Michael Edward Huckvale and Another (Respondents (Plaintiffs) v Aegean Hotels Ltd (Appellants
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE NOURSE,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 09 February 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0209-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 89/0131 |
| Date | 09 February 1989 |
[1989] EWCA Civ J0209-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PETER GIBSON J.
Royal Courts of Justice
Lord Justice Slade
Lord Justice Nourse
and
Lord Justice Butler-Sloss
89/0131
and
MR. NICHOLAS PATTEN Q.C. and MR. DANIEL HOCKBERG (instructed by Messrs Lawrence Graham London Agents for Messrs Pitmans of Reading) appeared on behalf of the Appellants (Defendants).
MR. JOHN McDONNELL Q.C. and MR. MARK CUNNINGHAM (instructed by Messrs Chandler Ray) appeared on behalf of the Respondents (Plaintiffs).
I will ask Nourse L.J. to deliver the first judgment in this case.
This is an interlocutory appeal where the question is whether an easement has been extinguished by its ceasing to be capable of accommodating the dominant tenement.
Since 1976 the plaintiffs, Mr. and Mrs. Michael Huckvale, have been the freehold owners of 27 West Street, Buckingham, a property on the south side of West Street which they use for carrying on a bakery business owned by them. By a contract in writing made on 21st May 1982 the plaintiffs agreed to sell to Avomead Limited ("Avomead") two parcels of land forming the southern part of their property, one of which has been called the red land and the other the green land. This case is not at all concerned with the green land. Avomead was then the owner of the Swan and Castle Hotel in Castle Street, which runs more or less at right angles to West Street and to the east of the plaintiffs' property and the hotel, which is somewhat to the south- east of the plaintiffs' property. The purpose of Avomead's purchase was to make an addition to the hotel car park. At that time the plaintiffs had no means of access to the rear of their property. Shortly stated, it was a further term of the agreement that they should be able to make such access across the hotel car park to and from Castle Street. To that end, special condition G of the contract contained an agreement for the reservation by the plaintiffs of two rights of way over the red land; and special condition H an agreement for the contemporaneous grant by Avomead to the plaintiffs of two complementary rights of way over its own property.
The sale of the red and the green land was completed by a conveyance made between the plaintiffs of the one part and Avomead of the other part and dated 18th June 1982. It duly contained a reservation by the plaintiffs of the two rights of way over the red land. Unfortunately, it did not contain a grant by Avomead of the two complementary rights of way over its property, and that part of the contract was never completed. The rights of way reserved over the red land, being legal rights, were good against the whole world, irrespective of notice, statutory or otherwise.
Again unfortunately, although not surprisingly in the light of the failure to complete the agreement to grant the complementary rights of way, that agreement was never registered as an estate contract at the Land Charges Registry.
In spite of these shortcomings, all seems to have worked well while Avomead continued to own the hotel. Indeed, it is agreed that Avomead could at any time while it was still the owner have been compelled by specific performance to complete the agreement to grant the complementary rights of way. However, on 8th February 1985 Avomead conveyed its property, including the red land (to all of which I will henceforth refer as "the hotel property") to Mr. C.A. Smith. The contract to grant the complementary rights of way not having been registered, it is agreed that the effect of that conveyance was that they ceased to be enforceable against Mr. Smith and his successors in title as owners of the hotel property. In order to acquire the hotel property, Mr. Smith mortgaged it to a bank which, on 9th June 1987, conveyed it as mortgagee to the defendants, a company which is now called Aegean Hotels Ltd.
Although the complementary rights of way ceased to be enforceable against the owners of the hotel property after 8th February 1985, the plaintiffs continued to exercise them until October 1987, some four months after the hotel property had been acquired by the defendants. At the end of that month they were requested to return their key to the gate of the Castle Street entrance to the car park. They complied with that request and thereafter ceased to use the route across the car park as a vehicular access to the rear of their property; although it seems that they have continued to use it on foot under an informal arrangement. Subsequently the defendants made preparations for the execution of substantial new building works on part of the hotel car park including the red land, for which they have obtained listed building consent to demolish part of the existing buildings. There is also in force a resolution of the Planning Committee to grant planning permission if a suitable section 52 agreement can be entered into. It appears that the problem is to find an alternative car park, and that is a matter which has not yet been sorted out. It is agreed that the works proposed by the defendants will not be practicable if, as the plaintiffs contend, their rights of way over the red land are still in existence and are enforceable against the owners of the hotel property. For their part, the defendants say that, come what may, they will never regrant to the plaintiffs any complementary rights over the remainder of the hotel property.
On 21st October 1988 the writ in this action was issued, together with a notice of motion claiming an injunction until trial restraining the defendants from building any building or other erection on the red land or otherwise restricting, preventing or interfering with the plaintiffs' enjoyment of their rights of way over the red land as reserved to them by the conveyance of 18th June 1982. The motion came on for an effective hearing before Peter Gibson J. on 28th and 29th November 1988, when he granted an injunction substantially in the terms sought. The defendants now appeal to this court.
Both here and below the case has proceeded on the footing that if it is arguable that the plaintiffs still have existing rights of way over the red land, then they are entitled to an interlocutory injunction to restrain their obstruction, on the ground that the owner of a legal right is prima facie entitled to an injunction to support it, irrespective of whether he has suffered damage by its obstruction or not. On that footing questions of the balance of convenience will not arise. If the plaintiffs show that there is a serious question to be tried as to the continued existence of the rights of way, the injunction must stand.
The reservation of the rights of way over the red land is contained in the schedule to the conveyance dated 8th June 1982 and is in these terms:
"There shall be excepted and reserved out of this Conveyance rights of way for the Vendors and their successors in title as aforesaid as follows viz:—
(a) For themselves and their licensees and invitees having a trade or business connection with the Vendors and their successors as aforesaid to pass and repass with or without trade vehicles over and across the land hereby conveyed from the adjoining premises of the Purchaser (hereinafter called 'the Hotel') known as The Swan and Castle Hotel Castle Street Buckingham aforesaid to and from the point marked 'x' on the said plan daily between the hours of 6.00 a.m. and the closing time of the shop premises of the Vendors known as The Bakery 27 West Street Buckingham aforesaid.
(b) A right of way for the Vendors and their successors as aforesaid with or without vehicles in their custody to pass and repass over the same route the exercise of such right being unlimited in time".
The point marked "x" on the plan is on the northern or common boundary of the red land, where a gate across a ten foot gap in a new boundary fence was constructed by the plaintiffs pursuant to clause 3 of the conveyance.
Since it is the continued existence of the rights over the red land which is in dispute, it seems to me that the correct course is first to consider, as a matter of construction, what is the nature and extent of those rights. Mr. Patten for the defendants, who did not appear below, has submitted that the references in paragraph (a) of the reservation to the plaintiffs' "licensees and invitees having a trade or business connection" with the plaintiffs "to pass and repass with or without trade vehicles over and across the land hereby conveyed from" the hotel property "to and from the point marked 'x' on the said plan daily between the hours of 6 a.m. and the closing time of the shop premises" of the plaintiffs demonstrate that the purposes for which the right is to be exercised over the red land must necessarily be limited to journeys made between the point marked "x" and the eastern extremity of the hotel property in Castle Street. In other words, he says that the rights over the red land must necessarily be considered in conjunction with the complementary rights over the remainder of the hotel property, so that those rights cannot be exercised simply by going from the plaintiffs' property to the southern boundary of the red land and then back again. He then goes on to say that the right under paragraph (b) which, although it is on the face of it a right of way for general purposes except in regard to vehicles, is a right to pass and repass "over the same route" must therefore be similarly restricted to a...
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