Jones v Cleanthi

A statutory obligation to execute works necessarily carries power to execute them. Where authorised works are physically inconsistent with an easement, the right may be extinguished by necessary implication. For a contractual easement or covenant running with land, present obstruction is not by itself enough. The question is whether there is no longer any practical possibility that the right will ever benefit the dominant tenement in the manner contemplated by the grant. That is a question of fact and degree. A right may also lack a remedy where the obstructing works were carried out pursuant to statutory duty.

Mrs Elizabeth Jones appealed against the Brighton County Court’s dismissal of her claim for declaratory and injunctive relief concerning an easement giving access through the hallway to a rear refuse-storage area at Flat 10A, Brighton. The freeholder had constructed a fire-resisting wall in compliance with a notice served under section 352 of the Housing Act 1985. The wall obstructed the access. The central issues were whether the statutory works extinguished the easement, whether its contractual origin in the lease made a difference, and whether any remedy remained against the successor freeholder.

1. Appeal dismissed. The access easement benefiting Flat 10A was extinguished.
2. A notice under section 352 of the Housing Act 1985 imposed a statutory obligation to execute the specified fire-safety works. That obligation necessarily involved a statutory power to carry them out. The possibility of appealing against the notice did not impose an obligation on the landlord to appeal in order to preserve the tenant’s easement. Section 377 did not require the landlord to obtain the consent of a tenant whose easement would be obstructed.
3. The principle in Yarmouth Corporation v. Simmonds (1878) 10 Ch.D. 518, that a right may be lost where statutory works are physically inconsistent with its continuance, applied to the statutory obligation and the obstruction of the access.
4. The fact that this easement arose from a covenant in a lease required a more specific inquiry. Temporary or present impossibility was not necessarily extinguishment. The relevant question was whether there was any practical possibility that the easement could ever again benefit Flat 10A in the manner contemplated by the grant. That was a question of fact and degree.
5. On the evidence, the wall and associated alterations were unlikely ever to be reversed. The easement therefore had no remaining practical possibility of benefiting the flat and was extinguished.
6. Alternatively, if the easement had survived, there would have been no present remedy in nuisance for works carried out pursuant to statutory duty, nor a remedy for breach of covenant or derogation of grant in the circumstances.

• High Court (Queen’s Bench Division): appeal from the Brighton County Court dismissed; the easement was held extinguished.
• Brighton County Court: His Honour Judge Simpkiss dismissed the claim on 14 April 2005. The lower-court citation was not stated in the judgment.