Summary

Rent Review. Whether tenant's adjoining freehold premises had implied easement over leasehold land or whether leasehold land had special value for providing access.

Facts

Appeal by the claimant ('M') from the decision of Kevin Garnett QC by which he dismissed M's claim for a declaration that it was entitled to rights of way over land belonging to the defendant council for the benefit of its petrol filling station. Before 1959 the council was the owner of a triangular piece of land formed by the junction of two highways (Stratford Road and Reddings Lane), the third side of which backed onto some houses. In 1959 M's predecessor in title ('NB') purchased from the council a roughly triangular piece of land ('the site'), which lay entirely within the council land and had as its base the side of the council land that abutted onto the houses. No part of the other two sides of the site abutted onto either of the highways, because at that time it was the council's intention, as expressed in the 1959 conveyance, to undertake a road-widening scheme in relation to both highways, the intended result of which was that both highways would be extended over the land between the highways and the site so as to abut upon the site. The site was purchased by NB for use as a petrol filling station. The council was aware of this. Pending implementation of the scheme, NB and subsequently M leased the portion of adjoining land that lay between Stratford Road and the site from the council. Thereafter, the adjoining land was used for the purpose of obtaining access from both highways to the site, as well as having some petrol pumps erected upon it. In the course of a rent review under the lease a question arose, given that the scheme remained unimplemented, as to whether it was appropriate to take into account the fact that M not only used the adjoining land as part of the station but also needed it as a means of access to the site from Stratford Road. M contended that: (i) it was entitled to the benefit of vehicular rights of way over the adjoining land: (a) by virtue of an express or implied grant in the 1959 conveyance; (b) as "intended" easements, implied to give effect to the obvious common intention of the parties; or (c) by virtue of s.62 Law of Property Act 1925; and (ii) it was entitled to an order for specific performance of a covenant in the lease on the part of the council that "as and when practicable" it would make up the adjoining land into the public highway and would provide access and crossings from the highway to the site. The council conceded that M was entitled by prescription to the benefit of vehicular access over the adjoining land from one point on Reddings Lane, but otherwise denied that M had any vehicular right of access. The judge found for the council.

Held

(1) (Aldous LJ dissenting) There was no express grant of vehicular access by the 1959 conveyance. (2) (Sedley LJ dissenting) There was an implied grant of vehicular access over the adjoining land from another point on Reddings Lane to the site. It followed that M was entitled to a declaration to that effect. (3) The claims under s.62 of the 1925 Act and/or for specific performance failed for the reasons given by the judge.

Appeal allowed to the extent indicated.

* The House of Lords refused an application by Mobil Oil Co Ltd and others for leave to appeal in this case on 6 February 2002.