William Old International Ltd v Arya & Anor

An express easement securing the passage of services does not ordinarily impose a positive obligation on the servient owner, including an obligation to grant a further easement to a utility provider. Ancillary rights must themselves be capable of constituting easements and must be reasonably necessary for enjoyment of the express rights. Positive obligations generally require contract or covenant and will not bind successors in title.

The doctrine of non-derogation from grant is essentially restrictive. It prevents a grantor from rendering the granted land unfit, or materially less fit, for the contemplated purpose. It does not ordinarily compel the grantor to enter into contractual or proprietary relations with a third party. Any extension requiring positive action must be justified by the parties’ presumed common intention.

The claimant owned land intended for an office building. Under a transfer from Park Farm (Northwood) Limited, it received an express easement permitting services to pass through service media on retained land and permitting further service media to be laid during construction.

The defendants later acquired the retained land. Electricity distributor EDF required the defendants to execute a deed of grant before it would connect the building. The defendants refused, although a statutory wayleave procedure was available.

The claimant sought a declaration, injunction and damages, relying on the express easement, implied ancillary rights, implication of an easement, and non-derogation from grant. The central issue was whether those principles required the defendants to execute EDF’s deed.

1. The claim was dismissed. Issue 1 was answered no, as was issue 3. Issues 2 and 4 to 6 did not arise.
2. The express easement granted two rights: passage and running of services through service media, and the right during construction to lay further service media, subject to causing as little damage or disturbance as possible and making good damage. The defendants’ development right was subject to those rights. Where alternative routes existed, the less disruptive route had to be used. This reflected both the transfer and the general requirement that easement rights be exercised reasonably and without undue interference with the servient owner’s enjoyment.
3. An easement is essentially negative. Save for limited exceptions not applicable here, it cannot impose a positive obligation on the servient owner. The only ordinary obligation was to refrain from impeding enjoyment of the easement. Any ancillary right had to be capable of being an easement and reasonably necessary for enjoyment of the express rights. Requiring the defendants to grant EDF a separate easement was neither an easement nor reasonably necessary for enjoyment of the claimant’s rights.
4. An implied easement could not provide a different result. Subject to the same limited exceptions, it could not impose positive obligations, and any positive obligation could not pass to a successor in title.
5. Non-derogation from grant was also essentially negative. It could restrain conduct that rendered the granted land unfit or materially less fit for the contemplated purpose, but it did not require the grantor to enter into contractual or proprietary relations with a third party. The doctrine was founded on the parties’ presumed common intention. No such intention could be presumed where the proposed deed had not been seen at the date of transfer, the statutory wayleave procedure was available, and the transfer expressly preserved development of the retained land.
6. Chartered Trust Plc v Davies was confined to its context: a landlord of a shopping mall or similar premises, retaining powers to control tenants’ conduct, could derogate by failing to prevent nuisance by one tenant to another. It did not support the wider positive obligation asserted here. The defendants’ communications with EDF were requests for information and did not constitute derogation from grant.