LOYAL LUCK TRADING LTD v. TAM CHUN WAH

HCMP 444/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 444 OF 2006

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J U D G M E N T

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Introduction

1.  The Plaintiff, Loyal Luck Trading Limited, owns a piece of land in Yuen Long, in the New Territories.  The Defendant, Tam Chun Wah, owns a smaller, adjoining piece of property.  The Defendant’s property lies between the Plaintiff’s property and the main road, and the only access from the road to the Plaintiff’s property (at least for vehicles) runs across the Defendant’s property.  The Plaintiff claims to be entitled to a right of way over the Defendant’s property for the purpose of vehicular access to its own property.  The Defendant denies that any such right of way exists.  On 23 February 2006, the Defendant took steps to block vehicles from passing over his land to the Plaintiff’s land.  As a result, the Plaintiff issued these proceedings on 7 March 2006, seeking a declaration that the Plaintiff was entitled to a right of way over the Defendant’s land, and an injunction to prevent the Defendant from blocking the right of way, or otherwise interfering with the Plaintiff’s use of it.  On 10 March 2006, Recorder Edward Chan, S.C. granted the Plaintiff an interlocutory injunction (which was continued at subsequent hearings before Burrell J and Sakhrani J on 6 June and 9 August 2006 respectively) pending the trial of these proceedings.

The Plaintiff’s and the Defendant’s lands

2.  The Plaintiff’s land consists of Lots 422A, 422B, 433A, 434, 435, 1736A1, and 1736C2 in D.D. 107, near Mo Fan Heung in Yuen Long.  They lie in a roughly north-south direction, parallel to San Tam Road.  The Plaintiff is also the owner of Lot 1736B, which is not relevant to these proceedings, as it is separated from the other lots and is not accessible through the Defendant’s land, so that the easement claimed does not serve that particular part of the Plaintiff’s property.  The Defendant’s land consists of Lots 430A and 430B, also in D.D. 107, Yuen Long.  It runs in a roughly east-west direction, and lies just to the west of the Plaintiff’s land, between that land and San Tam Road, sharing a common boundary with the Plaintiff’s land on the east side of Lot 435.  The Defendant’s land is separated from San Tam Road by a wide nullah, over which a bridge structure has been erected, providing vehicular access to the Defendant’s land, and through it, to the Plaintiff’s land.

The ownership history of the lands in question

3.  Before the Plaintiff and the Defendant came to own these properties, all of the land was at one time owned by a company called Widecorp Development Limited (“Widecorp”).  In order to understand how the present dispute arises, it is necessary to know something about the history of the ownership and use of what is now the Plaintiff’s and the Defendant’s land.

4.  That history, which for the most part is not really disputed, is as follows:-

(1)     By a sale and purchase agreement dated 4 January 1990, a Mr Lau Ming Wah and a Mr Wong Hei Ting agreed to purchase what is now the Plaintiff’s land from its then owner.  Before the sale was completed, they acquired Widecorp as a shelf company with a view to Widecorp being used to hold the property.  On 26 March 1990, they nominated Widecorp to be the assignee of the Plaintiff’s land.  On 26 April 1990, the Plaintiff’s land was assigned by its former owner to Widecorp.

(2)     At this time, Mr Lau and Mr Wong were in the transportation business, and intended to use the Plaintiff’s land for parking container lorries.

(3)     After acquiring the Plaintiff’s land, Widecorp began negotiating with the then owner of the Defendant’s land with a view to purchasing that land to provide access to the Plaintiff’s land from San Tam Road.  While such negotiations were ongoing, Widecorp began to build a road on what was to become the Defendant’s land, with the consent of the then owner.  However, there is no evidence as to whether the road was used prior to the successful acquisition by Widecorp of what was to become the Defendant’s land.

(4)     On 28 September 1992, Widecorp entered into a sale and purchase agreement with the then owner of what is now the Defendant’s land.  The sale was completed by an assignment dated 18 January 1993.

(5)     Thus, from 18 January 1993, Widecorp owned the whole of what is now the Plaintiff’s land and the Defendant’s land.  It seems that some time thereafter, Widecorp used the land for the parking of container lorries, and for some other purposes, such as vehicle maintenance and repair.

