Macepark (Whittlebury) Ltd v Jeffrey Ian Sargeant and Another
|England & Wales
|Mr. Justice Lewison,Mr Justice Lewison
|08 June 2004
| EWHC 427 (Ch), EWHC 1333 (Ch)
|Case No: HC03C03011,Claim No: HCO2CO1O587
|08 June 2004
 EWHC 427 (Ch)
IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION
Mr. G. Moss Qc Sitting As A Deputy High Court Judge
Claim No: HCO2CO1O587
In the matter of a Lease
And in an Arbitration Application
And in the matter of an Arbitration
Patrick Rolfe, Counsel, instructed by Prettys, Ipswich, for Macepark as appellant Martin Dray, Counsel, instructed by Beachcroft Wansbroughs, for the Sargeants as respondents to the appeal.
This is a reserved judgment on the hearing of an appeal against an award by an arbitrator, Mr Peter Dickinson FRICS, pursuant to Section 69 of the Arbitration Act 1996. This permits appeals on points of law with the permission of the Court. Permission was given by an Order dated the 18 June 2002.
This judgment concerns only the arguments of law relating to the use of a right of access: the questions of the form of any relief and a question connected with a boundary fence have been left to be considered after this judgment.
I have also agreed with the parties' counsel that they will have an opportunity to consider the final version of this judgment with their clients before any further hearing takes place to consider the remaining questions and any consequential matters.
I am indebted to both counsel for the lively and skilful debate concerning the difficult question of law which arises on this appeal. If I do not deal with every submission made it is not out of a lack of consideration of those arguments but with a view to keeping the length and scope of this judgment within reasonable bounds.
The basic situation
The basic situation in this case can be described as follows. The case concerns a right of access not far from the Silverstone Racing Car Circuit, the venue for the British Grand Prix. It is an extremely well known sporting venue.
Not far from the circuit, to the East, lies the village of Whittlebury. The A413 road runs South and a little Eastward from the village. At one point the road adjoins land belonging to the Sargeants. On the relevant map, the Sargeants' land is edged in green. I shall refer to it as "the green land".
Surrounded on three sides (North South and East) by the green land is a site edged in red. It lies somewhat to the West of the A413 and is leased by Macepark (Whittlebury) Limited (hereinafter "Macepark") from the Sargeants. I shall call this land "the red site". It consists not only of a hotel with restaurants and 123 bedrooms but also conference and leisure centres.
To the West of the red site lies land known as "Cheese Copse", which is owned by a party other than the Sargeants and Macepark. A South-Westerly direction from the red site through Cheese Copse would bring one to the Silverstone site, and in particular "Copse Corner". The Silverstone site is again under ownership other than that of the Sergeants or Macepark.
The Sargeants and Macepark are parties to a lease dated the 29 October 1998 (hereinafter "the lease"). That lease gives a right of access to the red site over a path on the green land belonging to the Sargeants, enabling vehicles to come and go from the A413 ("the Grant"). The path of this access was referred to as "the Purple Path" at the hearing of this appeal and I will use that expression, despite the reference to "blue" in the actual wording of the Grant, which I will set out below. The lease also contains a separate right of access from the red site over the green land to the South-West corner of the green land in order to drop off persons from the red site at the point on the green land nearest to a part of the Silverstone site known as "Becketts Corner".
Macepark wish, by agreement with the owners of Cheese Copse, to construct a vehicular access through Cheese Copse so as to link the red site with the Silverstone site. The question in this appeal concerns the extent of the right of access over the Purple Path.
To take an example referred to by the arbitrator, if Formula One drivers use the Purple Path in order to access the red site with a view to staying the night at the hotel and then driving through the proposed vehicular access through Cheese Copse to the Silverstone site, would that be a lawful use of the access over the Purple Path?
Approach to the analysis and general principles
It seems to me that as a matter of analysis there are two overlapping questions in this type of case. The first question concerns the nature of a right of way by way of easement. An easement is a proprietary right over someone else's property. To use the technical language in such cases, an easement is a right over a "servient" property for the benefit of a "dominant" property. It follows from the nature of an easement that such a right cannot consist of a right over the servient property for the benefit of a non-dominant property. The cases usually concern non-dominant property owned by the same party as the owner of the dominant property. As a general principle, he cannot use the right of access over the servient property for the benefit of the non-dominant property.
Does it make a difference if the relevant non-dominant property is in different ownership from the dominant property? It should not do so. If it did, an owner of dominant land who wished to use an access beyond its proper scope could simply enter into a contractual arrangement with the owner of the non-dominant land sought to be benefited rather than purchasing the non-dominant land outright. The House of Lords case of at pages 15–16 shows that different ownership does not make a difference to the principle. Although that was a Scottish law appeal, the House of Lords considered that the law of England was the same.
The second and overlapping question is, in the case of a right of way created by a grant, what the scope of the grant, properly construed, is.
In considering what the parties as reasonable people would have contemplated, the parties are assumed not to have restricted user to the type of use in place at time of the grant: see (above) at page 15.
The parties as reasonable people are also assumed to have contemplated user exercised in a reasonable way, in the sense of being carried out in the way which is least burdensome to the servient land, consistently with full enjoyment: Ibid.
In the situation being considered, the red site is the dominant land and the Purple Path is the servient land. There are two further relevant properties, Cheese Copse and Silverstone, which are non-dominant land but which may be affected by Macepark's proposed vehicular access through Cheese Copse to Silverstone.
Counsel have not cited any case on the precise type of facts here. The starting point therefore is to see what legal principles have been established in the cases dealing with related situations.
The earliest case cited by counsel was . This was a decision of Treby CJ and Nevill, Powell and Powell of Gloucester JJ. The case concerned a right of way by prescription. The Court considered that if one has a right of way by prescription to go to C, and having gone to C, the person with the right way goes further to D, he is not using the right of way lawfully. The "junior" Powell J said that the difference was that if (a) the person goes further to a mill or a bridge, that may be lawful, but if he goes to his own property, that is not lawful. If he could use a right of way to C to go on to another one of his properties D, then he could buy a thousand properties and go to them all and that would be very prejudicial to the owner of the servient land.
It might have been deduced from this that the distinction was that the mill or bridge he refers to would be owned by a person other than the owner of the dominant land. However, that would not be a logical distinction and it appears from (above) that the different ownership would not in itself be a valid distinction.
The correct distinction would appear to be that if the user goes to the mill or bridge he is not using the right of way to C for the benefit of the mill or the bridge and not treating them as if they were additional dominant land, whereas if the user goes on to his own property, D, he is exercising the right of access for the benefit of non-dominant land and treating it as if it were dominant land.
Hence the correct principle to be drawn from this case appears to be that a right of way, of its nature, cannot be used to benefit non-dominant land, whether or not the non-dominant land is owned by the owner of the dominant land.
In the Court of Appeal considered a right of way by grant over servient land. The dominant land was known as "the pink land". The purchaser of the pink land at the time of purchase was already the owner of the adjoining property ("the white land"). Omitting various complications in the facts, the end position was that the owner of the pink and white properties proposed to use a new building standing partly on the pink land and partly on the white land as a factory and warehouse. The building was all one building with no physical division between the pink and white parts.
The Court of Appeal considered that the proposed use went beyond the terms of the grant. For present purposes, the key passage in the judgment of Vaughan Williams LJ comes towards the end at page 132:
"It is not a mere case of user of the pink land, with some usual offices on the white land connected with the buildings on the pink land. The whole object of this scheme is to...
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