Non-Derogation From Grant

Restraining A Land Owner From Carrying Out Activities On His Land Which Interfere With Rights Granted To Another Party

A recent case before the Court of Appeal has supported a legal rule which, whilst not being widely known amongst the public, can apply in a variety of situations and can assist parties where there is no other cause of action.

The rule is known as the doctrine of “Non-Derogation from Grant”. Whilst the language is somewhat legalistic, it essentially states that a party cannot grant a right with one hand and take it away with the other by taking action inconsistent with the grant.

The case of Carter –v- Cole, before the Court of Appeal, concerned 54 acres of land in Essex owned by Mr. and Mrs. Carter. Part of that land contained a natural spring water well, and this had been let out in 1996 to a company which bottled the water and then sold it. Planning permission for this water bottling activity was granted in 1996 on a temporary basis. For highway safety reasons, this planning permission was subject to a condition that a “visibility splay” of 2m x 120m had to be maintained on either side of the junction of the access road with the main road. This was because lorries would drive between the main road and the bottling facility.

In 2002 the Carters sold most of their land to Mr. and Mrs. Cole. However, they retained an acre of land on which the bottling facility was situated. They required, as a condition of the sale, a right of way across what would be Mr. and Mrs. Cole’s land for lorries to access the facility.

Following the sale in 2000, the Coles owned the land on either side of the junction with the main road and so the Carters no longer had any direct control over maintaining the visibility splay.

In 2001, the Coles decided to erect fencing and plant shrubs on part of the land which constituted the visibility splay. This led in 2004 to the Local Planning Authority refusing to make the temporary planning permission permanent because it considered that the access to the main road was now dangerous given the absence of the visibility splay. As the Carters did not own the relevant land, they could not take any direct action to remedy the situation.

In 2006 the bottling operator vacated the site and it remained empty as the Carters were unable to obtain planning consent for its use given the highway access problem.

The difficulty in this matter was that there was no direct agreement between the Carters and the Coles requiring the Coles to maintain the visibility splay. The Carters got around this problem by raising a claim for an injunction requiring the Coles to restore the splay, and for damages for loss of rent on the basis of the doctrine of Non-Derogation from Grant.

The Carters successfully argued that, at the time the Coles purchased the land, the planning permission was in existence and the Coles should therefore have been aware that by granting a right of way for lorries to access the bottling facility, the visibility splay would need to be maintained. The Court decided that the Coles could not grant the right of way for lorries to have access to the facility with one hand whilst taking away the right of access with the other hand by interfering with the visibility splay.

The Court granted an injunction to Mr. and Mrs. Carter and awarded damages of £20,000.00 in respect of loss of rent.

This case demonstrates both that when granting rights over land to a third party or when taking land with the benefit of such rights, one should give careful consideration to both the terms and the purpose of such an agreement. Even where there is no express obligation on the parties, action can be taken where a person’s rights over land are negatively affected.

03 JULY 2009

For further information on Linder Myers’ expertise in dealing with the issues raised in this article, please contact:

ANDREW LEESE, SOLICITOR
COMMERCIAL LITIGATION DEPARTMENT
0161 837 6811
Andrew.leese@lindermyers.co.uk