PROPERTY LAW UPDATE DECEMBER 2017

12-14 The Crescent Taunton TA1 4EB general@djblaw.co.uk www.djblaw.co.uk Tel: 01823 279279 PROPERTY LAW UPDATE DECEMBER 2017 Property Update Speaker: Richard Snape 8 th December 2017 3 CPD Points DAVITT JONES BOULD

ABOUT DJB Established in 1999, Davitt Jones Bould is now the largest national real estate law firm in the UK. DJB s clients receive a fabulous service benefiting from their own dedicated Account Manager to ensure that the service they receive is on time, on price and totally meets their needs. DJB is entirely focused on real estate. Covering commercial property, planning and other related areas we have one of the most experienced teams of solicitors in the country with a total of over 800 years PQE. DJB does not use paralegals to undertake legal work. We act for a diverse range of clients in the real estate sector spanning many industries and our client base includes some of the most significant landowners and occupiers in the country. Handling any size of property transaction or planning project, the team is comprised of City trained and highly regarded lawyers that operate from the firm s offices in London, Manchester, Birmingham and Taunton. The firm enjoys top tier rankings in all of the main directories and is a winner of the Lawyer Awards. OUR CREDENTIALS LEGAL 500 London: Real Estate: Commercial Property, Property Litigation and Planning North West: Commercial Property South West: Real Estate: Commercial Property, Planning, Property Litigation, Local Government CHAMBERS UK London: Real Estate South West: Real Estate, Planning, Property Litigation INDUSTRY AWARDS 2016 Amercian Lawyer Legal Awards - Global Finance Deal of the Year Honoree 2013 Lawyer Awards Boutique Firm National Winner 2013 Lawyer Awards Real Estate Team 2 nd Calm, professional and very friendly a pleasure to work with LEGAL 500 2015 I rate everyone we have dealt with as being first class CHAMBERS 2016 Very professional, quick to respond and good at keeping the client informed. LEGAL 500 2015 Clients feel protected to the greatest extent. CHAMBERS 2016

Contents RECENT CASE LAW... 1 INTERPRETATION OF OVERAGE CLAUSES... 3 RECENT CASE LAW ON VILLAGE GREENS... 7 THE COMMONS ACT 2006... 7 THE DIGITAL ECONOMY ACT 2017... 12 CHANGES TO LAND REGISTRY PRACTICE GUIDES... 16 KEY ISSUES AFFECTING EASEMENTS... 17 CAR PARKING RIGHTS... 21 ACQUIRING AN EASEMENT... 24 VEHICLE ACCESS... 29 EASEMENTS: REGISTRATION... 32 EASEMENTS AND PROFITS À PRENDRE... 35 VARIATION OF EASEMENTS... 36 EXTINGUISHING EASEMENTS... 38

RECENT CASE LAW Misrepresentation First Tower Trustees v CDS (Superstores International) Limited [2017] EWHC B6 here the tenant raised enquiry as to whether there were any breaches of environmental law in the premises. The landlord responded in the negative. Subsequently, just before completion the landlord was served with notices in relation to asbestos on the premises. The landlord did not notify the tenant of the change of circumstance. The tenant was faced with nearly 500,000 worth of remediation work and sued the landlord in misrepresentation. The landlord relied on a non-reliance clause whereby the tenant was deemed was not to have relied on any misrepresentations. Exclusion of liability from misrepresentation must be reasonable under s3 Misrepresentation Act 1967. The non-reliance clause was held to be unreasonable. L&T Act 1954 GROUND (f) intention to demolish and reconstruct S Franses Ltd v Cavendish Hotel (London) Ltd [2017] EWHC 1670 (QB) [2017] WLR (D) 503 Here the court accepted that ground (f) could be used even though the work of reconstruction was specifically planned in order to terminate the lease. However, as the work would not commence for 12 months then the intention was not sufficiently immediate. Property Searches Orientfield Holdings v Bird & Bird LLP [2017] EWCA Civ 348 Here the client was purchasing a 25m house in London. The solicitor was aware that there was planning permission for two schools with 1400 pupils in the same street. They did not disclose this in their Report on Title. The sellers response to related questions seemed vague. When the purchaser found out about the planning permission they refused to go ahead with completion and eventually negotiated with the seller to forfeit half of their deposit. They subsequently successfully sued the solicitors for their loss. The court refused to accept an argument that the purchasers had not mitigated their loss by completing the purchase. The judge did state that there was no obligation to carry out additional searches unless 1

upon the express or implied instruction of the client. This case has now been confirmed by the Court of Appeal. Brabners LLP v HM Revenue & Customs (HMRC) [2017] UKFTT 0666 (TC) the tribunal confirmed that there was no concession on VAT for electronic searches as there is for property searches and VAT was payable. 2

