Right of way – Access – Private motor vehicles – Deed of transfer granting defendants right of way over access road – Claimant neighbour alleging defendants failing to observe restriction in relation to use by private motor vehicles – Claimant seeking damages and injunctive and declaratory relief – Whether right of way limited solely to vehicles owned and used by defendants for domestic purposes only – Whether use permitted for any purpose in connection with use of land as private dwelling – Claim dismissed
The claimant was the freeholder of a property which he purchased in 2009. The defendants had been the freeholders of nearby Walnut Cottage since 2014. Both properties were located off a long, quite narrow private single access lane near Bledlow Ridge in Buckinghamshire. The lane was the only conventional means of access to both properties.
In 1993, the then owners had divided up and sold the land on which both properties were located and granted the purchaser of Walnut Cottage a right of way on foot, and with or without private motor vehicles, along the lane. By the deed of transfer, the purchaser covenanted, amongst other things, “not to carry on or permit any trade business or profession” on the property transferred.
It was accepted that those rights and obligations bound (and benefited) the defendants but a dispute arose as to what the right of way permitted. The claimant alleged that the defendants had failed to observe the restriction in relation to the user of the lane because there had been long-standing misuse of the lane by agents of the defendants in the form of heavy plant and machinery and HGVs.
The claimant said that the surface of the lane had been damaged, along with trees and verges, and claimed damages as well as a final injunction and a declaration that the deed had been breached; and that its true meaning was that the user was restricted to access by private motor vehicles wholly owned by the defendants on a private basis. The injunctive relief sought restricted vehicular access other than by way of private motor vehicles, namely those within the private ownership of the defendants and capable of use for domestic purposes only.
Held: The claim was dismissed.
(1) The court’s task was to ascertain the objective meaning of the language of the grant, performing a process which considered the purpose of the contract as a whole and, depending on the nature, formality and quality of the drafting, giving more or less weight to elements of wider context. Here, there was a professionally drafted grant of a right of way which was part of a transaction which expressly provided that the property to which the lane led was to be used only as a private dwelling and not for any business, trade, etc. The lane was the means of access to the dwelling and the express provisions as to user of the land provided a very clear indication of the purpose of the contractual relationship.
Where rival meanings were contended for, the court could give weight to what the rival constructions would mean for basic business common sense and efficacy. That was a task which primarily had at its core any indications as to the purpose of the grant and the transaction of which it formed part. The physical features of the land were also a guide to construction and the circumstances known to the parties included the nature of the lane itself. A construction which was practically impossible given the facts on the ground would obviously be contraindicated: Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 3 EGLR 119, Arnold v Britton [2015] UKSC 53; [2015] EGLR 53 and Pennock v Hodgson [2010] EWCA Civ 873; [2010] PLSCS 223 considered.
(2) In the present case, the court was not assisted by examples of usage of the expression “private motor vehicles” in other very different contexts outside the context of this grant: Waterman v Boyle [2009] EWCA Civ 115; [2009] 2 EGLR 7 considered.
The use of the expression “private motor vehicles” in the right of way had to be construed to mean “vehicles using the lane for the purposes of the use of the private dwelling on this land”, because the road was clearly suitable for the sorts of typical vehicles one encountered in everyday life at a dwelling such as postal deliveries. The purpose of the grant of the land (served only by the lane) was for a private dwelling and it would be inconsistent with the grant and basic commercial efficacy if one could not have the usual and customary forms of access, such as for repairs to ensure the property remained useable for the demised purpose. The express restrictions on user for commercial purposes did not bite on such things as visiting tradespeople since that was not the use of the dwelling for commercial purposes.
(3) However, to interpret the grant as permitting use of the lane by vehicles for absolutely any purpose as long as it was connected with the use of the land as a private dwelling went too far. The grant of the right of way did not positively permit such very substantial use, and such use was not necessary to imply to avoid derogation from the grant, or to avoid the right of way contradicting the purpose of the contract. Access for repairs, for deliveries and for all the usual access one needed for maintenance and use of a property as a private dwelling were necessary and consistent with the grant and the wording of the deed, but use for purposes which were not necessary for continued user of the dwelling as a dwelling (such as significant improvements and new construction) were not implicitly within it.
The test was that the purpose of the use was either the use of the dwelling as a private dwelling, such as arriving home from work or to visit the defendants at home socially, or for access necessary to ensure the dwelling and the land on which it was situated remained able to be used as a private dwelling. Demolition and construction of annexes, libraries, swimming pools or any other works of substantial improvement were not necessary to the normal use of the property as a dwelling. One would expect the defendants to seek permission for such use and in a neighbourly fashion pay for repairs if permitted extra access caused damage.
Rupert Cohen (instructed by JB Leitch Ltd) appeared for the claimant; Timothy Hammond (instructed by DWFM Beckman Solicitors) appeared for the defendants.
Eileen O’Grady, barrister
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