Parker v Roberts [2019] EWCA Civ 121
Parker v Roberts [2019] EWCA Civ 121
The Court of Appeal has allowed an appeal against certain aspects of the decision of the Chancery Division (Roberts v Parker [2018] EWHC 1206 (Ch)). Adam Rosenthal acted for the appellants.
The claimant (Mr Roberts) had obtained planning permission to build a 5,000 sq. ft. house on a building plot created by hiving off part of the garden of his house in Cobham, Surrey. In order to access the house, he needed to use a private road over which he had a right of way. The road was owned by his neighbours, Mr and Mrs Parker, whose house was also accessed via the private road. They argued that although he had a right of way in respect of part of the land which now comprised the house and garden, the dominant tenement was limited and did not extend to the proposed building plot.
At trial, Mr Roberts sought to rely on an earlier grant of a right of way, but the Judge held that that had been released by abandonment in the 1950s. Mr Roberts also relied on a later 1968 transfer which granted a right of way and, in the alternative, prescription. The case on prescription was rejected by the trial judge, but Mr Roberts successfully established at trial that he could rely on the right of way granted by the 1968 transfer.
The issue on appeal was whether the expressly granted right of way could be exercised in respect of that part of the garden which was not transferred by the 1968 transfer (referred to as the “yellow land”), if it ceased to be part of the garden and were to be used as a plot for a separate house. The Court considered, in detail, the process of construing the express grant, which contained other drafting errors which had led the trial Judge to construe it in Mr Roberts’ favour, including the relevance of the rule in Harris v Flower. The Court also considered an alternative argument based on implied easements, holding that it is impermissible to imply an easement which is inconsistent with the terms of the express grant.
A copy of the judgment can be found here
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