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

4.Use-based rights restricted to grants

[35.13] Use-based rights pass only to buyers under grants. When land is divided by a voluntary act75 a grant occurs in favour of a person who receives a part, whether as buyer, or donee or under a gift by will.76 Simultaneous sales – usually at auction77 – have only buyers, and implied grant operates in favour of all. Use is not a basis for implied reservation.78 Sellers can only continue uses that have been expressly reserved. Ever since 1894 some people have thought that the order of sales should be irrelevant,79 but this has become more pressing with the growth of registered titles because one cannot tell from a register the order of sale of two adjoining plots of land.

5.Who exercises use-based grants?

[35.14] There are two fundamental situations, but four permutations created from the two heads of use-based grants.

(1) Owner occupier dividing his land

[35.15] During unity of ownership, the landowner exercises rights of ownership80 possibly including easement-like rights called quasi-easements. These are not true easements because a person does not need rights over parts of his own land. On physical division, Wheeldon v. Burrows converts quasi-easements to full easements, provided of course that they are continuous and apparent and reasonably necessary. However, section 62 of the Law of Property Act 1925 will not imply easements in this case when it is most often needed,81 because the section only applies to the division of ownership of land already in separate occupations. Emphatic dicta in Sovmots Investments v. Secretary of State for the Environment82 limited section 62. Compulsory purchase of part of an empty development passed no rights since during common ownership there were only acts of ownership. Express general words overcome this limitation if they refer to quasi-easements.83

75Not on compulsory purchase: Serff v. Acton Local Board (1886) 31 Ch D 679; Sovmots Investments v. SS for Environment [1979] AC 144, HL; Proctor v. Hodgson (1855) 10 Exch 824, 156 ER 674 (escheat).

76Phillips v. Low [1892] 1 Ch 47; Pearson v. Spencer (1863) 3 B & S 761, 122 ER 285; Milner’s Safe Co v. Great Northern & City Rly Co [1907] 1 Ch 208. After 1925 legal division occurs by assent.

77Irrespective of the order of completions: Swansborough v. Coventry (1832) 9 Bing 305, 131 ER 629; Russell v. Watts (1885) 10 App Cas 590, 612, Lord Russell; Hansford v. Jago [1921] 1 Ch 322; Allen v. Taylor (1880) 16 Ch D 355; Long v. Gowlett [1923] 2 Ch 177.

78See below [35.25].

79E Firth (1894) 10 LQR 323, 329.

80Greathead v. Morley (1841) 3 M & G 139, 133 ER 1090; Martyn v. Williams (1857) 1 H & N 817, 830, 156 ER 1430, Martin B.

81Long v. Gowlett [1923] 2 Ch 177; C Harpum (1979) 43 Conv (NS) 113; Bolton v. Bolton (1879) 11 Ch D 968; P Jackson (1966) 30 Conv (NS) 340, 346–348.

82[1979] AC 144, HL; but for light see below [35.26].

83Simmons v. Dobson [1991] 1 WLR 720, CA; P Sparkes [1992] Conv 167, 177–178.

(2) Separate occupiers

[35.16] If there is common ownership of benefitted and burdened land but the occupation is divided,84 both forms of use-based rules are in play. Personal exercise by the grantor is not required85 and use by a tenant suffices.86 General words also operate87 even where the right is exercised for the benefit of more land than that included in the conveyance.88

6.Contract and conveyance

[35.17] Wheeldon v. Burrows applies to transactions operating either at law or in equity, including a freehold conveyance and the grant of a legal lease,89 but also a contract for sale or equitable lease90 – even if the formal conveyance is never executed. By way of contrast, section 62 applies only to a “conveyance”, a term defined91 to include a transfer of part of a registered title, a conveyance of unregistered land, a legal lease by deed, and informal short legal lease92; but if the interpretation is liberal, benevolence is exhausted at the point of contracts and equitable leases which fall outside section 62.93 These rules are complex and unsatisfactory. Contractual rights are superseded once a conveyance is executed, but it is often possible to rectify the deed to make it correspond to contractual rights provided that no third party is injured in the process.94 Under an open contract section 62 rights may be excluded from the conveyance.95 Problems arise if the sequence of contracts and transfers is distorted.96

7.Exclusion

[35.18] All implied grants are based on the presumed intention of the parties, and can be excluded,97 since there would be no justice in continuing existing uses against the

84MRA Engineering v. Trimster Co (1988) 56 P & CR 1, CA.

