In June 2000, the claimants sold part of their property to the defendants. The claimants reserved a right of way over an access road on the defendants' land which gave access onto the main road. At the time of the sale, the claimants' retained land was used for a water bottling business. The planning permission authorising this use was temporary and subject to a number of conditions. One of the conditions was that there was an adequate visibility splay at the junction with the main road, owing to the lorry movements in and out of the site.

In 2001, the defendants erected fencing and planted shrubs on the land which formed the visibility splay. In 2004, the local planning authority refused to make the claimants' temporary water bottling planning permission permanent. Among the reasons given by the authority was the inadequacy of vehicular access to the main road resulting from dangerous sight lines. In 2005 planning permission for an alternative use of the claimants' site as offices was also refused, on the same ground.

The claimants brought an action against the defendants alleging derogation from grant in relation to the right of way reserved in the transfer. Put simply, the doctrine of derogation from grant means that a grantor cannot give with one hand and take away with the other.

The Court of Appeal found in favour of the claimants, ruling that suitable splays were essential for the exercise of the right of way. It granted a mandatory injunction, requiring the defendants to restore the visibility splay. It also awarded the claimants £20,000 in damages to compensate them for the commercial use of which they had been deprived between 2006, when the planning permission for offices would have commenced, and the time that the visibility splay would again be restored.

Carter v Cole

Things to consider

This case forms an interesting contrast with another decision considered in this update; William Old International Ltd v Arya. In that case the High Court ruled that, save in exceptional circumstances, an easement cannot impose a positive obligation on the owner of the burdened land. The court in Arya also reinforced the principle that the doctrine of non-derogation from grant cannot impose a positive duty on the grantor. In Carter v Cole, the mandatory injunction granted by the court merely required the defendants to undo what they had done. This seems unobjectionable. However, what if, at the time of the sale, there were already shrubs growing on the visibility splay? If the defendants were still required to maintain the splay in order not to derogate from their grant of a right of way for lorries, this would require them to take positive action to prune the foliage when it grew.

The court's decision was based on the fact that the planning condition as to visibility splays existed at the time of the transfer to the defendants and the grant of the right of way. The transfer contained reference to the planning permission for other reasons and so the condition was known to the defendants at that time. The right of way in the transfer expressly included a right of access for lorries. The court ruled that this meant that what was granted, and could not be derogated from, was a right of access for lorries which required the splay as contemplated by both parties. The position may have been different if the condition as to the visibility splay had been imposed in a subsequent planning permission, after the transfer to the defendants.