& HC03 C03589 & HC03 C03589
Strand, London, WC2A 2LL
B e f o r e :
| GEORGE PERLMAN
|- and -
|(1) PAUL RAYDEN
(2) CLAIRE RAYDEN
Derek Wood QC and Marc Dight (instructed by Teacher Stern Selby) for the Defendants
Hearing dates: 29 June - 9 July, 22 - 23 July & 26 - 29 July 2004
Crown Copyright ©
Mr Justice Patten :
The Rights Granted
The Relevant Transfers
"(a) the cost of keeping the private roadway (hereinafter called "the Roadway") edged in brown on the plan bound up within in repair
(b) the cost of supplying electricity to the meter and equipment for the control of the electric gate situated between Elm Tree Road and the Roadway and the entry phone system attached thereto
(c) the cost of maintenance servicing and repair of the said meter and equipment for the control of the electric gate and entry phone
(d) the cost of the renewal or replacement when necessary of the said meter and equipment for the control of the electric gate and entry phone"
This is followed by a further covenant, also with the transferor and its successors in title:
"Not to park or allow there to be parked any vehicle whatsoever in the Roadway or obstruct or allow the Roadway to be obstructed in any way whatsoever"
"(a) To the owners and occupiers for the time being of the adjoining properties known as Nos 4 and 6a Elm Tree Road and the Transferor and its successors in title for the benefit of the remainder of the land comprised in the above Title Number retained by the Transferor or any part or parts thereof the right in fee simple after giving reasonable written notice to the Transferee and its successors in title except in the case of emergency to enter upon the property hereby transferred or any part thereof for the purpose or repairing or maintaining the said adjoining and neighbouring property or any part thereof the person exercising such right avoiding any unnecessary damage and making good at its own expense forthwith any damage so caused.
(b) To the Transferor and its successors in title for the benefit of the remainder of the land comprised in the above Title No. retained by the Transferor or any part or parts thereof of
(i) the full and unrestricted right at any time hereafter and from time to time to erect or permit to be erected any buildings or other erection and to alter any building or other erection now standing or hereafter within a period commencing with the date hereof and continuing for 80 years and such period shall be the perpetuity period applicable hereto (hereinafter called "the Specified Period") to be erected on any part of the land now belonging to the Transferor adjoining the property hereby transferred in such manner as to obstruct or interfere with the passage and access of light and air to any building which is or may during the Specified Period be erected upon any part of the land hereby transferred and so that all privileges of light and air now or hereafter to be enjoyed over any part of the Transferor's said adjoining land by or in respect of the property hereby transferred shall be deemed to be so enjoyed by the licence or consent of the Transferor and not as of right"
"(A) the right in fee simple for the Transferee and its successors in title and all persons authorised by them (in common with the Transferor and all other persons entitled thereto) after giving reasonable notice to the Transferee and its successors in title except in the case of emergency to enter upon the properties known as 4 and 6a Elm Tree Road and the neighbouring or adjoining property comprised in the said Title or any part thereof for the purpose only of inspecting carrying out repairs and maintenance to the property hereby transferred and all parts thereof and all services thereto from time to time the person exercising such right avoiding any unnecessary damage and making good at its own expense forthwith any damage caused
(C) the right in fee simple for the Transferee and its successors in title and all persons authorised by them in common with all other persons who may hereafter have the like right at all times and for all purposes connected with the existing use of the property hereby transferred as a private dwellinghouse:
(i) with or without motor vehicles to go pass and repass along the said Roadway but subject to and conditional upon paying forthwith upon demand a one-third part of the costs of keeping the same in repair; and
(ii) to go pass and repass through the said electric gate and to use the entry-phone system attached thereto and to enjoy all security afforded to the property hereby transferred but subject to and conditional upon paying forthwith upon demand a one-third part of the costs of operating the same (including the cost of supplying electricity thereto) the costs of maintenance servicing and repair thereto and any renewal or replacement thereof
Such rights being conditional upon the compliance by the Transferee and its successors in title and all persons authorised by them with their covenant (herein contained) not to park or allow there to be parked any vehicle whatsoever on the Roadway or obstruct or allow the Roadway to be obstructed in any way whatsoever".
