Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

leases can be modified.246 Minor exclusions affect public purposes, some Royal property, and military and aviation land.247

A buyer of the land may apply straight after his purchase,248 and the original covenanting party may also apply.249 Variation is discretionary, and the courts are naturally slow to allow any change to a recent covenant.250 It is quite different if there is a change of circumstances, for example the intrusion of Welsh mountain sheep into an open plan estate.251

3.Grounds for variation of covenants

[34.39] The Lands Tribunal252 has jurisdiction to discharge or modify253 restrictions under section 84 on the following grounds:

Any case must first be brought within one of the statutory paragraphs254 after which the Tribunal must decide as a matter of discretion whether it should exercise its powers.255

4.Objectors

[34.40] Potential applicants are all those interested in any land affected by any restriction.256 Claims are advertised to alert potential objectors,257 who must be drawn into the proceedings, that is any neighbour entitled to the benefit of the restrictive covenant258

246Re Calthorpe Estate (1973) 26 P & CR 120; D Marcus [1995] 11 EG 132.

247LPA 1925 s 84(7), (11); Westminster CC v. Duke of Westminster [1991] 4 All ER 136.

248Re Wickin’s Application (1962) 183 EG 541, Denning LJ; Jones v. Rhys-Jones (1974) 30 P & CR 451,

CA.

249Ridley v. Taylor [1965] 1 WLR 611, 618, Harman LJ; Shepherd Homes v. Sandham [1971] Ch 341,

352.

250Cresswell v. Proctor [1968] 1 WLR 906, 913, Russell LJ; Ridley v. Taylor [1965] 1 WLR 611, CA; Gilbert v. Spoor [1983] Ch 27, 32, Eveleigh LJ; PH Kenny [1982] Conv 452.

251Shepherd Homes v. Sandham [1971] Ch 341; (No 2) [1971] 1 WLR 1062; contrast Jones v. Rhys-Jones

(1974) 30 P & CR 451, CA (10 years).

252LPA 1925 s 84(2); SI 1996/1022, rr 13–20; Re Purkiss’ Application [1962] 1 WLR 902, Upjohn LJ;

Shepherd Homes v. Sandham (No 2) [1971] 1 WLR 1062, 1064–1066; Re Girl’s Day School Trust (1872)’s Applic [2001] EWCA Civ 380, [2002] 20 EG 227; Purfleet Farms v. SS for Transport LG&R [2002] EWCA Civ 1430, [2003] 02 EG 105.

253LPA 1925 s 84(1C) added in 1969.

254Appeal lies on point of law.

255Reviewable for public law unreasonableness: Gee v. National Trust [1966] 1 WLR 170, CA (must act on relevant evidence).

256LPA 1925 s 84(1).

257LPA 1925 s 84(3); SI 1996/1042 r 14. Re O’Reilly’s Applic (1993) 66 P & CR 485 (1100 circulars raised not one objection).

258All actual objectors must be joined; they are not liable for costs in the Tribunal but become liable if they defend subsequent court proceedings: Re Jeff’s Transfer (No 1) [1965] 1 WLR 972, Buckley J; (No 2) [1966] 1 WLR 841, Stamp J; Re Girls Day School Trust (1872)’s Applic [2001] EWCA Civ 380, [2002] 20 EG 227 (permission to appear if points of law which might succeed).

according to property law rules of transmission.259 If there is no qualified objector, modification may occur without a hearing,260 though the Tribunal would still need to consider whether there had been sufficient advertisement.261 Orders are proprietary and bind those who have not objected.262

5.No injury – Ground (c)

[34.41] Variation may occur if the proposed discharge or modification will not injure the persons entitled to the benefit.263 A landowner is usually entitled to judge his own interests.264 However, in Gee v. National Trust,265 the National Trust were overruled since the Tribunal decided that a proposed new house was fully screened and created no visual detriment to the Fal estuary. Even if there is no injury, variation still remains discretionary.

6.Restriction obsolete – Ground (a)

[34.42] Some restrictions become obsolete because of fundamental changes to the character of the neighbourhood,266 meaning that an injunction can no longer be obtained and the Lands Tribunal has a parallel jurisdiction to modify the covenant.267 The Tribunal also has wider power to deem a covenant obsolete because of less fundamental changes in the neighbourhood or other material circumstances.268 On demolition of a large mansion covenants taken to protect it become obsolete.269 Other examples are residential estate covenants once the area changes beyond all recognition270 or where the company granting approvals is dissolved.271 A covenant may even be obsolete immediately.272

Most covenants are upheld, especially if protecting the residential character of a development. Those benefitted are entitled to object to proposals which represent the thin end of a wedge.273 Restrictions created in 1865 at Wimbledon Common remained

259LPA 1925 s 84(3A); no appeal: Re Lancaster Gate (No 108) [1933] Ch 419.