INTERPRETATION OF OVERAGE CLAUSES Walker v Kenley [2008] EWHC In this rather startling case, overage was payable if residential flats were built upon land. The buyer of the land who was bound by the overage wished to build holiday flats on the land. The question for the High Court was whether holiday flats fell within the meaning of residential flats, thus triggering the overage payment. Quite surprisingly, it was held that the term residential flats suggested a degree of permanence, i.e., residence as a dwelling, and that this did not include holiday homes: no money was, therefore, payable. This case is a timely reminder of the need to clearly specify the event, which triggers the overage payment. With the benefit of hindsight it would have been much better to merely refer to flats without the prefix of residential. It may also, however, be asked whether this decision may be transposed into other areas of law. Does, for instance, reference to a residence or indeed a single private dwelling, in a restrictive covenant, prevent use as an only or principal home but not prevent use as a holiday home. The question must be considered a moot one. On a related topic, in King and Others v Udlaw Ltd [2008], the Lands Tribunal has confirmed that holiday homes do not qualify as dwellings for the purpose of sections 18 to 30 of the Landlord and Tenant Act 1985. These provisions detail the rather bureaucratic service charge consultation and documentation requirements, which landlords must abide by in relation to service charges of dwellings. In this case the holiday homes were chalet bungalows with all the amenities necessary for residential accommodation. They were let on 99 year leases and were on the same terms as many residential leasehold flats apart from the restrictive covenants whereby they could only be used as a holiday home. This case is highly significant in relation to such chalet bungalows and also static caravans in, for instance, a caravan park. Such units are often let on long leases and on a year round basis, albeit not as a main residence. A major burden on the owner of such sites has now been lifted. Chartbrook v Persimmon Homes [2009] UKHL38 There is no limit to verbal rearrangements in order to give a commercially sensible meaning when construing a contract in its bargaining context. This case also reaffirms that contractual negotiations are ordinarily inadmissible in interpreting the contract. 3

Here, there was an entitlement to an Additional Residential Payment of 23.4% of the price achieved for each residential unit in excess of the Minimum Guarantee Residential Unit Value. The House of Lords allowed Persimmons appeal. Interpretation in accordance with ordinary syntax made no commercial sense. Additional Residential Payments had to mean the amount by which 23.4% of the achieved price exceeded the Minimum Guaranteed Residential Unit Value. Renewal Leeds v Lowry Properties [2010] EWHC 2902 Here, because of low housing expectation, no overage was payable until the last house was sold. The houses were built and 80 were sold but the developer deliberately left the last 4 houses unsold. RL tried to buy them at market value but the developer refused to sell. The court implied a term that the developer should take all reasonable steps to sell and therefore the overage was payable. It is suggested that there should not be reliance on implied terms and that such matters should be expressed. Whether this case would be decided in the same way post the Supreme Court cases of Arnold v Britton [2015] UKSC 36 and Marks & Spencer v BNP Paribas Securities Services Trust Company (Jersey) Ltd & Anor [2015] UKSC 72 where the courts held that implied terms would not be allowed to re-write express wording is debatable. In Primapus v Hall Aggregates (2000) 50% overage became payable on planning permission except for use as a garden centre, sport centre or recreation ground. Permission was granted for a sports hall, driving range and fishing lake. This was held to be within the exception as was a golf shop which was ancillary to use. No overage was therefore payable. In Berkeley Group v Pullen [2007] EWHC 1330 there was provision in the overage clause that the parties would act in good faith. B would maximise potential value by procuring planning permission and when P disposed of the land B would obtain further payment. B acted to obtain planning permission but became aware that P wished to sell the property to a third party. B successfully obtained an injunction to prevent this on the basis of the good faith clause. Likewise, in Ross River and Blue River v Cambridge City Football Club [2007] EWHC 2115 presence of good faith enabled an overage buyout agreement to be recinded because of lack of openness of the developer. Harris v Berkeley Strategic Land Ltd [2014] EWHC 3355 (Ch) Here 60 flats for use in a care home and 15 units of sheltered accommodation constituted residential accommodation by reference to the physical character of the land and the fact that it was within current planning permission. Overage therefore had to be paid. In Groveholt v Hughes [2012] EWHC 3351 (Ch) it was held that purchase money that was not ascertained at the date that the person who was subject to the overage went into liquidation would not be payable. In Walton v Staffordshire County Council [2013] EWHC 2554 the case involved a former school playing field. The value of the land in calculating the uplift was based on an assumption that there was 4

