Now, where were we? Sporting and recreational easements, some weird assumptions about general familiarity with golf courses …
The Supreme Court has now brought this long-running case to an end, to the delight of Land Law text book writers and law students studying this particular part of compulsory Land Law units.
The judgment came out (I refuse to use the slimily deferential ‘handed down’ and am not sufficiently down with the kids to say that it was ‘dropped’, despite the involvement of the so-called ‘Beyonce of the Law’ in the case …) in November 2018, and can be found (alongside summaries) via https://www.supremecourt.uk/cases/uksc-2017-0083.html
Law students will be delighted to learn that the SC did not come up with a unanimous view – I know you love it when they disagree and you have to get to grips with the differences! Lady Hale, Lord Kerr and Lord Sumption agreed with Lord Briggs, whilst Lord Carnwath did not, and gave his views in a dissent at the end.
The overall result was that the appeal was dismissed: the argument that the recreational rights in question could not be easements did not find favour with the SC. It is, therefore clear that it will not be a sufficient challenge to a claimed easement to say ‘it can’t be an easement: it’s recreational’. So far, quite unsurprising. The case also shows that the scope of allowable recreational easements is being stretched to include rights beyond walking and using the servient tenement as a garden, and also (at least on the facts of this case) to include the use of a wide array of facilities not in existence, perhaps not contemplated, at the time of grant. To my mind, it illustrates the lack of ‘teeth’ of the classic ‘requirement’ of accommodation of a dominant tenement and the ‘non-ouster’/ not being too demanding of the servient owner idea which has arisen under the heading of ‘lying in grant’.
Much turns on the convoluted history of the land in question and on the wording of transfers. Lord Briggs gives a summary, (from  onwards).
In 1981, at the time of a key transfer, facilities in the alleged ST included:
- golf course
- outdoor heated swimming pool
- three squash courts
- two tennis courts
- a restaurant, billiard/snooker room and TV room
- gymnasium, including sauna and solarium
- Italianate gardens
- putting green
- croquet lawn
- outdoor jacuzzi/spa pool
- ice/roller skating rink
- platform tennis courts
- a soft ball court (sic – softball?)
- riding stables.
There were some difficulties and changes. In particular, the pool was closed and filled in. An indoor pool replaced the gymnasium. The putting green, croquet lawn, jacuzzi/spa pool and roller skating rink were closed and the riding stables demolished. The number of timeshare apartments was increased substantially. A dispute arose as to the rights of the timeshare owners to use the facilities without charge. The dispute took legal shape in the main issue of whether they had an easement or easements to use the facilities on the ‘ST’.
At first instance, the answer was that they did have easements. In the Court of Appeal, that was upheld in a general sense, though there was some variation in terms of the content of the easements: there was a net reduction, with the removal of rights to the new swimming pool and facilities in the basement of the mansion house. In the SC, the ‘servient owners’ sought a decision that none of the alleged rights were easements, and the ‘dominant owners’ wanted to hear that all of them were (i.e. that there were easements in relation to both ‘existing’ and ‘post-transfer’ facilities).
Lord Briggs’s account continued with a run through the familiar ‘rules’ as to which rights may be easements, referring to Re Ellenborough Park, and the source for its fourfold test, Cheshire’s textbook (that’s IMPACT for you, REF fans). Singled out for discussion are ‘accommodation’ and ‘ouster’. The idea that ‘accommodation’ is a useful criterion has never convinced me. Except in ‘land support’ cases, it really is a matter of value judgment. The strategy of many writers and judges is to say what sort of thing does not accommodate (usually with a reference to cricket grounds, about which we are all, naturally, well-informed: tiresome cultural assumptions) and to make not-terribly-helpful statements about the matter being one of facts, context etc. etc. Following this pattern, Lord Briggs  gives us some mention of the Oval and makes it clear that accommodation is only ‘in a sense’ a legal concept, and mostly a question of fact .
Having slightly ducked defining ‘accommodation’, he goes on to decide whether ‘recreational and sporting rights’ such as those in issue here, can be ruled out as not ‘accommodating’ (whatever that may mean) . This is an important point: does it matter that a claimed right amounts to ‘an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement)’. One would imagine that it might. But not so. Because the mode of tenure of the DT at a particular time is to be fed into the calculation of accommodation – so because these were (at the moment) timeshare apartments, the right to use sporting and recreational facilities on adjacent land (whatever they may be at any given time) accommodated them in such a way as to justify a permanent right.  No argument of proportionality, nor tails wagging dogs, was to defeat this . It does seem a significant reduction in the utility of the ‘accommodation’ criterion – but then a fairly vacuous criterion can be given whatever meaning we desire. Perhaps people should be able to make whatever deal they wish, to burden their land to whatever extent they wish. If so, however, we should stop pretending that property principles impose definite limits.
Lord Briggs did not consider that the rights amounted to an ouster of the servient owner, despite the suggestion that the dominant owner might have ‘step in’ rights to come in and manage and maintain the facilities if the servient owner did not . Nor did the argument that classing the rights in issue as easements would impose obligations on the servient owner, in the view of Lord Briggs, hold water .
He recognised that this was something of an extension to the concept of an easement, but thought that the law ought to allow it. One argument in favour was that the ‘common law should, as far as possible, accommodate itself to new types of property ownership and new ways of enjoying the use of land’ . This, of course, means being open to intensification of the use of land. It is interesting to consider how such a ‘principle’ (which also underpins Making Land Work) interacts with ideas of public good, planning and environmental concerns. Secondly  he notes developments in other common law jurisdictions which have indeed allowed some extension to recreational easements (though not obviously involving the sort of intensive artificial and perhaps environmentally harmful management required to maintain a golf course).
Part of the route to arriving at approval of these rights as easements involved going against the Court of Appeal’s approach of ‘unbundling’ the various rights and treating them as separate, depending on date of creation of the relevant facilities, amongst other criteria. Instead, Lord Briggs reverts  to the first instance policy of treating them as a bundle of rights over such facilities as exist on the ST at any given time. This avoids potential issues of futurity and perpetuity (at which we may breathe a sigh of relief) but does also introduce some new artificiality, in creating the idea of rights associated with a country club . Is there an agreed list of such rights? Not being likely ever to be associated with such an organisation, I would not know, but would suggest that there might be arguments around the edges.
Lord Carnwath dissents from paragraph 94 onwards. He is concerned about the extent of the imposition on the ST:  …’An easement is a right to do something, or to prevent something, on another’s land; not to have something done… The intended enjoyment of the rights granted in this case, most obviously in the case of the golf course and swimming-pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management. … Thus the doing of something by the servient owner is an intrinsic part of the right claimed.’ He is not convinced that the authorities cited justify the extension required to make easements from the rights claimed : ‘In effect what is claimed is not a simple property right, but permanent membership of a country club.’ He also makes light work of the ‘non-ouster’ conclusion  and expresses concern at the potential extent of ‘future’ rights over the ST [109-114]. All of this seems very fair comment to me.
Anyway, the decision has been made. The climate seems to be in favour of expansion of the sorts of rights which can be easements. It will be interesting to see how far this stretches. Does recreation have to be ‘active’? Could it in fact involve spectating at sporting events (and allow us to put an end to the tedious cricket examples …)? And why should somebody be allowed a right to play golf free of charge on the ST, but not be allowed an easement to have a lovely (and golfer-free) view over it? Is the positive/negative distinction above challenge, if ‘accommodation’ can be reduced to this rather feeble level?
Disclaimer – these are my own musings, not legal advice, and subject to revision (except the negative views of cricket and golf, which will be with me until my last breath).