Land for development — Right to park reserved on retained land — Additional land acquired bordering on retained land — Land capable of benefiting from rights — Transfer of retained land to defendants — Plaintiff seeking right to park thereafter on retained land — Whether successors in title bound — First instance decision in favour of defendants upheld on appeal
The plaintiff acquired from C land in Leicester ripe for development in 1987 (“the transferred land”). It was expressed to be transferred together with all easements including a right of way. Land was retained by the transferor, C, (“the retained land”) and para 7 of the first schedule provided that there would be a right to park on any part of the retained land set aside as a car park. The transferred land was expressed to include any other land if “such land is capable of being benefited by the rights hereby granted” and “notice is given … within five years … that such land was to be included in the transferred land for the purposes of the schedule”. Also in 1987 the plaintiff contracted to purchase additional land (the “additional land”) bordering on the retained land. Thus, the plaintiff, as original transferee, contracted to purchase the additional land, capable of benefiting from the rights in the first schedule, before C transferred the retained land. However, it was only after that transfer that the plaintiff gave notice that the additional land was to be included in the transferred land for the purposes of the schedule.
Part of the transferred land, as well as the retained land, was sold to the defendant which developed it into a retail park with a large car park. The plaintiff sought a declaration that there was a right to park on the retained land in favour of the additional land. The claim was dismissed at first instance. The judge held that no interest in land had been created because, before there was a dominant tenement, the servient tenement had been disposed of by the grantor. The plaintiff appealed arguing, inter alia, that it had been the plain intention of C and the plaintiff that the rights should extend to any of the retained land in respect of which the defendant had acquired with notice of the registered rights. In other words an interest in land had been created which, when registered, bound successors in title to the servient tenement.
Held The appeal was dismissed.
1. The law required that there should be a dominant tenement before there could be a grant, or a contract for the grant, of an easement sufficient to create an interest in land binding successors in title to the servient land. That requirement had arisen because of the policy against encumbering land with burdens of uncertain extent. Certainty in matters relating to the title to land was of prime importance: see Ashburn Anstalt v Arnold [1988] 1 EGLR 64.
2. With regard to the question of notice, it was an express condition that not only should land capable of being benefited be acquired, but also notice of it had to be given. Until the notice had been given, the dominant tenement had not been identified. Thus, the court concluded that: (a) the grant of the right to nominate land as the dominant tenement did not create an interest in land which bound successors in title to the servient tenement; and (b) no interest in land binding successors in title to the servient tenement arose on the acquisition of the additional land by the plaintiff.
Sir William Goodhart QC and Michael Kennedy (instructed by Marron Dodds, of Leicester) appeared for the plaintiff/appellant; Gavin Lightman QC and Michael Briggs (instructed by Titmuss Sainer & Webb) appeared for the defendant, LPC.