85Despite Wheeldon v. Burrows (1879) 12 Ch D 31, 49, Thesiger LJ.

86Ford v. Metropolitan District Rly Cos (1886) 17 QBD 12, 28–29, Bowen LJ; Borman v. Griffith [1930] 1 Ch 493; Goldberg v. Edwards [1950] Ch 247; Ward v. Kirkland [1967] Ch 194; DA Stroud (1940) 56 LQR 93; P Sparkes [1992] Conv 167.

87International Tea Stores v. Hobbs [1903] 2 Ch 165; May v. Belleville [1905] 2 Ch 605; Crow v. Wood

[1971] 1 QB 77, CA (previous tenant).

88Graham v. Philcox [1984] QB 747; P Todd [1985] Conv 60; S Tromans [1983] CLJ 15. But not so as to benefit land excluded from the conveyance: Nickerson v. Barraclough [1981] Ch 426, 442–445, Brightman LJ (plot 78A).

89Easements implied into a lease are limited to the duration of the leasehold estate: White v. Bass (1862) 7 H & N 722, 158 ER 660 (merger); Warner v. McBryde (1871) 36 LT 360; Westwood v. Heywood [1921] 2 Ch 130.

90Borman v. Griffith [1930] 1 Ch 493, Maugham J; H Potter (1930) 46 LQR 271.

91LPA 1925 s 205(1)(ii).

92S 54(2); Wright v. Macadam [1949] 2 KB 744, CA.

93Borman v. Griffith [1930] 1 Ch 493.

94Clark v. Barnes [1929] 2 Ch 368; Bolton v. Bolton (1879) 11 Ch D 968; Peck & London School Board’s C [1893] 2 Ch 315, 321, Chitty J; Lyme Valley Squash Club v. Newcastle-under-Lyme BC [1985] 2 All ER 405; Holow (470) v. Stockton Estates (2001) 81 P & CR 404, Ch D.

95Re Walmsley & Shaw’s C [1917] 1 Ch 93; Re Lyne-Stephens & Scott-Miller’s C [1920] 1 Ch 472.

96Beddington v. Atlee (1887) 35 Ch D 317 (claimant with the second contract obtained the fist conveyance; plot 2 received no light over plot 1); White v. Taylor (No 2) [1969] 1 Ch 160, 183–184, Buckley J; also Booth v. Alcock (1873) LR 8 Ch App 663; Quicke v. Chapman [1903] 1 Ch 659.

97Eg if a faculty is required from a Church court: Re St Clements [1988] 1 WLR 720.

wishes of the parties. Exclusion of the rule in Wheeldon v. Burrows98 may be express, implicit in the grant of inconsistent rights,99 or implied.100 Birmingham Dudley & District Banking Co v. Ross101 shows that no right to light arises if the right to build is clearly reserved. Section 62 applies in the same way: it applies only to the extent that no contrary intention is expressed in the conveyance,102 for example by reservation of the seller’s right to build.103 However, an express easement is granted, section 62 may nevertheless operate to confer wider rights than those conferred by an express grant,104 or a more limited form of general words105 unless the drafting is clear to exclude this, and separate exclusion of Wheeldon v. Burrows is required.106

C. ACCESS TO REPAIR

[35.19] Access to repair has not been viewed as a “necessity” for a householder in modern cases such as Kwiatkowski v. Cox.107 A house was built so as to be flush to the plot boundary creating a self-evident need to gain access for repair, but not, Goff J held, any implied right of access. Parliamentary intervention became necessary. The proximate cause of the legislation was a dispute about the side wall of a bungalow on the outskirts of Poole to which access was refused, apparently after a disagreement about the pruning of an apple tree.108

Sterilisation of land is avoided by the Access to Neighbouring Land Act 1992109 which gives a right to seek an access order.110 Orders are discretionary with much reliance on what is “reasonable”.111 An access order can be obtained by any person112 who wishes to enter neighbouring land for the purpose of carrying out works to his land and who cannot obtain the necessary permission to do so.113 Dean v. Walker114 decided that the Act included work on a party wall (which counts as “land”) but left open whether the Act could apply to work on the neighbour’s land. An order can be

98Borman v. Griffith [1930] 1 Ch 493, 499, Maugham J.

