The transferees of a building plot were entitled to an implied easement to connect to mains services in the public highway.

A Pwllbach easement derives its name from the House of Lords’ decision in Pwllbach Colliery v Woodman [1915] AC 634 and can be impliedly granted or reserved. The court may imply such an easement for the benefit of land if it is necessary – as opposed to convenient, or usual, or reasonable – to give effect to the parties’ intention that land should be used for some definite and particular purpose. The litigation in Donovan v Rana [2014] EWCA Civ 99; [2014] PLSCS 54 concerned a building plot in a suburban residential area, which was sold by auction with the benefit of a right of way over land retained by the seller “for all purposes connected with the use and enjoyment of the plot”. The question was whether the seller was entitled to damages because the owners of the building plot had allowed their workmen to dig up the right of way in order to connect their drainage, water, gas, electricity and telephone to the mains services in the highway. The seller claimed that the buyers had not had any right to undertake the work because the transfer contained a provision stating that “save for any rights of way or access expressly referred to in the special conditions of sale no rights of way or access” were expressly or impliedly granted or reserved. The transfer also excluded “any right of access or light or air or other easements or rights which would restrict or interfere with the future use of the seller’s retained land for building or any other purpose”. The Court of Appeal implied a Pwllbach easement to permit the buyer to install and maintain connections to the services in the public highway and ruled that the implication of the easement did not violate the restrictions on the creation of easements contained in the transfer. No additional rights of way or access were required and the inhibition on the creation of further easements applied only insofar as they would restrict or interfere with the future use of the retained land for building or other purposes – which was not the case here. It was clear from the paperwork created for the auction that the plot was sold to enable the buyer to build a house “to the satisfaction of the local authority”. The plot was in the middle of a modern, and much sought-after, residential area, which was reflected in the price paid, and it was fanciful to suggest that the parties had expected the house to be cut off from public services that were just a few metres away. The parties must, therefore, be taken to have intended that the house should have mains connections. Consequently, the court was satisfied that the buyer was not trying to manufacture a necessity out of what was merely reasonable or desirable. The implication of the proposed easement was, in the context of this transaction and in the modern world in which it took place, relating to this building plot in this locality, entirely necessary to give effect to the common intention of the parties to the transfer. Allyson Colby is a property law consultant