Can the court restrain a land owner from carrying out activities on his own land which interfere with rights granted to another party?

In Carter v Cole the Court of Appeal considered the law as to derogation from grant and the appropriate remedies where there was such a derogation. In this case Mr & Mrs Carter owned 54 acres of land in Essex and in 2000 sold most of the land to Mr & Mrs Cole.  Mr and Mrs Carter retained an acre of land that had a natural spring water well and which had been let out in 1996 to a company that bottled and then sold the spring water.  There was a right of way over the land sold to the Coles so that lorries and other vehicles could access the water bottling facilities.

Planning permission was required for the water bottling operation and this was first granted on a temporary basis in 1996. The permission was subject to a condition that a visibility splay had to be maintained on either side of the junction of the access road with the main road.

Following the sale in 2000 the Coles owned the land on either side of the junction with the main road so that the Carters no longer had any direct control over maintaining the visibility splay.  In 2001 the Coles erected a fence and planted shrubs on part of the land that was subject to the visibility splay.

In 2004 the planning authority refused to make the temporary planning permission permanent on the basis that the access to the main road was now dangerous due to inadequate sightlines.  The Carters could do nothing about this and in early 2006 the bottling operator vacated the site for unconnected reasons and the site has remained empty ever since as the Carters have been unable to obtain any planning consent for its use due to the highway access problems.

The Carters sued the Coles for an injunction to require them to restore the visibility splay and to pay damages for loss of rent. The claim was based on the doctrine of derogation from grant. The Coles argued that the Carters had not imposed any obligation upon them as regards the maintenance of the visibility splay when the land had been sold to them and that as such this omission was the true cause of the problem. The Court did not agree and found that it was a derogation of grant for the Coles to interfere with the visibility splay such that an injunction could properly be granted to require the Coles to restore and then maintain the splay.  The Court noted that the terms of the planning permission were known when the right of way was granted in 1996 such that it was always contemplated that the visibility splay had to be maintained to allow the right of way to be used.

The Court of Appeal agreed with the trial judge that an injunction was warranted but reduced the damages from £35,000.00 to £20,000.00.

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