Carter & Anor v Cole & Anor

This appeal is from a decision of HHJ Cowell of 18^th June 2008. It is by permission of this court (myself and Sir John Chadwick) given after an initial refusal by me on the papers.

The facts may be summarised briefly:

The claimants, Mr and Mrs Carter, owned Wickham Grove Orchard. In June 2000 they sold most of this, 53 acres, to Mr and Mrs Cole, the defendants. The Coles live in a house on that land.

The Carters retained the remainder of the land. It is a relatively small area, about an acre. It has upon it a natural spring water well and can conveniently be called the spring water land. There are some buildings on it, once used for packing apples but latterly for water bottling with associated offices.

In 1996, the Carters leased the spring water land to a company called Wickham Bishops Springwater Limited for a term of 20 years. The lease provided for right of way over the land which was later sold to the Coles. The purpose of a right of way included access to the water bottling facility which the company was starting. The access route was from the spring water land out to the main road which is called Langford Road. For that purpose it would be necessary that a right of way should include access by lorries.

When the land was sold to the Coles agreement was reached in altering the route of the original access road so as to take it further away from what was to be the Coles’ house, although nothing turns upon that. There was express provision for a right of way along the new route.

The water bottling operation needed planning permission. The first relevant planning permission was temporary. It was granted on 30^th April 1996 and permitted the use of the existing buildings on the spring water land for the bottling and packaging of spring water. It was to expire on 30^th April 1999 and contained the condition that “no [specified activities] or deliveries shall be carried out on the premises except between the hours of 8.00am and 12 noon on Saturdays or between the hours of 8.00am and 6.00pm on other weekdays”.

The permission also contained a condition as to the visibility splay at the junction with the main road. It was to be 2m x 120m either side of the junction with no obstruction above 600mm above the level of the adjoining carriageway within the splay. The reason was “highway safety”.

In May 1999 a further temporary permission was granted expiring on 30^th April 2002. The reason for the permission being temporary was “in order that the effect of the proposal upon residential and rural amenities may be assessed in the short term”. The same condition as to the hours of deliveries and other matters was imposed as had been originally imposed. So also with the requirement as to a visibility splay.

In July 2002 a further temporary planning permission was granted. This was to expire on 1^st July 2005. There is no condition as to a visibility splay.

On 30^th January 2004 the planning authority refused to make the temporary permission permanent for reasons to which I shall have to return. An appeal against that was dismissed. Again I shall have to return to the reasons given by the planning inspector.

In August 2005 a further short temporary planning permission for the bottling plant was granted. It was for the purpose of enabling a winding down of the operation. It expired on 8^th February 2006 since when there has been no permission for a bottling plant, or indeed any other commercial use.

At about the same time the company decided to relocate and exercised its option to break the lease as at November 2005.

On 15^th August 2005 planning permission for the use of the premises as offices with ancillary storage was refused but solely on the grounds of highway/visibility grounds.

The Coles in about 2001 started putting in fencing and the planting of shrubs on the land which forms part of what was the visibility splay. The consequence has been that the planning inspector in his decision of 13^th October 2004 concluded that “on the basis of existing sight lines I consider use of this access is potentially dangerous”. He went on to say “I understand that there is no scope to improve the sight line to a satisfactory standard as the appellant [that is to say the Carters] has no control over the necessary land”.

In these proceedings the Carters claim that, by their works of fencing and the planting of shrubs so as to interfere with the visibility splay, the Coles have derogated from the grant of a right of way which they gave in 2000. The Carters claim a mandatory injunction requiring the Coles to restore the splay and damages.

There are three issues:

Whether there was a derogation from grant;

Whether, if so the Judge was right to grant an injunction requiring the Coles to restore the visibility splay;

Whether the judge was right in his calculation of damages in the sum of £35,831.05 and if not whether we can, or should, do our own calculation or remit the matter for a further enquiry.