"PROVIDED ALWAYS that the rights granted hereunder shall be subject to the observance and performance of the provisions herein contained so that no person shall be entitled to exercise the rights herein contained if and so long as that person (or any person through whom he claims) is in material breach of his obligations hereunder"
This has been commonly referred to as the suspension of rights proviso and is relied on by Mr Perlman in support of his claim for damages for trespass in relation, for example, to the use of the roadway by the Raydens for access or delivery purposes. His case is that, having used the roadway for purposes not permitted under the rights granted by the February Transfer, Mr and Mrs Rayden ceased to be able to use it lawfully for any purposes until their illegal use had ceased. Acts which would otherwise have been lawful therefore became unlawful and actionable during that period. The Raydens say that the operation of the proviso is more limited and that only a failure to observe the covenants in the February Transfer would bring about the suspension of their rights.
The Rights Granted in Respect of No 6
"Counsel are, I am happy to say, broadly in agreement as to the legal principles that must be applied to resolve the issue. The legal principles are conveniently set out in the respective skeleton arguments that have been supplied to me. The principles, as there set out but slightly summarised by me, are as follows: (1) It is basically a question of construction whether the grant of a right of way entitles the grantee to open up access to the way along any point of his choice at which the boundary of the dominant land adjoins the right of way. (2) The owner of the dominant land is not necessarily limited to the access or accesses existing at the date of the grant but is entitled to open up additional accesses as are reasonably required by him in the exercise of the rights that he has been granted, provided that there is no unreasonable interference with the rights of other people entitled to use the right of way."
Those conditions are, he says, satisfied in the present case.
"Where (as in this instance) the words of grant are apt to accommodate an easement of access to every point along the boundary of the dominant and servient tenements, but there is in existence at the date of grant some feature on the servient tenement which represents a potential obstruction to the free and uninterrupted enjoyment of access by the dominant owner, it is a matter of construction in every case for the court to determine whether the existence of that obstacle calls for the words of grant to be given a restricted meaning so as to deny access at the point of obstruction. It is essentially a question of degree. The more transient or insubstantial the obstacle, the more ready the court will be to infer that it was the intention of the grantor to over-ride the obstruction, and (conversely) the more solid and permanent the obstruction, the greater will be the reluctance of the court to impute to the grantor any intention to give the dominant owner the right to insist upon its removal.
The relevant considerations, when this principle is applied to the present case, are in my judgment the following:
(1) The use of the words "path or roadway" when applied to the driveway in the deed of grant provide a strong prima facie indication of intention by the grantor to confer the widest rights of both pedestrian and vehicular access.
(2) The imposition upon the grantee of a duty to contribute a one quarter share of the expense of keeping the "path or roadway" in repair provides a further powerful indication of intention to confer a right of user in the widest terms.
(3) Because the dominant owner's frontage to the front one third of the driveway was largely occupied by the flank wall of her house, a right of access to her property with vehicles could only be enjoyed effectively if such access was available from the rear two thirds of the driveway.
(4) The terms on which the Beach and Walker families occupied the respective properties in 1924 are unknown. What is known, however, is that apart from the fact that one had a business user at the rear and the other did not, the two properties were very similar in nature and size, and formed part of a row built along Sebright Avenue. It is a reasonable assumption, therefore, that when the common vendor came to sever the freehold reversion and offer each property for sale to the occupying family, he would have wished on ordinary principles of fair and sensible estate management to achieve parity of rights as between the future users of the driveway serving (or potentially serving) the two properties.
