Right of way – Access road – Scope of grant – Claimant granting defendants right of way over access road to industrial site – Claimant seeking declaration that defendants’ tenant using of right of way outside scope of grant – Defendants applying for summary judgment on whole claim against them – Whether claimant having reasonable prospect of success – Application granted
Vernon Road was an old industrial area of Halesowen with residential housing nearby. It was a private road owned by the claimant and formed the only vehicular access to an industrial estate of which the defendants owned the freehold. The claimant had granted the defendants a right of way over the road only for so long as the site was used for the purposes of industrial units or for such other purpose as the claimant consented to. The grant also provided that the entrance gates were to be kept closed (other than for access and egress) between the hours of 18:00-06:30 Monday-Friday (inclusive) and at all times on Saturdays, Sundays and public bank holidays.
One of the defendants’ tenants operated a wholesale, warehousing and supply business on the site involving the delivery of car parts at short notice. It operated six days a week including Saturdays. The claimant alleged that the use made by the tenant was outside the purposes permitted on the true construction of the deed of grant of the right of way and/or excessive in any event. Therefore the claimant applied for an injunction to restrain such use and damages.
The defendants applied for summary judgment on the whole of the claim against them on the basis that the claimant had no reasonable prospect of success if the matter were to go to trial and there was no other compelling reason to allow it to do so.
Held: The application was granted.
(1) In construing the grant of a right of way the court had to identify the meaning objectively conveyed by the deed of grant to a reasonable person having the background knowledge available to the parties at the time of its execution, in accordance with the five principles set out by Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896. However, in the case of a public document, particularly one to be entered on a register and relied on by persons as dealing with property, extrinsic evidence not readily available to such third parties, while in principle admissible, should not be allowed to affect the conclusion as to the meaning the public document would convey to the reasonable reader: Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736; [2012] 2 EGLR 141. In the present case, the defendant’s title to the industrial estate was registered, the deed of grant was referred to on the Land Register and a copy of it was filed. The rights it granted came squarely within the principles expressed in Cherry Tree, since third parties, most obviously lessees and purchasers of units on the estate, would reasonably expect to rely on the Land Registry to ascertain the extent of the rights from which they would benefit.
(2) On the facts, it was clearly not the case that the grant to the defendant required the gates to be kept closed at all times on Saturdays, Sundays and public bank holidays. The words “other than for access and egress” applied to those times just as they did to “between the hours of 18:00 – 06:30 Monday-Friday (inclusive)”. Nor could there be any basis for construing “access and egress” as limited to “fairly infrequent use by staff and management” unless that was a necessary implication from the fact that the right might only be used for the purposes of industrial units. The same applied to the allegation of excessive use; there was no quantitative limit on use set out in the grant and use could only be found to be excessive if it amounted to use for a purpose outside the terms of the grant. In principle, if the actual use were shown on the facts to be as a retail shop, that would be outside the permitted purpose. But the allegations went nowhere near as far, being only of isolated sales to customers who were not bona fide trade purchasers. One had to look in the round at the use to which the premises were put; individual retail sales did not make them a shop any more than having a small number of desks and telephones in a factory made it an office. There was no evidence of any alteration to the premises to lay them out as might be expected for a retail shop, e.g. with a display visible from outside, or of any advertising or promotion to retail customers.
(3) In all the circumstances, there was no reasonable prospect that the claim would succeed and there would be summary judgment for the defendants.
David Stockill (instructed by SGH Martineau LLP) appeared for the claimant; Martin Hutchings QC (instructed by DLA Piper UK LLP) appeared for the defendants.
Eileen O’Grady, barrister
British Malleable Iron Company Ltd v Revelan (IOM) Ltd and another
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Right of way – Access road – Scope of grant – Claimant granting defendants right of way over access road to industrial site – Claimant seeking declaration that defendants’ tenant using of right of way outside scope of grant – Defendants applying for summary judgment on whole claim against them – Whether claimant having reasonable prospect of success – Application grantedVernon Road was an old industrial area of Halesowen with residential housing nearby. It was a private road owned by the claimant and formed the only vehicular access to an industrial estate of which the defendants owned the freehold. The claimant had granted the defendants a right of way over the road only for so long as the site was used for the purposes of industrial units or for such other purpose as the claimant consented to. The grant also provided that the entrance gates were to be kept closed (other than for access and egress) between the hours of 18:00-06:30 Monday-Friday (inclusive) and at all times on Saturdays, Sundays and public bank holidays. One of the defendants’ tenants operated a wholesale, warehousing and supply business on the site involving the delivery of car parts at short notice. It operated six days a week including Saturdays. The claimant alleged that the use made by the tenant was outside the purposes permitted on the true construction of the deed of grant of the right of way and/or excessive in any event. Therefore the claimant applied for an injunction to restrain such use and damages. The defendants applied for summary judgment on the whole of the claim against them on the basis that the claimant had no reasonable prospect of success if the matter were to go to trial and there was no other compelling reason to allow it to do so. Held: The application was granted.(1) In construing the grant of a right of way the court had to identify the meaning objectively conveyed by the deed of grant to a reasonable person having the background knowledge available to the parties at the time of its execution, in accordance with the five principles set out by Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896. However, in the case of a public document, particularly one to be entered on a register and relied on by persons as dealing with property, extrinsic evidence not readily available to such third parties, while in principle admissible, should not be allowed to affect the conclusion as to the meaning the public document would convey to the reasonable reader: Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736; [2012] 2 EGLR 141. In the present case, the defendant’s title to the industrial estate was registered, the deed of grant was referred to on the Land Register and a copy of it was filed. The rights it granted came squarely within the principles expressed in Cherry Tree, since third parties, most obviously lessees and purchasers of units on the estate, would reasonably expect to rely on the Land Registry to ascertain the extent of the rights from which they would benefit.(2) On the facts, it was clearly not the case that the grant to the defendant required the gates to be kept closed at all times on Saturdays, Sundays and public bank holidays. The words “other than for access and egress” applied to those times just as they did to “between the hours of 18:00 – 06:30 Monday-Friday (inclusive)”. Nor could there be any basis for construing “access and egress” as limited to “fairly infrequent use by staff and management” unless that was a necessary implication from the fact that the right might only be used for the purposes of industrial units. The same applied to the allegation of excessive use; there was no quantitative limit on use set out in the grant and use could only be found to be excessive if it amounted to use for a purpose outside the terms of the grant. In principle, if the actual use were shown on the facts to be as a retail shop, that would be outside the permitted purpose. But the allegations went nowhere near as far, being only of isolated sales to customers who were not bona fide trade purchasers. One had to look in the round at the use to which the premises were put; individual retail sales did not make them a shop any more than having a small number of desks and telephones in a factory made it an office. There was no evidence of any alteration to the premises to lay them out as might be expected for a retail shop, e.g. with a display visible from outside, or of any advertising or promotion to retail customers.(3) In all the circumstances, there was no reasonable prospect that the claim would succeed and there would be summary judgment for the defendants.David Stockill (instructed by SGH Martineau LLP) appeared for the claimant; Martin Hutchings QC (instructed by DLA Piper UK LLP) appeared for the defendants.Eileen O’Grady, barrister