99Millman v. Ellis (1996) 71 P & CR 158, 164–165, Bingham MR; J West [1995] Conv 346; Mobil Oil v. Birmingham CC [2001] EWCA Civ 1608, [2002] 2 P & CR 14 at 186.

100Wheeler v. JJ Saunders [1996] Ch 19, 31B, Peter Gibson LJ (covenant to erect fence excluded right of way); MP Thompson [1995] Conv 239.

101(1888) 38 Ch D 295, CA; 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; Paragon Finance v. City of London Real Property Co [2002] 1 P & CR 470, Ch D.

102Jelbert v. Davis [1968] 1 WLR 589, 593H, Lord Denning MR; Hansford v. Jago [1921] 1 Ch 322;

Lyme Valley Squash Club v. Newcastle under Lyme BC [1985] 2 All ER 405; Selby DC v. Samuel Smith Old Brewery (Tadcaster) [2001] 1 EGLR 71, CA.

103Quicke v. Chapman [1903] 1 Ch 659; Green v. Ashco Horticulturalist [1966] 1 WLR 889.

104Gregg v. Richards [1926] Ch 521; Hapgood v. JH Martin & Son (1934) 152 LT 72.

105Hansford v. Jago [1921] 1 Ch 322.

106Re Peck & London Schools Board’s C [1893] 2 Ch 315.

107(1969) 213 EG 34; contrast Williams v. Usherwood (1981) 45 P & CR 235, 254, Cumming Bruce LJ.

108Hansard, HL vol 531 (1991), cols 166–168.

109Law Com 151 (1985); RT Oerton (1992) 136 SJ 466; JE Adams [1992] 26 EG 136; G Sheriff [1992] 27

LSG 23.

110HW Wilkinson [1992] Conv 225.

111Hansard, HL vol 533 (1991), col 824, Lord Wilberforce; R Hudson [1992] NLJ 316.

112Widely defined to include owners, licensees, and service providers.

113S 1(1).

114(1996) 73 P & CR 366, CA.

made if access is strictly necessary or if the alternative would be substantially greater difficulty unless an order will create an unreasonable interference.115 The right to an order cannot be excluded, a fact which will encourage negotiation.116 Work should be allowed if it is reasonably necessary for the preservation of the land, a concept tightly defined to include maintenance, repair, and renewal of the fabric of the land, similar works to drains and other services, the treatment of hedges, trees, and shrubs, and filling in a ditch. Orders may also cover alterations and improvements to the land or demolition of the whole or part of a building.117

Homes remain castles while turrets are repointed and fenestration is checked!118 Precise works must be specified as must the area affected, and the date and duration of access.119 Applications require careful drafting, though orders can be varied as work proceeds.120 Terms and conditions can be imposed to minimise the damage to the burdened land and the inconvenience and loss of privacy.121 Payment cannot be required for a licence to enter residential land, but it will be commonplace for work in the commercial sector.122

Access arrangements need to be registered so as to bind purchasers of the land – as a pending land action at the application stage and as a writ or order when a final order is obtained. Neither is overriding.123 Although the benefit does not pass directly on sale, new owners can be authorised to exercise the rights.124

D. NECESSITY

[35.20] Necessary easements are implied by the law on the division of land, but necessity excludes rights which would be no more than convenient or helpful. Justice requires a grant in favour of the buyer to enable him to profit from the seller’s grant.125 Reservations to the seller are also allowed:126 the justice may be less obvious, but the right of a seller to get access to land he himself causes to be landlocked is well settled.127

1.Ways of necessity

[35.21] If the division of land leaves a part of it landlocked, a way of necessity will be implied to enable the part owner to reach his land.128 Victorian case law suggests that

115Access to Neighbouring Land Act 1992 s 1(3); R Hudson [1996] NLJ 316.

