Carter & Anor v Cole & Anor

A grant of a right of way for commercial lorries, subject to planning-time restrictions, is not confined to a temporary planning permission or to conditions in later permissions. The grantor must not interfere with adjoining land so as to make the right materially less fit for its contemplated use. A planning authority’s refusal caused by that interference does not break the connection between the grantor’s conduct and the loss of use. A mandatory injunction may be granted where the interference stultifies commercial use and there is a real prospect of permission once the impediment is removed. The court may make a broad damages estimate on limited evidence where a further inquiry would be disproportionate.

The claimants retained land containing a spring-water bottling facility after selling adjoining land to the defendants. The sale included a permanent right of way for commercial lorries. The defendants later fenced and planted shrubs within the visibility splay required for safe access to the public road.

In the Central London County Court, HHJ Cowell held that the defendants had derogated from the grant, ordered a mandatory injunction requiring restoration of the visibility splay, and awarded damages of £35,831.05. The defendants appealed on liability, the injunction and the assessment of damages. The central issues were whether the interference caused the derogation, whether injunctive relief was appropriate despite the planning history, and whether the damages should be remitted for further assessment.

Disposition. The appeal was dismissed, except as to the amount of damages. The damages award was reduced to £20,000, with any issue concerning interest left to written submissions.

1. Scope of the grant. The wording granted a permanent right of way for commercial lorries, subject to restrictions on the times when lorries could use it under the relevant planning conditions. It was not limited to the duration of a temporary planning permission or to conditions imposed by future permissions. The later permission, which omitted a visibility-splay condition, was irrelevant because the scope of the grant was assessed by reference to what the parties knew when it was made.
2. Derogation from grant. The court applied the principles summarised by Neuberger J in Platt v London Underground [2001] 2 EGLR 121, including the principle that a grantor cannot take away what has been granted. The reasoning in Harmer v Jumbil (Nigeria) Tin Areas [1921] Ch. 2000 provided an analogous example of interference with nearby land affecting the granted use. The defendants’ fencing and planting obstructed the visibility splay, leading the planning inspector to regard the access as potentially dangerous and to conclude that it could not be improved because the claimants lacked control over the necessary land. That lack of control resulted from the defendants’ own interference with the right of way. The defendants therefore derogated from the grant.
3. Mandatory injunction. There was a real prospect of planning permission for some commercial use if the highway objection were removed, as shown by the refusal of office-use permission solely on visibility grounds. The defendants were not entitled to deprive the claimants of that prospect. The judge was entitled to conclude that the land had been stultified for commercial use and to require restoration of the splay, leaving any future planning application to be decided on its merits.
4. Damages. A further inquiry would have been disproportionate, particularly as no such assessment had been sought at trial. The court therefore made the best estimate available. It discounted the historic bottling-plant rent, assessed the lost commercial use at £8,000 per year, applied a four-year period from 1 February 2006, and deducted £12,000 for reletting and related costs. The resulting award was £20,000.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 410: appeal dismissed except as to quantum; damages reduced to £20,000.
• Central London County Court — HHJ Cowell, 18 June 2008: derogation from grant established; mandatory injunction granted; damages awarded at £35,831.05.