Express grant of roadway to give access to highway – Unclear whether granted for all purposes – Whether permissible to refer to recitals – Whether grant carried ancillary right to maintain visibility splays in order to comply with planning highway safety condition – Whether permissible to construe grant in the light of extant planning conditions
Land acquired by the plaintiff in December 1970 (the dominant land) lay to the east of Guildford Road, near Chobham, Surrey, from which it was separated by part of a common (the servient land) over which manorial rights were exercisable by the defendant council in their capacity asf Lord of the Manor of Chobham. For many years prior to its acquisition by the plaintiff, the dominant land had been used as a brick and tile works. By a discontinuance order made on September 3 1970 it was declared that such use should cease. The same order granted planning permission for a storage building to be erected on the dominant land, subject to the condition that access should be afforded by a new roadway over the servient land and that, in the interest of highway safety, sight lines should be provided at the junction with Guildford Road (thus forming a triangular clearing), beyond which no obstruction over 18 in high would be permitted.
On June 12 1972, at a time when work on a new warehouse was being completed, a deed was made between the parties, the recitals to which declared: (i) that the plaintiff had applied for the right to construct an access road with a right of way thereover “at all times and for all purposes with or without vehicles”; and (ii) that the council had agreed “to grant such right”. By clause 1 the council purported to grant “the undermentioned rights to be appurtenant to the Grantee’s land as used and occupied at the date hereof for the purpose it now is”. The provisions that followed included “full right of way for the Grantee [and others] to pass and repass at all times and for all purposes . . . across the Common to Guildford Road”. Dotted lines on the annexed plan (the deed plan) showed visibility splays to the north and south of the roadway.
At all material times thereafter the warehouse was used as such by a lessee of the plaintiff. The parties fell into dispute when the plaintiff applied for planning permission to develop the dominant land for residential purposes. The council (claiming as servient owners) maintained: (i) that use was limited to the purposes to which the land was put at the date of the deed; and (ii) that the plaintiff could not cut down vegetation in the clearing without committing a trespass. The plaintiff took out an originating summons raising both issues and contended, as to the second, that in so far as it was claiming a right to a view, it was only claiming a right ancillary to the right to use the roadway. The plan referred to in the discontinuance order could not be found.
Held The plaintiff succeeded on the first issue, but failed on the second.
1. Because it was difficult to reconcile the opening words of clause 1 with the provisions that followed, it was permissible to refer to the recitals as an aid to construction: see Orr v Mitchell [1893] AC 238. The recitals to the 1972 deed placed no limitation on purpose. Furthermore, to restrict use in terms of use at the date of the deed would be inconsistent with the matrix of fact as it could not be reasonably supposed that the parties intended a right of way limited to the carrying out of building work. The opening words of clause 1 should accordingly be construed as words of identification, designed to exclude any possible enlargement of the dominant tenement: cf Graham v Philcox [1984] QB 747; National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907.
2. In the absence of any textual reference in the deed to the visibility displays, the plaintiff sought to argue for an implied grant of an ancillary easement on the basis either that the deed should be read in the light of the planning permission, or that council interference with the visibility displays would amount to a derogation from grant. The former argument failed because it was not possible to assume that the deed plan was the same as the plan (now missing) attached to the planning permission, which in, any event, referred to a different plan number: Scott v Martin [1987] 1 WLR 841 distinguished. Moreover, the deed made clear that the council were not performing any of their public obligations. The same objections applied to the alleged derogation from grant, because the need for the visibility splays arose out of the planning permission, not the deed.
Jonathan Karas (instructed by Edwin Coe) appeared for the plaintiff; Mark Wonnacott (instructed by the solicitor to Surrey County Council) appeared for the defendants.
Alan Cooklin, barrister
