Wong v Beaumont Property Trust Ltd

Where a lease requires premises to be used for a defined and particular business purpose, an easement of necessity may be implied if the premises cannot lawfully be used in that way without it. The need is assessed when the lease is granted. It is enough that the easement was in fact necessary then, even though the parties did not realise it.

An easement so implied may be used in a proper manner as the business develops, provided that this does not substantially increase the burden on the servient land.

The respondent held the remainder of a 21-year lease of cellar premises used as a restaurant. The lease required operation as a popular restaurant, development of the business, control of smells and odours, and compliance with health regulations. The existing internal flue was inadequate from the grant of the lease. A ventilation duct fixed to the landlords’ external rear wall was necessary for lawful operation, but the landlords refused consent.

Judge Pratt in the Exeter County Court declared that the tenant was entitled to install the duct. The landlords appealed, contending that no easement was implied and challenging the County Court’s jurisdiction. The central issue was whether the lease carried an easement of necessity permitting the duct.

Disposition

The Court of Appeal unanimously dismissed the landlords’ appeal and upheld the declaration.

1. Easement of necessity. Lord Denning MR applied the principle in Pwllbach Colliery Co Ltd v Woodman [1915] Appeal Cases 634. An easement may be implied where it is necessary to give effect to the parties’ common intention that granted land be used in a definite and particular way. This was not merely an implication of contract, because both parties were successors in title; any enforceable proprietary right had to be an easement.

2. The lease stipulated a restaurant business and required the tenant to control and eliminate smells, avoid nuisance, and comply with health requirements. Lord Justice Pearson treated those covenants as showing the particular use contemplated. The findings established that the existing flue had been insufficient from the outset. Under Regulation 21 of the Food Hygiene Regulations 1955, and consistently with the lease covenants, the restaurant could not lawfully operate without adequate ducting to the roof. The court therefore implied an easement of necessity to install the duct on the rear wall.

3. It was immaterial that the parties had not appreciated at the grant that the duct was necessary. Actual necessity at that time was sufficient. The larger duct required by the respondent’s improved business was also permissible because it did not substantially increase the burden on the servient premises.

4. The County Court had jurisdiction under section 51 of the County Courts Act 1959. Jurisdiction depended on the genuine nature of the claim for a declaration of easement and damages limited to £400, rather than on the eventual result. In the absence of evidence to the contrary, the rateable values were assumed to be within the statutory limit. Lord Justice Salmon additionally held that the landlords’ unequivocal refusal to permit exercise of the claimed easement was an actionable interference capable of supporting damages.

Leave to appeal to the House of Lords was refused.

• Court of Appeal — unanimously dismissed the landlords’ appeal and upheld the declaration that the tenant could install the ventilation duct. Leave to appeal to the House of Lords was refused.
• Exeter County Court — Judge Pratt granted a declaration in favour of the tenant.