WAN YUK WING v. WONG KWOK HING PATRICK AND ANOTHER

CACV 230/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 230 OF 2009

(ON APPEAL FROM HCA NO. 1713 OF 2007)

BETWEEN

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Mr Recorder A. Chan SC given on 21 August 2009. In the action the plaintiff claimed an injunction to restrain the defendants from interfering with the claimed right of way (which has been termed “the Disputed Way”) over the defendants’ parcel of land (“Land B”), which is adjacent to the plaintiff’s land (“Land A”). The defendants, for their part, claimed a declaration that the plaintiff was not entitled to a right of way and injunctions to prevent the plaintiff entering on to their parcel of land and requiring the plaintiff to remove all structures that had been put on the defendants’ land.

2.  Whilst the recorder came to the conclusion that the Disputed Way, which was a path ona bund across what had previously been agricultural land had been used freely by the plaintiff and his predecessors in title, the easement over the Disputed Way had, “at least, been suspended since 1997”. The recorder not only dismissed the plaintiff’s claim but made a declaration that the plaintiff was not entitled to use the Disputed Way “for residential purposes”. The recorder had granted an injunction to restrain the plaintiff from entering the Disputed Way without the defendants’ permission and made an order that the plaintiff should remove the concrete surface over the Disputed Way within 21 days.

Background

3.  The dispute in this case arises over land in San Tong Village, Tai Po, New Territories. There is no dispute either as to the land which the respective parties own or as to the location of the Disputed Way. The plaintiff’s land, Land A, is about 3,000 sq. ft. In the past it was used as agricultural land. In 1997 the plaintiff, who had inherited the land in 1992 from his father, built a house on it.

4.  The defendants’ parcel of land, Land B, is about 1,500 sq. ft. It is adjacent to the north side of the plaintiff’s land. The history of the ownership of Land B was that it was part of a very much larger lot that had been acquired by the defendants’ maternal grandmother in 1951. The larger lot was transferred to the defendants’ mother in 1981. In 1996, the larger lot was subdivided by the defendants’ mother into five subsections of which Land B was one. Land B was assigned to the second defendant at the time of the subdivision. The second defendant held Land B until 1999 when it was transferred to a Mr Chan Hing. Land B was transferred by Mr Chan back to the defendants in 2007. The judge said that the reason for the transfer of Land B to Mr Chan had something to do with the second defendant’s application to build a Ding house which was unsuccessful.

5.  It would seem that prior to the transfer of Land B by the second defendant to Mr Chan, the plaintiff had caused the Disputed Way to be concreted.

The trial below

6.  There is no dispute between the parties that Land A is land locked, to the extent that it is necessary to cross land belonging to others to have access from a public highway to Land A. The evidence was that in the past when Land A and all the surrounding land had been used for agricultural purposes, all the villagers would have access to their various parcels of land by means of small dykes made of earth, called bunds. The bunds separated the various fields and served, also, as the boundary of the lots of land. It hardly needs to be observed that lots of the size of either Land A or Land B are hardly suited to modern day agriculture. Indeed, it is quite clear from the photographs this court was shown that agriculture is a thing of the past in the vicinity.

7.  The recorder said that he had no difficulty in accepting the plaintiff’s case that the Disputed Way, which had been over just such a bund, had been used by the plaintiff and his predecessors in title when they moved to Land A. The judge did not accept that the use had only been for a limited period and he also held that those who had owned Land B had known of the use of the Disputed Way. The judge thus held that there had been an easement, with Land A enjoying a right of passage over Land B via the Disputed Way. The Disputed Way had been a path with a simple packed soil surface with a width of 1 to 2 feet. It only remains to be said that the Disputed Way traverses the middle of Land B.

8.  The judge accepted the propositions in Gale on Easements, 18^th ed., pp. 382-384 and in particular the twofold test as to whether an easement would be lost by reason of an alteration caused by a change in respect of the dominant land, namely:

(a)  whether the development of the dominant land represented a ‘radical change in the character’ or a ‘change in the identity’ of the dominant land as opposed to a mere change or intensification in the use of the dominant land; and

(b)  whether the use of the dominant land as redeveloped would result in a substantial increase or alteration in the burden on the servient land.