(6)     In about August 1994, Mr Lau and Mr Wong disposed of their interests in Widecorp to a Mr Cheng Hok Cheung, and resigned as directors of Widecorp on 12 August 1994.  It seems that Mr Cheng was also in the transportation business, and continued to use the land for the same purposes until around 1999 or 2000.  There was some difference as to the parties as to when the land ceased to be used for this purpose - in particular, whether such use had ceased by 31 January 2000.

(7)     When Mr Cheng acquired Widecorp, he caused it to mortgage what is now the Plaintiff’s land to Kenney Finance Company Limited (“Kenney”), by a mortgage dated 12 August 1994.  For reasons which are not known, what is now the Defendant’s land was not mortgaged to Kenney at the same time.

(8)     Instead, some two years later, on 20 August 1996, Widecorp mortgaged what is now the Defendant’s land to GE Capital Finance Limited (“GE”).  It seems from the land search records that, at the same time, Widecorp also granted to GE a mortgage (presumably a second mortgage) of what is now the Plaintiff’s land.

(9)     Widecorp later appears to have experienced financial difficulties.  Some time in 1999 (perhaps on 3 May 1999, as the land search records show that on that date an order, which may have been an order for possession, was granted to Kenney in proceedings by Kenney against Widecorp) Kenney obtained possession of the land which had been mortgaged to it.  Subsequently, on 4 December 1999, Kenney entered into a sale and purchase agreement in respect of what is now the Plaintiff’s land to a Mr Mok Chung Sum, assigning the property to Mr Mok on 31 January 2000.

(10)   At this stage, GE had neither obtained possession of, nor sold what was to become the Defendant’s land.

(11)   Mr Mok then granted a licence to Mr Lau to use what is now the Plaintiff’s land in November 2002.  Mr Lau granted a sub-licence to a company in which he was interested, and from around that time onwards, that land was once again used for the parking of container lorries.  At present, however, the land is not being used for the parking of container lorries, although it is being used for the parking of other, smaller, vehicles and trucks.  This change appears to have been due to the fact that the use of the land for parking of container lorries is not permitted under the present town planning zoning in respect of the land, and a recent application for permission to use it for this purpose was unsuccessful.

(12)   On 7 July 2005, Mr Mok assigned the Plaintiff’s land to the Plaintiff.  It seems from the land search records that the agreement for sale and purchase and assignment were both executed on the same date.  This transfer was subject to Mr Lau’s rights under the licence granted to him by Mr Mok.

(13)   Meanwhile, earlier in 2005, GE had obtained possession of what is now the Defendant’s land (this may have been on 9 March 2005, when, according to the land search records, an order was made in GE’s favour in proceedings which it brought against Widecorp).  On 20 January 2006, GE entered into a sale and purchase agreement with the Defendant, by which it sold the Defendant’s land to him.

5.  When he acquired his land, the Defendant was aware of the Plaintiff’s claim to an easement over it.  The Plaintiff had put GE on notice of the fact that it claimed a right of way over the Defendant’s land for vehicular access between its land and San Tam Road by a letter dated 22 November 2005 from its solicitors to solicitors acting for GE.  No doubt as a result of this, Clause 28 of the sale and purchase agreement between GE and the Defendant expressly referred to the Plaintiff’s claim to an easement, and provided that the Defendant, as purchaser from GE, purchased his land with full knowledge of that claim, and waived any right to raise any objection or requisition against the property, or to make any claim against GE as vendor, in relation to the right of way claimed.

6.  When the Plaintiff learnt of the sale to the Defendant, its solicitors wrote to his solicitors reiterating the Plaintiff’s claim to the right of way.  The Defendant denied the existence of the right of way, and on 23 February 2006, sought to block the access road over his land, sparking off the events which culminated in these proceedings being brought.

The use to which the Plaintiff’s land has been put

7.  As I have noted, the Plaintiff’s land was used for the purpose of parking container lorries from about 1993 until sometime in 1999 or 2000.  The evidence before me included a series of overhead photographs of the land, one for each year from 1993 until 2005, taken by the Survey and Mapping Office of the Lands Department.  These provide an indication of the use to which the land was being put, albeit that they only provide a snapshot of the situation that pertained when the particular photograph was taken.  However, it appears from these photographs that the land was being used for this purpose at least until the date of the photograph taken in 1999, which was taken on 2 February 1999.  At the time of the 2000 photograph, taken on 1 June 2000, however, there did not appear to be any container lorries parked on the Plaintiff’s land.  The Plaintiff’s land appears to be completely unused in the 2001 and 2002 photographs, but by the time the 2003 photograph was taken on 3 July 2003, it was once again being used for the parking of container lorries.  This is consistent with the ownership history of the Plaintiff’s land, as it was only after 9 February 1999 that Kenney obtained possession of it.  The use of the land for this purpose is likely to have ceased sometime after that, and certainly by the time of its assignment by Kenney to Mr Mok on 31 January 2000.  Thereafter, it would only have been after Mr Mok’s grant of a licence to use the land to Mr Lau towards the end of 2002 (after the photograph for that year was taken) that it would once again have been put to use for this purpose.