116Access to Neighbouring Land Act 1992 s 4(4); G Sheriff [1992] 27 LSG 23.

117Access to Neighbouring Land Act 1992 s 1(2)–(5).

118HW Wilkinson [1992] Conv 225, 231.

119Access to Neighbouring Land Act 1992 s 2(1).

120S 6.

121S 2(2)–(4).

122S 2(5)–(6).

123S 5, as amended by LRA 2002 sch 11.

124Access to Neighbouring Land Act 1992 s 4(2).

125Clarke v. Cogge (1608) Cro Jac 170, 79 ER 149.

126Crossley & Sons v. Lightowler (1867) LR 2 Ch 478, 486, Chelmsford LC.

127Wheeldon v. Burrows (1878) 12 Ch D 31, 57–58, Thesiger LJ; London Corp v. Riggs (1880) 13 Ch D 798, 808, Jessel MR.

128JF Garner (1960) 24 Conv (NS) 205; P Jackson (1981) 34 CLP 133.

it was not unusual to buy land without any guaranteed access! Land is landlocked if completely surrounded by the seller’s land (or partly his and partly a stranger’s),129 judged at the time of the division.130 In Nickerson v. Barraclough131 Aylward acquired ownership of plot 78A in 1906 but no way of necessity was implied, because at that moment he owned five adjoining plots which gave him the access he needed. Necessity is limited to the purpose for which the land is used at the time of division, perhaps for example for agriculture.132

The alternative access133 might be over a private right of way,134 or a public footpath135 or by water.136 Legal rights of access remove any necessity even if a cutting 20 feet deep has to be dug to reach it.137 Many potential accesses are prevented by highway or planning considerations and the law needs to be recast to take account of that problem. Termination of the necessity extinguishes the implied easement.138 A way of necessity usually follows the route of the access used before the sale,139 but if there was no particular path, it is left to the seller to nominate the route.140

Very old cases recognised the necessity for water, support, flues,141 or even light.142 Most such cases now fit better into other heads of implied creation,143 and appeals to necessity are rarely successful.144

2.Easements necessary to complete an express easement

[35.22] If an easement is only partially expressed, it can be completed by implication of associated rights provided they are strictly “necessary”.145 Parking rights in a garage imply the need for access to reach the garage. A right to draw water from a spring is nugatory unless it implies the right to reach it.146

129 Titchmarsh v. Royston Water Co (1899) 81 LT 673; Barry v. Hasseldine [1952] 2 All ER 317, Danckwerts J.

130Bolton v. Bolton (1879) 11 Ch D 968, Fry J. Not by the act of an outside person: Penn v. Wilkins [1975] 2 EGLR 113, Megarry J.

131[1981] Ch 246, CA; P Jackson (1982) 98 LQR 11; HW Wilkinson (1982) 132 NLJ 224; L Crabb [1981] Conv 442; reversing: [1980] Ch 325, Megarry V-C; P Jackson (1980) 96 LQR 187; JT Farrand [1980] Conv

95.See also Dodd v. Burchell (1862) 1 H & C 113, 158 ER 822; Thomas v. Waterlow (1868) LR 6 Eq 36.

132London Corp v. Riggs (1880) 13 Ch D 798.

133Necessity exists where access is permissive: Barry v. Hasseldine [1952] Ch 835, Danckwerts J.

134Staple v. Heydon (1703) 6 Mod 1, 87 ER 768.

135MRA Engineering v. Trimster Co (1988) 56 P & CR 1, CA.

136Manjang v. Drammeh (1990) 61 P & CR 194, PC; C Harpum [1992] CLJ 220.

137Titchmarsh v. Royston Water Co (1899) 81 LT 673.

138Pomfret v. Ricroft (1670) 1 Wms Saund 321, 85 ER 454; and many later cases.

139Pinnington v. Galland (1853) 9 Exch 1, 156 ER 1.

