Volta Developments Ltd & Anor v Waltham Forest Friendly Society

An express right of way must be construed in its commercial and factual context, rather than by focusing on isolated words. Where a transfer grants a right over a single strip of land, surrounding circumstances may show that the dominant properties have one shared access route, even though the grant refers to the dominant lands in the plural. Issue estoppel applies only to a determination that was fundamental and necessary to the earlier decision. A mere step in the earlier reasoning will not suffice.

The claimants owned three adjoining properties on East India Dock Road. The defendant owned the adjoining former car park at the rear. The dispute concerned whether a 1963 transfer granted three separate direct rights of way, or one shared access route through a strip no more than 12 feet wide.

The claimants also relied on issue estoppel arising from a 2006 decision of a Deputy Adjudicator to HM Land Registry concerning alleged prescriptive rights and the effect of the 1963 transfer. The court determined the proper construction of the express grant and whether the earlier decision prevented the defendant from disputing the claimants’ wider interpretation.

1. Construction of the express grant. The court applied the contextual approach stated by Lord Hoffmann in Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 at 912. The relevant background included the council’s statutory land-acquisition project, the earlier use of a single 12-foot strip, the planning material contemplating one future access point, and the wording of the transfer itself.
2. The reference to a single “strip” indicated one straight access route. The plural word “lands” merely identified the dominant land in general terms. It did not determine the extent of the interference with the servient land. If separate access routes had been intended, the transfer could have referred to “strips” and to each property separately. The three properties therefore enjoyed only one shared means of access from Follett Street.
3. Issue estoppel. The Deputy Adjudicator had decided claims to prescriptive easements on the facts. His essential conclusion was that no specific route had been nominated. Any suggestion that the individual properties had separate express rights was, at most, part of the reasoning supporting that conclusion. It was not a determination fundamental or immediately foundational to the earlier decision. The issue-estoppel claim therefore failed.
4. The court found in favour of the defendant on the issues argued at that stage. The alternative question of which single access point should be used, and any relief, was adjourned for further consideration.

First-instance decision. No appellate history is stated in the judgment.