Easement – 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 – Appellants interfering with visibility splay – Subsequent refusal of planning permission for bottling plant – Whether interference with splay amounting to derogation from grant – Whether injunction appropriate – Amount of damages – Appeal allowed in part
In 2000, the respondents sold most of their land, including a house, to the appellants. They retained a small area of land that contained a natural spring water well. That land was subject to a lease that the respondents had granted to a company in 1996 for a term of 20 years. The lease provided a right of way from the spring water land, over the land that was sold to the appellants, to the main road in order to access a spring water bottling facility that the company was starting up. The right allowed access by lorries as permitted under the relevant planning permission.
The bottling facility operated under a series of temporary planning permissions granted in 1996, 1999 and 2002. The first two of those contained a condition as to the provision of a visibility splay at the junction with the main road for purposes of highway safety. In 2001, the appellants erected fencing and planted shrubs on part of the land that formed the visibility splay.
In 2004, an application for a permanent planning permission was refused by an inspector on the ground that the existing sight lines made the access to the plant potentially dangerous. he was of the view that they were unlikely to be improved to a satisfactory standard since the respondents did not control the necessary land. 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, the judge 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. They contended that, inter alia, it had not been their act of interference with the splay that had derogated from the right of way but, rather, the planning authority’s insistence that the respondents were not in a position to control the splay.
Held: The appeal was allowed in part.
(1) When the right of way was granted, both parties had been aware of the condition in the planning permission that was then in force. Accordingly, what was granted, and could not be derogated from, was a right of access for lorries necessitating a splay as contemplated by both parties. All suitable 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 inspector had been wrong to find that the respondents did not exercise control over the necessary land. They exercised control in the sense that they had a right of way for commercial vehicles, including lorries, from which the appellants had no right to derogate, such that neither the appellants nor any successor in title could interfere with the splay. Had the appellants not interfered with it, the inspector would not have found that the junction was dangerous. That interference amounted to a derogation from grant.
(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 was 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) The rent for a bottling plant, upon which the judge had based his assessment of damages, was not a good guide as to the commercial use of which the respondents had been deprived, in the light of fresh evidence that indicated that no further permission for a bottling plant would be granted. Instead, a much discounted figure should be applied. Taking that and other matters into account, including the possibility that the land could be used for offices, the appropriate award of damages was £20,000.
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) appeared for the respondents.
Sally Dobson, barrister