no planning permission. The court held that the recommendation of the planning officer and a resolution of the planning committee that planning permission would be granted should also be disregarded. Sparks v Biden [2017] EWHC 1994 Ch, here there were no express provisions as to the time in which properties would be sold to trigger the overage payments. The courts implied that the person subject to the overage would endeavour to sell within a reasonable time. Good Faith Sainsburys Plc v Bristol Rovers Football Club [2016] EWCA Civ 160. In this case a requirement of good faith did not mean that Sainsburys had to appeal conditions as to planning permission and therefore could avoid a contract which was subject to satisfactory planning permission. In the present case Sainsburys had contracted to buy the Memorial Ground, home of Bristol Rovers Football Club, from the latter. They were then going to lease back the site to Bristol Rovers for 1 whilst the latter built a new stadium that the University of West of England. The purchase price was 30m. The contract was subject to satisfactory planning permission for a supermarket. Planning permission was granted but it placed restrictions on delivery which the contract specifically stated would allow Sainsburys to terminate it. Sainsburys were seeking judicial review but applied out of time as they had decided that they did not want the site after all. Bristol Rovers argued that a good faith provision in the contract required them to persue an appeal. The courts held otherwise especially as legal opinion was that there would be less than 60% chance of success. The Court of Appeal have now confirmed this decision. A requirement to act in good faith will not override clear provisions of the contract. Although the case involves conditional contracts, presumably the same would apply to overage clauses. Note: In Rentokil Initial 1927 Plc v Goodman Derrick LLP [2014] EWHC 2994 (Ch) relates to a claim in negligence by a seller of property, Rentokil, against its lawyers. Rentokil had agreed to sell property to Taylor Wimpey for 4.388m conditionally upon the grant of a satisfactory planning permission for residential development. A satisfactory planning permission was one that was free from Unacceptable Planning Conditions. Following the grant of planning permission on appeal (subject to conditions largely on terms the same as those negotiated by Taylor Wimpey with the local planning authority) Taylor Wimpey asserted that some of the planning conditions attached to its planning permission fell within the definition of Unacceptable Planning Conditions under the conditional sale agreement. Rentokil contested this, and brought about arbitration proceedings, but ultimately compromised those proceedings on terms that resulted in a revised sale to Taylor Wimpey at 2.5m. Rentokil brought an action in negligence against its lawyers, alleging that as a result of the definition of "Unacceptable Planning Conditions" Taylor Wimpey was able to argue that the planning conditions that were ultimately imposed were unacceptable and entitled to treat the contract as terminated. The 5

court held that the solicitors were not liable as it is there job to draft the clause in accordance with the wishes of the client and their agents and not to decide the detail of the clause. The solicitors are required to draft on the basis of client s instructions. Presumably the same may apply to overage. 6

RECENT CASE LAW ON VILLAGE GREENS THE COMMONS ACT 2006 REGISTRATION OF RIGHTS OF COMMON Creation A right of common cannot at any time after the commencement of the relevant provision be created over land by virtue of prescription. A right of common may be created over land by way of express grant if:- (a) (b) the land is not registered as a town or village green; and the right is attached to land The creation of a right of common in accordance with the above only has effect if it complies with such requirements as to form and content as regulations may provide. The creation of a right of common in accordance with the above does not operate at law until on an application under this section:- (a) (b) the right is registered in a register of common land; and if the right is created over land not registered as common land, the land is registered in a register of common land An application under this provision to register the creation of a right of common consisting of a right to graze any animal is to be refused if in the opinion of the commons registration authority the land over which it is created would be unable to sustain the exercise of:- (a) (b) that right; and if the land is already registered as common land, any other rights of common registered as exercisable over the land REGISTRATION OF GREENS: S.15 These provisions came into force 6 th April 2007 and 6 th September 2007 in Wales. 7

Any person may apply to the commons registration authority to register land to which this provision applies as a town or village green. This provision applies where:- (a) (b) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and they continue to do so at the time of the application Where:- (a) (b) (c) a significant number of the inhabitants of any locality, of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; they ceased to do so before any time of the application but after the commencement of this provision; and the application is made within the period of one year (or two years in Wales) beginning with the cessation This subsection applies (subject to subsection (5)), where:- (a) (b) (c) a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; they ceased to do so before the commencement of this section; and the application is made within the period of five years beginning with the cessation referred to above The above does not apply in relation to any land where:- (a) (b) (c) planning permission was granted before 23 June 2006 in respect of the land; construction works were commenced before that date in accordance with that planning permission on the land or any other land in respect of which the permission was granted; and the land:- (i) has by reason of any works carried out in accordance with that planning permission become permanently unusable by members of the public for the purposes of lawful sports and pastimes; or 8

(ii) will by reason of any works proposed to be carried out in accordance with that planning permission become permanently unusable by members of the public for those purposes In determining the period of 20 years there is to be disregarded any period during which access to the land was prohibited to members of the public by reason of any enactment. R (on the application of Lewis) v Redcar and Cleveland Borough Council [2010] UKSC 11 - The Supreme Court has reversed the Court of Appeal decision and held that dog walking on a municipal golf course gave rise to a claim for Village Green, in spite of the fact that the walkers gave priority to the golfers. The case involved 18 acres of a local authority owned golf course, comprising a part of a fairway, the first and 18 th holes and the clubhouse. The course had existed from at least the 1920 s until 2002 and was leased to the Cleveland Golf Club. The land was earmarked for a mixed development including 300 houses in conjunction with Persimmon Homes. Four of the locals made a claim that the land should be registered as Village Green based on dog walking and family recreational activities. The Court of Appeal rejected the application, as it was always understood that any pastimes were in deference to the golfers who always had priority. The Supreme Court has now said that this is an irrelevance. The land was being used without force, secrecy or permission for the requisite time period and there was no further requirement in the legislation in relation to deference to others. After this case, large amounts of land where the owner has allowed the locals onto the site, may give rise to Village Green claims. In particular, playing fields may be open to such claims. In Wales, there is also a draft Disposal of Playing Fields (Wales) (Community Involvement) Measure 2010 which requires extensive consultation before the disposal of playing fields. Taylor v Betterment Properties (Weymouth) Ltd and another [2012] EWCA Civ 250 This case concerns 46 acres of grazing land. The owners had put up signs forbidding entry to the land and had also fenced it. Gaps had appeared in the fences and the signs had been vandalised. The Court of Appeal accepted the argument that the court could review previous registrations, and not merely act on appeal from decisions of the Council. They sent the case back to the High Court for decision. It was accepted the owner of the land had stopped putting up signs some time previously, but it was accepted that the locals would have realised that they were trespassing by entering through gaps in the fence. Moreover the landowner had taken reasonable steps to prevent the locals using the land and the registration was removed nine years after it had been made. See also Smith v Brudenell- Bruce (2002) signs merely need to be consistent with the owner s means the resources. See also in relation to public footpaths: Oxfordshire and Buckinghamshire Mental Health NHS Trust v Oxfordshire County Council 2010 LGR 631. Users of the land ought to have reasonably known that the owner was objecting to their presence by signs. Contrast this with Lewis (above) where signs saying that trespassers were not welcome showed an insufficient intention to bar the users. See also Field Common v Elmbridge Borough Council 2005 where correspondence complaining about user 9

