" Release The Grantee relinquishes with immediate affect [ sic ] all prescriptive rights of way and other prescriptive rights the Grantee and its predecessors have or may have acquired in relation to the Estate Roads and any Service Media on or under the Estate Roads."
"1. The right for the Grantee and his successors in title the owners and occupiers for the time being of the Property and all persons authorised by him or them to the benefit together with the Grantor and all others entitled thereto to pass and repass over the Estate Roads with or without vehicles for the sole purpose of access to and egress from the Property in connection with its use as a single private dwelling house. 2. The right for the Grantee and his successors in title the owners and occupiers for the time being of the Property and all persons authorised by him or them to the benefit together with the Grantor and all others entitled thereto to connect to and use for the purposes connected with the use of the Property as a single private dwelling house and at all times the Service Media now or within the perpetuity period of this Deed laid through and under the Estate Roads and to access the Estate Roads to renew maintain repair lay and replace the said Service Media."
"New procedures have been introduced by ROML to clarify the rights of access to properties bordering The Ridgeway, Danes Close and Ridgeway Close. In 1988 ROML purchased the road and its verges and the houseowners of all the above properties became shareholders in and entered into a Deed of Covenant with ROML. ROML is a limited Company which functions with a Board of elected directors and holds general meetings where only shareholders may attend. In forming the Company, the houseowners intended to ensure their access to their properties and to build up a fund of money in order to maintain and repair as necessary the roads, verges and roundabouts. While the original Deed of Covenant does give assurance in so far as the Company undertakes to do its best to provide the necessary access and will maintain the roads, there has been evidence for some years that purchasers would prefer their rights to be attached to their titles. The Board has accordingly issued a Deed of Easement to be applied along with a revised Deed of Covenant and share transfer at the sale of any property bordering The Ridgeway, Danes Close or Ridgeway Close. Once entered into, the Deed of Easement will be included in the title of the property concerned. The two documents are related and create a stronger link between the title, the shareholding, the duties of houseowner and ROML. Hence, at the first sale of a property not already benefiting from this arrangement, the following procedure should be followed: Two copies of the Deed of Easement and two copies of the revised Deed of Covenant should be signed by the Buyer and returned, undated, to the Company Secretary together with: a) a completed, stamped Stock Transfer Form signed by the houseowner or their Executor; b) if the latter, a photocopy of the Deed of Probate / Letter of Administration / Power of Attorney (as appropriate) c) the old Share Certificate, if possible; d) a cheque for£175 payable to "
"The purpose of ROML is to provide effective maintenance of the estate and ensure access and services to and from the houses adjacent to the above roads for the convenience of Houseowners who are its Houseowners and ROML is also responsible for maintaining the 'character of the Estate Roads': The respective responsibilities of ROML and the Houseowners are defined in greater detail in the Deed of Covenant signed by each houseowner. Following detailed discussions in 2008, a revised Deed of Covenant is currently in use for new purchasers, in association with a Deed of Easement, these documents provide enhanced assurances concerning access rights (see 'Buying and Selling')."
"Our private estate is, according to its residents, well-located, secluded, charming peaceful, attractive, quiet, leafy and safe. Unfortunately, there have been times when it has also been wet, muddy, untidy and congested; particularly in certain areas. The condition of the road, verges and drainage issues plus construction work, involving skips and heavy traffic, have sometimes done little to enhance its appearance. Although the 'character of the Estate Roads' is not precisely defined, it was clearly the desire of all Houseowners, at the time of the Company's formation, to maintain the existing character of the estate (i.e. roads and verges etc), in which they had a common interest and ownership, and this tradition has continued. The desire to ensure the concept of 'character' continues was sufficiently strong that an AGM resolution was passed in 2006 whereby any changes that may affect the 'character of the Estate Roads' must be approved by a two-thirds majority (of those voting) at a general meeting. A very important aspect of the character of the estate, are the grass verges, planted with silver birch trees, running along either side of the roads. These verges are owned by ROML and, as such, are the common property of all Houseowners. It is traditionally accepted that each Houseowner has responsibility for the care of the verge adjacent to their property and the trees thereon. No alterations to the verges should be made without specific ROML approval. The silver birches on the estate are of particular significance to its character and their health needs to be monitored, as does that of other trees, for signs of disease and potential hazards caused by rotting branches. ROML undertakes gardening and tree work, where appropriate, including the financing of silver birch replacement and planting out of the annual budget. The road itself dates from the early 1930s and is about 3 metres wide, is constructed of reinforced concrete, and varying between 200-300 mm in thickness. Repairing the road with light buff-coloured concrete is intended to maintain one aspect of its character."
