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The Supreme Court rejected an appeal against the decision of the Court of Appeal, to the effect that the right to use recreational facilities within a country club were capable of being the subject-matter of the grant of a valid easement. In the course of the development of a country house estate into a country club, the former mansion was converted into leasehold flats and certain other buildings were sold off freehold to convert into timeshare apartments. The transfer of the buildings contained the grant of “the right for the transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the [lower] floors of the… mansion house, gardens and any other sporting or recreational facilities… on the transferors adjoining estate. After a subsequent owner required payment for the continuing use of the facilities of the country club from them, the timeshare owners sought declarations that they were entitled to use the facilities free of charge. The High Court and the Court of Appeal held that the transfer granted valid easements to use certain of the facilities. The majority of the Supreme Court (Baroness Hale PSC, Lord Kerr, Lord Sumption, Lord Briggs JJCS) held that the issue of whether a right sufficiently “accommodated” the dominant tenement was a question of fact, which depended upon whether it served the normal use and enjoyment of the dominant tenement. This could potentially include situations where the right consisted or included the right to enjoy some chattel on the servient tenement. The enjoyment of the servient land and its chattels did not have to be subordinate to the enjoyment of the dominant tenement, but could be (as in this case) the primary reason for the existence of the dominant tenement. The right could not be such as to require anything more than passivity on the part of the servient owner, who was therefore under no obligation to maintain or operate any of the facilities or chattels, but that was not the case in relation to these rights. Lord Carnwath JSC (dissenting) held that and easement is a right to do something (or prevent something being done) on another’s land, and not a right to have something done on it. Rights such as those granted - to enjoy facilities such as (most obviously) a golf course or swimming pool - could not be achieved without the owner providing, maintaining and managing those facilities. The same difficulty applied to a greater or lesser extent to all the facilities, and prevented the grant of a right to use them existing as an easement. The rights did not depend on mere passivity by the servient owner, any more than the right to use a theme park would. The essence of the grant was to use recreational facilities provided by others, which could not be an easement. Timothy Morshead QC and Toby Watkin appeared for the Appellants.
