England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARDIFF COUNTY COURT
(HIS HONOUR JUDGE GRAHAM JONES)

		Cardiff Civil Justice Centre Park Lane Cardiff, CF10
		17th July 2007

1. LORD JUSTICE PILL: Lord Justice Lloyd will give the first judgment.
2. LORD JUSTICE LLOYD: This appeal concerns only one out of a large number of issues which were in dispute between the parties at the trial before His Honour Judge Graham Jones. That one issue is whether, as the judge held, the defendants are entitled to a right of way over land belonging to Mrs Davies, the first claimant, for access between the highway, Rhigos Road, and their garage premises, known as Rhigos Road Motors, over an area of land referred to in the case as "the blue land".
3. Mrs Davies owns land known as John's Garage which is on Rhigos Road. Between 1962 and 1976 these premises and what is now the defendants' premises were in the common ownership of Mrs Davies' husband, Hywel Rhys Davies. He conveyed what is now Rhigos Road Motors away by a conveyance of 3rd September 1976 to a company called JTJ Tyres Ltd. Title to that land has passed, ultimately, to the defendants, who acquired it in 2001. Mrs Davies now has title to the land which her husband retained on the sale off in 1976.
4. The garage premises lie on the north side of Rhigos Road in Hirwaun. John's Garage is mainly to the west of Rhigos Road Motors, but part of its forecourt lies to the south between the building used by Rhigos Road Motors and the highway. In the forecourt are some petrol pumps which we are told lie partly in front of the John's Garage building and partly in front of the Rhigos Road Motors building. To the east is the former premises of the Royal British Legion, now owned by the second claimant, which itself is owned by Mr Davies.
5. In 1969 Mr Davies and the trustees of the British Legion Club entered into a deed of exchange. Mr Davies acquired from the British Legion some land at the back of the land which is now that which belongs to the defendants. In exchange, he conveyed to the trustees a triangular piece of land at the eastern end of his then title with a frontage to Rhigos Road. He conveyed this subject to the reservation of a full right of way over it. This triangle is known as "the green land". He also paid to the trustees £250 by way of equality of exchange.
6. It is possible to infer that the green land at the eastern extremity of the forecourt of Mr Davies' premises, the whole being then in his ownership, was used for access to the eastern end of the building now used by the defendants, and to get round past the eastern end to the back of the building. Of course it was the land at the back of the building that was increased by the land which he acquired at that time from the British Legion.
7. Then in 1976 Mr Davies sold part of his land to JTJ Tyres Ltd. The terms of that conveyance are important. The parties are identified. The recitals contain nothing of particular significance, except to record that the agreed consideration was £8,000. The parcels clause is, so far as relevant, as follows:

"... ALL THAT piece of land shown for the purposes of identification only edged red on the plan annexed hereto with the buildings thereon forming part of premises known as John's Garage Rhigos Road Hirwaun aforesaid together with the following rights that is to say the right to pass and repass with or without vehicles over and along the land coloured green on the said plan ..."

I pause there, and the parcels clause continues with two other rights which are of no direct materiality to the present case. Then there is an exception and reservation of various matters also not relevant, and the habendum in conventional form.

8. In clause 2 the purchaser entered into a covenant which was expressed as if it was going to bind the property, but because both aspects of the covenant were positive covenants, this was hopeful rather than realistic.
9. The substance of the covenant is as follows:

"... it will within three months from the date of this deed erect a four foot wall between the points marked A and B on the said plan and forever thereafter maintain the same and will paint a white line between the points marked C and D on the said plan and forever thereafter repaint the same as often as may be necessary to ensure that the said white line remains clearly visible."