" For all House-owners, contractors and suppliers, concerning building works and deliveries: Please give a copy to builders and other contractors including for the delivery of materials. Working or delivering in this estate can present particular difficulties due to the narrowness of access. House-owners and their contractors undertaking building work need to be sensitive to the impact of their activities on other residents and road users, including emergency and council vehicles, so that all parties can co-operate to minimise any disruption. The roads, paths and the verges are the private property of The Ridgeway (Oxshott) Management Ltd ("
" The Estate The estate (comprising properties adjacent to The Ridgeway, Ridgeway Close and Danes Close) was originally developed in the 1930s. Over the years many houses have been altered and, indeed, new properties built, but the estate has managed to retain much of its overall character and charm, which is valued highly by both existing and new residents. It is a desirable and enjoyable place to live, largely because of its unique ambience. The roads, verges and trees, together with the type and size of houses and house plots, provide a pleasing visual impact and a peaceful environment. ROML has a vital role in maintaining this environment and the character of the estate and is concerned with the type, size and number of houses on the estate. Although not wishing to hinder Houseowners' rights to improve or redevelop their properties, situations can arise where the interests of individuals seem at odds with those of the estate as a whole. In these cases the Board will act on behalf of the majority of House-owners. ROML will make representations to the Planning Authorities if necessary. It would therefore be advantageous if House-owners intending to develop their properties, whether needing to submit formal planning applications or not, would first consult both with neighbours and ROML. Hopefully this will avoid potential conflicts or disputes which could delay any planning application or detract from the peaceful overall environment. Although, since 2008, formal planning requests to the local authority may no longer be required for certain building extensions and alterations, subject to adherence to stated guidelines, consultation with neighbours and ROML is still advised. Infill Development A strict 'one house per title' policy should apply. This reflects both the restrictive covenants within the titles themselves and majority Houseowner opinion. The Board regards resistance to infill development as a most important responsibility and will use all the resources available to prevent it, including: • Seeking the support of all residents to object to planning proposal • Refusing rights of access, including for additional services, across the verges and the roads owned by ROML • Rigorously enforcing any existing covenants preventing infill development • Allocating funds to engage professional support in dealing with these items and, if necessary, approaching residents for a 'fighting fund' • Lobbying local councillors to oppose planning proposals Extensions The building of reasonable extensions to existing houses should be in keeping with the original house in terms of their overall design and the materials used and should not contravene Elmbridge planning guidelines, particularly in terms of proximity to boundaries and size."
" Ability to modify easements This was a very late addition to Mr Hutchings QC's submissions in that it appeared for the first time in his closing submissions. Unsurprisingly Mr Rosenthal objected to it being considered. Mr Hutchings QC referred us to paras 16.19 – 16.23 of Scamell and Gastowicz in support of a submission that the Tribunal has power to modify easements as well as restrictive covenants. This is obviously a point of law of some importance. Furthermore, in para 16.23 the authors consider it unlikely that restrictions within an easement would be held to be within section 84 of the 1925 Act. This is a view expressed by Mummery LJ in paragraph 5 of Hotchkin v McDonald[2004] EWCA Civ 219 . We agree with Mr Rosenthal that it is not appropriate to seek to raise the point in this way. If Mr Hutchings QC had wanted to argue that the Tribunal has power to modify the easement, proper notice should have been given so that it could have been dealt with. Accordingly, we accept Mr Rosenthal's submission that we should not consider it further."
"[Counsel for the Appellant] pointed out, rightly, that the Lands Tribunal has no power to vary an easement as such."
"It seems unlikely given the various matters referred to above that restrictions contained within an easement would be held to be within the ambit of section 84(1)."
"Objects which on grounds of public policy invalidate contracts may, for convenience, be generally classified into five groups:… thirdly, objects which interfere with the proper working of the machinery of justice."
"Where user of an easement is excessive, the servient owner will have an action in trespass. Where the exercise of the easement is obstructed or interfered with, the servient owner will have an action in trespass."
"It is in my judgment well established that it is no answer to a claim for an injunction to restrain a trespass that the trespass does no harm to the plaintiff. Indeed, the very fact that no harm is done is a reason for rather than against the granting of an injunction: for if there is no damage done the damage recovered in the action will be nominal and if the injunction is refused the result will be no more nor less than a licence to continue the tort of trespass in return for a nominal payment."
