The Gazette 1980

JULY-AUGUST

GAZETTE

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.