prevented a claim for a public footpath, and Godmanchester Town Council v The Secretary of State for the Environment [2008] 1 AC 221 where a notice was largely ignored but still prevented use as a public footpath. However, in Adamson v Paddico (267) Ltd and others [2012] EWCA Civ 262 the Court of Appeal refused to de-register a village green where, although the original application was wrong, the landowner had waited several years to make the application. Adamson v Paddico and Taylor v Betterment [2014] UKSC14 have now been heard by the Supreme Court where it was held that a lapse of time is not immaterial in allowing rectification of the register of Town and Village Greens. However, in both of these cases, there was no evidence to show that a significant detriment had occurred and both registrations were removed. BDW Trading Ltd (t/a Barratt Homes) v Spooner (representing the Merton Green Action Group) [2011] EWHC B7 (QB) In this rather startling case, the High Court held that where a local authority had appropriated land for planning purposes under s122 Local Government Act 1972, or s233 Town and Country Planning Act 1990, it could then sell off the land free of any registered village green. This is the first case to discuss such a point, but must be of questionable authority. Leeds Group v Leeds City Council [2011] EWCA Civ 1447 A claim for Village Green succeeded, although there was not a single, but two, neighbourhoods involved in the claim. The land holder s contention that the claim did not involve a locality within the neighbourhood also failed as the occupants of neighbouring streets showed a degree of cohesiveness. R (Barkas) v North Yorkshire County Council and Scarborough District Council [2012] EWCA Civ 1373. Here the Judge decided that playing fields which were being maintained as a recreation ground under s80 Housing Act 1936 could not constitute a village green as of right. The Judge accepted Obiter statements given by the House of Lords in R (Beresford) v Sunderland City Council [2003] UKHL 60. This case has now been confirmed by the Supreme Court. In R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 The Newhaven Harbour Improvements Act 1847 gave the port authority power to maintain and improve the harbour. In addition, the Harbour s Docks and Piers Clauses Act 1847 allowed bye-laws to be passed in relation to the harbour. The authority had passed byelaws allowing access to various parts of the port with conditions, e.g. dogs to be kept on a lead. The locals had for many years been bathing off a beach within the harbour land and claimed that this gave rise to a village green. The Supreme Court has now reversed the court of appeal and held that this was not a village green. Although a beach may be a village green, the bye-laws meant that the user was not as of right but 10

under a licence, see Barkas above. Moreover if a village green claim was allowed then the improvements of the harbour under legislation would not be possible as the surface of the village green cannot be changed and this would be contrary to the 1847 Act, see also BDW v Spooner above. It was also stated that similar arguments may be made in relation to prescriptive rights generally, see Mills v Silver 1977. The concept of an overriding statutory obligation as recognised in the East Sussex and Barkas cases has now started to cause its own problems. In Lancashire County Council v The Secretary of State for the Environment, Food and Rural Affairs and Another [2016] EWHC 1238 (Admin) the court accepted that where the land was owned by a Central Government body which was subject to its own legislation a village green claim could not be made. The court also decided that the need for a specific locality was not satisfied as the people using the land must be spread throughout the whole of the locality. Furthermore, the locality had changed over the 20 year period required for a village green claim. It is understood that this case is going to appeal. In R (NHS Property Services Ltd) v Surrey County Council [2016] EWHC 1715 (Admin) a similar argument was accepted by the judge in that there was overriding statutory obligation in relation to NHS land. These two cases are now being heard by the Court of Appeal. 11

