Easement of Necessity in UK Law

It is clear, in my judgment, that "the Sites" mentioned in the 2001 Draft Agreement were not the areas of the concrete bases of the Ms, but larger undefined areas of land owned by MCC in which the concrete bases were placed. As I have said, there were no plans attached to the March 2001 Draft Agreement.

Further, I reject Mr McGhee's submission that the provisions of the March 2001 Draft Agreement, particularly clauses 7.9.1, 7.9.2, 7.10 and 7.12.1, indicate that the Sites were the actual concrete bases of the Ms. Each of those clauses refers both to "every Site" and to the "Advertising Display". Mr McGhee accepted that the definition of "the Advertising Display in clause 2 of the March 2001 Draft Agreement included the concrete base.

Furthermore, it is telling, in my judgment, that the March 2001 Draft Agreement contains no express grant of any easement of way to and from "the Sites". Mr McGhee submitted that an easement of necessity would be implied.

Clear Channel is not assisted by the evidence of Mr Watson that, before the 2001 Draft Agreement, the precise location of the concrete bases of the Ms was discussed and agreed with Mr Houghton of MCC, and then marked out on the ground by Mr Watson with spray paint. That process of identifying the precise location of each M is perfectly consistent with the grant of a licence over a wider area than the concrete base itself.

Accordingly, the only real question in relation to this right of way is whether it was an overriding interest within Rule 258. Mr Sharples submitted that there were two reasons why it could not be. First, he submitted that there was little if any evidence of actual use by the owners of the northern field of the way at the time of the first defendant's purchase.

Issue estoppel is a form of estoppel precluding a party from disputing the decision on an issue reached in earlier proceedings even though the cause of action in the subsequent proceedings is different. It may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties or their privies to which the same issue is relevant one of the parties seeks to re-open that issue.