A Cambridgeshire farmer has been granted access rights over land owned by Persimmon Group subsidiary Beazer Homes in order to construct a bypass.
Landowner Peter Stroude has won a High Court declaration allowing him to enter onto Beazer’s land, which adjoins his farm at Longstanton, in order to build a public road around the village.
Warren J said that Stroude required access to the land to fulfil “joint obligations” owed by him and Beazer to the local highway authority after they were granted planning consent, in the 1990s, for a large mixed-use development.
In 1995, Beazer had purchased a segment of Stroude’s farm for a scheme comprising 21ha of housing and a 6.3ha business park. The planning consent required them to build the bypass, part of which would run over land belonging to a third party.
After Beazer bought the third-party land in 2000, Stroude entered a caution against the title on the basis that he had a right to enter for the purpose of building the bypass.
He claimed that, as one of two persons subject to the concurrent obligation to build the bypass, he was entitled to start work without having to wait to be sued by the highway authority, Cambridgeshire County Council.
In granting the declaration, Warren J said that the commitment owed by the parties to the council created a “joint obligation” to construct the bypass once necessary approvals had been obtained and the relevant traffic orders made.
“Each estate owner should have an implied right of access to each of his co-obligers’ land for the purpose of complying with their concurrent obligation,” he said.
“It is, in my judgment, not an answer to that conclusion to say that there is simply no need to introduce such a term because [the council] themselves can enforce the covenants. That may, at the end of the day, produce a similar result but it is hardly consistent with any concept of business efficacy.”
The judge added that Stroude’s rights of access were “proprietary in nature” and were capable of creating an easement for the benefit of the property even though the highway would be used for general public use.
Stroude v Beazer Homes Ltd and others Chancery Division (Warren J) 25 November 2005.
Gregory Hill (instructed by Marrons, of Leicester) appeared for the claimant; Timothy Fancourt QC and Edward Peters (instructed by Nabarro Nathanson) appeared for the defendants.
References: EGi Legal News 28/11/05