THE DIGITAL ECONOMY ACT 2017 The Government explanatory notes states that this intends to achieve the following: reform the Electronic Communications Code, to deliver better coverage in rural areas through greater investment and faster rollout of mobile and broadband infrastructure make it easier for communications providers to have access to land - moving to a no scheme valuation system more akin the regime enjoyed by utility providers protect landowners by strengthening the access principle and requiring communication providers to pass a public interest test clarify roles and responsibilities for all parties that use the Code, helping commercial agreements to be reached more easily and disputes to be resolved more quickly make it easier for digital communications companies to upgrade and share their equipment and get faster access to maintain sites work with industry and Ofcom to develop a Code of Practice to ensure effective implementation of new rights. powers for Ofcom to use new technologies to better manage spectrum and make it easier for different users to share spectrum make it easier to install broadband cabinets, overhead lines and poles in all areas except Sites of Special Scientific Interest (SSSIs) by making regulations introduced in 2013 for a period of five years to be made permanent. The provisions will not be retrospective. The new code states that the Landlord & Tenant Act 1954 will not apply and that there can be no contracting out. A land owner may be able to obtain possession on persistent rent arrears or other significant breaches by the operator. They may also serve at least 18 months notice, terminating no earlier than the end of the fixed term, that they intend to develop the site and that they cannot do so without possession. Any equipment which comes within the code will give rise to an overriding interest which will bind purchasers of the land. This will include under ground equipment. 12

It is not retrospective. The code makes clear that the Landlord and Tenant Act 1954 will not apply to the relevant equipment. Terminating no earlier than the end of the agreement, the land owner may serve at least 18 months notice to leave. If this is counter noticed then the land owner must apply to courts and show that there has either been persistent rent arrears, breach of other terms of the agreements, or that they have no intention to demolish and reconstruct the site. Any equipment within the code will give rise to an overriding interest which will bind purchasers, regardless of registration at HMLR. This will include underground equipment. 13

CHARACTERISTICS OF AN EASEMENT An easement cannot exist unless the essentials laid down at law are present. Danckwerts J laid down the following four essential characteristics of an easement in the leading case Re Ellenborough Park [1956] ch 131. The Four essentials of an easement are: (1) There must be a dominant and servient tenement. (2) The easement must accommodate the dominant tenement. (3) The dominant and servient tenements must be owned or occupied by different persons. (4) The right claimed must be capable of forming the subject matter of a grant. On the requirement for benefit see Jobson v Record and Record [1998] 75 P&CR 375. Land was sold subject to a right of way for all purposes connected with these and enjoyment of the property hereby conveyed being used as agricultural land. The dominant owner wished to use the right to drive timber lorries which would pick up timber stored on the land and cut from a plantation on neighbouring land, owned by him, but not subject to the easement. The court refused this use:- (a) use as agricultural land included timber production but not the storage of timber which had been felled elsewhere; and (b) the right claimed was not for the land which had the benefit of the easement but for neighbouring land. Likewise in Peacock v Custins [2001] 13EG 152, there could be no use of a right over the dominant in order to cultivate adjacent land. Pharbu Das v Linden Mews [2002] P & CR D28. Here, the dominant land was purchased at the back of the owner s house for car parking. This did not allow him to drive through a hole in his wall and park at the back of his house. Nor could he walk out of the back of his house and then drive down the access. In Gore v Naheed & Anor [2017] EWCA Civ 369 it was held that on the express wording of a easement, the dominant owner was able to access a garage on land at the back of the dominant land. 14

Use of the garage was ancillary to the use of the land. A tenant of the garage land could not however use the right. Contrast Britel Ltd v Nightfreight [1998] 4 All ER 432 - Access to the dominant land in order to carry out construction works in relation to neighbouring land was permitted. Re Ellenborough Park concerned used of communal gardens which could constitute an easement although the court stated there could be no easement to wander at will. In Regency Villas Title Ltd v Diamond Resorts Ltd [2017] EWCA 238 the appellants owned a mansion and estate and the respondents owned villas on timeshares in the estate. In 1981 they were granted the right to use the gardens, outdoor swimming pool, golf course, squash and tennis courts and ground and basement floors of the mansion. The swimming pool was subsequently filled in and the respondents claimed that they had an easement and this constituted a nuisance. The Court of Appeal decided that in this day and age it would be right to accept the existence of an easement for recreational and sporting activities. There is also the question of the extent of the easement. West v Sharp [1999] 78 P&CR D371 Here an original right of way was 40ft wide, the servient owner reduced it to 13ft and closed down completely for 36 hours for tree cutting. The total closure was held insubstantial and although the reduction in width was an interference with the easement, there were no damages and the interference was too insubstantial to give rise to an injunction. Lea v Ward [2017] EWHC 2231 (Ch) The court held that the dominant owner was entitled to use the whole of a driveway, the width of which was interpreted by reference to maps and internet searches. A neighbouring developer intended to build upon the driveway. This was an actionable interference. However, as the driveway could still be used damages were nominal. An injunction would be granted but only if a satisfactory alternative access could not be found. In Minor v Groves [2000] 80 P&CR 136 it was stressed that a right of way does not necessarily cover the whole width of a path where a part had traditionally been used for placing rubbish bins and milk bottles. Particular problems relate to the fourth characteristic. The easement must be capable of forming the subject matter of a grant. This involves various problems, The right must be sufficiently definite A right which is uncertain or vague cannot qualify as an easement. Thus it was decided as early as William Aldred s Case [1610] that there could be no easement of a prospect or view (though the result could be achieved by way of a restrictive covenant, prohibiting building on the land by a neighbour in such a way as to obstruct a view). 15