10. The points A and B on the plan are not relevant to the present dispute, but the points C and D are highly relevant. The plan annexed to the conveyance shows edged red, and therefore conveyed, an irregular-shaped piece of land. It includes the building now used by Rhigos Road Motors, as well as land to the north and the east of it. It also includes an area of land to the south, stretching down towards Rhigos Road, abutting on its eastern side the green land. Oddly the judge did not see a true copy of the original conveyance plan, but we have. It shows the points A-B and C-D, which are referred to in clause 2. The boundary C-D, which was to be marked (as I said) not by a wall but by white lines, is angled. From the point identified as C, which is on the south wall of the building, it goes directly at 90° to the building towards the road for a short distance, then it turns east at a shallow angle, meeting the southern boundary of the plot a little to the west of its south-eastern corner, where it is adjacent to the southernmost part of the green land.
11. By comparison a survey carried out in October 2002 for the purposes of the litigation, after Mr Davies had put up a fence which obstructed access over much of the blue land, and recording therefore the line of the fence, seems to show that from point C, which is also marked C on the survey plan, the boundary starts off already a little bit to the east of a 90° line from the wall of the building, and it then changes direction further eastwards, coming to a point a good deal short of the southern boundary of what used to be the forecourt when in the sole ownership of Mr Davies. The surveyed plan, which is at page 14 of section 1 of our appeal bundles, has a point marked F, which we are told is the end of the steel palisade fencing erected by Mr Davies in 2002, which is not quite as far across as the eastern boundary of the defendants' land. But as far as that point F, the presence of the steel palisade fencing obstructed the defendants from using the blue land in the course of obtaining access for vehicles to their garage.
12. The blue land, I should say, is that part of Mrs Davies' retained land which lies between this protruding part of the defendants' land conveyed to them, which was in the course of argument sometimes called "the nib", on the one hand and Rhigos Road on the other.
13. Before the sale in September 1976, the forecourt and the front of the whole of the garage premises was open and unobstructed. Mr Davies used the eastern building as a mechanical workshop. It had inside it a hydraulic vehicle ramp. At a certain time before 1976 he had extended the eastern building further to the east, creating what is now the front loading bay used by the defendants. He moved the vehicle ramp into that part, and he left a door in the front wall of the by then extended building to allow access for vehicles to the inside of the building and on to the ramp, moving the ramp into that part of the building.
14. In the course of his judgment (at paragraph 44) the judge in the present case said that access to the ramp from the road must have been and was obtained by proceeding straight in, passing over the blue land.
15. The essence of the case made by the defendants for saying that they are entitled to a right of way over the blue land by an implied grant at the time of the 1976 conveyance was summarised by the judge in paragraph 45 of his judgment as follows:

"45. Though not absolutely essential for access to the front of the Defendants' premises (at least by small vehicles) the right claimed is, it is said, necessary for the reasonable and convenient use by Mr William Bramwell of the premises as a motor repair and MOT garage and, specifically, for the reasonable and convenient use of the front bay and the vehicle ramp there situate."

16. That formulation seems to me to have been addressed in part by reference to the basis on which the case is now put and on which the judge accepted the submission, and also perhaps in part by reference to other bases for implied grant, in particular what is known as the rule in Wheeldon v Burrows (1879) 12 Ch D 31 which the judge rejected. I shall come back to make some reference to that in due course.
17. But the basis on which the judge accepted the case for an implied grant is traced back to the authoritative starting point of the speech of Lord Parker of Waddington in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, at 646-7. Lord Parker was there considering a claim to an easement which the House of Lords rejected (as had the courts below), but which if it existed was based on an implied grant. He distinguished the case of implied grants of ways of necessity (with which neither his case nor ours is concerned) and continuous and apparent easements, which is Wheeldon v Burrows. He said that there were two other categories of implied grant. The first was where the implication arose because the right in question was necessary for the enjoyment of some other right expressly granted. That was not his case and nor is it the present case. He went on to say this:

"The second class of cases in which easements may impliedly be created depends not upon the terms of the grant itself, but upon the circumstances under which the grant was made. The law will readily imply the grant or reservation of such easements as may be necessary to give effect to the common intention of the parties to a grant of real property, with reference to the manner or purposes in and for which the land granted or some land retained by the grantor is to be used. See Jones v Pritchard [1908] 1 Ch 630 and Lyttelton Times Co v Warners [1907] AC 476. But it is essential for this purpose that the parties should intend that the subject of the grant or the land retained by the grantor should be used in some definite and particular manner. It is not enough that the subject of the grant or the land retained should be intended to be used in a manner which may or may not involve this definite and particular use."

