The claimant (“Adealon”) is the owner of a strip of land (“the red land”), of about 525 square metres, lying along the A24 Merantun Way to the south. The defendant council (“the council”) owns the land adjacent and to the north (“the green land”), which extends to about 3,237 square metres and is bounded on the north by another road, High Path. The red land has no direct access to High Path, and cannot lawfully obtain access to the trunk road A24, without planning permission which has been consistently refused. Until 1989 the red and green land were in common ownership. Adealon claims that, on the severance of the two plots at that time, it became entitled by operation of law to an “easement of necessity” over the green land, to give it access to High Path. It further claims that the right of way is for both vehicular and pedestrian traffic.

The judge (HH Judge Kirkham, sitting as a judge of the High Court) dismissed the claim to an easement of necessity. She indicated that, if she had upheld the claim, she would have determined that it was for vehicular and pedestrian traffic. In the appeal the former conclusion is challenged by the company, and the latter by the council.

The proceedings had begun in August 2003, as a claim by the company for trespass by the council on the red land. However, by a compromise agreed immediately before trial, the other issues were settled, subject to the claim for damages for trespass, which were determined by the judge. There is no appeal from that decision. The only live issue before us relates to the claimed easement.

The judge made detailed findings as to the history. It had to be extracted largely from the documentary evidence, which does not appear to have been very complete. The only witnesses were Mr Manzoor Hussain, a director of Adealon, whose statement was accepted without cross-examination; and Mr Joy, an officer with the council, who gave evidence on the physical layout, and the planning history, and was “cross-examined very briefly, and on very limited points”.

For present purposes it is sufficient to note the following points in the chronology, based on the judgment supplemented by Mr Hussain’s witness statement:

From the mid-1980s, a company called Boastdean Limited had owned a site including both the red and green land, together with land to the south which was part a disused railway. There was a warehouse on the green land, used as a cash and carry store, with a hardstanding on the land behind it to the south. There was a U-shaped “in and out” drive which ran around both sides and the rear of the building. (I note that a plan attached to the particulars of claim indicates that the southern part of the “drive” adjoined what became the boundary of the red land. At this stage I shall proceed on that basis, although there appears to be no specific evidence to support it.)

In 1988, the land owned by Boastdean immediately to the south of the red land was acquired for the construction of what became the trunk road A24. That road was completed and opened to traffic by February 1989. In December 1988 a traffic order had been made prohibiting the use of this stretch of the road by pedestrians.

Mr Hussain became interested in the site through a company called Parbrook Ltd, registered in Liberia, of which he was the beneficial owner. In 1989 Parbrook acquired the shares in Boastdean.

On 23^rd October 1989 “as part of the overall transaction” Boastdean transferred the green land to a company called Kempstone Limited (a company incorporated in the Isle of Man), in which Mr Hussain also had “a beneficial interest”. Boastdean retained the red land. Mr Hussain gave this explanation in his statement:

In November 1989 an application was made for outline planning permission for the erection of light industrial buildings on the whole site, with access from High Path only. Conditional consent was granted. As to what followed, I again quote Mr Hussain:

There followed various applications for permission for development of light industrial units and of a petrol filling station with access from Merantun Way. The details are not complete in the evidence. It is sufficient to note one application, made in August 1992, which related to a site including both the green and the red land. It was made for 3 light-industrial units fronting High Path, and a petrol station with access from Merantun Way and egress to High Path. The owner of the site was said to be Kempstone. It was refused in May 1993 on grounds which included prejudice to traffic flow in Merantun Way.

On 29^th March 1994, the land owned by Kempstone was sold to the council. At paragraph 17 of her judgment the judge recorded that this was by agreement between Mr Hussein and Dunbar. At paragraph 14 of his witness statement Mr Hussain said:

The council took occupation of both the green and red land, apparently not realising that the red land was under separate ownership from the green land. In January 1995, the council obtained planning permission to build a day-care centre on the whole site, including an area for parking for disabled transport. They built the day-care centre, incorporating the western section of the red land into the garden, taking up the concrete hard-standing. In May 1996, they leased the eastern side of the site, including the eastern section of the red land, to Merton Association for Disabled People for parking ambulances.

In July 2000, Boastdean transferred the red land to Adealon, to which it also assigned all causes of action pertaining to the land. In August 2003, the present proceedings were begun.

