Crane Road Properties Llp v Hundalani & Ors

A covenant to contribute to repair, maintenance and resurfacing costs of a private roadway does not make the beneficiary liable for improvements or reconstruction. The recoverable amount is limited to the cost of work actually undertaken which would fairly fall within the covenant. The relevant standard is the condition and anticipated use of the roadway when the covenant was created, assessed by what a prudent landowner would reasonably undertake. Removal of dumped material may constitute maintenance, but costs incurred in abating a nuisance caused by the servient owner’s failure to prevent fly-tipping are not recoverable. New gates are not repair or maintenance where none previously existed. A right of way is not substantially interfered with where it remains practically exercisable as conveniently as before.

Two actions concerning Crane Road, a private roadway near Heathrow, were tried together. The claimant freehold owner sought contributions from the defendants, owners of adjoining land, towards the cost of extensive 2002 road works, removal of fly-tipped rubbish, security gates and professional fees. The defendants disputed liability and the scope of the 1979 transfer, which required them to contribute one half of the cost of maintaining, repairing and resurfacing the roadway.

In the second action, the defendants alleged that a footpath and slight realignment of Crane Road interfered with their express and prescriptive rights of way. The issues included the recoverable repair standard, the effect of the defendants’ consent and acquiescence, and whether any actionable interference or compensable loss had occurred.

1. Repair and resurfacing. The claimant could recover only the cost of elements of the 2002 works actually undertaken which would have been incurred had the roadway merely been repaired in accordance with the covenant. It could not recover the cost of improvements or a notional sum for work avoided by upgrading the road. The covenant presupposed that qualifying costs had actually been incurred.
2. The distinction between repair and improvement depended on the general character and condition of the road at the date of the 1979 transfer and its anticipated use. The proper measure was what a prudent landowner would fairly and reasonably undertake to keep the roadway suitable for its continued use by heavy goods vehicles. The recoverable area excluded extensions created by the 2002 works and generally excluded existing concrete areas that did not require resurfacing. It included the area added by the earlier works, which had become part of the defendants’ prescriptive right of way.
3. The owner of the servient tenement had no general obligation to repair the way absent the positive covenant. The recoverable 2002 cost was therefore not reduced because earlier maintenance had been omitted. The parties were left to agree the appropriate repair and professional-fee figures.
4. Fly-tipping. Removing dumped material could in principle be maintenance where necessary to facilitate use of the way. Here, however, the claimant’s predecessor knowingly left a derelict site that attracted continuing fly-tipping, failed to take reasonable preventive measures and later incurred costs in abating a nuisance for which it had become liable. Those costs were not reasonably and properly chargeable under the covenant.
5. Gates and footpath. New gates where none previously existed were not repair, maintenance or resurfacing. The defendants had not agreed to pay for them. The court found that the defendants had consented to the western footpath and, by failing to object while it was constructed, could not complain about it. In any event, the slight realignment caused no practical interference: access remained substantially and conveniently exercisable, and no injunction or damages in lieu would have been granted.
6. The question of the defendants’ future financial obligations for the upgraded roadway was left open. The same obligation applied to the whole roadway in principle, but the extent of liability for future works required fuller argument.