140Bolton v. Bolton (1879) 11 Ch D 968, Fry J; Brown v. Alabaster (1887) 37 Ch D 490, 500, Kay J;

Deacon v. South Eastern Rly (1889) 61 LT 377; Wellbarn Shoot v. Shackleton [2002] 18 EG 151 (CS).

141Nicholas v. Chamberlain (1607) Cro Jac 121, 79 ER 105 (flue); Wheeldon v. Burrows (1879) 12 Ch D 31, 50–51, 54, Thesiger LJ; Greg v. Planque [1936] 1 KB 669, CA.

142Ray v. Hazeldine [1904] 2 Ch 17, Kekewich J obiter.

143White v. Bass (1862) 7 H & N 722, 158 ER 660, Wilde B.

144Union Lighterage Co v. London Graving Dock Co [1902] 2 Ch 557, 573, Stirling LJ; Milner’s Safe Co v. Great Northern Rly Co [1907] 1 Ch 208.

145London & Suburban Land and Building Co (Holdings) v. Carey (1991) 62 P & CR 480, Millett J (unloading); Handel v. St Stephens Close [1994] 1 EGLR 70 (parking, triable issue).

146Pwllbach Colliery Co v. Woodman [1915] AC 634, 646, Lord Parker; Hinchcliff v. Kinnoul (1835) 5 Bing NC 1, 24, 132 ER 1004; Duke of Westminster v. Guild [1985] QB 688, CA; P Jackson [1985] Conv 66; Lomax v. Wood [2001] EWCA Civ 1099, [2001] June 11th, CA (right to construct gate).

3.Easements necessary to achieve an intended purpose

[35.23] Necessity may spring from the purpose for which land is sold rather than its physical layout. As Lord Parker stated in Pwllbach Colliery Co v. Woodman:147

“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.”148

Purpose-based implication is based on necessity as opposed to mere convenience.149 In Wong v. Beaumont,150 a basement in Exeter, just along from the Law Faculty

building of the author’s time as a student, was let for use as a Chinese restaurant. It was so badly ventilated that a duct had to be fixed to the landlord’s property above to take away cooking smells. Public health regulations prohibited use of the basement for the purpose intended by the lease without this additional ventilation, though this legal necessity was unknown to either party at the time of the lease. A successor landlord was bound by the declaration granted to the tenant.

Necessity arises from future intended purposes and is not constrained by the earlier use.151 A sale of building land may require the implication of a whole range of easements to facilitate the building.152 Where the intended layout of the houses and estate roads is indicated, rights of way might be implied over intended future roads,153 a wide potentiality recently confirmed in Stafford v. Lee.154 This is also used to create reservations. In Peckham v. Ellison155 the right included was use of a track at the back of a house acquired under the right to buy scheme. It was a necessary inference that the common intention both parties was that the seller was to have use of track. Reservation will not occur where the facts do not establish a common intention or suggestion imprecision.156 This was one of several unsuccessful attempts to push the door further ajar.157

147[1915] AC 634, 646; Jones v. Pritchard [1908] 1 Ch 630, 636.

148No rights should be implied on compulsory purchase since the owner whose land is taken has no intention: Sovmots Investments v. SS for Environment [1979] AC 144, 175–176, Lord Edmund-Davies.

149White v. Taylor (No 2) [1969] 1 Ch 160, 196G–197F, Buckley J (well); Kwiatkowski v. Cox (1969) 213 EG 34 (repair of gable wall).

150[1965] 1 QB 173, CA; RE Megarry (1964) 80 LQR 322; HW Wilkinson (1964) 27 MLR 720.

151Query Nickerson v. Barraclough [1981] Ch 426, CA (access to land sold as building plots restricted to agriculture); the more extensive rights implied at first instance are more satisfying.

152Rigby v. Bennett (1882) 21 Ch D 559, CA (support).

153Dann v. Spurrier (1802) 7 Ves 231, 32 ER 94; Davies v. Sear (1869) LR 7 Eq 427, Lord Romilly MR (access through arch); Wheeldon v. Burrows (1879) 12 Ch D 31, 58.

154(1992) 65 P & CR 172, CA; HW Wilkinson (1993) 143 NLJ 1544.

155(2000) 79 P & CR 276, CA; HW Wilkinson [2000] NLJ 1015.

