Application under section 245 of Town and Country Planning Act 1971 to quash decision of inspector dismissing appeal against refusal of planning permission–Permission sought for provision of means of access to applicant’s land across grass verge forming part of a common–Planning authority’s requirement of proper visibility splays–Question whether applicant had such rights over verge as to enable him to provide splays–Applicant unable to establish such entitlement–Refusal of application upheld
In these
proceedings, the applicant, Andrew Bickford Hayns, the owner of land at
Chipperfield, Herts, sought to have quashed the decision of an inspector
appointed by the Secretary of State for the Environment to hear and determine
an appeal against the refusal of the planning authority to grant permission for
the construction of a means of access to the applicant’s land from a highway
now called The Common, formerly known as Chipperfield Callipers Hall Road.
Norman Wise (instructed
by L O Glenister & Sons, of Eastcote, Middlesex) appeared on behalf of the
applicant; Harry Woolf (instructed by the Treasury Solicitor) represented the
first respondent, the Secretary of State for the Environment. The second
respondents, the planning authority, were not represented and took no part in
the proceedings.
Giving
judgment, SIR DOUGLAS FRANK said: This is an application under section 245 of
the Town and Country Planning Act 1971 to quash a decision by an inspector
appointed by the first respondent to hear and determine an appeal against a
refusal of a planning permission. The applicant is owner of the land at
Chipperfield in Hertfordshire. Between the frontage of his land and the
highway, a road now known as The Common [sic], there is a grass verge which is
not part of the highway but forms part of Chipperfield Common. The applicant
was minded to have a means of access from The Common across the grass verge to
his land in preference or in addition to other presumably less commodious existing
means of access. He applied for planning permission which was refused on
grounds which are not before me.
The first
respondent appointed A J Bingham, one of his inspectors, to hear and determine
the appeal, and he held an inquiry on June 9 1976. From his decision letter,
which is dated June 29 1976, it is clear that he came to the conclusion that
there was no objection to the means of access on amenity grounds, but he found
that the planning authority was right in requiring proper sight visibility splays
in accordance with the recommended standards. These are 15 ft by 300 ft (4.5m
by 91m) triangles in both directions. These are standard requirements for means
of access in this type of situation. So the question arose whether the
applicant was in a position to provide those splays, that is to say whether he
was in a position to ensure that the visibility from 15 ft back and 300 ft in
both directions would be unimpeded. The planning officer had asserted that
though the sight line required would be unimpeded by any obstruction such as
trees or shrubs or any other means that would interfere with the sight line,
the land concerned was not under control of the applicant.
After the end
of the hearing the inspector had asked to see copies of the title deed upon which
the planning officer had based his assertion that the second respondents were
the owners of the verge, with the effect that it was not within the control of
the applicant. During the course of the inspection which followed the hearing
the inspector was handed a copy of a conveyance of the whole of Chipperfield
Common made on October 1 1936 and he took care to ensure that the chartered
surveyor representing the appellant was supplied with a copy and that was done
within two days. It is right that I should point out that nowhere, so far as I
have been able to ascertain, was it contended on behalf of the applicant that
he had the control of the land required for the visibility splays. And although
the copy of that title deed was sent to the chartered surveyor there was no
rejoinder by him or by any other person representing the applicant to the
effect that that assertion by the planning officer was wrong. The inspector
concluded that the conveyance confirmed the contention that the land concerned
was under the control of the second respondents.
I now consider
Mr Wise’s argument based on the 1936 conveyance. It was in fact a conveyance of
the whole of Chipperfield Common to the predecessors of the second respondents,
but the conveyance was subject to and there was reserved out of the grant
a right for
the vendors jointly and severally and for any person or persons authorised by
them or either of them and for his or their successors in title and assigns to
construct repair and use from time to time with or without horses carts
carriages and motor cars any road or pathways and to lay thereunder sewers
drains electric light and gas and water mains required for the use or
development of any property now belonging to the vendors or either of them
adjoining the said Common across such portions of the said Common as lie
between the Chipperfield Callipers Hall Road and such property then belonging
to the vendors as aforesaid and between the Chipperfield Belsize Road and such
property as aforesaid.
I am told, and
I accept, that Chipperfield Callipers Hall Road is now known as The Common,
which is the highway to which the appellant requires direct access. Mr Wise
argues that the reservation out of the grant of the right-of-way, the regrant
as he prefers to call it, was such as to carry with it such ancillary rights as
would be necessary in order to exercise that grant in today’s conditions. He
says one such ancillary grant would be the control over the land required for
visibility splays, because he says without that control the grant cannot today
be exercised. He cites a number of cases which he said support that conclusion.