260SI 1996/102 r 17. Ground (c) applies anyway.

261Re University of Westminster’s Applic [1998] 3 All ER 1014, CA.

262LPA 1925 s 84(5); Shepherd Homes v. Sandham [1971] Ch 341, 353, Megarry J; Re Ghey & Galton’s Applic [1957] 2 QB 650.

263LPA 1925 s 84(1)(c); not if money could be demanded for a release: Ridley v. Taylor [1965] 1 WLR

611.

264Re Ghey & Galton’s Applic [1957] 2 QB 650.

265[1966] 1 WLR 170, CA; Re Whiting’s Applic (1989) 58 P & CR 321, L Tr.

266Knight v. Simmonds [1896] 2 Ch 294; Sobey v. Sainsbury [1913] 2 Ch 513; Chatsworth Estates Co v. Fewell [1931] 1 Ch 224; Re Lancaster Gate (No 108) [1933] Ch 419.

267LPA 1925 s 84(1).

268Para (a); Re Truman Hanbury Buxton & Co’s Applic [1955] 3 All ER 559, 564A, Romer LJ.

269Re Freeman-Thomas Indenture [1957] 1 All ER 532; contrast Re Sheehy’s Applic (1992) 63 P & CR 95.

270Re Kennet Properties’s Applic (1996) 72 P & CR 353, L Tr; Wards Construction (Medway)’s Applic (1994) 67 P & CR 379, L Tr; Re Lloyd’s Applic (1993) 66 P & CR 112; Re Marcello Development’s Applic

[2002] RVR 146, L Tr.

271Crest Nicholson Residential (S) v. McAllister [2002] EWHC 2443 (Ch), [2002] 48 EG 140 (CS).

272Re Quaffer’s Applic (1988) 56 P & CR 142, L Tr.

273McMorris v. Brown [1999] 1 AC 142, PC.

of use in 1940.274 Covenants survive minor changes to the area.275 Prevention or backland or cul-de-sac development may survive as a purpose over a long period.276

7.Restriction impedes reasonable use – Ground (aa)

[34.43] This ground was remodelled in 1969, when it was separated from the obsolescence ground and significantly widened.277 Paragraph (aa) applies where the continued existence of the restriction would impede some reasonable use of the land for private or public purposes,278 for example, perhaps, building a bungalow on vacant land on Wentworth estate,279 or erecting fences to keep sheep out of gardens.280

Variation can occur only if no substantial benefits accrue.281 This filter cuts out some cases within the wording of paragraph (aa) because someone retains a substantial benefit,282 such as a resplendent view over the Tyne valley.283

Next step is for the Tribunal to balance the respective interests of the applicant and the objecting neighbours. Factors to be considered include the development plan, any pattern of grant or refusal of planning permission, the period at which and the context in which the restriction was created, and any other material circumstances.284 Grant of planning permission is not decisive,285 but considerable weight is attached to public interests including employment prospects.286 There is a presumption in favour of continuing covenants in a building scheme,287 or any estate scheme which is regularly enforced.288 Modification is likely if the covenant has already been waived in other respects.289

Compensation290 is possible where an obsolete restrictive covenant is varied, but it is most often awarded after modification of a restriction which retains some value.291 The Tribunal can award such sum as it thinks just. The basis of assessment is either (a) sums needed to make up loss or disadvantage suffered; or (b) a sum to make up for the reduced price paid when the restriction was imposed.292 Compensation is only

274 Re Henderson’s Conveyance [1940] Ch 835; Re North’s Applic (1998) 75 P & CR 117, L Tr; Re Diggen’s Applic (No 2) [2001] 3 EGLR 163, L Tr; Re Azfar’s Applic [2002] 1 P & CR 18 at 215, L Tr; and many others.

275Driscoll v. Church Commissioners for England [1957] 1 QB 330, Denning LJ.

276Re Beechwod Homes’s Applic (1992) 64 P & CR 535, L Tr.

277LPA 1969 s 28; Law Com 11 (1967).

