary for the splay. The company decided to relocate and exercised an option to break the lease in November 2005.
In an action against the appellants, the respondents contended that the blocking of the sight lines on the visibility splay land amounted to a derogation from the grant of the right of way. Allowing the claim in the county court, HH Judge Cowell granted an injunction requiring the appellants to restore the splay and awarded damages of £35,831. The appellants appealed against liability, the making of the injunction and the amount of damages.
Held: The appeal was allowed in part. (1) The right that had been granted, and from which no derogation was permissible, was a right of access for lorries with a suitable splay. This was what had been contemplated by the parties at the time of the grant in the light of their knowledge of the planning condition then in force; the splay was essential to the exercise of the right. It was irrelevant that the 2002 permission did not contain a condition concerning the splay. The respondents controlled the necessary land in the sense that, as a result of their right of way, neither the appellants nor any successor in title was entitled to interfere with the splay. The appellants’ interference with it amounted to a derogation from grant, without which the inspector would not have found that the junction was dangerous or that the sight lines could not be improved. (2) There was a real prospect of planning permission being granted for some commercial use of the spring water land, but only if the highway objection were removed. The judge had been entitled to grant a mandatory injunction requiring the reinstatement of the splay on the ground that the spring water land was otherwise completely stultified for any commercial user. (3) In the light of fresh evidence that no further planning permission for a bottling plant would be granted, but taking into account the possibility that the land could instead be used for offices, the award of damages should be reduced to £20,000.
The following cases are referred to in this report.
Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200
Platt v London Underground Ltd [2001] 2 EGLR 121, Ch
This was an appeal by the appellants, Jeffrey and Jacqueline Cole, from a decision of HH Judge Cowell, sitting in Central London County Court, allowing a claim by the respondents, Terence and Jane Carter, for an injunction and damages for derogation from the grant of a right of way.
Gary Cowen (instructed by The Beavis Partnership, of Chelmsford) appeared for the appellants; Geraint Jones QC and Christopher Coney (instructed by TMJ Law, of Northampton) represented the respondents.
Giving the first judgment at the invitation of Laws LJ, Jacob LJ said:
[1] This appeal is from a decision of HH Judge Cowell of 18 June 2008. It is by permission of this court (myself and Sir John Chadwick) given after an initial refusal by me on the papers.
[2] The facts may be summarised briefly:
(i) The respondents, Mr Terence and Mrs Jane Carter, owned Wickham Grove Orchard. In June 2000, they sold most of this, 53 acres, to Mr Jeffrey and Mrs Jacqueline Cole, the appellants. The Coles live in a house on that land.
(ii) The Carters retained the remainder of the land. It is a relatively small area, around an acre. It has on it a natural spring water well and can conveniently be called the spring water land. There are some buildings on it, once used for packing apples but latterly for water bottling with associated offices.
(iii) In 1996, the Carters leased the spring water land to a company called Wickham Bishops Springwater Ltd for a term of 20 years. The lease provided for a right of way over the land that was later sold to the Coles. The purpose of a right of way included access to the water bottling facility that the company was starting. The access route was from the spring water land out to the main road that is called Langford Road. For that purpose, it would be necessary that a right of way should include access by lorries.
(iv) When the land was sold to the Coles, agreement was reached in altering the route of the original access road so as to take it further away from what was to be the Coles’ house, although nothing turns on that. There was express provision for a right of way along the new route. |page:16|
(v) The water-bottling operation required planning permission. The first relevant planning permission was temporary. It was granted on 30 April 1996 and permitted the use of the existing buildings on the spring water land for the bottling and packaging of spring water. It was to expire on 30 April 1999 and contained the condition that “no [specified activities] or deliveries shall be carried out on the premises except between the hours of 8.00am and 12 noon on Saturdays or between the hours of 8.00am and 6.00pm on other weekdays”.
