Archive for the ‘Easements’ Category

Easement by prescription to create a noise that would otherwise be a nuisance. Private nuisance and the public interest

September 29, 2014

In Lawrence v Fen Tigers Ltd ([2014] AC 822, SC) (Coventry v Lawrence) C used former farmland near a village for speedway and similar types of racing. The land used as the stadium had planning consent for the various types of races held there. A succession of temporary consents began in 1992 ending when permanent planning permission was granted in 2002. L was a resident in the village having moved there in 2006. L brought an action in nuisance because of the noise caused by racing and ancillary activities at the stadium. The Supreme Court decided that the judge at first instance had been right to find that the noise was a nuisance and that C had not acquired an easement by prescription entitling it to make the noise that was complained of (although the acquisition of such an easement was legally possible). The fact that the defendants had planning permission to carry on the noisy activity did not settle the question as to whether or not there was a private nuisance.

This note relies principally on the judgment of Lord Neuberger. Although the other judges agreed with him in general there were differences of approach on some issues.

Can an easement to commit what would otherwise be a nuisance by noise be acquired by prescription?

Lord Neuberger held that it is possible to acquire an easement to carry on an activity which results in noise ([33]) and it can be acquired by prescription ([37]). But it is not enough to show that the noise has been created for 20 years. It must also have constituted a nuisance during that time ([42]). Otherwise, the servient owner would not know that a claim was being made against his land ([43]).

Coming to the nuisance

It was no defence to say that the claimant came to the nuisance where the claimant continues to use the property in the way that it had previously been used by her predecessors ([51]). It may be different where the claimant built on the land or changed the use to which it was put after the alleged noise nuisance had started ([56]).

Reliance on the defendant’s own activities in defending a nuisance claim

The character of the locality is an important consideration in nuisance cases ([59]). The court has to have regard to ‘the established pattern of uses’ ([60]). On this basis, the defendant’s own activities clearly should be taken into account ([63]) to the extent that they have become part of the character / established pattern of uses but not to the extent that there has been some change / intensification that might constitute a nuisance ([65]). Even where it was originally a nuisance, the right to make the noise might have been acquired by prescription or sanctioned by a previous decision to award damages rather than an injunction for the breach ([69]). See also Lord Carnwath (at [187]).

The effect of planning permission on an allegation of nuisance

Lord Sumption explained the importance of this issue and the next (remedies):

‘It is, I think, worth pointing out that the question what impact the grant of planning permission should have on liability in tort for private nuisance and the question what remedies should be available for a nuisance are closely related. They both raise a broader issue of legal policy of some importance, namely how is one to reconcile public and private law in the domain of land use where they occupy much the same space?’ ([155]).

It is normally not a defence ([94]) but neither is it irrelevant; it may have evidential value ([96]).

The award of damages instead of an injunction

The role of this issue in the general scheme or design of the law in this area is explained thus:

‘What saves, or could save the law from anomaly and incoherence is the court’s discretion as to remedies. An injunction is a remedy with significant side-effects beyond the parties and the issues in the proceedings. Most uses of land said to be objectionable cannot be restrained by injunction simply as between the owner of that land and his neighbour. If the use of a site for (say) motocross is restrained by injunction, that prevents the activity as between the defendant and the whole world. Yet it may be a use which is in the interest of very many other people who derive enjoyment or economic benefits from it of precisely the kind with which the planning system is concerned. An injunction prohibiting the activity entirely will operate in practice in exactly the same way as a refusal of planning permission, but without regard to the factors which a planning authority would be bound to take into account. The obvious solution to this problem is to allow the activity to continue but to compensate the claimant financially for the loss of amenity and the diminished value of his property. In a case where planning permission has actually been granted for the use in question, there are particularly strong reasons for adopting this solution. It is what the law normally provides for when a public interest conflicts with a proprietary right.’ (Lord Sumption at [157]).

An injunction had been granted at first instance. C now contended that damages should be awarded instead. This issue and the question as to how damages should be assessed was an issue in all but one of the judgments. The Supreme Court clearly saw this as an important issue and an area that needed to be settled. Lord Neuberger envisaged that it would be argued and considered more fully in later proceedings ([152]).