"…when one is dealing with the direct physical invasion of a right of property by a trespass one is very close to the line of cases stemming from Doherty v. Allman [(1878) 3 App Cas 709 )] which decide that an injunction to enforce a negative stipulation in a contract goes almost as of course. The parties, having agreed that something shall not be done, the court simply says that what the parties have agreed shall not be done."
"What, then, are the principles which a court should apply in a case of this type? It seems to me that, first, prima facie a landowner, whose title is not in issue, is entitled to an injunction to restrain trespass on his land whether or not the trespass harms him. In support of that proposition there are two comparatively recent cases at first instance."
"In normal circumstances the prima facie test should be that indicated by Stamp J in the Woollerton and Wilson case, but there may be exceptional circumstances, such as those considered by the court in Behrens v Richards , when the court will not think it appropriate to grant an injunction."
"In permitting persons to stray along the cliff edge or wander down the cliff face or stroll along the foreshore the owner of the land was permitting that which was no injury to him and whose refusal would have been a churlish and unreasonable act on his part. From such a user nothing, I think, is to be inferred."
"I, for my part, am prepared to assume that there may be exceptional cases, of which Behrens v Richards is one, where notwithstanding that a continuing trespass is proved or admitted, the court can properly decline to grant an injunction. But such cases are likely to be very rare."
"The cases in which the court might consider it appropriate to order a payment in compensation of a permanent trespass (or an occasional but continuing trespass) are likely to be extremely rare."
"…justification for refusing an injunction in cases of trespass is inherently less likely than in a nuisance case, since the defendant is seeking by the payment of damages to buy the right to interfere, not merely with the claimant's enjoyment of the property, but with the property itself."
"…in any event, there is no justification for allowing the defendants to perpetuate their trespass by the payment of money."
"On the other hand, if the matter now has to be considered on the basis that the 2004 fence constitutes a trespass, then, plainly, an injunction is merited and it would not be oppressive to make the order the judge did."
"The substantive law is clear and straightforward, so far as trespass is concerned. A landowner in possession is entitled to an injunction to restrain trespass, whether or not the trespass causes damage (see Patel v Smith …)."
"It follows that a quia timet injunction will usually be justified so long as the Claimants establish that there is a substantial risk of trespass by a defendant."
"Many judges have stated, and I emphatically agree with them, that a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the Court to sanction his doing so by purchasing his neighbour's rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be. In such cases the well-known rule is not to accede to the application, but to grant the injunction sought, for the plaintiff's legal right has been invaded, and he is prima facie entitled to an injunction. There are, however, cases in which this rule may be relaxed, and in which damages may be awarded in substitution for an injunction as authorized by this section. In any instance in which a case for an injunction has been made out, if the plaintiff by his acts or laches has disentitled himself to an injunction the Court may award damages in its place. So again, whether the case be for a mandatory injunction or to restrain a continuing nuisance, the appropriate remedy may be damages in lieu of an injunction, assuming a case for an injunction to be made out. In my opinion, it may be stated as a good working rule that -- (1) If the injury to the plaintiff's legal rights is small, (2) And is one which is capable of being estimated in money, (3) And is one which can be adequately compensated by a small money payment, (4) And the case is one in which it would be oppressive to the defendant to grant an injunction, then damages in substitution for an injunction may be given. There may also be cases in which, though the four above-mentioned requirements exist, the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise acting with a reckless disregard to the plaintiff's rights, has disentitled himself from asking that damages may be assessed in substitution for an injunction. It is impossible to lay down any rule as to what, under the differing circumstances of each case, constitutes either a small injury, or one that can be estimated in money, or what is a small money payment, or an adequate compensation, or what would be oppressive to the defendant. This must be left to the good sense of the tribunal which deals with each case as it comes up for adjudication. For instance, an injury to the plaintiff's legal right to light to a window in a cottage represented by£15 might well be held to be not small but considerable; whereas a similar injury to a warehouse or other large building represented by ten times that amount might be held to be inconsiderable. Each case must be decided upon its own facts; but to escape the rule it must be brought within the exception. In the present case it appears to me that the injury to the Plaintiff is certainly not small, nor is it in my judgment capable of being estimated in money, or of being adequately compensated by a small money payment."
"This appeal raises yet again the questions: what approach should the court adopt when invited to exercise its statutory jurisdiction to award damages instead of granting an injunction to restrain a threatened or continuing trespass or breach of a restrictive covenant? And if the court accedes to the invitation on what basis should damages be assessed?"