18. The questions which therefore have to be addressed if a grant is to be implied in this type of case is whether there was a common intention of the parties that the land granted should be used in some definite or particular manner and, secondly, whether the grant of the easement is necessary to give effect to that intention.
19. We were shown later cases in this line of authority, including Stafford v Lee (1992) 65 P&CR 172 and Chaffe v Kingsley (2000) 79 P&CR 404. Those illustrate the application of the principles and, for the purposes of the submissions of Mr Warner for the appellant, particularly the relevance of express provisions in the deed in question, a point to which I will return in a moment.
20. Mr Warner particularly stressed a passage in the judgment of Nourse LJ in Stafford v Lee at page 176, which is as follows:

"The first point to be made about the defendants' contention is that, although it may sometimes come to the same thing, the material question in a case of an intended easement is not how was the land enjoyed in 1955, but did the parties to the 1955 deed intend that it should be used in some definite and particular manner and, if so, what?"

21. That was a case in which the issue was as to what the intention was as to how the land conveyed should be used. However Mr Warner relies on it to invite us not to pay over much attention to how the land was in fact used at the time of the conveyance in 1976, but rather to the intention of the parties to the 1976 deed as to how it should be used.
22. As it seems to me it is plain that the parties in 1976 intended that the building conveyed should be used for the repair and servicing of motor vehicles, as it had been before. That was why JTJ Tyres Ltd was buying the garage and what they paid for, of course, included the facilities in and around the premises, including the plant, such as the hydraulic vehicle ramp. That was plainly the intention of the purchaser and whereas Mr Davies may, I suppose, have been indifferent as to how the land was going to be used, he could hardly be heard to say that he did not intend them to use the garage in such a way.
23. Accordingly, subject to a point of detail to which I will come, it seems to me that the emphasis is rather the other way in the present case from how it stood in Stafford v Lee. In Stafford v Lee the question was what was the intention, not whether, if the intention was as alleged, the easement was necessary for its accomplishment. In the present case it seems to me that the intention was clear and the question is whether the easement claimed was necessary if the building was to be used in that way.
24. One point on which Mr Warner, for the appellant, relies heavily is the inclusion in the 1976 conveyance of a right of way over the green land. He submits that the express grant of this right (or, to put it more accurately, the express inclusion of reference to it) is inconsistent with the implication of the grant of any other right of way. It would be right to say that he takes that point not in isolation, but together with a submission based on the shape of the land conveyed, and in particular the shape of what I said was referred to as the nib, and further together with the covenant about delineating the boundary by way of painting white lines on the ground.
25. So far as the contention based on the reference to the right of way over the green land is concerned, I would reject that argument. The right over the green land would have passed to the purchaser even without express mention. As Mr Warner accepts, it was not created in 1976. Clearly in 1969 at the time of the deed of exchange Mr Davies wanted to go on using the green land for access, as he had been doing, even though he could use the whole of the rest of the frontage as well for access. There is nothing in the circumstances of the 1976 conveyance which suggests that this right of way was to be the purchaser's sole access taken together with the nib, except of course for the fact that no other right was granted in terms. In Mr Warner's terms that is a significant exception on which he relies heavily. But it seems to me that the inclusion of reference to the existing right of way in the conveyance is no more than a matter of proper conveyancing drafting technique.
26. The judge considered the arguments which had been addressed to him not by Mr Warner, who did not appear at the trial, but by Mr Walters, counsel then appearing for the claimants, in the first of two paragraphs in his judgment which are numbered 55, and in particular in six sub-paragraphs within that paragraph. The first point addressed is what is now Mr Warner's point about the shape of the nib, and indeed the very creation and grant of the nib at all. As the judge summarises the submission, it was that the irregular boundary was drawn to enable access from the green land, over which an express right of way existed, and that it was impossible to think of any reason for the line of the boundary except that given by Mr Davies, namely to allow vehicle access to the front bay as it existed in 1976. The judge said that it was by no means impossible to think of reasons why the line of the boundary was so drawn. He said later in the sub-paragraph, the irregular subsection of land was conveyed because Mr Davies did not require it for the purposes of his retained business. As he himself said:

"The line C-D defines the sweep of the forecourt of the filling station."