156Chaffe v. Kingsley [2000] 1 EGLR 104, CA (no right over road extension marked on plan); HW Wilkinson [2000] NLJ 1015.

157Holow (470) v. Stockton Estates (2001) 81 P & CR 404, Ch D; Mobil Oil v. Birmingham CC [2001] EWCA Civ 1608, [2002] 2 P & CR 14 at 186.

4.Exclusion of easements of necessity

[35.24] Liberal rules for implying grants and particularly reservations were once ascribed to the public policy of ensuring that land was capable of cultivation.158 Access may be needed to prevent sterilisation of land. Megarry V-C adopted this reasoning at first instance in Nickerson v. Barraclough.159 A 1906 conveyance of plot 78A on a building estate stated that no rights of way were to be granted over the estate roads until they were made up. After reviewing Commonwealth authorities,160 English dicta,161 and academic opinion,162 Megarry V-C enunciated a public policy that no transaction should be effective to deprive land of a suitable means of access163 without good reason. The Court of Appeal164 reversed this decision, reasoning that implication is contractual in character, revealing the presumed intention of the parties. Since land could be left without access by compulsory purchase165 or adverse possession, or escheat,166 or for the purpose of rent review,167 and therefore an easement necessary to give effect to the common intention of the parties could be (and had been) excluded. Land can be landlocked by express agreement.

E. IMPLIED RESERVATIONS

[35.25] Use-based grants are founded on non-derogation from grant, a rule of common honesty.168 A person is not allowed to sell land on the one hand and withhold the rights needed to enjoy it on the other, but this reasoning does not require reservations to be kept back for the seller. The general words state that a “conveyance of land shall

. . . operate to convey with the land”,169 wording which does not reserve any rights to the seller. Non-derogation was restricted to grants by Suffield v. Brown,170 a rule restated and set in concrete by Thesiger LJ in Wheeldon v. Burrows.171 Knowledge that the seller used a particular right makes no difference.172

158Dutton v. Tayler (1700) Lutw 1487, 125 ER 819; Wheeldon v. Burrows (1878) 12 Ch D 31, 58, Thesiger

LJ.

159[1980] Ch 325; on appeal [1981] Ch 426, CA.

160North Sydney Printing Pty v. Sabemo Investment Corp Pty [1971] 2 NSWLR 150.

161Packer v. Wellstead (1658) 2 Sid 111, 112, 82 ER 1284; Brown v. Burdett (1882) 21 Ch D 667.

162EH Bodkin (1973) 89 LQR 87.

163[1980] Ch 325, 333.

164[1981] Ch 246, CA.

165Sovmots Investments v. SS for Environment [1979] AC 144, HL.

166Proctor v. Hodgson (1855) 10 Exch 824, 156 ER 674.

167J Murphy & Sons v. Railtrack [2002] EWCA Civ 679, [2002] 31 EG 99.

168Harmer v. Jumbil (Nigeria) Tin Areas [1921] 1 Ch 200, 225; Sovmots Investments v. SS for Environment [1979] AC 144, 175, Lord Edmund-Davies; Wheeldon v. Burrows (1882) 12 Ch D 31, 49, Thesiger LJ.

169LPA 1925 s 62(1).

170(1864) 4 De GJ & S 185, 46 ER 888, Lord Westbury LC.

171(1878) 12 Ch D 31, 49–57 (light); Union Lighterage Co v. London Graving Dock Co [1902] 2 Ch 557,

CA.

172Necessary easements can be reserved: Re Webb’s Lease [1951] Ch 808, CA; Peckham v. Ellison (2000) 79 P & CR 276, CA.