278A less used ground is that the restriction is contrary to the public interest.

279Re Kalsi’s Applic (1993) 66 P & CR 313, L Tr.

280Shepherd Homes v. Sandham [1971] Ch 341.

281LPA 1925 s 84(1A); LPA 1969 s 28, sch 3; Re Hydeshire’s Applic (1993) 67 P & CR 93, L Tr.

282Re Snaith & Dolding’s Applic (1996) 71 P & CR 104, L Tr; Re Milius’ Applic (1995) 70 P & CR 427,

L Tr.

283Gilbert v. Spoor [1983] Ch 27, CA; Re Bushell’s Applic (1987) 54 P & CR 386, L Tr.

284LPA 1925 s 84(1B) introduced in 1969; eg the conduct of estate managers.

285Re Martin’s Applic [1989] 1 EGLR 193, CA; Re Hopcraft’s Applic (1993) 66 P & CR 475, L Tr.

286Re Hounslow & Ealing LBC’s Applic (1996) 71 P & CR 100, L Tr.

287Re Bromor Properties’ Applic (1995) 70 P & CR 569; Re Lee’s Applic (1996) 72 P & CR 439.

288Re Purnell’s Applic (1988) 55 P & CR 133, L Tr; and many later cases.

289Re Bradley Clare Estate’s Applic (1988) 55 P & CR 126, L Tr.

290LPA 1925 s 84(1); Re Kennet Properties’ Applic (1996) 72 P & CR 353; Re Jillas’ Applic [2000] 2 EGLR 99, L Tr; HW Wilkinson [2000] NLJ 1523, 1623.

291Re Spencer Flats [1937] Ch 86 (award £200 each upheld); Re Davies’ Applic [2001] 1 EGLR 111, L Tr; Re Hextall’s Applic (2000) 79 P & CR 382, L Tr.

292LPA 1925 s 84(1); head (a) or (b) but not both.

35

DIVISION

Grants and reservations. Use-based grants. Access to repair. Necessity. Implied reservations. Light acquired on division. Non-derogation from grant.

[35.01] Land is divided into physical parts when the owner of a whole title sells a part of it to a buyer. The buyer may acquire some rights associated with the land, called grants, but it also possible that the act of division will create rights kept back in favour of the seller, called reservations. Naturally enough the rights granted are more extensive than those reserved. Division is the occasion on which most express easements and covenants are created, but the subject of this chapter is the creation of rights through the act of division itself.1 Three main groups of rights are considered; affirmative easements, rights to light, and rights created by the principle of nonderogation from grant.

A. GRANTS AND RESERVATIONS

1.Effect of division

[35.02] Division creates two new neighbours, and this is the vital moment to crystallise the rights and obligations that will regulate the relationship between the landowners for the future. Easements, restrictions and positive covenants may all be required, and should be set out expressly and in detail in the deed causing division, but other rights may be implied.

2.Reservations

[35.03] Rights conferred on a buyer of part are called grants. They may be express2 or implied.3 Reservation occurs where a landowner divides his land and keeps rights over the part sold for the benefit of the land retained,4 of where a landlord reserves rights

1Hopkins Informal Acquisition, 185–250; Megarry & Wade (6th ed), [18.079–18.120].

2It is not necessary to use the word “grant”: Rowbotham v. Wilson (1860) 8 HLC 348, 362, 11 ER 463, Lord Wensleydale; Mobil Oil Co v. Birmingham CC [2001] EWCA Civ 1608, [2002] 2 P & CR 14 at 186.

3See below [35.06ff].

4Morris v. Edgington (1810) 3 Taunt 34, 36, 128 ER 10; Dynevor v. Tennant (1888) 13 App Cas 279, HL (easement).

when granting a lease.5 Most reservations are express, because the grounds for implied reservation are extremely restricted.6

Grants and reservations are distinguished simply by the sequence of the transactions. One example among many is Bridle v. Ruby.7 A company developing an estate transferred plot 12 to X (who later sold it to the defendant) and subsequently sold plot 13 to Y (who sold it on to the claimants). The division occurred on the first mentioned sale to X, who acquired grants for the benefit of No 12, leaving the company with reservations for No 13. Later sale of this plot (No 13) did not effect any further division, but merely passed any reservations created by the initial division of the two plots.