The language of the grant for a right of way is so far as is material:

The meaning was in the end common ground. There is a grant of a permanent right of way for lorries subject to the fact that they may not be used outside the times referred to in the planning consent. It will be recalled that both the initial temporary consent and the subsequent consent imposed those time limits. Mr Gary Cowen, for the Coles, did not argue that the right of way was granted only for the period of the temporary planning permission or that it would be limited to whatever conditions might be imposed in any future planning permission. In my judgment he was right to do so. Any other construction would be something of a commercial nonsense.

Nor did Mr Cowen dispute the general principles as to derogation from grant. They were summarised by Neuberger J in Platt v London Underground[2001] 2 EGLR 121 at p.122. There is no need to set out his summary here. It is sufficient to say that the heart of the principle is simply that one cannot take away with one hand that which has been given by the other. Mr Cowen invited us to pay particular attention to the seventh principle summarised by Neuberger J:

Mr Cowen argued that it was not the act of interference with the splay which derogated from the grant of the right of way; rather it was the insistence of the Highway Authority and the local Planning Authority that the respondents were not in a position to exercise control over the splay which was the real cause of the problem as regards access by lorries.

He sought to contrast the facts here from those in Harmer v Jumbil (Nigeria) Tin Areas [1921] Ch. 2000. There a landlord had granted a lease of some land for the purpose of an explosives magazine. The landlord then allowed (by a lease to the defendants) building and works to be done on nearby land. By reason of these, the licence for the magazine required by the Explosives Act 1875 was imperilled. It was held that the landlord was in derogation of his grant and that his lessee on the nearby land should remove the buildings and cease the works. Mr Cowen submitted that in contrast with this case, that case showed a direct causal link between the allegedly derogating acts and interference with the granted right. Here, he submitted, the cause of the loss was the refusal of the planning permission, caused not by the interference with the splay but the fact that the Carters had no control over it.

I am unable to accept any of these submissions. If the Coles had not interfered with the splays the planning inspector would not have found that the junction was dangerous as he did. Nor would he have said that there was no scope to improve the site lines, for his conclusion about that was based on the premise that the Carters had no control over the necessary land. That was wrong because the Carters had a right of way for commercial vehicles, including lorries, and it was the Coles who had no right to derogate from that which they had granted. So the Carters did have control over the necessary land in the sense that neither the Coles nor any successor in title could interfere with the splay.

Mr Cowen suggested that somehow the Carters’ case was pulling itself up by its own boot straps. He submitted there was a lacuna in the legal relationship between the parties which caused the Planning Authority to act as it did. But that is entirely circular. The Planning Authority acted as it did because it thought the Carters could not provided suitable splays. Yet suitable splays were essential for the exercise of the right of way which had been granted by the Coles. There is nothing in the nature of boot strap logic involved here.

Finally Mr Cowen made a point about the fact that the 2002 permission did not contain a condition about the splay. He submitted that showed that the splay was not causally linked to the planning permission. I do not accept this either. What matters is what was known to the parties at the time of grant. Quite clearly both knew about the condition in the planning permission at that time. So what was granted, and could not be derogated from, was a right of access for lorries which itself required the splay as contemplated by both parties. The later permission without the condition is simply irrelevant.

Accordingly I think the Judge was right to conclude that there had been a derogation of grant by the Coles.

Mr Cowen took us to the appeal decision by the Inspector by which permanent planning permission for the bottling plant was refused in October 2004. It is unnecessary to go in to the exact language. The reasons for refusal were multiple. Firstly the Inspector noted that one should not continue to grant a series of temporary planning permissions; either permanent permission should be granted after a first or perhaps second temporary permission, or it should it be refused. In considering whether permanent permission should be granted he concluded that it should not on several distinct grounds: (1) that the noise and disturbance caused an unacceptable loss of residential amenity contrary to a number of policies; (2) inadequacy of vehicular access to Langford Road, and (3) and finally the amount of noise and general disturbance was out of place and harmed the rural character of the area.

Mr Cowen said it followed that it was now clear there would never be any permission for a bottling plant there. That, he submitted, was confirmed by a later refusal of such permission sought by the Carters which we admitted by way of fresh evidence. He suggested it followed that the Carters suffered no damage whatsoever because interference with the splay in fact made no difference – lorries would not be coming backwards and forwards in any event.

