Perlman v Rayden & Anor

The construction of an easement depends on the words of the grant read with the relevant surrounding circumstances. A right of way expressed to extend along the whole frontage of a property may permit access at a new point where the grant contains no limitation to an existing entrance and the physical features do not justify restricting the grant. Ancillary works reasonably necessary for the exercise of the easement may also be permitted.

An actionable interference with an easement requires substantial interference with its reasonable and convenient use. Acquiescence may create an estoppel barring enforcement of a legal right, including a claim for damages, where the right-holder knowingly stands by and the other party acts to his detriment. Damages may reflect the value of an unauthorised use, but must remain proportionate to the claimant’s actual loss.

The claimant owned No 6A Elm Tree Road and the roadway serving three neighbouring properties. The defendants owned No 6 and carried out extensive alterations, using the roadway for construction, parking and access. They also built a rear extension which obstructed the claimant’s reserved right of entry for repairs and caused damp.

The claimant sought declarations, injunctions and damages in two actions. The defendants relied on the construction of the transfers, consent, acquiescence and estoppel. The central issues were the scope of the defendants’ right of way, the operation of a rights-suspension proviso, the extent of the claimant’s repair access, and the appropriate remedies.

1. Rights of way. The February Transfer was to be construed as a whole and in the light of the surrounding circumstances. Its grant of a right to pass and repass along the roadway, for purposes connected with the existing use of No 6 as a private dwellinghouse, extended along the whole frontage and was not limited to the original front door. The planting area was insufficient to contradict the wide wording of the grant. The defendants could therefore use a reasonably available new access point, although they could not use the roadway to construct it unless they had consent or could carry out the works without such use.
2. The right of way carried ancillary rights reasonably necessary for safe and convenient enjoyment. The defendants could construct a shallow step and a paved path to the new front door, subject to reasonable dimensions, suitable materials and restoration of the planting area.
3. Interference with repair access. Under West v Sharp (2000) 79 P & CR 327, the relevant question was whether the right could substantially and practically be exercised as conveniently as before. A minimum gap of 0.7 metres was inadequate in practical terms. A two-metre gap, with 0.5 metres at the end of the extension, was ordered as sufficient for foreseeable repair and building operations.
4. Suspension proviso. The proviso suspended the defendants’ rights only while they were in breach of the express covenants, including the covenant against parking. It did not convert uses which fell outside the grant, such as construction works, into unlawful uses through a separate suspension mechanism. Suspension ended when parking ceased in October 2002.
5. Consent and estoppel. Consent may be inferred from conduct. The claimant’s continued knowledge of, and participation in, the works, together with requests that the works pause for particular occasions, amounted to consent to the front-elevation works. Alternatively, his conduct made it inequitable to enforce those rights after the defendants had incurred substantial expenditure. The estoppel did not extend to the rear extension or the unnotified second-floor works.
6. Remedies and damages. Removal of the dormer window and external lights would have been disproportionate to the temporary trespasses. Damages of £10,000 were awarded for those matters, with nominal damages for parking and £3,125.50 for restoration of the planting area. The second action resulted in a declaration as to the required gap, damages of £1,000 for interference with access, agreed damages and compensation for damp, but no damages for merely notional loss of use.
7. Aggravated damages of £5,000 were awarded because the defendants’ conduct concerning the excessive extension, concealed construction works and subsequent denials increased the claimant’s mental distress.