(5) The existence of the flower bed on the servient tenement at the date of the grant certainly provided a barrier to the ready enjoyment of access to the dominant tenement along the rear two thirds of the driveway. It was a feature which fell, however, very much at the lower end of the scale of potential obstruction. A flower bed may endure (as this one did) for many years and often be a source of pride and pleasure to those who tend it, but it remains nevertheless a feature inherently transient and insubstantial, something that can be quickly formed and as quickly removed.
When all these considerations are borne in mind, the intention that is properly to be imputed to the common vendor is in my judgment an intention to allow the dominant owner access for pedestrians and vehicles at every point along the driveway. The fact that this interpretation would carry with it the right to call upon the servient owner to abandon his flower bed at any point where the dominant owner desired to exercise a right of access does not in my view involve a consequence sufficiently drastic to contradict the plain language of the grant. Nor can it be affected in retrospect by the fact that Miss Walker was a lady who never drove a car and never sought to exercise vehicular access rights in her lifetime. The right was given to her and to her successors in title in language that is too plain to be contradicted by any reference to the contemporaneous topography."
" "Except and Reserving:
(ii) unto the Vendor or other the owners or owners and occupiers for the time being of the garage and that part of the Vendor's retained land as is hatched green on the said plan (in this sub-clause (ii) called ´the green land') full and free right and liberty (in common with all other persons entitled to a like right) at all times and for all purposes connected with the present and every future use of the garage and the green land respectively with or without motor and other vehicles of every respective description and whether laden or unladen to go pass and repass along the access shown coloured yellow on the said plan for the purpose of gaining access to and egress from the garage and the green land respectively the Vendor contributing one-third of the cost of keeping the said access in good repair and condition ..." "
"It is then to the question of the proper construction of the reservation, the first point that Mr Randall particularly relied on, to which I now return. It is not disputed that the reservation in the conveyance of 5th May 1981 must be construed in the context of the deed as a whole, and in the light of the surrounding circumstances. That much is made plain by the passage in Sir John Pennycuick's judgment of the court in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2)  1 WLR 468 at page 476. It is not necessary, I think, to quote it as I have effectively summarised it. But it is worth referring to the passage on the following page, 477C-D. Sir John Pennycuick's judgment reads as follows:
"Mr Vinelott contended that the proper method of construction is first to construe the words of the instrument in isolation and then look at the surrounding circumstances in order to see whether they cut down the prima facie meaning of the words. It seems to us that this approach is contrary to well-established principle. It is no doubt true that in order to construe an instrument one looks first at the instrument and no doubt one may form a preliminary impression upon such inspection. But it is not until one has considered the instrument and the surrounding circumstances in conjunction that one concludes the process of construction. Of course, one may have words so unambiguous that no surrounding circumstances could affect their construction. But that is emphatically not the position here, where the reservation is in the loosest terms, i.e. simply ´right of way.' Indeed those words call aloud for an examination of the surrounding circumstances and, with all respect, Mr Vinelott's contention, even if well-founded, seems to us to lead nowhere in the present case."
Thus, the process of construction does not just start with a consideration of the words, but one has to consider the words, one has to consider the surrounding circumstances, and then one must reach a conclusion as to what the parties' intention was as expressed in the deed.
The surrounding circumstances to which the court is entitled to have regard include, but are not limited to, the physical limitation on the exercise of the right of way. The decided cases indicate that those physical circumstances may or may not be sufficient to enable the court to find that the wide words of the grant are in fact restricted by the surrounding circumstances. Thus, in Todrick v Western National Omnibus Co Ltd  1 Ch 190, St Edmundsbury and Ipswich Diocesan Board of Finance v Clark (No 2) and White v Richards  68 P&CR 105, the physical circumstances did so operate. But, by contrast, in Bulstrode v Lambert  1 WLR 1064, Keefe v Amor  1 QB 234 and Charles v Beach  EGCS 124 they did not."