In Davies v Dennis (2009) EWCA 1081 there was held to be a breach of covenant against committing a nuisance when an extension was built near to a neighbouring boundary. The three storey extensions with planning permission obscured the neighbour s view of the River Thames. The Court of Appeal has now confirmed this decision. Other examples of rights which are insufficiently definite to constitute an easement include: a right to privacy Browne v Flower [1911] 1 Ch 219; a right to a general flow of air over land to a windmill Webb v Bird [1862]; a general right to light; and a ius spatiandi a right to wander at will across land. Contrast may be made between these indefinite claims which failed and similar rights which, through being certain, qualify as easements. Thus Bass v Gregory [1890] 25 QBD 481 recognised the right to a flow of air through a defined aperture, i.e. a ventilation shaft. A right to light through a defined aperture, for example a window, is recognised as an easement and is, indeed, very common. Likewise although there is no ius spatiandi, a right of way along a defined path is recognised as being the most important of all easements. CHANGES TO LAND REGISTRY PRACTICE GUIDES Where a Form A description is automatically registered by HMLR when there has been no statement in the transfer as to beneficial ownership then a Form A restriction will automatically be registered and the Applicant notified and given 30 days to correct this. The Land Registry has updated its electronic Document Registration Service (e-drs) to allow customers to remove default Form A restrictions more quickly. Now the correcting Application may be done electronically using Form e-drs1. Practice Guide 19 has also been amended whereby if Applications are made together then there must be clear evidence of which takes priority otherwise, for example, a charge will not necessarily take priority over a restriction created at the same time. 16

KEY ISSUES AFFECTING EASEMENTS Rights to Light Ough v King [1967] 1 WLR 1547 - These can only exist through a defined window. Most of such rights are created by prescription, either through lost modern grant, or an indefeasible easement may come into existence under S.3 Prescription Act 1832. Colls v Home and Colonial Stores [1904] AC 179, accepted that the amount of light must be sufficient for the comfortable enjoyment of and land. Thus here, a business premises required less light than a residence. There is no general 45 rule: Theed v Debenhams [1876] 2 Ch D 165. In Newham v Lawson [1971] 22 P&CR 582, a church required relatively little light. In Allen v Greenwood [1980] Ch 119, an injunction was granted preventing the erection of a fence on land near a greenhouse, as the retained light would be inadequate for growing plants. A right to light is not deprived by the change in the use of the building through which the light comes. In Carr-Saunders v Dick McNeil [1986] 1 WLR 922, one room had been divided into several smaller rooms, although the windows were the same. Each room was entitled to a reasonable amount of light. The owner of land cannot, however, increase the windows thus requiring more light: Martin v Goble (1808). Note: The Rights of Light Act 1959 allows registration of a local land charge in order to prevent creation of prescriptive rights. The registration must occur within 19 years and a day of the commencement of the time period. There must be interruption of a right for a year under the Prescription Act 1932, for the claim to have to start afresh. In Tamares (Vincent Square) Ltd. V Fairpoint Properties (Vincent Square) Ltd. [2007] EWHC B3 (Ch) an injunction was refused in relation to restrictive covenants which blocked rights to light. However, one third betterment value was awarded as compensation. This in spite of the fact that the Premises would normally be artificially lit. HKRUK II v Heaney [2010] EWHC 2245 (Ch) Normally once work is underway, an injunction will not be granted to deal with breaches. However, in the present case, a landlord went ahead with development which obstructed rights to light in complete disregard of the facts that the work would obstruct rights to light. In these circumstances, the injunction was granted. The decision in Heaney is particularly controversial after Coventry v Lawrence above. In the County Court case of Scott v Aimiuwu (2015) the Judge refused to order an injunction where a residential extension encroached on the light of a neighbouring workshop and outbuildings. Damages, is based 17

one-third of betterment value, would have been 54,000, if based on the reduced value of the neighbouring land it would have been 12,000. The Judge decided that factors such as the behaviour of the parties would be relevant and awarded 31,000. In Ottercroft Limited v Scandia Care Limited & Another [2016] EWCA Civ 867 the Court of Appeal awarded an injunction in relation to infringement of light by a re-built fire escape. The loss to the neighbouring café premises was only 886. An alternative fire escape would have cost an additional 12,000. In awarding the injunction the Court decided that factors such as the behaviour of the defendant and his non-compliance with an undertaking he had agreed were factors to be taken into account. Salvage Wharf Ltd & Anor v G&S Brough Ltd [2010] Ch 11 Where rights of light prevents development work, there may be an agreement to allow the development to go ahead. Here the courts drew a distinction between two types of clause. Firstly, a clause that deals with the position as it exists at the date of the agreement. This will be effective to establish the existing legal rights of the parties but will not prevent subsequent acquisition of a right of light by prescription. Secondly, a clause which deals with what might happen in the future. This clause may prevent the acquisition of a right of light by prescription if what is authorised would interfere with the right. It is not necessarily for the clause to use the word light nor to provide that the enjoyment of light is permissive. RHJ Limited v FT Patten Ltd [2008] EWCA 151 It was held by the Court of Appeal that an agreement did not have to contain an express reference to rights to light to prevent such rights being acquired under s3 of the Prescription Act 1832. See also CGIS City Plaza Shares v Britel Fund [2012] EWHC 1594 for a similar decision whereby the agreement was held to binding on successors in title. Rights of Way A prescriptive right of way, in Mills v Silver [1991] Ch 271, allowed the dominant owner to maintain a trackway but not to improve it by tarmacking it. There can be no right to wander over land at will, but use of communal gardens was recognised as an easement in Re Ellenborough Park (above). In BRB v Glass [1965] 1Ch 538 a prescriptive easement allowed an increase in user (from 6 to 30 caravans) but not a change in the type of use. This is an exception to the normal rule that there cannot be an unreasonable intensification of use of the dominant land in Lock v Abercaster [1939] Ch 861, however, where a prescriptive easement for horse drawn vehicles allowed passage of farm animals. 18

