Legal News & Views by Dionne Jackson Miller

Legal updates and commentary

Privy Council Case – subject – easements

Summary: The Privy Council dismissed an appeal from the Court of Appeal of Jamaica in which the appellants were seeking to assert their right to an easement over an adjoining property and an ancillary right to park on the said property. The Law Lords said there would have been no need for an easement as the intention had been to create a public right of passage.

Privy Council Appeal No 0113 of 2010

[2012] UKPC 7

J & O Operations Limited and another; Eloise Mulligan and Grace Wong (Appellants) v The Kingston and Saint Andrew Corporation  (Respondent) 

From the Court of Appeal of Jamaica

before Lord Hope, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed

JUDGMENT DELIVERED BY  LORD REED  on 7 March 2012

Key words – easements, common intention, necessity, public right of passage, implied grant


Facts

The appellants own two lots in New Kingston, which is a major commercial development in Jamaica, approved in the 1950s. Some lots front on to the main streets, others on to secondary streets, which are designated  as car parks and piazzas. Each secondary street can be entered at either end from one of the principal streets, at one end by vehicles, and by pedestrians at the other end.

Lots 42 and 43  front on to a secondary street – St Lucia Way. They have not been built on and are used as a private car park. That car park is separated from the sidewalk along St Lucia Way by a fence. In 1999, the KSAC introduced parking charges in  St Lucia Way, but there is no fee just for public access.

The appellants brought proceedings, claiming their right to have access to St. Lucia Way, and to park there free of charge, on the basis of an easement.

At first instance

Anderson J granted declarations in favour of the third and fourth appellants as follows, that they were entitled, as proprietors of Lots 42 and 43:

–       to access St Lucia Way from St Lucia Avenue by foot and by motor vehicle,

–       to access St Lucia Way from Knutsford Boulevard, and

–       to park on St Lucia Way free of charge to

The learned judge concluded that:

–        a right of way over St Lucia Way had been impliedly granted as an easement in 1969, at the time of the transfer to the appellants’ predecessors  in title, either as a matter of common intention or by reason of necessity,  or

–       had in any event been constituted subsequently by prescription.

–        In relation to parking for the purpose of transacting business at the supermarket, an easement was held to have been constituted by prescription.

In the Court of Appeal

The orders in favour of the third and fourth appellants were set aside with the Court concluding that the evidence did not support the claim for an easement of common intention, an easement of necessity, or an easement to park.

 The Privy Council’s decision

The Privy Council said that “The principal issue raised in the appeal is whether a right of way for pedestrians and vehicles between the lots in question and St Lucia Avenue, over St Lucia Way, was impliedly granted as an easement when separate titles to those lots were granted in 1969.”

The Privy Council noted that the development was designed so that some of the lots could only be accessed by the owners and the public through  secondary roads  such as St Lucia Way, although those roads were designed as car parks. Therefore, the Privy Council said, it must have been intended by the parties that there should be either a public way or a private way, or there must be a way of necessity.

They said that given the layout of the development, the condition of the sub-division approval that the roads should be constructed to the satisfaction of the Chief Engineer and taken over by the KSAC (which would maintain and manage them at public expense) and that St Lucia Way has been used by the general public since about 1968  “the natural inference is that it must have been intended that there would be a public right of passage, both for pedestrians and for motor vehicles, over those streets.”

The Board said the circumstances , along with documents such as the deposited plan and sub-division approval, did not support the submission that there was an intention to create an easement of way rather than, or in addition to, the public right of passage.

The submission that there was an easement of necessity was rejected based on the conclusion that with the intention to create a public right of passage,  there would have been no necessity for an easement.

“They have a right of passage between their lots and the principal streets of the development, via St Lucia Way, in the same way as any member of the public,” stated Lord Reed.

The Right to Park

With that conclusion, the submission that the appellants had a right to park also failed.

“In the absence of an easement, the argument that there was a right, ancillary

to the easement, to park on St Lucia Way fails to get off the ground. Nor in any

event could a right to park in St Lucia Way be said to be necessary for the

comfortable enjoyment of an easement of way: commercial premises are

commonly operated without the benefit of  adjacent private parking. In so far

however as members of the public are  permitted to park in St Lucia Way on

payment of a fee, the appellants can do so on the same basis,” the ruling said.

The appeal was dismissed with costs to the third and fourth appellants.

NB The first and second appellants did not appear before the Privy Council.

Cases cited include:

Espley v Wilkes (1872) LR 7 Ex 298, 302

Magistrates of Edinburgh v North British Railway Co (1904) 6 F 620, 639

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This entry was posted on March 8, 2012 by in Case Summaries and tagged , , , , .
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