Are you good at predicting the outcome of a case? If you are, then you may have a future as a litigator if you are not already practising that specialism. If you are not, then join the ranks of most litigators.

Try your prediction skills on this.

Background / Facts

  • In 2000, you buy 53 acres of land from your neighbour and move into a house on the land. Your neighbour retains the adjoining land of about an acre.
  • On that adjoining land there is a natural spring water well. In 1996, your neighbour leased the adjoining land giving the tenant a right of way over the land which you have now bought. The purpose of the right of way included access to the water bottling facility which the tenant was starting. Access over the right of way from the adjoining land to the main road had to include access by lorries.
  • The first relevant planning permission for the water bottling operation on the adjoining land was granted on 30 April 1996 and contained a condition restricting the hours of access for deliveries to the premises. The permission also contained a condition as to the visibility splay at the junction with the main road. The reason was “highway safety”. A further temporary permission was granted in 2002 with the same conditions as to hours of deliveries and visibility splay. A third temporary planning permission was granted in 2005 but with no condition as to a visibility splay. In January 2004, a further temporary permission was refused for the reasons mentioned below. A final temporary planning permission was granted in August 2005 (expiring in February 2006) for the purpose of enabling a winding down of the water bottling operation. In 2005, planning permission for use of the adjoining land as offices with ancillary storage was refused solely on the grounds of highway / visibility grounds.
  • In about 2001, you had started putting in fencing and the planting of shrubs on the land which forms part of what was the visibility splay. The consequence of this is that the Planning Inspector in his decision in 2004 refusing a further temporary planning permission concluded that “on the basis of existing sight lines I consider use of this access is potentially dangerous ….. I understand that there is no scope to improve the sight line to a satisfactory standard as [your neighbour] has no control over the necessary land”.

The Action / The Court Proceedings

Your neighbour has now taken proceedings against you claiming that your works of fencing and the planting of shrubs have interfered with the visibility splay and you have derogated from the grant of the right of way, granted in 2000. Your neighbour is claiming a mandatory injunction requiring you to restore the splay and damages.

Your Defence The right of way affecting your land is in these terms: A right of way for all purposes but only as regards the right of way by commercial lorries at times permitted by the conditions of the Planning Consent relating to the Retained Land with or without vehicles whether of a commercial nature or otherwise over and along the Right of Way … “.

You accept that this is a permanent right of way for lorries subject to the fact that they may not be used outside the times referred to in the Planning Consent. You accept that the right of way was not granted only for the period of the temporary planning permission and that it will not be limited to whatever conditions might be imposed in any future planning permissions. You also accept the general principle as to derogation from grant which in simple terms is that one cannot take away with one hand that which has been given by the other.

You consider that what Neuberger J said in Platt v London Underground [2001] is worthy of particular attention:

“One test that is often helpful to apply, where the Act complained of is the Landlord’s act or an omission on adjoining land, is whether the act or omission has caused the demised premises to become unfit or substantially less fit than the purpose for which they were let”. You maintain that it was not your act of interference with the splay which derogated from grant; rather it was the insistence of the Highway Authority and the Local Planning Authority that your neighbours were not in position to exercise control of the splay which was the real cause of the problem as regards access by lorries.

No doubt you have in mind that the right of way which was granted in 2000 relates to a specific route and makes no reference to visibility splays or in anyway restricts you from carrying on any particular activities on your land. You submit that it is not your interference with the splay but the fact that your neighbour has no control over it which resulted in planning permission being refused.

The Court’s Decision

You have derogated from your grant. If you had not interfered with the splays the Planning Inspector would not have found that the junction was dangerous as he did. Nor would he have said that there was no scope to improve the sight lines; his conclusion about that was based on the premise that your neighbour had no control over the necessary land. That was wrong, because your neighbour had a right of way for commercial vehicles, including lorries, and it was you who had no right to derogate from that which you had granted.

This means that your neighbour does have control of the necessary land in that neither you nor your successors in title may interfere with that splay.

You did make the point that the 2002 planning permission imposed no condition about the visibility splay and so the splay was not causally linked to the planning permission. Unfortunately the decision goes against you in that respect as well.

An injunction was granted against you requiring you to restore the visibility splay. You are also held liable in damages.

Comments

Did you make a correct prediction? The above are the facts of the case Terence John Carter and Jane Frances Carter v Jeffrey Mark Cole and Jacqueline Pamela Cole [2009).

It is a Court of Appeal decision where Jacob L J gave the only substantive opinion with which Sullivan L J and Laws L J agreed.

This is a potentially significant decision and imposed upon the land owner an obligation which some would consider considerably more burdensome than expected or appropriate. Developers know well that visibility splays can be crucial to an access to a development site and a well advised developer ensures that:

  • either he acquires the land which is required for a visibility splay [taking title to the area covered by the splay may be preferable in case the splay is required to be included within the actual highway land];  
  • or he takes the benefit of a restrictive covenant ensuring the area remains clear of obstructions or even obligations from the landowner to maintain the splay.

As a final comment it is interesting to note that:

The Coles had to appear before the Court of Appeal prior to the 2009 decision mentioned above in order to obtain leave to bring the appeal.

In their submission for leave they claimed that there was no derogation from grant because firstly, the grant was limited to the purposes of the 1996 planning permission which expired before the planting which the Carters complained about took place. Secondly, the refusal of planning permission and, to the extent that the adjoining land cannot be used for commercial purposes, the subsequent sterilisation of the adjoining land came about because the Carters failed to take in the conveyance which included the right of way a covenant restricting what the Coles could do with their land. Neither of these points appear to have been pressed in the actual appeal.

The Coles and Carters met in the Court of Appeal in 2006 in respect of this same right of way. Then the argument related to who was entitled to repair the roadway.

PS...

The decision on 26 June 2009 of Mr Justice Kitchin was much more easily predicted. In the case of Norwich City College of Further & Higher Education –v- Benjamin Michael McQuillin and June Adrienne Downes [2009] the claimant sought a declaration that there were no longer any covenants restricting the development of the claimant’s land by virtue of a 1936 Conveyance.

The Trafford Estate had, by that conveyance, sold the land subject to various restrictive covenants which had been expressly reserved “for the benefit of the Trafford Estate at Lakenham or the part or parts thereof for the time being remaining unsold”.

The claimant maintained that the restrictions were for the benefit of the Trafford Estate only and not for subsequent owners of the land as successors to the Trafford Estate.

The claimant sent out 1,000 letters to properties in the area giving notice of its intention to apply to the Court for the declaration and, ultimately, only two neighbours objected and indicated that they wanted to be respondents to the proposed application. At the hearing, in fact, only one attended, representing himself.

Mr Justice Kitchin seemed to have no difficulty in concluding that the covenants were to benefit the land comprising the Trafford Estate only for so long as it remained for the time being unsold and did not now benefit the respondents or indeed anyone else.

This case is a simple illustration of the importance of making it clear which land is to benefit from a covenant. If it is simply to benefit the land of the then vendor whilst the vendor owns that land, then the wording used in this case will suffice. If, however, it is intended that the future owners of the land are entitled to benefit then that should be made abundantly clear.