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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Magrath v Parkside Hotels Ltd  EWHC 143 (Ch) (03 February 2011)
Cite as:  EWHC 143 (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| CHRISTOPHER MAGRATH
|- and -
|PARKSIDE HOTELS LIMITED
Mr Oliver Radley-Gardner (instructed by Irwin Mitchell) for the Defendant
Hearing dates: 15th December 2010
Crown Copyright ©
His Honour Judge Mackie QC :
"NOW THIS DEED WITNESSETH AND IT IS HEREBY AGREED AS FOLLOWS:-
1. IN this Deed the following expressions have the following meanings that is to say:-(i) "The right of fire escape" means and includes the following rights namely (1) the right of passage (from either of the premises having the right) for the purposes only of bona fide escape from fire (actual or believed) or panic or other circumstances (actual or believed) dangerous to life and (2) the right of passage to the nearest public highway over or through the premises over which such right may exist by any reasonable means whether on the ground or the roof or at any intermediate stage or stages each such right to be exercisable by the owners or occupier of the premises having the right of fire escape and all persons for the time being lawfully on such premises(ii) "Staircase" shall include ancillary apparatus of all kinds including exits and entrances(iii) "Ancillary Rights" means and includes the following rights exercisable at all reasonable times namely (1) the right to maintain in position and to inspect repair and when necessary renew all or any of the staircases over which any fire escape right may exist or hereafter exist hereunder (2) the right in accordance with the provisions hereinafter contained to alter existing staircases and erect new staircases and (3) to enter for the purposes of exercising such ancillary rights
2. The said Joseph Henry Jacobs hereby grants .... to the said Shamilar Catering Co Ltd the right of fire escape and ancillary rights over the property known as [27NP/8BP] and covenants with the Shalimar Catering Co Ltd to maintain and keep repaired such part of the fire escape as is now affixed to and upon the said [27NP/8BP]
3. The said Shalimar Catering Co Ltd hereby grants to the said Joseph Henry Jacobs the right of fire escape and ancillary rights over the property known as 25 Nottingham Place and 7 Bingham Place aforesaid and covenants with the said Joseph Henry Jacobs to maintain and keep repaired such part of the fire escape as is now affixed to and upon the said [25NP and 7BP] aforesaid
5. Nothing shall be done on either of the said premises which shall obstruct or interfere with the stability of any such staircases or apparatus
IN WITNESS whereof [etc.]"
"4. THE said Keith Montagu Cumberland Woodruff covenants with the said Joseph Henry Jacobs that he the said Keith Montagu Cumberland Woodruff will during the continuance of the term granted by the before mentioned Lease maintain and keep such part of the fire escape as is now affixed to and upon 27 Nottingham Place and 8 Bingham Place in good substantial repair and condition and will keep the said Joseph Henry Jacobs indemnified against all actions costs charges claims and demands which may arise in respect to the repair of the said fire escape or under any Bye-law or requirements of the Local Authority or the District Surveyor or otherwise in respect of the said fire escape as fully and effectually as if the terms of this Deed had been incorporated in the said lease"
Facts agreed or not greatly in dispute
Issues arising on this application
a. The purported grant of an ancillary right, not limited to take effect within the perpetuity period, to erect and use new staircases creating new access points and not then in existence is void and unenforceable because it offends the rule against perpetuities;
b. The right of fire escape in clause 1 of the Grant is defined in such objectionably wide and undefined terms as to be inimical to the concept of an easement;
c. If and to the extent that the Defendant asserts that rights it currently contends for arise by some contractual grant any such agreement would have to be in writing to satisfy the requirements of the 1989 Act or its predecessor; and
d. The Claimant is prepared to assume, but only for the purposes of this application, that each of the elements which comprise a good case for proprietary estoppel are here present, it being conceded for this purpose only that there were relevant understandings between Mr Bhanji and Mr Ellison. The Claimant contends however that there can in any event have been no detriment having a causal link to the assurances relied upon. There is no pleaded detriment because there is none and the claim based on estoppel must therefore fail.
Perpetuities – Decision of the Court
"It is not, however, always easy to decide whether the grant in question is of an immediate right or of a right to arise in the future. The difficulty may be illustrated by comparing South Eastern Railway Co. v Associated Portland Cement Manufacturers (1900) Ltd. with Sharpe v. Durrant.
The facts in the former case were that, by a conveyance made on December 31, 1847, one John Hales Calcraft conveyed to the South Eastern Railway Co. a strip of land to be used by them as a railway line, reserving to himself, his heirs, appointees and assigns, inter alia, the right to construct at his or their expense a tunnel or archway under the proposed railway where it passed or was intended to pass through or over the land thereby conveyed. In 1907 the defendants, who were assignees of the benefit of this reservation, wished to construct a tunnel under the railway line, but the railway company claimed, among other things, that the reservation was void for uncertainty and for perpetuity.
