Karen Donovan and Another v Ali Ashgar Rana and Another

JurisdictionEngland & Wales
JudgeLord Justice Vos,Lord Justice Rimer,Lord Justice Moore-Bick
Judgment Date14 February 2014
Neutral Citation[2014] EWCA Civ 99
Docket NumberCase No: B2/2012/2465
CourtCourt of Appeal (Civil Division)
Date14 February 2014

[2014] EWCA Civ 99

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CANTERBURY COUNTY COURT

His Honour Judge Simpkiss

Case Number 9DA02088

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Lord Justice Rimer

and

Lord Justice Vos

Case No: B2/2012/2465

Between:
Karen Donovan
Nigel Donovan
Appellants
and
Ali Ashgar Rana
Mohammed Bibi Ali
Respondents

Mr Nicholas Isaac (appearing under the Bar's Direct Access Scheme) for the Appellants

Mr Peter Fox (appearing under the Bar's Direct Access Scheme) for the Respondents

Lord Justice Vos

Introduction

1

The Claimants and the Defendants are now the owners of adjoining properties in Nickleby Road, Gravesend, Kent which is accepted to be a suburban residential area. Mrs Karen Donovan (born Purdell), the first Claimant and the first Appellant (whom I shall call "Mrs Donovan"), sold the plot of land adjoining her property at 35 Nickleby Road ("No 35") as a building plot with an express right of way over the "Blue Land" that formed part of No 35. The Blue Land was a small plot that separated the building plot from Nickleby Road. The Defendants ("Mr and Mrs Rana") are the successors in title to the original purchasers of the building plot, and have now built a new house called "Shalimar", Nickleby Road upon it (which I shall nonetheless refer to in this judgment as the "building plot").

2

The question in this case is whether Mrs Donovan (and the second Claimant, her husband, Mr Nigel Donovan) were entitled to damages as a result of Mr and Mrs Rana having allowed their workmen to dig up the Blue Land to connect the normal utilities to the building plot. It appears that, without Mr and Mrs Donovan's express permission, Mr and Mrs Rana have connected their drainage, water, gas, electricity and telephone to the mains services a few metres away in Nickleby Road. Mrs Donovan originally claimed an injunction, but has now limited her claim to damages.

3

HH Judge Simpkiss dismissed Mr and Mrs Donovan's claim on the basis that it was the common intention of the parties to the original transfer of the building plot that it would be used to build a modern dwelling-house or a " standard property in a busy residential area" " which complied with all local authority requirements", where such properties have " modern facilities connected up to the street". He inferred that the intention also was that the building plot should have connections to the utilities, so that there was the " implication of a right to connect through the [Blue Land] following on from the principles set out by [Nourse LJ] inStafford v. Lee [ (1992) 65 P. & C.R. 172]". The judge held that Mr and Mrs Donovan's argument that there was no express right of access was " putting the cart before the horse", because once one had established a common intention to install utility connections, it followed that the " rights of access that have already been granted can be used for the purposes of putting in those connections".

4

Mr Nicholas Isaac, counsel for the Appellants, challenged the judge's conclusions on essentially three grounds. First, he submitted that, since the transfer expressly excluded any further rights of access, he was wrong to imply an easement that included such further rights. Secondly, he said that, whilst it was common ground that the building plot was sold with the common intention that a house would be built on it, the judge was wrong to infer the further intention that the house would be connected to all normal utilities; such an inference was neither pleaded nor proved. Thirdly, Mr Isaac submitted that the judge was wrong to find an implied grant of easements that far exceeded what was necessary to give effect to the common intention of building a house, contrary to Stafford v. Leesupra.

5

For reasons that will appear, I have concluded that the judge was right, and that the appeal should be dismissed.

Background facts

6

In April 2004, Mrs Donovan sold the building plot with the benefit of outline planning permission for a single dwelling-house at an auction arranged by Clive Emson for £147,000. Mr Nicholas Haynes ("Mr Haynes") was the buyer. The advertisement for the auction referred to the building plot as " a super individual building plot situated in a pleasant residential area in the sought after area of Chalk, where building plots are extremely rare". The auction particulars included extensive general and special conditions. For present purposes, it is sufficient to say that the special conditions included provisions in similar terms to those that I shall shortly refer to in the subsequent transfer (the "Transfer"), and further provisions saying that: (a) the parties acknowledged that the agreement incorporated all terms that the parties had expressly agreed, (b) the transferee would not without the written consent of the transferor use the building plot for the purpose of any profession, trade, business or manufacture or for any purpose other than as a single private dwelling-house, and (c) the transferee would lay on the Blue Land a tarmac or such other surface as might reasonably be requested by the transferor before occupying the new dwelling-house on the building plot.