In White v Grand Hotel Eastbourne [1913] 1 Ch 113, an unrestrictive right of way was held not to be limited to circumstances in existence when the easement was created. Thus, when a private home became a hotel, the easement still existed. In Kain v Norfolk [1949] Ch 163, an all purposes easement still existed even though a sand and gravel pit was later opened and a substantial traffic of lorries resulted. In Powell v Linney (1976), the placing of a cattle grid on an easement of access was held reasonable, as in Saint v Jenner (1976), were sleeping policemen. In Bulstrade v Lambert [1953] 1 WLR 1064, parking of vans whilst loading and unloading was not unreasonable and was held as a necessary incident of a right of way. In St Edmundsbury Diocesan Board of Finance v Clark [1975] 1 WLR4 68, a right of way was interpreted in line with the circumstances prevailing when the easement was created. Thus a narrow strip of gravel land was held to be for foot access only of Keefe v Amor [1965] 1 QB 334. In Snell and Prideaux v Dutton (1992), a right of way was impliedly abandoned when the dominant owner acquiesced in encroachment of a building. Rights of Storage In Grigsby v Melville [1972] Ch 488, storage to the exclusion of the servient owner could not qualify as an easement. However, in Wright v Macadam [1949] 2 KB 744, non-exclusive use of coal cellar did qualify as an easement in favour of a tenant. The easement had been created under S.62 LPA 1925, on renewal of the lease. In Miller v Emcer Products Ltd [1956] Ch304, use of a lavatory qualified as an easement. Fencing Easements Usually, an easement cannot involve positive expenditure on the part of the servient owner. See Regis Properties v Redmon [1956] 2 QB 612. However, in Crow v Wood [1971] 1QB77, a customary obligation to fence was recognised as an easement. Other Problem Areas William Old International Ltd v Arya [2009] EWHC 599 (Ch) In this case, the claimant had the benefit of an easement giving free and uninterrupted passage of services through pipes and cables laid or to be laid through the defendants land, together with associated rights of entry to lay new services and to obtain new supplies of utility services to the building. This easement was insufficient for the requisitioning of an electricity supply to be provided by EDF Energy Networks plc. EDF was not obliged to make a connection if the person requiring it does not own the land through which cables are required to be laid. In such circumstances, the supplier may (but is not obliged to) make a connection if the person requiring it procures the grant of an easement to the supplier over the relevant land. Alternatively, if the owner of that land refuses to 19

grant an easement, the supplier can invoke a statutory procedure to obtain a wayleave from the Secretary of State. As the claimant did not own the land through which cables were to be laid, the claimant sought to force the defendants to grant an easement to EDF by virtue of the terms of the original grant. The court rejected the claimant s arguments (1) that a right to compel the grant of an easement to EDF was an ancillary aspect of the original grant binding on the defendants; or (2) that the failure to execute such a grant constituted a derogation from the original grant by the defendants. Comment An express easement is granted together with all ancillary and incidental rights reasonably necessary to make the grant effective. (See Pwllbach Colliery Co Ltd v Woodman [1915] AC 634). However, for an ancillary right to exist, the right must itself be capable of existing as an easement. The right claimed in this case to compel the grant of an easement to an electricity supplier could not itself exist as an easement and could not therefore exist as an ancillary right. Was there a derogation from the original tenant? The court confirms that the doctrine of derogation from grant is an essentially negative doctrine, requiring a defendant not to do anything which substantially deprives the claimant from enjoyment of the benefit granted. Implying a requirement that the defendants grant a right to EDF was plainly outside the essentially restrictive nature of the doctrine. This case shows the obvious need to plan carefully for utility connections in advance of development by ensuring the acquisition of sufficient land and/or rights over land. Metropolitan Housing v RMC FH Co Ltd [2017] EWHC 2609 (Ch) a lease prevented the tenant from creating any easements over the land or any neighbouring land which would encroach upon the landlords right to light. The tenant s surrending the lease would amount to such an encroachment although on the fact there is no clear evidence of sufficient encroachment by allowing building on a a neighbouring piece of land. 20

