Land – Right of access – Interference – Dispute arising between neighbours – Respondent claiming right to go on to appellants’ land to read meters or inspect flank wall to see if repairs needed – County court finding in respondent’s favour – Appellants appealing – Whether respondent entitled to access for purpose of inspection to exercise express right of maintenance, repair and decoration – Whether respondent entitled to access to read gas and electricity meters – Whether property extension overhang constituting trespass – Appeal dismissed
The appellants and the respondent were neighbours who lived respectively at 98 and 96 Bexhill Road, Davenport, Greater Manchester. Both properties were detached houses on a housing estate developed in the late 1980s. The gas and electricity meters for 96 were set into the flank wall that was built along the boundary with 98. A driveway ran beside the wall on 98’s side of the line. The transfer of number 96 to the respondent’s predecessors had included two rights in their favour. Paragraph 3 of the first schedule to the transfer provided the right for the respondent “to erect and maintain … gutters and downspouts on buildings for the time being erected on the property transferred so that the same overhang and discharge surface water onto adjoining land …”. Paragraph 4 provided for the right “to enter with workmen tools and materials on adjoining land … for the purpose of effecting such maintenance repair and decoration”.
A dispute arose between the parties because the appellants considered that the respondent had no right to go onto their land to read the meters or to inspect the flank wall to see if any repairs were needed and objected to the gutters on a short extension to the porch of number 96 overhanging the airspace to their property. To resolve the dispute, the respondent issued proceedings in the county court for declarations as to her rights and an injunction to prevent the appellants interfering with them. The recorder found in her favour on all points, and made declarations and injunctions accordingly. The appellants appealed.
Held: The appeal was dismissed.
(1) A right of inspection to determine whether works of maintenance, repair or decoration were required was necessary to make effective a right of access to carry out those works. It would be absurd if there were no right to inspect the property. The respondent was not required to wait until damp had penetrated to her interior walls before seeing whether the flank required repair, nor was it right to say that the property could be inspected from the road. Even if not expressed in paragraph 4, a right of inspection was a necessary implication. The dictionary definition of “maintenance” was to “keep (a building, machine or road) in good condition by checking or repairing it regularly”. That was the correct reading of “maintenance”.
(2) Maintenance, repair and decoration of a house did not obviously include reading its meters. However, the developer had positioned the meters on the boundary wall. It could not have been the intention that the purchasers of 96 and their successors in title would be unable to read the meters. That would be absurd. The law would imply a term into a contract, where, in the light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties. Even if a right of access to read the meters was not spelt out in paragraph 4, it was implicit in the transfer: Moncrieff v Jamieson [2007] UKHL 42; [2007] PLSCS 201applied.
(3) The appellants’ argument that the right conferred by paragraph 3 of the first schedule extended only to the house and other buildings in the form they were constructed, or being constructed, at the date of the transfer was rejected. The words “for the time being” in paragraph 3 envisaged, and intended to encompass, a changing state of affairs. Such words normally referred to the state of facts which might exist in the future as well as the state of facts at the time. On that basis, they extended to extension of any structures on the property of 96, whenever built: Department for the Environment, Food and Rural Affairs v ASDA Stores Ltd [2003] UKHL 71 applied.
(4) The question whether the presence of a locked gate at the entrance to the appellant’s driveway constituted a substantial interference with the respondent’s rights was a question of fact. The recorder had noted that, upon installation of the gate in or around 2003, the appellants had repeatedly refused the respondent’s requests to access their land for the purposes of repair and maintenance or to read her meters. There was no basis for interfering with the recorder’s finding that the appellants had behaved in a way that amounted to a substantial interference with the exercise by the respondent of her rights of access.
David Nicholls (instructed by the Bar Pro Bono Unit) appeared for the appellants; Joshua Shields (instructed by Stephensons Solicitors LLP) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Dickinson and another v Cassillas.