(vi) The permission also contained a condition as to the visibility splay at the junction with the main road. It was to be 2m x 120m either side of the junction with no obstruction above 600mm above the level of the adjoining carriageway within the splay. The reason was “highway safety”.
(vii) In May 1999, a further temporary permission was granted expiring on 30 April 2002. The reason for the permission being temporary was “in order that the effect of the proposal upon residential and rural amenities may be assessed in the short term”. The same condition as to the hours of deliveries and other matters was imposed as had been originally imposed. So also with the requirement as to a visibility splay.
(viii) In July 2002, a further temporary planning permission was granted. This was to expire on 1 July 2005. There was no condition as to a visibility splay.
(ix) On 30 January 2004, the planning authority refused to make the temporary permission permanent for reasons to which I shall have to return. An appeal against that was dismissed. Again, I shall have to return to the reasons given by the planning inspector.
(x) In August 2005, a further short temporary planning permission for the bottling plant was granted. It was for the purpose of enabling a winding down of the operation. It expired on 8 February 2006, since when there has been no permission for a bottling plant, or indeed any other commercial use.
(xi) At around the same time, the company decided to relocate and exercised its option to break the lease as at November 2005.
(xii) On 15 August 2005, planning permission for the use of the premises as offices with ancillary storage was refused but solely on the highway/visibility ground.
[3] The Coles, in around 2001, started putting in fencing and planting shrubs on the land that forms part of what was the visibility splay. The consequence has been that the planning inspector, in his decision of 13 October 2004, concluded that “on the basis of existing sight lines I consider use of this access is potentially dangerous”. He went on to say: “I understand that there is no scope to improve the sight line to a satisfactory standard as the appellant [that is to say the Carters] has no control over the necessary land.”
[4] In these proceedings, the Carters claim that, by their works of fencing and the planting of shrubs so as to interfere with the visibility splay, the Coles have derogated from the grant of a right of way that they gave in 2000. The Carters claim a mandatory injunction requiring the Coles to restore the splay and damages.
Issues on this appeal
[5] There are three issues, namely whether:
(i) there was a derogation from grant;
(ii) if so, the judge was right to grant an injunction requiring the Coles to restore the visibility splay;
(iii) the judge was right in his calculation of damages in the sum of £35,831.05 and, if not, we can or should do our own calculation or remit the matter for a further inquiry.
Issue 1: Derogation from grant
[6] The language of the grant for a right of way is so far as is material:
A Right of way for all purposes but only as regards the Right of way by commercial lorries at times permitted by the conditions of the Planning Consent relating to the Retained land with or without vehicles whether of a commercial nature or otherwise over and along the Right of way… .
[7] The meaning was in the end common ground. There is a grant of a permanent right of way for lorries subject to the fact that they may not be used outside the times referred to in the planning consent. It will be recalled that both the initial temporary consent and the subsequent consent imposed those time limits. Mr Gary Cowen, for the Coles, did not argue that the right of way was granted only for the period of the temporary planning permission or that it would be limited to whatever conditions might be imposed in any future planning permission. In my judgment, he was right to do so. Any other construction would be something of a commercial nonsense.
[8] Nor did Mr Cowen dispute the general principles as to derogation from grant. They were summarised by Neuberger J in Platt v London Underground Ltd [2001] 2 EGLR 121, at p122F-G. There is no need to set out his summary here. It is sufficient to say that the heart of the principle is simply that one cannot take away with one hand that which has been given by the other. Mr Cowen invited us to pay particular attention to the seventh principle summarised by Neuberger J:
One test that is often helpful to apply where the act complained of is the landlord’s act or omission on adjoining land is whether the act or omission has caused the demised premises to become unfit or substantially less fit than the purpose for which they were let.
[9] Mr Cowen argued that it was not the act of interference with the splay that derogated from the grant of the right of way; rather, the insistence of the Highway Authority and the local planning authority that the respondents were not in a position to exercise control over the splay was the real cause of the problem with regard to access by lorries.