8.  So far as planning permission for this use is concerned, it is common ground that use for parking of container lorries was not permitted under the relevant town planning arrangements in respect of the Plaintiff’s land and would therefore have involved a breach of the provisions of the Town Planning Ordinance (Cap. 131), save that for a period of 18 months between about May 1995 and November 1996, it was legitimised under a temporary permission that had been granted by the relevant authorities.  It was also common ground that the bridge that had been constructed over the drainage channel separating the Defendant’s land from San Tam Road was not an authorised structure.

9.  There was expert evidence filed on the subject of whether or not enforcement action was likely, in relation to either the use of the land or the unauthorised bridge structure, but at the end of the day, I did not find it necessary to resolve the differences of opinion between the experts, as the Plaintiff had in fact applied, unsuccessfully, for permission to use its land for the purpose of parking container lorries, and following the failure of that application, does not seek to use its land for that purpose any longer.

10.  It has, however, applied for planning permission to use part of its land for the purpose of parking other, smaller, vehicles and trucks.  The reason why this latest application is in relation to part of the land only is because the Plaintiff is entitled to use the remainder of its land (consisting of a portion of the land at its southern end) for this more limited purpose under the existing zoning.  This is because that part of the land is zoned as “Industrial (Group D)”, under which open storage of vehicles (other than container vehicles) is permitted.  Planning permission is, however, required for the other part of the Plaintiff’s land.  At the date of the hearing, the outcome of this latest application was not known, but this is not a matter which affects the outcome of these proceedings.

The parties’ respective arguments

11.  Mr Pang, who appeared for the Plaintiff, submitted that a right of way over the road passing through the Defendant’s land arose in favour of the Plaintiff’s land as the dominant tenement either:-

(1)     when Widecorp granted a mortgage over what is now the Plaintiff’s land to Kenney on 12 August 1994; or alternatively

(2)     when Kenney obtained possession of that land in 1999; or alternatively

(3)     when Kenney conveyed that land to Mr Mok on 31 January 2000.

12.  He submitted that the right of way arose either by implication, under the rule in Wheeldon v Burrows (1879) 12 Ch.D. 31, or alternatively, pursuant to section 16 of the Conveyancing and Property Ordinance (Cap.219) (“section 16").

13.  Mr Hung, appearing for the Defendant, submitted that:-

(1)     While not disputing that the rule in Wheeldon v Burrows could in principle operate so as to result in the grant of a right of way by implication, the only relevant time for the operation of the rule in Wheeldon v Burrows was when Kenney conveyed what became the Plaintiff’s land to Mr Mok on 31 January 2000, and that as, at that time, the access road was not in use (no use being made of such land for parking vehicles at that point in time), no right of way could arise by implication in favour of the Plaintiff’s land, as the right of way was not then in continuous and apparent use.  Moreover, the grant of such a right of way was, he said, not necessary for the reasonable use of the Plaintiff’s land, which, being described as padi land in the Block Crown Lease, did not require vehicular access.

(2)     Section 16, which could have come into play either on the grant of the mortgage to Kenney on 12 August 1994, or on the assignment by Kenney to Mr Mok on 31 January 2000 (but not on Kenney’s obtaining possession, since that did not involve an assignment within the meaning of the Conveyancing and Property Ordinance), did not operate so as to convert what had hitherto been a quasi easement (as Widecorp was the owner of both the dominant and subservient tenements) into a full easement, as section 16 could not apply where there had been no diversity of occupation or ownership of the property prior to the conveyance relied upon.  In support of this proposition, Mr Hung relied upon Long v Gowlett [1923] 2 Ch 177 and Sovmots Investments Limited v Secretary of State for the Environment [1979] AC 144.

