Adam v Shrewsbury & Anor

An easement may be implied from the parties’ common intention only where they intended the land to be used in a definite and particular manner and the claimed easement is necessary to give effect to that use. The intention is ascertained from the conveyance, the physical setting and admissible surrounding communications.

An expectation that a garage and access road would be used only if a specified development occurred does not create an immediately exercisable right of way if that development does not occur. A right contingent on a road’s future construction is subject to the rule against perpetuities. Where the relevant works have not occurred within the applicable period, the right fails.

The claimant bought Tan-y-Ffordd from a common owner of the adjoining Bryn Coed in 1979. The conveyance contemplated excavation of a site for a garage as part of a proposed development of Bryn Coed, including a road leading to the site. The development was never completed.

Mr Recorder O’Toole, sitting in Wrexham County Court in Case No. WX201244, held that the claimant had an implied right of way over the constructed part of the road and the route of its unconstructed section. The defendants appealed that ruling.

The issue was whether the conveyance gave the claimant an immediately exercisable vehicular right of way although the excavation and road construction contemplated by the parties had not taken place.

1. Appeal allowed unanimously. Neuberger LJ, with whom Clarke and Ward LJJ agreed, held that the claimant had not established an immediately exercisable implied right of way over Bryn Coed.

2. The common-intention principle in Pwllbach Colliery Co Ltd v Woodman [1915] AC 634, as formulated in Stafford v Lee (1992) 65 P. & C.R. 172, required a definite and particular intended user and an easement necessary to give effect to it. The parties’ intention was to be assessed on the balance of probabilities from the conveyance, the ground conditions and the pre-contract communications. The exclusion of such communications proposed in Scarfe v Adams [1981] 1 All ER 843 was not the law, as decided in Partridge v Lawrence [2004] 1 P. & C.R. 176.

3. The parties intended that the site would be used as a garage, with access over the road, if and when the identified development of Bryn Coed was carried out. They did not have an unqualified intention that the claimant would excavate the site, construct a garage and make the steep unconstructed route suitable for vehicles if the development did not occur. Thus the claimed present right of way could not be implied.

4. The claimant had at most a right conditional on construction of the north-western section of road, or an immediate easement whose enjoyment was postponed until then. Applying the reasoning in Dunn v Blackdown Properties Ltd [1961] Ch. 433, either contingent easement was subject to the rule against perpetuities. The statutory wait-and-see principle in the Perpetuities and Accumulations Act 1964 could not assist after more than 21 years had passed without the necessary works. Alternatively, a conditional contract for a right of way would not bind the defendants because it had not been registered as a land charge.

5. A stock-proof fencing covenant did not prevent a gate, or a garage interrupting the fence, where the resulting boundary remained stock-proof. That conclusion supported the conditional garage-and-access arrangement but did not establish a present easement.

• Court of Appeal (Civil Division): Allowed the defendants’ appeal in [2005] EWCA Civ 1006 and set aside the finding that the claimant had an immediately exercisable implied right of way.

• Wrexham County Court: On 31 October 2003, Mr Recorder O’Toole held that the claimant had an implied right of way over the relevant route.