[10] He sought to contrast the facts here from those in Harmer v Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch 200. There, a landlord had granted a lease of some land for the purpose of an explosives magazine. The landlord then allowed (by a lease to the defendants) building and works to be done on nearby land. By reason of these, the licence for the magazine required by the Explosives Act 1875 was imperilled. It was held that the landlord was in derogation of his grant and that his lessee on the nearby land should remove the buildings and cease the works. Mr Cowen submitted that in contrast with this case, that case showed a direct causal link between the allegedly derogating acts and interference with the granted right. Here, he submitted, the cause of the loss was the refusal of the planning permission, caused not by the interference with the splay but the fact that the Carters had no control over it.
[11] I am unable to accept any of these submissions. If the Coles had not interfered with the splays, the planning inspector would not have found that the junction was dangerous, as he did. Nor would he have said that there was no scope to improve the sight lines, since his conclusion about that was based on the premise that the Carters had no control over the necessary land. That was wrong because the Carters had a right of way for commercial vehicles, including lorries, and it was the Coles who had no right to derogate from that which they had granted. So, the Carters did have control over the necessary land in the sense that neither the Coles nor any successor in title could interfere with the splay.
[12] Mr Cowen suggested that, somehow, the Carters’ case was pulling itself up by its own bootstraps. He submitted that there was a lacuna in the legal relationship between the parties that caused the planning authority to act as they did. However, that is entirely circular. The planning authority acted as they did because they thought the Carters could not provide suitable splays. Yet, suitable splays were essential for the exercise of the right of way that had been granted by the Coles. There is nothing in the nature of bootstrap logic involved here.
[13] Finally, Mr Cowen made a point concerning the fact that the 2002 permission did not contain a condition in respect of the splay. He submitted that this showed that the splay was not causally linked to the planning permission. I do not accept this either. What matters is what was known to the parties at the time of grant. Quite clearly, both knew about the condition in the planning permission at that time. So what was granted, and could not be derogated from, was a right of access for |page:17| lorries that itself required the splay as contemplated by both parties. The later permission without the condition is simply irrelevant.
[14] Accordingly, I think that the judge was right to conclude that there had been a derogation of grant on the part of the Coles.
Issue 2: Injunction
[15] Mr Cowen took us to the appeal decision by the inspector by which permanent planning permission for the bottling plant was refused in October 2004. It is unnecessary to go in to the exact language. The reasons for refusal were multiple. First, the inspector noted that one should not continue to grant a series of temporary planning permissions: either permanent permission should be granted after a first or perhaps second temporary permission or it should it be refused. In considering whether permanent permission should be granted, he concluded that it should not on several distinct grounds, namely: (i) that the noise and disturbance caused an unacceptable loss of residential amenity contrary to a number of policies; (ii) inadequacy of vehicular access to Langford Road; and (iii) the amount of noise and general disturbance was out of place and harmed the rural character of the area.
[16] Mr Cowen said that it followed that it was now clear that there would never be any permission for a bottling plant there. That, he submitted, was confirmed by a later refusal of such permission sought by the Carters that we admitted by way of fresh evidence. He suggested that it followed that the Carters suffered no damage whatsoever because interference with the splay in fact made no difference lorries would not be coming backwards and forwards in any event.
[17] I cannot accept this argument. It seems clear that there is a real prospect for planning permission for some sort of commercial use to be granted in respect of the spring water land even though probably not for a bottling plant, but only if the highway objection is removed. That emerges from the fact that, in 2005, the Carters were refused permission for office purposes simply on the ground of the inadequate splays. Had the splays not been interfered with and the right of the Carters to ensure that it was not interfered with had been recognised, there is at the very least a strong possibility that they would get some sort of planning permission. The Coles were not entitled to deprive the Carters of that prospect. The judge considered whether he should exercise his discretion to grant a mandatory injunction. He decided that “the retained land is completely stultified for any commercial user and that that was something that could or should be changed by the grant of an injunction”. He took the view that any further planning application should be decided on its proper merits and “not with a fait accompli being presented to the local authority”.