"(3) The nature of the cause of action is immaterial; it may be in contract or tort. Lord Cairns's Act referred in terms to 'a breach of any covenant, contract, or agreement, or against the commission or continuance of any wrongful act.' The jurisdiction to award damages in substitution for an injunction has most commonly been exercised in cases where the defendant's building has infringed the plaintiff's right to light or where it has been erected in breach of a restrictive covenant. Despite dicta to the contrary in Woollerton and Wilson Ltd. v. Richard Costain Ltd. [1970] 1 W.L.R. 411 there is in my opinion no justification for excluding cases of threatened or continuing trespass on the ground that trespass is actionable at law without proof of actual damage. Equitable relief, whether by way of injunction or damages under Lord Cairns's Act, is available because the common law remedy is inadequate; but the common law remedy of damages in cases of continuing trespass is inadequate not because the damages are likely to be small or nominal but because they cover the past only and not the future." "(7) In Anchor Brewhouse Developments Ltd. v. Berkley House (Docklands Developments) Ltd. (1987) 38 B.L.R. 87 Scott J. granted an injunction to restrain a continuing trespass. In the course of his judgment, however, he cast doubt on the power of the court to award damages for future trespasses by means of what he described as a 'once and for all payment.' This was because, as he put it, the court could not by an award of damages put the defendant in the position of a person entitled to an easement; whether or not an injunction were granted, the defendant's conduct would still constitute a trespass; and a succession of further actions for damages could accordingly still be brought. This reasoning strikes at the very heart of the statutory jurisdiction; it is in marked contrast to the attitude of the many judges who from the very first have recognised that, while the Act does not enable the court to license future wrongs, this may be the practical result of withholding injunctive relief; and it is inconsistent with the existence of the jurisdiction, confirmed in Leeds Industrial Co-operative Society Ltd. v. Slack [1924] A.C. 851, to award damages under the Act in a quia timet action. It is in my view fallacious because it is not the award of damages which has the practical effect of licensing the defendant to commit the wrong, but the refusal of injunctive relief. Thereafter the defendant may have no right to act in the manner complained of, but he cannot be prevented from doing so. The court can in my judgment properly award damages 'once and for all' in respect of future wrongs because it awards them in substitution for an injunction and to compensate for those future wrongs which an injunction would have prevented. The doctrine of res judicata operates to prevent the plaintiff and his successors in title from bringing proceedings thereafter to recover even nominal damages in respect of further wrongs for which the plaintiff has been fully compensated."
"111 Jaggard v Sawyer[1995] 1 WLR 269 was a case where the Court of Appeal upheld the trial judge's decision to award damages instead of an injunction restraining the defendant trespassing on the plaintiff's land. In so doing, the judge effectively gave the defendant a right of way to his house over the plaintiff's land, against the plaintiff's will, in return for a capital payment from the defendant to the plaintiff: see pp 286-287. 112 At pp 282-283, Sir Thomas Bingham MR (with whom Kennedy LJ agreed), specifically tested the trial judge's decision to award damages by reference to A L Smith LJ's four tests, and emphasised that 'the test is one of oppression, and the court should not slide into application of a general balance of convenience test'. He held that the judge had rightly concluded that the four tests were satisfied. 113 Millett LJ said, at p 287, that 'A L Smith LJ's checklist has stood the test of time', but emphasised that 'it is only a working rule and does not purport to be an exhaustive statement of the circumstances in which damages may be awarded instead of an injunction'. As he immediately went on to emphasise on the next page, the decision whether or not to award damages instead of an injunction is a discretion. Accordingly, he said, the cases where judges have awarded or refused to award damages can be no more than 'illustrations of circumstances in which particular judges have exercised their discretion'. He also suggested that 'The outcome of any particular case usually turns on the question: would it in all the circumstances be oppressive to the defendant to grant the injunction to which the plaintiff is prima facie entitled?' He then went on to refer to the significance of the defendant's state of mind, including openness, good faith, and understanding."
"120 The court's power to award damages in lieu of an injunction involves a classic exercise of discretion, which should not, as a matter of principle, be fettered, particularly in the very constrained way in which the Court of Appeal has suggested in Regan and Watson . And, as a matter of practical fairness, each case is likely to be so fact-sensitive that any firm guidance is likely to do more harm than good. On this aspect, I would adopt the observation of Millett LJ in Jaggard[1995] 1 WLR 269 , 288 where he said: 'Reported cases are merely illustrations of circumstances in which particular judges have exercised their discretion, in some cases by granting an injunction, and in others by awarding damages instead. Since they are all cases on the exercise of a discretion, none of them is a binding authority on how the discretion should be exercised. The most that any of them can demonstrate is that in similar circumstances it would not be wrong to exercise the discretion in the same way. But it does not follow that it would be wrong to exercise it differently.' 121 Having approved that statement, it is only right to acknowledge that this does not prevent the courts from laying down rules as to what factors can, and cannot, be taken into account by a judge when deciding whether to exercise his discretion to award damages in lieu. Indeed, it is appropriate to give as much guidance as possible so as to ensure that, while the discretion is not fettered, its manner of exercise is as predictable as possible. I would accept that the prima facie position is that an injunction should be granted, so the legal burden is on the defendant to show why it should not."
