Stafford & Anor v Lee & Anor

An intended easement may be implied where the parties had a common intention that the land granted should be used in a definite and particular manner, and the easement is necessary to give effect to that intention. The intention need not be proved with certainty; the balance of probabilities is sufficient. It may be inferred from the conveyance and an accompanying plan, even where the plan is stated to be for identification only. The court should identify the intended use at the date of the grant, rather than assume that the land is confined to its existing use. An appellate court will rarely interfere with a trial judge’s discretionary costs order.

The plaintiffs owned woodland conveyed to their predecessor by a 1955 deed. The deed described the land as fronting Marley Drive but contained no express right of way. The plan showed the land adjoining two plots bearing legends indicating existing dwellings. After planning permission was obtained for a house, the defendants, owners of Marley Drive, disputed the plaintiffs’ right to use it for construction and residential purposes.

The Exeter County Court, before His Honour Judge Willcock, declared that the plaintiffs had the necessary right of way, relying on the doctrine of intended easements. The defendants appealed. The plaintiffs served a respondents’ notice relying alternatively on necessity and the rule in Wheeldon v Burrows. The central issue was whether the 1955 deed demonstrated a common intention to use the land for a definite and particular purpose.

Lord Justice Nourse gave the substantive judgment and Lord Justice Russell agreed. The appeal, including the challenge to costs, was dismissed with costs.

1. Following the principles stated by Lord Parker in Pwllbach Colliery Company Limited v Woodman [1915] AC 634, an intended easement requires two matters to be established. First, the parties must have had a common intention that the land granted would be used in some definite and particular manner. Secondly, the claimed easement must be necessary to give effect to that intention. Easements are more readily implied in favour of a grantee than a grantor.
2. The requisite intention need not be established as a certainty. The balance of probabilities is sufficient. A plan forming part of the agreed conveyancing material may be used to infer intention, even if expressed to be for identification only. The authorities of Wigginton & Milner Limited v Winster Engineering Limited [1978] 1 WLR 1462 and Scott v Martin [1987] 1 WLR 841 supported reliance on the plan.
3. The plan’s depiction of the conveyed plot beside two comparable enclosures associated with dwellings made it probable that the parties intended construction of another dwelling, followed by residential use. Access over Marley Drive for construction materials and residential purposes was necessary, and no more than necessary, to give effect to that intention.
4. The alternative grounds were unnecessary to the decision. Lord Justice Nourse expressed a provisional doubt about relying on the donee’s planning application and the grantor’s failure to object 15 months after the deed, since intention had to be assessed at the date of grant.
5. Costs were within the trial judge’s discretion. The Court of Appeal would not interfere absent a recognised basis, such as failure to consider the relevant matters or an impermissible exercise of discretion. No such basis was shown.

• Court of Appeal (Civil Division): Dismissed the defendants’ substantive appeal and costs appeal, affirming the declaration made below.
• Exeter County Court: His Honour Judge Willcock declared that the plaintiffs were entitled to use Marley Drive for construction of a dwelling and subsequent residential purposes, and dismissed the counterclaim.