A substantial historic estate had been divided. A development of one property was by way of leasehold timeshare properties enjoying rights over the surrounding large grounds with sporting facilities. A second development was created but wit freehold interests, but again through a Facilities Agreement, purporting to grant easements over the estate equal to those granted to the leaseholders, but with no contribution to the costs. This appeal considered the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements.
Held: (Lord Carnwath dissenting) The appeal succeeded but only in part
The grant of an easement here was novel, given the greater running costs and operational responsibilities, and the factors which tell against broad recognition of rights over such facilities as easements. However, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions for easements (Ellenborough Park).
On the cross-appeal, the majority held that the Court of Appeal was wrong to limit the grant of rights to the facilities in existence at the time of the grant in 1981. The sporting and recreational facilities referred to in the Facilities Grant were bound to change significantly over time and the new indoor swimming pool was, once complete, a facility made within the complex.
Baroness Hale of Richmond PSC, Lord Kerr of Tonaghmore, Lord Sumption, Lord Carnwath, Lord Briggs JJSC
 UKSC 57, UKSC 2017/0083, SC ,  2 P and CR 3,  1 P and CR DG10,  AC 553,  1 All ER 771,  3 WLR 1603,  WLR(D) 708
Bailii, Bailii Summary, SC, SC Summary, SCS Summary Video, SC 2018 Jul 04 am Video, SC 2018 Jul 04 pm Video, SC 2018 Jul 05 am Video, WLRD
England and Wales
Affirmed – In re Ellenborough Park CA 15-Nov-1955
Qualifying Characteristics ofr Easement
Parties claimed a public right to wander through the grounds of the park.
Held: No such right could have been granted or was properly claimed. Lord Evershed MR said: ‘There is no doubt, in our judgment, but that Attorney-General v. Antrobus . .
At First Instance – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another ChD 7-Dec-2015
Claim by time share owners for easements over neighbouring land. The easements were for various sporting rights and facilities.
Held: The Claimants were entitled to appropriate declaratory relief confirming that they have the rights they claim . .
Appeal from (CA) – Regency Villas Title Ltd and Others v Diamond Resorts (Europe) Ltd and Another CA 4-Apr-2017
Can a recreational purpose underlie an easement
The court considered the validity of easements of recreational facilities. A property had been developed with timeshare leases within a substantial and attractive grounds area. Later a second development was created but with freehold interests, but . .
Cited – Pomfret v Ricroft 1845
it is not an objection to qualification as an easement that the right consists of or involves the use of a pump on the servient tenement . .
Cited – Duncan v Louch QBD 4-Feb-1845
A dominant owner of an easement has no obligation to repair or maintain the land over which the right of way is exercised.
An easement permitting the dominant owner to walk over all parts of the servient tenement purely for pleasure can exist . .
Cited – Mounsey v Ismay 20-Jan-1863
The inhabitants of Carlisle claimed a custom of holding horse races in May over land at Kingsmoor. The landowner’s counsel protested that the fields were arable land.
Held: Martin B: ‘It must be assumed that the custom has existed since the . .
Cited – Hill v Tupper 1-May-1863
The canal company had by deed granted the sole right to use the canal for pleasure boats to the plaintiff. The defendant disturbed that right by using the canal for the same purpose.
Held: The claim failed. The right under the contract was not . .
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 – Dowty Boulton Paul Ltd v Wolverhampton Corporation (No 2) 1976
The right to take-off and land airplanes on an airfield enabled the dominant owners to step in and mow the field sufficient to create and maintain runways when the servient owners discontinued its use as an airfield. This was held not to amount to . .
Cited – Simpson v Godmanchester Corporation HL 27-Jul-1897
An easement, exercised for the benefit of the dominant estate, is not invalid merely because from the very nature of the right its exercise by the dominant estate confers some benefit upon other tenements.
The corporation of Godmanchester as . .
Cited – International Tea Stores v Hobbs ChD 25-Apr-1903
Farwell J considered the circumstances of acquisition of a right of way by prescription and said: ‘The real truth is that you do not consider the question of title to use, but the question of fact of user; you have to inquire whether the way was in . .
Cited – Moncrieff and Another v Jamieson and others HL 17-Oct-2007
The parties disputed whether a right of way over a road included an implied right for the dominant owner to park on the servient tenement.
Held: The appeal failed. ‘The question is whether the ancillary right is necessary for the comfortable . .
Cited – Keith v Twentieth Century Club Ltd ChD 1904
Cited – Miller v Emcer Products Ltd CA 20-Dec-1955
An express term in a contract excludes the possibility of implying any term dealing with the same subject-matter as the express term. . .
Cited – Dunn v Blackdown Properties Ltd 1961
Application of the rule against perpetuities to expiration of rights of way. . .
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 . .
Cited – Jones v Pritchard ChD 6-Feb-1908
The grant of an easement ordinarily carries with it the grant of such ancillary rights as are reasonably necessary to its exercise or enjoyment. However the grant of a right of way over a driveway cannot place on the servient owner the obligation to . .
Cited – Jones v Price 1965
Willmer LJ said: ‘a covenant to perform positive acts . . is not one the burden of which runs with the land so as to bind the successors in title of the covenantor: see Austerberry v. Oldham Corporation.’ and ‘ . . properly speaking, an easement . .
Cited – Carter, Carter v Cole, Cole CA 11-Apr-2006
Disputed right of way. The court recognised the right of the owner of a servient tenement to repair a roadway.
Longmore LJ said that step-in rights are, by definition, rights to reasonable access for maintenance of the servient tenement, . .
Cited – Riley v Penttila 20-Mar-1974
(Supreme Court of Victoria) The Court recognised as an easement the grant of land within a residential development ‘for the purposes of recreation’ over a garden or a park, in favour of residential lots, enthusiastically following the lead given in . .
Cited – City Developments v Registrar General of the Northern Territory 2-Jun-2000
(Supreme Court of the Northern Territory) – Hearing of preliminary point – whether purported grant of an easement an easement – easement has four essential criteria – easement does accommodate dominant tenement – the grant possessed all four . .
Cited – Dukart v District of Surrey and Others 1-May-1978
Supreme Court of Canada – The Court considered an easement allowing free access to the waters of the bay and recognised as easements the grant in favour of residential lots on a development plan of rights to use ‘foreshore reserves’ separating the . .
Cited – Blankstein, Fages and Fages v Walsh 1989
(High Court of Manitoba) Cottages were used for summer recreation. Though the acquisition of an easement by prescription to use adjoining land known as the ‘playground’ as a family recreational area was rejected on the facts, as the use was not as . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.628673