Adealon International Proprietary Ltd. v London Borough of Merton

A way of necessity is implied only where a disposition leaves the disposed or retained land without any legally enforceable access. The question is not whether an easement would be sensible or convenient on the facts as they later appear. A possible common-law right to reach a highway, subject to planning control, may prevent the necessary degree of necessity. The doctrine is distinct from an easement arising from common intention and operates as an exception to the rule against derogation from grant. Any implied right is limited to what was necessary when the disposition was made. Where that historical use included vehicles, the right may extend to vehicular as well as pedestrian access.

The claimant owned land adjoining a highway and land formerly held with an adjoining parcel later transferred to the defendant. The transfer contained no express reservation of an easement. The claimant sought a declaration that the retained land enjoyed a right of way of necessity over the defendant’s land because direct access to the highway required planning permission and was not then available.

The central issues were whether the land was sufficiently inaccessible to justify implying a way of necessity, whether the doctrine could apply where the land abutted a highway and was also bordered by third-party land, and, if an easement existed, whether it would include vehicular access.

1. The claim was dismissed. The claimant had not proved entitlement to a way of necessity over the defendant’s land.
2. A way of necessity is an exception to the rule that a grantor must not derogate from his grant. It is not established merely because an easement would be useful, convenient or common sense. The relevant question is whether the disposition left the land without any legally enforceable means of access.
3. Following Titchmarsh v Royston Water Company Limited (1899) 81 L.T. 673, the doctrine was not available where the land was not surrounded by the grantor’s land, but bordered on one side by a highway and on the other sides by third-party land. The existence of a common-law right to go onto the highway, even though planning permission was required and access was presently unlikely, meant that the necessary condition was not established. The court stressed that the test was not whether access should be implied in the circumstances then obtaining or whether doing so would be common sense.
4. The doctrine of way of necessity was distinct from an easement based on common intention. The evidence did not show a common intention that the retained land should have access over the transferred land to High Path. The owner’s intention at the time of separation had instead contemplated access towards the highway.
5. If an easement had been established, its scope would have been assessed by reference to the use necessary at the date of the transfer. Since the land had then been used with vehicles for parking and in connection with the warehouse, the implied right would have included vehicular as well as pedestrian access along the eastern part of the defendant’s land.
6. Issues concerning the precise boundary and damages were left for subsequent determination.