[2025] EWHC 2899 (Ch)

The second question of construction which the judge had to address was very similar to the first. The Judge held that the words of the grant were plainly wide enough to include a right of way over the Green Land to and from the undercroft: see [66]. Mr Horne did not challenge that conclusion. The Judge also rejected Mr Horne’s argument that the right of way only permitted the Buyer access to Lambert House through the roller shutter door and only permitted it to use the other part of the Green Land as a turning point because of the bollards shown on the November Plan: see [67] to [78].

Before me Mr Horne advanced a different argument. He submitted that clause 2.2 must be construed as if it were subject to the Planning Permission and that it only permitted a right of access to at the points shown on Plan 2 which did not contemplate the creation of the undercroft or access to the development along the alleyway. He submitted, therefore, that since the Respondent did not implement the Planning Permission but obtained planning permission for a different development, it had no right to use the Green Land as a means of access to the undercroft.

I reject this argument. It makes no commercial sense and, in any event, the express words of clause 2.2 are not limited in this way either. Plan 2 appears to have been a version of the site plan which was used to obtain the Planning Permission. But it was not dated, it did not bear a plan number and the Appellant adduced no evidence before the Judge that it was one of the approved plans listed in paragraph 2 of the Planning Permission. Furthermore, the 2016 Transfer made no reference to the Planning Permission itself. Mr Horne relied on the Planning Obligation (which was referred to in the Transfer). But this was not a reference to the Planning Permission itself but to a unilateral deed by which the Seller (not the Buyer) agreed to pay the Council’s legal fees and for open space.

As the Judge pointed out, the 2016 Transfer was professionally drafted and if the parties had intended the Buyer to have a right of access to the Pink Land at one point only and to use the section of the Green Land which formed part of the alleyway for turning only, they would have said so. Moreover, if they had intended the right of way only to be available to the Buyer if and to the extent that it implemented the Planning Permission, they would have imposed a covenant to that effect and defined the Property and the Pink Land by reference to one of the approved plans listed in it. They did neither. Indeed, the Property is defined by reference to Plan 1 (the filed plan) and not by reference to the Pink Land at all. As Mr Blaker pointed out, the Judge thought that this was an attempt to re-write clause 2.2 and so do I. I dismiss Ground 3(ii).