You Can’t Give it, Then Take it Away


A recent property case shows that the courts may take a dim view of granting a right and then taking it away.

The case involved an agreement under which the owner of land which was let to a water bottling firm sold adjacent land to a third party, reserving a right of way which ran from the water bottling plant to the main road. The right of way specifically included a right of access for lorries. The arrangement meant that the purchasers owned the land on either side of the entrance to the main road. The water bottling business was being operated in accordance with a temporary planning permission, which was subject to a number of conditions. As access to the water bottling plant was needed for lorries, one of the planning conditions was that the visibility for the exit to the road was adequate.
In 2001, the purchasers of the land put up fencing and planted shrubs which obstructed the visibility at the entrance. In 2004, the local authority refused to grant permanent planning permission for the water bottling plant, one of the reasons for the refusal being that the entrance to the main road was dangerous because of the lack of adequate visibility. In 2006, the water bottling business ceased and the landowner sought to rent out the site, but was unable to obtain planning permission for use because of the visibility issue.
The vendor of the land brought an action against the purchasers and was successful. The Court of Appeal ruled that suitable visibility splays were essential for the exercise of the right of way and ordered the purchasers to remedy the position. The court also awarded the claimants £20,000 in compensation for their deprivation of commercial use of the land between 2006 and the restoration of the visibility splay.
In this case, the behaviour of the purchasers of the land, which gave insufficient consideration to the rights of the owner of the right of way, proved expensive.
Says <<CONTACT DETAILS>>, “This is probably a case which could have been avoided had the original agreement for the sale of the land been more tightly drafted. Fortunately for the vendor, the Court took a commonsense approach.”
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Partner Note
Carter & Carter v Cole & Cole [2009] EWCA Civ 410.
There is a good write-up in Property Week, 5 June 2009.

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