Parker & Anor v Roberts

An express grant of a right of way for the benefit of specified transferred land does not extend to separately identified adjoining land merely because a covenant requires the owner of that adjoining land to contribute towards maintenance of the way. The benefit-and-burden principle does not operate in reverse.

Construction begins with the natural meaning of the grant in its documentary and factual context. A court may correct a drafting mistake by construction only where both the mistake and its correction are clear. An additional easement cannot ordinarily be implied where it contradicts an express limitation, particularly where it would facilitate development which the conveyance expressly sought to prevent.

The respondent owned No 40 Fairmile Lane, including rear land known as the yellow land. He had planning permission to build a house on it. The appellants owned the adjoining private road which supplied the proposed access.

A 1968 conveyance granted a right of way for the use of the land transferred, but also imposed on the owner of the separately described yellow land a covenant to contribute to road maintenance and not to build on that land. At first instance, the judge held that the restrictive covenant was unenforceable and declared that the right of way benefited the whole registered title: [2018] EWHC 1206 (Ch).

The appeal concerned whether the transfer, or an implied easement, gave the yellow land an independent right of way.

1. Appeal allowed. The declaration that the right of way benefited the whole of No 40 was set aside. The court declared that it did not benefit the yellow land.

2. The express grant in clause 1 was confined to the land hereby transferred. The parties had separately identified the yellow land in clause 2, so its exclusion from the dominant land was clear. The covenant requiring its owner to contribute to maintenance created an apparent mismatch, but it did not justify enlarging the express grant.

3. The court applied the contractual-construction approach in [2015] AC 1619. The natural meaning of clause 1, the restrictive covenant against building, the purpose of the transfer, the known availability of other access, and commercial common sense all supported the limited grant. There was no clear basis for correcting the conveyance by adding the yellow land to the dominant tenement. There were at least competing possible drafting corrections.

4. The benefit-and-burden principle could not assist the respondent. A person taking a benefit may be required to bear its associated burden, but the fact that a person bears a burden does not establish entitlement to a corresponding benefit. The repair covenant therefore did not create a right of way for the yellow land.

5. While the yellow land remained garden ancillary to the transferred land, access could be made under the ancillary-use rule. That did not enlarge the dominant tenement. It could not support independent access once the land was treated as a separate building plot.

6. No easement could be implied. A further right additional to a similar express right requires exceptional circumstances and must be necessary or obvious in the relevant sense. It was incompatible with the transfer to imply access for residential development of land which the parties had expressly covenanted should not be built upon. The later unenforceability of that covenant against successors did not alter the construction or implication analysis.

7. The respondent's proposed Land Register argument was outside the appeal and could not be remitted, since it had not been determined below and no respondent's notice had been filed.

• Court of Appeal (Civil Division): Allowed the appellants' appeal and set aside the declaration that the right of way benefited the whole registered title.
• High Court, Business and Property Courts: In [2018] EWHC 1206 (Ch), held that the restrictive covenant was unenforceable and declared that the right of way benefited the whole of No 40. The latter declaration was reversed on appeal.