The plaintiff had built houses on his land and sought an easement of necessity over the neighbour’s drive for access for the houses under the rule in Pwllbach Colliery, saying an intended easement had been granted because it was known to the parties when the land was sold that it was to be used for residential purposes and that it was therefore implied that a right of way would be needed.
The court was asked whether a right of way claimed by the plaintiffs as appurtenant to their land falls into the second class of implied easements described by Lord Parker of Waddington in Pwllbach Colliery Company Limited v. Woodman [1915] AC 634 and usually known as intended easements.
Held: The grantee asserting an implied easement must surmount two hurdles: ‘He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it. ‘ Here, the layout implied that the right of way had been reserved to allow further development.
To claim under the rule in Pwllbach, the plaintiff must show that some specific use was intended for the land, and that the easement was necessary for that use. The intentions were to be established on a balance of probabilities. Here the plans had shown similar plots on each side of the vacant lot and each with houses. That was sufficient to show the necessary intention. The easement was granted. Nourse LJ: ‘There are therefore two hurdles which the grantee must surmount. He must establish a common intention as to some definite and particular user. Then he must show that the easements he claims are necessary to give effect to it.’
Nourse LJ, Russell LJ
Gazette 09-Dec-1992, (1993) 65 P and CR 172, Times 16-Nov-1992, [1992] EWCA Civ 17, [1992] EG 136 (CS), [1992] NPC 142
Bailii
England and Wales
Citing:
Applied – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
Cited – Wheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
Cited – Wigginton and Milner Ltd v Winster Engineering Ltd CA 7-Dec-1977
Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not . .
Cited – Scott v Martin 1987
When construing a land contract, the parties should not readily be assumed to have intended to act in breach of planning requirements . .
Cited by:
Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005
The neighbour parties disputed the existence of a right of way over one plot. The grant was for the use of a garage yet to be constructed, on ground to be excavated by the grantor, accessible only from a roadway which was only partly constructed, at . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.276295