CP Holdings Ltd v Dugdale and others
Plaintiff exercising option to acquire vehicle way over disused railway line – Defendants later buying line with intention of resuming intermittent railway use – Whether defendants entitled to construct a level crossing
Branching from the Birmingham to Derby railway, a five-mile single-track line (the line) had, until its closure, served collieries at Kingsbury and at Baddesley where the line terminated. In 1987 the plaintiff bought the Kingsbury site, intending to recover usable coal from the spoil (coal washing) and thereafter develop 41 acres as a business park. Neither project could be linked to the highway system without obtaining from the line owner (BR) a right for vehicles to pass over the disused line. Negotiations led to a formal agreement in October 1992, at which time there was no real prospect of the line being reopened. By the agreement, BR granted to the plaintiff a licence, for an annual fee, to cross and recross the line during the coal washing period. The licence could be terminated: (i) by BR on giving three months’ notice, but only if it intended to reopen the line; (ii) by the plaintiff on giving three months’ notice; (iii) by BR giving immediate notice once development had started. In any of those events the plaintiff had the option of purchasing for the sum of £220,000 the grant of a permanent easement, giving it ” the right . . . at all times to pass and repass with or without vehicles to and from the Dominant Land . . . over and along the access way (being the . . “Servient Land”) . . . for all purposes connected with the use and enjoyment of the Dominant Land . . . “. Because the line had not been formally closed, BR insisted “as a technical necessity” on the insertion of an undertaking by the plaintiff to bear the cost of building a level crossing if a permanent easement was taken.
Over the following two years BR announced the formal closure of the line and arranged for the removal of the rails and ballast. In early 1995 the plaintiff, having almost completed its coal washing operation, began to market plots in the intended business park. On June 1 1995 two deeds were executed by the plaintiff and BR. The first amended the 1992 agreement by removing the level crossing undertaking. The second was a grant of a permanent easement, substantially in the form agreed in 1992.
Plaintiff exercising option to acquire vehicle way over disused railway line – Defendants later buying line with intention of resuming intermittent railway use – Whether defendants entitled to construct a level crossing Branching from the Birmingham to Derby railway, a five-mile single-track line (the line) had, until its closure, served collieries at Kingsbury and at Baddesley where the line terminated. In 1987 the plaintiff bought the Kingsbury site, intending to recover usable coal from the spoil (coal washing) and thereafter develop 41 acres as a business park. Neither project could be linked to the highway system without obtaining from the line owner (BR) a right for vehicles to pass over the disused line. Negotiations led to a formal agreement in October 1992, at which time there was no real prospect of the line being reopened. By the agreement, BR granted to the plaintiff a licence, for an annual fee, to cross and recross the line during the coal washing period. The licence could be terminated: (i) by BR on giving three months’ notice, but only if it intended to reopen the line; (ii) by the plaintiff on giving three months’ notice; (iii) by BR giving immediate notice once development had started. In any of those events the plaintiff had the option of purchasing for the sum of £220,000 the grant of a permanent easement, giving it ” the right . . . at all times to pass and repass with or without vehicles to and from the Dominant Land . . . over and along the access way (being the . . “Servient Land”) . . . for all purposes connected with the use and enjoyment of the Dominant Land . . . “. Because the line had not been formally closed, BR insisted “as a technical necessity” on the insertion of an undertaking by the plaintiff to bear the cost of building a level crossing if a permanent easement was taken.
Over the following two years BR announced the formal closure of the line and arranged for the removal of the rails and ballast. In early 1995 the plaintiff, having almost completed its coal washing operation, began to market plots in the intended business park. On June 1 1995 two deeds were executed by the plaintiff and BR. The first amended the 1992 agreement by removing the level crossing undertaking. The second was a grant of a permanent easement, substantially in the form agreed in 1992.
In August 1996 the defendants, who owned the Baddesley site, bought the line from BR with a view to reinstating it as a railway for the purpose of transporting imported cars, two or three times a day, to a depot to be constructed on their site. The defendants insisted that the plaintiff (unless willing to bear the cost of building a bridge) was bound to accept the presence of a level crossing. The plaintiff sought a declaration that the construction of such a crossing would amount to an actionable infringement of the easement.
Held The declaration was granted.
1. As a general rule, as implicit in the expressions “servient” and “dominant”, a conflict between the use of the land and the enjoyment of the easement should be resolved in favour of the owner of the easement. It was accordingly pertinent to observe that operationally the trains could not be made to wait for the road traffic. It followed that, although the words “at all times” were not conclusive, it was significant that BR had not expressly reserved the right to run trains, an omission which could not be remedied by claiming that a level crossing would still leave the plaintiff with reasonable access: see Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204.
2. The grant of the easement immediately after the deletion of the level crossing undertaking was consistent with a common assumption that no such crossing was contemplated, an inference further supported by the physical and legal state of the line in 1995. In the face of those indications, an intention to revert to railway use could not be inferred from the fact that the first mode of termination in the 1992 deed (which had never been seen as a real possibility) had not been removed by the amending deed.
Colin Brodie QC and Christopher Young (instructed by Bracher Rawlins) appeared for the plaintiffs; John Martin QC and Caroline Furze (instructed by Dibb Lupton Alsop, of Birmingham) appeared for the defendants, Thomas Joshua Stratford Dugdale, James George Chisholm Wallace and Park Top Ltd.
