Jones v Cleanthi

A statutory obligation necessarily carries the power required to perform it. However, works performed under statutory authority extinguish inconsistent property rights only where the statutory regime authorises expropriation by plain enactment or necessary implication.

If it does not, an easement rendered temporarily unusable survives where there remains a practical possibility that it may again benefit the dominant tenement. Compliance with a supervening statutory fire-safety obligation is, absent negligence, a complete defence to nuisance. On the circumstances considered, it also caused no actionable breach of the lease.

A long lease expressly granted the tenant access through the common parts to communal refuse bins at the rear of a mixed residential and retail building. In 1995 the freeholder erected a fire-resistant wall which prevented that access. The wall was required by a notice under section 352 of the Housing Act 1985.

The Brighton County Court held that the easements had been extinguished. Bell J dismissed the tenant’s first appeal, agreeing that there was no practical possibility of the rights benefiting the flat again. The tenant appealed to the Court of Appeal, seeking declaratory and injunctive relief. The principal questions were whether compliance with the statutory notice permanently extinguished the rights and, if not, whether erecting the wall was actionable.

1. Appeal dismissed. Jonathan Parker LJ gave the judgment of the court. Sir Peter Gibson and Pill LJ agreed.

2. A statutory obligation necessarily includes a statutory power to perform the required act. The section 352 notice therefore obliged and empowered the former freeholder to erect the specified fire-resistant wall.

3. The wall did not extinguish the tenant’s easements once and for all. Whether statutory works expropriate an inconsistent property right depends first upon the true construction of the statutory regime. An intention to interfere with property without compensation is not imputed to Parliament unless expressed by plain enactment or necessary implication. Part XI of the Housing Act 1985 contained no such authority.

4. The fire-safety regime was concerned with minimising risk rather than requiring structures of permanent character. Section 377(1) also contemplated that a person whose consent was needed might reasonably withhold it. These features distinguished Yarmouth Corporation v Simmonds [1878] 10 Ch D 518, where the authorised permanent pier was physically incompatible with the asserted right of way.

5. Because the statute did not authorise permanent expropriation, practical considerations remained relevant. There was a practical possibility, during the approximately 72 years remaining on the lease, that a change of use, legislation or other circumstances might remove the statutory impediment. The rights therefore survived, although they could not presently be exercised.

6. The former freeholder nevertheless committed no actionable wrong by erecting the wall. Absent negligence, performance of the statutory obligation was a complete defence to nuisance. It also caused no actionable breach of the covenant for quiet enjoyment. Unlike the obligation considered in Budd-Scott v Daniel [1902] 2 KB 351, the fire-safety obligation arose long after the lease and was a supervening event beyond the landlord’s control. It was imposed for the protection of residents, including the tenant.

7. Because the former freeholder incurred no liability, the court did not decide whether any liability could have passed to the respondent freeholder. The appeal was dismissed notwithstanding the court’s disagreement with the courts below on extinguishment.

1. Court of Appeal (Civil Division): Dismissed the second appeal. It reversed the conclusion that the easements had been extinguished, but held that compliance with the statutory notice was not actionable.

2. High Court, Queen’s Bench Division: Bell J dismissed the first appeal on 6 December 2005. He held that there was no practical possibility of the easements benefiting the flat again and that they had therefore been extinguished.

3. Brighton County Court: HHJ Simpkiss dismissed the tenant’s claim on 22 April 2005. He held that erection of the wall pursuant to the section 352 notice extinguished the easements.