The judge commented on the evidence of Mr Hussain’s property dealings:

The judge held that there was no basis for implying an easement over the council’s land to High Path, either as an “easement of necessity” or on the basis of “common intention” at the time of the 1989 transfer. As to the former, a detailed review of the authorities led her to the conclusion that as a matter of law an easement of necessity could only arise where the land of one party to a transaction was wholly surrounded by the land of the other. On this she preferred the authority of Kekewich J in Titchmarsh v Royston Water Company Limited(1899) 81 L.T. 673 over that of Danckwerts J in Barry v Hasseldine[1952] Ch. 835. (I shall return to this point.)

She concluded:

Although both points are before us, the argument has understandably concentrated on the issue of easement of necessity, there being no realistic basis to undermine the judge’s factual conclusion on the absence of “common intention”.

A good starting point is Lord Oliver’s succinct statement of the principle in the Privy Council in Manjang v Drammeh [1990] 61 PMCR 194, 196-7:

As that passage confirms, the principle is one of implication from the circumstances of a grant of land, not (as suggested in some of the earlier cases and in academic writings (Footnote: ¹)) a free-standing rule of public policy. This was settled by this court in Nickerson v Barraclough [1981] Ch 426, where Buckley LJ summarised the correct approach:

The classic case of an easement of necessity is where the land of one party to a grant is entirely surrounded by that of the other. As between the two of them, it is not difficult to infer that the landlocked property, whether of the grantor or the grantee, was intended to have some form of access over the surrounding land. That was explained by Sir George Jessel MR Corporation of London v Riggs (1880) 13ChD 798:

So much is uncontroversial. But as one moves away from that simple, bipartite model, to one in which the surrounding land is shared with strangers to the grant, the issues become more complex. Where there is a realistic possibility of alternative access over the land of third parties, the case for an easement of necessity is much less clear.

In particular, in that situation there is no reason in my view to assume that the same rule should apply to grantor and the grantee. In this context, the presumption of non-derogation from grant works in favour of the grantee, but against the grantor. Further, the grantee may also be able to rely on other forms of implied right, not available to the grantor: see generally Megarry & Wade 6^th ed para 18-097ff. As is said there:

This contrast can be seen clearly in the leading statement of the applicable law by Thesiger LJ in Wheeldon v Burrows (1879) 13 Ch D 31, 49:

This distinction becomes particularly relevant when considering the possibilities of alternative access over land of third parties. In the case of the grantee, the application of the presumption should in principle be unaffected by such possibilities. The grantee’s normal expectation is that access, if not otherwise available will be allowed as an incident to the grant, and thus that it will be provided by the grantor over land within his control. Where the roles are reversed, the grantor has no equivalent expectation. On the contrary, the presumption is that any rights he requires over the land transferred will have been expressly reserved in the grant, and the burden lies on the grantor to establish an exception. To that issue the existence of other realistic possibilities of access, even if not legally enforceable at the time of the grant, is clearly relevant.

I have already referred to the judge’s resolution of the apparent conflict between Titchmarsh v Royston Water Company Limited(1899) 81 L.T. 673 and Barry v Hasseldine[1952] Ch. 835. I do not see either as directly relevant to the present case, since neither concerned a claim by a grantor over land of the grantee. Neither is in any event binding on this court. However, since the judge based her decision in part on the earlier case, it may be helpful to offer some comment.

Titchmarch was a decision of Kekewich J. The purchaser’s land was bounded on three sides by land of the vendor, (Footnote: ³) and on the fourth side by a public road which ran in a steep cutting. The purchaser claimed a right of access to the highway over a private way across the farm, either under the general words of the conveyance, or as an easement of necessity. Both claims failed, the latter on the grounds (in the words of the headnote) that:

In Barry v Hesseldine Danckwerts J took a different approach. The facts were somewhat complex. The grantee’s land was surrounded partly by land of the vendor, and partly by that of other parties, including a disused airfield owned by a third party. For some time following the grant they had been able to obtain access over the airfield by permission of the owner. There was an argument, rejected by the judge, that he had agreed to abandon any claim to access over the vendor’s land. The issue therefore arose as to his legal rights in the event of the permissive right being unavailable. The judge held that he was entitled to an easement of necessity over the vendor’s land, even though his property was not completely surrounded it.