[18] These seem to me to be entirely proper reasons to take into account. I would not interfere with his exercise of discretion.
Issue 3: Damages
[19] The judge had meagre materials on which he made his assessment (“doing the best I can, to use vocabulary without which the County Court would hardly function”). What he had was as follows:
(i) That the rental under the lease (which did not include the right to the spring water covered by a separate royalty arrangement) was £16,000 pa.
(ii) That figure had been reached a long time ago.
(iii) After the tenants left, the respondents had some small use of the property.
[20] On the basis of that material, he decided that the appropriate amount of damages would be £15,000 pa. The period over which this ran was taken to be two years and 139 days from 1 February 2006, being the date on which the bottling company ceased paying rent, to the date by which the splay should have been reinstated.
[21] Mr Cowen attacked that reasoning as inadequate. He submitted that it is quite wrong to work on the basis of the rent for the bottling plant because it is now clear that there: (i) never could be another bottling plant; (ii) is no evidence as to what, if anything, could be obtained for rent for mere offices; and (iii) has been no deduction for the costs of finding a new tenant or for the fact that maybe the Carters may have had to pay tax on any rent. All in all, he submitted, the thing to do is to remit the matter for an assessment of damages.
[22] He did not ask for such an assessment at trial or for an adjournment for such an assessment. I take the view that it would be disproportionate to allow this litigation to proceed to a yet further fight over what, on any view, would be a smallish amount of money, particularly in respect of the costs incurred so far.
[23] Accordingly, I think that we, like the judge, should do the best we can on the materials available. I take Mr Cowen’s point that the rent for a bottling plant is not itself likely to be a good guide for some other use. On the other hand, there is also the point that the rent itself was fixed a long time ago. Moreover, the rent is, I think, a rough guide as to an upper limit. Working roughly, as one has to unless the costs are to become disproportionate, I would take a much-discounted figure of £8,000 pa as appropriate for the commercial use of which the Carters have been deprived. As to the period, I would take into account the fact that the planning authority refused permission for office use in August 2005 and work on the basis that very probably permission would have been granted. So, the use could have begun as soon as the bottling company left if there had been no interference with the splay. Hence, the starting point is the same as that taken by the judge — 1 February 2006. As to the period, that will run until the splay is restored and planning permission can be obtained. We are now just more than three years on from the date on which planning permission would have been obtained, so, in my view, we should take a longer multiplier than that taken by the judge. I would take four years, which brings one to a total of £32,000. There is, I think, some considerable force in Mr Cowen’s points concerning the costs of reletting (which may also include some costs of alterations and the like) and I would make a deduction in respect of that of £12,000.
[24] One matter in respect of which I would not make any deduction relates to a letter of 27 January 2008 from the highways manager of Essex County Council. It was concerned with an application for office use. The objection was the usual one based on the absence of a splay. However, the letter went on to say:
No objection would be made to offices that operate in conjunction with the works on the site but if a proposal were to be made for offices as a stand alone proposal then this would be objected to on the grounds of being unsustainable in line with Government Guidelines.
[25] There are two reasons why this document has little weight. It is from Essex Council, which are not the planning authority and we know that the planning authority’s only objection to purely office use was the absence of the splay. Moreover, the Carters would be able to argue that it would not be a sustainable use of resources to leave the building and the spring water site empty and unused.
[26] True it is that my calculation is both speculative and rough and ready but it is the better course to take than sending this case off for a separate assessment.
[27] The upshot is that I will reduce the damages awarded to £20,000. There may be an element of interest to be added to that, a matter that can be dealt with, if necessary, in any written submissions.
[28] In the result, I would dismiss this appeal, save as to the quantum of damage that I would allow to the extent of changing the sum to £20,000.
Sullivan LJ said:
[29] I agree.
Laws LJ said:
[30] I also agree.
Appeal allowed in part.
