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Derogation from grant: you can’t give with one hand and take with the other

15 July 2009

A recent Court of Appeal decision is a reminder of the legal principle of ‘derogation from grant’. This is a legal term for the rule of common honesty meaning someone cannot give with one hand and take with the other. In other words, were I to grant a right or benefit to you, then I must not do anything that prevents you from enjoying that right.

Visibility splay

The claimants, Mr & Mrs Carter owned land which had natural spring water well on it. The Carters granted a lease of the spring water land to a company which carried out a water-bottling operation. They also granted the tenant a right of way (which had to be usable by lorries) over their own land, from the spring water land to the main road. The Carters subsequently sold most of their land to Mr & Mrs Cole but they retained the spring water land, reserving a right of way to the main road.

The water-bottling operation was authorised by a series of temporary planning permissions. These contained various conditions including the provision of a visibility splay at the junction of the access road and the main road. No condition on the splay was contained in the final temporary provision, but an application to make the permission permanent was turned down.

After the water-bottling operation closed, the Carters made a planning application to develop the spring water land as offices with ancillary storage. But by then, the Coles had put up fences and planted shrubs on the land that formed part of visibility splay. The Carters’ planning application was turned down solely on visibility grounds.

The Carters took action for damages and loss of rent. They argued that the Coles had ‘derogated from the grant’ of the right of way. But the Coles maintained that the Carters’ loss stemmed from their lack of control over the splay and the refusal of planning consent, not the Coles’ interference with the splay.

Court of Appeal decision

The Court of Appeal disagreed and found in favour of the Carters. The planning application would not have been rejected on the grounds of highway safety had the Coles not interfered with the splay. They had no right to derogate from what they had granted to the Carters, namely a right of way for commercial vehicles. The court granted a mandatory injunction requiring the Coles to restore the splay. The Carters were awarded £20,000 damages, which represented four years’ loss of rent less the estimated costs of reletting.

Visibility splays have long been a rich source of disputes between landowners. This case underlines the principle that if you grant rights, whether in the context of freehold or leasehold property, you cannot directly or indirectly interfere with a right already granted by you or your predecessors in title.

For more information on derogation from grants and visibility splays, please contact our commercial property team.

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