CAR PARKING RIGHTS Moncrieff v Jamieson [2007] UKHL42 For some years there has been a debate about whether an easement to car parking exists. The argument goes that an easement is a right that one person enjoys over another person s land, there can be no easement which constitutes exclusive possession. The earliest cases which discussed this issue, in fact, involved storage, as in Copeland v Greenhalf [1952] Ch. 488, where a claim for an easement of storage of trailers on a narrow stretch of agricultural land failed as it amounted to a claim of exclusive possession. If exclusive possession is being claimed as a property right then this would have to arise as an estate in land. Several Commonwealth decisions enforced this argument throughout the 1960 s and 1970 s and then, in 1982, a first instance and, unfortunately, unreported decision in Newman v Jones. This case involved parking a car on a first come, first serve basis around a block of flats. The judge decided that, as there was a genuine sharing and no guarantee to an individual space, this could constitute an easement. Therefore, here there was an easement but, if there was an allocated space in which a flat owner parked, there could not be an easement. During the following twenty years, cases suggested problems but with no definite conclusions. Then, starting with a commercial property case: Batchelor v Marlow in 2001 and following on with a case involving residential flats: Saeed v Plustrade Ltd and Another [2002], the Court of Appeal held that Newman v Jones was correct. There could be no easement to park a car in an allocated space as this constituted a claim of exclusive possession which was contrary to the whole concept of an easement. This was subsequently followed in two further cases: Central Midland Estates v Leicester Dyers [2004] and Montrose Court v Shamash [2006]. In the latter case an easement was held to genuinely exist as there were fewer car parking spaces around the 19 th Century block of flats than there were long leaseholders, and occupiers were genuinely required to share. However, again it was recognised that a right to an allocated space could not constitute an easement. Why this distinction is important is that if a right to park in an allocated space cannot constitute an easement and is not demised, then it cannot amount to a property right. It will merely amount to a licence. This, as in Saeed v Plustrade Ltd above, will bind the original landlord/developer but will not be binding against a purchaser of the reversion. Moreover, historically, car parking in relation to leaseholds which may have a major impact on value, would be granted in the schedule of rights and not demised, i.e. a purported easement would be created. As the majority of car parking rights give allocated spaces, this would render the lease defective. Although cases such as Saeed v Plustrade Ltd seem to have taken time to filtrate through to practice, over the past few years it has become increasingly common to demise car parking spaces in leasehold 21

flat developments with the qualification that the developer commences the development in that manner. It is very difficult to change the developer s mind mid-way through! The service charge must also be changed as the tenant would normally be responsible for maintenance of their demise. In anything but the smallest development, a landlord would be advised to be responsible for maintenance of car parking spaces and should then be able to collect the cost via service charge. If a development is already underway then a landlord is unlikely to accept an argument to demise car parking if existing tenants only have purported easements. Moreover, deeds of variation may not be possible in anything but the smallest developments. In this situation a landlord may be prepared to accept a deed of covenant whereby any purchaser of the reversion is bound by the car parking rights contractually. This should be supported by a restriction at the Land Registry whereby such a purchaser cannot become the new registered proprietor without the written consent of the tenant, who will give their consent if a deed of covenant is entered into. Slowly then, things were settling down and the argument that car parking rights in allocated spaces should be demised was holding sway. Then came the House of Lords decision of Moncrieff v Jamieson in late 2007. This is a Scottish case from the Outer Hebrides involving the law of servitude. It is not a direct precedent in England and Wales, however, the House of Lords allowed a right to park on an allocated space as a servitude. Moreover, two of the judges, including Lord Neuberger, doubted whether the previous Court of Appeal cases from England were correct. It seems that there may be such a thing as an easement to park in an allocated space after all. Conclusion I have already seen Moncrieff quoted by developers solicitors as a reason for not demising car parking. It might also be noted that leaseholds, and flats in particular, contain several rights which would be defined to constitute exclusive possession, which should possibly be demised. Examples include for example, exclusive use of a balcony, storage and perhaps, most significant of all in terms of the effect on valuing a roof terrace, all of which potentially could be withdrawn by a reversioner. Note: In Virdi v Chana [2008] EWHC 280, the High Court refused to follow Moncrieff as they felt bound by the English Court of Appeal decisions. Kettel and others v Bloomfold Ltd [2012] EWHC 1422 (Ch) - car parking in the same space all the time amounts to exclusive possession and the right should have been demised and cannot be an easement: see Batchelor v Marlow [2003] 1 WLR 764. Parking in whichever space becomes available without an absolute right can constitute an easement. Here, the landlord gave the tenant exclusive rights to park but the tenant could be moved on management grounds. This was held to be an easement as there was no exclusive possession. In Winterburn v Bennett [2016] EWCA Civ 482 the Court of Appeal recognised that an easement to park a car in one of several spaces could exist. In this case the claimant owned a fish and chip shop adjacent to the entrance of a car park and over a period of time had left vehicles in the car park. They claimed a prescriptive easement. The Court of Appeal stated that such an easement must be exercised without force, secrecy or permission. 22