" Bearing all those matters in mind, do they lead to the conclusion that the grant was of a footway only, or alternatively, if the grant was of a vehicular way, then that it was one limited as to the dimensions of the vehicle in the manner I have indicated? For myself, I think not. It is argued that that view, which I have just expressed, means that the plaintiff's parents could, had they been so minded, immediately after the transfer have insisted on the four feet six inch wide gap being widened, by pulling down a post and a part of the wall, if the vendor refused to do so, so as to enable a motor car, if they so wished, to come right up to their property, to enter and leave, and it is said that this surely would not have been a situation intended by the parties at the time of the grant. But there are several aspects of the transfer which I think lead to the conclusion that the greater right was intended.
First and foremost, the right of way was expressed to be over the strip whose whole 20-feet width was coloured brown. It would have been perfectly simple to define it more narrowly if that had been intended, or, of course, to define it as a footway, or as a right of way to and from the then existing gateway. Moreover, the fact that the whole 20-feet width was regarded as available if necessary for the exercise of the right is stressed by the reference to the wall marked with a "T" as being "on the west side of the said right of way," showing that the whole of the 20-feet strip was being referred to as the right of way. Why (I ask myself) should the whole width be regarded as being available, if necessary, for use as a right of way, if all that was intended was the restricted right suggested by the defendant?
I further observe that there was no obligation imposed to contribute to the upkeep of the frontage wall and, further, that an express grant of the footway alone would have been quite superfluous in the circumstances. I refer, of course, to the history of previous user; and, whether one speaks of it as a way of necessity or whether one speaks of it, as I think more correctly, as a grant which would have been implied having regard to the pre-existing user, in either event an express grant in 1930 was technically a superfluity.
Finally I would add that an obligation to pay a fair proportion of the cost of keeping the way in good repair and condition is at least unusual if all that was envisaged was the impact of human feet."
"The features apparent in all those cases do not appear to me to be present here. In this case there is no problem in obtaining access to or from the road, or to or from the garages. The whole of the width of the yellow strip is available for that purpose. Indeed, the reference to a one-third contribution to the maintenance of the yellow strip suggests that the parties envisaged that its primary use was as access to the garages. But the reserved right stops at the boundary between the yellow strip and the green land. That boundary is, or is to the south of, the wall which runs up from the road and was declared by the same conveyance to be a party wall. It would be quite inconsistent with that part of the conveyance to find that the person by whom the party rights were conveyed, Mrs Bain, was entitled to demolish parts of the wall without the consent of the person to whom it was conveyed, Mrs Burke-Jacklin, in order to widen the access from the yellow strip to the green land which she had reserved to herself, even if it takes effect by way of re-grant as a matter of conveyancing. Such a right, if intended, should be reserved by clear words. Indeed Clause 2(a) of the conveyance contemplates that the party wall will be maintained and retained, not that it will be demolished at the wish of Mrs Bain."
This decision is perfectly consistent with the approach of the court in cases like St Edmundsbury. Clearly a powerful element in determining how to construe the grant was the fact that the dry stone wall had become a party wall under the same conveyance. It was clearly inconsistent with this to infer an intention that the dominant owner had reserved a right to demolish the whole or part of the structure which he had conveyed away, and that was enough to determine the issue of construction and to dispose of the appeal. However, the judgment of Morritt LJ (with which Wilson J concurred) does not stop there, and Mr Driscoll relies particularly on the passage which follows, where Morritt LJ also says this:
"The problem does not stop there. The case for the Blackwells is that they are entitled to vehicular access to and egress from the green land and are entitled to demolish the party wall insofar as it stands in their way. But the conveyance is silent as to the point or points of such access or egress. It would be absurd to conclude, and Mr Randall does not submit, that the Blackwells were entitled to demolish the whole of the party wall so that access and egress might be obtained from any point along the whole length of the strip. But why should they be entitled to choose an access point anywhere they may reasonably select, when it is absolutely plain from the physical layout at the time of the conveyance that the access point was at and through the gate 4 feet 6 inches wide. This is not a case like Charles v Beach where access could be obtained at any point, nor Cooke v Ingram  Ch 671 where the grant expressly permitted access at any point along the common boundary. It seems to me that the specific point of access and egress must be ascertained from the physical circumstances prevailing at the time; and if reference is necessary to such circumstances to supply the point of access and egress, I do not see why it should not also supply its limitations. The restriction of the width of the gateway from the strip to the green land was and is of a permanent nature. It had been made eleven years before the conveyance of the strip. I do not accept that there is anything insubstantial or transient about a dry stone wall. There is nothing in the conveyance to suggest an intention on the part of the parties that the point or extent of the access or egress should be anywhere or to any extent greater than what was then capable of enjoyment."