Michael Lower

Acquisition of right of way by prescription

June 19, 2013

In Cheung Yuk Ying v Lo Koon Fuk ([2013] HKEC 932, CFI) the path leading from P’s house to the public footpath crossed the land of a Tso (represented by D). P’s land was landlocked and P claimed a right of way by prescription under the doctrine of lost modern grant. This succeeded. The path over D’s land had been used as the access between P’s property and the public footpath ‘on a reasonably regular basis’ (though perhaps not continuously) since at least the 1940s. On that basis, the doctrine of lost modern grant applied ([146] – [147]). The fact that the house was in ruins between the mid 1950s and the mid 1990s did not matter since the path was still used as an access to the property (perhaps as a way of getting to a chicken farm beyond it) during that time. The fact that, for much of that time, the occupiers and owners were all likely to have been members of the Tso did not mean that the use of the path was a private privilege reserved for members of the Tso.

The court considered, and seems to have been inclined to accept, a second and independent basis on which the easement might have come into existence. There was a re-grant of all Government leases in the New Territories in 1973 (New Territories (Renewable Government Leases) Ordinance) and all Government leases in the New Territories had been extended in 1997 (New Territories Leases (Extension) Ordinance). P’s land was land-locked. The grant of the claimed right of way could be implied on the basis of necessity on the re-grant or extension of the lease of P’s land (with a corresponding reservation on the re-grant or extension of the lease of D’s land). Alternatively, the rule in Wheeldon v Burrows or section 16 of the Conveyancing and Property Ordinance could result in the implied grant of an easement based on the then existing use of the path as a means of access from P’s land to the public footpath.

Michael Lower

Removing internal staircase: infringement of right of way: encumbrance?

June 17, 2013

In Ho Ching Group Ltd v Tsang Pui Lin ([2013] HKEC 780, CFI) S agreed to sell the property (a ground floor shop) to P. There had been an internal staircase leading from the shop to the cockloft above (in separate ownership) and the owner of the cockloft had a right of way to use the staircase to get to the cockloft. The staircase had been removed and S acknowledged that this amounted to an infringement of the easement. The internal staircase had been replaced by an external staircase before S bought the property in 1998 and there had been no complaint by the owner of the cockloft. On the other hand, when approached by P, the owner of the cockloft refused to renounce its right to use the internal staircase. The question was whether the infringement of the easement amounted to an encumbrance on title.

The court held that it was not an encumbrance. J Poon J. stated the test thus:

‘In considering if a risk of litigation may constitute an encumbrance, the court will ask : are the facts and circumstances of the case so compelling to the mind of the court that the court concludes beyond reasonable doubt that the purchaser will not be at risk of a successful assertion against him of the encumbrance.’ ([12]).

Here, there had been no complaint by the owner of the cockloft. There had been no threat of action concerning the removal of the staircase by other owners in the building or the Government. It seemed clear that the owner of the cockloft had abandoned the right of way. The risk of litigation was fanciful ([13]).

The sale and purchase agreement contained a clause requiring P to accept the situation as regards the staircase but the presence of this clause was not a factor in the judgment.

Michael Lower

Easement by prescription when licence ends

February 25, 2013

In London Tara Hotel Ltd v Kensington Close Hotels Ltd ([2011] EWCA Civ 1356, CA (Eng)) Tara and KCH were the owners of adjoining hotels. KCH’s predecessors in title had had the benefit of a licence to use a private access road on Tara’s land. This licence had ended on a change of ownership of KCH’s hotel in 1980. The question was whether KCH had acquired a right of way by prescription. The English Court of Appeal emphasised that the only questions were whether the post-1980 use was nec vi, nec clam, nec precario (peaceful, open and not based on any permission). It was common ground that the use was peaceful (no element of force was alleged).

The use was not the result of a permission. The licence had ended in 1980 and there was no evidence of a later express or implied licence.

