Hotchkin v McDonald & Ors

An express right of way must be construed from the language of the grant, read with the conveyance as a whole and the circumstances existing when it was made. Where the grant links use of the way to the lawful use of the dominant property, and that use is subject to a restrictive covenant capable of statutory modification or discharge, the easement is linked to the use lawfully permitted from time to time. A subsequent modification of the covenant therefore permits corresponding use of the way. If the covenant is discharged, the reference to it in the grant becomes redundant.

The appeal concerned the construction of a right of way granted by a 1965 conveyance over Manor House Drive for purposes connected with use of the Manor House authorised by a restrictive covenant. The McDonalds, the current owners, sought to modify or discharge the covenant under section 84 of the Law of Property Act 1925 to permit holiday lettings and a health and fitness centre.

The High Court held that the right of way could be used for purposes permitted after any lawful modification of the covenant. The issue was whether the grant was permanently confined to the uses permitted when the conveyance was executed.

The appeal was dismissed, with costs as agreed. Mummery LJ gave the leading judgment; Thorpe LJ and Bennett J agreed.

1. The effect of an express grant of a right of way depends on the meaning of the language used, construed in the context of the conveyance as a whole and the circumstances surrounding its execution. The grant was for the benefit of the Manor House and was expressly linked to its lawful use.

2. The reference in the grant to use authorised by the schedule was not a permanent freezing of the permitted use as at 1965. The schedule imposed a general prohibition, subject to a limited exception, rather than itself authorising the use. The commercially and legally sensible construction was that the right of way followed the use of the Manor House which was lawfully permitted from time to time.

3. The possibility of later statutory intervention was a relevant circumstance when the conveyance was made. The jurisdiction under section 84 of the Law of Property Act 1925 could not be ousted by agreement. It permitted modification where, among other matters, changes in the character of the property or other material circumstances made continued enforcement an impediment to reasonable use without securing practical benefits to others.

4. Accordingly, if the Lands Tribunal modified the covenant, the right of way could be used for the modified purposes. If the covenant were discharged altogether, the reference to it in the grant would become redundant. The High Court declaration was therefore correct.

1. Court of Appeal (Civil Division): Appeal against the declaration was dismissed, with costs as agreed.
2. High Court, Chancery Division: His Honour Judge Rich QC, sitting as a Deputy High Court Judge, dismissed the claim for a declaration that the right of way was confined to the uses permitted in the 1965 conveyance and declared that it could be used for purposes permitted after any discharge or modification of the restriction.