Summary

A judge was correct to find that the transfer of land to a local authority included an implied term that the transferor was obliged to support any application by the local authority to have adopted by the Highways Agency an access road, if built, over an adjacent strip of land retained by the transferor.

Facts

The appellant construction company (B) appealed against a decision that it was required as an implied term of a transfer of land by it to the respondent local authority to co-operate with the local authority's efforts to construct, and have adopted as a highway, a road on adjacent land owned by B. B had transferred a site to the local authority. B had retained land around the site including a strip of land hatched on a plan annexed to the transfer. A clause of the transfer provided that either B or the local authority had the right within a set period to enter onto the strip and construct a road, that would provide access to the site, to the standards of the Highway Agency and that a party constructing a road would "do all acts and things necessary" to have that road adopted by the Highway Agency. When the site was transferred to the local authority it was intended that it would be used for a school but that use did not come to fruition and the local authority wished to sell the site to a residential housing developer. That use could be more easily facilitated by the construction of a road on the strip. After the transfer was completed B built a housing development and any road constructed on the site was to connect to the roads built as part of that development. The local authority successfully applied for a declaration that it was an implied term of the transfer for B to do all that was necessary to support an application for the Highway Agency to adopt any road constructed by the local authority. B contended that the term implied was not necessary as the transfer was clear in its terms; a Highways Agency approved road was not necessary to provide access to the site and that any obligation to have the road adopted by the Highways Agency was only applicable to it if it was the party that constructed the road and that if not, as owner of the land it could resist any such adoption under the Highways Act 1959, which applied at the date of the transfer.

Held

The judge was correct to conclude that the transfer implied that B had to support the local authority in its efforts to have any road constructed by it adopted by the Highways Agency. The position was analogous to that of a non-derogation from grant position and as the judge had noted, an officious bystander looking at the clause when it was drafted would have expected that B was required to co-operate with any attempt by the local authority to have the road adopted. There was no logic to the position that would otherwise have resulted whereby the local authority was required to support any application by B to have the road adopted by the Highways Agency whilst B, as owner of the land, could object to a similar application by the local authority, Rusby v Harr (2006) EWCA Civ 865, (2007) JPL 262 and Attorney General of Belize v Belize Telecom Ltd (2009) UKPC 10, (2009) 1 WLR 1988 considered; Philips Electronique Grand Public SA v British Sky Broadcasting Ltd (1995) EMLR 472 CA (Civ Div) applied.

Appeal dismissed