Easement – Restrictive covenant – Licence – Defendants owning pub and using part of land acquired by claimant as beer garden – Claimant seeking injunction and damages for trespass – Whether earlier conveyance creating easement, restrictive covenant or contractual licence – Whether defendants trespassing on claimant’ land – Claim allowed
The Masons Arms was a pub owned by the first defendant on the Harrow Road near Kensal Green tube station. In 2014, the claimant purchased a piece of land, most of which was being used as a beer garden by the pub. The claimant took the view that that use was a trespass but the defendant claimed it was entitled to use the land as a beer garden by virtue of a right created by a conveyance dated 24 August 1855, many years before the pub or the beer garden existed, which was an easement or a restrictive covenant.
The claimant brought proceedings claiming an injunction and damages for trespass against the first defendant who had been using the disputed land and had owned the pub since 2012. Shortly before trial, the freehold of the title which included the land upon which the pub stood was transferred to the second defendant. The first defendant was registered as the freehold owner on 19 April 2012 and the second defendant as a leaseholder on 20 April 2012.
The 1855 conveyance had been made between a railway company and B. At the time, railway companies had power to acquire land for the purpose of their railways and had to sell land surplus to requirements. They could not sell land above railway tunnels, but could grant rights over that land, provided the rights did not interfere with the operation of the railway. In 1852, the company had conveyed to B about 1.7 acres of land near to Kensal Green station. Some of the land was above a railway tunnel. Three years later, the company wanted to build a new tunnel. It bought back the land from B, and then entered into the conveyance in issue, by which it conveyed back to B some of the land, coloured red on the conveyance plan. In respect of the rest, coloured blue on the plan, which was about 60% of the total land, the company allowed B to use the blue land as garden ground and for agricultural purposes or for such other purposes except building. The claimant argued that, properly construed, the 1855 conveyance created a contractual licence and not an easement. Such a licence was binding on the parties to that conveyance but was not binding on the claimant and could not benefit the defendants.
Held: The claim was allowed.
(1) On the proper construction of the words used against the factual background, the intention was to allow B to use the land for any purpose, other than building, that would not injure the tunnels. The restriction on use for building meant that nothing could be built on the land. The words “garden ground” were intended to describe use of the blue land for the purposes of growing garden produce. It was ground for gardening rather than a garden. The parties intended to create a licence and not an easement. What mattered was the language used in the conveyance which created the right: “covenant and agree…that it shall be lawful…to enter…to use and enjoy…”. That language was more consistent with an intention to give a licence rather than grant a proprietary interest. It was the language of permission rather than the language of a substantive grant. It was wrong to suggest that the law should prefer the defendants’ easement over the claimant’s licence because of the general principle to uphold bargains.
(2) Even if the parties had intended to create an easement, the right was not capable of being an easement, because it was not granted for the benefit of the red land. There was nothing in the language of the conveyance or in the circumstances which linked the ownership of the red land with the rights to be exercised over the blue land. On the contrary, the circumstances indicated that tying the rights over the blue land to the red was probably not the intention. The right did not accommodate the red land. The ability to make use of the blue land had no connection with the red land. Further, the right included the right to cultivate it for growing produce which was not capable of being an easement.
(3) The court rejected the argument that the right was a restrictive covenant in reliance on the decision in Sharpe v Durrant (1911) 55 SJ. That decision was no longer good law. It could not survive the clarification of the law of restrictive covenants in LCC v Allen [1914] 3 KB 642, in which it was definitively decided that the enforceability of a restrictive covenant principle was not based on notice, but rather because a restrictive covenant was a species of interest in land which had to touch and concern land held by the person who sought to enforce it. Further, in Ashburn Anstalt v Arnold [1987] 2 EGLR 71, the Court of Appeal confirmed that a contractual licence would not run with the land unless the facts were such as to give rise to a constructive trust. It would be absurd if that principle could be overridden by simply turning a contractual licence into a restrictive covenant since every licence to occupy could in some way be said to be a negative covenant not to interfere with the consequence of that licence.
(4) The right was a contractual licence, and not an easement or restrictive covenant, and so was not capable of binding a successor in title to the grantor. The defendants had no right to make use of the claimant’s land. It followed that in every respect in which the defendants were present on the claimant’s land they were trespassing and had been, as against the claimant, since the claimant acquired title on 21 October 2014. In all the circumstances, the claimant was entitled to an injunction requiring the removal of the fixtures, fittings and other items being used by the defendant for the beer-garden from the land and damages assessed at a daily rate of £127.76 from 24 October 2014 until possession was given up (the amount which would have been agreed in a hypothetical negotiation between reasonable persons in the position of the parties for the grant of the right to do what the defendants had done).
Stephen Jourdan QC and Toby Watkin (instructed by Mills & Reeve LLP) appeared for the Claimant; Tom Weekes QC (instructed by Hill Dickinson LLP) appeared for the defendants.
Eileen O’Grady, barrister
Click here to read transcript: Starham Ltd v Greene King Pubs Ltd and anotherMasonArmsj