(3)     In any event, no right of way could have arisen, because the use to which what was to become the Plaintiff’s land was being put was illegal, being in contravention of the Town Planning Ordinance, and, as no legal right could be acquired through an illegal act, no right of way could arise.

(4)     Further, and in any event, the right of way claimed was so excessive as to leave the Defendant with no reasonable use for his land, and on this ground also, it should be rejected.

(5)     Even if an easement were capable of arising, no injunction should be granted, as a matter of exercise of the court’s discretion to grant injunctive relief, for any of the following reasons:-

(a)    it would enable the illegality involved in the use of the Plaintiff’s land as a container park to continue;

(b)   the Plaintiff appeared to be trespassing on Government Land (by the bridge which it constructed over the drainage channel) and also on neighbouring lots;

(c)   the injunction claimed is too wide, in that it seeks to restrain the Defendant from interfering with the Plaintiff’s use of the right of way “at all times and for all purposes”; and

(d)   the Plaintiff could in any event terminate the licence granted to Mr Lau (who could in turn terminate the sub-licence which he had granted) because of the illegal use to which its land was being put.

Implied easement pursuant to rule in Wheeldon v Burrows

14.  The rule in Wheeldon v Burrows is an aspect of the general rule against derogation from grant.  It determines what easements will be implied in favour of a grantee of part of a land holding against the grantor, who retains the remainder of the land.  It results in the grant of easements over the retained land where they are:-

(1)     continuous and apparent; and

(2)     necessary for the reasonable enjoyment of the land granted; and

(3)     which have been and are at the time of the grant used by the owners of the entirety for the benefit of the part granted.

(See Wheeldon v Burrows (supra) at p.49, per Thesiger L.J.)

15.  Although, strictly speaking, a continuous easement is one which is enjoyed passively (such as a right to light, or a right to use drains or a watercourse), this requirement has never been rigidly insisted upon, and a right of way over a made road or well defined track will pass under the rule (see Megarry & Wade, The Law of Real Property (6^th ed) at paragraph 18-105).  In practice, the term “continuous” appears to have been interpreted as meaning permanent in nature, so that what will pass are easements of a permanent sort, of which some sign is apparent on the retained land.

16.  Further, what is necessary for the reasonable enjoyment of the land granted may go well beyond such easements as may arise as easements of necessity, which are limited to such easements without which the land in question cannot be used at all.

17.  In this case, the right of way claimed relates to the access road which was constructed over the Defendant’s land.  The photographs of the parties land clearly show that the road in question is one which was constructed, consisting as it does of a well defined roadway the surface of which is made up, in that it is either concreted over, or gravelled.  The right of way claimed is therefore both permanent in nature, and readily apparent on the Defendant’s land, and I am therefore satisfied that it was continuous and apparent for the purposes of the rule in Wheeldon v Burrows.

18.  So far as being necessary for the reasonable use of the Plaintiff’s land is concerned, it seems to me that the fact that Widecorp felt it necessary to have this means of access over what has become the Defendant’s land is good evidence of this fact.  Moreover, without the right of way that is claimed, the Plaintiff’s land is essentially inaccessible by vehicle.  This would severely restrict the uses to which the land could viably be put, and I am therefore of the view that the easement claimed also satisfies this test.

19.  So far as being used by the owner of the land at the time of the grant is concerned, there is no difficulty with this if the relevant time is when Kenney was granted a mortgage over the land.  However, at the time when the land was actually conveyed to Mr Mok, such evidence as there is suggests that the right of way was probably not in active use at the time, as it is likely that Widecorp was no longer using the land by then, as Kenney had entered into possession and was selling the land as mortgagee.  In my view, this is not fatal to the implication of the easement contended for.  Insofar as this requirement goes to the necessity of the easement for reasonable use of the land granted, I do not think that the fact that Widecorp may not actually have been making use of the right of way at or immediately prior to the sale to Mr Mok indicates that the easement is not one which is so necessary, as the non-use of the right of way for a (relatively short) period of time prior to the sale was probably due to the fact that Widecorp was not then making use of that land at all.  Further, it seems to me that another purpose of this requirement is to prevent easements arising in cases where the right claimed has been long disused, and I do not think that this can be said to be the case here.