Since 1925,8 the seller passes the land to the buyer, keeping back out of the sale the right reserved.9 Hence it is possible to reserve a legal right even if the buyer does not execute the conveyance, and even if the right comes back to someone other than the seller.10 Nonetheless a reservation is treated as a regrant by the buyer, so as to be it is construed against the buyer and more favourably to the seller,11 according to St Edmundsbury & Ipswich Diocesan Board of Finance v. Clark (No 2).12

3.Simultaneous conveyance

[35.04] Simultaneous conveyances create grants in favour of each part.13

4.Proprietary character of implied grant

[35.05] Rights implied on a legal division of unregistered land are themselves legal, and they will override a transfer of part of a registered title.14

B. USE-BASED GRANTS

[35.06] The rules discussed here apply only to grant, as explained below,15 and are not available to create reservations.

5A Samuels (1963) 27 Conv (NS) 187.

6See below [35.25].

7[1989] QB 169, CA; Peckham v. Ellison (2000) 79 P & CR 276, CA..

8LPA 1925 s 65. A partial reform occurred in 1881: Cordell v. Second Clanfield Properties [1969] 2 Ch 9, 14, Megarry J.

9Old law distinguished exceptions of things in existence (trees and minerals) from reservations of services (leasehold rent, easements, “sporting” rights and other profits) which had to be by regrant: Mason v. Clarke [1954] 1 QB 460, 466–467, Denning LJ. But Hill v. Booth [1930] 1 KB 381, 387, Scrutton LJ, permits reservations of both sorts.

10LPA 1925 s 65(1); Johnstone v. Holdway [1963] 1 QB 601, CA; RE Megarry (1963) 79 LQR 182.

11Reversing pre-1926 law: South Eastern Rly Co v. Associated Portland Cement Manufacturers (1900)

[1910] 1 Ch 12, CA.

12[1975] 1 WLR 468, CA; PB Fairest [1974] CLJ 52; F Glover [1974] NLJ 184; White v. Richards (1994) 68 P & CR 105, CA; Wellbarn Shoot v. Shackleton [2002] 18 EG 151 (CS).

13Selby DC v. Samuel Smith Old Brewery (Tadcaster) [2001] 1 EGLR 71, CA.

14See above [33.19]. They will only continue to override if used each year or if discoverable at the time of a subsequent transfer of the burdened land, see above [33.20].

15See below [35.25].

1.General words passing rights in use

[35.07] General words are included in every conveyance or transfer of land by section 62 of the Law of Property Act 1925.16 Contractual conditions usually include similar terms.17

Pre-existing easements are transferred, but the general words have the more radical effect of creating new easements from informal rights in use at the time of the division, as a short extract shows:

“A conveyance of land shall . . . operate to convey with the land all . . . liberties, privileges, easements, rights and advantages whatsoever appertaining . . . to the land, or at the time of the conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land . . .”.

The dynamic effect arises from the fact that this wording extends beyond easements to “liberties, privileges, easements, rights and advantages”18 and the fact that it embraces not only true appurtenances but also things “demised, occupied, or enjoyed with” the land.

Creation is based on use before the time of division, the fact of use being more significant than how it came about.19 Permissive use of a coal shed by a tenant converts into an easement on renewal of the lease,20 friendly short cuts are promoted into rights of way,21 and licences to park become full easements.22 Repair of a gable wall carried out by permission of the neighbour becomes a right to do so when the ownership is divided.23 Other cases have involved permissive parking,24 light,25 rights of way,26 the use of a private garden,27 fencing,28 and profits.29

Although section 62 includes “all privileges . . . enjoyed with the land”, it only allows the creation of rights which are easement-like: it replaces words put into conveyances by the parties themselves and does not allow landowners to break property

16The section operates on conveyances executed after 1881; Simmons v. Dobson [1991] 1 WLR 720, CA (division on September 7th 1925); Borman v. Griffith [1930] 1 Ch 493. LRR 1925 r 251 provided a tailor made form of words in registered conveyancing but DLRR 2003 has no provision, leaving matters to s 62.

17Standard Conditions of Sale (3rd ed), [3.4]; Selby DC v. Samuel Smith Old Brewery (Tadcaster) [2001] 1 EGLR 71, CA; (Law Society’s Conditions); on express words: Pitt v. Buxton (1970) 21 P & CR 127, CA; Pallister v. Clark (1975) 30 P & CR 84, CA.

