Right of way: with vehicles or only pedestrian?

In The Dairy Farm Company Limited v Secretary for Justice ([2020] HKCFI 306), a 75 year Government lease of land in Pokfulam (‘the Lot’) to Dairy Farm contained a clause (‘SC20’) stating that: ‘“A right-of-way from Pokfulam Road to the new lot on a line to be approved by the Director of Public Works will be given.’ 

The question was whether the right of way was to be for vehicles or whether only pedestrian access was contemplated. Dairy Farm successfully sought an order requiring the Government to grant it a vehicular right of way.

This required the court (Hon. Wilson Chan J.) to apply the normal principles of contractual interpretation and to look at the words used in their documentary context and in the light of the relevant facts known to both parties at the time of the Grant (1958).

A number of contextual features combined to support Dairy Farm’s contention that the parties must be taken to have contemplated vehicular access:

  • the right of way was for access to domestic premises and so the grant was of a right of way for all purposes required for that use;
  •  SC20 entitled Dairy Farm to construct a ‘road or path’, suggesting both pedestrian and vehicular access was contemplated;
  •  SC20 required Dairy Farm to contribute to the cost of maintaining the road suggesting a type of use that might damage it; ([33])
  •  the right of way was intended to connect to the vehicular access on Pokfulam Road;
  •  pre- Grant correspondence between the parties suggested that the background was a plan to develop a network of roads in the area capable of accommodating vehicular access;
  •  the 75 year term militated against a restrictive interpetation;
  •  especially since vehicular access would be needed for the repair or rebuilding of any buildings on the Lot;
  •  the Lot was intended to be used to house senior staff of Dairy Farm (who were likely to have cars) ([35] – [36]).

Hon Wilson Chan J. decided that the Government’s refusal to grant a vehicular right of way was a breach of SC20 ([72]) and, since it rendered the land practically unusable, a derogation from grant ([73]). The Government was ordered to grant the right of way.

Michael Lower

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