Partridge & Ors v Lawrence & Ors

A deed must be construed as a whole, according to its natural meaning and in the light of the background knowledge reasonably available to the parties when it was executed. Background evidence is not admissible only where the wording is ambiguous.

A right of way made conditional upon obtaining all requisite planning and other approvals may be exercised whenever the proposed use requires no such approval. Further conditions, such as development of the dominant land or construction of an adoptable road, cannot be implied contrary to the deed’s express terms. Whether use of a right of way produces a material change of use is a question of fact and degree.

The claimants reserved access from an estate road across land later forming part of the defendants’ garden. A 1995 deed replaced an earlier right of way with rights over an area identified on an annexed, reduced plan as the “Field Access”. The parties disputed whether that access was 5.5 or 7.5 metres wide and whether it could presently be used.

Mr Recorder Barnes in the Bristol County Court declared that the access was 5.5 metres wide. He also held that removal of an obstructing fence and hedge required planning consent and granted related injunctions. The claimants appealed. By a respondent’s notice, the defendants sought additional conditions requiring development permission and construction of an adoptable roadway before the right could be exercised.

The central questions were the proper construction of the deed and the extent to which planning requirements conditioned the present exercise of the right of way.

1. Disposition. The appeal was allowed in part and otherwise dismissed. The declaration that the Field Access was 5.5 metres wide was upheld. The decision imposing planning preconditions upon its present exercise was reversed to the extent stated by the Court. The additional conditions sought in the respondent’s notice were rejected. Peter Gibson LJ gave the leading judgment; May LJ agreed and Dyson LJ agreed with both judgments.
2. The deed was to be construed according to the natural meaning of its words as a whole, read in the light of the circumstances existing when it was executed. The relevant background included the scaled drawing from which the annexed plan had been copied. Although the annexed plan was reduced, distorted and incapable of direct scaled measurement, it identified its source and could legitimately be interpreted with that source drawing. The stipulated width was therefore 5.5 metres. The slight taper in the cross-hatching was unintended, and the deed did not make the width depend upon the width at which the estate road was later constructed.
3. The right granted by paragraph 1.1 of the deed’s Schedule was a presently subsisting right. Its exercise was conditional only upon obtaining approvals, licences or consents which were legally requisite for the particular use proposed. The deed did not make exercise dependent upon development of the retained land, planning permission for that development, a change of use of the Field Access, or prior construction of a roadway to adoptable standards.
4. Removal of the fence was not development and the fence was not subject to a specified planning condition. It could therefore be removed without planning consent. On the Recorder’s sustainable finding as to the completion date, the five-year period governing replacement of landscaping had expired. The landscaping condition consequently no longer prevented removal of the hedge.
5. Whether use of the right of way would itself produce development through a material change of use was a question of fact and degree. Occasional passage on foot was unlikely to do so, whereas prolonged, frequent vehicular use might. May LJ described the right as co-extensive, at any time, with uses of the access and retained land permitted by planning law.
6. An injunction could restrain construction of a surface only where that construction required planning permission. The Court was prepared to replace the relevant injunctions with suitable undertakings from all four claimants.

1. Court of Appeal (Civil Division): The claimants’ appeal was allowed in part and otherwise dismissed. The 5.5-metre width was affirmed, but the planning preconditions were modified. The additional preconditions advanced by the defendants’ respondent’s notice were rejected: [2003] EWCA Civ 1121.
2. Bristol County Court: Mr Recorder Barnes declared that the Field Access was no more than 5.5 metres wide, held that planning consent was required before removal of the fence and hedge, and granted related injunctions. No citation is stated in the judgment.