18Roswell v. Prior (1701) Holt KB 500, 90 ER 1175; Kay v. Oxley (1875) LR 10 QB 360; Barkshire v. Grubb (1881) 18 Ch D 616; Roe v. Siddons (1888) 22 QBD 224, CA; P Jackson (1966) 30 Conv (NS) 340, 340–346.

19May v. Belleville [1905] 2 Ch 605.

20Wright v. Macadam [1949] 2 KB 744, CA; RE Megarry (1950) 66 LQR 302; L Tee [1998] Conv 115.

21International Tea Stores v. Hobbs [1903] 2 Ch 165; Roe v. Siddons (1888) 22 QBD 224, CA.

22Hair v. Gillman [2000] 3 EGLR 74, CA.

23Ward v. Kirkland [1967] Ch 194; Graham v. Philcox [1984] QB 747; P Todd [1985] Conv 60.

24Handel v. St Stephens Close [1995] 1 EGLR 70, Aldous J; HW Wilkinson [1994] NLJ 579; P & S Platt v. Crouch [2002] EWHC 2195 (Ch), [2002] 45 EG 153 (mooring).

25Lyme Valley Squash Club v. Newcastle-under-Lyme BC [1985] 2 All ER 405.

26Graham v. Philcox [1984] QB 747, CA; Pitt v. Buxton (1970) 21 P & CR 127, CA; Nickerson v. Barraclough [1981] Ch 426, CA.

27Mulvaney v. Gough [2002] EWCA Civ 1078, [2002] 44 EG 175.

28Crow v. Wood [1970] 1 QB 77, CA.

29National Trust v. White [1987] 1 WLR 907, 1028 (commons).

law rules.30 Excluded from its scope are personal rights not related to the land,31 public rights,32 access enjoyed when convenient,33 and non-easements such as protection from the weather.34

2.Continuous and apparent easements under Wheeldon v. Burrows

[35.08] A person selling land is not permitted to grant the land with one hand and withhold the rights necessary for enjoyment of the land with the other. That moral principle was applied to easements by Thesiger LJ in a lengthy obiter discussion in Wheeldon v. Burrows.35 He confirmed that the implication of easements is limited by restrictive conditions, summarised by Bowen LJ in Ford v. Metropolitan and Metropolitan District Rly Cos36 in this way:

“A grant of a part of a tenement will pass to the grantee all those continuous and apparent easements over the other part of the tenement which are necessary to the enjoyment of the part granted and have been hitherto used therewith.”

These conditions are cumulative.37

(1) Continuous and apparent

[35.09] The need for an easement to be continuous was laid down in connection with light,38 the continuity of which is not affected by the odd moonless night.39 Rights of way and other affirmative rights are not continuous in any literal sense, but the condition has been diluted so severely as to become unidentifiable. Thus a right to use a wire permanently laid in the ground is continuous, even when the electricity is switched off.40 Rights of way are also now41 admitted, if used when appropriate and with some degree of continuity.42 Projection of bowsprits of ships undergoing repair over an adjoining dry dock is non-continuous.43

More limiting is the need for an easement to be apparent. Some permanent physical adaption of the burdened land is required which demonstrates the existence of the

30Burrows v. Lang [1901] 2 Ch 502.

31Goldberg v. Edwards [1950] 2 Ch 247, CA (access for customers; a tough decision?)

32Le Strange v. Pettefor (1839) 161 LT 300.

33Green v. Ashco Horticulturalist [1966] 1 WLR 889; Bartlett v. Tottenham [1932] 1 Ch 114.

34Phipps v. Pears [1965] 1 QB 76, 84, Lord Denning MR.

35(1879) 12 Ch D 31, 49, 58–59; Russell v. Watts (1885) 10 App Cas 590, 596, Earl of Selborne (light); Dalton v. Henry Angus & Co (1881) 6 App Cas 740, 820–821, 826, Lord Blackburn; Sovmots Investments v. SS for Environment [1979] AC 144, 168D–169C, Lord Wilberforce, 175A–176E, Lord Edmund-Davies.

36(1886) 17 QBD 12, 27.

37Millman v. Ellis (1996) 71 P & CR 158, 162, Bingham MR.

38Palmer v. Fletcher (1663) 1 Lev 122, 83 ER 329; Allen v. Taylor (1880) 16 Ch D 355; Phillips v. Low [1892] 2 Ch 47.

39Compton v. Richards (1814) 1 Price 27, 145 ER 1320; Wheeldon v. Burrows (1879) 12 Ch D 31, 60, Thesiger LJ.

