Easements – Fire-escape route shared by adjoining properties — Right of adjoining owners to cross relevant parts of each other’s property in emergency — Whether respondent’s right extinguished by development of appellant’s property — Construction of conveyance — Judge holding appellant obliged to provide alternative route — Appeal allowed
In 2000, the appellant and the respondent purchased adjoining properties, both of which had several storeys and rear extensions at ground floor level. The two properties shared a common external fire escape route that ran across the respondent’s property above ground level, with descent to the ground being via the flat roof of the appellant’s rear extension to an iron staircase descending a light well on the appellant’s property. The rights of each party to cross the relevant parts of the other’s property in an emergency were contained in a 1988 conveyance. The right in favour of the appellant’s property was unqualified, whereas that permitting the respondent to cross the appellant’s roof and use its staircase was subject to provisos that the roof and staircase in question were still in existence and that the appellant was entitled to change the permitted route from time to time.
In 2004, the appellant obtained planning permission for a change of use of its property from offices to a hotel. This involved the construction of a new storey above the ground-floor rear extension and the demolition of the light well. A dispute arose as to the effect of the development on the parties’ respective easements. The appellant asserted that the respondent’s easement would be extinguished pursuant to the first proviso in the 1988 conveyance. It sought a declaration that its own rights over the respondent’s property would, however, continue. The respondent counterclaimed for a declaration that the appellant was obliged to provide it with an alternative fire-escape route. The appellant’s declaration was granted, and a separate hearing was held to determine the counterclaim. At that hearing, the judge held that, on a proper construction of the 1988 conveyance, the appellant was obliged to provide an alternative route since: (i) a hypothetical reasonable man with a knowledge of the layout of the properties in 1988 would have thought it a nonsense if the rights granted to the respondent’s property could be terminated by the removal of the roof or staircase; and (ii) the provisos were instead intended to provide a degree of flexibility in the route of the fire escape once it reached the appellant’s property. The appellant appealed.
Held: The appeal was allowed.
The job of the court was to construe the meaning of the conveyance by interpreting the words used in the light of the circumstances as they were at the time of the transfer; it could not, in the guise of interpretation, create an agreement that was different from the one that the parties had actually made. In finding that the purpose of the provisos was to give a degree of flexibility to the appellant in fixing the fire escape route, the judge had failed to give any effect to the words of the first proviso. Those words made it plain that the right was granted only for so long as the roof and staircase remained in place, such that the right would cease when they no longer existed. That limited right was subject to the further proviso that, so long as the right did exist, the appellant was entitled to vary the route. The appellant was not obliged to provide a substitute route where the original right ceased to exist in accordance with the first proviso.
In finding that such an interpretation would be a nonsense, the judge had failed to deal with the practicalities of egress and had overlooked the fact that there was no evidence that the removal of the roof and staircase from the appellant’s property would render the respondent’s property unuseable. He had further overlooked the fact that the removal of the roof and staircase was likely only in the context of a development of the appellant’s land, since otherwise the appellant would also need to use that route to exit its own property in an emergency. Taking those matters into account, it was not a nonsense if the appellant could extinguish the respondent’s rights by removing the roof and staircase, since the agreement reflected the obvious possibility that the appellant’s property might be redeveloped in the future, in which case alternative arrangements might need to be made. Although a purchaser of the respondent’s property in 1988 might have wished for more, the fact that it had not got everything it hoped for was no reason to find that that was not the agreement.
Stephen Lloyd (instructed by Clifford Watts Compton) appeared for the appellant; Edward Denehan (instructed by Winward Fearon) appeared for the respondent.
Sally Dobson, barrister
