Re Clarke and another’s appeal

Easement – Right of way – Appellants owning leasehold land – Vehicular access gained across adjoining freehold land also in their ownership – Whether right of way existing across freehold land for that purpose – Effect of express right of way in favour of freehold land contained in 1946 conveyance of both freehold and leasehold land – Leasehold valuation tribunal assuming existence of right of way in favour of leasehold land when determining price payable on leasehold enfranchisement claim – Appeal allowed Pursuant to the leasehold enfranchisement provisions of the Leasehold Reform Act 1967, the appellants sought to acquire the freehold of a house and land of which they were the long leaseholders. The relevant lease dated from 1641 and the freeholder was unknown; consequently, the relevant transfer of the freehold was to be executed by the court on payment into court of the appropriate purchase price, pursuant to a certificate of valuation given by the leasehold valuation tribunal under section 27(5) of the Act. Vehicular access to the property from the highway was gained from the south, across adjoining freehold land that the appellants also owned. The appellants contended that the property enjoyed no right of way for that purpose, was therefore effectively landlocked and should be valued as such. The LVT certified that a price of ££70,620 was payable under section 9 of the Act, based on a freehold value of £1.25m, deferred for 80.5 years at 5%. In reaching that figure, it found the property did enjoy a vehicular right of way over the adjoining freehold land. They based that conclusion on a conveyance of 1946, by which both the lease of the property and the freehold land had been conveyed together. The sale of the freehold land had expressly included a vehicular right of way over a track that crossed it; however, the vendor had not owned the soil of the track but only the land to either side, and the track had since become a public bridleway. Moreover, the right of way shown in the 1946 conveyance did not extend all the way to the leasehold property. The LVT none the less considered that the parties must have intended it to be used as a substitute for a former access way to the leasehold property from the north, which had since fallen into disuse. The LVT further stated that, had no right of way existed, an adjoining owner would have been willing to grant one for half of the value of the property, in which case the freehold would have been worth the lesser sum of £625,000, producing a purchase price of £35,300. On appeal, the appellants contended that the LVT should have applied the lower valuation. Held: The appeal was allowed. An intention in the minds of the parties to the 1946 conveyance that access to the leasehold property should be gained across the freehold land and the track was insufficient, of itself, to give rise to an easement of way in fee simple. Easements could be granted by statute or express grant, by implication under a grant or by prescription. There was no question of any easement arising by statute or express grant in the instant case. No easement could have arisen by prescription since the freehold land had been in the same ownership as the freehold property, such that any use of it for access purposes would have been use with the permission of the owner. No easement could be implied under the 1946 conveyance since no sufficient intention to grant the easement could be inferred from that document. So far as the 1946 conveyance intended to grant a right of way, it dealt with the matter expressly. It expressly granted a right of way, so far as the transferor could lawfully grant one, in favour of the freehold land. It did not grant any right of way in favour of the leasehold property and the right of way that was granted did not extend as far as that property. The plan attached to the 1946 conveyance did not show any track running to the leasehold property across the freehold land. Moreover, the vendor had not owned the track and appeared to have had no right to grant a right of way over it to the leasehold property. The effect of the 1946 document was to transfer simultaneously both the leasehold property and the freehold land. There was no need to grant a right of way over the freehold land because that land was to be the transfereeÕs own property. There was no scope for implying any easement of necessity in favour of the leasehold property since an adequate access was available for the transferee over the freehold land by reason of the transferee’s ownership of it. Accordingly, the valuation under section 9(1) of the 1967 Act should proceed on the assumption that the property enjoyed no right of way over the freehold land and the track. Although a right of way still existed to the north as a matter of law, there was no longer any trace of a road or track and the hypothetical purchaser would realise that he faced problems with that route, including the prospect of litigation to establish the right and difficulties in obtaining planning permission for the construction of an access. Consequently, the hypothetical purchaser would not consider that the right of way to the north added value to the property and would cast his bid on the assumption that the property was effectively landlocked. Nicola Muir (instructed by DC Kaye & Co, of Prestwood) appeared for the appellants; there was no respondent to the appeal. Sally Dobson, barrister