Easement: right of way

Rent review - petrol station operated from combined freehold and leasehold sites - leasehold site alone affording direct access to highway - landlord contending that rent should reflect this - lessee claiming that benefit enjoyed by virtue of implied easement created in favour of freehold site - whether such grant to be read into freehold conveyanceMobil Oil Co Ltd v Birmingham City Council: Chancery Division: Mr Kevin Garnett QC, sitting as a deputy judge of the division: 19 April 2000

In 1959 the defendants' predecessor, the Birmingham Corporation, owned a triangular area of land bounded on one side by Stratford Road and on the other by Reddings Lane.

The two roads intersected at the apex of the triangle.

On 23 January 1959 the corporation conveyed part of the triangle (the freehold site) to National Benzole Company Ltd (NBC).

The freehold site enjoyed no direct access to either road.

However, on the same day the corporation granted to NBC a 25-year lease of an adjoining site (the leasehold site) with direct access to Stratford Road at two points.NBC understood the corporation had plans to widen both roads (the highway scheme).

The freehold conveyance contained a covenant by the corporation in clause 3(a) that it would, when practicable, make up the land adjoining the freehold site into a public highway and at the same time create such access and crossings to the freehold site as would be 'reasonably necessary for the efficient carrying on of [NBC]'s trade...as sellers of petrol'.

Both sites were operated as one petrol station until 1985, when it was closed and sold to developers.

In August 1986 the developers sold their interests in both sites to the claimant (Mobil), who the next year took a new 25-year lease of the leasehold site, which continued to afford access to all parts of the reopened petrol station (the access advantage).

The highway scheme was abandoned In March 1993.In an arbitration arising out of the 1991 rent review, the defendants claimed the rent should reflect the access advantage.

Mobil claimed the advantage was enjoyed not by virtue of its possession under the lease but by the exercise of easements expressly or impliedly granted under the terms of the 1959 freehold conveyance, and sought a declaration to that effect.Held: The declaration was refused.

1.

The words employed in clause 3(a) did not amount to an express grant on their ordinary meaning; nor could such a meaning be extracted from them, given that it was the intention to bring the highway right up to the boundary of the freehold site.2.

While accepting that its claim could not be based on an easement of necessity, Mobil contended that a grant had to be implied in order to give effect to the common intention of the parties.

Applying the principles summarised in Pwllbach Colliery Limited v Woodman [1915] AC 634, Mobil had to show a common intention as to some definite and particular user, and that the claimed easements were necessary to give effect to that intention.

The claim was rejected because in 1959 the parties: (a) saw no need for an immediate grant; (b) looking ahead to the implementation of the highway scheme, could hardly have contemplated a grant in fee simple; (c) must have contemplated, if they had thought about it, that access from Stratford Road would be enjoyed by virtue of NBC's leasehold interest; (d) had not applied their minds to what would happen in the event of the highway scheme not being pursued, or the lease not being renewed; and (e) had produced no relevant plan identifying the precise routes that vehicles were intended to take.James Ayliffe (instructed by Metson Cross & Co) for the claimant; Judith Jackson QC and John McGhee (instructed by the solicitor to the Birmingham City Council) for the defendants.