J & O Operations Ltd and another v Kingston and Saint Andrew Corporation

Easement by implication – Easement of necessity – Public right of way – Appellants purchasing lots on commercial development – Respondent authority seeking to impose parking charges – Whether right of way for pedestrians and vehicles impliedly granted as easement on transfer of title to appellants – Appeal dismissed A scheme had been devised for the development of an area of land in Jamaica as a commercial centre. The development comprised 360 lots designed in a grid formation and divided by the principal streets. The plots were back to back, so that some had frontages onto a principal street, and others had frontages onto a secondary street. The respondent local authority had granted permission for the development on condition that title to the principal and secondary streets was transferred to the respondents and that the roads were constructed to the satisfaction of their city engineer. In 1969, the appellants had purchased plots which fronted onto a secondary street and used them as a private car park. The respondents subsequently sought to impose parking charges and erected a barrier at one end of the street. No fee was charged for mere access. The appellants brought proceedings claiming their right of access to the street and to park there for free on the ground that they had an easement over the street. The court made declarations in favour of the third and fourth appellants to the effect that they were entitled to have access to and park on the secondary street free of charge for the purpose of transacting business with the first and second appellants who owned a supermarket on the north side. The Court of Appeal of Jamaica set aside those declarations on the grounds that there was no evidence to support a claim to an easement by implication as claimed by the appellants. It had not been established that the parties had a common intention that the lots would be used in some definite and particular manner or that the easement claimed was necessary to give effect to that intention. Moreover, there was no evidence of an easement of necessity since the evidence showed that the appellants had access to the public highway over other lots. The appellants appealed to the Privy Council arguing that a right of way for pedestrians and vehicles between the appellants’ land and the principal street had been impliedly granted as an easement when title to the appellants’ lots was granted in 1969. Further, a right to park on the secondary street should be implied on the ground of necessity: Moncrieff v Jamieson [2007] PLSCS 201; [2007] 43 EG 200 (CS) referred to. Held: The appeal was dismissed. (1) On the facts, the development had been designed in such a way that only some of the lots intended for commercial use had frontages onto the principal streets which were to be formed. The appellants’ lots had frontages onto secondary streets. Those secondary streets were the only means by which access to the plots could be obtained, not only by their owners and occupiers, but also by customers, tradesmen, delivery vehicles and members of the public generally. In such a situation it must have been intended by the parties that there should be either a public way or a private way, or there must be a way of necessity. Given the layout of the development, the natural inference was that it must have been intended that there would be a public right of passage, both for pedestrians and for motor vehicles, over those secondary streets. The inference that the land in question had been dedicated to the public gained support from the terms of the conditions on which approval had been granted. Those conditions stipulated that the roadways were to be constructed to the satisfaction of the city engineer and taken over by the respondents. As the local roads authority, the respondents would then be responsible for the maintenance and management of the streets at public expense, in accordance with their statutory functions: Espley v Wilkes (1872) LR 7 Ex 298 and Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620 considered.(2) The circumstances did not support any inference that there was a common intention to create an easement rather than, or in addition to, the public right of passage. If the effect of the development was the dedication of the secondary street to the public, it followed that there was no necessity for the acquisition of an easement by the proprietors of their plots. They had a right of passage between their plots and the principal streets of the development in the same way as any member of the public. The only specialty in the appellants’ position was that they had a right at common law to form an access from their property to the public way, subject to any relevant statutory provisions. (3) In the absence of an easement, the argument that the appellants had a right, ancillary to the easement, to park on the secondary street failed to get off the ground. A right to park could not in any event be said to be necessary for the comfortable enjoyment of an easement of way: commercial premises were commonly operated without the benefit of adjacent private parking. In so far as members of the public were permitted to park on the street on payment of a fee, the appellants could do so on the same basis.Allan S Wood QC Teri-Ann Gibbs (instructed by MA Law Solicitors LLP) appeared for the appellants; Rose M Bennett-Cooper and Crislyn Beecher-Bravo (instructed by Charles Russell LLP) appeared for the respondents.Eileen O’Grady, barrister