40Harvey v. Walters (1873) LR 8 CP 162, 164, Grove J (eavesdrop).

41Initially excluded: Watts v. Kelson (1871) LR 6 Ch App 166. But later admitted: Thomas v. Owen (1877) 20 QBD 225; Schwann v. Cotton [1916] 2 Ch 120, Astbury J.

42Aldridge v. Wright [1929] 2 KB 117, 124, CA; Hall v. Lund (1863) 1 H & C 676, 158 ER 1055 (discharge of pollution 7 times a fortnight held continuous); Borman v. Griffith [1930] 1 Ch 493, 499.

43Suffield v. Brown (1864) 4 De GJ & S 185, 46 ER 888.

right to a knowledgeable observer making a careful inspection.44 Light is apparent since it must pass through a window.45 Drains can pass,46 but not a claim to enter the neighbour’s yard to repair the end wall of a cottage which has no feature specific to its maintenance.47

A right of way is not apparent if there is no gate or opening to it.48 But it can pass if there is visible evidence of the way,49 examples being a back lane leading to a terrace of houses,50 an access through a hall,51 a formed way leading to gates in a wall,52 a made way,53 and an undefined way between two defined gates.54 Use of a lay by may be apparent from the fact that it shares a single tarmac coating with the access drive.55

(2) Necessary for reasonable enjoyment of land sold

[35.10] Use-based easements need not be necessary in the literal and physical sense, since the test is what is needed for reasonable enjoyment.56 Light is needed before a house can be occupied.57 Factors affecting rights of way include the layout of the property, the convenience of alternative accesses, and the cost of provision of an alternative access.58 In Borman v. Griffith59 a right of way over the main driveway through a park was reasonably necessary, since the alternative rear access was an unmetalled track which was muddy and potholed and unsuitable for the tenant’s poultry dealing. On the other hand in Goldberg v. Edwards60 a business tenant failed to obtain access through the hall of an office building to a rear annexe since a previous tenant had managed without it. In Millman v. Ellis,61 an express easement permitted access to a main road but only by way of a sharp and dangerous turn onto the main road, but a much safer sweeping turn on to the main road making use of the seller’s lay-by was “necessary” when the increased safety was considered.62

44Pyer v. Carter (1857) 1 H & N 916, 156 ER 1472, Watson B (this point remains sound); Ward v. Kirkland [1967] Ch 194, 225, Upjohn J.

45Compton v. Richards (1814) 1 Price 27, 145 ER 1320; Wheeldon v. Burrows (1879) 12 Ch D 31, 60.

46Simpson v. Weber (1925) 133 LT 46.

47Ward v. Kirkland [1967] Ch 194.

48Roe v. Siddons (1888) 22 QBD 224, CA; Titchmarsh v. Royston Water Co (1899) 81 LT 673.

49Glave v. Harding (1858) 27 LJ Ex 286, 292, Bramwell B; Schwann v. Cotton [1916] 2 Ch 120, Astbury J.

50Hansford v. Jago [1921] 1 Ch 322.

51Ford v. Metropolitan & Metropolitan District Rly Cos (1886) 17 Ch D 12, CA.

52Brown v. Alabaster (1887) 37 Ch D 490, Kay J.

53Watts v. Kelson (1871) LR 6 Ch App 166; Kay v. Oxley (1875) LR 10 QB 360; Barkshire v. Grubb (1881) 18 Ch D 616; Bayley v. Great Western Rly (1884) 26 Ch D 434, CA.

54Aldridge v. Wright [1929] 2 KB 117, CA.

55Millman v. Ellis (1996) 71 P & CR 158, CA; J West [1995] Conv 346.

56Wheeldon v. Burrows (1879) 12 Ch D 31, 49, Thesiger LJ; Union Lighterage Co v. London Graving Dock Co [1902] 2 Ch 557, 573, Stirling LJ.

57Palmer v. Fletcher (1663) 1 Lev 122, 83 ER 329; Wheeldon v. Burrows (1879) 12 Ch D 31, 58, Thesiger LJ; Ray v. Hazeldine [1904] 2 Ch 17.

58Pyer v. Carter (1857) 1 H & N 916, 156 ER 1472; Watts v. Kelsen (1871) LR 6 Ch App 166, 174 (tank to water cattle).

