J & O Operations Limited and others v The Kingston and Saint Andrew Corporation (Jamaica)

In a planned commercial development, dedication of secondary streets to public passage may be inferred from the layout, intended uses, approval conditions, transfer to the roads authority and evidence of public use. Where a public right of passage provides access to adjoining lots, necessity cannot justify implying a private easement. An intention to permit vehicular access does not itself establish such an easement. An ancillary parking right cannot arise without a dominant easement, and parking is not necessary for the comfortable enjoyment of a way merely because the premises are commercial. Adjoining owners may form an access to the public way subject to statutory requirements, but have no special right to use or park on it.

A commercial development was laid out with principal streets and secondary streets designated as car parks and piazzas. The respondent approved the subdivision under the Local Improvements Act, and title to the secondary streets was later transferred to it. Owners of two adjoining lots claimed rights of access over St Lucia Way and a right to park there free of charge.

Anderson J granted declarations, finding implied easements by common intention or necessity and a prescriptive parking easement. The Court of Appeal of Jamaica set those orders aside. The appeal concerned whether the claimed rights arose by implication, necessity or prescription, and whether the existence of a public right of passage prevented the implication of a private easement.

Lord Reed delivered the judgment of the Board. The appeal was dismissed, and the third and fourth appellants were ordered to pay the costs of the appeal.

1. Public dedication. The layout of the development showed that the secondary streets were the only means by which many lots could be reached by owners, occupiers, customers, delivery vehicles and the public. Their intended commercial use and use for car parking supported a natural inference that they were intended to be public ways. That inference was reinforced by conditions requiring construction and takeover of the roads, the transfer of title to the respondent as roads authority, public maintenance and management, and evidence that St Lucia Way had been used by the public. The Board applied the reasoning in Espley v Wilkes (1872) LR 7 Ex 298 and Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620.
2. Implied easement. The development documents and registration arrangements supported a public right of passage, not a common intention to create a private easement. An argument based on the possible absence of a sidewalk in 1969 lacked evidential foundation. In any event, an intention that proprietors should have vehicular access would not entail an intention to create a private easement in addition to the public right.
3. Necessity and access. Once St Lucia Way was treated as dedicated to the public, there was no necessity for the proprietors to acquire a private easement for access and egress. They could use the public way on the same basis as any member of the public. They retained a common-law right to form an access from their property to the public way, subject to relevant statutory requirements.
4. Parking. The claimed ancillary parking right failed because there was no easement of way to which it could be ancillary. Further, parking on the way was not necessary for the comfortable enjoyment of commercial premises. The appellants could park on St Lucia Way only on the same terms as members of the public, including any applicable fee.

1. Privy Council: In [2012] UKPC 7, the appeal was dismissed and costs were awarded against the third and fourth appellants.
2. Court of Appeal of Jamaica: On 25 September 2009, the court set aside Anderson J’s declarations, holding that no implied easement or prescriptive parking right had been established.
3. First instance: Anderson J granted declarations recognising rights of access to St Lucia Way and free parking for specified commercial purposes, based on implied easements and prescription.