9.  It was conceded by the plaintiff that the change of use of Land A from agricultural to residential did constitute a “radical change in the character” of that piece of land. As to the second question the judge held that there had been a substantial increase in the burden on Land B. The judge commenced his consideration of this aspect by referring to the fact that the plaintiff had caused the Disputed Way to be concreted. That was clearly a material factor in the case. The judge considered that the Disputed Way would be used more frequently by more people than had previously been the case; that there would be bicycle traffic and it would be necessary from time to time to move furniture and electrical appliances. On that basis the judge held “that the easement over the Disputed Way has, at least, been suspended since 1997.” The judge did not consider it necessary to decide whether the easement had been extinguished.

10.  There was also a point taken that there may be an easement of necessity. The judge dismissed that.

This appeal

11.  On this appeal Mr Graham, who appeared on behalf of the plaintiff in this court but not in the court below, first took this court through an analysis of the area surrounding Land A. Although he did not argue that there was an easement of necessity, he did seek to demonstrate that for practical purposes the only access to Land A was via Land B. Mr Leung, who appeared for the defendants both in this court and below, suggested that there may be alternative routes along what had previously been other bunds, but it has to said that the photographs showing the present condition of the area would suggest otherwise. More importantly, if there were no right on the part of the plaintiff to use the Disputed Way, the same disability would prevail in respect of all other routes.

12.  At the centre of this appeal is the question as to whether because Land A has now a house erected thereon, which is occupied as a residence, that would result in a substantial increase or alteration in the burden on Land B to the extent that the easement would be suspended or extinguished. Mr Leung relied heavily on passages in the judgment of Neuberger LJ in the case of McAdams Homes Ltd v Robinson and another [2004] 3EGLR 93 which contained a reminder that the decision of the judge in this respect is a question of fact, which, thus, can only be overruled on settled principles.

13.  In my view, in this case, the recorder was justified in regarding the concreting of the Disputed Way as going beyond any right appurtenant to the easement. But, as the review of the cases in the McAdams case shows, care has to be taken to distinguish between change in the dominant land on the one hand and an increase in the burden on the servient land on the other. The first is relevant for the first issue. The second is relevant for the second issue. As the cases referred to in the McAdams case show, the circumstances of each case are very different. Mere increase in intensity of use, even if substantial, cannot be objected to.

14.  In addressing the second criteria, as opposed to the first criteria, it appears to me that what must be considered in the present case is whether, if use of the Disputed Way were restricted to a soil path with a width of 1 to 2 feet, without a concrete layer, that would result in a substantial increase or alteration in the burden on Land B in comparison to that which could have been expected when Land A (and Land B for that matter) had been used for agricultural purposes. In my view, that cannot be said to be the case. In either situation there would be a beaten rural path of 1 to 2 feet wide that would be used by pedestrians on foot. Doubtless the occupants of the house on Land A would traverse the Disputed Way more than previously had been the case, but even that would scarcely be more than spasmodic. It would be no more than using the equivalent of a garden pathat the front of a house. It would be nothing like a highway and it could not be said to be likely to cause any detriment to Land B. The judge referred, in the final sentence of paragraph 52 of the judgment to the possibility of the Disputed Way being inaccessible in poor weather due to the path becoming muddy. That may be the case. Presumably, it always was the case and it is possible it will be the case in future during inclement weather.

15.  I would, therefore, set aside the judgment in so far as it restrains the plaintiff from using the Disputed Way. That would necessitate setting aside paragraphs 1, 2 and 3 of the order and imposing an injunction to restrain the plaintiff from using the Disputed Way otherwise than for pedestrian access.

16.  It is impossible to leave this case without observing that it would appear to have been unnecessary. Mr Leung, on behalf of the defendants, argued that the plaintiff only had himself to blame for the predicament in which he found himself because access to Land A should have been secured before development of the house upon it. Mr Graham, on behalf of the plaintiff drew attention to the fact that the second defendant had owned Land B at the time when the house was built and the Disputed Way concreted and had only parted with ownership in the following year. The defendants only became owners of Land B again some nine years after the house had been built and the Disputed Way concreted. Furthermore, Land B was originally part of a very much larger lot which had been owned by the defendants’ family and had been created by subdivision.

17.  Whatever the rights and wrongs of those arguments, it can only be said that there would seem to be a way of accommodating the plaintiff by provision of access to his house, which could, seemingly, be accomplished by repositioning the access route. That would have the benefit to the defendants of removing the easement, once and for all, from the middle of the parcel of land that has been created and is now Land B. As it is, this court is left with giving a judgment that, probably, satisfies none of the parties.

