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Joshua Hedgman was recently successful in multi track property trial which raised issues as to the construction of a covenant for the benefit of an easement.
Claimant landowner who was suing for a contribution for works to a driveway over which the Defendants’ enjoyed a right of way.
By covenant in deed, the Defendants’ were liable for a one-half share of the cost of ‘maintaining, repairing and renewing’ the shared driveway. The driveway in question was some 300m long and paralleled for the most part by a 3 metre wide river.
The driveway in Somerset was flooded during two separate flood events in 2008. These events necessitated the need to undertake substantial resurfacing works on both occasions in addition to the installation of flood defence measures along the river in anticipation of future flood events.
The trial therefore raised interesting issues of construction: could the flood defence measures fall within the meaning of repair, maintenance and renewal of the driveway? Secondly, both parties called oral expert evidence at trial to assist the Court in making findings as to the reasonableness of all the works undertaken.
Joshua successfully submitted that the context of this particular covenant could extend to anticipatory works undertaken to avoid the continued cost of repair long-term. Recorder Whipple QC further preferred the Claimants’ expert evidence after the Defendants’ expert substantially changed his opinion at trial. The Claimants therefore recovered for all of the works undertaken.
The case therefore raised interesting questions at law as to the construction of covenants for easements and the extent to which anticipatory works were covered by an obligation to ‘maintain’.
The case was of a little less interest to the Court usher who, perhaps more acclimatized to the Crown Court, remarked on the concluding day of trial: ‘there’s only so much excitement you can find in gravel’.
Author: Joshua Hedgman Farrars (chambers@farrarsbuilding.co.uk)