Implied reservation is allowed in cases of physical necessity,173 or of necessary implication. Other cases are conceivable.174 Easements arise from a necessary dependence in construction,175 for example if a house is built against the boundary and no express right to repair is given.176 Reciprocal easements might be reserved where the rights are needed on both plots irrespective of the order of sales,177 for example where houses require mutual support, or a mutual drainage system.178

F. LIGHT ACQUIRED ON DIVISION

[35.26] Colls v. Home & Colonial Stores (1904)179 established the nature of the right to light for the benefit of a particular window. Such rights are frequently implied on the division of land. Wheeldon v. Burrows itself exemplifies the rule that if the owner of a house sells it he is not at liberty to build on land which he retains so as to block the windows of the house which he sold.180 Section 62 of the Law of Property Act 1925 also operates to pass light – in this exceptional case even where land in a single occupation is divided.181 Light is commonly excluded by reservation of the right to build on the retained land.182 The seller’s windows are not be protected, since there is no implied power of reservation, that being the precise point of decision in Wheeldon v. Burrows.183

G. NON-DEROGATION FROM GRANT

1.The principle

[35.27] Light apart, restrictions on neighbouring land cannot generally be created by implication, since restrictive covenants required express creation, but a possibility of imposing restrictions arises under the principle of non-derogation from grant. When a person sells part of his land he accepts the obligation not to use his retained land so as to defeat the purpose of the sale.

173Crossley & Sons v. Lightowler (1867) LR 2 Ch 478, 486, Chelmsford LC; Liddiard v. Waldron [1934]

1KB 435.

174Wheeldon (1878) 12 Ch D 31, 49, Thesiger LJ.

175Pearson v. Spencer 1863) 3 B & S 761, 122 ER 285; Ford v. Metropolitan and Metropolitan District Rly Cos (1886) 17 QBD 12, 27, Bowen LJ.

176Ward v. Kirkland [1967] Ch 194, Ungoed-Thomas J (non-derogation from grant); Williams v. Usherwood (1981) 45 P & CR 235, 254 (was necessary).

177Russell v. Watts (1885) 10 App Cas 590, HL; Cory v. Davies [1923] 2 Ch 95, PO Lawrence J.

178Pyer v. Carter (1859) 1 H & N 916, 156 ER 1472; Re Webb’s Lease [1951] Ch 808, 827, Jenkins LJ;

Union Lighterage Co v. London Graving Dock Co [1902] 2 Ch 557, 565, 570.

179[1904] AC 179, HL; see above [32.29].

180Palmer v. Fletcher (1663) 1 Lev 122, 83 ER 329; Russell v. Watts (1885) 10 App Cas 590, 596, Earl of Selborne; Phillips v. Low [1892] 1 Ch 47, 53; Newnham v. Willison (1988) 56 P & CR 8.

181Broomfield v. Williams [1897] 1 Ch 602; Sovmots Investments v. SS for Environment [1977] AC 144, 176C, Lord Edmund Davies.

182See above [35.18].

183(1882) 12 Ch D 31, CA; White v. Bass (1862) 7 H & N 722, 158 ER 660. Reservation depends upon a necessity.

“Derogation from grant” is a rule of common honesty.184 A person who sells a part of his land for a particular purpose is not allowed to withhold the rights necessary to enjoyment it for that purpose. When a landlord lets part of his land, there is some overlap with the covenant for quiet enjoyment,185 but non-derogation can also apply to freehold division. The buyer is not restricted in his use of his land, so the seller must create express covenants.186

2.The purpose derogated from

[35.28] In a successful case the width of the purpose determines the corresponding width of the restriction, but it is difficult to win. In Browne v. Flower187 an iron staircase was erected outside the window of the plaintiff’s flat, severely impairing his privacy. No derogation occurred. Interference with the plaintiff’s comfort did not derogate from his ability to reside in the flat. In Port v. Griffith188 a landlord let one shop for the sale of wool followed by a second, nearby, for the same purpose. The first tenant suffered a loss of profit, but her shop was no less fit for use as wool shop so she had no action. Although a doctrine of law,189 the sting can be drawn by a contractual exclusion limiting the purpose.190

3.Forms of right created

[35.29] The rules for affirmative easements have already been considered.191 Restrictive easements can undoubtedly be created on non-derogation principles. Thus in Johnston & Sons v. Holland192 an action in derogation succeeded in preserving the right to use the flank wall of a building let for displaying advertisements, being a restriction on building to block the advert.193 Light194 and support195 could be acquired in the same way.