27. He did not want to sell any part of the forecourt, loss of which would interfere with his own business. The land to the north-east of the line C-D, that is to say the land forming the nib, was land which he did not need for his own purposes. He did need the land to the south and west of that line, including in particular for access by tankers to his petrol pumps.
28. The second of the points that the judge considered was the right of way over the green land, with which I have already dealt.
29. At sub-paragraphs (3) and (4) he came to the point as to the marking of the boundary and the fact that there was no provision for a physical barrier marking the line. He said that if it had been the intention of the parties that the line was not to be crossed, one would have expected the presence and not the absence of a physical barrier: contrast the provision for a wall between points A and B. The judge said at sub-paragraph (4) that the provision for the white line was much more consistent with an intention that vehicles should pass across the line C-D than it should in effect be a barrier.
30. Then at sub-paragraphs (5) and (6) he said this, which I read, correcting one error of date:

"5) Any vehicle driven into the bay would have to be reversed out of it. Although it would have been physically possible to reverse at least some vehicles out of the bay without crossing the line CD, even in relation to those vehicles the manoeuvre would not have been straight forward, the more particularly since there was nothing on the ground to indicate where the line CD was. I am satisfied that no line was painted on the ground until shortly before the [1997] conveyance at the earliest. Anyone reversing a vehicle out of the bay would obviously choose to reverse it straight out and so inevitably cross the line CD.

6) That in fact is what happened. I accept the evidence of Mrs McCarthy that customers or her husband would drive vehicles straight onto the ramp and straight off it. She was aware of the existence of the boundary but there was never any issue about it. The forecourt in front of Rhigos Road Motors was open and used for every day access. There never was any restriction on or issue about vehicles being driven across the line CD and it happened every day."

31. The judge then expressed his conclusion on the point in the second of the two paragraphs numbered 55 as follows:

"55. In my judgement, these circumstances and considerations lead to the finding that it was the common intention of the parties that Rhigos Road Motors be entitled to pass and repass with or without vehicles over the land coloured blue for the reasonable use of the front bay with the ramp as it was in 1976 for the purposes of the continued use of the bay of a vehicle servicing and lubrication bay. In my judgement, that use would extend to all vehicles which could reasonably be accommodated within the bay."