The English Court of Appeal found the question as to whether the user was secret more difficult. Tara failed in this respect too. Lord Neuberger MR said:

’36. It was inherent in the Licence that it would determine on a change in the ownership of the KC Hotel, and that should have been (and maybe was) appreciated by Tara when the Licence was granted. When the change of ownership of the KC Hotel occurred in 1980, there was no question of any secrecy, or even of a deliberate intention to keep quiet, on the part of KCL or THF, as is shown by the fact that the change was known to junior employees at the KC Hotel. Accordingly, it appears to me that Tara’s case on clam fails for very much the same reasons as Tara’s case on precario fails.

37. Of course, whether the case is put on clam or precario, very different considerations would apply if it could have been shown that KCL or THF had deliberately concealed the change of ownership of the KC Hotel from Tara, or, a fortiori, if it could have been shown that KCL or THF had deliberately misled Tara about the change of ownership. But there is no such suggestion in this case.’

Nuisance: the grant of planning consent can change the character of an area

February 21, 2013

In Lawrence v Coventry (t/a RDC Promotions) ([2012] 1 EGLR 165, CA (Eng)) (later overturned by the Supreme Court) C used former farmland near a village for speedway and similar types of racing. The land used as the stadium had planning consent for the various types of races held there. L was a resident in the village who brought an action in nuisance because of the noise caused by racing and ancillary activities at the stadium. The claim failed in the English Court of Appeal. The planning consents had altered the character of the neighbourhood and this changed character had to be borne in mind when considering a claim in nuisance.

Jackson LJ said the following about the relevance of the planning consent:

‘i) A planning authority by the grant of planning permission cannot authorise the commission of a nuisance.

ii) Nevertheless the grant of planning permission followed by the implementation of such permission may change the character of a locality.

iii) It is a question of fact in every case whether the grant of planning permission followed by steps to implement such permission do have the effect of changing the character of the locality.

iv) If the character of a locality is changed as a consequence of planning permission having been granted and implemented, then:

a) the question whether particular activities in that locality constitute a nuisance must be decided against the background of its changed character;

b) one consequence may be that otherwise offensive activities in that locality cease to constitute a nuisance.’ ([65])

Lewison LJ suggested, obiter, that it may be possible to have an easement to transmit sound waves and to acquire such an easement by prescription. ([91])

Landlord’s use of adjoining land making demised property less fit for contemplated purpose

September 25, 2012

In Aldin v Latimer Clark, Muirhead & Co ([1894] 2 Ch 437) a landlord granted a lease of property to be used for the purpose of carrying on the business of a timber merchant. The tenant covenanted not to use the property for any other purpose. The landlord later erected buildings on the neighbouring land retained by him which interfered with the flow of air to the sheds and made them less useful for the tenant’s business. The court held that the right to the flow of air could be an easement but no such easement had been acquired here.

The tenant claimed that this amounted to nuisance, derogation from grant and breach of the covenant for quiet enjoyment. The landlord was liable in damages.

‘[W]here a landlord demises part of his property for carrying on a particular business, he is bound to abstain from doing anything on the remaining portion which would  render the demised premises unfit for carrying on such business in the way in which it is ordinarily carried on, but that this obligation does not extend to special branches of the business which call for extraordinary protection.’ (444 per Stirling J).

Express covenant for quiet enjoyment leaves no room for the implied covenant

August 30, 2012

In Miller v Emcer Products Ltd ([1956] Ch. 304, CA (Eng)) a landlord granted a lease of ground floor premises and the right to use a lavatory on the second floor of the building. The lease contained an express covenant for quiet enjoyment but limited liability under it to actions of the landlord, the  superior landlord and people deriving title under the landlord. The tenants of the second floor (including the lavatory) did not fall into any of these categories. The second floor tenants locked the lavatory and refused to allow the ground floor tenants to use it. The ground floor tenants could not rely on the express covenant for title since it did not cover actions of the second floor tenant. They argued that it was a breach of the unqualified implied covenant for quiet enjoyment.

The English Court of Appeal held that the right to use the second floor lavatory was an easement attached to the ground floor lease and so the covenant could apply to it. Where, however, there was an express covenant covering the same ground as the implied covenant there was no room for the implied covenant (expressio unius est exclusio alterius). The implied covenant did not apply and there had been no breach of the express covenant (since it did not cover actions of the second floor tenants).

