London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1994] 1 WLR 31
Court of Appeal, 25 May 1993. Also reported at [1993] 4 All ER 157.
The Court of Appeal rejected a claim to extend parking rights to additional land under an earlier transfer. The central difficulty was that the land to benefit from the proposed extension had not been identified when the original right was created. A contractual power to nominate that land later did not itself create an easement binding subsequent owners of the land burdened by it.
The transfer and the additional land
On 27 August 1987, the Leicestershire Co-operative Society sold development land in Leicester to London & Blenheim Estates. The transfer granted various rights over land retained by the Co-op. These included a right for customers, clients and employees of businesses on the transferred land to park on available spaces in areas of the retained land set aside as a car park.
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The parking right was subject to the charges and conditions imposed on the specified users of the car park. The purchaser also had to contribute a reasonable share of maintenance costs. It was not an unrestricted right to occupy any part of the retained land for parking.
Paragraph 11 provided a way to bring other land within the benefit of the scheduled rights. That land had to be capable of benefiting from them; notice had to be given within five years of the transfer; and, at the date of notice, the original purchaser or a qualifying related company had to own or have contracted to buy the additional land.
London & Blenheim contracted to buy the additional leasehold land in December 1987. Wortley Developments became the registered owner of the retained land in February 1988. London & Blenheim then gave Wortley the paragraph 11 notice on 1 March 1988. Wortley transferred the retained land to Ladbroke in September 1988.
The timing therefore mattered: the contract to buy the additional land preceded the transfer to Wortley, but the notice identifying it as land to benefit from the rights came afterwards.
What the appeal concerned
London & Blenheim sought a declaration that the additional land enjoyed the parking rights. The trial judge dismissed that claim and declared, on Ladbroke’s counterclaim, that no such right existed for the additional land. London & Blenheim appealed.
The principal issue was whether the right to nominate unspecified land created an interest capable of binding later owners of the retained land. A related question was whether acquiring the additional land could produce that effect before the nomination right was exercised.
Decision and reasoning
The appeal failed. An easement requires a dominant tenement—the land benefited by the right—as well as a servient tenement—the land over which it is exercised. The arrangement left an essential element of the proposed easement unsettled: the identity of the additional dominant land.
Peter Gibson LJ explained that the requirement protected land from burdens whose extent was uncertain. It also reflected the law’s reluctance to let owners create novel property rights, binding successors, merely by making a contract. An intended easement attached to the servient land before its dominant land was identified would create such a novel burden.
The case distinguishes a contractual arrangement for future rights from a proprietary interest enforceable against later owners. Its conclusion concerned the attempt to extend the benefit to additional land; it was not a general rule that parking rights could never be easements.
Judgment: London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd, 25 May 1993.