32. Mr Warner submits that the judge was wrong in this for two particular reasons: first of all, the shape of the land conveyed and, secondly, the significance of the white lines obligation. He submits that further that there is no case made out of necessity, as the judge found, but only of greater convenience. He refers particularly to the words in paragraph 45 that I read earlier "not absolutely essential", and to the reference in sub-paragraph (5) that I just read "physically possible to reverse at least some vehicles". As to the shape of the land, the nib, it seems to me that the judge in sub-paragraph (1) of his first paragraph 55 deals with the matter fully and conclusively. I can see no substance in Mr Warner's arguments, attractively as he presented them. I will come back to the significance of the white lines later on.
33. As I mentioned earlier, the judge considered several possible bases for holding that there had been an implied grant. He rejected two of them: the rule in Wheeldon v Burrows, which is concerned with continuous and apparent easements, and section 62 of the Law of Property Act 1925. There is and could be no challenge to that aspect of his decision. It is, however, to be noted that one of the requirements under Wheeldon v Burrows is that the right in question should be "necessary for the reasonable enjoyment of the land granted". That so far as it goes is a less demanding test than that set out by Lord Parker in Pwllbach Colliery Co Ltd v Woodman. It was on other aspects of the rule in Wheeldon v Burrows that the defendants failed to get home in that respect.
34. Mr Warner submits that the judge's conclusion that the parties intended the purchaser to have the right of way and that it would be highly convenient was as far as he went, and that it might have sufficed, but for other considerations, for Wheeldon v Burrows, but that it does not match up with any of the tests for an implied grant as set out by Lord Parker.
35. I do not consider that this is a correct reading of the judge's judgment. It is true that at paragraph 45 he does say that small vehicles could get access into and out of the garage and on and off the ramp without having to cross the blue land. Correspondingly at paragraph 55(5), he says that it was physically possible to reverse some vehicles out of the bay without crossing the blue land. Mr Rhodri Williams' point for the respondents, the defendants, is that with the larger vehicles, as to which there was evidence that they could be and had been used on the ramp it could not be done without being able to approach the garage door head-on. The judge did not refer expressly to such vehicles, but there was a certain amount of evidence before him in relation to their use.
36. I should say that early in the trial the judge had a view of the site. We are told that in the course of that view a vehicle (which Mr Warner says on instructions was a transit van) was driven into the loading bay and onto the ramp, albeit with some difficulty, despite the presence of Mr Davies' steel palisade fence. The judge did not refer in any detail to what happened in the course of the site visit, but he no doubt took it into account in what he said in the course of the judgment.
37. Going on from there, Mrs McCarthy (whose husband was I think I am right in saying behind JTJ Tyres Ltd and who himself owned the defendants' property for a good many years) gave evidence. In the course of her oral evidence she was asked about the sort of vehicle that her husband had used. This passage in her evidence developed from a time when she was being asked about the white line and the obligation to paint it, and the fact that it was not in fact painted until very much later when, as she said, all of a sudden Hywel (that is to say Mr Davies) wanted Derek to paint this white line. Then she was asked a number of questions about vehicles. She said that her husband was unable to get minibuses into the MOT test station, but the MOT test station appears to have been at the back of the premises, so it was not that that was accessed directly over the blue land if that was feasible. The questions then moved to what was possible in respect of access to the front, and Mrs McCarthy agreed that cars could access it. She was then asked:

"Q. Do you remember it ever being used for anything larger than a car or a car based van?

A. A van, you know, you'd get a Transit van in there, but that's all, because it had a lift up and down ramp.

Q. It had a hydraulic ramp.

A. Yes.

Q. That limits the size, doesn't it?

A. Yes."

That I think is all of her evidence. So she was saying that vans at any rate of a Transit van size could be got in.

38. Then Mr Bramwell, the second defendant and the prime mover, as I understand it, in the business conducted by the defendants, gave evidence. He had known the premises at the time that Mr McCarthy owned it. First of all he gave some evidence as to how it was used in Mr McCarthy's days, and then about how the matter changed when he took over. Having been asked how he obtained access to the front and back, his answer was this:

"A. Exactly the same. It was all open there. I could either come down the road, up the road or across the road, whichever. It was always going straight into that bay. There was no way can you get into that bay without coming in straight. If I can put it in a nutshell, if that was a pit, you could never take a vehicle in on an angle in a pit, because the wheel is going to go down the pit and somebody is going to get seriously injured. It works the same with the ramps or the hoist. You've got to approach a hoist straight. You can't come in on an angle on a hoist, the same as you can't approach a pit on an angle.

Q. I presume this was after the barrier, but yesterday we saw a vehicle driven in there, like you say, with some difficulty.

A. Yes.

Q. Were vehicles of that size driven into the south bay whilst the business was run by you?

A. Before the barrier went up, yes.

Q. I am talking about before the barrier now.

A. Yes.

Q. Were larger vehicles driven in?

A. Yes, larger vehicles.

Q. Were higher vehicles driven in?

A. Yes."

Then the questioning goes on to another point.

