Private road — Access — Rights and liabilities — Transferees covenanting to contribute to cost of repairs etc — Whether covenant entitling landowner to demand contribution to upgrading works — Whether upgrading interfering with access — Claims allowed in part
Two actions were tried together because they both concerned disputed rights and liabilities over a private roadway.The claimant company in the first action was the freeholder of the road together with certain adjoining land. Access over the road was enjoyed by S, who had acquired the land on the east side from the claimant’s predecessor (the first defendant in the second action), and by the defendants in the first action (who were also the claimants in the second action) (the Hs) who owned the land to the south (the H land).
The disputed roadway had been considerably widened and reconstructed since the Hs had acquired their right of way in 1979, when it was merely a dirt track. An express right of way had been granted subject to the payment of one-half of the cost of maintaining, repairing and resurfacing the road.
The claimant company wanted to purchase the H land for redevelopment. It took a tough commercial position with the Hs, which affected the use of the disputed road. It also claimed a contribution from them towards the cost of resurfacing the road, even though, 2002, it had carried out upgrading work that went beyond what could reasonably be described as repair, maintenance and/or resurfacing under the terms of the 1979 transfer.
By the second action, the Hs sought to establish the extent of their right of way prior to the 2002 upgrading works and whether those works constituted an actionable interference with their access.
Held: The claims were allowed in part.
On the true construction of the 1979 transfer, if no expense had been incurred for what could fairly be described as repair, maintenance and resurfacing within the terms of the covenant, the obligation to contribute did not arise. Liability did not arise merely because works had been done that avoided the need to repair the road.
The claimant could charge only for those elements of the work that would have been incurred had the road been repaired in accordance with the covenant, and not for work that would have had to be done had the road been so repaired but which was avoided by its upgrading: Scott v Brown (1904) 68 JP 89, Fluor Daniel Properties Ltd v Shortlands Investments Ltd [2001] 2 EGLR 103; Postel properties Ltd v Boots the Chemist Ltd [1996] 2 EGLR 60; [1996] 41 EG 164 and Scottish Mutual Assurance plc v Jardine Public Relations Ltd [1999] EGCS 43 considered.
As to what repairs had been necessary or advisable in 2002, the test was what a prudent landowner would reasonably have undertaken if it had had to bear the cost itself. Since the 2002 works included resurfacing with asphalt and bitumen, the claimant was entitled to recover 50% of the cost of that element of the works: Plough Investments Ltd v Manchester City Council [1989] 1 EGLR 244 considered.
If liability for any repair costs was established, there was no basis for a reduction because of any omission on the part of the landowner to repair the road previously. The owner was not obliged to repair the right of way absent, as here, any positive covenant to do so: Carter v Cole [2006] EWCA Civ 398.
However, the Hs were not liable for the cost of removing rubbish that had unreasonably and improperly been allowed to build up and block the road or for the installation of gates where none had existed previously: Sedleigh-Denfield v O’Callaghan [1940] AC 880; Hilton v James Smith & Sons (Norwood) Ltd [1979] 2 EGLR 44; (1979) 251 EG 1063 and Morgan v Stainer [1993] 2 EGLR 73 considered.
With regards to the second action, the Hs had to contribute to those parts of the current carriageway over which they already had an express or prescriptive right of way. They had consented to the roadworks and their failure to object at the time prevented them from complaining now.
Nicholas Dowding QC (instructed by Payne Hicks Beach) appeared for the claimants in the first action/defendants in the second action; David Holland (instructed by Cripps Harries Hall LLP, of Tunbridge Wells) appeared for the defendants in the first action/claimants in the second action.
Eileen O’Grady, barrister
