British Malleable Iron Company Ltd v Revelan (Iom) Ltd. & Anor (2)

A registered deed granting rights over land is construed objectively. Background material inaccessible to persons who may later rely on the register should not affect the meaning of the registered instrument. Public documents expressly referred to in the deed, and physical features of the land, may be considered.

A right of way granted for access to “industrial units” is not confined to manufacturing or industrial processes. It may encompass storage, distribution and ancillary trade-counter sales. A use becomes impermissible only if it is properly characterised as a retail shop or otherwise falls outside the grant. There is no quantitative limit on use unless the deed provides one or use unreasonably or substantially interferes with concurrent rights.

The claimant owned Vernon Road, a private road providing access to an industrial estate owned by the defendants. A 2009 deed granted the defendants and their successors rights to pass over the road to gain access to and egress from the estate, subject to use for the purposes of industrial units or another consented purpose.

The claimant alleged that a tenant’s car-parts storage, distribution and sales business exceeded the grant, caused nuisance, and resulted in excessive use of the gates. The defendants applied for summary judgment. The central issues were the meaning of “industrial units”, the effect of the gate covenant, whether the use was quantitatively excessive, and whether the claim had any real prospect of success.

1. Summary judgment granted. The claimant’s case was bound to fail on the pleaded allegations and evidence taken at their highest. The court invited the parties to submit a draft order.
2. The deed was a registered public document. Applying the objective approach in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, and the qualification explained in Cherry Tree Investments Ltd v Landmain Ltd [2012] EWCA Civ 736, background material unavailable to foreseeable readers of the register should not affect construction. The previous deed and the historical use of the area were therefore not relevant to the meaning of the registered grant. The publicly available planning permission, the Use Classes Order, and the physical character of the units could be considered.
3. “Industrial units” was a broad expression, not a term of art confined to a particular planning sub-class or to manufacturing. Storage and distribution were consistent with the expression. Ancillary sales to trade customers, including use of a trade counter, did not alter that character. Only a predominant use as a retail shop would fall outside the permitted purpose, and the allegations did not establish such a use.
4. The covenant requiring the gates to remain closed outside specified hours applied subject to the express exception for access and egress. That exception was not limited to infrequent staff movements. The grant contained no quantitative limit on traffic or frequency of use. Excessive use required unreasonable or substantial interference with the rights of others, as illustrated by Jelbert v Davis [1968] 1 WLR 589 and Bee v Thompson [2009] EWCA Civ 1212.
5. There was no real prospect of proving such interference. Any security risk from lawful Saturday access was accepted by the grant, and the alleged use was reasonable and appropriate for the tenant’s business. The nuisance or disturbance covenant did not impose an implied obligation to preserve neighbouring security by restricting otherwise legitimate use.

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