20.  As far as Mr Hung’s point in relation to the description of the land as padi land in the Block Crown Lease is concerned, it seems to me that in the light of the decision in Attorney General v Melhado Investment Limited [1983] HKLR 327, it is clear that such descriptions are of descriptive effect only, and that it cannot be said that because of such description, the land could not be put to any other use, such that vehicular access was not necessary for its reasonable enjoyment.

21.  Thus, it seems to me that (subject to the questions of illegality, excessive use and the exercise of my discretion to grant an injunction), an easement consisting of a right of way for vehicular access over the roadway constructed on the Defendant’s land arose, at latest, when the Plaintiff’s land was sold by Kenney to Mr Mok on 31 January 2000.

22.  It is therefore not necessary for me to express a concluded view as to whether or not the rule in Wheeldon v Burrows operates so as to create easements by implication when a mortgage is granted, so as to result in such an easement having arisen on the grant of a mortgage over the Plaintiff’s land in favour of Kenney in August 1994.  Mr Hung contended that it did not, Mr Pang that it did.  Neither, however, was able to cite any authority throwing light on this question, and this argument was not fully developed.  I would therefore prefer to leave the question open for determination when it becomes necessary to do so.

Section 16

23.  In the light of my conclusions set out in the preceding section of this judgment, it is also not strictly necessary to determine whether or not the easement claimed arose by virtue of Section 16(1) of the Conveyancing and Property Ordinance.

24.  I shall, however, briefly indicate the views to which I have come on this point, as this was the subject of detailed argument.  Section 16(1) is in the following terms:-

“Unless the contrary intention is expressed in the assignment, an assignment shall operate to assign, with the land, all rights, interests, privileges, easements or appurtenances in, over, belonging or appertaining to that land or at the time of the assignment used, held occupied or enjoyed with that land and things attached to the land or permanently fastened to anything attached to the land.”

25.  An assignment includes a legal charge (see section 2(1) of the Conveyancing and Property Ordinance), and therefore, section 16(1) could operate both at the time of the mortgage to Kenney and at the time of the assignment of the Plaintiff’s land to Mr Mok.

26.  As Rogers V-P pointed out in Silver Carnival Limited v Longbase Investments Limited [2005] 2 HKC 681 (at paragraph 14), the wording of the section follows the wording of the corresponding provisions of the English Conveyancing Acts, commencing with the Conveyancing Act 1881.

27.  Mr Hung’s argument in relation to this route for the creation of an easement in favour of the Plaintiff’s land was that as, prior to the mortgage to Kenney and also the assignment to Mr Mok, the two pieces of land were in the common ownership of Widecorp, no easement could arise under the section.  This argument was based on Long v Gowlett (supra) and the Sovmots Investments case (supra).

28.  However, it appears from the relevant passages in Long v Gowlett that, notwithstanding common ownership of the land in question, a quasi easement can still be converted into a full easement by virtue of the section, so long as it is continuous and apparent.  Long v Gowlett was a case in which it was claimed that the Plaintiff was entitled to an easement of access to a riverbank on a neighbouring owners’ land (described as Lot 2) to enable him to repair the riverbank and cut weeds, so as to reduce the risk of flooding on the Plaintiff’s land (described as Lot 1).  In coming to his conclusion that no easement arose under the section, Sargant J expressed himself as follows (at p.200 of the judgment):-

“... No doubt the common owner and occupier did in fact repair the bank of Lot 2, and cut the weeds there; and no doubt also this repair and cutting would enure not solely for the benefit of Lot 2 ... so as to prevent its being flooded, but also and very likely to a greater extend for the benefit of Lot 1.  But there is nothing to indicate that the acts done on Lot 2 were done otherwise than in the course of the ownership and occupation of Lot 2, or that they were by way of using a “privilege, easement or advantage” over Lot 2 in connection with Lot 1.  The common owner and occupier of Whiteacre and Blackacre may in fact use Blackacre as an alternative and more convenient method of communication between Whiteacre and a neighbouring village.  But it has never been held, and would I think be contrary to principle to hold, that (in default of there being a made road over Blackacre forming a continuous and apparent means of communication) a sale and conveyance of Whiteacre alone would carry a right to pass over Blackacre in the same way in which the common owner had been accustomed to pass.  As it seems to me, in order that there may be a “privilege, easement or advantage” enjoyed with Whiteacre over Blackacre so as to pass under the statute, there must be something done on Blackacre not due to or comprehended within the general rights of an occupying owner of Blackacre, but of such a nature that it is attributable to a privilege, easement, right or advantage, however precarious, which arises out of the ownership or occupation of Whiteacre, altogether apart from the ownership or occupation of Blackacre.  And it is difficult to see how, when there is a common ownership of both Whiteacre and Blackacre, there can be any such relationship between the two closes as (apart from the case of continuous and apparent easements or that of a way of necessity) would be necessary to create a “privilege, easement, right or advantage” within the words [of the section]” (emphasis added).