i) it is expressed to be for "all purposes connected with the existing use of the property … as a private dwelling-house";
ii) it includes both vehicular and pedestrian rights;
iii) it is in terms a right to pass and re-pass along the roadway without point of limitation: i.e. it extends to the whole length of the roadway and not only as far as the existing garage and front door; and
iv) it is subject to the payment of a contribution to the upkeep of the roadway as a whole and the entrance-gate.
Literally construed, the grant clearly entitles the Raydens to make use of the roadway right along the front of their property and obliges them to make financial contributions to its maintenance and repair, regardless of the fact that, on the Claimant's case, they are only entitled to use it to obtain access via a front door and a garage door which are situated very much at the Elm Tree Road end of the roadway. The terms of the grant, when considered therefore in relation to No 6 as it existed at that date, appear to be inconsistent with the submission that the Raydens are entitled to use the roadway only to obtain access to their property via the original front door.
The Rights Granted to No 6A
"(2) The principles governing infringement of easements
Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it. There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the occurrence of the alleged obstruction. Thus, the grant of a right of way in law in respect of every part of a defined area does not involve the proposition that the grantee can in fact object to anything done on any part of the area which would obstruct passage over that part. He can only object to such activities, including obstruction, as substantially interfere with the exercise of the defined right as for the time being is reasonably required by him. Authority for that is to be found in the judgment of Russell L.J. in Keefe v. Amor  1 Q.B. 334 at 347. As Scott J. held in Celsteel Ltd v. Alton House Ltd  1 W.L.R. 204 at 217:
"There emerge from the three cases I have cited two criteria relevant to the question whether a particular interference with a right of way is actionable. The interference will be actionable if it is substantial. And it will not be substantial if it does not interfere with the reasonable use of the right of way."
" In my view, those passages justify the following propositions advanced by Mr Gaunt: (1) the test of an actionable interference is not whether what the grantee is left with is reasonable, but whether his insistence upon being able to continue the use of the whole of what he contracted for is reasonable; (2) it is not open to the grantor to deprive the grantee of his preferred modus operandi, and then argue that someone else would prefer to do things differently, unless the grantee's preference is unreasonable or perverse. I call them Mr Gaunt's first and second propositions.
After considering the impact on another tenant's ability to gain access to his garage, Scott J considered whether the narrowing of the driveway would constitute an actionable interference with the tenants' reasonable use of it. A p218C-G he said:
There are 56 flats at Cavendish House [the block of flats]. The rear driveway may be used by all of them, their visitors and licensees. Vehicles using the rear driveway may range from small cars to large commercial vans. On occasion, lorries may require to use the driveway. The plaintiffs were granted rights of way over a driveway nine metres or thereabouts in width, but with the usable width capable of being reduced by about two metres in the event of cars being parked along the east side of the driveway. I am reluctant to accept that a grantor, having granted a right of way over a nine-metre driveway, can reduce the width of the way by more than a half over an appreciable distance and then require the grantees to accept the reduction on the ground that what is left is all that they reasonably need. It seems to me that the proposed reduction will materially and permanently detract from the quality of the rear driveway and of the plaintiffs' rights over it… It does not seem to me possible to say that the permanent narrowing of the rear driveway from nine to 4.14 metres over the length of the proposed car wash would leave the rear driveway as convenient for the reasonable use of the plaintiffs as it was before the reduction. The plaintiffs have been granted a right of way over a nine-metre driveway. The enjoyment thereof to which they are entitled under their respective grants cannot, in my judgment, be limited by requiring them to accept a 4.14 metre driveway. If the freeholders wanted the right to construct a car wash on the driveway and thereby to reduce its width to 4.14 metres it was, in my judgment, incumbent on them to reserve that right in the leases. Not having done so, they are not, in my view, entitled to remedy the omission by arguing that 4.14 metres is all the plaintiffs reasonably need. The plaintiffs are, in my judgment, entitled under their grants to the relative luxury, if that is what it is, of a nine-metre right of way. That, after all, is part of what they have paid for.
