Sisters of the Sacred Heart of Mary Ltd and others v Kingston upon Thames Royal London Borough Council

Private roads – Estate managed by defendant council under private Act of parliament – Act providing rights of way for access to and from properties fronting roads – Proposal to install code-operated barrier across road – Whether substantially interfering with claimants’ right of way – Whether right of way enjoyed otherwise than under Act – Whether defendants entitled to charge claimants for cost of installing and maintaining barrier – Claim allowedThe four claimants were the operators of, respectively, three schools and a training centre on the Coombe Estate, which was managed and controlled by the defendant council pursuant to a private Act of parliament, the Maldens and Coombe Urban District Council Act 1933. The claimants’ premises fronted a private road, access to which was gained from another private road, Warren Road that ran through the estate. The defendants proposed to erect an unmanned, code-operated barrier on Warren Road, in exercise of their powers under the 1933 Act, to prevent its use by unauthorised vehicles as a shortcut to and from adjacent busy public roads. The claimants resisted the installation of the unmanned barrier, arguing that it would create severe logistical problems for their operations given the number and range of persons needing vehicular access to their premises.The claimants contended that an unmanned barrier would constitute a substantial interference with a right of way for all purposes enjoyed by them by virtue of the original grant to their predecessors in title, registration, prescription and/or lost modern grant, or by section 11(1) of the 1933 Act. Section 11 began by stating that “From and after their conveyance to the Council the following provisions shall apply to have effect in respect to the scheduled roads”, before granting a right of way in respect of “the owner and the occupier of any premises fronting or abutting on any of the said roads…and any other person with his permission”. The claimants further submitted that it would be unlawful for the defendants to debit the Coombe Estate reserve fund, which was established under section 11, or to charge to the claimants any part of the costs of installing the proposed barrier so far as those costs exceeded the reasonable costs of providing a barrier to be operated by a gatekeeper.The defendants submitted that section 11 superseded any other rights of way previously enjoyed by the claimants and that, properly construed, those rights were qualified by the defendants’ function of managing the scheduled roads. Held: The claim was allowed. (1) On the true construction of the 1933 Act, any pre-existing rights of way over the scheduled roads had been extinguished and superseded by the rights granted under that Act; that was the effect of the opening sentence of section 11, and the entire Act was consistent with the introduction of a new regime for the management of the scheduled roads and payment for their upkeep. The claimants had not acquired any rights of way under section 2 of the Prescription Act 1832 or by virtue of lost modern grant because such rights were dependent upon there being a capable grantor of such rights; since the 1933 Act and the acquisition of the scheduled roads by the defendants there had been no capable grantor.Section 11 conferred a statutory right to use the scheduled roads upon the owners and occupiers of premises fronting those roads and upon any other person with the permission of such owner or occupier. That permission did not have to be given in advance or expressly, but could be implied from the facts. The right existed irrespective of the purpose for which the owner or occupier used the premises in question. However, the right was limited to a right to go to or from the particular premises of the frontager concerned.On the evidence, the proposed code-operated barrier would substantially interfere with the statutory rights of each claimant and its licensees under section 11(1) of the 1933 Act to use the relevant roads for the purpose of going to or from its premises, since it could prevent or significantly impede several categories of the claimants’ agents and licensees from accessing their premises. Consequently, the claimants were entitled to an injunction to restrain the defendants from implementing the proposed code-operated barrier.(2) The defendants were entitled to debit the reserve fund and to charge the claimants with the costs of employing a gatekeeper and with the reasonable costs of the present litigation, but not with the costs of installing and maintaining an automatic code-operated barrier.Mr Mark Studer (instructed by Stone King LLP, of Bath B) appeared for the claimants; Ms Elisabeth Laing (instructed by the legal department of Kingston upon Thames Royal London Borough Council) appeared for the defendants.Sally Dobson, barrister