Wider restrictions can be imposed. Use of land next to an explosives magazine is restricted by statute in the interests of public safety. When the landlord involved in Harmer v. Jumbil (Nigeria) Tin Areas196 let part of his land for this dangerous use the terms of his licence prevented public access within 134 yards, building within 355 yards, and any Royal palace within 4¾ miles! As a result the landlord was restrained

184 Harmer v. Jumbil (Nigeria) Tin Areas [1921] 1 Ch 200, 225; Sovmots Investments v. SS for Environment [1979] AC 144, 175, Lord Edmund-Davies; Johnston & Sons v. Holland [1988] 1 EGLR 264, 267J, Nicholls LJ.

185P Sparkes NLT, 716–718.

186Suffield v. Brown (1864) 4 De J & S 185, 46 ER 888, Lord Westbury LC; Wheeldon v. Burrows (1878) 12 Ch D 31, 49–57, Thesiger LJ; Union Lighterage Co v. London Graving Dock Co [1902] 2 Ch 557, CA; see above [35.25].

187[1911] 1 Ch 219, 227, Parker J.

188[1938] 1 All ER 295.

189Molton Builders v. Westminster LBC (1975) 30 P & CR 182, CA.

190Re Beechwood Homes’ Applic [1994] 2 EGLR 178, CA (right to vary layout of building scheme).

191See above [35.08].

192[1988] 1 EGLR 264, CA.

193Frederick Betts v. Pickfords [1906] 2 Ch 87, Kekewich J.

194Master v. Hansard (1876) 4 Ch D 718, CA (unsuccessful on facts).

195Popplewell v. Hodkinson (1869) LR 4 Exch 248.

196[1921] 1 Ch 200, CA.

from building on his adjoining land, since that would have led to the revocation of the tenant’s licence to keep explosives. So non-derogation fostered a novel restriction,197 and did not stop short with easements.198 Nicholls LJ concluded in Johnston & Sons v. Holland,199 that non-derogation could impose any form of restriction on the activities of the grantor on his retained land and it could also prevent the revocation of an informal right.200 So, in Chartered Trust v. Davies201 the landlord of a mall in Bognor Regis High Street was found to have derogated from the use of one shop for the sale of executive toys by letting another unit as a pawnbrokers and allowing long queues to form outside.

4.Proprietary character

[35.30] Rights created in favour of buyers are proprietary: they bind subsequent owners of the retained land.202 So it was, in Harmer v. Jumbil (Nigeria) Tin Areas,203 that an injunction was granted against the tenant under the mining lease, who derived title from the common landlord bound by the initial obligation. The right implied into a legal lease is itself legal, and so binds the world, a limitless and almost undiscoverable incumbrance in a non-documentary way.204

197DW Elliott (1964) 80 LQR 244; compare MA Peel (1965) 81 LQR 28 (erroneous extension).

198At 225–226, Parker J; Herz v. Union Bank of London (1854) 2 Giff 686, 66 ER 287 (unusual lights);

Williamson v. Sunderland Corp (1892) 9 TLR 143; Aldin v. Latimer Clark Muirhead & Co [1894] 2 Ch 437, 447, Stirling J (air to timber merchant); Grosvenor Hotel Co v. Hamilton [1894] 2 QB 836 (freedom from vibration); Cable v. Bryant [1908] 1 Ch 259, 264–265, Neville J (access of air to ventilators in stable); Kelly

v.Battershell [1949] 2 All ER 830, 836–837, Cohen LJ; RE Megarry (1950) 66 LQR 23 (change of use of remainder of house to hotel).

199[1988] 1 EGLR 264, CA.

200Saeed v. Plustrade [2001] EWCA Civ 2011, [2002] 2 EGLR 19, [34–36], Sir Christopher Slade.

201(1998) 76 P & CR 396, 401–404, Henry LJ.

202Allen v. Taylor (1880) 16 Ch D 355, 357, Jessel MR; Miller v. Jackson [1977] QB 966, CA.

203[1921] 1 Ch 200, CA.

204Despite LPA 1925 ss 1(1)–(2), 4; Johnston & Sons v. Holland [1988] 1 EGLR 264, 268H–K, Nicholls

LJ.