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GAZETTE
JULY-AUGUST
purported to grant the wayleave for
the extension to the sewer.
The Court (McWilliam J.) in
considering the facts emphasised the
reticence of the Vendor's Solicitor
when drawing the conditions of sale,
as to the particulars of the agreement
granting permission for the extension
of the sewer. There was no indication
of the date for this agreement, the
person or body with whom it was
made, the line of the proposed
extension, or the extent of ground or
the
nature
of the
proposed
development it was intended to serve.
These matters were within the
Vendor's Solicitor's own knowledge
as he personally obtained permission
on behalf of his wife but he precluded
the Purchaser from making any
requisition or inquiry regarding them
although he must have realised that
they were of importance to the
Purchaser if he was to be required to
make the reservation or grant being
claimed.
The Court considered that the sole
question before it was whether, on
the true construction of the special
condition, the Purchaser had bought
the premises subject to such right as
was enforceable by the person
claiming to have permission to extend
the sewer, or whether he bought
subject to a condition that he would
give such permission either by
reservation in the conveyance to him
or by a grant by him by another
deed.
Held:
(per McWilliam J.)
(1) That the deed of 8 September
1978 (purportedly granting the
wayleave) had to be discharged
because the Defendants (the
Trustees) were then holding the
property on trust for the
Purchaser and could not alter the
position as it then stood without
his consent.
(2) That there was no grant of a
wayleave by the Vendor and he
had no power to make such a
grant; there was no agreement in
writing to make such a grant
(although the wayleave would be
an interest in or concerning land
within the meaning of the Statute
of Frauds) nor was there any
consideration for the grant of
permission for the extension of
the sewer; and the person
interested (i.e. the Vendor's
Solicitor's wife) to claim the right
was not a party to the
proceedings.
(3) That the Vendor and his Solicitor
were in full possession of all the
facts and, if it had been intended
that the Purchaser should grant
the wayleave or allow reservation
to that effect it would have been
very easy to put a clear provision
in the contract. The words in the
special condition that "The
premises are being sold subject to
the reservation in this respect
. . . ." could not be interpreted as
meaning more than that the
property was being held subject
to the permission which had been
granted and he did not accept
that it bound the Plaintiff to
make a grant either by including
a reservation (of the right to
extend the sewer) in the
conveyance or by executing
another deed.
(4) That the Defendants were not
entitled to compel the Purchaser
to accept the reservation or make
the grant they required, whatever
may be the rights of the person to
whom the permission was given.
L.GJ. v. T.M., J.R. and W.N. —
High Court, (per McWilliam J.) — 7
December 1978 — unreported.