Taurusbuild Limited & Ors v John Paul McQue & Anor

On a charge of part of an estate, an easement may be implied under the rule in Wheeldon v Burrows where a visible access is reasonably necessary for the charged land’s enjoyment. The test is not one of strict necessity. A less convenient alternative pedestrian access does not prevent the implication of vehicular access and parking rights.

Rights implied into the charge passed on a mortgagee’s sale under section 62 of the Law of Property Act 1925, unless the transfer itself expressed a contrary intention. A planning obligation or covenant in an earlier conveyance did not create an equitable easement for a successor who had neither the benefit of the covenant nor contractual rights to enforce the later planning obligation.

The respondents bought 2 The Hall from a mortgagee exercising its power of sale. They sought registration of a vehicular right of way over Dinsdale Hall’s southern driveway and rights to park in two spaces. The First-tier Tribunal held that the respondents could obtain specific performance of obligations in a 1988 conveyance and directed registration of the rights.

The appellants appealed. They challenged the First-tier Tribunal’s jurisdiction and the conclusion that the 1988 conveyance and planning arrangements created enforceable equitable rights. The Upper Tribunal also considered whether rights had instead arisen by implied grant through the 2005 charge of 2 The Hall and passed under section 62 of the Law of Property Act 1925. The central issue was whether the respondents held registrable easements of access and parking.

1. Appeal dismissed. The First-tier Tribunal’s decision was upheld, but on different grounds. The respondents were entitled to an implied vehicular right of way over the southern driveway and a right to park at the front of Dinsdale Hall.

2. The 1988 charge did not assist. Its parcels clause expressly excluded section 62 of the Law of Property Act 1925, and any easements incorporated in that charge had lapsed when it was discharged.

3. The 2005 charge of 2 The Hall could, however, carry implied easements. Applying the rule in Wheeldon v Burrows, vehicular access over the southern driveway and parking were reasonably necessary for the enjoyment of 2 The Hall. Reasonable necessity is not strict necessity. The rear courtyard access was less convenient and non-vehicular. The driveway was the obvious access and had been used for the property.

4. Common ownership did not defeat the claim. Denial of access and parking would derogate from the grant of the charged property by materially reducing its value as security. Nor was there unity of possession after separate mortgagees took possession of their respective land. The rights were apparent on a reasonably careful inspection and the priority argument based on Schedule 3 of the Land Registration Act 2002 failed.

5. The rights passed to the respondents under section 62 on the 2012 transfer. No contrary intention was expressed in that transfer. Advice given by the respondents’ solicitors before purchase was not evidence of a contrary intention in the conveyance.

6. There was no equitable easement arising from the 1988 conveyance. It did not create an easement in favour of 2 The Hall, which formed part of the land then conveyed. The later planning permission was not a variation of the 1988 permission. The respondents also lacked the benefit of the 1988 covenants and could not enforce the later planning obligations without a contract to which they were party.

7. The Chief Land Registrar was directed to enter the benefit and burden of an easement for the owners, occupiers, tenants and authorised persons of 2 The Hall to pass and repass over the southern driveway, access spaces 28 and 29, and park there. The appellants were ordered to pay two-thirds of the respondents’ appeal costs.

• Upper Tribunal (Lands Chamber): appeal dismissed. The decision was upheld on the alternative basis of implied easements under Wheeldon v Burrows and section 62 of the Law of Property Act 1925.
• First-tier Tribunal (Land Registration Chamber): Judge Hewitt substantially upheld the respondents’ application and directed registration of access and parking rights on the basis of an equitable entitlement: [2018] UKFTT 0314 (PC).