Agreement relating to future highway over land — Land subject to development — Whether public rights created thereby — High Court holding that overriding rights created binding on subsequent purchaser — Court of Appeal allowing appeal against that decision — No public rights created
The appeal concerned a property with a frontage to Mayals Road, Swansea, consisting of a house and a parcel of land (“the front land”); behind the house was a larger parcel of land (“the rear land”) in separate ownership. On November 27 1980 F obtained outline planning permission to build four houses on the front land and construct a road between the house and the remainder of the front land and to give access to the rear land.
By written agreement, of June 23 1983, between Swansea City Council and F under section 38 of the Highways Act 1980 Swansea had the right to build, at some future time, a highway maintainable at the public expense over part of the front land, either by requiring F to carry out the works or, if F defaulted, by doing the works themselves. They had an option to acquire the freehold of the dedicated land. In case of default they had the right to terminate the agreement. Swansea did not seek to protect by registration any rights which they obtained under the agreement.
The rear land was sold in December 1986 to Simcobuild. F failed to carry out the works and Swansea issued a default notice so they could do the work. F transferred the front land to OIS, which paid £500 and assumed liability under a charge in excess of £25,000 on the front land. OIS was registered as proprietor of the front land. At the time of the transfer OIS knew of the agreement. In June 1988 the access road was formally adopted as part of the public highway under the terms of the section 38 agreement. Simcobuild obtained an injunction restraining OIS from preventing access to the rear land. OIS said that it was entitled to exclude persons from the access road as it was not bound by the section 38 agreement. The proceedings were consolidated; Swansea were added as defendants and Simcobuild took no part in the trial. The issue in this appeal was whether the rights created by an agreement under section 38(3) of the 1980 Act were “public rights” within section 70(1)(a) of the Land Registration Act 1925. The High Court held that the rights created by such an agreement were overriding rights binding on the plaintiff (OIS). OIS appealed.
Held The appeal was allowed.
1. The expression “public rights” was familiar to conveyancers. It meant “a right exercisable by the public”, ie anyone. By the agreement in this case the public had no right to exercise and so there was no overriding interest.
2. Having regard to the scheme of the Land Registration Act, there was no justification for giving public rights an extended meaning to embrace rights existing for the benefit of the public when not exercisable by any member of the public.
3. It was important that a highway authority which entered into a section 38 agreement should be able to protect their interest to bind a subsequent purchaser of the land over which the highway was to run, but Swansea failed to take the protective steps which were available to them.
4. The rights created by the agreement were not public rights within the meaning of section 70(1)(a) and did not bind OIS which took the front land free from them.
Nigel Davis QC and Edmund Cullen (instructed by Morgan Bruce, of Swansea) appeared for OIS; Elizabeth Appleby QC and Robin Campbell (instructed by the solicitor to Swansea City Council) appeared for Simcobuild.
