Donovan & Anor v Rana & Anor

An implied easement may arise where parties to a land transfer share a definite and particular intended use and the easement is necessary to give effect to it. Necessity is assessed in the transaction’s factual setting. It requires more than what is merely convenient, usual or reasonable, but a modern dwelling may be intended to have mains utility connections where nearby services and the surrounding development make that the contemplated mode of use. Express exclusions of additional access rights do not prevent implication of a separate utility easement where no additional right of way is required and the easement does not interfere with the retained land’s future use.

The appellants owned land adjoining a building plot which they had transferred with an express right of way over a retained strip called the Blue Land. The respondents, successors in title to the building plot, constructed a dwelling and excavated the Blue Land to connect it to mains drainage, water, gas, electricity and telephone services. The appellants sought damages after limiting their original claim for an injunction.

The Canterbury County Court dismissed the claim, holding that the transfer carried an implied easement for the utility connections. The appeal challenged the construction of the express provisions, the evidential basis for the inferred common intention, and the requirement of necessity.

Appeal dismissed. Vos LJ gave the leading judgment. Rimer LJ agreed with the result and the conclusion that the implied easement was not excluded, while qualifying the scope of the express right of way. Moore-Bick LJ agreed with Vos LJ’s reasons.

1. The express right of way over the Blue Land was sufficient to permit passage connected with installing and maintaining utility services if the utility easement otherwise existed. The transfer’s exclusions concerned additional rights of way or access and easements interfering with the transferor’s future use of the retained land. The implied utility easement fell outside those exclusions. Rimer LJ considered that the express right of way itself did not authorise digging, but that this did not prevent the separate implied easement.
2. The two-hurdle approach in Stafford v Lee (1992) 65 P. & C.R. 172 applied. The claimant must establish a common intention that the land be used in a definite and particular manner, and must then show that the claimed easement is necessary to give effect to that intention.
3. Pwllbach Colliery v. Woodman [1915] A.C. 634 established that necessity means more than convenience, usual practice or what is merely reasonable. The assessment remains contextual and concerns the use contemplated by the parties.
4. The transaction clearly contemplated construction of a dwelling to the satisfaction of the local authority on a building plot in a modern suburban residential area. In that setting, connection to nearby mains utilities through the obvious route over the Blue Land was necessary to achieve the intended use. The easement was therefore implied into the transfer.
5. The court favoured a declaration that the transferee and successors in title had access to the Blue Land to install and maintain connections to the public utility services.

• Court of Appeal (Civil Division): On 14 February 2014, dismissed the appeal.
• Canterbury County Court: On 11 September 2012, His Honour Judge Simpkiss dismissed the claim and ordered the appellants to pay the respondents’ costs.