Dickinson & Anor v Cassillas

Express rights of access in a property transfer may carry necessary ancillary rights. A right to enter to carry out maintenance, repair or decoration includes access to inspect whether work is needed. It may also include access to read utility meters where the transfer and known physical arrangements make that access reasonably necessary or obvious. Words such as for the time being ordinarily describe a changing state of affairs, so a right permitting gutters on buildings for the time being erected can extend to later additions, subject to contrary context. Planning permission does not remove private property rights. Findings of substantial interference and discretionary costs orders are rarely disturbed on appeal absent legal or discretionary error.

The parties owned neighbouring detached houses. Rights in the original transfers included rights to enter adjoining land for maintenance, repair and decoration, and rights concerning overhanging gutters. The respondent sought declarations and an injunction in the County Court at Manchester. Recorder Khan found in her favour on inspection access, meter access, gutter overhang and interference by a locked gate, and made consequential costs orders.

The appellants challenged the construction of the transfer provisions, the finding of substantial interference and the indemnity costs and Part 36 uplift. The central issues were whether the express rights carried ancillary rights of inspection and meter access, whether they extended to later-built structures, and whether the recorder had properly exercised his factual and costs discretions.

1. Disposition. The appeal was dismissed. The declarations, injunctions and costs orders made by Recorder Khan were upheld.
2. Inspection and meters. An express right to enter adjoining land to effect maintenance, repair or decoration carries a necessary ancillary right to inspect the property to determine whether such work is required. It would be unworkable to require the owner to enter with tools and workmen without first being able to inspect. The same transfer also carried an implied right to enter to read gas and electricity meters positioned on the boundary wall. Applying the principle stated in Moncrieff v Jamieson [2007] UKHL 42; [2007] 1 WLR 2620, the right was reasonably necessary or obvious in light of the transfer and the known physical arrangement.
3. Gutters. The phrase for the time being ordinarily uses ambulatory language and encompasses a changing state of affairs, including later-built structures. The right to maintain gutters on buildings for the time being erected therefore extended to the respondent’s later porch. The context did not restrict the right to structures existing at the transfer date. The planning permission’s warning about encroachment preserved, rather than altered, private property rights; the authorised gutter did not encroach in a legally relevant sense.
4. Interference. Whether access rights have been substantially interfered with is a question of fact. The recorder had directed himself correctly, made detailed credibility findings and was entitled to reject the proposal that access could be arranged merely by giving notice. There was no basis for appellate intervention.
5. Costs. The recorder was entitled to award indemnity costs from 9 January 2009, taking account of the parties’ conduct, settlement history, rejected offers and the appellants’ overwhelming lack of success. The later Part 36 offer engaged the additional 10% uplift under CPR 36.17(4)(d); paragraph 22(7) of the Civil Procedure (Amendment) Rules 2013 did not prevent its application. Costs assessed on the indemnity basis still had to be reasonably incurred and reasonable in amount.

1. Court of Appeal (Civil Division) — The appeal was dismissed and the County Court’s declarations, injunctions and costs orders were upheld.
2. County Court at Manchester — Recorder Khan found for the respondent after trial and granted declarations and an injunction concerning access, gutters and interference with the respondent’s rights.