ETG Developments Ltd v Noah

When construing a right-of-way grant, the court’s primary task is to construe the grant itself. It may read the wording with the attached plan and admissible background material, including the condition of the land at the grant date and relevant planning documents. Where a grant gives a general right over access roads but a foot-only right over the communal courtyard and amenity areas, prospective wording may require the land to be identified in its intended completed state. An area designed primarily for pedestrians does not become an access road merely because vehicles can physically pass through it or did so temporarily.

The developer brought proceedings for money said to be due, principally for loft stairs. The purchaser counterclaimed for a second parking space and for declarations and an injunction concerning vehicular access to his house. The Bromley County Court rejected the counterclaim, finding no agreement for a second space and construing the transfer as granting only foot access over the communal courtyard. On appeal, the surviving issue was whether clause 13.2.1 granted a vehicular right over the area shown between the access road and the house. The central issue was the proper construction of that clause in light of the transfer plan, the intended completed layout and relevant background material.

1. Appeal dismissed. The Court of Appeal unanimously upheld the refusal of the declaration and related relief. Fresh evidence was not admitted because it could have been adduced at trial without good reason for the omission. The later-produced DVD did not directly bear on the condition of the land when the grant was made and was unlikely to assist. (See para [11].)
2. Per Moore-Bick LJ, with whom Latham LJ and May LJ agreed, the primary task was to construe the grant. The court could consider its language, the attached plan, the condition of the land at the date of the grant and other background matters, including planning documents: Scott v Martin [1987] 1 WLR 841. (See para [12].)
3. Clause 13.2.1 distinguished a general right of way over access roads from a right of way by foot only over footpaths, the communal courtyard and amenity areas. Its prospective wording required the relevant areas to be understood by reference to the development in its completed state. The plans indicated that the courtyard was intended primarily for pedestrians, with vehicle access limited to emergencies. Cars shown obstructing the alleged route were inconsistent with a general vehicular right of way. (See paras [16]-[18] and [22]-[25].)
4. Temporary vehicle movements and parking while construction remained incomplete did not determine the meaning of the grant. Mr Noah therefore had no vehicular right of way through the courtyard, and the trial judge was right to refuse the declaration and other relief. The order was: appeal dismissed.

1. Court of Appeal (Civil Division) [2008] EWCA Civ 259: dismissed the appeal and upheld the refusal of the declaration and related relief.
2. Bromley County Court: HHJ Hamilton QC rejected the counterclaim, including the claim for a second parking space and the claim to a vehicular right of way.