Starham v Greene King
This case turned on whether a right to use land was an easement, a restrictive covenant or a licence. Stephen Jourdan QC, leading Toby Watkin, acted for the successful claimant.
In 2014, Starham bought a piece of land on the Harrow Road. Most of the land was being used as a beer garden by the Masons Arms pub, owned by Greene King. Starham claimed this use was a trespass. Greene King claimed it was entitled to use the land as a beer garden by virtue of a right created by a conveyance dated 24 August 1855 which it said was an easement or a restrictive covenant.
The 1855 conveyance was made between a railway company and John Brown. At the time, railway companies had power to acquire land for the purpose of their railways and had to sell land surplus to their requirements. They could not sell the land above railway tunnels, but they could grant rights over that land, provided the rights did not interfere with the operation of the railway.
In 1852, three years earlier, the railway company had conveyed to Brown about 1.7 acres of land near to Kensal Green station. Some of the land was above a railway tunnel. Three years later, the company wanted to build a new tunnel. It bought back the land from Brown, and then entered into the conveyance in issue, by which it conveyed back to Brown some of the land, coloured red on the conveyance plan. In respect of the rest, coloured blue on the plan, which was about 60% of the total land, the conveyance provided (omitting irrelevant material) that the company:
“…covenant and agree with John Brown his heirs and assign that it shall be lawful for the said John Brown his heirs and assigns from time to time and at all times hereafter (subject to the right of the Company which is hereby expressly reserved to break up and otherwise use such parts of the same as they think fit for the purpose of constructing their tunnel) into and upon the surface of all such part and parts as is and are coloured blue to enter and for ever thereafter to use and enjoy the same as Garden Ground and for agricultural purposes or for such other purposes except building as the same may be properly applied to without injury to the existing or said intended Tunnel”.
Brown covenanted not to “erect or suffer to be erected on any part of the land coloured Blue … and a licence to use which is hereby granted any messuage Building or erection whatsoever”.
The right granted to Brown was referred to in different ways in the conveyance. The first time it was referred to, in a recital, it was referred to as an “easement”. The second time, in a later recital, it was referred to as “the limited easement or right of user of the surface of the pieces of land coloured blue”. The third and fourth times it was referred to it was described as a “licence to use”.
In his judgment, delivered on 2 November 2017, HHJ Parfitt upheld Starham’s contention that the right was a contractual licence, and not an easement or restrictive covenant, and so was not capable of binding a successor in title to the grantor.
As a matter of interpretation, reading the words used against the factual background, he held that the intention was to allow Brown the use of the land for any purpose, other than building, that would not injure the tunnels, and that the parties intended to create a licence and not an easement. The judge rejected an argument that he should construe the right as being an easement in order to avoid destroying bargains. He thought that the court should favour, in a tie-break situation, the contractual rather than the property interest conclusion, but did not consider that relevant because this was not a tie-break situation.
He held that the restriction on use for building meant that nothing could be built on the land. The natural meaning of “erected” connoted anything that needs to be built or put up.
Even if the parties had intended to create an easement, the judge held that the right was not capable of being an easement, because:
1 The right was not granted for the benefit of the red land. There was nothing in the language of the conveyance or in the circumstances which linked the ownership of the red land with the rights to be exercised over the blue land. On the contrary, the circumstances indicated that tying the rights over the blue land to the red was probably not the intention.
2 The right did not accommodate the red land. The ability to make use of the blue land had no connection with the red land.
3 The right included the right to cultivate it for growing produce. This was not capable of being an easement.
However, he rejected an argument that the right could not have been an easement as it would have left the ownership of the servient land illusory; he did not find it necessary to address the controversy surrounding the test, in this respect, applied in the car parking case of Batchelor v Marlow  1 WLR 764 and its criticism in Moncrieff v Jamieson  1 WLR 2620.
Greene King argued that the right was a restrictive covenant, relying on Sharpe v Durrant (1911) 55 SJ 423. In that case, a reservation by a vendor of a future right to nominate two crossings over a tramway was held to be void as an easement because of perpetuities, but Warrington J nevertheless gave effect to one crossing by identifying an obligation, which arose once that crossing had been selected, not to interfere with the right to cross the tramway. This was held binding on a successor in title to the owner of the tramway with notice as a restrictive covenant.
HHJ Parfitt held that this decision was no longer good law. It could not survive the clarification of the law of restrictive covenants in LCC v Allen  3 KB 642, in which it was definitively decided that the enforceability of a restrictive covenant principle is not based on notice, but rather because a restrictive covenant is a species of interest in land which must touch and concern land held by the person who seeks to enforce it. Further, in Ashburn Anstalt v Arnold  1 Ch 1 the Court of Appeal confirmed that a contractual licence would not run with the land unless the facts were such as to give rise to a constructive trust. It would be absurd if that principle could be overridden by simply turning a contractual licence into a restrictive covenant (every licence to occupy could in some way be said to be a negative covenant not to interfere with the consequence of that licence).
HHJ Parfitt ordered Greene King to clear the land and pay damages for its use of the land, in the amount which would have been agreed in a hypothetical negotiation between reasonable persons in the position of the parties for the grant of the right to do what Greene King had done.
The judgment can be read here.
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