I cannot accept this argument. It seems clear that there is a real prospect for planning permission for some sort of commercial use to be granted in respect of the spring water land even though probably not for a bottling plant, but only if the highway objection is removed. That emerges from the fact that in 2005 the Carters were refused permission for office purposes simply on the grounds of the inadequate splays. If the splays had not been interfered with and the right of the Carters to ensure that it was not interfered with had been recognised there is at the very least a very strong possibility they would get some sort of planning permission. The Coles were not entitled to deprive the Carters of that prospect. The Judge considered whether or not he should exercise his discretion to grant a mandatory injunction. He decided that “the retained land is completely stultified for any commercial user and that that was something that could or should be changed by the grant of an injunction”. He took the view that any further planning application should be decided on its proper merits and “not with a fait accompli being presented to the local authority”.

These seem to me to be entirely proper reasons to take into account. I would not interfere with his exercise of discretion.

The Judge had meagre materials upon which he made his assessment (“doing the best I can, to use vocabulary without which the County Court would hardly function”). What he had was as follows:

That the rental under the lease (which did not include the right to the spring water – covered by a separate royalty arrangement) was £16,000 a year.

That figure had been reached a long time ago.

After the tenants left the claimants had some small use of the property.

On the basis of that material he decided that the appropriate amount of damages would be £15,000 per annum. The period over which this ran was taken to be 2 years and 139 days from the 1^st February 2006 being the date when the bottling company ceased paying rent to the date by which the splay should have been reinstated.

Mr Cowen attacks that reasoning as inadequate. He submits that it is quite wrong to work on the basis of the rent for the bottling plant because it is now clear that there never could be another bottling plant, that there is no evidence as to what if anything could be obtained for rent for mere offices, that there has been no deduction for the costs of finding a new tenant or for the fact that may be the Carters may have had to pay tax on any rent. All in all he submits the thing to do is to remit the matter for an assessment of damages.

He did not ask for such an assessment at trial – or for an adjournment for such an assessment. I take the view that it would be disproportionate to allow this litigation to proceed to a yet further fight over what on any view would be a smallish amount of money, particularly in relation to the costs incurred so far.

Accordingly I think that we, like the Judge, should do the best we can on the materials available. I take Mr Cowen’s point that the rent for a bottling plant is not itself likely to be a good guide for some other use. On the other hand there is also the point that the rent itself was fixed a long time ago. Moreover the rent is I think a rough guide as to an upper limit. Working roughly as one has to unless the costs are going to become disproportionate, I would take a much discounted figure of £8,000 per year as appropriate for the commercial use of which the Carters have been deprived. As to the period I would take into account the fact that the Planning Authority refused permission for office use in August 2005 and work on the basis that very probably permission would have been granted. So the use could have begun as soon as the bottling company left if there had been no interference with the splay. So the starting point is the same as that taken by the Judge, 1^st February 2006. As to the period, that will run until the splay is restored and planning permission can be obtained. We are now just over 3 years on from the date when planning permission would have been obtained, so in my view we should take a longer multiplier than that which was taken by the Judge. I would take 4 years which brings one to a total of £32,000. There is I think some considerable force in Mr Cowen’s points about the costs of re-letting (which may also include some costs of alterations and the like) and I would make a deduction in respect of that of £12,000.

One matter in respect of which I would not make any deduction relates to a letter of 27^th January 2008 from the Highways Manager of Essex County Council. It was concerned with an application for office use. The objection was the usual one based on the absence of a splay. But the letter went on to say:

There are two reasons why this document has little weight. It is from Essex Council, which is not the planning authority and we know that the planning authority’s only objection to purely office use was the absence of the splay. Moreover the Carters would be able to argue that it would not be a sustainable use of resources to leave the building and the spring water site empty and unused.

True it is that my calculation is both speculative and rough and ready but it is the better course to take than sending this case off for a separate assessment.

The upshot is that I will reduce the damages awarded to £20,000. There may be an element of interest to be added to that, a matter which can be dealt with if necessary in any written submissions.

In the result I would dismiss this appeal, save as to the quantum of damage which I would allow to extent of changing the sum to £20,000.

I agree.

I also agree.