Davill v Pull & Anor

The scope of an express right of way is determined from the words of the grant read in the light of the background circumstances known to the original parties. A right appurtenant to land is not ordinarily frozen by the use made of that land when the grant was created. A grant for all reasonable and usual purposes permits purposes that are reasonable and usual from time to time, rather than purposes confined to the land’s original use as garden ground. Subject to the ordinary limits on excessive use and unreasonable interference, building and occupying a dwelling authorised by planning permission may therefore be a lawful use of the easement.

Norman Davill owned three plots benefiting from rights of way over a track. He obtained planning permission to build a dwelling on each plot and sought to use the track for construction and subsequent residential access. The respondents, neighbouring owners with similar rights, contended that the grants permitted access only for purposes associated with use of the plots as garden ground.

The Nottingham County Court dismissed the claim for damages and an injunction, declared the rights so limited, and restrained construction and residential access. The appeal concerned the proper construction of the grants and whether they permitted the proposed residential use.

1. Appeal allowed. The Court of Appeal set aside paragraphs 1 to 5 of the county court judge’s order. The outstanding issues were remitted to the county court, with counsel invited to agree the form of declaration and consequential order.
2. The grants were to be interpreted by ascertaining the parties’ intention from the words used, read in the light of the background circumstances known to the original parties. Lord Hoffmann’s contextual principles in Investors Compensation Scheme Ltd v. West Bromwich Building Society [1998] 1 WLR 896 apply equally to express grants of easements. The approach was also supported by Partridge v. Lawrence [2004] 1 PP & CR 176 and Young and Another v. Brooks and Another [2008] EWCA Civ 816.
3. Although the conveyances described the plots as garden ground and formed part of a community scheme, neither the wording nor the context showed a clear intention that the easement could be used only while the plots remained garden land. The express restriction concerning fencing and building on the common drying ground supported the contrary inference, since no equivalent restriction was imposed on the garden plots.
4. The phrase all reasonable and usual purposes qualified an otherwise all-purposes grant, but did not confine the right to the plots’ use at the date of the conveyances. It permitted purposes that were reasonable and usual from time to time. Use of the plots for building and occupying dwelling houses in accordance with planning permission was such a use.
5. For completeness, an all-purposes right remains subject to limits on excessive use. Vehicles too wide or heavy for the way may be unauthorised, and vehicles used in numbers that unreasonably interfere with other users may constitute unlawful use. Those issues were not alleged on the facts of this case.

1. Court of Appeal (Civil Division): allowed the appeal, set aside paragraphs 1 to 5 of the order, and directed that the outstanding issues be remitted to the county court.
2. Nottingham County Court: by order dated 14 November 2008, dismissed the claim for damages and an injunction, limited the rights of way to reasonable and usual purposes relating to use as garden ground, and restrained construction and residential access.