For my part, however, I do not think that there was any such ancillary grant
implied
general proposition where there is a grant of an easement there are deemed to
be also granted such rights as are normally incidental to the easement, but
such rights are normally incidental and are such as to be physically necessary
to exercise the easement. I do not think that this is any such case. In my
judgment where there is a grant of a right-of-way there is not to be assumed as
incidental to that right any control to be given to the owner of the dominant
tenement for the purpose of complying with modern town planning standards. I
would say that that is true today. It was certainly true at the time of this
grant in 1936 at which time such requirements of visibility splays were
unknown.
Mr Wise
referred to VT Engineering Ltd v Richard Barland & Co Ltd
(1968) 19 P & CR 890. There the landlord granted to his tenant a
right-of-way at all times and for all purposes over a roadway leading to the
tenant’s premises. The question was whether the landlord was entitled to erect
such a new building as would limit vertically the size of vehicle which could
be used. On the facts it was held that while to require lateral swing space of
indefinite dimensions would be unjustifiable the tenant’s entitlement to
vertical swing space in a right-of-way previously open to the skies would be
severely curtailed in a tunnel 9 or 10 ft high. Accordingly an injunction was
granted. That seems to be a long way from the present case. I draw particular
attention to the judgment at p 895 where the learned judge says:
I can well see
that on the grant of a right-of-way the grantor must accept that over the way
granted he cannot thereafter exercise rights which materially interfere with
the enjoyment of the easement. It may perhaps be that he must allow some degree
of tolerance for wide loads, so that he cannot fence or build up to the very
edge of the way granted, but must leave a freeboard of a foot or two,
particularly if there are bends in the way. . . . But that is very different
from saying that the grant of a way may in effect sterilise a strip of land of
indefinite depth on each side of the way, depending on the loads and methods of
loading from time to time adopted. This seems to me to go far beyond any
necessary or reasonable expectation or implication; and quite apart from the
absence of authority on the point, it seems to me that such a right would or
might subject the grantor to a quite unjustifiable burden. I accordingly reject
such a claim.
It seems to me
that in the present case what the applicant is saying is that that grant of
easement carried with it a sterilisation of a very considerable area of other
land outside any right-of-way, and would certainly place an unjustifiable
burden on the grantor. I appreciate that this is common land to be used for
open-space purposes, but the control would effectively prevent, as is the
intention of a visibility splay, the planting of any trees or any shrubs of
more than a very limited height, and I think that would go far beyond any
incidental right to be annexed to an easement of that kind. So I have little
doubt that a grant of a right-of-way does not carry with it an implied grant of
such rights as are necessary for the grantee to exercise the right by the
provision of visibility splays.
That would be
sufficient to dispose of the matter, but the question arises, if I had decided
otherwise, whether there was evidence before the inspector that the present
applicant (to quote from the easement) ‘was the owner of any property now
belonging to the vendors,’ that is to say whether he, the applicant, is the
owner of property which belonged to the vendors in 1936. Mr Wise properly
concedes that at the inquiry the appellant did not prove any title as successor
to the vendor of 1936, but he said that there was presumptive evidence to put
the inspector on the alert, and he should have seen that the applicant owned
adjoining land and looked at the proposed access in the context of the 1936
conveyance and at all the circumstances; and from that he should have concluded
that the applicant was successor to the 1936 vendor. I do not agree. There was
nothing at the inquiry which could have enabled the inspector to take the view
that the applicant was entitled to the benefit of the 1936 conveyance, and
indeed it does not seem to have been represented to him that the applicant was
so entitled. I would have thought that, if there were a burden here, the burden
was on the applicant to make out his entitlement and indeed he would have no
doubt had a further opportunity after the inquiry having been sent a copy of
the conveyance. There is no evidence before me, and there was no evidence
before the inspector, that the land now owned by the applicant was then owned
by the vendor. On that ground in any event I would hold that the inspector’s
decision was right. In fact, it seems to me that he went out of his way to try
to get it right. If there were any failure here it was on the part of those
representing the applicant.
Finally I
should say this. Mr Wise made a plea ad misericordiam, saying that in
effect there was no objection on the grounds of amenity. All that was required
was this visibility splay, and the second respondents, they being in a position
to provide it, are being difficult. Of course I do not know sufficient of the
facts, whether they are justified in adopting an obstructive attitude, if
indeed they are. They would be quite wrong, I would have thought, to refuse to
co-operate unless they have good reason for not preserving the sight lines, but
really it is nothing to do with me. It is a matter for the second respondents
as owners of the land concerned.
In the
circumstances the appeal must be dismissed.
The appeal
was dismissed with costs.