29.  It seems to me (as it seemed to the editors of Megarry & Wade, op cit, at paragraph 18-114) that, in the light of the words which I have emphasised, a continuous or apparent quasi easement, such as one consisting of a made roadway (as is the case here), is capable of becoming a full easement under the provisions of section 16 (or the English equivalent).  Although in the Sovmots case, it was held that no easement could arise under the English equivalent of section 16 where there had been no prior diversity of ownership and occupation, Long v Gowlett was cited with apparent approval, and without qualification.  Moreover, in the Sovmots case what was being claimed would appear to have been rights or advantages which were neither continuous nor apparent, and which would not appear in fact to have been enjoyed at the material time (which was the time of making of a compulsory purchase order in that case).

30.  If it had been necessary, therefore, I would have come to the conclusion that the easement claimed also arose on the mortgage of what is now the Plaintiff’s property to Kenney, or alternatively, on its assignment to Mr Mok, by operation of section 16(1) of the Conveyancing and Property Ordinance.  In the former case, no argument about non-use of the right of way at the time of the mortgage would arise, as Widecorp was then still carrying on business, and in the latter case, I do not think that the relatively recent cessation of use would be such as to prevent the easement from arising.

Illegality

31.  So far as the question of illegality is concerned, Mr Pang submitted that even if (as appeared to be the case) the use of the land for the purpose of parking container vehicles contravened the provisions of the Town Planning Ordinance, this was a matter between the Plaintiff and the Government, and was of no relevance as between the Plaintiff and the Defendant.  He submitted that it did not prevent the easement claimed arising, either because the Plaintiff did not need to plead or rely on any illegal act in order to establish the existence of the right of way (so that, under the principle laid down by the majority of the House of Lords in Tinsley v Milligan [1994] AC 340, it was not prevented from asserting its legal rights in respect of the easement claimed), or alternatively because the penalties contained in the Town Planning Ordinance for contravention of its provisions were sufficiently severe that it was not necessary for the promotion of the objectives of that ordinance to deny the Plaintiff the benefit of the right of way to which he would otherwise be entitled.

32.  I think that either of these bases would lead to the conclusion contended for by the Plaintiff.  In terms of Tinsley v Milligan, it seems to me that it is not necessary for the Plaintiff to plead or rely on the use to which the Plaintiff’s land was put.  All that is needed is for the Plaintiff to show, as it has, that at the time of the assignment of the property to Mr Mok, there existed a continuous and apparent quasi easement - namely the right of way evidenced by the made road over the Defendant’s property, so as to result in the creation of an easement by implication under the rule in Wheeldon v Burrows.  The purpose for which the right of way was used does not seem to me to be a matter which the Plaintiff needs to establish.

33.  Alternatively, it seems to me that it is right to say that the objectives of the Town Planning Ordinance appear to be adequately promoted by the heavy penalties which it provides for in the event of contravention of its provisions (see particularly the penalties provided for in sections 21 and 23, with fines of up to HK$150,000 and HK$500,000), and that it is not necessary for the promotion of its objectives to deny the Plaintiff the right of way that is claimed, particularly as the right of way would appear to me to be necessary for the reasonable enjoyment of its property, even in a manner consistent with the present permitted uses, which includes the parking of vehicles (other than container lorries) on a part of the Plaintiff’s land which would otherwise be inaccessible.

34.  Mr Hung cited three authorities in support of his argument that a person cannot acquire a right by an illegal act.  However, it seems to me that in this case, the right does not so arise, for the reasons which I have just given.  By contrast however, in each of the cases cited by Mr Hung, the alleged right arose directly out of the illegal act in question (in  Glamorgan County Council v Carter [1963] 1 WLR 1, the illegal act of parking a caravan on certain property was relied upon as constituting the last use of the property when certain town planning legislation came into effect; and in George Legge and Son Limited v Wenlock Corporation [1938] AC 204 and Magistrates of Airdrie v County Council of the County of Lanark [1910] AC 286, illegal discharge of sewage into a stream was relied upon as having rendered the stream a sewer, into which sewage could be discharged).