7

In May 2004, the building plot was transferred to Mr Haynes. The Transfer included the following express additional provisions:-

i) Under the heading " Rights granted for the benefit of the Property [the Building Plot]":-

" the right for the transferee and her successors in Title, the owners and occupiers for the time being of the property and persons authorised by her or them at all times by day or by night to pass and re-pass with or without motor vehicles to or from the property over and along the land hatched blue on the plan [the Blue Land] (being part of the transferor's retained land) for all purposes connected with the use and enjoyment of the property but not for any other purpose …".

ii) Under the heading " Rights reserved for the benefit of other land":-

" Save for any rights of way or access expressly referred to in the Special Conditions of Sale no rights of way or access for the benefit of the property over the transferor's retained land … shall be deemed to be expressly implied granted or reserved".

iii) Under the heading "The Transferor covenants with the Transferee as follows":-

" (a) to erect within one year from the date hereof, upon the property, the dwelling house to the satisfaction of the Local Authority.

The transferee and its successors in Title the owners for the time being of the property shall not be entitled to any right of access or light or air or other easements or rights which would restrict or interfere with the future use of the sellers retained land for building or any other purpose".

8

It is suggested that there are a number of obvious errors in these passages, including the inclusion of paragraph (a) quoted above under the heading " the Transferor covenants with the Transferee as follows", and the use of the words " expressly implied" in the second quotation above. Mr Isaac submitted, and I agree, that it was obvious that the words " expressly implied" should be read as meaning " expressly or impliedly". The inappropriate heading seems to me to be a matter of no consequence.

9

In September 2004, Mr Haynes obtained detailed planning permission in respect of the building plot.

10

After Mr Haynes went bankrupt, Mr and Mrs Rana bought the building plot in September 2007 from Mr Haynes's mortgagee.

11

On 1 st April 2009, Mrs Donovan issued a Claim Form seeking an injunction " to halt works trespassing land owned by me, restoration of land plus costs".

12

On 18 th October 2011, Mr and Mrs Rana filed an amended Defence relying on the allegedly self-evident intentions of the parties giving rise to an easement of necessity for laying services through the Blue Land, and both an " inferred" and an " implied" easement of necessity.

13

On 11 th September 2012, after a 2-day trial, HH Judge Simpkiss dismissed the Appellants' claim, and ordered them to pay the Defendants' costs.

14

Lewison LJ refused permission to appeal on paper, but Rimer LJ subsequently granted the Appellants permission to appeal.

Do the express provisions of the Transfer exclude the implied easement for which the judge held?

15

Mr Isaac submitted that the express rights granted to the transferee did not include a right to dig up the Blue Land so as to lay utility connections, nor to maintain them. In this submission, he is plainly right as the judge acknowledged. All that is expressly granted is a right of way over the Blue Land " for all purposes connected with the use and enjoyment of the property but not for any other purpose". Mr Isaac then submitted that any additional easement is excluded by the provision saying that " no rights of way or access … shall be deemed to be expressly [or impliedly] granted or reserved", and by the provision saying that the transferee: " shall not be entitled to any right of access or light or air or other easements or rights which would restrict or interfere with the future use of the sellers retained land for building or any other purpose". He criticises the judge's reasoning by submitting that the point cannot be answered by saying that the Appellants had put the cart before the horse. If the express provisions negate the right contended for, no inconsistent term can be implied.

16

If Mr Isaac were right in this last submission, his argument would, as it seems to me, be irresistible, but for my part I do not think he is. The transferee was granted an express right of way over the Blue Land " for...

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  • David Wood and Another v Edward Alexander Waddington
    • United Kingdom
    • Chancery Division
    • 1 May 2014
    ...Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 646 which was applied by the Court of Appeal in Stafford v Lee (1992) 65 P&CR 172 and Donovan v Rana [2014] EWCA Civ 99. In this class of case, two things must be shown: first, there must have been a common intention as to some definite an......
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    ...for the use and enjoyment of the right granted in the way contemplated by the parties.” Donovan and another v Rana and another [2014] EWCA Civ 99 per Vos LJ, as he then was, at [33]. 343 The restaurant premises had an access directly onto Grey Street as well as the door to the rear which w......
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    • United Kingdom
    • Wildy Simmonds & Hill Restrictions on the Use of Land Part I. Easements and profits à prendre
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    ...28-015. 9 Pwllbach Colliery Co Ltd v Woodman [1915] AC 634 at 646–647; Wong v Beaumont Property Trust [1965] 1 QB 173; Donovan v Rana [2014] EWCA Civ 99, where a drainage easement was found to be necessary to give effect to the inferred common intention of the parties on a transfer of land.......

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