"123 Where does that leave A L Smith LJ's four tests? While the application of any such series of tests cannot be mechanical, I would adopt a modified version of the view expressed by Romer LJ in Fishenden 153 LT 128, 141. First, the application of the four tests must not be such as 'to be a fetter on the exercise of the court's discretion'. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted."
"There is much to be said for the view that damages are ordinarily an adequate remedy for nuisance and that an injunction should not usually be granted in a case where it is likely that conflicting interests are engaged other than the parties' interests. In particular, it may well be that an injunction should as a matter of principle not be granted in a case where a use of land to which objection is taken requires and has received planning permission. However, at this stage, in the absence of argument on these points, I can do no more than identify them as calling for consideration in a case in which they arise."
"The owners of some private roads do find it useful to be able to deal with this problem by way of the grant of a deed of easement. This deed clearly sets out the extent of the rights of way enjoyed by a particular property aria can include any obligations to contribute to maintenance. One advantage of doing this is that the rights of way can be limited, for example to use as a single private dwellinghouse, rather than relying upon the unknown extent of a right acquired by long usage. The Company may also be able to negotiate that in return for the deed of grant of the legal easement, the house owner enters into covenants, binding upon their title to the property, to make contributions towards the maintenance of the road rather than having to rely upon the current arrangements in the deed of covenant which are only binding on the person who has signed the deed of covenant. The existing deed of covenant does not contain a right of way over the road. It merely contains a covenant by the Company to use its best endeavours to provide full and unrestricted vehicular and other rights of way over the road. Whilst this is almost as good as a right of way, it is of course only personal to the owner of the property who has signed the deed of covenant and does not pass to a future owner until they sign up a similar deed of covenant. A legal easement noted on the title to the property is clear and it will last for all time."
"You enquired whether the Company would be giving up any rights by entering into a deed of grant of a right of way and service easements over the road to a house owner. The Company is already bound by all existing rights of way and service easements that undoubtedly exist over the road. These do not need to be mentioned on the title to exist and can simply be claimed by the persons exercising the rights on the basis that they have done so for over 20 years. I assume that in fact all the houses acquired these rights before the Company purchased the roads. The Company effectively acknowledges the rights that the house owners have over the road in the existing deeds of covenant. It seems to me therefore that a deed of easement simply sets out more clearly the actual rights and obligations of the parties. It also imposes obligations upon the title to the house."
"I have said to my colleagues that I cannot see any reason for refusing to enter into a Deed of Grant with Clare Cottage and future purchasers of houses in the Estate. I think if we can introduce the single dwelling restriction into the Deed of Grant then it should give us protection against multiple developments on some of the larger titles …"
" A Special Resolutions in respect of the Charging Structure: The Company proposes to introduce the following charges, which will be applied to future Property Sales and to new Houseowners in the Estate, for the purposes of providing for the effective maintenance and repair of the Estate Roads and Services and to offset wear and tear arising from the Construction Works and/or Extension Works Al. A Construction Contribution: in the case of the construction of a new or replacement house upon a Property in the Estate ('Construction Works') a Contribution equal to£30 (or such other amount as the Management Company may from time to time determine) per square metre subject to a minimum payment of£10,000 or such other minimum sum as the Management Company may from time to time determine to be applied to future Property Sales and to new Houseowners in the Estate. A2 An Extension Contribution: in the case of the construction of an Extension and / or the erection of a detached garage or garages for which planning permission is required ('Extension Works') a Contribution equal to£30 (or such other amount as the Management Company may from time to time determine) per square metre to be applied to future Property Sales and to new Houseowners in the Estate. A4 A Deposit: in the case of Construction Works the sum of£10,000 or such other sum as the Management Company may from time to time determine, or an insurance policy benefiting the Management Company, in each case to be held against the cost of making good any specific and identifiable damage caused to the Estate Roads and Services or other properties on the Estate by the Works to be applied to future Property Sales and to new Houseowners in the Estate."
"My strong wish is to stop this inappropriate development to ensure the character of the road is maintained by adherence to the one house per plot agreement and to avoid further development disrupting my quiet enjoyment of my property."