J & O Operations Ltd and another; Eloise Mulligan and Grace Wong v The Kingston and Saint Andrew Corporation
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reed |
| Judgment Date | 07 March 2012 |
| Neutral Citation | [2012] UKPC 7 |
| Date | 07 March 2012 |
| Docket Number | Appeal No 0113 of 2010 |
| Court | Privy Council |
[2012] UKPC 7
Privy Council
Lord Hope
Lord Mance
Lord Clarke
Lord Sumption
Lord Reed
Appeal No 0113 of 2010
Appellant
Allan S Wood QC
Teri-Ann Gibbs
(Instructed by MA Law (Solicitors) LLP)
Respondent
Rose M Bennett-Cooper
Crislyn Beecher-Bravo
(Instructed by Charles Russell LLP)
Heard on 7 February 2012
This appeal is concerned with issues relating to the law of easements which have arisen in connection with the creation of New Kingston, a large commercial development in Jamaica.
During the 1950s a scheme was devised for the development of Knutsford Park, an area of land which was owned by Horace Clinton Nunes and had previously been used for horse racing. It was proposed that the land should be developed as a commercial centre. On 28 August 1958 details of the proposed development were submitted to the respondent, which was the local authority with responsibility for such matters, in accordance with section 5 of the Local Improvements Act:
"5.-(1) Every person shall, before laying out or sub-dividing land for the purpose of building thereon or for sale, deposit with the Council a map of such land; such map shall be drawn to such scale and shall set forth all such particulars as the Council may by regulations prescribe and especially shall exhibit, distinctly delineated, all streets and ways to be formed and laid out and also all lots into which the said land may be divided, marked with distinct numbers…
(2) Every such person shall also deposit with the Council as respects each street and way as shown on the said map—
(a) a specification showing how such street or way is to be constructed…Such specification shall, if the Council by regulations so prescribe, be accompanied by plans and sections…
(b) an estimate of the probable expenses of the street works being done."
On 2 October 1958 the respondent sanctioned the sub-division of the land and approved the proposed development, subject to certain conditions, in accordance with section 8(1) of the Local Improvements Act:
"…the Council shall on such deposit as prescribed in section 5 consider the said map, specifications, plans and sections and estimates and shall, by resolution…refuse to sanction or sanction subject to such conditions as they may by such resolution prescribe, the sub-division of the said land and the formation and laying out of the said streets and ways, and may approve of the map, specifications and estimates of the said street works or may alter or amend the same as to them may seem fit and may prescribe the time within which the said street works shall be completed."
The map, which the Board will refer to as the approved plan, showed the development as comprising 360 lots, set out in a grid divided by the principal streets. Many of the lots were arranged back to back in such a way that some had frontages on to those streets and others, lying to the rear, had frontages on to secondary streets, which were designated on the map as car parks and piazzas. Each secondary street could be entered at either end from one of the principal streets, the entrance at one end being suitable for vehicular traffic and the entrance at the other end being a narrower passage suitable only for pedestrians. All the streets, including those designated as car parks and piazzas, were shown as being bounded by sidewalks. The dimensions of the lots, streets and sidewalks were shown on the map. The secondary streets were shown as being wider than the principal streets, consistently with their proposed use for car parking.
The relevant resolution of the respondent's building committee recorded:
"That this Committee hereby approves of the plans, specifications and estimates…for construction of roads, drains, culverts, kerbs and paved sidewalks…and of the application…on behalf of the owners for permission to subdivide the said premises into 360 lots on the following conditions…"
The conditions included several relating to the proposed roadways, the respondent being the statutory roads authority. They included the following:
"(c) That no building be erected on any of the lots fronting on the proposed roadways until they have been constructed to the satisfaction of the City Engineer and taken over by [the respondent].
(d) That the title for the roadway to be handed over to [the respondent] be prepared from the deposited plan in the Titles Office.
…
(g) No transfer of any lot adjoining any proposed roadway shown on the Map shall be registered until there has been lodged with the Registrar of Titles, a certificate by the Town Clerk that the proposed road has been completed."
There were also conditions in the following terms:
"(h) That the titles for the car parks and piazzas shall be prepared in the name of [the respondent] from the deposited plan and handed over on completion.
(m) All sidewalks shall for their entire widths be paved with 4 inches of 1:3:6 cement concrete and 3 inches of stone ballast and wood floated to the satisfaction of the City Engineer."
On 13 January 1960 a further plan, which the Board will refer to as the deposited plan, was deposited with the Registrar of Titles in accordance with section 126 of the Registration of Titles Act:
"126. Any proprietor subdividing any land under the operation of this Act for the purpose of selling the same in allotments shall deposit with the Registrar a map or diagram of such land exhibiting distinctly delineated all roads, streets, passages, thoroughfares, squares or reserves, appropriated or set apart for the use of purchasers and also all allotments into which the said land may be divided…
Provided always that when any such land is situated within any portion of a parish to which the provisions of the Local Improvements Act and any enactment amending the same shall apply the proprietor shall deposit with the Registrar copies…of the map deposited with [the respondent] and the resolution of [the respondent] sanctioning the subdivision, and no transfer or other instrument effecting a subdivision of any such land otherwise than in accordance with the sanction of the Board shall be registered."
As required by the proviso to section 126, copies of the approved plan and of the resolution of 2 October 1958 were also deposited with the Registrar of Titles. It was explained in evidence that the purpose of the deposited plan was to provide precise information as to the location and dimensions of the individual lots, based upon a survey of the development as constructed, to which reference could be made in the certificates of title. The deposited plan differed from the approved plan in that the former did not show the sidewalks and piazzas shown on the latter. Notwithstanding that difference, it is apparent that sidewalks were in fact constructed.
From 18 January 1960 onwards, transfers of title by Mr Nunes to the purchasers of lots in the development were registered. In particular, on 4 September 1969 the transfer was registered of title to Lots 42 and 43, of which the third and fourth appellants are respectively the current owners. Other transfers related to lots of which the first and second appellants are the current proprietors, but those appellants did not take part in...
To continue reading
Request your trial
-
Crowther and Another v Rayment and Another
...the argument": Canada Trust Co v Stolzenberg (no 2), [1998] 1 WLR 547, 555 and Altimo Holdings and Investment Ltd v Kyrzyg Mobil Tel Ltd, [2012] UKPC 7 para 77. On the other hand, it is also said that the court must be satisfied that the applicant has a "good arguable case" on an applicatio......
-
Vava and Others v Anglo American South Africa Ltd
...argument has been widely cited with approval, for example by Lord Collins in Altimo Holdings and Investment Ltd v Kyrzyg Mobil Tel Ltd, [2012] UKPC 7 at para 77. Waller LJ was, I think, seeking to convey the flavour of the speeches in Vitkovice Horni a Hutni Tezirstvo v Korner, [1951] AC ......