That passage justifies the following further proposition advanced by Mr Gaunt, which I call Mr Gaunt's third proposition, namely that if the grantee has contracted for the "relative luxury" of an ample right, he is not to be deprived of that right, in the absence of an explicit reservation of a right to build upon it, merely because it is a relative luxury, and the reduced, non-ample right would be all that was reasonably required.
In short, the test, as Mr Gaunt submitted, is one of convenience, and not of necessity or reasonable necessity. Provided that what the grantee is insisting upon is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?"
I am not sure that I would have accepted what is referred to as Mr Gaunt's third proposition in quite the way it was formulated, but it is clear from West v. Sharp, as Blackburne J accepted, that the test is one of convenience and not a matter of determining the minimum space necessary in order to exercise the right.
The Rights Suspension Proviso
Consent, Acquiescence and Estoppel
"It requires very strong evidence to induce the Court to deprive a man of his legal right when he has expressly stipulated that he shall be bound only by a written document. It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make if fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possesser of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possesser of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possesser of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do."
More recently, however, judges have moved away from these five so-called probanda to a more flexible approach to the issue of when it becomes unconscionable for a party in such circumstances to insist upon his strict legal rights. In Habib Bank Ltd v. Habib Bank A.G. Zurich  1 WLR 1265 at page 1285, Oliver LJ said this:
"For myself, I believe that the law as it has developed over the past twenty years has now evolved a far broader approach to the problem than that suggested by counsel for the plaintiff and one which is in no way dependent on the historical accident of whether any particular right was first recognised by the common law or was invented by the Court of Chancery. It is an approach exemplified in such cases as Inwards v Baker  1 All ER 446,  2 QB 29 and Crabb v Arun District Council  3 All ER 865,  Ch 179. We have been referred at length to a recent judgment of my own in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd  1 All ER 897,  2 WLR 576 in which I ventured to collect and review the authorities. I said this ( 1 All ER 897 at 915–916,  2 WLR 576 at 593):
'Furthermore, the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson ((1866) LR 1 HL 129) principle (whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial) requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment rather than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.'
Whilst having heard the judgment read by counsel I could wish that it had been more succinct, that statement at least is one to which I adhere."
This approach follows the earlier lead given by Buckley LJ in Electrolux Ltd v. Electrix Ltd (No 2) (1953) 71 RPC 23, where at page 33 he said this:
"So I do not, as at present advised, think it is clear that it is essential to find all the five tests set out by Fry J. literally applicable and satisfied in any particular case. The real test, I think, must be whether upon the facts of the particular case the situation has become such that it would be dishonest or unconscionable for the plaintiff, or the person having the right sought to be enforced, to continue to seek to enforce it."
More recently the judgment of Oliver LJ in the Habib Bank case has been applied by the Court of Appeal in Jones v. Stones  1 WLR 1739.
The First Action
i) the use of the roadway in connection with the second floor works;
ii) the use of the roadway to install the external lights; and
iii) the exercise by the Raydens of their right of way until October 2002.
The Second Action
i) for the interference with the right of access between August 2002 and April 2004;
ii) for the consequences of the damp; and
iii) for trespass.
Damages for trespass have been agreed at £587.50. The controversial items are (i) and (ii). I shall deal first with item (ii).