Having referred to the uncertainty on the point expressed in the then current edition of Gale on Easements and in other authorities, including Pomfret v Ricroft, he said:

Although there was no mention of Titchmarch in the judgment, it had been referred to in the course of argument, where it was suggested that Kekewich J’s comments on the law were obiter. Danckwerts J interposed:

For the same reason, I find no assistance in Bolton v Bolton (1879) 11 ChD 968. That was another case relied on by Mr Partridge before us, though not cited to the judge, as showing that there could be an easement of necessity, even though there were prospects of an alternative access over land of a third party. However, that again was a right claimed by the grantee, not the grantor.

Of more direct relevance is Pinnington v Gallard (1853) 9 Ex 1. A Mr Dickinson had sold, on the same day in 1839, a piece of land in three separate lots, one to a Mr Dearle, and another to a Mr Moss. An existing track through Mr Dearle’s lot gave access to Mr Moss’ lot and was used for that purpose for several years after the sale, but there had been no express grant or reservation of a right of way. The use was later disputed by the defendant, Mr Dearle’s successor, but was confirmed by the court. Since it could not be ascertained which grant had come first, Baron Martin considered both alternatives. Assuming the grant to Mr Moss had come first, the right over the retained land of Mr Dickinson was covered by well-established principles of implied grant, explained by Sergeant Williams in his notes to Pomfret v Ricroft (above). He continued:

This passage is of assistance to the appellant to the extent that that same rule was treated as applicable, whether the transaction was treated as a grant or a reservation, and even though (as appears from the plan printed with the report) there were adjoining areas belonging to third parties. However, the facts were very different to the present; and the two-stage analysis of what were essentially simultaneous transactions seems somewhat artificial to modern eyes (cf Hansford v Jago [1921] 1 Ch 322, 335). In any event, there was no discussion of the significance of alternative possibilities of access over land of third parties. The case cannot therefore be regarded as authoritative on that aspect. It is true that the passage from Baron Martin’s judgment was quoted by Thesiger LJ without adverse comment in Wheeldon v Burrows (above, at p 58). But that, as I read it, was not by way of specific endorsement of the reasoning, but simply by way of confirmation of his earlier analysis, to show -

For completeness I should refer to an Australian case which was not cited to us, but which seems closer to the present on the facts, relating as it does to a claim by a vendor: North Sydney Printing Property Ltd v Sobemo Investment Co. Ltd [1971] NSWLR 150. This also appears to be the fullest judicial discussion of the authorities in the modern cases. It was considered by Sir Robert Megarry VC in Nickerson v Barraclough at first instance ([1981] Ch 325, 333-4). I gratefully adopt his summary of the facts:

The claim failed. The court held that a way of necessity arises to give effect to an actual or presumed intention. On the facts the company's intention was the contrary: its intention was that the land retained should have no access over the land conveyed, but instead should have access over the car park. I note in particular the Vice-Chancellor’s comment on the differences from the case before him:

For these reasons, I would reject Mr Partridge’s principal submission, which is that Adealon is entitled to an easement of necessity, by operation of law, and regardless of the existence of possible alternatives over land of third parties.

Once that argument is disposed of, the issue becomes one of implication from the facts of the case. As to that I see no reason to differ from the judge’s overall conclusion. Mr Partridge questions some of the detail. For example, he says that there was insufficient evidence to support the judge’s finding that Mr Hussain was looking to the south for access. This, he says, is contrary to the inference to be drawn from the planning application for a development linked to High Path. I see some force in that point, but as the judge said Mr Hussain’s evidence left many questions unanswered. However, this is immaterial. Since the disposal was to an associated company, it is not surprising that he was unconcerned about the need to reserve a specific right of access to the north. His main concern appears to have been to control the possibility of future access to the south, even though the prospects were speculative. In that respect he was no different to any other landowner who speculates on the prospect of planning permission in the future. However, that is far from creating the basis for an implied right. There is nothing in my view to overcome the ordinary presumption that, had he required an easement to the north, he would have made a specific reservation in the grant.

I would therefore uphold the judge’s conclusion that Adealon does not have a right of way over the council’s land. This makes it unnecessary to consider the scope of such a right, had it been created. I prefer to express no view on the judge’s conclusion on that aspect of the case, which is not straightforward. I would simply dismiss the appeal.

I agree.

I also agree.