Donovan and another v Rana and another

Right of way – Implication of rights – Utilities – Respondents having right of way over part of appellants’ adjoining property for all purposes connected with use and enjoyment of their property – Right of way granted in transfer of respondents’ property as building plot with covenant to build single dwelling-house house to satisfaction of local authority – Respondents digging up land to install utilities to serve their house – Appellants failing in claim for damages – Whether easement to install utilities to be implied – Whether right of way sufficient to facilitate that easement – Whether precluded by express terms of transfer – Appeal dismissed The appellants and the respondents owned adjoining properties in a suburban residential area of Gravesend, Kent. The respondents had built their house on land that their predecessor in title had purchased from the first appellant as a building plot in 2004, with the benefit of outline planning permission to construct a single dwelling-house. By the terms of the transfer, the transferee covenanted to erect that house to the satisfaction of the local planning authority and not to use the property for any other purpose than a single dwelling-house without the written consent of the transferor. The transfer also granted an express right of way, with or without vehicles, over a small area of the appellant’s land, hatched in blue on an attached plan (the blue land), which separated the building plot from the road; that right was granted “for all purposes connected with the use and enjoyment of the property but not for any other purpose”. The transfer further provided that no rights should be deemed to be expressly or impliedly granted or reserved over the vendor’s retained land save for those expressly referred to in the special conditions of sale; further, that the transferee was not entitled to any right of access or other rights that would restrict or interfere with the future use of the vendor’s retained land for building or any other purpose. In 2009, the appellants brought a claim for damages after the respondents’ workmen dug up the blue land, without the appellants’ permission, in order to connect the building plot to utilities for the new house; drainage, gas, water, electricity and telephone were connected to the mains services in the road a few metres away. The respondents contended that their actions were permitted by the terms of the right of way. Dismissing the appellants’ claim, the county court judge held that, where the common intention of the parties to the original transfer had been that the building plot would be used to build a modern dwelling-house with connections to the utilities, it followed that the rights of access that had been granted could be used for the purpose of installing those connections. The appellants appealed. It contended that the rights implied by the judge were precluded by the express provision in the transfer excluding any further rights of access and that they far exceeded what was necessary to give effect to the common intention of building a house. Held: The appeal was dismissed. Although the express rights granted to the transferee did not include a right to dig up the blue land to lay or maintain utility connections, the transfer did grant an express right of way over the blue land for all purposes connected with the use and enjoyment of the respondents’ property. The laying of connections to utilities was one such purpose. Accordingly, if there was an easement of necessity allowing such connections to be laid or maintained, a right of way to facilitate it would exist. An express right of way granted for all purposes including the installation and maintenance of utility connections, if such were otherwise permitted, was sufficient to grant a right of access in order to install those connections provided it was exercised in a way that did not obstruct the appellants’ reasonable enjoyment of the land. The express provisions of the transfer were not such as to negate the existence of such rights. The first of the express inhibitions in the transfer concerned the implication of additional rights of way or rights of access over and above what had been expressly granted. An easement allowing the installation and maintenance of utility connections would not violate that provision since the express right of way granted in the transfer was adequate for the purpose of that easement and no additional right of way or access was required. As for the second restriction, that only precluded easements that would restrict or interfere with the transferor’s future use of her property for building or any other purpose, whereas the appellants’ use of their property would not be affected by the installation and maintenance of utility connections serving the building plot. The respondents had the benefit of an easement to install and maintain a connection to utilities. Such an easement could be implied or inferred from the common intention of the parties as to the building of a dwelling-house. The evidence established that the purpose of the transfer was to enable the transferee to build a dwelling-house on the building plot and that the house was to be erected to the satisfaction of the local authority. The building plot was in the middle of a modern and much sought-after suburban residential area and the parties could not sensibly have expected a dwelling-house in such an environment to be constructed without connections to the mains utilities in the road just a few metres away. The relevant easement should be implied on the ground that the parties had intended the building of a dwelling-house on the building plot to be undertaken in a definite and particular manner, which included the connection to mains utility services and the maintenance of those connections across the obvious route, namely the blue land. In the context of the transaction in the modern times in which it took place, the connection of the building plot to the main utilities across the blue land was necessary for the building of a dwelling-house on that plot, in that locality, in the manner contemplated by the parties to the original transfer. The implication of the easement was necessary to achieve the parties’ expressly intended purpose and was not merely reasonable or desirable: Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 and Stafford v Lee (1992) 65 P&CR 172; [1992] EGCS 136 applied. Nicholas Isaac (instructed by direct access) appeared for the appellants; Peter Fox (instructed by direct access) appeared for the respondents. Sally Dobson, barrister