In this case the Claimant, Ms Hazell, claimed an injunction or damages in respect of an alleged interference with her easement over amenity land on the site of a former convent near Edenbridge in Kent. The nuns had obtained planning permission for a residential development on the site of the convent, subject to a s106 agreement which required most of the grounds to be retained as amenity land. The nuns then sold a lodge next to the convent to the Claimant with the benefit of a right “…to use and enjoy the Landscaping Land as amenity land on foot only for the purposes of passing through only PROVIDED THAT the Landscaping Land shall not be used for the purposes of picnics, ball games or any other use save for that permitted in this paragraph..”. The Defendant, Knightspur, then bought the site but revised the development plan to create more houses. A revised planning permission was granted and the s106 Agreement was modified to change the extent and location of the amenity land. The revised amenity land was about 10% less than the land over which the right had been granted to the Claimant. Once the development was underway and some houses completed, she commenced proceedings claiming that her right had been interfered with, and that the offending houses should be demolished, or she should be granted damages in lieu of an injunction on the licence fee/negotiating basis. Her solicitors wrote to any would be purchasers of the houses to warn them of the proceedings, thereby effectively preventing sales.

The Defendant applied for summary judgment against the Claimant on the basis that the Claimant had no reasonable prospect of showing that the interference was substantial, given the nature of the right and the limited extent of the land which was unavailable for the exercise of the right. Deputy Master Cousins agreed, and dismissed the whole claim with costs. He held that the right granted was more limited than a jus spatiendi, and that the Claimant had not demonstrated how the enjoyment of her right would be diminished.

This case is a salutary tale for those who think they can demand big ransom payments for interference with easements where the interference is not clearly substantial.

Tom Jefferies acted for the successful Defendant, instructed by Simon Serota of Wallace LLP. A copy of the judgment is available here.

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