59[1930] 1 Ch 493; H Potter (1930) 46 LQR 271; Brown v. Alabaster (1887) 37 Ch D 490 (back way to garden). Compare Wheeler v. JJ Saunders [1996] Ch 19, 25F, Staughton LJ; MP Thompson [1995] Conv

60[1950] Ch 247, CA; RE Megarry (1950) 66 LQR 302.

61(1996) 71 P & CR 158, CA; J West [1995] Conv 346.

62At 163–164, Bingham MR.

(3) Satisfactory conditions?

[35.11] Gale’s book was responsible for importing the Wheeldon v. Burrows conditions into England from the Code Napoléon.63 Although at first sight illogical, they achieve a pragmatic and workable synthesis. It is sensible to allow non-documentary rights, but also to confine them to important rights (those reasonably necessary) which are discoverable by a potential buyer (apparent).

3.Use

[35.12] An easement which has never been exercised cannot be granted impliedly as a use-based right.64 Sovmots Investments v. Secretary of State for the Environment65 concerned Centre Point, the familiar landmark on the corner of Tottenham Court Road and New Oxford Street. The developer had left it empty for many years, until the council eventually resolved on compulsory purchase of a block of flats forming part of the rear of the site. Access was required through the remainder of the development including lifts and staircases. No right could be implied under either section 62 or Wheeldon v. Burrows, since no access had ever been obtained.66 Section 62 is limited to things which exist at the time of the conveyance,67 so that light will not pass when a new house is sold by the builder.68

Use at the time of the grant mentioned in Wheeldon v. Burrows69 is more satisfactorily formulated as “hitherto used therewith.”70 A use that ceased many years before division could not be revived on sale,71 but a use-based grant should be allowed despite a temporary suspension at the time of division – perhaps because both properties were empty awaiting sale.72 Quantification follows from the actual use of the property made before the division73: thus in Nickerson v. Barraclough74 an agricultural right of way was implied from agricultural use, but not an access for so as to allow building.

63French law could imply reservations as well as grants; ECC Firth (1894) 10 LQR 323; AWB Simpson (1967) 83 LQR 240.

64Compton v. Richards (1814) 1 Price 27, 145 ER 1320 (light to a proposed building).

65[1979] AC 144, 168D–169C, 175A–176E, 179B, 183C–G; P Smith (1978) 42 Conv (NS) 449; C Harpum (1977) 41 Conv (NS) 415; Suffield v. Brown (1864) 4 De GJ & S 185, 194, 46 ER 888, Lord Westbury LC; Titchmarsh v. Royston Water Co (1899) 81 LT 673.

66The compulsory purchase legislation did not (at the time) contain the necessary power to secure easements but Compulsory Purchase Act 1965 sch 3 is now amended to allow this.

67Roe v. Siddons (1888) 22 QB 224, 235; Ward v. Kirkland [1967] Ch 194, 229G.

68Birmingham Dudley & District Banking Co v. Ross (1888) 38 Ch D 295, CA. (on 1881 Act); Broomfield

v.Williams [1897] 1 Ch 602, CA; Godwin v. Schweppes [1902] 1 Ch 926, Joyce J; Frederick Betts v. Pickfords

[1906] 2 Ch 87, Kekewich J; Lyme Valley Squash Club v. Newcastle under Lyme BC [1985] 2 All ER 405.

69(1879) 12 Ch D 31, 49, Thesiger LJ; Sovmots [1979] AC 144, 169A, Lord Wilberforce.

70Ford v. Metropolitan and Metropolitan District Rly Cos (1886) 17 QBD 12, 27, Bowen LJ.

71Re Broxhead Common (1977) 33 P & CR 451 (non-exercise 1926–1948); Payne v. Inwood (1997) 74 P & CR 42, CA (non-exercise 1969–1979); MP Thompson [1997] Conv 453.

72Simmons v. Dobson [1991] 1 WLR 720, CA; Costagliou v. English (1969) 210 EG 1425, 1429 (lane not used for 10 months); Pretoria Warehousing Co v. Skelton [1993] EGCS 120; A Dowling [1994] Conv 238.

73Similar to an express grant of a way “as hitherto used and enjoyed”: Nicklin v. Pierson (1971) 220 EG 649, CA; Miller v. TG Dobson & Co (1971) 220 EG 1595.

74[1980] Ch 325, 336E, Megarry V-C; on appeal [1981] Ch 426, 442H–445C, Brightman LJ.