Hon Le Pichon JA:

18.  I agree with the judgment of Rogers VP.

Hon Wright J:

19.  I agree that this appeal should be allowed in part and the order proposed by the Vice President made.

20.  It is appropriate to add that the land to the north of and contiguous to Land B also previously had been owned by the plaintiff’s predecessors in title: the effect was that Land B was sandwiched between two lots owned by the plaintiff’s predecessors in title who, inevitably, would have used the Disputed Way to move between their two properties. The Recorder’s rejection of the defendants’ evidence that the Disputed Way had never been so used was well-founded.

21.  The recorder was correct in finding that an easement by lost modern grant had been established.

22.  The two stage test adopted by the Recorder is to be found in the judgment of Neuberger J in McAdams Homes Ltd (§ 12 above) in which he said:

“[49]  The issue before the judge was whether the drainage easement, impliedly granted in 1982, at a time when the dominant land was used as a bakery, could continue to be enjoyed following the redevelopment of the dominant land for the purpose of two residential houses.

[50]  The authorities discussed above appeared to me to indicate that the issue should have been determined by answering two questions. Those questions are whether:

(i)  the development of the dominant land, that is, the site, represented a “radical change in the character” or a “change in the identity” of the site... as opposed to a mere change or intensification in the use of the site...;

(ii)  the use of the site as redeveloped would result in a substantial increase or alteration in the burden on the servient land...

[51]  In opinion, the effect of the authorities... is that it would be only if the redevelopment of the site represented a radical change in its character and it would lead to a substantial increase in the burden, that the dominant owner’s right to enjoy the easement of passage of water through the pipe would be suspended or lost.

[52]  In reaching this conclusion I am relying principally on cases relating to rights of way... the satisfaction of only one of the two requirements will not, at least on its own, be sufficient to deprive the dominant owner of the right to enjoy the easement... however, where both requirements are satisfied, the dominant owner’s right to enjoy the ease and will be ended, or at least suspended, so long as the radical change of character and substantially increasing burden are maintained.”

emphasising at §55, that:

“... before the servient owner can succeed on the second question, the cases show that the court must be satisfied that there has not merely been an increase (or change) in the enjoyment of the easement as a result of the changed character of the dominant land, but that there has been a real increase (or change) in the burden on the servient land.”

and at 60:

“as the judge reached the conclusion that there was a radical change in the character of the site, he had to go on to ask himself whether that changing character would result in a substantial increase in the burden on the servient land...” [emphasis supplied]

23.  Whether a real or substantial increase (or change) in the burden on the servient land has occurred will be a question of fact in each case: it is a question to which reasonableness and commonsense need be applied.

24.  The Recorder’s reasons for reaching his conclusion are to be found at §52 of his judgment, expressed in these terms:

“... I have no hesitation in coming to the view that the change of use has resulted in a substantial increase in the burden on Land B. To some extent, the fact that the Disputed Way was concreted reflects the increase in burden. Since 1997, Land A is no longer a place of work for farmers. Instead, it has been the home for a family of six (increased to seven recently with the arrival of a domestic helper). Naturally, the Disputed Way has been used more frequently and, on average at least, by more people (including visitors to the House). The plaintiff has mentioned bicycle traffic on the Disputed Way (there are several bicycles used by his family). If there was any bicycle traffic on the Disputed Way before it was concreted, such occasions must have been rare. From time to time that would be movement of, e.g., furniture and electrical appliances on the Disputed Way. According to the plaintiff, when Land A was used for farming it would only be visited every one or two days during the quiet season. Indeed, the nature and width of B Bund would dictate the traffic that could be accommodated. Finally, Mr. Leung has made the point that the access over B Bund was subject to the interruption by weather - poor weather making the muddy path inaccessible.”

25.  The Recorder does not appear to suggest that the act of concreting of the Disputed Way, of itself, increases the burden on Land B but, rather, that it simply illustrates the increase in burden occasioned by the other factors which he mentions.

26.  In my judgment, those factors fall well short of justifying the finding that there has been a “real increase (or change)” in the burden on Land B. As a consequence the Recorder arrived at a conclusion which properly was not open to him on the evidence and this court is entitled to intervene.

Hon Rogers VP:

27.  There will therefore be an order in terms of paragraph 15above and an order nisi that the plaintiff should have the costs of this appeal and that the order for costs in the court below should remain.