Landlord’s wrongful interference with goods supplied to tenant on hire

July 31, 2012

In London Trocadero Ltd v Family Leisure Holdings Ltd ([2012] EWCA Civ 1037, CA (Eng)) L granted to W a lease of premises at the Trocadero in London. F (W’s parent) hired gaming and amusement machines to W. W went into administration and F wanted to recover possession of the machines as it was entitled to do under the hire agreement. The lease contained easements that allowed the tenants to cross the common parts of the Trocadero to bring things to or take them away or to authorise others to do so on their behalf. W gave F permission to access the property but L resisted this arguing that the easement conferred rights only on the tenant. When F brought proceedings, they also argued that F was the tenant’s licensee and lacked standing. L failed on both counts. W was clearly entitled to authorise F to access the property to take away the machines. F clearly had standing since L’s conduct amounted to unlawful interference with F’s goods.

Sale of part of land: inferred easement and abandonment of an easement

July 25, 2012

Re Clarke ([2012] UKUT 226 (LC) was concerned with the valuation of the freehold of property to be acquired by the tenant under the Leasehold Enfranchisement Act 1967. The question was whether, for valuation purposes, the property was landlocked. The tenant held the property under the terms of a 400 year lease granted in 1641 (‘the lease’). The tenant also owned the freehold of property to the south. The lease included both the property in question (a house) and other land to the north of the house. The tenant under the lease had the benefit of rights of way over land further to the north but there was no visible track or path in existence.

In 1946, part of the lease (the part on which the property stood) was assigned to T and the freehold of land to the south (‘the pink land’) was conveyed to T. The land to the south had the benefit of a right of way over a track leading to the public highway. This express grant did not, however, benefit the property. As long as the property and the pink land were (as now) in common ownership there was no practical problem since the owner of the property could simply cross the pink land to access the public highway to the south of it. For the purposes of the valuation of the freehold of the property, however, this was irrelevant unless the property had a legal right of way.

The Tribunal found that there was no inferred right of way over the pink land and the track that crossed it. The most plausible argument was an easement of necessity but this failed because of the fact that the common ownership of the property and the pink land meant that the property did have the right to cross the pink land.

It was likely that, legally speaking, the property had the benefit of an easement over the rest of the leasehold land to the north. The fact that no use had been made of the rights of way to the north for over 50 years did not mean that there had been an abandonment. The non-use was explicable on the basis of the practical alternative access over the pink land to the south.

Nevertheless, the freehold should have been valued on the basis that it was landlocked. A buyer might face litigation if it tried to exercise rights over land to the north and there would be severe planning difficulties in the way of constructing a useable road.

Redevelopment and third party rights: premature application for declaration / injunction. Avoiding acquiescence

May 14, 2012

CIP Property (AIPT) Ltd v Transport for London ([2012] EWHC 259) concerned a proposed development above Tottenham Court Road underground station in London. Aviva owned nearby property and claimed that the proposed redevelopment would infringe the rights of light to which it was entitled (as ancient lights or easements acquired under the Prescription Act 1832 or the doctrine of lost modern grant). (Note that it was decided in China Field Ltd v Appeal Tribunal (Buildings) (No 2) that the doctrine of lost modern grant applies in Hong Kong).

Aviva had asked for an acceptance by D that it had rights of light that would be affected by the development. D refused to give this acceptance but confirmed that any redevelopment would respect third party rights. Aviva sought a declaration that it had the claimed rights of light and an injunction restraining any development that would constitute an actionable interference with them. D argued that the application was premature.

The court agreed that it was premature to entertain an application for either of the remedies sought. D did not yet even own the development site. Planning permission had only just been applied for and would take years to obtain (so the details of the development work were unknown). D had given assurances that it would respect third party rights. Aviva could not claim that a failure to give the assurances it had sought amounted to an imminent threat to its claimed rights.

As for the fear that silence might result in a later finding that it had acquiesced in any development and had lost its rights:

‘It will be up to Aviva through its solicitors to ensure that the third defendant is aware at all material times of Aviva’s concerns.’ ([39]).