Swinfen Eady J. held that the reservation was not void for uncertainty, since it was for the vendor, Calcraft, or his assigns to decide where the tunnel was to be built when he or they wished to build it. He dealt with the objection of perpetuity in two ways. First, he held that the right reserved was an immediate easement and not an easement to arise in the future whenever the vendor, Calcraft, or his assigns decided to build the tunnel. Secondly, he pointed out that, as the plaintiff railway company was one of the original contracting parties, the agreement could be enforced against it by the assignee of the benefit of it without regard to the rule against perpetuities. The case went to the Court of Appeal, which affirmed the judgment on this latter ground without expressing any view on the question whether the reservation was of an immediate or a future easement.
The facts in Sharpe v Durrant were that in 1889 a vendor conveyed to a purchaser a strip of land for a tramway, reserving the right to cross the line at two points to be selected by him, and the purchaser covenanted to provide crossings at those points. In 1892 the vendor selected one crossing point and notified his selection to the purchaser, but no crossing was made. The purchaser subsequently sold the strip to the defendant.
Warrington J. held that the reservation was void for perpetuity on the ground that, until the selection was made, no easement was created. He went on, however, to hold that the covenant to provide crossings implied a negative undertaking not to interfere with the crossing which bound the land in the hands of the defendant under the doctrine of Tulk v Moxhay. Sharpe v Durant was affirmed by the Court of Appeal, but there is no report showing whether or not that court accepted the view of Warrington J. that the reservation was void for perpetuity.
I do not find the views expressed by Swinfen Eady J. and Warrington J. as to the effect from the point of view of perpetuity, of a right given to the grantee to select the site of an easement at all easy to reconcile. I do not think, however, that I am compelled to choose between them in this case. If there had been a sewer under Pine Tree Hill at the dates of the grants to her predecessors in title the plaintiff could have claimed, on authority of the Associated Portland Cement case, that the owners of the pink and blue land had from the first a right exercisable at any time to make connections with and use that sewer or any sewer substituted for it, but, as there was no sewer under the road, the plaintiff must rely on the words "or hereafter to pass." It is not for the owners of the pink or blue land to decide whether or not a sewer will or will not pass under the road in future. That is for the owners of the road to decide, and I do not see how this part of the right granted can be treated as anything but the grant of an easement to arise at an uncertain date in the future."
"Restrictions on the perpetuity rule
(1) For removing doubts, it is hereby declared that the rule of law relating to perpetuities does not apply and shall be deemed never to have applied –
(d) To any grant, exception, or reservation of any right of entry on, or user of, the surface of land or of any easements, rights, or privileges over or under land for the purpose of –
(iii) executing repairs, alterations, or additions to any adjoining land, or the buildings and erections thereon;
(iv) constructing, laying down, altering, repairing, renewing, cleansing, and maintaining sewers, watercourses, cesspools, gutters, drains, water-pipes, gas-pipes, electric wires or cables or other like works.
(2) This section applies to instruments coming into operation before or after the commencement of this Act."
"Having regard to the context in which it appears, I doubt very much whether sub-paragraph (iv) was intended to do more than make it clear that, if A had a right of drainage or some similar right over the land of B itself which was not itself void for perpetuity, ancillary rights of constructing and repairing works to make the basic right effective were not to be treated as void for perpetuity because they might be exercised outside the perpetuity period. To construe sub-paragraph (iv) as validating grants of rights of drainage or similar rights to arise at some uncertain date in the future would lead to very odd results."
Impermissibly wide and undefined? – submissions of the parties
(1) Where the site of a way over which a right is granted is not physically apparent, it is for the servient owner to indicate where it is to be, and once he has done so it cannot (except by agreement) be altered;
(2) Whilst the servient owner may not derogate from his grant, the dominant owner cannot make unreasonable demands; although the dominant owner may ordinarily choose his point of access, that may be circumscribed by physical limitations at the date of the grant;
(3) The exercise of any easement is qualified by the necessity to do so civiliter, in the manner least burdensome to the servient owner;
(4) Rights of way should, generally speaking, have a terminus a quo and a terminus a quem, and there is generally no "right to roam" entitling the dominant owner to go at will over all or any part of the servient tenement it might choose – otherwise the whole of the servient tenement would have to be kept permanently available to the dominant owner and the servient owner would be deprived of all privacy and use of his property.
"Impermissible"- Decision of the Court
a. Lighting to the external route from 7BP across the party wall parapet and down to your terrace;
b. Possible small steps from the parapet capping to your roof;
c. A stair flight from the gate in your balustrade down to your rear terrace;
d. Facility for keyless entry from the terrace to your second floor internal stair landing;
e. Lighting of the stair down to the street including emergency lighting if not already installed;
f. Facility for access through the street door to the outside – usually snibs on the door locks;
g. Electronic sounder in the stair hall to be set off by the hotel's alarm system."
Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989
"On and after September 27, 1989, the position is governed by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. This provides that a contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each. An easement is within the definition of "interest in land". The grant of an easement is a "disposition". The terms may be incorporated in a document either by being set out in it or by reference to some other document. The documents incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one), must be signed by or on behalf of each party to the contract."