35.  I therefore do not think that any contravention of the provisions of the Town Planning Ordinance by the Plaintiff’s predecessor in title to his land would prevent the easement contended for from arising.

Excessive use

36.  Mr Hung also submitted that no easement could arise in this case as it would involve excessive use of the Defendant’s land, so as to render that land practically unusable.  In support of this proposition, Mr Hung relied on Batchelor v Marlow [2003] 1 WLR 764.

37.  I do not think that this authority assists Mr Hung.  The facts of that case are very different from those here.  That case was concerned with an alleged easement entitling the defendants there to park six cars on a piece of land owned by the plaintiff.  The effect of recognition of such an easement would have been to leave the plaintiff with no reasonable use of his land, whether for parking or for any other purpose.  I think it pertinent to note that what was claimed was a right to park cars for a period of some 9.5 hours per day.  While cars were parked on the plaintiff’s land, it obviously could not be used for any meaningful purpose.  It seems to me that the same cannot be said of a right of way - which by its nature is unlikely to be used continuously, so that the Defendant here will still be able to travel along that part of his land if necessary.  He will not be deprived of it altogether for a substantial part of the day as would have been the case in Batchelor v Marlow.

38.  Although it is fair to say that a substantial portion of the Defendant’s land consists of the area subject to the right of way which is claimed, there remains at least about 50% of his land which he is free to deal with as he wishes.

39.  In the circumstances, I do not think that the principle exemplified by the decision in Batchelor v Marlow has any application to this case, and it does not preclude recognition of the easement claimed.

Discretion

40.  For the reasons given above, I am satisfied that the Plaintiff has established that it is entitled to the easement claimed over the Defendant’s land.   Mr Hung has, however, submitted that the injunction sought by the Plaintiff should be refused for the various reasons which are set out in paragraph 13(5) above.

41.  It should be observed first that this argument is not advanced in respect of the declaration which is sought by the Plaintiff.  It seems to me that it would be anomalous, to say the least, for the court to declare, as I think it should, that the Plaintiff is entitled to the right of way described in paragraph 1 of its Originating Summons, but not to grant the injunction by which it seeks to restrain the threatened interference by the Defendant with its exercise of its rights in respect of the right of way.

42.  In any event, it seems to me that none of the grounds relied on by Mr Hung could justify the exercise of the court’s discretion in the way which he suggests.

43.  The point concerning continuing illegality in using the Plaintiff’s land as a container lorry park does not appear to arise here, as the present position is that the sub-licensee of the land no longer intends to use it for this purpose, and seeks instead to use it for the open storage of vehicles (but not container lorries), which is something that appears to be within the present planning guidelines for part of the land, and is the subject of an application for permission for the balance of the land.  Even if that permission is not granted, it will remain possible for part of the land to be used for this purpose, and the right of way will be required in any event.

44.  So far as the alleged trespasses are concerned, these do not concern the Defendant’s land, and appear to me to be matters in respect of which complaint, if any is to be made at all, should be made by the Government or the owner of the neighbouring land in question.  I do not see that it provides a basis for the Defendant to resist the granting of an injunction.

45.  So far as the terms of the injunction are concerned, these simply track the terms of the declaration which I am satisfied should be made.  The fact that the Plaintiff is, as I think he is, entitled to use the right of way at all times and for any purpose, does not entitle the Plaintiff to carry on activities on his land which it is not permitted to carry on - this, however, is a matter for enforcement by the relevant authorities if the circumstances warrant it.

46.  Finally, I do not see the relevance of the fact that the licence and sub-licence are terminable.  Even if they were terminated, there would be nothing to prevent a fresh licence being granted to the same persons, or different persons, who could then use the Plaintiff’s land for other purposes (such as those now proposed), or to prevent the Plaintiff itself from so using the land, which would still require use of the right of way.

Conclusion and costs

47.  I shall therefore grant the declaration and injunction sought by the Plaintiff in his Originating Summons and make orders accordingly.  As the Plaintiff has succeeded in these proceedings, I shall make an order nisi that the Defendant is to pay the Plaintiff’s costs of these proceedings, including all previously reserved costs, such costs to be taxed on the party and party basis if not agreed.