39. That then is, as far as we were shown it, the evidence before the judge as to the usage of the garage, the loading bay and in particular the ramp by vehicles of different sizes. In that context it seems to me that it is a reasonable inference that when the judge said what he did that I have quoted from paragraph 45 and paragraph 55(5), namely that small vehicles could get in despite the presence of the barrier, he was accepting, and indeed asserting, that for larger vehicles direct access was necessary. That is a finding for which there was plainly evidence before him.
40. The present ramp, I should say, is, according to the evidence, the very same ramp that Mr Davies installed and then moved when he extended the building, so that the capacity of the ramp now is the same as the capacity of the ramp in his day. Plainly, it was and is capable, subject to access, of accommodating larger vehicles, such as Transit vans and, according to Mr Bramwell's evidence, even somewhat larger.
41. In my judgment, what the judge said amounts to a holding, which he was entitled to make, that the common intention of the parties was that the use to which the purchaser would put the land conveyed would include the servicing and repair, using where necessary the ramp, of all such vehicles as the ramp could reasonably accommodate, and what he said, albeit perhaps somewhat obliquely, at sub-paragraph (5) of paragraph 55 amounts to a holding that it was necessary for the fulfilment of that common intention, consistently with the proper and safe use of the ramp, that at least in the case of somewhat larger vehicles the vehicle could be driven straight into and straight out of the garage across at least some part of the blue land. As it seems to me, that brings the case fair and square within the principle set out by Lord Parker in Pwllbach Colliery Co Ltd v Woodman.
42. Mr Warner, however, in addition relies on the covenant as regards the white lines. For my part, I do not find that persuasive, any more than the judge did. It is interesting to note that the covenant required the purchaser not only to paint the lines, but to keep them repainted forever so that the lines should always be visible. I do not need to decide whether putting a fence on or immediately inside the line is itself inconsistent with that. But at the very least the terms of the covenant indicate that the boundary was always intended to be marked on the ground, and it is an indication that it was intended to be marked but passable in practice. Moreover, one would be entitled to say passable from both sides. It may be that Mr Davies and his successors in title would rarely if ever require to stray across the white line into the nib, but Mr Rhodri Williams in the course of his submissions to us conceded on instructions that there was no objection to the white line being passed from Mr Davies' side as occasion might require.
43. Accordingly, in my judgment, the judge was right to hold that a right of way over the blue land was granted by implication in 1976 on the principles laid down by Lord Parker, and notwithstanding the inclusion in the conveyance of the various express provisions upon which Mr Warner relied.
44. A subsidiary point to which Mr Warner drew our attention was a question as to the proper width of the land over which the right of way was exercisable. The point C, to which I referred, on the plan is some little way to the west of the western side of the door into the garage. He would be entitled to say that not all of the land to the west of the door could be needed for the purposes of giving effect to the common intention of the parties. Consistently with that, although following the judge's order, Mr Davies has taken down a large part of the fence that he constructed in 2002, he has left standing that part of the fence which is shown on the survey plan between the points marked C and D, not to be confused with the points marked C and D on the conveyance plan, which was the full extent of the boundary.
45. The defendants do not take any objection to the continued presence of that small part of the fence between C and D as shown on the survey plan. It may very well be that they would not be entitled to because, even if there is an obstruction on the site of the right of way, it is not in itself necessarily actionable unless it is a substantial obstruction of the exercise of the right of way, and the likelihood is that that residual part of the fence is not a substantial obstruction of the defendants' right of way.
46. However for my part, while making that observation, I would not wish to limit the width over which the right of way is exercisable or to qualify the terms of the judge's judgment and order in that respect. Strictly speaking, according to his reading, it may be that the scope of the right of way should be bounded by a perpendicular line from the western side of the doorway. But given that vehicles have not always been driven precisely in a straight line, and even if they are there may be overhang or other issues, it seems to me that the appellants are not entitled to have the order qualified or modified in any respect as regards the extent of the land over which the right of way is exercisable.
47. I would therefore, while noting the concession as to the ability of the claimant to pass over the white line into the defendants' land as I have mentioned, dismiss the appeal on the grounds that an implied grant was made in 1976. In those circumstances, it is unnecessary to consider the judge's alternative ground for holding that the defendants were entitled to such a right of way, namely under the Prescription Act 1832, and I do not propose to lengthen this judgment unnecessarily by saying anything about that.
48. LORD JUSTICE THOMAS: I agree.
49. LORD JUSTICE PILL: I also agree.

ORDER: Appeal dismissed with costs, to be assessed if not agreed; counsel to lodge a draft minute of order.

(Order not part of approved judgment)